O’Dell v. SSA CV-05-40-PB 09/08/10
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
George W . O’Dell and Donna M . O’Dell
v. Case N o . 05-cv-40-PB Opinion N o . 2010 DNH 159 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
George W . O’Dell moves to reverse the Commissioner of Social
Security’s determination that he is not eligible for disability
insurance benefits (“DIB”). O’Dell bases his claim on a back
injury he suffered in 1990. He focuses his appeal on the
Commissioner’s determination that he is not entitled to DIB
because he was capable of performing sedentary work without
restriction while he was still insured. For the reasons set
forth below, I affirm the Commissioner’s decision.
I. BACKGROUND1
O’Dell was born January 2 5 , 1947, and grew up in
Massachusetts. George O’Dell was forty-three years old when he
1 The background information is drawn from the Joint Statement of Material Facts submitted by the parties (Doc. N o . 10) and the Administrative Record. Citations to the Administrative Record are indicated by “Tr.”
-1- allegedly became disabled. Following a brief stint in the
military at the age of twenty-one, O’Dell returned to
Massachusetts and worked as a store clerk, a restaurant worker, a
cab driver, and a distributor for a lawn chemical company. (Tr.
at 16.) In 1988, O’Dell became a car salesman and worked in that
capacity for several years. (Tr. at 254.)
At the time of his injury, O’Dell was working as a salesman
at Quirk Chevrolet in Braintree, MA. (Tr. at 157.) On March 2 3 ,
1990, O’Dell slipped on some sand and fell while at work. (Tr.
at 157.) He alleges that this fall resulted in a disabling “disc
problem” and a hairline fracture in his ankle. (Tr. at 29.)
A. Mental and Physical Impairments
Prior to his injury, O’Dell suffered from a number of health
issues. In 1968 he began his working life by entering the Marine
Corps. Approximately one month into basic training, he
experienced a “schizophrenic reaction of a catatonic type.” (Tr.
at 118-25.) He was then hospitalized and diagnosed with a pre-
existing personality disorder. Because of this disorder, O’Dell
was discharged from the service. (Tr. at 118-25.)
Following his discharge, O’Dell’s personality disorder did
not appear to affect him for another twenty years. O’Dell worked
various jobs and maintained relationships with his wife and
children. However, in March 1986, O’Dell was hospitalized due to
-2- stress and ultimately diagnosed with a personality disorder with
antisocial and borderline features.2 (Tr. at 134.) O’Dell was
also diagnosed with anxiety on two separate occasions in 1987 and
1988, both times following trips to the emergency room for chest
pain. (Tr. at 1 3 7 , 141-42.)
O’Dell did not seek medical treatment of any kind again
until his back injury in 1990. O’Dell sought immediate medical
attention after his fall at work and was diagnosed as having a
“lower back sprain/strain and a question of a herniated disc” by
medical professionals at the Harvard Community Health Plan. (Tr.
at 157.) O’Dell neither sought nor received further medical
treatment for this injury until he filed a Worker’s Compensation
claim and was required to be evaluated in connection with that
2 Antisocial Personality Disorder is characterized by “continuous and chronic antisocial behavior in which the rights of others or generally accepted social norms are violated; associated personality traits include impulsiveness, egocentricity, inability to tolerate boredom or frustration, irritability and aggressiveness, recklessness, disregard for truth, and inability to maintain consistent, responsible functioning at work, at school, or as a parent.” Dorland’s Illustrated Med. Dictionary 555 (31st ed. 2007). Borderline Personality Disorder is “marked by a pervasive instability of mood, self-image or sense of self, and interpersonal relationships; impulsive and self-damaging acts are common, as are uncontrolled anger, fears of abandonment, chronic feelings of emptiness, recurrent self-mutilating behavior and suicide threats, and transient, stress-induced periods of paranoia and dissociation.” Id. at 556.
-3- claim. (Tr. at 23.)
On June 1 0 , 1991, over a year after his initial injury, the
insurance company processing O’Dell’s Worker’s Compensation claim
sent him to D r . Arnold Miller. (Tr. at 7 , 153.) D r . Miller, an
orthopedic surgeon at the Laconia Clinic in Laconia, N H ,
diagnosed O’Dell with “lower back strain.” (Tr. at 153.) Dr.
Miller went on to note, however, that he found no “hard objective
evidence of nerve root impingement to suggest that there’s a
problem.” (Tr. at 153.) D r . Miller opined that O’Dell could not
“do any kind of heavy work” and suggested some kind of work-
hardening program to improve O’Dell’s ability to sit so that he
could do “light duty work at a sitting position.” (Tr. at 153.)
Dr. Miller suggested that O’Dell might be able to perform a
sitting job for a maximum of three or four hours per day, and
only if he were allowed to change positions frequently. (Tr. at
154.) D r . Miller declared O’Dell “partially disabled,” but
concluded that he “certainly [did] not feel an end result ha[d]
been achieved at th[e] time nor ha[d] [O’Dell] reached maximum
medical improvement.” (Tr. at 154.) Specifically, D r . Miller
noted that O’Dell had been unable to undergo further diagnostic
testing because his claustrophobia prevented him from getting a
-4- CT scan, and O’Dell had refused a myelogram.3 (Tr. at 153.) Dr.
Miller made no mention of O’Dell’s obesity or underlying mental
health issues as they pertained to O’Dell’s ability to return to
work. (Tr. at 153.) Six months after his evaluation by D r .
Miller, O’Dell settled his Worker’s Compensation claim for
$45,000. (Tr. at 157.) At the time, O’Dell stated that he had
resolved his claim so that he could “pursue another business
opportunity.” (Tr. at 157.)
Over eight years passed before O’Dell again sought medical
treatment. There is no other evidence from the period in
question regarding O’Dell’s functional limitations. When given
the opportunity to testify, O’Dell offered no information about
the persistence of his back problems throughout the 1990s, nor
did he explain how his physical limitations prevented him from
working. (Tr. at 28-40.) In testimony dated November 2 , 2006,
O’Dell stated that he had spent the last three months (roughly
3 A myelogram uses a special dye and x-rays to highlight the space between the bones in the spine. This technique is often used to diagnose a herniated disc. Stedman’s Medical Dictionary 1013, 1369 (25th ed. 1990). It is unclear whether O’Dell simply refused further diagnostic testing or whether he could not receive it due to a pre-existing heart condition. While D r . Miller’s note certainly seems to suggest that O’Dell played a part in refusing testing (Tr. at 1 5 3 ) , the settlement document prepared in connection with O’Dell’s Worker’s Compensation claim indicates that O’Dell was physically unable to undergo further testing due to a heart condition. (Tr. at 157.)
-5- August 2006 - October 2006) in bed due to severe pain but made no
mention of such limitations during the relevant period. (Tr. at
37.) O’Dell did state when asked, however, that there had been
no period of time since 1991 that he had been healthy enough to
go back to work. (Tr. at 37-38.)
On October 1 , 1999, O’Dell saw D r . Shadan Mansoor of
Ammonoosuc Community Health Services in Littleton, NH. Dr.
Mansoor documented that O’Dell had had a “popped disc since
1990,” and later prescribed fifty Darvocet pills to O’Dell for
“chronic back pain,” with the expectation that O’Dell would make
the pills last for four months.4 (Tr. at 183-84, 193.) In June
2001, D r . Mansoor noted that O’Dell had been swimming two hours
every day and mowing his lawn. (Tr. at 201.)
Several months later, O’Dell suffered an episode of
depression. In September 2001, O’Dell told D r . Mansoor that he
planned to leave his wife because he felt that he was a burden to
her. (Tr. at 213.) O’Dell complained that he was depressed and
could not sleep. (Tr. at 213.) He reported feeling tired and
foggy, and said that he was having difficulty concentrating and
felt too negative to talk to a counselor. (Tr. at 213.) Dr.
4 Darvocet is a prescription drug indicated for the relief of mild to moderate pain. Physician’s Desk Reference at 402 (59th ed. 2005).
-6- Mansoor formally diagnosed O’Dell’s depression and prescribed Remeron.5 (Tr. at 213.)
In a one-paragraph doctor’s note dated March 2002, D r .
Genevieve Kelley of the White River Junction Veteran’s Clinic
stated that O’Dell was “completely disabled” and unable to do
work of any kind due to his multiple medical problems, including
morbid obesity. (Tr. at 155.) The note did not explain how or
why O’Dell’s medical problems prevented him from working. (Tr.
at 155.)
In September 2003, O’Dell sought the help of mental health
counselor Kevin Cole of the White River Junction veterans’
clinic. Notes from this visit indicate that O’Dell thought his
long history of depression was a direct result of his guilt and
disappointment over not having served in Vietnam. (Tr. at 226.)
O’Dell told Cole that he felt that he suffered from post-
traumatic stress disorder (“PTSD”) from being beaten while in the
Marine Corps and from not being able to help fallen comrades.
(Tr. at 226.) O’Dell admitted, however, that he had lied in the
past about being a combat veteran. (Tr. at 226.) Later that
month, Cole reported that O’Dell felt his depression was
5 Remeron is a prescription drug indicated for the treatment of major depressive disorder. Physician’s Desk Reference 2924 (63d ed. 2009).
-7- improving. (Tr. at 229.)
In October 2005, fourteen years after the alleged onset date
of his disability, D r . Frank Graf evaluated O’Dell’s residual
functional capacity (“RFC”). (Tr. at 254-261.) D r . Graf, an
orthopedist, concluded that O’Dell’s morbid obesity and back
condition rendered him “substantially impaired in all basic
functional movement patterns of sitting, standing, walking,
bending, stooping, lifting, pushing and pulling.” (Tr. at 256.)
Dr. Graf reported that O’Dell should be “considered disabled for
all employment,” and that “[h]is condition [was] expected to last
consecutively month after month for a minimum of 12 months.”
(Tr. at 256.) D r . Graf also indicated that O’Dell was suffering
from PTSD and multi-organ failure as a result of his exposure to
Agent Orange in Vietnam. (Tr. at 255, 261.) Six months after
rendering this opinion, D r . Graf also opined that O’Dell was
disabled as of December 3 0 , 1991, his date last insured (“DLI”).
(Tr. at 257.)
O’Dell’s attorney requested that Marvin Kendall, M.D., of
the Littleton, NH veterans’ clinic review D r . Graf’s assessment
of O’Dell. (Tr. at 180.) D r . Kendall declared that, while
disability determination was outside the scope of his practice,
he agreed with D r . Graf’s conclusion that O’Dell was unable to do
“any useful work.” (Tr. at 180.) D r . Kendall also stated that
-8- he could not make a determination as to O’Dell’s disability prior
to 1993. (Tr. at 180.)
II. PROCEDURAL HISTORY
O’Dell first filed an application for DIB relating to this
injury in 1996. (Tr. at 15 n.1.) That claim was denied, and
O’Dell never appealed the decision, rendering it final. (Tr. at
15 n.1.) O’Dell filed a second application for DIB on May 3 0 ,
2002, alleging that he suffered from constant pain, had trouble
breathing, and felt weak constantly. (Tr. at 43-52.) The Social
Security Administration denied his application based on res
judicata, stating that O’Dell’s 2002 claim presented the same
facts and issues as his 1996 claim, which had already been
denied. (Tr. at 63-65, 78-79.) O’Dell requested an
administrative hearing. On July 2 1 , 2004, an ALJ dismissed
O’Dell’s request on res judicata grounds. (Tr. at 78.) O’Dell
appealed, and the Appeals Council denied O’Dell’s request for
review.
O’Dell then filed a civil action in this Court. On August
9, 2005, the Commissioner filed an assented motion to remand
pursuant to sentence six of 42 U.S.C. § 405(g), which states that
the Court may remand the case if the Commissioner can show good
cause. The Commissioner explained that the ALJ and Appeals
-9- Council had improperly applied the doctrine of res judicata to
O’Dell’s application because the standard for evaluating both
musculoskeletal listings and mental impairments had changed since
1996. (Tr. at 16.) On August 1 1 , 2005, this Court granted the
Commissioner’s motion.
On November 2 , 2006, an ALJ held a hearing on remand to
determine the merits of O’Dell’s DIB application. Pursuant to 20
C.F.R. § 404.1520, the ALJ conducted a five-step evaluation to
determine whether O’Dell was disabled within the meaning of the
Social Security Act (“the Act”). The ALJ considered (1) whether
O’Dell was engaged in substantial gainful activity; (2) whether
O’Dell had a severe impairment; (3) whether the impairment met or
equaled a specific listing of impairment in the SSA regulations
and met the duration requirement; (4) whether, given the current
state of O’Dell’s impairments, O’Dell could still do past
relevant work; and (5) whether O’Dell could make an adjustment to
other work given his RFC, age, education, and prior work
experience. 20 C.F.R. § 404.1520.
On March 1 5 , 2007, the ALJ issued a decision finding that
O’Dell was not disabled during the period in question -- June 1 0 ,
1991, the alleged onset date, through December 3 1 , 1993, O’Dell’s
DLI. Specifically, the ALJ found at step 5 that O’Dell’s RFC was
consistent with the skills needed to perform the full range of
-10- sedentary work.6 Because the ALJ also found that O’Dell was 44
years old when he first claimed to be disabled and had a high
school education, the ALJ determined that he was required to find
that O’Dell was not disabled. (Tr. at 2 1 , citing Rules 201.27-
2 9 , 201.21 and 201.22). The ALJ based his conclusion that O’Dell
was capable of performing the full range of sedentary work
primarily on D r . Miller’s 1991 evaluation and the absence of
other contemporaneous evidence suggesting that O’Dell was
incapable of performing sedentary work.
The ALJ refused to credit D r . Graf’s opinion regarding
O’Dell’s RFC because it was not substantiated by “any clinical
signs or other objective medical evidence of record during the
period in question.” (Tr. at 19.) The ALJ reported that, even
though D r . Graf referenced O’Dell’s medical condition prior to
his D L I , his failure to cite objective medical evidence rendered
it useless in determining O’Dell’s limitations during the period
in question. (Tr. at 19.)
6 Sedentary work is defined as a job in which one is mostly sitting, but may be required to walk or stand occasionally. Additionally, a person in a sedentary job will not be required to lift more than ten pounds at a time and will only occasionally be required to lift and carry small items such as files and docket ledgers. 20 C.F.R. § 404.1567(a). “Occasionally” is defined as ranging from very little up to one-third of the time, or approximately two hours in an eight-hour work day. S.S.R. 83-10 at 5 (West 1993).
-11- Finally, the ALJ considered both O’Dell’s obesity and mental
impairments in the evidence, even finding his obesity to be
severe. (Tr. at 21.) Regarding his mental impairments, the ALJ
found that O’Dell “no longer had severe signs and symptoms” of
depression during the relevant period, and noted that O’Dell
presented no evidence indicating that his ability to work during
the period in question was limited by underlying mental
conditions. (Tr. at 20.) Ultimately, the ALJ found that neither
O’Dell’s obesity nor his mental impairments prevented him from
performing the full range of sedentary work. (Tr. at 21.)
O’Dell filed an exception to the ALJ’s decision based on the
fact that the ALJ had improperly considered D r . Graf’s RFC
assessment and ignored D r . Miller’s projected limitations
regarding O’Dell’s ability to work. (Tr. at 266.) On August 2 7 ,
2009, the Appeals Council notified O’Dell that it was assuming
jurisdiction of the case.
The Appeals Council issued its final decision on September
2 4 , 2009, concluding that O’Dell was not disabled at any time
during the relevant period. (Tr. at 4-11.) The Appeals Council
specifically addressed the ALJ’s failure to adopt D r . Miller’s
opinion that O’Dell could only perform a sitting job for a
limited period of time. (Tr. at 7.) The Appeals Council
ultimately discredited that portion of D r . Miller’s opinion
-12- because D r . Miller provided no clinical findings or objective
medical evidence to substantiate his opinion. (Tr. at 9.)
Lacking objective medical evidence, the Appeals Council found
that there was no reason to believe that O’Dell’s injury was as
severe as that portion of D r . Miller’s opinion suggested. (Tr.
at 9.) The Appeals Council further declared that O’Dell’s lack
of treatment between 1991 and 1999 was “inconsistent with the
alleged severity of his back complaints,” and that the record
reflected “no evidence to indicate that [O’Dell] was treated for
mental or cardiac impairments during the applicable period.”
(Tr. at 9.)
The Appeals Council also concluded that the ALJ was correct
in refusing to credit D r . Graf’s retrospective RFC evaluation.
(Tr. at 9.) The Council noted that D r . Graf’s report was further
discredited because Graf identified specific limitations that
were based solely on O’Dell’s false claims about the extent of
his military service. (Tr. at 9.) Because the Council found
that the ALJ was correct in concluding that O’Dell could perform
the full range of sedentary work, it upheld the ALJ’s decision
that O’Dell was not disabled at any time during the relevant
period. (Tr. at 9.) O’Dell timely appealed and the action again
came before this Court.
-13- O’Dell died on February 1 4 , 2010. His wife, Donna O’Dell,
continues this action on his behalf.
III. 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 “final decision” of the Commissioner of Social
Security. Because in this case the Appeals Council reviewed and
supplemented the decision of the ALJ, my review is of the appeals
Council decision and the portions of the ALJ decision that it
adopted. Sims v . Apfel, 530 U.S. 103, 106-07 (2000) (“SSA
regulations provide that, if the Appeals Council grants review of
a claim, then the decision that the Council issues is the
Commissioner's final decision”); see also Lopez-Cardona v . Sec’y
of Health and Human Servs., 747 F.2d 1081, 1082 (1st Cir. 1984)
(per curiam) (noting that the Appeals Council finding “became the
final decision of the Secretary”). Review is limited to
determining whether the Appeals Council 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)
(per curiam).
-14- The findings of fact of the Appeals Council are accorded
deference as long as they are supported by substantial evidence.
Ward, 211 F.3d at 655. Substantial evidence to support 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) (per curiam) (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, factual findings are
conclusive even if the record “arguably could support a different
conclusion.” Ortiz, 955 F.2d at 770. 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 Appeals Council 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 Appeals
Council, not the role of this Court, to resolve conflicts in the
evidence. Id.
IV. ANALYSIS
O’Dell challenges the Appeals Council’s step 5 determination
because he contends that it is based on the mistaken premise that
-15- his RFC allowed him to perform the full range of sedentary work
without restriction as of his DLI. 7 In particular, he complains
that the Council lacked medical evidence to support its RFC
determination and improperly discounted both D r . Miller’s 1991
opinion that O’Dell could perform a sitting job for no more than
three or four hours per day, and D r . Graf’s 2005 opinion that
O’Dell was disabled as of his DLI. O’Dell also complains that
the RFC determination fails to account for his obesity and
impaired mental condition. I address each argument in turn.
A. The Appeals Council’s RFC Determination Is Supported by Substantial Evidence
O’Dell’s arguments relating to the medical opinions are best
dealt with in two parts - first, whether the Appeals Council
impermissibly rejected the opinions outright and in doing so
invaded the province of medical experts, and second, whether the
Appeals Council was justified in the RFC it determined for O’Dell
in light of the medical opinions and the overall record.
7 A claimant’s RFC can affect his eligibility for DIB at several different steps in the sequential analysis. Here, O’Dell challenges the Appeals Council’s use of the RFC determination at step 5 . Although the burden of proof shifts to the Commissioner at this final step in the process, the burden shift does not affect the RFC determination, which ordinarily is made at steps 1 though 4 . Young v . Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000); Her v . Comm’r of Soc. Sec., 203 F.3d 3 8 8 , 392 (6th Cir. 1999).
-16- 1 . The Appeals Council did not determine O’Dell’s RFC without the benefit of medical evidence
O’Dell first contends that the Appeals Council determined
his RFC without the benefit of medical evidence. The short
answer to this contention is that it is based on a
mischaracterization of the record. Although the Council declined
to credit a portion of D r . Miller’s report, it did rely on the
remainder of his evaluation in determining O’Dell’s RFC. Thus,
the real issue the case presents is whether the Council erred in
making selective use of the medical evidence.
2. The Appeals Council properly considered medical evidence in determining’s O’Dell’s RFC
O’Dell complains that the Appeals Council improperly
discounted D r . Miller’s opinion that he could perform sitting
work for no more than three or four hours per day and D r . Graf’s
opinion that he was disabled as of his DLI. 8 Several factors
determine the weight that a medical opinion is due, including (a)
the nature, length, and specialty of the examining relationship,
(b) the amount of objective medical signs and laboratory findings
supporting the opinion, and (c) consistency of the opinion with
8 The record also includes a conclusory opinion from D r . Kelley that O’Dell was completely disabled in 2002, and a similar opinion from D r . Kendall in 2005. (Tr. at 155, 180.) Neither physician, however, expressed an opinion as to whether O’Dell was disabled as of his DLI.
-17- the record as a whole. 20 C.F.R. § 404.1527. I will analyze
these factors in turn.
a. Nature, length, and specialty of the examining relationship
Medical opinions that are rendered by treating physicians,
particularly when based on a large number of examinations, may be
given greater weight because such opinions often provide “a
detailed, longitudinal picture of [the claimant’s] medical
impairment. . . .” 20 C.F.R. 404.1527(d)(2). In the present
case, however, O’Dell was only examined by D r . Graf once (and
only then at his attorney’s behest). (Tr. at 8.) O’Dell was
examined twice by D r . Miller as a requirement of his Worker’s
Compensation claim. (Tr. at 7 , 153.) Because neither doctor was
able to base his opinion on ongoing, detailed treatment of
O’Dell, the Commissioner was entitled to give them less weight.
Medical examinations conducted after the relevant injury
period are also of limited relevance in disability
determinations. See Gonzalez-Rodriguez v . Barnhart, 111 Fed.
Appx. 2 3 , 25 (1st Cir. 2004) (per curiam) (holding that a
consultive examination and treatment were of “limited value”
where both occurred “after [claimant’s] insured status had
expired”); see also Evangalista v . Sec’y of Health and Human
Servs., 826 F.2d 136, 140 n.3 (1st Cir. 1987) (noting that where
-18- a doctor did not examine the claimant until over four years after
the claimant’s last insured date, the doctor’s ability to shed
light on whether the claimant was incapacitated was “seriously
curtailed”). Here, the retroactive findings of D r . Graf were of
severely diminished value to the ALJ and Appeals Council because
they were based on examinations that took place twelve years
after claimant’s insured status had expired. (Tr. at 1 8 0 , 254.)
Opinions rendered by physicians retained by claimant’s
counsel (“advocacy opinions”) may also be given less weight. See
Evangelista, 826 F.2d at 139; see also Coggon v . Barnhart, 354 F.
Supp. 2d 4 0 , 53 (D. Mass. 2005) (holding that the ALJ reasonably
gave less weight to an “advocacy” opinion because it indicated a
“potential bias . . . to advocate on [claimant’s] behalf”). In
discussing the credibility of the medical opinion offered, the
court in Evangelista noted that the inference was “inescapable”
that the physician was retained by the claimant’s counsel to
evaluate his case. Evangelista, 826 F.2d at 139. Here, O’Dell
was evaluated by D r . Graf only at the express request of his
attorney. (Tr. at 8.) In this case, too, the inference is
“inescapable” that his opinions were obtained specifically for
the purpose of bolstering O’Dell’s case, and the Appeals Council
was correct to give them less weight.
-19- Opinions rendered by specialists related to that doctor’s
area of speciality are generally given more weight. 20 C.F.R. §
404.1527. Here, D r . Graf and D r . Miller, both orthopedists, were
working within their specialty when they rendered opinions
regarding O’Dell. (Tr. at 256.) While this factor does support
giving more weight to D r . Graf and D r . Miller, it is not
determinative in light of the other aspects of the examining
relationship discussed above, all of which made the medical
opinions less probative.
Considering the first factor overall, the Appeals Council
was entitled to give those opinions significantly less weight in
determining whether O’Dell was disabled because the medical
opinions at issue were offered by non-treating doctors after
minimal examination of O’Dell. This is particularly true of D r .
Graf, whose retrospective advocacy opinions could reasonably have
been given even less weight.
b. Existence of objective medical signs and laboratory findings
A lack of objective medical support for an injury may be
considered as evidence that a claimant is not disabled. 20
C.F.R. 404.1527(d)(3); Gordils v . Sec’y of Health and Human
Servs., 921 F.2d 3 2 7 , 329 (1st Cir. 1990) (per curiam) (holding
that where the only examining doctor found “no objective evidence
-20- of a disabling back impairment,” the Secretary was justified in
treating that opinion as evidence of an RFC for sedentary work);
Dupuis v . Sec’y of Health and Human Servs., 869 F.2d 6 2 2 , 623
(1st Cir. 1989) (per curiam) (upholding Appeals Council’s denial
of disability where there was “no medical evidence in the record
contemporaneous with [the time period at issue] to support [the
claimant]”).
In this case, as in Dupuis and Gordils, there was
insufficient contemporaneous, objective evidence in the medical
opinions to support O’Dell’s claims that he was unable to work
during the relevant period. The only contemporaneous report was
from D r . Miller, who explicitly stated he “[did not] find any
hard objective evidence of nerve root impingement to suggest that
there’s a problem.” (Tr. at 153.) D r . Miller was also unable to
substantiate his diagnosis with a CT scan, M R I , or myelogram
because O’Dell was either unwilling or unable to undergo the
procedures. (Tr. at 153.) The Appeals Council could reasonably
have treated this as positive evidence that O’Dell was not
disabled prior to his DLI.
Finally, the Appeals Council was also entitled to give less
weight to the medical opinion of D r . Graf because his opinion was
based in part on false information, specifically statements by
O’Dell that he suffered from post-traumatic stress disorder and
-21- multi-organ failure as a result of exposure to Agent Orange while
serving in Vietnam. (Tr. at 255, 261.) This false information
affected D r . Graf’s eventual diagnosis and bears on plaintiff’s
general credibility in reporting his symptoms to his doctors.
The general lack of objective medical information to substantiate
the opinions of D r . Graf and D r . Miller justified the Appeals
Council in giving less weight to those medical opinions.
c. Consistency of the opinions with the record as a whole
Substantial evidence existed in this case that contradicted
parts of the medical opinions at issue. In particular, gaps in
treatment can be taken as evidence that a claimant was not
disabled during the relevant time period. See Irlanda Ortiz v .
Sec’y of Health and Human Servs., 955 F.2d 765, 769 (1st Cir.
1991) (per curiam) (holding that gaps in claimant’s medical
record may be considered as evidence that an injury is not as
severe as alleged). In this case, the fact that O’Dell
apparently did not seek any treatment for his back between June
of 1993 and October of 1999, a time period during which he later
alleged he was completely incapacitated by pain, could have been
considered by the Appeals Council as evidence O’Dell was not
disabled.
-22- O’Dell’s testimony that he settled his Worker’s Compensation
claim in 1991 to “pursue another business opportunity” also
suggests that he did not consider himself to be in such pain that
he could not work. (Tr. at 1 5 7 ) ; See Dupuis v . Sec’y of Health
and Human Servs., 869 F.2d 6 2 2 , 624 (1st Cir. 1989) (per curiam)
(upholding denial of disability in part because claimant was able
to work during the period at issue). It defies common sense that
someone who, by his own allegation, was incapable of working in
December 1991 would be actively pursuing a separate employment
opportunity at the same time. The Appeals Council could have
considered this as evidence that O’Dell was not disabled during
the relevant period.
Additionally, some of the medical evidence presented weighed
against disability. The contemporaneous medical examination of
Dr. Miller indicated that O’Dell was suffering from a “lower back
strain” and that he could perform some sedentary work, though for
only a few hours at a time. (Tr. at 154.) D r . Miller also
stated that a “work hardening program” could eventually allow
O’Dell to do light work at a sitting position. (Tr. at 154.)
This part of D r . Miller’s medical opinion could have been taken
by the Appeals Council to be inconsistent with the opinion that
O’Dell was disabled for the necessary twelve-month period during
the relevant time period.
-23- Finally, to the extent that O’Dell ever received treatment,
the evidence indicated that he only took medication for mild to
moderate pain and was able to perform relatively vigorous daily
activities such as swimming and mowing the lawn. (Tr. at 193,
201.) This further supports the decision of the Appeals Council.
See Albors v . Sec'y of Health and Human Servs., 817 F.2d 146, 147
(1st Cir. 1986) (per curiam) (noting that “[the medical
evidence], together with the fact that claimant apparently takes
nothing stronger than aspirin, supports the ALJ's rejection of
claimant's assertions of disabling pain”); Avery v . Sec’y of
Health and Human Servs., 797 F.2d 1 9 , 29 (1st Cir. 1986) (“[i]n
developing evidence of pain or other symptoms,” the ALJ must
investigate, among other things, “[t]he claimant’s daily
activities”).
Looking at all of the above factors, neither the ALJ nor the
Appeals Council erred in choosing not to credit either D r . Graf’s
retroactive opinion or the portion of D r . Miller’s opinion that
O’Dell could only work three or four hours per day. The opinions
were unsupported by clinical and laboratory diagnostics and
inconsistent with other evidence. The retroactive opinion of D r .
Graf was also based on limited visits with O’Dell that took place
more than a decade after the relevant insured time period. The
Commissioner fully considered these opinions, and after viewing
-24- all of the evidence presented made a permissible, commonsense
determination that O’Dell was capable of sedentary work.
Particularly when combined with the positive evidence that O’Dell
was not disabled, such as the lack of treatment, this RFC
determination was supported by substantial evidence.
B. The Appeals Council Properly Considered O’Dell’s
Other Health Complications in Determining His RFC
The Commissioner is required to consider all impairments
when making an RFC evaluation, regardless of whether or not those
impairments are determined to be severe. See 20 C.F.R.
§ 404.1545(e). In O’Dell’s case, the Appeals Council determined
that O’Dell’s obesity was severe but did not give such a
designation to his mental impairment. Nevertheless, the Appeals
Council properly considered O’Dell’s obesity and mental
impairment in making its RFC determination.
1. Obesity
O’Dell alleges that the ALJ erred in failing to consider his
obesity in combination with his back impairment. At O’Dell’s
initial hearing, the ALJ found that his obesity was a severe
impairment under step 2 of the five-part test. (Tr. at 21.) The
ALJ concluded, however, that even in combination with O’Dell’s
lower back strain, the two impairments did not disable him from
all employment. (Tr. at 21.) Information in the case record
-25- substantiates this finding.
Records of O’Dell’s obesity date back to at least 1986.
(Tr. at 132.) O’Dell was able to work even with his obesity
until his injury in 1990, and neither complained that his obesity
limited his functional capacity, nor speculated that his back
disorder was exacerbated by his obesity during the relevant
period. In his disability application filed in 2002, O’Dell
asserted that he could not stand for long periods, breathe well,
lift, or sit long in one place. (Tr. at 52.) However, O’Dell
never suggested that these conditions stemmed from his obesity
and did not specify how these limitations affected his ability to
work. See 20 C.F.R. § 404.1512(c) (“[claimant] must provide
evidence . . . showing how your impairment(s) affects your
functioning during the time you say that you were disabled, and
any other information we need to decide your claim”); see also
Skarbek v . Barnhart, 390 F.3d 5 0 0 , 504 (7th Cir. 2004) (per
curiam) (holding that where the claimant failed to specify how
his obesity affected his ability to work, the ALJ could have
concluded that it was not disabling). It was up to O’Dell to
specifically allege how his obesity affected his ability to work
during the period in question, and he failed to meet that burden.
Additionally, it is worth noting again that during the
period in question, O’Dell settled his Worker’s Compensation
-26- claim because he wanted to “pursue another business opportunity.”
(Tr. at 157.) This piece of evidence suggests that O’Dell
himself knew that he was capable of employment during the very
period that he was allegedly disabled.
Despite O’Dell’s failure to present evidence showing that
his obesity was disabling, the ALJ and Appeals Council still
considered O’Dell’s obesity and simply concluded that it was
generally insufficient, either by itself or in combination with
other impairments, to constitute a disability. (Tr. at 21.)
This factual finding is entitled to deference, and given the lack
of evidence of its effect on disability put forward by O’Dell,
that decision was supported by substantial evidence. Indeed,
even if the ALJ had failed to consider O’Dell’s obesity at all,
this case would still not warrant a remand. See Rutherford v .
Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005) (ALJ’s failure to
mention obesity did not require remand where claimant did not
specify how her obesity should affect her case).
Because O’Dell failed to prove that his obesity affected his
ability to work, and because O’Dell’s obesity was adequately
addressed in the ALJ’s consideration of the medical source
opinions, the ALJ did not err in failing to specifically assess
the effects of O’Dell’s obesity.
-27- 2. Mental Impairments
Finally, O’Dell alleges that the Appeals Council erred in
failing to make findings using the special technique for mental
impairments outlined in 20 C.F.R. § 404.1520a. O’Dell did not
meet his burden of establishing that mental issues prevented him
from working. In fact, he never even alleged this. Thus, the ALJ
was not required to use the SSA’s special technique.
Failure to seek medical treatment can be construed as
evidence that an impairment is not as severe as the claimant
suggests. See Ortiz, 955 F.2d at 769 (holding that gaps in the
medical record are “evidence” for the court). O’Dell never sought
medical treatment during the period in question for his mental
impairment.9 Furthermore, O’Dell never alleged, either in his
DIB application or in his testimony in front of the ALJ, that his
mental impairments prevented him from working. (Tr. at 25-40,
52). Where a claimant fails to specifically allege how mental
impairments contributed to disability, the ALJ is not required to
consider those mental impairments. 20 C.F.R. § 404.1512; see
also Gray v . Heckler, 760 F.2d 369, 374-75 (1st Cir. 1985)
9 In fact, O’Dell’s long medical history of mental health problems never before precluded him from working. Counseling services and hospitalization due to mental instability were sought on an inconsistent basis and it appears from the evidence on the record that O’Dell was able to hold a number of jobs prior to his injury despite his impairment.
-28- (holding that where claimant failed to present evidence that
mental impairment affected her level of disability, ALJ was not
required to address that impairment); Alvarado v . Weinberger, 511
F.2d 1046, 1049 (1st Cir. 1975) (“[t]he mere existence of a
psychoneurosis or an anxiety reaction does not constitute a
disability”); Barrett v . Barnhart, 2003 WL 1701288, at *5 (D.
N.H. Mar. 2 8 , 2003) (“[t]he claimant is responsible for providing
specific medical evidence of his alleged mental impairment and
its effect upon his functional capacity for work”).
All of these facts demonstrate that O’Dell did not meet his
burden of establishing that his mental impairment affected his
ability to work; therefore, the ALJ was not required to evaluate
O’Dell’s impairment using the special technique set forth in 20
C.F.R. § 404.1520a.
V. CONCLUSION
The ALJ did not err at any step in the five-step process,
nor did the Appeals Council in adopting and supplementing the
ALJ’s conclusions. Because I do not find that any error
occurred, there is no reason to address the parties’ final
argument of whether reversal versus remand would have been
appropriate had error been found. For the foregoing reasons, I
grant the Commissioner’s motion to affirm (Doc. N o . 20) and deny
-29- O’Dell’s motion to reverse (Doc. N o . 1 8 ) . The clerk is directed
to enter judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
September 8 , 2010
cc: Francis M . Jackson, Esq. Karen B . Fitzmaurice, Esq. Robert J. Rabuck, Esq.
-30-