Shaw v. SHHS

Opinion

USCA1 Opinion

          June 9, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 93-2173

BARBARA SHAW,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. Frank H. Freedman, Senior U.S. District Judge]
                                          __________________________

                                 ___________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ___________________

               David Waldfogel,  J. Patterson Rae, and  Western Mass. Legal
               _______________   ________________       ___________________
          Services, Inc., on brief for appellant.
          ______________
               Donald K.  Stern, United States Attorney,  Karen L. Goodwin,
               ________________                           ________________
          Assistant United States Attorney,  and John Germanotta, Assistant
                                                 _______________
          Regional Counsel, Department of Health & Human Services, on brief
          for appellee.

                                  __________________

                                  __________________

Per Curiam.   Plaintiff  appeals the denial  of her
                      __________

            second  application for SSDI and SSI benefits for a period of

            alleged disability beginning November  15, 1988, due to back,

            neck  and  shoulder  problems.   The  procedural  history  of

            plaintiff's claim, and the medical evidence in the record are

            thoroughly  detailed in  the  district court's  opinion.   We

            reiterate here  only to  the extent  necessary to orient  our

            discussion.  

                      Plaintiff had a history  of back, neck and shoulder

            complaints dating back  to October,  1979.  She  worked as  a

            self-employed  housekeeper  for  approximately   seven  years

            immediately prior to her  initial application for  disability

            benefits at  age 47.  The alleged onset of her disability was

            not  triggered by  any  sudden event,  but  its date  roughly

            coincides with  the date upon  which her  physician, who  had

            diagnosed  cervical arthritis, referred  her to an orthopedic

            surgeon, Dr. Kanner. (T.187). 

                      Dr.  Kanner diagnosed  plaintiff as  suffering from

            advanced  degenerative  disc  disease of  the  cervical spine

            affecting   four   discs,   with   kyphotic   deformity,  and

            significant osteophytic formation  at two of the  discs.1  In

____________________

            1.  Kyphosis is defined as "abnormally increased convexity in
            the  curvature of the thoracic spine as viewed from the side;
            hunchback."   Dorland's  Illustrated Medical  Dictionary  705
                          __________________________________________
            (26th  ed.  1985).     Osteophyte  is  defined  as   "a  bony
            excrescence or osseous outgrowth."  Id. at 943.
                                                ___

2

plaintiff's first two office visits, Dr. Kanner also observed

            decreased sensitivity in plaintiff's hands and paresthesia in

            all fingers.2 (T.199, 200).   Plaintiff's range of motion was

            initially  restricted in  all planes by  50 percent,  she was

            unable to do  any lifting or bending,  and unable to  use her

            hands  at  great length.  (T.195-96,  199-200).   Dr.  Kanner

            recommended cervical traction  and exercise therapy.  (T.199-

            200).  Later he  also recommended a soft cervical  collar and

            lower back support. (T.226-27).  

                      Within  a few  months  of starting  treatment,  Dr.

            Kanner noted  that plaintiff's  neck  condition was  "greatly

            improved."  (T.199).  By February, 1990, he recorded that her

            upper  extremity  symptoms had  "completely  resolved," there

            were  no radicular  symptoms in  her lower  back, only  "mild

            restricted motion, but  otherwise no neurological deficit  or

            spasm." (T.226).  Her disc spaces were well maintained.  

                      Nevertheless, Dr. Kanner simultaneously reported on

            a   Welfare  Department  form  that  plaintiff  was  "totally

            disabled," and predicted that  her disability would last from

            10  to 12 months.  (T.224).  On  three earlier  forms, he had

            predicted shorter  durations of  3 months,  4-6 months  and 2

            months respectively.  (T.190, 193, 196).   During the shorter

            time periods,  he said  that plaintiff would  have difficulty

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            2.  Paresthesia is defined as an "abnormal sensation, such as
            burning,  prickling, formication,  etc."   The Sloane-Dorland
                                                       __________________
            Annotated Medical-Legal Dictionary 533 (1987).
            __________________________________

                                          3

with prolonged standing,  walking, sitting, bending or  heavy

            lifting.  (T.190, 193, 196).  On the last form (10-12 months)

            no functional limits were noted.3  

                      In  December,  1989,   a  consultative   orthopedic

            surgeon, Dr.  Silver, concurred in Dr.  Kanner's diagnoses of

            significant degenerative disc disease,  osteophyte formation,

            and   "moderate  kyphosis   which   can   only  be   measured

            radiologically."   (T.202).    He   observed,  however,  that

            plaintiff  walked  with  a  normal  gait,  maintained  normal

            posture,  and  got on  and  off the  examining  table without

            hesitation. (T.201).  The range of motion for her lumbosacral

            spine was sufficient to enable her to reach within an inch of

            the floor with her knees straight.  As to the cervical spine,

            she was  able to touch her chin to her chest and rotate forty

            five degrees to the right and left.  There was "no tenderness

            throughout the  spinous process  of the cervical  spine," and

            "no pain on palpation to the shoulder  musculature," no spasm

            or  neurological deficit,  and no  indication of  weakness of

            grasp.  (T.202-03).    Dr.  Silver  opined  that  plaintiff's

            kyphosis was the main cause of her difficulties. (T.203).

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            3.  In answer to a written question from appellant's attorney
            in  May,  1990,  Dr.  Kanner  checked  "no"  when  asked "has
            [appellant] achieved  pain relief to  such a degree  that you
            would no longer  judge her to have  difficulty with prolonged
            [activities]  as  you had  in your  [earlier] reports  to the
            Welfare Department?" (T.205)  He did not further  explain his
            answer,  however, despite  a request  for an  explanation (T.
            205).

                                          4

There  were also three residual functional capacity

            assessments  ("RFCs")  by  State  agency  doctors   based  on

            plaintiff's medical records.   All three found that plaintiff

            had  a residual  functional  capacity to  frequently lift  or

            carry  up to 25 pounds, and to sit,  stand and walk for up to

            six hours  a day with  normal breaks. (T.79-80,  139-46, 165-

            72).   The facts  detailed by two  of the  agency doctors  in

            support  of  their  assessments  include  the  medical  signs

            recited   by  the  two   examining  orthopedists   that  seem

            inconsistent with  a high  degree of pain,  i.e., plaintiff's

            normal  gait,  the  absence  of muscle  spasm,  radicular  or

            neurological  deficits, and  a  mild limitation  on range  of

            motion. 

                       After a  hearing at  which plaintiff  testified at

            length about her pain, the ALJ found plaintiff "not disabled"

            at  step four of the  regulatory sequential analysis, in that

            she was able to return  to her past relevant work as  a house

            cleaner.  See 20 C.F.R.   404.1520.  
                      ___

                      There   seems   little  question   that   there  is

            substantial  evidence  in the  record  to  support the  ALJ's

            decision.  Plaintiff's claim  to  a  disability of  statutory

            severity  was  based  on  impairments which,  by  definition,

            include a  degree of pain.   The question  before the  ALJ at

            step  four  was  whether  plaintiff's pain  was  so  intense,

            persistent or  functionally limiting  as to prevent  her from

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returning  to  her   past  relevant  work.     20  C.F.R.    

            404.1529(b).   Both  examining orthopedists  reported medical

            signs  and symptoms  inconsistent  with the  unremitting pain

            which plaintiff alleged.  In conformance with the regulations

            and caselaw,  the ALJ considered detailed  testimony from the

            plaintiff and her son about her symptoms, her  intolerance of

            pain medication, her home  traction and exercise regimen, her

            other daily  activities,  and the  extent to  which her  pain

            allegedly  impeded her  functioning.   Avery v.  Secretary of
                                                   _____     ____________

            HHS,   797  F.2d  19,  23  (1st  Cir.  1986);  20  C.F.R.    
            ___

            404.1529(c),  416.929(c) (1991).  Although the ALJ's findings

            are more abbreviated than  we might prefer, it is  clear that

            he found plaintiff's testimony about the limiting severity of

            her pain  not credible,  inconsistent with the  medical signs

            reported, and inconsistent with the daily activities and work

            history which  she described.   In these  circumstances, "the

            credibility  determination  by  the  ALJ,  who  observed  the

            claimant, evaluated [her]  demeanor, and considered  how that

            testimony fit in with  the rest of the evidence,  is entitled

            to  deference . .  . "   Frustaglia v. Secretary  of HHS, 829
                                     __________    _________________

            F.2d 192, 195 (1st Cir. 1987).  

                      Plaintiff  bore  the  burden  of proving  that  her

            impairments prevented her from  performing her former type of

            work.   Gray v. Heckler, 760  F.2d 369, 371  (1st Cir. 1985);
                    ____    _______

            see also Dudley  v. Secretary of HHS, 816 F.2d  792, 795 (1st
            ________ ______     ________________

6

Cir.   1987)   (plaintiff's  burden   includes   proving  the

            particular demands of her past work that she cannot perform).

            She  described her  work  as requiring  frequent bending  and

            reaching,  and the  lifting of 10  to 20  pounds,4 capacities

            which the  nontreating doctors  concluded that she  retained.

            Although plaintiff produced three  reports from Dr. Kanner to

            the Welfare Department stating that her functional capacities

            were  then more limited,  each report predicted  a very short

            disability period, together totalling less than the statutory

            minimum  for  disability.   See 42  U.S.C.    423(d)(1)(A) (a
                                        ___

            qualifying impairment is one which "can be expected to result

            in death or which has lasted or can be expected to last for a

            continuous period of not less than 12 months").  Dr. Kanner's

            fourth report  carried the  prediction of  "total disability"

            into the statutory period, but did not specify any functional

            limitation.   Viewed as a mixed  legal-medical conclusion, it

            was  not  binding on  the ALJ.    20 C.F.R.    404.1527(d)(2)

            (1991). 

                      Plaintiff  argues, however,  that the  ALJ  and the

            district  court erred  in applying  the recently  promulgated

            regulation relating to the weight  to be assigned to treating

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            4.  Plaintiff    gave    several    somewhat    contradictory
            descriptions of the demands of her past work (T.84, 98, 131).
            The ALJ was entitled to rely on the description he found most
            credible.  See  Santiago v. Secretary  of HHS, 944 F.2d  1, 5
                       ___  ________    _________________
            (1st  Cir. 1991) (ALJ is  entitled to rely  on claimant's own
            description).    

                                          7

doctor reports, 20 C.F.R.  S 404.1527 (1991).5   She contends

            that  the  regulation  required   that  the  ALJ  assign  (1)

            "controlling weight"  to Dr. Kanner's  evaluation, and/or (2)

            "substantially greater  weight" to his opinion  than to those

            of the  non-treating physicians.   A  part of  the regulation

            provides: 

                 Generally we give more weight to opinions from your
                 treating sources ....   If we find  that a treating
                 source's opinion on the  issue(s) of the nature and
                 severity of your impairments  is well supported  by
                 medically   acceptable   clinical  and   laboratory
                 diagnostic techniques and is not  inconsistent with
                 other substantial evidence in your case record,  we
                 will give  it controlling weight.   When we  do not
                 give ... controlling  weight, we will  apply [other
                 factors] in  determining [its] weight ...   We will
                 always give  good reasons  in our ...  decision for
                 the weight we give your treating source's opinion.

            20 C.F.R.   404.1527(d)(2).   While the  district court seems

            to  have overlooked this regulation, we do not think a remand

            is required.  

                      Controlling weight  may be  accorded to  a treating

            doctor's  opinion  as to  the  "nature" and  "severity"  of a

            claimant's impairments where, among other qualifications, the

            opinion  is "not inconsistent"  with substantial  evidence in

            the case.  By this measure, Dr. Kanner's diagnosis, confirmed

            by the consulting orthopedist and accepted by  the three non-

            examining doctors,  qualified for "controlling weight."    We

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            5.  The Secretary  has not  objected to the  applicability of
            this regulation,  which became final shortly  after the ALJ's
            decision was issued.

                                          8

find  no fault with the decisions  below on this score.  Both

            the  ALJ and  the  district court  accepted  as a  given  Dr.

            Kanner's diagnosis of plaintiff's condition.

                      On the  other hand, Dr. Kanner's opinion  as to the

            "severity"   of   claimant's   impairments   is   not  easily

            characterized,  making inexact  any  attempt  at bottom  line

            contrasts with the other doctors' opinions.  While Dr. Kanner

            three times reported to the Welfare Department that appellant

            was  unable  to  engage  in  prolonged  bending,  sitting  or

            standing,  on each  occasion he  indicated that  the expected

            duration  of  appellant's disability  would  be quite  short,

            suggesting  only an  episodic  impairment.   During the  same

            period, moreover,  his office  notes indicate  that appellant

            was  showing marked  improvement, some  of her  symptoms were

            "completely  resolved,"  and  she  had  achieved  significant

            relief  through  a  regimen  of home  traction  and  exercise

            therapy.    His  fourth  report,  extending  the   conclusion

            "totally  disabled"  for  another 10  to  12  months,  is not

            explained.

                      Appellant's line of argument presumably  would have

            us disregard the time  limits and internal inconsistencies in

            Dr.  Kanner's  reports  and  interpret   his  statement  that

            appellant was "totally disabled" as a shorthand expression of

            his medical opinion that appellant's impairments were of such

9

"severity"   as  to  cause  lasting  functional  incapacity.6

            Appellant points  to  the doctor's  recommended treatment  as

            further   proof  that   his   actual  opinion   supports  her

            interpretation.  Even so, however, Dr. Kanner's opinion would

            not  automatically qualify  for "controlling  weight" because

            the consulting physician and  the three non-examining doctors

            reached a divergent result.  When a treating doctor's opinion

            is  inconsistent  with  other  substantial  evidence  in  the

            record, the  requirement  of "controlling  weight"  does  not

            apply.  All things being equal,  however, a treating doctor's

            report  may   be  entitled   to  "greater"  weight   than  an

            inconsistent non-treating source.7

                      We do not agree, however, that the ALJ was required

            to construe Dr. Kanner's time limited welfare form statements

            in  the   manner  most   advantageous  to  appellant.     The

            regulations do not require a particular view of the evidence,

            but leave  ambiguities and  inconsistencies to be  sifted and

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            6.  The decision whether a  claimant is "disabled" within the
            meaning of the statute and regulations is reserved solely for
            the  Secretary.  20 C.F.R.   404.1526(e).  To the extent that
            Dr.  Kanner's opinion is urged as reflecting an answer to the
            statutory question, it was not binding on the ALJ.  20 C.F.R.
              404.1526(e)(1); see supra text at 7.      
                              ___ _____

            7.  The Secretary's comments accompanying promulgation of the
            final regulation observe that  if a treating and non-treating
            source  conflict,  and the  two  opinions  are equally  well-
            supported, the  Secretary will  give "greater weight"  to the
            treating source  opinion, at least where  the treating doctor
            is  shown to have superior familiarity with the patient and a
            variety  of  other qualifications  are  met.    20 Fed.  Reg.
            36,951.  

                                          10

weighed  by the  ALJ, who  may, as  here, use  a consultative

            examination  to  help resolve  uncertainties.    20 C.F.R.   

            404.1527(c)(3)(4).    The  ALJ  must  evaluate  all   medical

            opinions from all sources in light of a non-exclusive list of

            possibly  relevant   factors.    20  C.F.R.      404.1527(f),

            416.927(f).  While generic deference is reserved for treating

            source  opinions,  the   regulations  also  presuppose   that

            nontreating,  nonexamining  sources  may   override  treating

            doctor opinions,  provided there is support for the result in

            the record.  See  Standards for Consultative Examinations and
                         ___

            Existing Medical  Evidence; Final Rule, 56  Fed. Reg. 36,931,

            36,936 (1991); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.
                           ________    ________

            1993)  (observing that  the  new regulation  differs in  this

            regard from  the Second Circuit's former  rule, and affirming

            the Secretary's authority to promulgate the new regulation). 

                       Appellant  would have us  reweigh the  evidence in

            light  of   the  multitude  of  factors   identified  in  the

            regulations.  Our standard  of review on appeal, however,  is

            whether   the   Secretary's   findings   are   supported   by

            "substantial evidence."  Although the record may support more

            than  one conclusion,  we  must uphold  the  Secretary "if  a

            reasonable mind, reviewing  the evidence in  the record as  a

            whole,   could  accept   it  as   adequate  to   support  his

            conclusion."   Ortiz v. Secretary  of HHS, 955  F.2d 765, 769
                           _____    _________________

            (1st  Cir. 1991) (quoting Rodriguez  v. Secretary of HHS, 647
                                      _________     ________________

11

F.2d  218,  222  (1st Cir.  1981));  see  also Richardson  v.
                                                 _________ __________

            Perales,  402 U.S. 389, 401 (1971).  Resolutions of conflicts
            _______

            in the evidence and credibility issues are for the Secretary,

            not  the  courts.   Ortiz, 955  F.2d  at 769;  Evangelista v.
                                _____                      ___________

            Secretary of HHS, 826 F.2d 136,  141 (1st Cir. 1987).   Where
            ________________

            the  facts  permit diverse  inferences,  we  will affirm  the

            Secretary  even if we might  have reached a different result.

            Rodriguez Pagan v. Secretary  of HHS, 819 F.2d 1, 3 (1st Cir.
            _______________    _________________

            1987),  cert.  denied,  484  U.S.  1012  (1988);  Lizotte  v.
                    _____________                             _______

            Secretary of HHS, 654 F.2d 127, 128 (1st Cir. 1981).   
            ________________

                      As we  have  said, on  the  one hand  Dr.  Kanner's

            reports might be  fairly viewed as consistent  with the other

            medical  evidence  in  reflecting  only  episodic  functional

            limitations.   On  the other  hand, they  might be  viewed as

            internally inconsistent or inconsistent  with the record as a

            whole, factors which weigh  against excessive reliance on the

            treating    doctor's     opinion.         20     C.F.R.      

            404.1527(d)(ii)(3)(4).    The ALJ  was  required to  consider

            these  ambiguities in  light of  the other  medical evidence,

            plaintiff's testimony about her  pain, and his own assessment

            of plaintiff's  credibility.  20 C.F.R.    404.1529(c)(1) (in

            evaluating  intensity  and   persistence  of  pain,   medical

            opinions are to be considered in light of factors stated in  

            404.1527).  We hold only that the ALJ's reconciliation of the

            evidence as  revealing an impairment "severe"  enough to pass

12

muster at  step two of the  process, but not so  severe as to

            prevent  plaintiff  from  returning  to  her  past  work,  is

            supported by substantial evidence in the record. 

                      We  also  find   appellant's  remaining   arguments

            wanting.  We agree with the district court that while the ALJ

            did not expressly cite the agency doctors' 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.

We also  reject appellant's  argument that  the ALJ

            erred by failing to obtain  more information from Dr. Kanner.

            Where the evidence is  inconsistent or insufficient to enable

            the ALJ  make  a  decision, the  ALJ  may  recontact  medical

            sources,  request that  the  claimant undergo  a consultative

            examination or produce additional  information.  20 C.F.R.   

            1519p,  1527(c)(3).    There was  a  consultative examination

            here,  and the ALJ  apparently did not see  the need for more

            evidence from Dr. Kanner.  Appellant, too, had an obligation.

            She was required to produce all information supportive of her

            claim.  20 C.F.R.   404.1512(a).  She was well represented by

            a paralegal  under the  supervision of an  attorney, afforded

            ample  opportunity to present her  case, and did not indicate

13

any  desire  to offer  further evidence.  (T.72).   After the

            ALJ's  decision, she  was afforded  a further  opportunity to

            present  additional or  clarifying  evidence to  the  appeals

            council,  but  chose  not  to.  (T.73,  232).    Under  these

            circumstances, we  see no prejudice  in the ALJ's  failure to

            recontact the doctors.

                      Accordingly, the judgment below is affirmed.
                                                         ________

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