Smith v. SSA CV-02-081-M 03/12/03 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Frederick Smith, Jr., Claimant
v. Civil No. 02-081-M Opinion No. 2003 DNH 037 Jo Anne B. Barnhart, Commissioner, Social Security Administration, Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Frederick Smith,
Jr., moves to reverse the Commissioner's decision denying his
applications for Social Security Disability Insurance Benefits
and Supplemental Security Income Payments under Titles II and
XVI, respectively, of the Social Security Act, 42 U.S.C. §§ 423,
1382 (the "Act"). Respondent objects and moves for an order
affirming her decision.
For the reasons set forth below, the matter is remanded to
the Administrative Law Judge ("ALJ") for further proceedings
consistent with this opinion. Factual Background
I. Procedural History.
In June of 2000, claimant filed applications for disability
insurance benefits and supplemental security income payments
under Titles II and XVI of the Act, alleging that he had been
unable to work since May 11, 2000. The Social Security
Administration denied his application. Claimant then reguested a
hearing before an ALJ.
On October 30, 2001, claimant, his non-attorney
representative, and a vocational expert appeared before an ALJ
who considered his claims de novo. The ALJ issued his order on
December 17, 2001, concluding that, although claimant was
incapable of returning to his prior work (at the "medium"
exertional level), he had the residual functional capacity to
perform the full range of sedentary work. Accordingly, the ALJ
determined that claimant was not disabled within the meaning of
the A c t .
In response, claimant filed this timely appeal, asserting
that the ALJ's decision was not supported by substantial evidence
2 and seeking a judicial determination that he is disabled within
the meaning of the Act.1 Claimant then filed a "Motion for Order
Reversing the Decision of the Commissioner" (document no. 5).
The Commissioner objected and filed a "Motion for Order Affirming
the Decision of the Commissioner" (document no. 6). Those
motions are pending.
II. Stipulated Facts.
Pursuant to Local Rule 9.1(d), the parties have submitted a
comprehensive statement of stipulated facts which, because it is
part of the court's record (document no. 7), need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
1 Ordinarily, claimant's failure to seek review by the Appeals Council before initiating this proceeding would constitute a failure to exhaust available administrative remedies and the court would lack subject matter jurisdiction over his claims. See, e.g., Sims v. Apfel, 530 U.S. 103, 107 (2000); 20 C.F.R. §§ 404.900 and 416.1400. However, claimant was selected for a pilot program under which the Social Security Administration is, in "randomly selected cases," testing the "elimination of the reguest for review by the Appeals Council." 20 C.F.R. §§ 404.966 and 416.1466. For claimants participating in the program, an ALJ's adverse disability determination under either Title II or Title XVI of the Act can be appealed directly to federal district court, bypassing the need to seek intermediate review by the Appeals Council. 20 C.F.R. §§ 404.966 and 416.1466.
3 Standard of Review
I. Properly Supported Factual Findings by the ALJ _____ are Entitled to Deference.
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing." Factual findings of the Commissioner are
conclusive if supported by substantial evidence. See 42 U.S.C.
§§ 405(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991).2 Moreover,
provided the ALJ's findings are supported by substantial
evidence, the court must sustain those findings even when there
may also be substantial evidence supporting the adverse position.
See Tsarelka v. Secretary of Health & Human Services, 842 F.2d
529, 535 (1st Cir. 1988) ("[W]e must uphold the [Commissioner's]
conclusion, even if the record arguably could justify a different
2 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n., 383 U.S. 607, 620 (1966).
4 conclusion, so long as it is supported by substantial
evidence."). See also Gwathnev v. Chater, 104 F.3d 1043, 1045
(8th Cir. 1997) (The court "must consider both evidence that
supports and evidence that detracts from the [Commissioner's]
decision, but [the court] may not reverse merely because
substantial evidence exists for the opposite decision.");
Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (The
court "must uphold the ALJ's decision where the evidence is
susceptible to more than one rational interpretation.").
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v. Secretary
of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)
(citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It
is "the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner] not the courts." Irlanda Ortiz, 955 F.2d at 769.
Accordingly, the court will give deference to the ALJ's
credibility determinations, particularly when they are supported
by specific findings. See Frustaalia v. Secretary of Health &
5 Human Services, 829 F.2d 192, 195 (1st Cir. 1987) (citing Da Rosa
v. Secretary of Health & Human Services, 803 F.2d 24, 26 (1st
Cir. 1986) ) .
II. The Parties' Respective Burdens.
An individual seeking Social Security disability benefits is
disabled under the Act if he or she is unable "to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C.
§ 416(1)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act
places a heavy initial burden on the claimant to establish the
existence of a disabling impairment. See Bowen v. Yuckert, 482
U.S. 137, 146-47 (1987); Santiago v. Secretary of Health & Human
Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that burden,
the claimant must prove that his impairment prevents him from
performing his former type of work. See Gray v. Heckler, 760
F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v. Secretary of
Health & Human Services, 690 F.2d 5, 7 (1st Cir. 1982)).
Nevertheless, the claimant is not reguired to establish a doubt-
6 free claim. The initial burden is satisfied by the usual civil
standard: a "preponderance of the evidence." See Paone v.
Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant's subjective assertions of pain
and disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant's educational background,
age, and work experience. See, e.g., Avery v. Secretary of
Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote, 690 F.2d at 6. Provided the claimant has shown an
inability to perform his previous work, the burden shifts to the
Commissioner to show that there are other jobs in the national
economy that he can perform. See Vazquez v. Secretary of Health
& Human Services, 683 F.2d 1, 2 (1st Cir. 1982). If the
Commissioner shows the existence of other jobs that the claimant
can perform, then the overall burden to demonstrate disability
remains with the claimant. See Hernandez v. Weinberger, 493 F.2d
1120, 1123 (1st Cir. 1974); Benko v. Schweiker, 551 F. Supp. 698,
701 (D.N.H. 1982).
7 When determining whether a claimant is disabled, the ALJ is
required to make the following five inquiries:
(1) whether the claimant is engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents the claimant from performing past relevant work; and
(5) whether the impairment prevents the claimant from doing any other work.
20 C.F.R. § 404.1520. See also 20 C.F.R. § 416.920. Ultimately,
a claimant is disabled only if his:
physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).
8 With those principles in mind, the court reviews claimant's
motion to reverse and the Commissioner's motion to affirm the
determination that claimant is not disabled.
Discussion
I. Background - The ALJ's Findings.
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory five-
step seguential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920. Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since May 11, 2000 (his alleged onset of disability). Next, as
to claimant's alleged heart disorder, depression, and mild
hearing loss, the ALJ concluded that the medical evidence of
record indicates that none amounts to a severe impairment.
Transcript at 10. The ALJ did, however, conclude that claimant
has "the medically determinable severe impairment of degenerative
joint disease in his knees." Id.
Next, the ALJ assessed claimant's residual functional
capacity ("RFC") and concluded that claimant's testimony concerning the level and persistence of his pain was inconsistent
with the objective medical evidence and, therefore, not entirely
credible. Transcript at 11-12. Ultimately, the ALJ concluded
that claimant retains the RFC to "lift 10 pounds occasionally and
5 pounds frequently, to stand and walk for at least 2 hours out
of an 8 hour workday, and to sit for 6 hours out of an 8 hour
workday, with normal breaks," transcript at 12 - a finding
consistent with "Functional Capacity Assessment" prepared by non
examining physician Dr. Nault (transcript at 170-79).3
In light of his assessment of claimant's RFC, the ALJ
determinated that claimant was capable of performing the full
range of "sedentary" work. Transcript at 12. And, while
claimant's impairment prevents him from returning to his past
relevant work, the ALJ concluded that he could make an adjustment
to unskilled sedentary work that exists in significant numbers in
the national economy. Id. at 14. In light of those conclusions.
3 Another non-examining physician. Dr. Schneider, reviewed claimant's medical records and, in completing a "Psychiatric Review Technique" concluded that, while claimant did suffer from "adjustment disorder with depressed mood," he did not suffer from any medically determinable psychiatric impairment. Transcript at 180-84.
10 the ALJ determined that claimant was not disabled within the
meaning of the Act. Id.
In support of his motion to reverse the decision of the
Commissioner, claimant advances three arguments: first, he says
the ALJ failed to ascribe sufficient weight to his subjective
complaints of pain; next, he says the ALJ erred in concluding
that his depression and hearing loss are not severe; and,
finally, he claims the ALJ erred in failing to adeguately
consider additional medical evidence submitted after the hearing,
but within the period of time that the ALJ had agreed to leave
the record open.
II. The ALJ's Decision to Discount Claimant's Testimony.
No one appears to doubt that claimant is impaired and
suffers from pain. The relevant inguiry is, of course, whether
that pain is of a degree that renders him disabled within the
meaning of the Act.
When determining a claimant's RFC, the ALJ must review the
medical evidence regarding the claimant's physical limitations as
11 well as his own description of those physical limitations,
including his subjective complaints of pain. See Manso-Pizarro
v. Secretary of Health & Human Services, 76 F.3d 15, 17 (1st Cir.
1996). When, as here, the claimant has demonstrated that he
suffers from an impairment that could reasonably be expected to
produce the pain or side effects he alleges, the ALJ must then
evaluate the intensity, persistence, and limiting effects of the
claimant's symptoms to determine the extent, if any, to which
they limit his ability to do basic work activities.
[WJhenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. This includes medical signs and laboratory findings, the individual's own statements about the symptoms, any statements and other information provided by the treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual . . . .
In recognition of the fact that an individual's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individual's statements.
12 Social Security Ruling ("SSR") 96-7p, Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual's Statements,
1996 WL 374186 (July 2, 1996). Those factors include the
claimant's daily activities; the location, duration, frequency,
and intensity of the claimant's pain or other symptoms; factors
that precipitate and aggravate the symptoms; the type dosage,
effectiveness, and side effects of any medication the claimant
takes (or has taken) to alleviate pain or other symptoms; and any
measures other than medication that the claimant receives (or has
received) for relief of pain or other symptoms. Id. See also
Avery, 797 F.2d at 23; 20 C.F.R. § 404.1529(c) (3) .
It is, however, the ALJ's role to assess the credibility of
claimant's asserted inability to work in light of the medical
record, to weigh the findings and opinions of both "treating
sources" and other doctors who have examined him and/or reviewed
his medical records, and to consider the other relevant factors
identified by the regulations and applicable case law. Part of
his credibility determination necessarily involves an assessment
of the claimant's demeanor, appearance, and general
13 "believability." Accordingly, if properly supported, the ALJ's
credibility determination is entitled to substantial deference
from this court. See, e.g., Irlanda Ortiz, 955 F.2d at 769
(holding that it is "the responsibility of the [Commissioner] to
determine issues of credibility and to draw inferences from the
record evidence. Indeed, the resolution of conflicts in the
evidence is for the [Commissioner] not the courts").
Here, in reaching the conclusion that claimant's testimony
concerning the disabling nature of his impairments was not
entirely credible, the ALJ considered, among other things,
claimant's extensive medical history and progress reports from
his treating physicians; the fact that claimant's "treatment
history is marked by discontinuation of both physical therapy and
psychiatric counseling due to non-compliance and failure to keep
appointments," transcript at 12; claimant's positive response to
medications, most notably Vioxx; and his activities of daily
living. Ultimately, the ALJ concluded that "the level and
persistence of pain alleged is inconsistent with the objective
medical evidence, the claimant's treatment history, and his
activities of daily living." Id.
14 While the record suggests that this is certainly a close
case, in light of the foregoing, the court cannot conclude that
the ALJ erred in making his assessment of claimant's credibility.
To be sure, there is evidence in the record that is supportive of
claimant's assertion that his pain renders him totally disabled.
Importantly, however, there is also substantial evidence in the
record to support the ALJ's conclusion that claimant's pain does
not render him totally disabled. In such circumstances - when
substantial evidence can be marshaled from the record to support
either the claimant's position or the Commissioner's decision -
this court is obligated to affirm the Commissioner's finding.
See Tsarelka, 842 F.2d at 535 ("[W]e must uphold the
[Commissioner's] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence."). See also Gwathnev, 104 F.3d at 1045;
Andrews, 53 F.3d at 1039-40.
III. Claimant's Hearing Loss and Depression.
In addressing claimant's hearing loss, the ALJ acknowledged
that the medical evidence of record supports the conclusion that
claimant "has mild to moderate bilateral sensory-neuro hearing
15 loss." Transcript at 10. He also noted, however, that the
testing performed on claimant was inconsistent and the record
contained no documentation of claimant having sought any further
treatment or examination for hearing loss. Id. Based upon the
sparse evidence of record to support claimant's assertion that
his hearing impairment is "severe," the court cannot conclude
that the ALJ's decision in that regard was erroneous. As noted
above, it is the claimant who bears the burden of establishing a
severe impairment and, in this case, the record simply fails to
adeguately support that claim. See Bowen, 482 U.S. at 146-47;
Santiago, 944 F.2d at 5.
As to claimant's depression, the ALJ noted that he had
undergone a psychological evaluation in December of 2000, which
revealed that claimant suffered from an "adjustment disorder with
depression features." Transcript at 10. But, the ALJ also noted
that claimant's treatment at the Mental Health Center of Greater
Manchester was terminated due to his failure to keep scheduled
appointments. Additionally, in concluding that claimant's
depression was not "severe" within the meaning of the Act, the
ALJ observed that claimant "displayed significant improvement
16 with the use of Welbutrin," id., and noted that "[biased upon the
paucity of documentation, including a lack of allegations of
functional limitations due to depression, and the claimant's
significant improvement with medication, the state medical
examiner found that he had no functional limitations resulting
from adjustment disorder." Id. Conseguently, the ALJ concluded
that, "any mental disorder produces no more than a minimal effect
upon the claimant's ability to perform basic work activities and
is therefore not severe." Id.
As with the ALJ's findings regarding claimant's hearing
loss, the court concludes that his findings with regard to
claimant's depression are adeguately supported by the record:
claimant has failed to point to sufficient evidence in the record
to satisfy his burden of proof - that his mental disorder
constitutes a severe impairment.
IV. Additional Medical Opinion Evidence.
Finally, claimant asserts that the ALJ failed to properly
consider (or at least discuss) his treating physician's opinion
concerning his non-exertional limitations (and, to a lesser
17 extent, his exertional limitations) .4 On that point, the court
agrees.
Approximately two weeks after claimant appeared before the
ALJ (and while the record was still open). Dr. Lavallee completed
a "Medical Assessment of Ability to Do Work-Related Activities
( P h y s i c a l ) I n that report. Dr. Lavallee opined, among other
things, that claimant's ability to push/pull was "severely
limited" by his impaired knees. Transcript at 253. He also
opined that claimant could not stand for more that 15 minutes
without interruption - an exertional limitation which, if
credited as true, would have an obvious negative impact on
claimant's occupational base. See, e.g., SSR 83-12, 1983 WL
31253 at * 4 (1983) .
4 Exertional limitations deal with an individual's inability to perform one or more of the following seven activities: sitting, standing, walking, lifting, carrying, pushing, and pulling. SSR 96-8p, 1996 WL 374184 at * 5 (July 2, 1996). Non-exertional limitations, on the other hand, are limitations that affect an individual's ability to perform activities that are postural (e.g., stooping and climbing), manipulative (e.g., reaching and handling), visual, communicative, and mental. Non-exertional limitations also include an individual's inability to tolerate various environmental factors, such as chemical fumes, dust, temperature, humidity, etc. Id. at * 6.
18 Additionally, Dr. Lavallee opined that claimant suffered
from several non-exertional limitations that affected his ability
to climb ("barely"), balance ("occasionally"), stoop ("rarely"),
crouch ("rarely") , kneel ("rarely"), and crawl ("never") .
Transcript at 235. Finally, Dr. Lavallee opined that claimant's
impairment caused several environmental restrictions that
precluded him from working at heights, near moving machinery, in
cold temperatures, and in environments that would expose him to
noise, fumes, humidity, or vibration. Id. at 236.
Unfortunately, Dr. Lavallee's opinions were not submitted to the
ALJ until after the hearing, thereby precluding the ALJ from
incorporating those limitations (to the extent he credited them)
into a hypothetical guestion or guestions posed to the vocational
expert.5 Those opinions were, however, available to the ALJ
before he rendered his final decision.
5 In response to guestioning from the ALJ, the vocational expert did testify that a claimant's need to alternate between sitting and standing at 30 minute intervals would erode the pertinent occupational base, as would a claimant's lack of a high degree of hearing acuity. The ALJ did not, however, pose any hypothetical guestions involving a claimant who is "severely restricted" in his ability to push/pull, or who suffers from the environmental limitations identified by Dr. Lavallee, or who could only stand or walk for 15 minutes without interruption.
19 In discussing the weight that will be ascribed to the
opinions of "treating sources," the pertinent regulations
provide:
Generally, we give more weight to opinions from [the claimant's] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairments(s) . . . When we do not give the treating source's opinion controlling weight, we apply the factors listed [in this section] in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.
20 C.F.R. § 404.152 7(d)(2). See also SSR 96-2p, Policy
Interpretation Ruling Titles II and XVI: Giving Controlling
Weight to Treating Source Medical Opinions, 1996 WL 374188 (July
2, 1996) (when the ALJ renders an adverse disability decision,
his or her notice of decision "must contain specific reasons for
the weight given to the treating source's medical opinion,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subseguent reviewers
the weight the adjudicator gave to the treating source's medical
opinion and the reasons for the weight.").
20 Here, in concluding that claimant could perform the full
range of sedentary work, the ALJ did not account for several of
the limitations from which Dr. Lavallee believes claimant suffers
and failed to adeguately explain the basis for his (implicit)
decision not to give controlling weight to those medical
opinions. Among those (alleged) limitations are claimant's
"severely restricted" ability to push/pull, the environmental
limitations, and, perhaps most significantly, the inability to
stand or walk for more than 15 minutes without interruption.
If the ALJ chooses to accept Dr. Lavallee's opinions as to
claimant's limitations, he should obviously discuss those
limitations when considering whether claimant is capable of
performing the full (or a limited) range of sedentary work. Of
course, the ALJ is entitled to reject Dr. Lavallee's opinions or
accept them only in part. If he does so, however, he should
discuss the reasons for ascribing less than "controlling weight"
to those opinions. See 20 C.F.R. § 404.1527(d). See also SSR
96-2p, 1996 WL 374188.
21 Conclusion
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant, the
court concludes that there is substantial evidence in the record
to support both the ALJ's credibility determination and his
conclusion that neither claimant's hearing loss nor his
depression are "severe," as that term is used in the Act.
Importantly, however, because the ALJ's decision fails to
adeguately address the specific exertional and non-exertional
limitations identified by claimant's treating physician (or
explain why the physician's opinions were not given controlling
weight), the case must be remanded to the ALJ for further
consideration and, if he deems necessary, the taking of
additional evidence and/or a further hearing.
Accordingly, claimant's motion to reverse the decision of
the Commissioner (document no. 5) is granted in part and denied
in part. To the extent it seeks reversal of the Commissioner's
decision denying his application for benefits, that motion is
denied. To the extent it seeks remand to the ALJ for further
22 consideration, however, it is granted. The Commissioner's motion
for an order affirming his decision (document no. 6) is denied.
Pursuant to sentence four of 42 U.S.C. § 405(g), this matter
is remanded to the ALJ for further proceedings. The Clerk of the
Court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
March 12, 2003
cc: Heather E. Schulze, Esg. David L. Broderick, Esg.