Spinale v. SSA CV-03-069-B 01/05/04
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Karen A . Spinale
v. Civil N o . 03-069-B Opinion N o . 2004 DNH 007 Jo Anne B . Barnhart, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Karen Spinale applied for Social Security Disability
Insurance Benefits (“DIB”) on February 5 , 2001 (Tr. 7 4 ) . Her
application was denied and she then requested a hearing before an
administrative law judge (“ALJ”). After presiding over the
hearing at which Spinale, represented by an attorney, Spinale’s
mother, and a vocational expert testified, the ALJ determined
that Spinale was not entitled to DIB because her residual
functional capacity (“RFC”) for light work did not prevent her
from performing her past relevant work as a maid. (Tr. 9-18.)
The Appeals Council then denied Spinale’s request for review on
December 3 0 , 2002 (Tr.4-6).
Spinale seeks judicial review of the Social Security
Commissioner’s (“Commissioner”) decision denying her 2001 application. Spinale argues that the ALJ erred at the fourth
step in the Social Security Administration (“SSA”) evaluation
process by determining that her RFC allowed her to return to her
prior work as a maid. In particular, Spinale complains that the
ALJ committed an error of law by failing to consider the medical
opinion of a treating source that Spinale suffered from a
psychological condition giving her a moderate degree of
functional loss in relation to her daily activities, social
interactions, work related situations, and caused her to be
unable to do any substantial gainful work (Tr. 1 8 3 ) . Spinale
also complains that the ALJ’s determination that she is capable
of returning to her past relevant work as a maid is not supported
by substantial evidence on the record. For these reasons Spinale
moves to remand. The Commissioner, in turn, moves to affirm.
I. BACKGROUND1
A. Education and Work History
Spinale was born June 2 1 , 1968, and is a high school
graduate who completed a certified nurse’s assistant (“CNA”)
course in 1990 (Tr. 9 0 ) . Her past relevant work experience has
1 All background facts come from the parties Joint Statement of Material Facts.
-2- been as a waitress, a certified nurse’s assistant, a housekeeper,
and a homemaker (Tr. 8 5 , 93-100, 1 1 0 ) . As a housekeeper, she
never had to lift more than ten pounds (Tr. 9 5 ) . According to
her medical records, Spinale has also worked at a Mini-Mart in
Hampton Falls in April 1999 (Tr. 1 1 2 , 1 1 4 ) .
B. Medical History (Physical)
Spinale was hospitalized at Exeter Hospital for severe
asthma following a lower respiratory viral infection in April
1999 (Tr. 112-21). After treatment, she showed gradual
improvement and was discharged after two days (Tr. 1 1 5 ) .
Although suffering from severe, but controlled asthma, Spinale
had not been hospitalized for asthma at all for the three years
prior to 1999 (Tr. 139-50). 2 In May 2000, Spinale returned to
Exeter Hospital complaining of chest wall and upper back pain
radiating to the neck and left arm for which she was prescribed
Prednisone, an anti-inflammatory medication (Tr. 122-33). On
2 On February 1 , 2001, she was admitted again to Exeter Hospital by D r . Andrew Weeks in marked respiratory distress after the onset of sinus symptoms, rhinorrhea, congestion, and an increasing shortness of breath with mild pleuritic chest pain (Tr. 1 3 9 ) .
-3- June 1 3 , 2000, she was referred to the Exeter Hospital pain
clinic for evaluation and treatment of lower back pain and right
sciatica3 (Tr. 134-36). Spinale reported having undergone
discectomies at L4-5 and L5-S1 six years earlier and had since
experienced intermittent episodes of right sciatica lasting a few
days at a time (Tr. 1 3 4 ) . She had been treated a month earlier
for the same symptoms with a prescription for a non-steroid anti-
inflammatory, Vioxx ( I d . ) . Spinale reported that the Vioxx had
alleviated her pain “significantly,” and it was suggested she
continue taking Vioxx for a couple more weeks and to then re-
evaluate her pain ( I d . ) . In September, she began a series of
eight physical therapy sessions for chronic cervical strain (Tr.
190). It was noted that Spinale could perform all activities but
with chronic pain (Tr. 1 9 1 ) . This condition was reportedly
related to a motor vehicle accident earlier that same year (Tr.
192). A cervical x-ray showed a slight movement of C2 anteriorly
to C3 with flexion, but no movement of the vertebral bodies upon
3 Sciatica is pain in the lower back and hip radiating down the back of the thigh into the leg, usually due to herniated lumbar disks. Stedman’s Medical Dictionary [hereinafter Stedman’s], 1602 (27th ed. 2000).
-4- each other with extension, and the paravertebral soft tissue
spaces appeared normal (Tr. 1 9 7 ) . An MRI in October 2001 showed
a slight bulge of the C6 disc of questionable significance but no
evidence of narrowing of the space underneath the arachnoid
membrane (the middle of the three coverings of the central
nervous system) or narrowing of the neural foramen, and no cord
atrophy or swelling (Tr. 2 0 3 ) .
In June 2001, Spinale had a ganglion4 removed from the
dorsal aspect of her left wrist (Tr. 151-57).
C. Medical History (Mental)
Barbara Gaffney, a licensed social worker, prepared an
intake evaluation of Spinale for Seacoast Mental Health Center,
Inc (“SMHC”) in June 2000 (Tr. 158-62). Spinale complained of
depression, a lack of sleep, indicated that she had been taking
Prozac5 for years, and was having a “harder time” since January
when her daughter disclosed sexual abuse at the hands of her
4 A ganglion is a cyst containing mucopolysaccharide-rich fluid within the fibrous tissue o r , occasionally, muscle bone or a similar cartilage; usually attached to a tendon sheath in the hand, wrist, or foot. Stedman’s, supra at 726. 5 Prozac is for treating depression. Physicians’ Desk Reference [hereinafter PDR] 1232 (57th ed. 2003)
-5- father (Tr. 1 5 8 ) . M s . Gaffney concluded that Spinale did not
meet the criteria for state supported services at that time
because it appeared that many of her functional difficulties
stemmed from her reaction to her daughter’s sexual abuse (Tr.
161).
Spinale was referred to psychiatry (Tr. 182) and was
examined by Amy Feitelson, M.D., a staff psychiatrist at SMHC, on
July 3 1 , 2000 (Tr. 163-65). Spinale was cooperative throughout
the evaluation and showed no signs of psychomotor retardation or
agitation, but her mood was depressed and her affect constricted
(Tr. 1 6 4 ) . D r . Feitelson diagnosed a mood disorder not otherwise
specified (“NOS”), rule out bipolar, type I I , post-traumatic
stress disorder (“PTSD”), major depression, and rated Spinale’s
global assessment of functioning (“GAF”) at 60 (Id.) 6 .
Spinale continued to see D r . Feitelson about once a month
since September 2000 to monitor and adjust her medication (Tr.
166-72, 175, 178-81). In September, D r . Feitelson began tapering
6 A GAF rating between 51 and 60 is indicative of an individual who has moderate psychological symptoms or moderate difficulty in social, occupational, or school functioning. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32-34 (4th ed., text rev. 2000).
-6- down Spinale’s Prozac dosage, increased her Topamax dosage,
stopped her Xanax prescription, and began her on BuSpar.7 In
October, D r . Feitelson took Spinale completely off Prozac and
BuSpar, started her on Risperdal and Wellbutrin, and cut back her
dosage of Topamax.8 In November, Spinale also began taking
Klonopin at night to help her sleep.9 By January 2001, D r .
Feitelson added Lithium Carbonate to Spinale’s medication regime
and took her off Risperdal.10 In April, Spinale had stopped
taking Topamax, but was placed back on it to help ease her
agitation. D r . Feitelson then added Neurontin to Spinale’s
prescription in September.11 In November, Seroquel was added to
7 Topamax is for treating seizures while Xanax and BuSpar (buspirone HCL) are for anxiety disorders. PDR, supra at 2501, 2794, 2517 (57th ed. 2003). 8 Risperdal is for treating schizophrenia and Wellbutrin treats depression. PDR, supra at 1786, 1682. 9 Klonopin is for the treatment of panic disorders. PDR, supra at 2905. 10 Lithium Carbonate is used in the treatment of depressive, hypomanic, and manic phases of bipolar affective disorders. Stedman’s at 1024. 11 Neurontin is used in the treatment of partial seizures. PDR, supra at 2563.
-7- the Lithium, Wellbutrin, Topamax, and Klonopin.12 According to
Dr. Feitelson, as of January 2002, Spinale was taking Wellbutrin,
Topamax, Neurontin, and Klonopin (Tr. 1 8 3 ) .
Dr. Feitelson noted that throughout the year and a half she
treated Spinale, Spinale’s mood, depression, agitation, and
ability to focus vacillated, not dramatically improving nor
declining. In a letter to Spinale’s attorney dated January 1 1 ,
2002, D r . Feitelson recounted how she had recommended Spinale see
a therapist but that Spinale had difficulty doing so on a routine
basis. She stated that she had diagnosed Spinale with a Mood
Disorder, NOS, ruled out Bipolar, Type I I , PTSD, major
depression, and determined that Spinale currently had trouble
with mood control and irritability. She also opined that Spinale
suffered from a psychological condition that caused her “to be
unable to do any substantial gainful work, which psychological
condition has lasted 12 months and will be expected to last
twelve months in a row.” (Tr. 183.)
Dr. Feitelson also completed a psychiatric evaluation form
for Spinale on January 2 8 , 2002. She concluded that Spinale had
12 Seroquel is used in the treatment of schizophrenia. PDR, supra at 681.
-8- a depressed and anxious mood, but had a full range of affect (Tr.
247). She went on to report that Spinale had a moderate
limitation in daily living activities and moderate difficulty
with performing tasks because she was forgetful and unorganized
(Tr. 2 4 8 ) . D r . Feitelson opined that Spinale had repeated
episodes of deterioration or decompensation in work or work-like
settings based on the fact that her longest job was a year (Id.). 13
In April 2002, D r . Feitelson also completed a medical source
statement form concerning Spinale’s ability to perform work-
related mental activities (Tr. 219-20). D r . Feitelson noted that
Spinale’s ability to understand, remember and carry out
instructions and to respond appropriately to supervisors, co-
workers and work pressure were affected by her impairment but no
other capabilities were affected ( I d . ) . She felt that Spinale
could carry out simple instructions and had only a moderate
limitation in making judgments on simple work-related activities
(Tr. 2 1 9 ) .
13 This is based on a false premise, as Spinale’s two most recent jobs were as a homemaker for a year and a half and as a housekeeper for almost three years (Tr. 9 3 , 100
-9- On August 3 0 , 2001, Steven Spielman, Ph.D., a licensed
psychologist, evaluated Spinale. D r . Spielman noted that
Spinale’s affect was normal in range and her attention and
concentration appeared within the normal limits, although her
immediate verbal memory was mildly impaired (Tr. 1 8 7 ) . She had a
generally clear and coherent thought process with no evidence of
loosening of associations, bizarre thought content, delusions or
hallucinations ( I d . ) . D r . Spielman opined that Spinale might be
susceptible to stress in certain situations where the demands on
her are high and the job is fast paced (Tr. 1 8 8 ) .
Michael Schneider, Psy.D., reviewed Spinale’s medical
records in September 2001, including records from SMHC and D r .
Spielman (Tr. 5 1 ) , and prepared a psychiatric review technique
form (“PRTF”) based on those records (Tr. 205-18). D r . Schneider
concluded that the evidence indicated Spinale suffered from an
affective disorder (Tr. 205, 2 0 8 ) . He reported, however, that
Spinale’s condition resulted in only mild limitations in daily
living activities, mild difficulty maintaining social
functioning, mild difficulty in maintaining concentration,
persistence and pace, and that Spinale had never had repeated
episodes of decompensation of extended duration (Tr. 2 1 5 ) .
-10- D. Testimony of Spinale and her Mother
At the hearing before the ALJ on April 2 2 , 2002, Spinale
testified that she had a hard time being around people and that
she was easily agitated (Tr. 2 5 ) . She stated that she could no
longer lift anything because she had ruptured two discs when she
was a CNA (Tr. 2 6 ) . She had surgery to correct this problem in
1993, but now could only lift twenty pounds comfortably ( I d . ) .
Spinale reported that she left her last job as a homemaker
because she was “emotionally a wreck” (Tr. 3 0 ) , and that she did
not believe she could work because her head was not “clear” and
she could not “think straight” (Tr. 3 6 ) . She did report recently
babysitting a four year old for a friend for a few weeks, but
stopped because she “couldn’t deal with the child.” (Tr. 36-37.)
Spinale’s daily routine consists of her mother calling her
in the morning to get her u p , making breakfast for her seven
year-old daughter, taking her daughter to school, and then
returning home to clean or do nothing, depending on her mood (Tr.
34-35). She never goes shopping by herself because of her
anxiety attacks, but usually goes with her mother ( I d . ) .
Spinale’s mother testified that she visits Spinale several
times a week and speaks with her daily (Tr. 3 9 ) . She calls
-11- Spinale every morning to ensure that she gets up to take her
daughter to school and not oversleep. She also stated that at
times Spinale kept a very clean house and at other times left her
home a complete mess (Tr. 4 0 ) .
E. Testimony of Vocational Expert
The vocational expert, Maurice Demers, reviewed the
vocational evidence from the file and was present during
Spinale’s testimony at the hearing before the ALJ. He classified
Spinale’s past work as a nurse assistant as semi-skilled medium
to heavy work; her work as a companion, cashier-checker and
waitress, as semi-skilled light work; and her work as a
housekeeper as unskilled light work (Tr. 4 4 ) . He testified that
if Spinale were limited to unskilled light or sedentary work that
she would be precluded from performing her past relevant work
except for her work as a maid ( I d . ) .
F. The ALJ’s Decision
The ALJ, after evaluating the record, determined that: (1)
Spinale was “not engaged in substantial gainful activity since
the alleged onset of the disability”; (2) that her “mood disorder
is a severe impairment”; (3) that “[t]his medically determinable
impairment does not meet or medically equal one of the listed
-12- impairments in Appendix 1 , Subpart P, Regulation N o . 4"; (4) that
Spinale’s “allegations regarding her limitations are not totally
credible as they are not supported by the medical record”; (5)
that the ALJ had “carefully considered all of the medical
opinions in the record regarding the severity of [Spinale’s]
impairment”; (6) that she had a RFC for “light work with
avoidance of interaction with the general public”; (7) that her
“past relevant work as a maid did not require the performance of
work-related activities precluded by her [RFC]”; and that her
“disorder does not prevent [her] from performing her past
relevant work as a maid, according to vocational expert
testimony.” (Tr. 17.) In arriving at this conclusion, the ALJ
noted D r . Feitelson’s diagnosis of Spinale in the first paragraph
of the January 1 1 , 2002 letter. The ALJ, however, made no
mention of D r . Feitelson’s opinion in the second paragraph of the
same letter that Spinale’s medical condition prevented her from
working.
The ALJ also noted “that the record was left open after the
hearing for a mental assessment by the claimant’s therapist, but
nothing was received.” (Tr. 16.) This report, filled out by D r .
Feitelson January 2 8 , 2002, was finally submitted after the ALJ’s
-13- decision was released (Tr. 246-49).
II. STANDARD OF REVIEW
Under the Social Security Act, the factual findings of the
ALJ are conclusive if supported by “substantial evidence.” 42
U.S.C. § 405(g); see also Ortiz v . Sec’y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991). I must uphold the
ALJ’s findings “if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
[the ALJ’s] conclusion.” Rodriguez v . Sec’y of Health & Human
Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981). The ALJ’s decision is
therefore supported by substantial evidence i f , given all the
evidence, it is reasonable. It is also the function of the ALJ,
and not the courts, to determine issues of credibility, to draw
inferences from the record evidence, and to resolve conflicts in
the evidence. Ortiz, 955 F.2d at 769.
The ALJ’s findings of fact are not conclusive, however,
“when derived by ignoring evidence, misapplying the law, or
judging matters entrusted to experts.” Nguyen v . Chater, 172
F.3d 3 1 , 35 (1st Cir. 1999). If the Commissioner, through the
ALJ, has misapplied the law or failed to provide a fair hearing,
deference to the Commissioner’s decision is not appropriate, and
-14- remand for further development of the record may be necessary.
See Seavey v . Barnhart, 276 F.3d 1 , 11 (1st Cir. 2001). I apply
these standards to the arguments Spinale raises in her appeal.
III. ANALYSIS
Spinale argues the ALJ’s ruling failed to consider or
adequately explain the weight given to the medical opinions
proffered by a treating medical source, D r . Feitelson. Because I
agree with Spinale that the ALJ failed to adequately discuss
these medical opinions, I vacate and remand the case for further
development of the record.
The First Circuit has made it clear that an ALJ’s written
decision need not directly address every piece of evidence in the
administrative record. See, e.g., Shaw v . Sec’y of Health &
Human Servs., 25 F.3d 1037 (Table), 1994 WL 251000, at *5 (1st
Cir. June 9, 1994) (per curium) (“We agree with the district
court that while the ALJ did not expressly cite the agency
doctor’s reports (only the agency findings) he implicitly took
them into account.”); Rodriguez v . Sec’y of Health & Human
Servs., 915 F.2d 1557 (Table), 1990 WL 152336, at *1 (1st Cir.
Sept. 1 1 , 1990) (per curiam) (“An ALJ is not required to
expressly refer to each document in the record, piece-by-
-15- piece.”). Failing to address a specific piece of evidence will
not undermine the validity of an ALJ’s conclusion, for example,
“when that conclusion was supported by citations to substantial
medical evidence in the record and the unaddressed evidence was
either cumulative of the evidence discussed by the ALJ or
otherwise failed to support the claimant’s position.” Lord v .
Apfel, 114 F. Supp. 2d 3 , 13 (D.N.H. 2000) (citing Rodriguez, 915
F.2d 1557 (Table), 1990 WL 152336, at * 1 - 4 ; Ortiz v . Apfel, 55 F.
Supp. 2d 9 6 , 103 & n.1 (D.P.R. 1999) (concluding that therapy
notes made by psychiatrist, which were not discussed by the ALJ,
did not appreciably support claimant’s claim)).
The First Circuit, however, has also established that “an
ALJ may not simply ignore relevant evidence, especially when that
evidence supports a claimant’s cause.” Lord, 114 F. Supp. 2d at
13 (citing Nguyen, 172 F.3d at 35 (citing cases)). In order for
an ALJ’s decision to be supported by substantial evidence, it
“must take into account whatever in the record fairly detracts
from its weight.” Universal Camera Corp. v . NLRB, 340 U.S. 4 7 4 ,
488 (1951); see also Diaz v . Sec’y of Health & Human Servs., 791
F. Supp. 905, 912 (D.P.R. 1992). The ALJ failed to do so by
rendering a decision referencing only the first paragraph in D r .
-16- Feitelson’s letter dated January 1 1 , 2002, describing Spinale’s
diagnosis and irritability, but omitting any indication of the
second paragraph where D r . Feitelson noted that Spinale’s
symptoms prevented her from working and would continue to do so
for 12 months (Tr. 1 5 , 1 8 3 ) .
Dr. Feitelson’s opinion as a treating physician is not
controlling in this instance as it relates to the ultimate
disability determination reserved to the Commissioner, see 20
C.F.R. § 404.1527(e)(1); Arroyo v . Sec’y of Health & Human
Servs., 932 F.2d 8 2 , 89 (1st Cir. 1991) (“The ALJ was not
required to accept the conclusions of claimant’s treating
physicians on the ultimate issue of disability.”), but “the SSA
has instructed ALJs that a doctor’s opinion as to whether a
claimant is disabled ‘must not be disregarded.’” Lord, 114 F.
Supp. 2d at 15 (quoting S.S.R. 96-5p (1996)). The ALJ, moreover,
must give “specific reasons for the weight given to the treating
sources medical opinion,” even if it is not controlling, as is
the case here, and ultimately rejected by the ALJ. S.S.R. 96-2p
(1996). By failing to mention D r . Feitelson’s opinion found in
the second paragraph of the letter of January 1 1 , “it is
impossible to determine whether this evidence was considered and
-17- implicitly discredited or instead was simply overlooked.”14
Lord, 114 F. Supp. 2d at 14 (citing Cotter, 642 F.2d at 705
(“[W]e need from the ALJ not only an expression of the evidence
s/he considered which supports the result, but also some
indication of the evidence which was rejected. In the absence of
such an indication, the reviewing court cannot tell if
significant probative evidence was not credited or simply
ignored.”); but see Shaw, 25 F.3d 1037 (Table), 1994 WL 251000,
at *5 (Court held ALJ implicitly considered doctor’s reports and
stated “[w]hile 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.”)).
Even if the ALJ implicitly rejected this aspect of D r .
Feitelson’s opinion, the failure to explain the rejection
directly conflicts with the SSA’s regulations, which provide that
“[w]e will always give good reasons in our notice of
14 I do not find the ALJ’s boilerplate language of having “carefully considered all of the medical opinions in the record regarding the severity of the claimant’s impairment” to be sufficient. See, Cotter v . Harris, 642 F.2d 7 0 0 , 707 n.10 (3d Cir. 1981).
-18- determination or decision for the weight we give your treating
source’s opinion.” 20 C.F.R. § 404.1527(d)(2); see also Cotter,
642 F.2d at 707. “Accordingly, while the ALJ was entitled to
find D r . [Feitelson’s January 11] letter unworthy of credit, she
was not entitled to find it unworthy of comment.” Lord, 114 F. Supp. 2d at 15-16.15
IV. CONCLUSION
The ALJ failed to adequately address the weight given to the
medical opinion of a treating medical source, D r . Feitelson,
found in the January 1 1 , 2002 letter. While the ALJ acknowledged
a portion of the letter, the ALJ never addressed in any way the
portion of the letter in which Spinale’s treating medical source
opined about Spinale’s medical condition and its impact on her
ability to work. This was opinion evidence directly in support
15 Spinale also argues that a January 2 8 , 2002 report from Dr. Feitelson was not properly evaluated by the ALJ (Pl.’s Mot. for Order Reversing the Comm’r at 4 ; T r . 246-49). This report was not submitted to the ALJ prior to the issuance of the ALJ’s decision, in spite of the ALJ having left the record open after the hearing to allow for the report to be filed (Tr. 1 6 ) . The ALJ, therefore, could not have evaluated the report before issuing the decision and it is not a part of the administrative record for which to base a remand upon. See, e.g., Cotter, 642 F.2d at 707 n.12. On remand the ALJ has the discretion to reopen the record and consider the report in question.
-19- of Spinale’s claim and must be addressed by the ALJ before being
dismissed or ignored. For these reasons I grant Spinale’s motion
for an order reversing the decision of the Commissioner (Doc. N o .
6 ) and deny the Commissioner’s motion for an order affirming the
decision of the Commissioner (Doc. N o . 7 ) . The ALJ’s decision is
vacated and remanded for further development of the record in
line with this opinion.
SO ORDERED.
Paul Barbadoro Chief Judge
January 6, 2004
cc: David Broderick, Esq. D. Lance Tillinghast, Esq.
-20-