May v. SSA CV-01-269-M 05/16/02
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Diane J. May,
Claimant
v. Civil No. 01-2 69-M
Opinion No. 2002 DNH 094
Jo Anne B. Barnhart, Commissioner,
Social Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Diane J. May,
moves to reverse the Commissioner's decision denying her
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.
Factual Background
I. Procedural History.
In the Fall of 1998, claimant filed applications for
disability insurance benefits and supplemental security income
payments under Titles II and XVI of the Act, alleging that on
June 1 , 1998, when she was 37 years old, she became disabled due
to fibromyalgia syndrome, irritable bowel syndrome, and
depression with anxiety (claimant later amended her alleged
disability onset date to November of 1997). The Social Security
Administration denied her application initially and on
reconsideration.
On October 4, 2000, claimant, her attorney, and a vocational
expert appeared before an Administrative Law Judge (ALJ) who
considered her claims de novo. The ALJ issued his order on
November 17, 2000, concluding that, although subject to some
restrictions, claimant was capable of performing sedentary work
and was not, therefore, precluded from returning to her past
relevant work as a loan officer, account clerk, or bookkeeper.
On May 19, 2001, the Appeals Council denied claimant's request
for review, thereby rendering the ALJ's decision the final
decision of the Commissioner.
In response, claimant filed this timely action, asserting
that the ALJ's decision was not supported by substantial evidence
and seeking a judicial determination that she is disabled within
2
the meaning of the Act. Claimant then filed a "Motion for Order
Reversing the Decision of the Commissioner" (document no. 9).
The Commissioner objected and filed a "Motion for Order Affirming
the Decision of the Commissioner" (document no. 11). 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. 10), need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
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.
3
§§ 405(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health and
Human Services, 955 F.2d 765, 769 (1st Cir. 1991) .1 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 and 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
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.").
1 Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate 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
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v. Secretary
of Health and 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 where those
determinations are supported by specific findings. See
Frustaglia v. Secretary of Health and Human Services,
829 F.2d
192, 195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health
and 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
5
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 and
Human Services,
944 F.2d 1, 5 (1st Cir. 1991). To satisfy that
burden, the claimant must prove that her impairment prevents her
from performing her former type of work. See Gray v. Heckler,
760 F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v. Secretary
of Health and Human Services,
690 F.2d 5, 7 (1st Cir. 1982)).
Nevertheless, the claimant is not required to establish a doubt-
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
6
Health and 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 her previous work, the burden shifts to the
Commissioner to show that there are other jobs in the national
economy that she can perform. See Vazquez v. Secretary of Health
and 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).
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.
7
20 C.F.R. § 404.1520. See also
20 C.F.R. § 416.920. Ultimately
a claimant is disabled only if her:
physical or mental impairment or impairments are of
such severity that [s]he is not only unable to do [her]
previous work but cannot, considering [her] 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 [s]he lives, or
whether a specific job vacancy exists for [her], or
whether [s]he would be hired if [s]he applied for work.
42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).
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 ALU's Findings.
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory five
step sequential 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 her alleged onset of disability. Next, the ALJ concluded
that the medical evidence of record "indicates that the claimant
has fibromyalgia syndrome, irritable bowel syndrome and a history
of depression with anxiety, impairments that are severe within
the meaning of the Regulations but not severe enough to meet or
medically equal one of the impairments listed in Appendix 1,
Subpart P, Regulations No. 4." Transcript at 20.
Next, the ALJ assessed claimant's residual functional
capacity ("RFC") and concluded that she "retains the residual
functional capacity to perform sedentary work lifting up to 10
pounds occasionally with occasional standing and walking and with
the need to avoid overhead reaching or frequent stooping,
kneeling, crouching or crawling. The claimant must also be able
to change postural positions periodically." Transcript at 20.
Finally, at step four of the sequential analysis, the ALJ
concluded that, based upon the record evidence and testimony from
the vocational expert, claimant retained the RFC to perform her
past relevant work as a loan officer, a bookkeeper, and an
accounts payable/receivable clerk. Transcript at 21. In light
of that conclusion, there was no need to proceed to step five of
9
the sequential analysis and the ALJ determined that claimant was
not disabled within the meaning of the Act.
II. Weight Ascribed to the Opinions of Claimant's
Treating Physicians.
In challenging the ALJ's disability determination, claimant
first asserts that the ALJ failed to give sufficient weight to
the opinions of her treating physicians. As is the case with
other credibility issues, the ALJ has significant discretion with
respect to the weight afforded to medical opinions. However,
under the regulations, a treating physician's medical opinion
will generally be given controlling weight unless the ALJ finds
that the opinion is not well-supported by medically acceptable
clinical and laboratory diagnostic techniques, and concludes that
it is not supported by substantial evidence in the record, in
which case the opinion may be afforded less or no weight. 20
C.F.R. §§ 404.1527(d), 416.927(d). Although the issue is not
entirely free of doubt, the court has, for purposes of this
order, assumed that both Dr. Libbey and Dr. Gorman may properly
be viewed as "treating sources" under the pertinent regulations.
10
When a treating physician's opinion is not given controlling
weight, the ALJ must determine what weight, if any, to afford it
after considering the following factors:
(1) Length of the treatment relationship and the
frequency of evaluation;
(2) Nature and extent of the treatment relationship;
(3) Relevant evidence provided to support the opinion;
(4) Consistency of the medical source's opinion with
the record as a whole;
(5) Whether the medical source's opinion is within his
or her field of specialty training; and
(6) Any other factors claimant or others bring to the
ALJ's attention, or of which the ALJ is aware,
that tend to support or contradict the opinion.
20 C.F.R. §§ 404.1527(d) (2) (i)- (d) (6), 416.927(d) (2) (i)- (d) (6) .
See also Guvton v. Apfel,
20 F.Supp.2d 156, 167 (D. Mass. 1998).
Here, the ALJ found that neither assessment provided by
claimant's treating physicians was consistent with the record
evidence. Specifically, he observed:
While the undersigned has considered Dr. Gorman's and
Dr. Libbey's residual functional capacity assessments,
neither assessment is consistent with observations made
upon examination of the claimant nor is either
assessment consistent with the claimant's activity
level. The claimant is quite active and is able to
11
maintain social relationships as well as care for her
young son according to her report to Dr. Rooney. The
claimant receives only intermittent medical care and
has not carefully followed recommendations that she
perform regular exercise. Further, State Agency
Physician, Dr. [Burton] Nault noted that the record did
not indicate that claimant was totally disabled. The
claimant cannot be found to be fully credible with
regard to her assertions of disabling pain in light of
her self-report of her activities to Dr. Rooney and her
admitted ability to care for her young son and to
interact with friends and family.
Transcript at 20 (citation omitted).
In the report referenced by the ALJ, Dr. Rooney made the
following observations based upon his examination of claimant in
September of 1998: claimant "denied having any current problems
with depression now that she has left her job" (transcript at
203); "her attention and concentration appeared to be within
normal limits" (id.); she "described a typical day as involving
her taking her son to day-care, taking her medications, and
performing household tasks" (id., at 204); she "described her
social interactions as involving going to live blues music as
well as going to different fairs and festivals with friends"
(id.); she "reported that she can perform her needed activities
of daily living, although on some days it is more difficult for
12
her as a result of muscle spasms (id., at 205); and she "reported
that she can cook, but cannot do a lot of reaching or lifting"
(id.).
As for the residual functional capacity questionnaires
completed by Dr. Libbey and Dr. Gorman, the ALJ correctly noted
that the doctors' conclusions were based almost exclusively upon
claimant's reported symptoms; results from nearly all diagnostic
testing performed on her were within normal parameters. For
example. Dr. Libbey's conclusions regarding claimant's residual
functional capacity were based upon the claimant's assertion that
she suffered from the following symptoms: multiple tender points;
nonrestorative sleep; chronic fatigue; morning stiffness; muscle
weakness; subjective swelling (postural, neck); Irritable Bowel
Syndrome; frequent, severe headaches; Premenstrual Syndrome
(PMS); vestibular dysfunction; Temporomandibular Joint
Dysfunction (TMJ); numbness and tingling; Sicca symptoms;
Dysmenorrhea; breathlessness; anxiety; panic attacks; depression;
Carpal Tunnel Syndrome; and Chronic Fatigue Syndrome. Transcript
at 247. In light of those asserted symptoms, it is not
surprising that Dr. Libbey (and Dr. Gorman) viewed claimant as
13
totally disabled. Curiously, however. Dr. Libbey never commented
on her observation that although claimant says "she has pain with
any motion of any joint, she has full range when distracted."
Transcript at 254. At a minimum, that observation suggests that
while likely not an intentional effort to deceive, claimant did
tend to overstate the symptoms of her impairments and the
intensity of her pain when meeting with her doctors.
To be entitled to "controlling weight," the medical opinions
of a treating source must be "well-supported by medically
acceptable clinical and laboratory diagnostic techniques" and
cannot be inconsistent with "other substantial evidence in [the
claimant's] case record." 20 C.F.R. § 404.1527(d)(2). See also
Social Security Ruling ("SSR") 96-2p, Policy Interpretation
Ruling Titles II and XVI: Giving Controlling Weight to Treating
Source Medical Opinions, 1996 WL 374188 (July 2, 1996)
(providing, among other things, that "controlling weight may not
be given to a treating source's medical opinion unless the
opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques"). Here, claimant has pointed
to no laboratory diagnostic tests that support her claim of
14
disability. And, as the Commissioner points out, results from at
least some of the tests administered to her tend to undermine her
claim. See, e.g.. Commissioner's memorandum (document no. 11) at
10 n.12 (noting that the results of claimant's Rheumatoid factor
and Antistreptolysin 0 tests were both negative). See also
Transcript at 187. Contrary to claimant's suggestion, medical
opinions, even those from physicians viewed as treating sources,
are not entitled to controlling weight when they are based almost
exclusively upon a patient's self-reported symptoms, particularly
when there is evidence in the record suggesting that those
symptom reports are exaggerated. See generally 20 C.F.R.
§ 404.1528 (distinguishing between "symptoms," "signs," and
"laboratory findings," and providing that "symptoms are your own
description of your physical and mental impairment. Your
statements alone are not enough to establish that there is a
physical or mental impairment.").
In light of the record presented, the court concludes that
the ALJ adequately discussed his reasons for discounting the
opinions of claimant's treating sources and the basis for his
15
conclusion that those opinions were not supported by substantial
evidence in the record.
III. The ALJ's Failure to "Recontact" Claimant's Treating
Physicians.
Claimant next assigns error to the ALJ's failure "to
recontact Dr. Gorman or Dr. Libbey on an issue reserved to the
Commissioner." Claimant's memorandum (document no. 9) at 8. In
support of that view, claimant points to SSR 96-5p, Policy
Interpretation Ruling Titles II and XVI: Medical Source Opinions
on Issues Reserved to the Commissioner, 1996 WL 374183 (July 2,
1996), which provides:
Because treating source evidence (including opinion
evidence) is important, if the evidence does not
support a treating source's opinion on any issue
reserved to the Commissioner and the adjudicator cannot
ascertain the basis of the opinion from the case
record, the adjudicator must make "every reasonable
effort" to recontact the source for clarification of
the reasons for the opinion.
Id., at *6 (emphasis supplied). See also 20 C.F.R. §
404.1527(c) (3) .
16
Here, however, the basis for the opinions rendered by Dr.
Libbey and Dr. Gorman was clear: they were based almost entirely
upon claimant's own statements about her symptoms. Consequently,
there was no need for the ALJ to recontact those sources in an
effort to uncover the basis for their opinions; on that point,
the record required no clarification. Consequently, the court
cannot agree with claimant's assertion that the ALJ erred by
failing to recontact her physicians.
IV. The ALJ's Decision to Discount Claimant's Testimony.
When determining a claimant's RFC, the ALJ must review the
medical evidence regarding the claimant's physical limitations as
well as her own description of those physical limitations,
including her subjective complaints of pain. See Manso-Pizarro
v. Secretary of Health & Human Services, 76 F.3d 15, 17 (1st Cir.
1996). When the claimant has demonstrated that she suffers from
an impairment that could reasonably be expected to produce the
pain or side effects she alleges, the ALJ must then evaluate the
intensity, persistence, and limiting effects of the claimant's
symptoms to determine the extent to which those symptoms limit
her ability to do basic work activities.
17
[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 individuals'
statements.
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
18
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 her and/or reviewed
her 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 a claimant's demeanor, appearance, and general
"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").
19
Here, in reaching the conclusion that claimant's testimony
concerning the disabling nature of her impairments was not
entirely credible, the ALJ considered, among other things, her
daily activities (as reported to Dr. Rooney), her ability to care
for her son and perform household chores, the fact that claimant
sought only intermittent medical care, her failure to carefully
follow recommendations that she perform regular exercise, and the
nature (and extent) of her social interactions. Additionally,
as noted above, there is evidence in the record which suggests
that claimant tended to overstate the symptoms of her
impairments.
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 she is totally disabled. Importantly,
however, there is also substantial evidence in the record to
support the ALJ's conclusion that she is not disabled and,
instead, is capable of performing a range of sedentary work. In
such circumstances - when substantial evidence can be marshaled
from the record to support either the claimant's position or the
20
Commissioner's decision - this court is obligated to affirm the
Commissioner's finding of no disability. 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.
Conclusion
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant, the
court concludes that the there is substantial evidence in the
record to support the ALJ's determination that claimant was not
disabled at any time prior to the date of his decision. The
ALJ's decision to discount the opinions of Dr. Libbey and Dr.
Gorman with regard to the extent of claimant's disability, as
well as his assessment of claimant's credibility, are adequately
reasoned and supported by substantial evidence in the record.
For the foregoing reasons, claimant's motion to reverse the
decision of the Commissioner (document no. 9) is denied, and the
Commissioner's motion to affirm her decision (document no. 11) is
21
granted. 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
May 16, 2 002
cc: David F. Bander, Esq.
Ralph Stein, Esq.
David L. Broderick, Esq.
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