Smith v. SSA

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. 

Jo Anne B. Barnhart, Commissioner,
Social Security Administration,
     Respondent


                               O R D E R


       Pursuant to 

(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, 

,

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, 

 (2000); 

 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."

 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.  

and 416.1466.

                                   3
                          Standard of Review

I.    Properly Supported Factual Findings by the ALJ
_____ are Entitled to Deference.

     Pursuant to 

(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 

(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health &

Human Services, 

 (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, 

 (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, 

(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., 

 (1966).

                                  4
conclusion, so long as it is supported by substantial

evidence.").   See also Gwathnev v. Chater, 

, 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, 

      (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,    

 (1st Cir. 1984)

(citing Sitar v. Schweiker,    

 (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, 

.

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, 

 (1st Cir. 1987)      (citing Da Rosa

v. Secretary of Health & Human Services, 

 (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."      

(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, 

    (1987); Santiago v. Secretary of Health & Human

Services, 

 (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, 

    (1st Cir. 1985)   (citing Goodermote v. Secretary of

Health & Human Services, 

 (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, 

    (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, 

 (1st Cir. 1986);

Goodermote, 

.     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, 

 (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, 

 (1st Cir. 1974); Benko v. Schweiker, 

 (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.

.   See also 

.   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.

(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 

 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."    

     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, 

 (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,

    (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.      

   See also

Avery, 

; 

(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, 

(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."   

                                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, 

 ("[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, 

.



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.     

   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, 

;

Santiago, 

.



     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," 

 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."   

    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."    

      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, 

 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, 

 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.

 7(d)(2).   See also SSR 96-2p, Policy

Interpretation Ruling Titles II and XVI: Giving Controlling

Weight to Treating Source Medical Opinions, 

    (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 

(d).    See also SSR

96-2p, 

.




                                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 

(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.




                                  23