Spinale v. SSA

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 . 

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.”       

(g); see also Ortiz v . Sec’y of Health & Human

Servs., 

 (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., 

 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, 

.

     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, 

 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, 

 , 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., 

 (Table), 

, 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., 

 (Table), 

 (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, 

 , 13 (D.N.H. 2000) (citing Rodriguez, 

 (Table), 

, at * 1 - 4 ; Ortiz v . Apfel, 

 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, 

 (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, 

 7 4 ,

488 (1951); see also Diaz v . Sec’y of Health & Human Servs., 

 (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 

(e)(1); Arroyo v . Sec’y of Health & Human

Servs., 

 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, 

 (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, 

 (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, 

 (Table), 

,

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, 

 0 0 , 707 n.10 (3d
Cir. 1981).

                               -18-
determination or decision for the weight we give your treating

source’s opinion.”     

(d)(2); see also Cotter,

. “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, 

.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, 

 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-