D. Mass. Social Security Disability Case Abstracts

Severe impairment not included in RFC; evidence from surrounding time periods

2011-12-07T17:32:00.001-08:00

L R v. Astrue

2011-02-17

Civil Action No. 09cv11044-NG

Remand

U.S. Judge: Nancy Gertner

ALJ: NA; ME: John Ruggiano

SSDI and/or SSI disability: migraine headaches, pain and stiffness in hands, swelling of joints, carpal tunnel syndrome, arthritis, foot pain and cramps, mild cervical spondylosis and disc bulges, right shoulder pain; anxiety and depression, cognitive problems—severe memory and concentration problems

Issues:

severe impairments

RFC & credibility

medical evidence and relevant time period

Excerpts:

--The ALJ erred in determining that [the Plaintiff’s] mental impairments were not severe because he improperly weighed certain medical reports and test results. The ALJ’s RFC assessment is flawed because it was based in part on a finding that [the Plaintiff’s] testimony was not credible enough to be incorporated into the RFC assessment. Yet the ALJ failed to articulate an accurate and logical reason for his determination that [the Plaintiff’s] testimony was not credible. It is also flawed because the record did not contain sufficient evidence from which the ALJ could draw reasonable conclusions as to [the Plaintiff’s] RFC during the relevant time period of January 1, 2001 to September 30, 2001. The ALJ’s RFC assessment is inconclusive for a third reason: it does not take into account the impact of [the Plaintiff’s] headaches on her ability to work, despite the fact that these headaches were found to be a severe impairment.

--When the evidence “lacks precision and focus in light of the narrow relevant time period,” an ALJ may use evidence from the surrounding time periods to draw conclusions regarding the relevant time period. Carillo Marin, 758 F.2d at 16 (citing Suarez v. Sec’y of Health & Human Servs., 740 F.2d 1, 1 (1^st Cir. 1984)). This is permitted because and ALJ is “simply not at liberty to substitute his own impressions of an individual’s health for uncontroverted medical opinion.” Id.

Cited:

Barrientos v. Sec’y of Health and Human Servs., 820 F.2d 1 (1^st Cir. 1987) (per curiam)

Ramos v. Barnhart, 60 Fed. App'x. 334 (1^st Cir. 2003)

Carrillo Marin v. Sec’y of Health & Human Servs., 758 F.2d 14 (1^st Cir. 1985)

Step 2

2011-12-07T17:31:00.001-08:00

N O v. Astrue

2011-02-09

Civil Action No. 10-30009-MAP

2011 U.S. Dist. LEXIS 13119

Affirms SSA

U.S. Judge: Michael A. Ponsor

(adopting recommendation of U.S. Magistrate Judge Kenneth P. Neiman; 2011-01-10)

ALJ: NA

SSDI and/or SSI disability: migraine headaches, depression, hand pain, low back pain due to herniations, kidney problems, history of asthma and obesity

Issues:

non-inclusion of migraine headaches and depression as severe impairments (step 2)

lack of substantial evidence for RFC

Cited:

McDonald v. Sec’y of Health & Human Servs., 795 F.2d 1118 (1^st Cir. 1986)

Bowen v. Yuckert, 482 U.S. 137 (1987)

Freeman v. Barnhart, 274 F.3d 606 (1^st Cir. 2001)

Munoz v. Sec’y of Health & Human Servs., 788 F. 2d 822 (1^st Cir. 1986)

SSR 85-28

DAA, post-hearing evidence, SSR 06-03p

2011-12-07T17:28:00.001-08:00

C R v. Astrue

2011-02-15

Civil Action No. 09cv11273-NG

Remand

U.S. Judge: Nancy Gertner

ALJ: NA; ME: Alfred Jonas; VE: Carl Barchi

SSDI and/or SSI disability: alcohol dependence in partial remission; anxiety with panic attacks;depression; suicidal ideation; low back pain; status post left ankle arthroscopy and hardware removal

Issue:

extent to which alcohol affects disability

opinions of treating providers

Excerpts:

--Because the ALJ’s conclusion that [the Plaintiff’s] alcohol dependence was a contributing factor material to his disability was not based on substantial evidence on the record, and because the ALJ failed to apply the law correctly when evaluating conflicting medical opinions, the decision of the ALJ is REMANDED for a rehearing and further consideration of the application for benefits consistent with this opinion.

--Dr. Jonas reviewed claimant's medical records and testified as a qualified medical expert. . . . He opined that, absent substance abuse, claimant was mildly-moderately impaired in activities of daily living, social functioning, and concentration, and that he possibly had experienced one episode of decompensation. . . . With substance abuse, Dr. Jonas opined that claimant's limitation in social functioning rose from moderate to marked, and that he had sustained an additional episode of decompensation. Id. at 303. Citing claimant's history and testimony regarding his continued use of alcohol, Dr. Jonas pointed out that Dr. Price’s clinical assessments did not sufficiently address the role that claimant's substance abuse played in his mental impairments and associated limitations.

--Licensed or certified psychologist, however, is only one of the many enumerated categories of profession considered to be acceptable medical source under 20 C.F.R. § 404.1513 (a) (2). In fact, Dr. Price is a licensed mental health counselor ("LMHC"), as the Massachusetts Division of Professional Licensure confirms [footnote omitted] . . . as does the Lynn Community Health Center.6 In light of this, an argument could be made that Dr. Price was one of “other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting” under 20 C.F.R. § 404.1513 (a), which in turn would qualify Dr. Price as an “acceptable medical source.” 20 C.F.R. § 404.1513 (a). As such, the defendant’s primary argument that “there is no indication that Dr. Price is a licensed or certified psychologist or any other regulatorily-defined acceptable medical source,” is flawed, undermining the attemptto discredit Dr. Price’s opinion regarding the relationship between the plaintiff’s drinking and disability.

--Defendant argues that, just because the ALJ did not explicitly cite to Dr. Price’s letter of November 24, 2008, in his decision does not necessarily mean that he did not consider it as part of Dr. Price’s overall clinical assessment. . . . Without the ALJ’s adequate justification, it is impossible to determine whether this evidence was considered and implicitly discredited or instead was simply overlooked.

--Fn. 15: The Court in Lord v. Apfel held that since “the ALJ’s decision completely failed to mention any of the posthearing evidence, it was impossible to determine whether this evidence was considered and implicitly discredited or instead was simply overlooked.” 114 F. Supp. 2d 3, 14 (D.N.H. 2000). The court concluded that the Administrative Law Judge committed legal error in failing to address a treating physician’s opinion letter in her decision, noting that while the ALJ was entitled to find this opinion “unworthy of credit, she was not entitled to find it unworthy of comment.” Id. at 15-16. In so holding, the court noted that the SSA’s regulations and directives allow for a claimant to submit additional evidence after an administrative hearing but before the ALJ renders her decision. Id. at 13.

Cited:

Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1^st Cir. 2000)

SSR 06-03p

"off the record" discussion violates due process

2011-07-12T15:40:00.000-07:00

GB v. Astrue

2011-01-21

Civil Action No. 09-30204-KPN

2011 U.S. Dist. LEXIS 7317; 161 Soc. Sec. Rep. Service 550

Remand to a different ALJ

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: degenerative spine: four damaged discs, back spasms, severe back bank; osteoarthritis of the right knee; myofascial pain syndrome; fibromyalgia; anxiety; bipolar disorder; depression

Issues:

(1) evidentiary: morbid obesity impact; treating source opinion; credibility determination—Avery factors

(2) procedural: violation of due process rights due to an “off-the-record” discussion at the outset of the hearing

Excerpts:

As Plaintiff notes, the regulations require an administrative law judge to compile a “complete record”, see 20 C.F.R. § 404.951, and failure to do so is a violation of due process. See, e.g., Roy v. Sec’y of Health & Human Servs., 512 F. Supp. 1245, 1252 (C.D. Ill. 1981) (“The administrative record must represent a full and fair hearing of the claim for disability in order to comply with the basic requirements of fairness and procedural due process.”) (citing, inter alia, Richardson, 402 U.S. at 401-02). Similarly, the Social Security Hearings Appeals and Litigation Law manual, often referred to as the “HALLEX” manual, indicates the following:

[The administrative law judge] must make a complete record of the hearing proceedings. Therefore, the ALJ or designee will make a verbatim record of the entire hearing. If a question arises during the course of a hearing which is not relevant to the issue in the claimant’s case, the ALJ may decide to discuss and resolve it off-the-record. However, the ALJ must summarize on the record the content and conclusion of any off-the-record discussion.

HALLEX, I-2-640, RECORD OF THE HEARING (emphasis added).

Here, the ALJ violated both the regulations and the HALLEX manual as the Administrative Record does not sufficiently reflect -- let alone summarize -- the off-the record discussion that occurred between Plaintiff and the ALJ.

As is obvious, contrary to the directives of the regulations and the HALLEX manual, the record does not reflect what was discussed off the record prior to the hearing regarding a “proposal” Plaintiff apparently felt pressured to “accept” in lieu of “a full hearing.”

Simply put, under any standard, such substantive off-the-record discussions regarding the possibility of settlement and whether or not a hearing, or “full hearing,” is warranted would amount to an error of law.

Cited:

Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)

recontacting treating sources

2011-05-03T13:32:00.000-07:00

AC v. Michael J. Astrue, Commissioner of the Social Security Administration 2009-01-16

U.S. D.Ct. Mass.

Civil Action No. 08-10400-DPW

2009 U.S. Dist. LEXIS 6064

Affirms SSA

U.S. Judge: Douglas P. Woodlock

ALJ: NA

SSDI and/or SSI disability: pain, subdural hematoma, right humerus fractures, left femur fractures, vertigo, memory and concentration problems, difficulty sleeping

Issues:

consideration of vertigo condition

re-contacting treating physician

credibility of pain complaints—Avery factors

Excerpts:

--The claimant did not identify vertigo as a cause of her alleged disability, and the record contained no evidence that vertigo affected her functionality.

--The ALJ has a duty to recontact the treating physician “[w]hen the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled.” 20 C.F.R. §§ 404.1512(e), 416.912(e).

--When the medical record resolves the claim, however, the Administrative Law Judge is not obligated to recontact the treating physician. Social Security Ruling 96-2P . . . (“Ordinarily, development should not be undertaken for the purpose of determining whether a treating source's medical opinion should receive controlling weight if the case record is otherwise adequately developed.”); White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (“It is the inadequacy of the record, rather than the rejection of the treating physician's opinion, that triggers the duty to recontact that physician.”). In Shaw v. Sec'y of Health and Human Servs., 25 F.3d 1037 (table only), 1994 WL 251000 (1st Cir. June 9, 1994) (per curiam), the First Circuit rejected the plaintiff's argument that the ALJ failed to recontact the treating physician.

--The First Circuit determined in an unpublished opinion that the ALJ had no duty to recontact the physician when the physician had filled out a questionnaire, articulating the basis for his opinion that the claimant was disabled. Colon v. Chater, 187 F.3d 621 (table only), 1998 WL 1085796, at *1 (1^st Cir. Sept. 30, 1998) (per curiam, unpublished).

--Despite the lack of detail on these issues in the written decision, the ALJ provided enough discussion of the Avery factors in that decision to demonstrate the basis on which he determined Cox's credibility regarding her statements of subjective pain.

Cited:

Nguyen v. Callahan, 997 F. Supp. 179(D. Mass. 1998)

Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)

Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)

Avery v. Sec'y of Health and Human Servs., 797 F.2d 19 (1st Cir. 1986)

20 C.F.R. § 404.1529(c)(3)(i)-(vii)

*A subsequent claim by the plaintiff was decided by this court on December 9, 2010. See AC v. Michael J. Astrue, Commissioner of the Social Security Administration, No. 09-12103-GAO, 2010 U.S. Dist. LEXIS 130002.

non-dominant arm

2011-04-14T17:21:00.000-07:00

MT v. Michael J. Astrue, Commissioner of the Social Security Administration

2010-12-21

Civil Action No. 10-10048-WGY

2010 U.S. Dist. LEXIS 134832

Affirms SSA

U.S. Judge: William G. Young

ALJ: NA; VE: Dr. Robert Lasky

SSDI and/or SSI disability: degloving injury to left hand, weakness in left hand, numbness in ring and small fingers, left hand gross atrophy

Issues:

one arm--non-dominant

pain—credibility

RFC

transferable skills

substantial evidence

Excerpts:

--[The plaintiff] relies on a Seventh Circuit decision holding that even if a claimant were to competently care for children and a household, such activity would not necessarily equate to an ability to work in the labor market. See Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005).

--While a claimant’s performance of household chores or the like ought not be equated to an ability to participate effectively in the workforce, evidence of daily activities can be used to support a negative credibility finding. See Berrios Lopez v. Sec’y of Health and Human Servs., 951 F.2d 427, 429 (1st Cir. 1991).

--The contrast between the numerous Occupational Therapy Progress Notes, which rated [plaintiff’s] pain as 2 or 3 out of 10, and her testimony of constantly being in pain rated at an 8 out of 10, supports the negative credibility finding. See Arruda v. Barnhart, 314 F. Supp. 2d 52, 76 n.24 (D. Mass. 2004) (Bowler, M.J.). . . .

--The fact that [plaintiff] took medication no stronger than Motrin further supports discrediting her assertion of disabling pain. See Albors v. Sec’y of Health and Human Servs., 817 F.2d 146, 147 (1st Cir. 1986).

--[Plaintiff] notes that the transferable work skills identified by the hearing officer are beyond those identified by the vocational expert. This incongruence does not alter the fact that there are jobs in the national labor market that [plaintiff] is capable of performing. The error is harmless . . . .

--The loss, or loss of use, of an arm or hand, however, is not disabling per se. See Social Security Ruling 83-12; see also Odle v. Sec’y of Health and Human Servs., 788 F.2d 1158, 1161 (6th Cir. 1985).

--[Plaintiff] claims she is not capable of doing the surveillance system monitoring because she is unable to communicate in English. . . . noting that the hearing officer declared her illiterate. . . . The record indicates, however, that while [plaintiff] may have trouble writing in English, she is perfectly competent in speaking and understanding the language.

subjective complaints

2011-04-13T19:48:00.001-07:00

AC v. Michael J. Astrue, Commissioner of the Social Security Administration*

2010-12-09

Civil Action No. 09-12103-GAO

2010 U.S. Dist. LEXIS 130002

Affirms SSA

U.S. Judge: George A. O’Toole, Jr.

ALJ:

SSDI and/or SSI disability: residuals of a motor vehicle accident: fractured left femur, intramedullary rod inserted in the femur, fractured right humerus, right fronto-parietal subdural hematoma; obesity

Issues:

substantial evidence

treating physician’s opinion

Excerpts:

--Since [plaintiff’s] attorney did not anchor his questions to the VE in terminology found in the medical records in evidence, the ALJ did not commit an error by choosing to disregard the response given by the expert.

--In declining to accept Dr. Heacox’s opinion as to disability, the ALJ noted that Dr. Heacox’s first letter contained no function-by-function analysis of [plaintiff’s] physical abilities, and did not correlate with the largely normal findings of her physical examination, and that his second letter similarly contained no function-by-function analysis and did not cite any objective findings.

--[Plaintiff] argues that the ALJ is not allowed to disregard the treating physician’s opinion as insufficient, unsupported, or ambiguous without requesting clarification of the basis of the rejected opinion. See 20 C.F.R. §§ 404.1512(e), 416.912(e). However, these regulations only require the ALJ to request additional clarifying information from a physician if the information originally provided by the doctor is found to be inadequate to determine whether the applicant is disabled. 20 C.F.R. §§ 404.1512(e), 416.912(e).

--Dr. Heacox credited [plaintiff’s] subjective complaints. The ALJ was not required to do the same.

*A prior claim by the plaintiff was decided by this court on January 16, 2009. See AC v. Michael J. Astrue, Commissioner of the Social Security Administration, No. 08-10400-DPW, 2009 U.S. Dist. LEXIS 6064.

non-treating doctors' opinions

2011-04-13T19:47:00.000-07:00

RP v. Michael J. Astrue, as he is Commissioner, Social Security Administration

2010-12-01

Civil Action No. 09-12171-WGY

2010 U.S. Dist. LEXIS 127165

Affirms SSA

U.S. Magistrate Judge: William G. Young

ALJ: Stephen C. Fulton

SSDI and/or SSI disability: bipolar disorder, antisocial personality disorder, memory loss

Issues:

RFC

treating psychiatrist’s opinion

Excerpts:

--A hearing officer “may reject a treating physician’s opinion as controlling if it is inconsistent with other substantial evidence in the record, even if that evidence consists of reports from non-treating doctors.” Castro v. Barnhart, 198 F. Supp. 2d 47, 54 (D. Mass. 2002) (Ponsor, J.); see also C.F.R. § 404.1527(d)(4). If a hearing officer decides not to give controlling weight to the opinion of a treating physician, he must “give good reasons in [the] notice of determination or decision for the weight [given to the] treating source’s opinion.” 20 C.F.R. § 404.1527(d)(2).

--The only records of Dr. Colella’s treatment of [plaintiff] covered the period from February 2004 to January 2006, entirely before the period relevant to this claim for benefits, which commenced in April 2006. Even these treatment records do not contain objective medical evidence that would support Dr. Colella’s opinion that [plaintiff] suffered marked social impairments. Moreover, Dr. Colella’s opinion was inconsistent with the objective medical evidence that did exist, including the group therapy notes from 2005 to 2007 . . . .

--The record as a whole supports the hearing officer’s decision to give more weight to the opinions of Drs. Hurd, Maliszewski, and Burke than to the opinion of Dr. Colella.

--[T]he hearing officer’s determination, as part of his finding of [plaintiff’s] residual functioning capacity, that [plaintiff] “could interact appropriately with coworkers and supervisors” was supported by substantial evidence and must be affirmed.

--The hearing officer’s reliance on the first hypothetical was proper because it corresponded to his determination of [plaintiff’s] residual functional capacity, which was supported by substantial evidence, as discussed above.

Cited:

Espada Rosado v. Comm’r of Soc. Sec., 25 Fed. App’x 5, 6 (1^st Cir. 2001) (per curiam)

child's case--failure to follow treatment

2011-04-13T19:46:00.000-07:00

PL v. Michael J. Astrue, Commissioner of the Social Security Administration

2010-11-29

Civil Action No. 09-30231-KPN

2010 U.S. Dist. LEXIS 127140

Affirms SSA

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: Child’s SSI: asthma. allergies, bipolar disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, conduct disorder

Issues:

substantial evidence

Excerpts:

--Here, not only did the ALJ recognize the evidence before him but, as well, more than adequately explained his reasons for giving some of that evidence less weight. . . . For example, the ALJ gave greater weight to the views of Dr. Storey and a “Dr. Leavitt,” who he identified as a psychiatrist at Gandara, for their consistency with one another as well as with the bulk of the evidence in the case. . . . In turn, the ALJ gave little weight to the social worker Ms. Rivera-Cotto’s views which, at least in part, were based on L.J.L.’s self reported hallucinations, experiences he had denied to others. . . . The ALJ also found Ms. Rivera-Cotto’s GAF score inexplicably inconsistent with those of Drs. Storey and Leavitt. . . . Given the thoroughness of the ALJ’s analysis, it is not the place of this court to “re-weigh the evidence or substitute its judgment for that of the Commissioner.” Colon v. Sec’y of Health & Human Servs., 877 F.2d 148, 153 (1st Cir. 1989).

--[T]he ALJ recognized that L.J.L. suffers from asthma, as Plaintiff asserted, and had been treated on several occasions during the years prior to the hearing. . . . L.J.L.’s doctors characterized his asthma as “mild” or “moderate” . . . and often noted that he was doing “well,” “quite well,” or “fantastically well” . . . . L.J.L.’s ability to engage in physical activities including basketball, baseball and football -- further demonstrated his general well-being. . . . In addition, the medical records show that L.J.L. did not need intensive medical care to maintain his level of health and physical well-being.

--In contrast, exacerbations of L.J.L.’s asthma generally resulted from his failure to follow prescribed treatment.

--See Johnson v. Astrue, 563 F. Supp. 2d 444, 460 (S.D.N.Y. 2008) (asthma does not result in marked impairment when severity and frequency of acute episodes are reduced with medication).

Cited:

Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)

Rappaport v. Sullivan, 942 F.2d 1320, 1323 (8th Cir.1991)

subsequent evidence--step 2 finding

2011-04-12T18:21:00.000-07:00

BC v. Michael J. Astrue, Commissioner of Social Security Administration

2010-10-20

Civil Action No. 09-30217-KPN

2010 U.S. Dist. LEXIS 113627

Remand

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: migraine headaches, neck and back pain, depression, anxiety, sleep problems

Issues:

step 2 finding

Excerpts:

--The First Circuit has found that step two of the protocol poses only a “de minimis” hurdle, i.e., it is “designed to do no more than screen out groundless claims.” McDonald v. Sec’y of Health & Human Servs., 795 F.2d 1118, 1122 (1st Cir. 1986). Accordingly, the First Circuit explained, a finding of “non-severe” is only appropriate where “medical evidence establishes only a slight abnormality . . . which would have no more than a minimal effect on an individual’s ability to work.” Id. at 1124 (citing Social Security Ruling (“SSR”) 85-28 . . . . For several reasons, this is not such a case.

--The ALJ discounted Plaintiff’s mental impairments by simply saying they are “not credible.” . . . . But even the ALJ noted that “[r]elevant medical reports show that [Plaintiff] was maintained on low dose antidepressant medication” during the relevant time period; that “[s]he complained of depression in March 1987, and of difficulty sleeping due to tension in April 1987”; that she was subsequently “advised to stop taking Elavil because she was trying to get pregnant,” but was then “given a limited prescription for Tranxene”; that “she was admonished to attend a stress reduction course; and that “[s]he requested counseling in March 1988.” . . . . Perhaps the ALJ was attempting to fulfill his obligation of reviewing the entire record. See, e.g., 20 C.F.R. §§ 404.1529(c)(1) (“In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence, including your history, the signs and laboratory findings, and statements from you, your treating or nontreating source, or other persons about how your symptoms affect you.”) and (c)(4) (similar)). However, in this court’s view, that review should have led to the conclusion as a matter of law that Plaintiff’s mental impairments at least met the de minimis severity standard.

--In addition, a thorough examination of the entire record would have indicated to the ALJ that Plaintiff had struggled with issues regarding her mental health for much of her entire adult life, even before the relevant dates.

--The record also reveals difficulties related to Plaintiff’s mental health after the date she was last insured.

--To be sure, this subsequent evidence has no direct bearing on the three-year period at issue; but it helps frame the severity issue for that part of Plaintiff’s past. Cf. Ivy v. Sullivan, 898 F.2d 1045, 1048-49 (5th Cir. 1990) (noting court’s reluctance to “unfairly penalize those claimants who, through no fault of their own, cannot produce contemporaneous medical records”).

sufficiency of medical evidence

2011-04-12T18:20:00.000-07:00

SR v. Commissioner Michael J. Astrue

2010-10-13

Civil Action No. 09-30163-MAP

2010 U.S. Dist. LEXIS 109449 (order); 2010 U.S. Dist. LEXIS 109446 (report and recommendation)

Affirms SSA

U.S. Judge: Michael A. Ponsor

(adopting recommendation of U.S. Magistrate Judge: Kenneth P. Neiman; 2010-09-02)

ALJ: NA

SSDI and/or SSI disability and child’s insurance disability benefits: obesity, bursitis in the left hip, scoliosis, urological problems, shoulder and knee pain, anxiety, depression

Issues:

step 2 analysis

effects of obesity

substantial evidence

Excerpts:

--[T]he ALJ pointed to the lack of evidence in the medical record that these asserted problems imposed any functional limitations that would interfere with Plaintiff’s ability to work.

--Cf. Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (viewing gaps in medical treatment as evidence that claimant’s pain was not as severe as alleged).

--Plaintiff also claims that the ALJ failed to articulate at step 2 of the protocol the degree to which her obesity compounded the effects of her other impairments. However, as the Commissioner argues, this failure, if failure it was, was harmless because implicit in his finding that Plaintiff’s obesity was severe was the fact that it had more than a minimal effect on her ability to do basic work activities. See SSR 02-01P (2002) (obesity will be deemed a severe impairment “where alone of in combination with another medically determinable physical or mental impairment(s), it significantly limits an individual’s physical or mental ability to do basic work activities”).

--Most notably, the ALJ was not presented with sufficient objective medical evidence of these impairments from valid medical sources.

--The ALJ also pointed to two apparent contradictions between Plaintiff’s description of her limitations and other evidence of record.

Cited:

Keefe v. Astrue, 2009 WL 5216059, at *4 n.2 (D. Me. Dec. 29, 2009)

extended decomposition

2011-04-12T15:40:00.001-07:00

EH v. Michael J. Astrue, Commissioner of Social Security

2010-09-30

Civil Action No. 09-cv10900-NG

2010 U.S. Dist. LEXIS 104917

Affirms SSA

U.S. Judge: Nancy Gertner

ALJ: NA; VE: Steven Sacks

SSDI and/or SSI disability: depression, anxiety, post-traumatic stress disorder

Issues:

hypothetical question—medical limitation

treating physician’s opinion

Excerpts:

--The ALJ concluded that [plaintiff] had experienced only mild or moderate restrictions on activities, social function and concentration and had never had an episode of extended decomposition.

--[T]he symptoms and limitations of the first hypothetical claimant presented to the VE did not include extended episodes of decompensation because [plaintiff], who bore the burden of proof, failed to make a successful showing of the existence of at least three episodes within a year, each lasting 14 days. 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00(C)(4). [Fn. omitted.]

--[T]he First Circuit has recognized that when a treating doctor’s opinion is poorly supported or inconsistent with other substantial evidence, “the requirement of ‘controlling weight’ does not apply.” See Shaw v. Sec'y of Health & Human Servs., 25 F.3d 1037, No. 93-2173, 1994 WL 251000, at *3 (1st Cir. June 9, 1994) (table decision); Berrios-Velez v. Barnhart, 402 F. Supp. 2d 386, 391 (D.P.R. 2005).

--The ALJ found that while each episode of hospitalization was an “episode of decompensation,” none of these episodes was “of extended duration,” since no hospitalization lasted more than three days.

Cited:

Green v. Astrue, 588 F. Supp. 2d 147, 155 (D. Mass. 2008)

Dudley v. Sec’y of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987)

no medical assessment of RFC

2011-04-12T15:39:00.001-07:00

MC v. Michael J. Astrue, Commissioner of Social Security

2010-09-30

Civil Action No. 09-cv10502-NG

2010 U.S. Dist. LEXIS 104973, 157 Soc. Sec. Rep. Service 747

Remand

U.S. Judge: Nancy Gertner

ALJ: NA

SSDI and/or SSI disability: chronic headaches, frequent migraines, depression, anxiety, fagtigue, pain

Issues:

credibility

treating physician’s opinion

Excerpts:

--The ALJ based her credibility determination on narrow grounds: She found that [plaintiff’s] reported pain and limitations were inconsistent with her reported activities. Substantial evidence does not support this conclusion. While there may be other inconsistencies on the record to support an adverse credibility determination, the ALJ's findings should be evaluated based on the evidence and rationale the ALJ presented. See Larlee, 694 F. Supp. 2d at 84. The ALJ’s improper credibility determination requires remand for a credibility determination consistent with the record.

--Although the ALJ made the proper inquiry into [plaintiff’s] pain, she improperly concluded from this inquiry that [plaintiff] was not fully credible.

--A fair characterization of [plaintiff’s] activities would note that she reported engaging in these activities on "good days" . . . .

--See Nguyen v. Chater, 172 F.3d 31, 36 (1st Cir. 1999) (finding that a general reference to "driving" as an activity does not itself discredit claims of incapacitating back pain when the Administrative Law Judge did not know how often or how recently the claimant drove); Rohrberg v. Apfel, 26 F. Supp. 2d 303, 308-09 (D. Mass. 1998) (finding that ALJ improperly drew conclusions about plaintiff's credibility and RFC by failing to make a substantial enough inquiry into reported daily activities to adequately explain "their reflection on functional abilities"); Waters v. Bowen, 709 F. Supp. 278, 284 (D. Mass. 1989) (noting that performing household chores and errands, especially on an intermittent basis, is unlikely to be substantial evidence of the capacity to engage in sustained activity that undermines a claim of disabling pain).

--An ALJ’s RFC determination usually must be supported by a medical assessment of the claimant’s functional capacity. Rodriguez v. Sec'y of Health & Human Servs., 893 F.2d 401, 403 (1st Cir. 1989) ("Where the record is bereft of any medical assessment of residual functional capacity, this court has found a lack of substantial evidence to support a finding that exertional impairments are not disabling, since the ALJ is not qualified to assess residual functional capacity on the basis of bare medical findings.") . . . .

--If the ALJ does not give controlling weight to the treating physician, he must always provide a good reason. 20 C.F.R. § 404.1527(d)(2).

--The ALJ's deference to Dr. Colb's terse functional assessment is troubling.

--See Berrios Lopez v. Sec'y of Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991) (stating that functional assessments by non-examining physicians that consist of checking off boxes relating to functional abilities and provide no explanations for these findings ordinarily are entitled to little weight). . . . Without an adequate medical opinion on the record, the ALJ was obligated to seek a sufficiently credible and specific medical opinion in order to evaluate [plaintiff’s] disability claim. See 20 C.F.R. § 404.1512 (2010).

Cited:

Larlee v. Astrue, 694 F. Supp. 2d 80; 2010 U.S. Dist. LEXIS 24069; 154 Soc. Sec. Rep. Service 38 (D. Mass. 2010) (2010-03-15, Civil Action No. 08-CV-12113-JLT)

significant number of jobs

2011-04-06T17:23:00.001-07:00

MC v. Michael J. Astrue, Commissioner Social Security Administration

2010-09-27

Civil Action No. 07-11876-MLW

2010 U.S. Dist. LEXIS 102738

Affirms SSA

U.S. Judge: Mark L. Wolf

ALJ: Barry H. Best

SSDI and/or SSI disability: right elbow injury, lupus, fibromyalgia, depression

Issues:

limited vs. marginal education

credibility

significant numbers of jobs

Excerpts:

--Plaintiff received a sixth grade education in her native Portugal. . . . She also attended night school in the United States and is able to read and write English. Id. Her employment history includes semiskilled work as a stitcher in a textile mill. . . . In view of the foregoing, the ALJ's finding that plaintiff had "limited" education was justified.

--A reasonable person could decide that, based on the disparity between plaintiff's testimony and the objective medical findings, plaintiff was not credible. . . . The ALJ also made the necessary specific findings as to much of the relevant evidence considered in determining to disbelieve plaintiff.

--"The First Circuit has offered no magic number or test to determine what minimum number of jobs is necessary for the [Social Security Administration] to meet its burden." Racicot v. Astrue, C.A. No. 04-11556-RWZ, 2007 WL 2712488, at *6 (D. Mass. Sept. 4, 2007). Other courts have split on this issue, depending on differing factual circumstances. Compare Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th cir. 1988) (finding 500 jobs in claimant's local area to constitute a significant number), with Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988) (finding 1350 to 1800 jobs in local region not to constitute a significant number). Factors to consider include: "the level of claimant's disability; the reliability of the vocational expert's testimony; the reliability of the claimant's testimony; the distance claimant is capable of travelling [sic] to engage in the assigned work; the isolated nature of the jobs; the types and availability of such work, and so on." Racicot, 2007 WL 2712488, at *6 (quoting Hall, 837 F.2d at 275)).

--In this case, the vocational expert's testimony was not disputed by any other expert, and the number of approximate jobs she opined were available was not contradicted by any evidence in the record.

Cited:

20 C.F.R. § 404.1564

Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1^st Cir. 1981)

Da Rosa v. Sec’y of Health & Human Servs., 803 F.2d 24 (1^st Cir. 1986)

RFC without expert opinion

2011-04-06T13:32:00.000-07:00

FB v. Michael J. Astrue, as he is Commissioner, Social Security Administration

2010-09-24

Civil Action No. 09-12005-WGY

2010 U.S. Dist. LEXIS 101617

Remand

U.S. Judge: William G. Young

ALJ: NA; VE: Edmund Calandra

SSDI and/or SSI disability: major depressive disorder, recurrent

Issues:

ALJ’s RFC without expert opinion

Excerpts:

--A hearing officer, as a lay person, generally is not qualified to interpret raw medical data to determine a claimant’s RFC. Manso-Pizarro, 76 F.3d at 17. If a claimant has put her functional capacity sufficiently at issue, the hearing officer is obliged to measure the claimant’s relevant capabilities and “to make that measurement, an expert’s RFC evaluation is ordinarily essential.” Id. (quoting Santiago v. Sec’y of Health & Human Servs., 944 F.2d 1, 7 (1st Cir. 1991)). Thus, a hearing officer’s determination of a claimant’s RFC made without any assessment of RFC by an expert is unsupported by substantial evidence and must be remanded to obtain further functional evidence. See Perez v. Sec’y of Human & Health Servs., 958 F.2d 445, 446 (1st Cir. 1991) (per curiam). Where the record is devoid of an expert’s determination of RFC, however, the hearing officer is not precluded from rendering “common-sense judgments about functional capacity based on medical findings, as long as [he] does not overstep the bounds of a lay person’s competence and render a medical judgment.” Gordils v. Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990).

--Here, an expert’s assessment of [plaintiff’s] RFC is not completely absent from the record. . . . The hearing officer made it clear, however, that he did not base his decision on either of these two opinions . . . .

--It thus can be concluded that the hearing officer’s determination of [plaintiff’s] RFC was made without relying on an assessment of RFC by an expert. This Court must therefore evaluate whether the evidence suggests to a lay person that [plaintiff’s] impairments are mild and pose no significant functional restrictions. See Manso-Pazarro, 76 F.3d at 17-18.

--[T]he hearing officer determined that [plaintiff] was able to understand and remember simple instructions, able to concentrate for two-hour periods over an eight-hour day on simple tasks, interact appropriately with coworkers and supervisors, and adapt to changes in her work setting. . . . This conclusion was not obvious from the raw medical data, but required an interpretation from one with more skill than a layperson. The hearing officer was not properly qualified to make this determination about [plaintiff’s] RFC without the aid of an expert. See Roberts v. Barnhart, No. 02-2349, U.S. App. LEXIS 12694 at **4, **5 (1st Cir. June 30, 2003) (per curiam) (holding an expert mental RFC assessment was required, despite evidence that claimant’s mental abilities were intact, due to evidence that claimant had difficulties with maintaining attendance, following through with a schedule, and leaving the house while depressed); Rivera-Figueroa, 858 F.2d 48, 52 (1st Cir. 1988) (“Absent a residual functional capacity assessment from an examining psychiatrist, we do not think the [hearing officer] was equipped to conclude that the claimant’s condition was so trivial as to impose no significant limitation on ability to work.”); Sanabria v. Astrue, No. 06-11380, 2008 WL 2704819, at *5 (D. Mass. July 9, 2009) (Gertner, J.) (holding claimant’s “symptoms were too complex and too prone to fluctuation to permit a common-sense lay assessment of her mental RFC”). Thus, the hearing officer’s decision is unsupported by substantial evidence readily verifiable on the record as it stands.

Cited:

Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15 (1^st Cir. 1996)

child's case-- functional equivalence

2011-04-05T08:07:00.000-07:00

J.B. v. Michael J. Astrue, as Commissioner of the Social Security Administration

2010-09-17

Civil Action No. 08-11698-NMG

2010 U.S. Dist. LEXIS 98194

Affirms SSA

U.S. Judge: Nathaniel M. Gorton

ALJ:

SSDI and/or SSI disability: Child’s SSI: asthma

Issues:

treating source opinion

Excerpts:

--[T]he ALJ was not obliged to assign controlling weight to the opinion of Dr. Moths- Rebrovic. See Berrios Lopez, 951 F.2d at 431. Instead, the Administrative Law Judge properly relied on the opinions of two state-agency consulting examiners . . . which the ALJ found consistent with the record as a whole.

--No treating source, however, has explicitly identified “extreme” or “marked” limitations, nor does the record indicate that J.B. has experienced the requisite number of asthma exacerbations in the period preceding the July 1, 2005, cessation date.

--[T]he notes plaintiff cites from Dr. Moths-Rebrovic either post-date the cessation date or were not presented to the ALJ, rendering them beyond the proper scope of the Court’s review of the ALJ’s decision.

--[E]ven if the ALJ erred in determining that J.B. did not suffer marked limitations in the domain of health and physical well-being, his error was harmless unless plaintiff can show that J.B. suffered marked limitations in another domain as well.

--An ALJ is permitted to “render[] common-sense judgments about functional capacity based on medical findings.” Gordils v. Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990) (per curiam). Indeed, if he were required to adopt the opinion of all qualified experts perfunctorily, he could not possibly fulfill his duty to consider and weigh all of the evidence in the record. See 20 C.F.R. § 416.927(e)(2)(reserving the ultimate determination of functional equivalence for the Commissioner); accord Evangelista, 826 F.2d at 144.

Cited:

20 C.F.R. § 416.926a(b)(1)(i)-(vi)

20 C.F.R. § 416.994a(b)(1)-(3)

Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427 (1^st Cir. 1991)

Evangelista v. Sec’y of Health and Human Services, 826 F.2d 136(1^st Cir. 1987).

Avery requirements

2011-04-05T07:20:00.000-07:00

AM v. Michael J. Astrue, Commissioner of Social Security

2010-09-16

Civil Action No. 09-10149-PBS

2010 U.S. Dist. LEXIS 97217;157 Soc. Sec. Rep. Service 207

Remand

U.S. Judge: Patti B. Saris

ALJ: Martha Bower; ME: Dr. Stephen Kaplan; VE: Michael Laraia

SSDI and/or SSI disability: degenerative disc disease, depression, anxiety

Issues:

substantial evidence

credibility

Excerpts:

--[Dr. David E. Adelberg, an orthopedist] found that plaintiff’s back had limited range of motion and exhibited spasm, list, and tenderness. . . . diagnosed symptomatic spondylolysis

--[A]n MRI of plaintiff’s back on March 1, 2007, which revealed grade 1 anterolisthesis and spondylolysis of plaintiff’s L5 vertebra, as well as small diffuse bulges in several of his other intervertebral discs and mild compression of the L3 and L4 nerve roots. . . .

--Dr. Matthew Philips, a neurologist [January, 2008] . . . . His impression was that [plaintiff] had “mechanical back pain due to his degenerative lumbar disc disease as well as his spondylolisthesis.”

--Dr. Kaplan testified that he could not identify any specific medical disease recorded by plaintiff’s physicians over the period from 1996 to 2007 . . . .

--[A] plaintiff’s statements regarding the intensity and persistence of his pain and its impact on his ability to work will not be rejected solely because they are not substantiated by the available objective medical evidence. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).

--The regulations recognize that a person’s symptoms may be more severe than the objective medical evidence suggests. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

--Although the ALJ’s credibility determination generally is entitled to deference, “an ALJ who does not believe a claimant’s testimony regarding his pain, ‘must make specific findings as to the relevant evidence he considered in determining to disbelieve the [claimant].’” Makuch, 170 F. Supp. 2d at 126 (quoting Da Rosa v. Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986) (alterations in original)).

--Here, there is no dispute that plaintiff has a severe impairment that can reasonably be expected to produce the pain alleged, yet the ALJ failed to address these Avery factors in explaining her decision to discredit plaintiff’s claims as to the intensity of his pain.

--The Avery factors, moreover, are based explicitly on the presumption that a claimant’s symptoms may be more severe than the objective evidence suggests, and the regulations require the ALJ to consider them and not to reject a plaintiff’s claims simply because of inconsistency with the objective medical evidence. 20 C.F.R. §§ 404.1529(c)(2)-(3).

--In light of his consistent medical history, the ALJ’s discussion of plaintiff’s complaints of pain was woefully inadequate.

Cited:

Makuch v. Halter, 170 F. Supp. 2d 117 (D. Mass. 2001)

Avery factors considered at hearing

2011-04-05T07:19:00.000-07:00

TD v. Michael J. Astrue, Commissioner of Social Security Administration

2010-09-09

Civil Action No. 09-cv-30173-MAP

2010 U.S. Dist. LEXIS 94069

Affirms SSA

U.S. Judge: Michael A. Ponsor (adopting report and recommendation of U.S. Magistrate Judge: Kenneth P. Neiman; 2010-08-02)

ALJ: NA

SSDI and/or SSI disability: myofacial pain syndrome, back, neck, shoulder, leg, hip pain, back spasms, back pain radiating to the leg, sacroiliac and lumbar strain, anxiety, depressive disorder

Issues:

severity of mental impairments (step 2)

credibility—subjective complaints of pain

substantial evidence – RFC

Excerpts:

--[T]he First Circuit explained, a claimant always has the burden of providing medical evidence demonstrating the severity of her condition. McDonald, 795 F.2d at 1122. See also Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001); 20 C.F.R. §§ 404.1520(a)(4)(2), 416.920(a)(4)(2).

--[A] claimant must show that her impairment has more than a minimal effect on her ability to do basic work activities. See Munoz v. Sec’y of Health & Human Servs., 788 F.2d 822, 823 (1st Cir. 1986); 20 C.F.R. §§ 404.1520(c), 416,920(c); Social Security Ruling (“SSR”) 85-28.

--The only evidence in the medical record of any mental health difficulties affecting Plaintiff’s ability to work was the Mental Residual Functional Capacity Assessment that Ms. Ralicki prepared the day of the administrative hearing.

--Here, however, the assessment came from a nurse practitioner, not a physician, and was not entitled to the decisive weight Plaintiff proposes. See 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1); Peterson v. Astrue, 2009 WL 1687812, at *2 (D.N.H. June 12, 2009) (noting that a nurse practitioner is not an acceptable medical source for establishing an impairment or determining severity but may be considered insofar as she might establish a context for opinions from acceptable sources).

--Here, Plaintiff’s subjective complaints of a mental impairment were quite sparse. . . . Finally, Plaintiff’s testimony before the ALJ was, at best, inconsistent . . . .

--Here, the court is satisfied that the record as a whole demonstrates sufficient consideration of the Avery factors at the administrative hearing. See Cox v. Astrue, 2009 WL 189958, at *10 (D. Mass. Jan. 16, 2009) (“Despite the lack of detail on these issues in the written decision, the ALJ provided enough discussion of the Avery factors in that decision to demonstrate the basis on which he determined [the claimant’s] credibility regarding her statements of subjective pain”).

--See also Cox, 2009 WL 189958, at *10 (the ALJ was not required to demonstrate specific consideration of each of the Avery factors in his decision, so long as the record as a whole shows that he considered them). Here, the ALJ’s decision in the case at bar was sufficiently comprehensive.

Cited:

McDonald v. Sec’y of Health & Human Servs., 795 F.2d 1118, 1122 (1st Cir. 1986)

Bowen v. Yuckert, 482 U.S. 137, 146 (1987)

Ann Cox v. Michael J. Astrue, Commissioner of the Social Security Administration, Civil Action No. 08-10400-DPW, 2009 WL 189958, 2009 U.S. Dist. LEXIS 6064 (D. Mass. Jan. 16, 2009)

affirmative duty to fill gaps in record

2011-04-04T11:10:00.000-07:00

CB v. Michael J. Astrue, Commissioner Social Security Administration

2010-08-11

Civil Action No. 08-11812-RGS

2010 U.S. Dist. LEXIS 80899; 155 Soc. Sec. Rep. Service 653

Remand

U.S. Judge: Richard G. Stearns

ALJ: Gerald Resnick

SSDI and/or SSI disability: depression, multiple sclerosis

Issues:

onset date

opinion of agency medical expert

credibility

Excerpts:

--The ALJ is not required to accept a claimant’s subjective complaints at face value. Avery v. Sec’y of Health & Human Servs., 797 F.2d 19, 22-23 (1st Cir. 1986); 20 C.F.R. § 404.1529. He must, however, state specific reasons for questioning a claimant’s credibility. DaRosa v. Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986). [Footnote below.]

--[Fn. 9] “[A] Court will not save [a] decision by inserting the basis for a finding where there was not substantial evidence to support it and no specific finding justifying it as a rational result.” Rohrberg v. Apfel, 26 F. Supp. 2d 303, 310 (D. Mass. 1998).

--[Plaintiff] does not argue that her multiple sclerosis should affect the onset date of her claims of mental impairment. Rather, [plaintiff] contends that “[w]ith the diagnosis of multiple sclerosis, her difficulties standing, walking, using a cane/walker and headaches are within the normal disease process and very credible.”

--The SSA has issued guidance on the determination of onset dates for conditions like multiple sclerosis. . . . SSR 83-20 . . . .

--Where the medical evidence is inadequate to support a reliable determination of disability, the Commissioner has an affirmative obligation to insure that gaps in the record are filled. This is not a matter of discretion, but a duty imposed by the implementing regulations. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001).

Cited:

Carmichael v. Bowen, 1990 WL 136120, at *3 (6th Cir. Sept. 20, 1990)

legal standard

2011-04-04T11:09:00.000-07:00

JB v. Michael J. Astrue, Commissioner of the Social Security Administration

2010-07-30

Civil Action No. 09-10804-WGY

729 F. Supp. 2d 474, 2010 U.S. Dist. LEXIS 77258

Remand

U.S. Judge: William G. Young

ALJ: NA; VE: Robert G. Lasky

SSDI and/or SSI disability: thoracic and lumbar degenerative disc disease, asthma, lung disease

Issues:

opinion of treating physician

Excerpts:

--In cases where a treating physician’s opinion is not given controlling weight, the Commissioner must determine the amount of weight to give to such an opinion based on: the length of the treatment relationship, the nature and extent of the treatment relationship, the amount of relevant evidence cited to support the opinion, the consistency of the opinion with the record as a whole, and the specialization of the physician. [20 C.F.R. § 404.1527(d)(2)]. In such situations, the Commissioner must “give good reasons in [the] notice of determination or decision for the weight [given to the] treating source’s opinion.” Id.

--Here, the hearing officer failed to follow the above mandates. While he allowed [plaintiff] to submit Dr. Karchere’s letter after the hearing, the written decision seems to suggest that the hearing officer never reviewed or considered this letter in determining that [plaintiff] was not disabled.

--The hearing officer here, however, did not merely fail to mention a piece of evidence in the record, but rather affirmatively denied reviewing any medical opinion from [plaintiff's] treating physician.

--Further, even were Dr. Karchere’s medical opinion undeserving of controlling weight, the Social Security Regulations require the hearing officer to consider the treating physician’s opinion, expressly determine the amount of weight to attribute to it based on the factors outlined above, and give good reasons in the decision for the weight attributed to the opinion. 20 C.F.R. § 404.1527(d)(2). Because the hearing officer in this case failed to follow these procedures, it is impossible for the Court to determine whether he neglected to consider Dr. Karchere’s letter at all or whether he found it undeserving of great weight because it was inconsistent with substantial evidence in the record.

--As the Second Circuit has stated, “[w]here there is a reasonable basis for doubt whether the[hearing officer] applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). Thus where, as here, the hearing officer fails to follow the proper legal standard, the Court will not utilize the substantial evidence test to uphold the decision.[Fn. omitted.]

Cited:

Colon v. Comm’r of Soc. Sec., 245 F. Supp. 2d 395, 398 (D.P.R. 2003)

mental RFC from examining psychiatrist absent

2011-03-31T15:31:00.000-07:00

DC v. Michael J. Astrue, as he is Commissioner, Social Security Administration

2010-07-29

Civil Action No. 09-10875-WGY

726 F. Supp. 2d 36; 2010 U.S. Dist. LEXIS 79029

Remand

U.S. Judge: William G. Young

ALJ: NA

SSDI and/or SSI disability: bilateral foot bunions, status post right foot surgery (2005), hammertoe deformities, Morton’s type neuroma on the right foot, attention deficit disorder, anxiety disorder, short term memory problems

Issues:

ALJ’s RFC made without input from medical expert opinion

Excerpts:

--An expert’s assessment of [plaintiff's] RFC, either physical or psychological, is completely absent from the record. Thus, this Court must evaluate whether the evidence clearly suggests that [plaintiff's] impairments are mild and pose to the lay person no significant functional restrictions.

--Even with such evidence of pain and physical impairment, however, the record as a whole clearly demonstrates to any lay person employing common sense judgments that [plaintiff] suffers from no significant exertional impairments precluding her ability to perform sedentary work.

--[Fn. 7] This Court, however, would be hesitant to reach the same conclusion as to whether [plaintiff] is functionally capable of performing a full range of light, let alone medium, work. See 20 C.F.R. § 404.1567(b) (requiring frequent lifting, walking, and standing). It would blur the line between common sense and medical judgment to decipher the lengthy medical record, rampant with numerous doctor’s notations, to determine that [plaintiff] is capable of frequently lifting ten pounds of weight and walking and standing a great deal. Cf. Gordils, 921 F.2d at 329 (“Although we think it permissible for the Secretary as a layman to conclude that a ‘weaker back’ cannot preclude sedentary work, we would be troubled by the same conclusion as to the more physically demanding light work.”).

--[T]his Court finds ample evidence that [plaintiff] is fully capable of sitting, walking and standing occasionally, and lifting a restricted amount of weight periodically. Accordingly, the hearing officer properly made a common sense, and not medical, judgment that [plaintiff] has the RFC to perform her past sedentary job as a receptionist, which requires her to sit “most of the time” with only “brief periods” of walking or standing.

--This Court, however, must also consider whether [plaintiff's] psychological impairments inhibit her ability to be gainfully employed as a receptionist.

--[Plaintiff] has proffered evidence to raise significant question as to her mental capability to perform the minimum level of unskilled work.

--The hearing officer, despite finding that [plaintiff] suffered “moderate difficulties” with concentration, persistence, and pace, abruptly concluded that “[t]here is no evidence in the record which establishes that the claimant has any significant limitations.” . . . The hearing officer was not properly qualified to so conclude without the aid of an expert.

--[T]here is no medical opinion on record that connects [plaintiff's] mental condition – improved or not – to her functional ability to perform any sort of employment. [Fn. 11 infra.] The closest the record comes to doing so is with Dr. McKenna’s psychiatric review technique, finding [plaintiff] suffered from only mild limitations in activities of daily living, maintaining social function, concentration and persistence, and pace. . . . This, however, is certainly not the equivalent of a RFC assessment and is not to be relied upon in the fourth step of the disability analysis. See . . . 61 Fed. Reg. 34474, 34477 (July 2, 1996) (“Soc. Sec. Ruling 96-8p”) (“The adjudicator must remember that the limitations identified in [a psychiatric review technique] are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment.”); see also Sanabria, 2008 WL 2704819, at *6. Rather, a psychiatric review technique is used to determine, at step two, whether impairments are severe and consists of only brief, undetailed, and unexplained conclusions. See Soc. Sec. Ruling 96-8p, 61 Fed. Reg. at 34477 . . . (consisting of conclusory checked boxes, without any explanation or support of the conclusions reached).

--[Fn. 11] For example, there is absolutely no medical opinion on record stating that [plaintiff's] psychological functional ability to work would be aided by “routine and repetitive work,” as the hearing officer so concluded. . . . Rather, this conclusion is facially contrary to the hearing officer’s declaration that [plaintiff] suffered no significant limitations on the fundamental requirements for unskilled work, including the ability “to deal with changes in routine work settings.”

--Viewing the record as a whole, this Court holds that the record indicates more than mild psychological impairments imposing more than slight limitations on [plaintiff's] ability to function. Based on the foregoing – including [plaintiff's] fluctuating mental state, changing prescriptions, and repeated instances of corroborated memory loss – it was improper for the hearing officer to interpret the bare medical record and determine [plaintiff's] mental residual functional capacity. See Rivera-Figueroa, 858 F.2d 48, 52 (1st Cir. 1988) (“Absent a residual functional capacity assessment from an examining psychiatrist, we do not think the [hearing officer] was equipped to conclude that the claimant’s condition was so trivial as to impose no significant limitation on ability to work.”) . . . .

Cited:

Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 17-18 (1^st Cir. 1996)

Perez v. Sec’y of Health & Human Servs., 958 F.2d 445, 446 (1^st Cir. 1991)

Gordils v. Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1^st Cir. 1990)

limitations in concentration

2011-03-31T15:30:00.000-07:00

RT v. Michael J. Astrue, Commissioner of the Social Security Administration

2010-07-29

Civil Action No. 09-10078-GAO

2010 U.S. Dist. LEXIS 76678

Affirms SSA

U.S. Judge: George A. O’Toole, Jr.

ALJ: NA

SSDI and/or SSI disability: lupus, depression, obsessive compulsive disorder, anxiety, borderline intellectual functioning

Issues:

substantial evidence

Excerpts:

[Plaintiff] bases her argument, however, on Dr. Gonzalez’s assessments done both before and after she applied for SSI benefits, whereas the ALJ correctly limited her analysis to [plaintiff's] symptoms after the date of [plaintiff's] application for benefits.

A treating physician’s conclusory assertions may be doubted if they are not explained or if they contradict the physician’s own reports of treatment. Monroe, 471 F. Supp. 2d at 212. Neither Dr. Gonzalez’s records nor any other medical opinions give specific support to the conclusion that [plaintiff] would be “off task” for more than one hour per day.

While mental status exams may be used to assess limitations in concentration, persistence, or pace, they should be supplemented with other evidence. [20 C.F.R.] pt. 404, subpt. P, app. 1, § 12.00(C)(3). Other evidence used to assess limitations in concentration may include observations made in other, non-work, settings. Id.; Monroe, 471 F. Supp. 2d. at 214 n.8 (finding that claimant’s ability to perform household chores, use public transportation, maintain personal relationships and mange her money, undermined examining physician’s finding of severe limitations in maintaining concentration, performing activities of daily living, and engaging in social interactions).

Cited:

Monroe v. Barnhart, 471 F. Supp. 2d 203 (D. Mass. 2007)

treating opinions inconsistent with each other

2011-03-31T15:29:00.000-07:00

PW v. Michael J. Astrue, as he is Commissioner, Social Security Administration

2010-07-28

Civil Action No. 09-11026-WGY

726 F. Supp. 2d 48; 2010 U.S. Dist. LEXIS 76703

Affirms SSA

U.S. Judge: William G. Young

ALJ: NA

SSDI and/or SSI disability: depression, bipolar disorder, post-traumatic stress disorder, anxiety, low average range of intelligence, GAF scores: 45, 46, 55, 60

Issues:

treating psychologists’ opinions

Excerpts:

--Because the opinions of the two treating psychiatrists regarding the severity of [plaintiff's] symptoms are inconsistent with each other, neither of them can be said to be “not inconsistent with the other substantial evidence in the record” as section 404.1527(d)(2) requires. Thus, the Commissioner was not obliged to give controlling weight to either of the treating physicians’ opinions, but rather had to weigh them considering other evidence in the record.

--[A]s the Commissioner noted, [plaintiff's] “extensive daily activities including caring for her 10 year old daughter and volunteering as a Little League coach is clearly inconsistent” with the severe symptoms and limitations described by Drs. Tessier and Parsons.

DDS physician

2011-03-29T11:17:00.000-07:00

TM v. Michael J. Astrue, Commissioner of Social Security

2010-07-15

Civil Action No. 09-10998-RGS

2010 U.S. Dist. LEXIS 70810

Affirms SSA

U.S. Judge: Richard G. Stearns

ALJ: J. Alan MacKay; VE: Kathleen Bier

SSDI and/or SSI disability: panic attack disorder, bipolar disorder, seizure disorder, asthma, attention deficit disorder, post-traumatic stress disorder, substance addiction

Issues:

credibility

greater weight to disability determinations service physician vs. treating physician

Excerpts:

--[The ALJ] concluded that her statements regarding the intensity, persistence, and limiting effects of her reported symptoms were lacking in credibility.

--[Fn. 4] Here, the ALJ concluded that [plaintiff's] history of drug addiction was not “a contributing factor material to the Commissioner’s determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C).

--The principal reason given by the ALJ for questioning [plaintiff's] truthfulness is the numerous internal inconsistencies in the medical record as well as the inconsistencies between the record and her own testimony.

--The ALJ further concluded that [plaintiff] had not been forthcoming about her substance abuse, admitting at the hearing only to the use of Oxycontin, while her medical records indicate a history of the use of various illicit drugs, including opiates.

--[T]he ALJ noted that during the period of her alleged disability, [plaintiff] regularly reported to treating clinicians that she was seeking work and going on interviews.

--[Fn. 5] [Plaintiff] argues (correctly) that the Social Security Act does not prohibit an individual who meets the definitional requirements of a disability from attempting to return to the workforce. . . . The Commissioner points out, however, that the Administrative Law Judge emphasized the extent of [plaintiff's] job seeking as well as her full schedule of daily activities as reinforcing his conclusion that [plaintiff] retained the RFC to work in a semiskilled job.

--[The ALJ] was free to rely on those aspects of Dr. Lenhart’s opinion that were based on her observations as opposed to those that depended on [plaintiff's] “subjective report of her mental impairments and of the functional limitations they imposed upon her.” . . . This is especially true given the ALJ’s finding that [plaintiff] was not a credible historian of her symptoms.

--Rather, an ALJ is entitled “to piece together the relevant medical facts from the findings and opinions of multiple physicians.” Evangelista v. Sec’y of HHS, 826 F.2d 136, 144 (1st Cir. 1987). If the choice is supported by substantial evidence, the ALJ may prefer the opinion of a reviewing physician to that of the claimant’s treating physician, as was the case with respect to Dr. Lynch. See [Arroyo v. Sec’y of HHS, 932 F.2d 82, 89 (1st Cir. 1991)].

functional equivalency--extreme limitations

2011-03-29T10:45:00.000-07:00

CP v. Michael J. Astrue, Commissioner of the Social Security Administration

2010-06-23

Civil Action No. 09-30162-KPN

718 F. Supp. 2d 176; 2010 U.S. Dist. LEXIS 62257; 159 Soc. Sec. Rep. Service 68

Affirms SSA

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: child's SSI: asthma, ear infection, otitis media, anemia, strep throat, bronchitis, upper respiratory infection, exposure to second-hand smoke, appetite disturbance, hyperactivity, aggressive behavior

Issues:

substantial evidence

(mother’s) credibility

Excerpts:

--[T]o prove “functional equivalency,” Plaintiff had to prove that A.C. had either a “marked” limitation in two domains or an “extreme” limitation in one domain. See 20 C.F.R. § 416.926(b). As it turns out, Plaintiff focused on A.C.’s limitations in only one domain, health and well-being, arguing that he suffers from an extreme limitation in that regard . . . .

--The regulatory standards regarding an extreme limitation are somewhat lengthy. . . . Finally, with regard to the domain of “health and physical well-being,” the regulation concludes . . . However, if you have episodes of illness or exacerbations of your impairment(s) that we would rate as “extreme” under this definition, your impairment(s) should meet or medically equal the requirements of a listing in most cases. See §§ 416,925 and 416.926. 20 C.F.R. § 416.926a(e)(3)(iv).

--According to the Commissioner’s regulations, an extreme impairment requires prolonged exacerbations in excess of that required to establish a marked impairment, 20 C.F.R. § 416.926(e)(3)(iv), i.e., at least three episodes a year, each one lasting for at least two weeks, 20 C.F.R. § 416.926(e)(2)(iv).

--[T]he only evidence at odds with the medical records was Plaintiff’s testimony.

--[I]t was not inappropriate for the ALJ to have explored Plaintiff’s smoking habits, particularly in light of the medical advice received by Plaintiff that A.C. not be exposed to second-hand smoke.

--[I]t is well established that a court must generally defer to credibility determinations made by an administrative law judge. . . .as this court itself previously determined, this is no less true with regard to witnesses as to claimants. See Rosado v. Barnhart, 340 F. Supp. 2d 63, 66 (D. Mass. 2004) (addressing administrative law judge’s credibility assessment of child’s mother).

Cited:

Sexton v. Barnhart, 247 F. Supp. 2d 15, 23 (D. Mass. 2003)

only aspirin discredits pains statements

2011-03-28T12:31:00.001-07:00

RF v. Michael J. Astrue, Commissioner Social Security Administration

2010-06-17

Civil Action No. 09-10864-RGS

2010 U.S. Dist. LEXIS 60174

Affirms SSA

U.S. Judge: Richard G. Sterns

ALJ: Barry H. Best; ME: Dr. Joseph Gaeta; VE: Michael Laraia

SSDI and/or SSI disability: depression, anxiety, nerves, bad eyesight, degenerative disc disease of the lumbar spine, seizure disorder, moderate pulmonary hypertension, moderate elevated right and left heart pressure, severe mitral regurgitation, status post a mitral valve repair

Issues:

credibility

treating physician opinion

“simple work tasks,” skill level

[DOT “GED” requirements, raised by claimant, not discussed in decision]

Excerpts:

--Laraia stated that [plaintiff's] work as a gas station cashier was light and unskilled. The ALJ asked Laraia whether a hypothetical claimant of [plaintiff's] age, with the same education and work background, who could lift and carry up to ten pounds, who could sit, stand, and walk for up to six hours in an eight-hour workday in jobs not involving unprotected heights, dangerous machinery, or driving, with a moderate limitation in his ability to sustain attention and concentration such that he would be limited to uncomplicated tasks, and who would require breaks, on average every two hours, could perform work as a gas station cashier. Laraia answered that he could. [Emphasis added.]

--Credibility is for the ALJ to judge, again so long as his determination is supported by substantial evidence. Acevedo Ramirez v. Sec’y of HHS, 550 F.2d 1286, 1286 (1st Cir. 1977); Musto v. Halter, 135 F. Supp. 2d 220, 226-227 (D. Mass. 2001). The ALJ’s finding in this regard, when it is based on observations of the plaintiff, an evaluation of his demeanor, and a due consideration of the “fit” of his testimony with the remainder of the credible evidence, is entitled to deference. Frustaglia v. Sec’y of HHS, 829 F.2d 192, 195 (1st Cir. 1987). If the ALJ decides that a claimant’s subjective complaints are greater than what would be reasonably anticipated from the objective medical evidence, he must then consider other relevant factors, including: (1) the nature, location, onset, duration, frequency, radiation, and intensity of the reported pain; (2) any precipitating and aggravating factors; (3) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the pain or other symptoms; (4) any treatment, other than medication, for relief of pain; (5) the claimant’s functional restrictions; and (6) the claimant’s daily activities (collectively the Avery factors). See Avery v. Sec’y of HHS, 797 F.2d 19, 22-23 (1st Cir. 1986); 20 C.F.R. § 404.1529(c)(3).

--[Plaintiff] argues, and cites supporting cases from other jurisdictions, that a substantial prior work history can be considered as “bolstering” a claimant’s credibility (as a non-malingerer). . . . See also SSR 96-7p. Work history, however, although it deserves credit, is only a factor for the ALJ to consider; it does not mandate a finding of credibility on all issues.

--[From Fn. 5] See Albors v. Sec’y of HHS, 817 F.2d 146, 147 (1st Cir. 1986) (per curiam) (fact that claimant took no medication stronger than aspirin supported the ALJ’s discrediting of claimant’s subjective statements regarding his pain).

--Finally, [plaintiff] argues that the job of gas station cashier is not within the scope of his RFC because it involves more than simple work tasks and has an assigned reasoning level of “3” (out of six), as assigned by the DOT, #211.462-010 (4th ed. rev. 1991), http://www.oalj.dol.gov/public/dot/references/dot02a.htm. The VE, however, testified that a hypothetical claimant with a similar vocational history and RFC as [plaintiff's] could work as a gas station cashier.

specific reasons to question credibility

2011-02-28T17:49:00.001-08:00

DL v. Michael J. Astrue, Commissioner of Social Security

2010-06-11

U.S. D.Ct. Mass.

Civil Action No. 09-10201-RGS

2010 U.S. Dist. LEXIS 59695

Affirms SSA

U.S. Judge: Richard G. Stearns

ALJ: J. Alan MacKay

SSDI and/or SSI disability: fibromyalgia, chronic fatigue syndrome, bilateral osteoarthritis of the knees, degenerative joint disease of the knees, non-symptomatic carpal tunnel syndrome, post-traumatic stress disorder, major depression with suicidal ideation, anxiety with associated agoraphobia

Issues:

treating physician’s opinion

consultative examiner’s opinion

credibility

Excerpts:

--[A] diagnosis of a mental or physical condition is not sufficient in and of itself to prove disability. See Strickland v. Barnhart, 107 F. App’x 685, 688 (7^th Cir. 2004) (absence of objective evidence to support a diagnosis of RSD); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The mere diagnosis of arthritis, of course, says nothing about the severity of the condition.”); McCruter v. Bowen, 791 F.2d 1544, 1547 (11^th Cir.1986) (“[T]he ‘severity’ of a medically ascertained disability must be measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality.”).

--However, the ALJ found that the [plaintiff's] testimony as to her impairments and their impact on her ability to work were “considerably more limited and restricted than is established by the significant medical evidence of record” and for this reason he found that she was not fully credible.

--While the ALJ must consider a claimant’s subjective complaints of pain, he is not required to accept them at face value. Avery v. Sec’y of HHS, 797 F.2d 19, 22-23 (1st Cir. 1986); 20 C.F.R. § 404.1529. He must, however, state specific reasons for questioning a claimant’s credibility. DaRosa v. Sec’y of HHS, 803 F.2d 24, 26 (1st Cir. 1986). This the ALJ has done, and at sufficient length. [Footnote omitted.]

functional capacity restriction not alleged

2011-02-28T17:48:00.001-08:00

KS v. Michael J. Astrue, Commissioner, Social Security Administration

2010-06-11

Civil Action No. 09-11548-WGY

717 F. Supp. 2d 164; 2010 U.S. Dist. LEXIS 59259; 159 Soc. Sec. Rep. Service 109

Affirms SSA

U.S. Judge: William G. Young

ALJ: NA; VE: Michael Laraya

SSDI and/or SSI disability: bipolar disorder, anxiety, obsessive compulsive disorder, panic attacks, medication side effects, tremors in hands, migraine headaches

Issues:

credibility

treating physician assessment

combination of impairments in RFC and hypothetical question

Excerpts:

--Though a contrary decision might reasonably have been reached in this case had [plaintiff's] testimony been credited, it is not the function of this Court to second-guess credibility assessments of the hearing officer that are supported by sufficient evidence. See Rodriguez, 647 F.2d at 222.

--The hearing officer was acting well within his discretion when he decided to discredit the opinion of Dr. Trevisan. In his decision, the hearing officer explained that he gave little weight to Dr. Trevisan’s assessment because her treatment notes dated only two months prior to the hearing stated that [plaintiff] was stable and had no mental status abnormalities. Adm. R. at 14. Additionally, he relied upon the fact that Dr. Trevisan’s treatment notes stated that [plaintiff's] “severe” impairment could not be expected to last longer than twelve months.

--If, however, “there is no allegation of a physical or mental limitation or restriction of a specific functional capacity, and no information in the case record that there is such a limitation or restriction, the [hearing officer] must consider the individual to have no limitation or restriction with respect to that functional capacity.” [Quoting from SSR 96-8p.]

--Neither [plaintiff's] brief, nor the medical record, however, contain any allegations as to how these migraine headaches restricted or limited her ability to sustain gainful employment.

--She offers no explanation, however, as to how the sedating effect of her medications interferes with her ability to sustain gainful activity.

Cited:

Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218 (1st Cir. 1981)

no RFC by a physician

2011-02-28T17:47:00.000-08:00

ST v. Michael J. Astrue, Commissioner Social Security Administration

2010-04-21

U.S. D.Ct. Mass.

Civil Action No. 09-11093-RGS

2010 U.S. Dist. LEXIS 39127

Remand

U.S. Judge: Richard G. Stearns

ALJ: Stephen C. Fulton

SSDI and/or SSI disability: pain, lower back pain radiating to lower extremities, mild scoliosis, limited spinal range of motion, impaired motor function, positive straight leg raises, depression, history of suicide attempt

Issues:

credibility

treating physicians’s opinions

substantial evidence

Excerpts:

--However, as the Commissioner notes, embarrassment is not a valid reason under the SSA regulations for avoiding medical treatment. [Citing SSR 96-7p.]

--While the ALJ must consider a claimant’s subjective complaints of pain, he is not required to accept them at face value. Avery v. Sec’y of Health & Human Servs., 797 F.2d 19, 22-23 (1st Cir. 1986); 20 C.F.R. § 404.1529. He must, however, state specific reasons for questioning a claimant’s credibility. DaRosa v. Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986). [Footnote below.]

--[Fn. 10] “[A] Court will not save [a] decision by inserting the basis for a finding where there was not substantial evidence to support it and no specific finding justifying it as a rational result.” Rohrberg v. Apfel, 26 F. Supp. 2d 303, 310 (D. Mass. 1998).

--[Fn. 12] Where the independent expert’s opinion is not supported by specific medical findings, or where the expert’s conclusion is inconsistent with the medically supported opinion of a treating physician, no deference is due. See Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991). Where the medical evidence is inadequate to support a reliable determination of disability, the ALJ has an affirmative obligation to insure that gaps in the record are filled. This is not a matter of discretion, but a duty imposed on the ALJ by the implementing regulations. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001).

--[T]he non-examining DDS physicians who presented brief remarks on standardized forms. See Kratman v. Barnhart, 436 F. Supp. 2d 300, 310 (D. Mass. 2006) (“Reports from non-examining physicians that ‘contain little more than brief conclusory statements or the mere checking of boxes . . . are entitled to relatively little weight.’” (quoting Berrios Lopez, 951 F.2d at 431)).

--The First Circuit has held in a case involving similar facts that “[a]bsent a residual functional capacity assessment from an examining psychiatrist, we do not think the Administrative Law Judge was equipped to conclude that claimant’s condition was so trivial as to impose no significant limitation on work.” Rivera-Figueroa v. Sec’y of Health & Human Servs., 858 F.2d 48, 52 (1st Cir. 1988).

--[Fn. 14] Even if the effect of the ALJ’s discounting of [plaintiff's] credibility was to eliminate Dr. Mascoop’s report from consideration, he still had an obligation to complete the record with a mental RFC assessment. See Perez v. Sec’y of Health & Human Servs., 958 F.2d 445, 446 (1st Cir. 1991) (“[W]here an ALJ reaches conclusions about claimant’s physical exertional capacity without any assessment of residual functional capacity by a physician, the ALJ’s conclusions are not supported by substantial evidence and it is necessary to remand for the taking of further functional evidence.” (citing Rivera-Figueroa, 858 F.2d at 52)); Rivera-Torres v. Sec’y of Health & Human Servs., 837 F.2d 4, 6-7 (1st Cir. 1988) (“Where . . . there is no residual functional capacity evaluation . . . [and] the ALJ, a lay factfinder, lacks sufficient expertise . . . an explanation of claimant’s functional capacity from a doctor is needed.”).

examining and non-examining

2011-02-23T16:58:00.001-08:00

FB v. Michael Astrue, Commissioner of Social Security Administration

2010-03-29

U.S. D.Ct. Mass.

Civil Action No. 08-11959-GAO

2010 U.S. Dist. LEXIS 29929

Affirms SSA

U.S. Judge: George A. O’Toole, Jr.

ALJ: NA; ME: Dr. Stephen Kaplan

SSDI and/or SSI disability: anxiety, panic attacks, depression, hypertension, tendinitis in both arms, carpal tunnel syndrome, rotator cuff impingement syndrome, biceps tenosynovitis, back pain

Issue:

substantial evidence

Excerpts:

--The distinction between examining and non-examining sources is only one of several factors provided under the guidelines for the evaluation of medical opinions.

--[Plaintiff] provided no evidence that her shoulder surgery left her permanently disabled.

--Dr. Kaplan's testimony at the hearing regarding [plaintiff's] right arm was not consistent with record evidence that [plaintiff's] right arm problems were resolved by her 1999 surgery.

--At the hearing stage, the ALJ is solely responsible for determining the claimant's RFC. § 404.1546(c).

--The ALJ’s conclusion that [plaintiff] was not disabled from any work available in the national economy had a sufficient basis in the evidence available.

only one of six Avery factors

2011-02-23T16:57:00.001-08:00

KL v. Michael J. Astrue, Commissioner of Social Security

2010-03-15

U.S. D.Ct. Mass.

Civil Action No. 08-CV-12113-JLT

694 F. Supp. 2d 80; 2010 U.S. Dist. LEXIS 24069; 154 Soc. Sec. Rep. Service 38 (D. Mass. 2010)

Payment ordered

U.S. Judge: Joseph L. Tauro

ALJ: James Packer

SSDI and/or SSI disability: chronic fatigue syndrome, fibromyalgia

Issues:

pain, credibility findings, Avery factors

Excerpts:

--If, after weighing the above considerations, the ALJ determines that a claimant’s subjective complaints of pain lack credibility, the ALJ “must make specific findings as to the relevant evidence he considered in determining to disbelieve the appellant.” The ALJ “cannot base such findings on groundless assertions; they must have the support of substantial evidence.” Furthermore, “it is not sufficient for the adjudicator to make a single, conclusory statement that the ‘individual’s allegations have been considered’ or that ‘the allegations are (or are not) credible.’” [Footnotes omitted.]

--In deciding that [plaintiff's] impairment ceased to be disabling on December 31, 1999, the ALJ merely sets forth an unsupported conclusion that “the claimant’s testimony regarding her inability to perform any work activity due to her impairment is not entirely credible to the extent alleged in view of the medical evidence and clinical findings in this case as well as the claimant’s own testimony.” After summarizing [plaintiff's] testimony at the outset of the decision, the Administrative Law Judge mentions her testimony only four more times. On two occasions, he fails to provide more than a conclusory statement that the testimony was considered. On the other occasions, he merely notes that [plaintiff] stated her condition continually got worse until 1999. Nowhere, however, does the ALJ provide even a general discussion, much less specific findings, as to the evidence he considered in deciding to disbelieve this testimony. [Footnotes omitted.]

--The ALJ only made mention of one of the six Avery factors, the claimant’s daily activities, and he does so in a decidedly cursory manner.

--The ALJ’s failure to bolster his credibility determination with specific findings is cause enough for this court to remand this action for rehearing at the very least. [Footnote omitted.]

--“Administrative deference does not entitle the Commissioner to endless opportunities to get it right.” [Seavey v. Barnhart, 276 F.3d 1 (1^st Cir. 2001 at 13]

Cited:

Avery v. Sec'y of Health and Human Servs., 797 F.2d 19 (1^st Cir. 1986)

Da Rosa v. Sec’y of Health & Human Servs., 803 F.2d 24 (1^st Cir. 1986)

Rohrberg v. Apfel, 26 F. Supp. 2d 303 (D. Mass. 1998)

Pilet v. Apfel, 20 F. Supp. 2d 240 (D. Mass. 1998)

Barbarto v. Comm’r of Social Sec. Admin., 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 1996) quoting Williams v. Bowen, 664 F. Supp. 1200, 1207 (N.D. Ill. 1987)

SSR 96-7p

reasons to discredit treating source

2011-02-20T16:10:00.001-08:00

AR v. Michael J. Astrue, Commissioner of the Social Security Administration

2010-03-11

U.S. D.Ct. Mass.

Civil Action No. 09-30050-KPN

694 F. Supp. 2d 36; 2010 U.S. Dist. LEXIS 24754; 154 Soc. Sec. Rep. Service 46 (D. Mass. 2010)

Payment ordered

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: Peter J. Martinelli

SSDI and/or SSI disability: morbid obesity, major depressive disorder, anxiety disorder with intermittent panic attacks, hyperthyroidism, joint complaints, tendinitis, low back pain, sleep apnea, minimal degenerative osteoarthritis of her lumbar spine

Issues:

Treating psychiatrist’s opinion

Step 5 burden

Excerpts:

--Regardless of whether or not the administrative law judge decides to discount the treating physician’s opinion, the decision “must contain specific reasons for the weight given to the treating source’s medical opinion, supported by the evidence in the case record.” Social Security Ruling (“SSR”) 96-2p . . . .

--It should be noted that this is not the first case where this ALJ has seen fit to question the motivations of a treating physician in issuing a report. Thus, it is not the first time this court has seen fit to criticize him for basing a decision on inappropriate speculation.

--In short, the ALJ’s gratuitous speculation is quintessential legal error.

--As this court has twice explained to this ALJ, basing a decision solely on such grounds is suspect . . . .

--An administrative law judge, however, is not permitted to ignore the reports and opinions of examining and treating sources based on his own personal assessment unaided by any medical expert. Nieves v. Sec’y of Health & Human Servs., 775 F.2d 12, 13 (1st Cir. 1985); Suarez v. Sec’y of Health & Human Servs., 740 F.2d 1, 1 (1st Cir. 1984).

--[T]he ALJ, in effect, has replaced sound medical opinions with his own personal assessment.

--In the end, it was the vocational expert’s job to assess the vocational impact of specific non-exertional limitations. Heggarty, 947 F.2d at 996. See Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996); Beckley v. Apfel, 152 F.3d 1056 (8th Cir. 1998); Foreman v. Callahan, 122 F.3d 24 (8th Cir. 1997) (holding that an ALJ making the determination of the vocational impact of mental limitations “invaded the province of the vocational expert”).

Cited:

Heggarty v. Sullivan, 947 F.2d 990 (1^st Cir. 1991)

DDS reports as substantial evidence

2011-02-20T16:09:00.001-08:00

RT v. Michael J. Astrue, Commissioner of the Social Security Administration

2010-03-09

U.S. D.Ct. Mass.

Civil Action No. 09-cv-30022-MAP

2010 U.S. Dist. LEXIS 22390; 2010 U.S. Dist. LEXIS 22391

Affirms SSA

U.S. Judge: Michael A. Ponsor

(adopting recommendation of U.S. Magistrate Judge: Kenneth P. Neiman; 2010-02-11)

ALJ: NA

SSDI and/or SSI disability: back pain, depression

Issues:

treating physician’s opinion

RFC—sit and/or stand at will—unskilled tasks

depression as a severe impairment

Excerpts:

--For his part, the Commissioner asserts that, rather than establishing specific limitations, Dr. Anderson simply concluded that Plaintiff was totally disabled, an ultimate issue reserved for the ALJ. The Commissioner also argues that Dr. Anderson’s opinion was not well supported by the medical record. Rather, the Commissioner argues, there was substantial evidence of record to reject Dr. Anderson’s opinion and assign greater weight to the view of the state agency Contrary to at least one of the Commissioner’s arguments, it is clear that, other than a passing reference to governing regulations, the ALJ did not subject Dr. Anderson’s statement (that Plaintiff was “permanently and totally disabled”) to any analysis whatsoever. . . . In any event, the Commissioner argues, the DRB, in response to Plaintiff’s argument on appeal, undertook its own analysis of Dr. Anderson’s statement and that analysis should suffice for present purposes. Plaintiff does not appear to argue otherwise.

--Given these well-grounded findings, the court believes that it was permissible for the ALJ and, in turn, the DRB, to assign greater weight to the opinion of the state agency physician, Dr. Weeratne, whose opinion was supported by the evidence of record. . . .

--While the reports of nontreating and non-examining physicians such as Dr, Weeratne are often given less weight, they may nonetheless serve to satisfy the substantial evidence requirement when, as here, those assessments are supported by yet other sources. See Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991).

--The ALJ found that Plaintiff had the residual functional capacity to lift and carry ten pounds frequently and twenty pounds occasionally; would need to sit and/or stand at will . . . .The ALJ also limited Plaintiff to simple, unskilled tasks . . . . Based on Plaintiff’s age, education, work experience and residual functional capacity, as well as the vocational expert’s testimony, the ALJ concluded that Plaintiff could perform work available in the local and national economies.

--An impairment will not be severe unless it imposes a significant limitation on the ability to perform basic work activities. See Figueroa-Rodriguez v. Sec’y of Health & Human Servs., 845 F.2d 370, 372 (1st Cir. 1988).

at hearing no objection to CDI report

2011-02-20T16:08:00.001-08:00

CM v. Michael J. Astrue, Commissioner Social Security Administration

2010-03-05

U.S. D.Ct. Mass.

Civil Action No. 08-11957-DPW

2010 U.S. Dist. LEXIS 28643

Affirms SSA

U.S. Judge: Douglas P. Woodlock

ALJ: Thomas Fallon

SSDI and/or SSI disability: low back pain, depressive disorder

Issues:

CDI report

objection to CDI report on judicial review

substantial evidence

Excerpts:

--In January 2006, investigators observed [plaintiff] operating a tow truck, which involved bending, kneeling, climbing, and jumping down over five feet; [plaintiff] reportedly performed these activities without any signs of discomfort. The ALJ determined that these physical activities are inconsistent with statements by treating sources, and therefore [plaintiff's] allegations of disabling symptoms and limitations are “unreliable” and the statements of treating sources are “unpersuasive.”

--The fact that [plaintiff] and his attorney were aware of the investigation, had the opportunity to object to the CDI exhibit in the hearing, and chose not to, precludes [plaintiff] from objecting to the CDI report on judicial review. See 20 C.F.R. § 416.1439 (explaining procedure for objections at ALJ hearing); Benko v. Schweiker, 551 F. Supp. 698, 703 (D.N.H. 1982) (finding claimant’s failure to object pursuant to § 416.1439 precluded her from objecting during district court review).

--See Social Security Ruling 96-7p . . . . A “strong indication of the credibility of an individual’s statements is their consistency, both internally and with other information in the case record.”

--Here, the ALJ did not err by declining to find [plaintiff] disabled on account of one psychiatric evaluation that is both inconsistent with the other evaluations and lacks any support for its diagnosis. See Ramos v. Barnhart, 119 Fed. Appx. 295, 296 (1st Cir. 2005) . . . .

CDI report may be given appropriate weight

2011-02-20T16:07:00.001-08:00

DR v. Michael J. Astrue, Commissioner of the Social Security Administration

2010-02-25

U.S. D.Ct. Mass.

Civil Action No. 09-30054-KPN

688 F. Supp. 2d 29; 2010 U.S. Dist. LEXIS 18461; 153 Soc. Sec. Rep. Service 28 (D. Mass. 2010)

Affirms SSA

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: medial meniscus tear left knee, torn ligaments right knee, severe headaches, Achilles bursitis or tendinitis, depression, anxiety, PTSD

Issues:

ALJ’s oral statement to pay benefits

“CDI” report

substantial evidence

Excerpts:

--[T]he ALJ’s statement at the conclusion of the first hearing that he would find in Plaintiff’s favor, even if clearly articulated, did not constitute an oral decision on the record. An oral decision can only issue “in certain categories of claims that [the Agency] identif[ies] in advance,” 20 C.F.R. § 405.370(b), which did not occur here. Moreover, when an oral decision is issued, it must be accompanied with “specific reasons” followed within five days by a written decision incorporating the oral pronouncement. Id. That too did not occur.

--Second, even if the brief statement at the conclusion of the hearing could be deemed an oral decision, the ALJ was free to make “substantive changes,” id., or consider new issues “before mailing notice of the hearing decision,” 20 C.F.R. § 405.325(b), provided only that the claimant be given a chance to “address” the issue, id.

--[I]t is worth noting that there have been a number of recent cases in which a CDI investigation -- generated by a variety of reasons, some understandable, some curious -- played a part at an administrative hearing. [Citations omitted.]

--This is not to say, of course, that CDI reports are binding on either the administrative law judge or the court. However, to the extent a report provides factual rather than interpretive data, and to the extent the administrative law judge provides the claimant with an opportunity to address the report, see, e.g., Orth, 2008 WL 5110850, at *3 n.4, the report may be given appropriate weight based on all the circumstances.

--The court finds as well that the ALJ had substantial evidence with which to conclude that Plaintiff could perform a limited range of light work. . . . the ability to do such work, even on a limited basis, can support the conclusion that an individual can do more than he may have asserted. See 20 C.F.R. §§ 404.1571, 416.971; Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 429 (1st Cir. 1991); Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008); Rogers v. Barnhart, 204 F. Supp. 2d 885, 894 (W.D.N.C. 2002). . . . See Social Security Ruling (“SSR”) 83-14; SSR 85-15; POMS DI 25020.005.A.1.a . . . .

The administrative law judge’s decision must be affirmed “even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence.” Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987). Accord Ortiz, 955 F.2d at 769. That, in the court’s opinion, is the situation here.

Cited:

Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765 (1^st Cir. 1991)

lack of objective evidence

2011-02-20T16:06:00.003-08:00

CC v. Michael J. Astrue, Commissioner Social Security Administration

2010-02-16

U.S. D.Ct. Mass.

Civil Action No. 09-10261-DPW

2010 U.S. Dist. LEXIS 16983

Affirms SSA

U.S. Judge: Douglas P. Woodlock

ALJ: NA; VE: Jeff Goldfarb

SSDI and/or SSI disability: bipolar disorder

Issues:

treating source opinions

non-compliance with meds not included in RFC

Excerpts:

--[After quoting from:] 20 C.F.R. § 404.1527(d)(2). Nevertheless, a treating physician’s conclusions may be rejected by the Commissioner when “contradictory medical advisor evidence appears in the record.” Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 276 (1st Cir. 1988) (per curiam) (citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)); see also . . . SSR 96-2p . . . .

--I note that there is no evidence in the record that Plaintiff continued to have a tendency of non-compliance with his medications after . . . May 2007. While Plaintiff’s allegations “cannot be rejected solely because they are not corroborated by objective medical evidence, an Administrative Law Judge can-and indeed must-consider the absence of such evidence.” Kanash v. Astrue, No. 06-11766, 2008 WL 794575, at *7 (D. Mass. March 25, 2008) (citing SSR 96-7p . . . (noting the lack of objective evidence is one factor, but not the sole factor, that the adjudicator must consider in assessing an individual’s credibility)). This is particularly true when, as it is the case here, other evidence in the record, such as statements by Plaintiff himself, contradict Plaintiff’s assertions.

reasons to doubt credibility

2011-02-20T16:06:00.001-08:00

RA v. Michael J. Astrue, as Commissioner of the Social Security Administration

2010-02-01

U.S. D.Ct. Mass.

Civil Action No. 08-11146-NMG

682 F. Supp. 2d 89; 2010 U.S. Dist. LEXIS 10358; 152 Soc. Sec. Rep. Service 125 (D. Mass. 2010)

Affirms SSA

U.S. Judge: Nathaniel M. Gorton

ALJ: Stephen Fulton

SSDI and/or SSI disability: major depression, anxiety disorders, bipolar disorder, obsessive-compulsive disorder and PTSD

Issues:

substantial evidence

commonsense judgments re RFC

pain-credibility

Appeals Council review denied--“new evidence” to AC

Excerpts:

--In making an RFC assessment, the ALJ is entitled to render “commonsense judgments about functional capacity based on medical findings, so long as [he] does not overstep the boundaries of a lay person’s competence and render medical judgments.” Gordils v. Sec’y of Health of Human Services, 921 F.2d 327, 329 (1st. Cir. 1990).

--Moreover, the ALJ did not reject Plaintiff’s allegations regarding the intensity and persistence of his pain solely because they were not substantiated by available objective medical evidence. In addition to the marked inconsistencies between the medical record and Plaintiff’s allegations of pain, the ALJ articulated other ample reasons to doubt Plaintiff’s credibility, including his failure to comply with treatment, the lack of support for his allegations of long-standing mental illness, the substantial gap in treatment for his physical injuries and his narcotic addiction.

--[T]he reports [did not] add anything new and material to the evidence that was presented to the ALJ. Accordingly, the Appeals Council’s assessment, though perhaps over-simplified, was entirely reasonable and, as such, it is not reviewable by this Court.

Cited:

Mills v. Apfel, 244 F. 3d 1 (1^st Cir. 2001)

substantial weight of evidence

2011-02-20T16:05:00.001-08:00

EF v. Michael J. Astrue, Commissioner of Social Security

2010-01-26

U.S. D.Ct. Mass.

Civil Action No. 09-10380-WGY

680 F. Supp. 2d 328; 2010 U.S. Dist. LEXIS 6345; 152 Soc. Sec. Rep. Service 135 (D. Mass. 2010)

Affirms SSA

U.S. Judge: Willaim G. Young

ALJ: NA

SSDI and/or SSI disability: congenital scoliosis involving lumbar and thoracic spine, spondylolisthesis, back pain, asthma, anxiety, depression

Issues:

standard of review

substantial evidence

Excerpts:

--Appearing pro se . . . .

--In her brief, [plaintiff] argued that the hearing officer made her decision based on [plaintiff's] appearance rather than on the medical records. . . . [plaintiff] implies that although she does not appear disabled, her medical and mental conditions are not necessarily manifest to a lay observer. As described above, the record indicates that the hearing officer made her decision based on the evidence presented to her, including numerous medical reports, [plaintiff's] testimony, the testimony of an independent medical examiner, and the testimony of a vocational expert. The hearing officer’s findings were supported by the substantial weight of the evidence, and should not be disturbed.

Cited:

Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15 (1^st Cir. 1996)

Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765 (1^st Cir. 1991)

Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1 (1^st Cir. 1987)

off task for more than one hour

2011-02-20T16:04:00.001-08:00

JS v. Michael J. Astrue, Commissioner Social Security Administration

2010-01-22

U.S. D.Ct. Mass.

Civil Action No. 09-10035-RGS

2010 U.S. Dist. LEXIS 4923

Affirms SSA

U.S. Judge: Richard G. Stearns

ALJ: Barbara F. Gibbs; VE Michael Laraia

SSDI and/or SSI disability: degenerative disc disease of the lumbar spine, depression, anxiety and obesity

Issue:

Was claimant disabled as of date last insured (June 30, 2004)

Excerpts:

--[Fn. 3][plaintiff] applied for both DIB and Supplemental Security Income (SSI) benefits, alleging that he had been disabled since May 12, 2000. . . . The Commissioner allowed [plaintiff's] claim for SSI, finding that he was disabled as of November 9, 2004, and awarded him benefits effective as of that date.

--had ceased SGA in April of 2004. . . . The ALJ therefore confined any further inquiry to the period between April of 2004, and [plaintiff's] last insured date, June 30, 2004.

--[T]he ALJ presented five hypothetical claimants . . . . Claimant 1 could do “postural activities occasionally but bending would be limited to the degree necessary to allow him to touch his knees.” . . . Claimant 2 matched Claimant 1 except that he would require the use of a cane in his dominant hand while walking. Claimant 3 matched Claimant 2 except that he would be off-task for more than one unscheduled hour a day or absent from the workplace entirely more than two days a month. Claimant 4 matched Claimant 1 except that he would need to shift positions at will from sitting to standing or walking and he would need to take six unscheduled fifteen minute breaks in each eight hour workday. Claimant 5 matched Claimant 1 except that he would be unable to twist, stoop, crouch, or bend. The VE testified, that of the hypothetical claimants, only Claimant 3 would be unable to find an unskilled job at a light or sedentary level.

MD functional assessment exclusively based on claimant's report

2011-02-14T16:22:00.001-08:00

PH v. Michael J. Astrue, Commissioner Social Security Administration

2009-12-29

U.S. D.Ct. Mass.

Civil Action No. 08-11935-RGS

2009 U.S. Dist. LEXIS 120521

Affirms SSA

U.S. Judge: Richard G. Stearns

ALJ: Stephen C. Fulton; VE: Jeff Goldfarb

SSDI and/or SSI disability: back and neck pain, depression

Issue:

treating physician’s RFC opinion

Excerpts:

--Here, the ALJ had good reason to discount Dr. Herman's physical RFC assessment for the reason he stated: that the evidence "suggests that Dr. Herman's assessment of [plaintiff's] functional abilities [was] based exclusively on [plaintiff's] own assessment of her capacities." . . . . Moreover, the assessment was at odds with the consistent findings of both Drs. Trockman and Straub, which the ALJ credited (along with Brock's psychiatric disorder questionnaire). Moreover, these latter assessments (as the ALJ noted) were not inconsistent with [plaintiff's] self-reported activities. There is no indication in the record that the ALJ disregarded Dr. Herman's opinion. Rather, the record shows that ALJ carefully weighed the opinions of all of the medical experts, in addition to [plaintiff's] work history, medical records, and her personal testimony, in reaching his ultimate conclusions.

surveillance systems monitor, bathroom breaks

2011-02-14T16:21:00.001-08:00

JD v. Michael J. Astrue, Commissioner of the Social Security Administration

2009-12-17

U.S. D.Ct. Mass.

Civil Action No. 08-11234-WGY

674 F. Supp. 2d 337; 2009 U.S. Dist. LEXIS 118656; 151 Soc. Sec. Rep. Service 387 (D. Mass. 2009)

Affirms SSA

U.S. Judge: William G. Young

ALJ: NA; VE: Ruth [Baruch]

SSDI and/or SSI disability: major depression disorder, anxiety, panic attacks, fibromyalgia, temporomandibular joint pain, irritable bowel syndrom, headaches

Issues:

reliance on Social Security consultative examiner for substantial evidence

surveillance systems monitor

assumption that jobs “have a bathroom in close proximity to the worksite”

ALJ’s “common sense” determination of how long permissible bathroom breaks might last

Excerpts:

--[summary of VE testimony] Jobs included electronics worker, of which there are 2,000 jobs in Massachusetts and 288,000 jobs nationally, and surveillance systems monitor, of which there are 3,518 jobs in Massachusetts and 40,000 jobs nationally.

--[included in ALJ’s RFC] the claimant’s workstation must be in close proximity to a rest room . . . .

--Moreover, the unamended, “two-hour” hypothetical reflected Dr. Metcalf’s [a Social Security examining consultant] RFC assessment . . . . Therefore, the testimony elicited from the Vocational Expert based upon the original hypothetical properly supported by “substantial evidence,” is in itself enough to support the ultimate conclusion.

--When questioning the Vocational Expert, the hearing officer further limited to his hypothetical, asking whether the two jobs the expert had mentioned in her response were assumed to have a bathroom in close proximity to the worksite, and whether the jobs would allow for taking unscheduled bathroom breaks that might last for five to eight minutes. . . . . The Vocational Expert responded affirmatively to both questions.

--In the absence of any medical opinion or evidence regarding the length of bathroom breaks, [the ALJ] simply used his common sense in posing the first hypothetical. He properly relied on his assessment of [plaintiff's] credibility and motivations . . . .

Cited:

Gray v. Heckler, 760 F. 2d 369 (1st Cir. 1985)

Alvarado v. Weinberger, 511 F.2d 1046 (1st Cir. 1975) (per curiam)

ALJ's decision meticulous

2011-02-14T16:20:00.001-08:00

LR v. Michael J. Astrue, Commissioner of the Social Security Administration

2009-11-24

U.S. D.Ct. Mass.

Civil Action No. 08-11109-GAO

2009 U.S. Dist. LEXIS 109891

Affirms SSA

U.S. Judge: George A. O’Toole, Jr.

ALJ: NA

SSDI and/or SSI disability:child’s case

Issue:

substantial evidence

Excerpts:

--It is the ALJ’s obligation to assess the record evidence honestly and rationally and to explain his conclusion clearly with reference to the evidence considered. If he has done that, and if a reviewing court determines that there is indeed record evidence that does support the ALJ’s conclusion, then it does not matter that there is other evidence that could support a different view or that a different evaluator might weigh the evidence differently. See Rodriguez Pagan, 819 F.2d at 3.

--The ALJ wrote a meticulous decision that addressed and discussed in detail the key issues in the case with specific explanation of the evidence that he both credited and discounted. His decision is supported by substantial evidence in the administrative record, and it must be affirmed.

Cited:

Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1 (1st Cir. 1987)

non-treating, non-examining MDs

2011-02-14T16:19:00.001-08:00

JW v. Michael J. Astrue, Commissioner of the Social Security Administration

2009-11-18

U.S. D.Ct. Mass.

Civil Action No. 09-cv-30019-MAP

2009 U.S. Dist. LEXIS 108856

Affirms SSA

U.S. Judge: Michael A. Ponsor

(adopting recommendation of U.S. Magistrate Judge: Kenneth P. Neiman)

ALJ: NA

SSDI and/or SSI disability: back pain, chronic discogenic disease with bulging and desiccated discs

Issues:

treating physican’s opinion

substantial evidence to support RFC

Excerpts:

--However, the opinion of a treating physician may be stripped of its controlling weight “if it is inconsistent with other substantial evidence in the record, even if that evidence consists of reports from non-treating doctors.” Castro v. Barnhart,198 F. Supp. 2d 47, 54 (D. Mass. 2002). See also Arruda v. Barnhart, 314 F. Supp. 2d 52, 72 (D. Mass. 2004) (similar).

--While the reports of such non-treating and non-examining physicians are often given less weight, such reports may nonetheless serve to satisfy the substantial evidence requirement when, as here, those assessments appear to be supported by other sources. See Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1^st Cir. 1991).

--Although a greater level of specificity on the ALJ’s part might have been

helpful, the record provides more than a sufficient basis for the ALJ’s conclusion.

credibility must be articulated in decision

2011-02-14T16:17:00.001-08:00

JS v. Michael J. Astrue, Commissioner of the Social Security Administration

2009-10-14

U.S. D.Ct. Mass.

Civil Action No. 09-30006-KPN

2009 U.S. Dist. LEXIS 101527

Remand

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: back pain, leg pain, asthma, side effects medications

Issues:

pain-credibility-Avery factors

SSA questionnaire

Excerpts:

--In the instant case, the ALJ raised each of the Avery factors at the administrative

hearing. Nevertheless, the ALJ failed in his subsequent written decision to provide the required analysis of Plaintiff’s subjective complaints of pain.

--These six inquiries were sufficient to develop the record with respect to Plaintiff’s

subjective complaints of pain. However, when making his decision to disbelieve

Plaintiff, the ALJ was required to make “specific findings as to the ‘relevant evidence’.” Arroyo, 295 F. Supp. 2d at 223 (quoting Da Rosa, 803 F.2d at 26). See also Social Security Ruling (SSR) 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 61 Fed. Regs. 34, 483, 34, 485-86 (1996) (requiring that “[w]hen evaluating the credibility of an individual's statements, the adjudicator must ... give specific reasons for the weight given to the individual's statements”; and “the reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision”) (emphasis added). . . . The ALJ did not discuss Plaintiff’s testimony in his decision nor how Plaintiff’s statements were inconsistent with the objective medical evidence.

--Standing alone, however, medical questionnaires “are entitled to little weight in the evaluation of disability” and do not constitute substantial evidence. Lacroix v. Barnhart, 352 F. Supp. 2d 100, 112 (D. Mass. 2005) (citing Anderson v. Sec’y of Health & Human Servs., 634 F. Supp. 967, 972 (D. Mass. 1984)).

--See Phillips, 421 F. Supp. 2d at 279; see also Bazile v. Apfel, 113 F. Supp.

2d 181, 188 (D. Mass. 2000) (holding that a consideration of “most” of the Avery factors is insufficient -- all six must be considered).

Cited:

SSR 96-7p

Phillips v. Barnhart, 421 F. Supp. 2d 272 (D. Mass. 2006)

Avery factors must be specifically addressed

2011-02-14T16:16:00.001-08:00

GH v. Michael J. Astrue, Commissioner of Social Security

2009-09-21

U.S. D.Ct. Mass.

Civil Action No. 08-11216-PBS

2009 U.S. Dist. LEXIS 86455

Remand

U.S. Judge: Patti B. Saris

ALJ: Barry H. Best; VE: Albert J. Sabella

SSDI and/or SSI disability: bilateral shoulder impairments, torn rotator cuff, bursitis

Issues:

Avery factors

Excerpts:

--Although the ALJ’s credibility determination is generally entitled to deference, “an ALJ who does not believe a claimant’s testimony regarding his pain, ‘must make specific findings as to the relevant evidence he considered in determining to disbelieve the [claimant].’” Makuch, 170 F. Supp. 2d at 126 (quoting Da Rosa v. Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986)).

--The ALJ has not fully shouldered the analytical burden in this case with respect to the Avery factors. He only recited the first of them, but wrongly recited the evidence of claimant’s daily activities (Factor 1). In discussing the credibility assessment, the ALJ stated, “The claimant did not allege in the record, or testify at the hearing, that others had to cook, perform household chores, or grocery shop for him.” . . . . This statement does not fairly characterize testimony given at the hearing.

--However, the ALJ must specifically address the Avery factors, and not give them such short shrift in the opinion. This is the second case in a month where a remand was necessary because of failure to adequately address the Avery factors. See Dias v. Astrue, No. 08-11268 (D.Mass. Aug 26, 2009).

Cited:

Makuch v. Halter, 170 F. Supp. 2d 117 (D. Mass. 2001)

SSR 96-7p

lack of evidence of leg pain

2011-02-14T16:07:00.001-08:00

PM v. Michael J. Astrue, Commissioner of Social Security Administration

2009-09-10

U.S. D.Ct. Mass.

Civil Action No. 08-10683-PBS

2009 U.S. Dist. LEXIS 83474

Affirms SSA

U.S. Judge: Patti B. Saris

ALJ: Robert L. Halfyard; ME: Gerald Winkler, MD; VE: Ruth Baruch

SSDI and/or SSI disability: seizure disorder, left-side paralysis (hemiplegia), short-term memory disorder, pain

Issue:

proper hypothetical question

Avery factors

Excerpts:

--Additionally, when weighing evidence and evaluating the plaintiff’s credibility, the ALJ is allowed to consider the “consistency and inherent probability of the testimony.” Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 195 n.1 (1st Cir. 1987) (quoting Beavers v. Sec’y of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978)). When inconsistencies exist in the record, the ALJ is permitted to “discount subjective complaints of pain.” Id. (citing Underwood v. Bowen, 807 F.2d 141, 143 (8th Cir. 1987)).

--There is simply no medical evidence in the record that Plaintiff has any problems with leg pain.

Cited:

Arocho v. Sec’y of Health and Human Services, 670 F.2d 374 (1^st Cir. 1982)

moderate nonexertional limitations

2011-02-14T16:06:00.001-08:00

JH v. Michael J. Astrue, Commissioner Social Security Administration

2009-09-02

U.S. D.Ct. Mass.

Civil Action No. 08-11480-PBS

2009 U.S. Dist. LEXIS 79778; 145 Soc. Sec. Rep. Service 206

Remand

U.S. Judge: Patti B. Saris

ALJ: Paul M. Murphy

SSDI and/or SSI disability: depression, anxiety, panic attacks, PTSD, low back disorder

Issues:

reliance on the Grid without a VE

overhead reaching

treating physician’s opinion

Excerpts:

--The ALJ did not explicitly identify how he reached the conclusion that the claimant's nonexertional mental impairments did not significantly affect the number of jobs available to her. This gap in the written opinion is unfortunate and creates unnecessary confusion.

--Whether the claimant's combination of moderate limitations similarly commands the consultation of a vocational expert is less clear, especially when the ALJ gave no explanation for his conclusion that none was needed.

--The ALJ, however, provided no explanation for favoring the non-examining physician opinion.

--Significantly, the ignored statements bear directly upon the critical question of Plaintiff's capacity to engage in the full range of unskilled light work. Accordingly, this remains a "close call," but given the First Circuit's instruction to err on the side of taking vocational evidence, see Ortiz, 890 F.2d at 528, this Court cannot say that the ALJ's conclusion that Plaintiff's capacity for the full range of unskilled light work was not significantly compromised by her "moderate" nonexertional limitations is supported by substantial evidence in the record. Thus, the ALJ's finding of "not disabled" and resulting denial of benefits based solely on the Grid was not appropriate.

Cited:

Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765 (1^st Cir. 1991)

Seavey v. Barnhart, 276 F.3d 1 (1^st Cir. 2001)

blanket statement

2011-02-14T16:05:00.001-08:00

PD v. Michael J. Astrue, Commissioner of Social Security

2009-08-26

U.S. D.Ct. Mass.

Civil Action No. 08-11268-PBS

2009 U.S. Dist. LEXIS 88482

Remand

U.S. Judge: Patti B. Saris

ALJ: NA

SSDI and/or SSI disability: left elbow and left wrist pain, ulnar neuropathy/left cubital tunnel syndrome, left upper extremity tendinitis, carpal tunnel syndrome, broad-based central disc herniation at L4-L5, bulging discs at L3-L4 and L5-S1, right paracentral disc protrusion at C5-6 with mass effect on the spinal cord and a right and small left paracentral disc protrusion at C6-7, cervical disc/spine disease, degenerative lumbar disc/spine disease, spasms of the left lower back musculature, tender points, fibromyalgia, asthma, depression, suicide attempt

Issues:

Avery factors

Excerpts:

--Plaintiff contends that the ALJ erred by failing to properly consider and analyze Plaintiff’s subjective complaints of pain. The Court agrees with Plaintiff that the ALJ’s decision, which in large part rests on her finding that Plaintiff’s subjective complaints of pain are not sufficiently severe or credible, is not based on a proper application of the law.

--Although the ALJ’s credibility determination is generally entitled to deference, “an ALJ who does not believe a claimant’s testimony regarding his pain ‘must make specific findings as to the relevant evidence he considered in determining to disbelieve the [claimant].’” Makuch, 170 F. Supp. 2d at 126 (quoting Da Rosa v. Sec’y of Health and Human Servs., 803 F.2d 24, 26 (1st Cir. 1986)).

--[T]he ALJ merely made the blanket statement . . . .

--In short, the ALJ listed the Avery factors and stated that she considered them, but did not provide specific reasons for not finding Plaintiff’s complaints credible, did not support her findings with specific evidence in the record, and did not clarify the weight she gave to Plaintiff’s complaints and the reason for the given weight. This is insufficient to comply with SSR 96-7p.

Cited:

Makuch v. Halter, 170 F. Supp. 2d 117 (D. Mass. 2001)

ALJ evidence view quite cramped

2011-02-14T16:04:00.001-08:00

CK v. Michael J. Astrue, Commissioner of the Social Security Administration

2009-08-24

U.S. D.Ct. Mass.

Civil Action No. 08-30188-KPN

2009 U.S. Dist. LEXIS 78525

Payment Ordered

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: torn left hamstring, total motor dysfunction on her left side, nerve damage, pain, an avulsion injury

Issues:

onset date

traumatic vs. non-traumatic impairment

when to call a medical expert to determine onset date

Excerpts:

--As was true of the ALJ, however, the Commissioner’s view of the evidence is quite cramped.

--This is far too limited a reading of the record or of Dr. Benis’ letter. Cf. McQuestion v. Astrue, --- F. Supp. 2d --- 2009 WL 1770131 (E.D. Wisc. June 23, 2009) (remanding case, in part, because of administrative law judge’s selective reading of physician’s note).

--[A] May 31, 2005 onset date ought to have been readily culled from the record. See --Blea v. Barnhart, 466 F.3d 903 910 (10th Cir. 2006) (“[A] medical advisor need be called only if the medical evidence of onset is ambiguous.”) (citation and internal quotation marks omitted).

Cited:

Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 5 (1^st Cir. 1987).

SSR 83-20

factual error

2011-02-14T16:03:00.000-08:00

LG v. Jo Ann Barnhart, Commissioner of the Social Security Administration

2009-08-13

U.S. D.Ct. Mass.

Civil Action No. 06-10500-DPW

2009 U.S. Dist. LEXIS 71784

Remand

U.S. Judge: Douglas P. Woodlock

ALJ: James H. Packer; ME: Alfred G. Jonas; MD; VE: Amy Vercillo

SSDI and/or SSI disability: back pain, mental health problems, bipolar disorder

Issues:

mistake of fact

step two of sequential evaluation

when is ALJ required to recontact source vs. not credible opinion

Excerpt:

--However, even where an agency decision is supported by substantial evidence, the decision cannot be upheld if the SSA committed a factual error. Manso-Pizarro, 76 F.3d at 16.

Cited:

Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15 (1^st Cir. 1996)

White v. Barnhart, 287 F.3d 903, 905 (10^th Cir. 2002)

Conte v. McMahon, 472 F. Supp. 2d 39, 49 (D. Mass. 2007)

Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995)

Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000)

part time workk and SGA

2011-02-14T16:01:00.002-08:00

MA v. Michael J. Astrue, Commissioner of the Social Security Administration
2009-07-31
U.S. D.Ct. Mass.
Civil Action No. 08-30186-KPN
2009 U.S. Dist. LEXIS 71783
Affirms SSA
U.S. Magistrate Judge: Kenneth P. Neiman
ALJ: NA
SSDI and/or SSI disability: carpal tunnel syndrome, fibromyalgia, pain
Issues:

part time work

Avery factors

Excerpts:

--See 20 C.F.R. § 404.1571 (“Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did. We will consider all the medical and vocational evidence in your file to decide whether or not you have the ability to engage in substantial gainful activity.”)

--While it may have been preferable for the ALJ to have provided a somewhat more detailed Avery analysis in his decision, the court is satisfied that the record as a whole demonstrates sufficient consideration of the Avery factors.

Cited:

20 CFR 404.1571
Avery v. Sec’y of Health & Human Servs., 797 F.2d 19 (1st Cir. 1986)
Cox v. Astrue, 2009 U.S. Dist. LEXIS 6064, 2009 WL 189958 (D. Mass. Jan. 16, 2009)

SSI resources--costs to claimant

2011-02-14T16:01:00.000-08:00

OK v. Michael J. Astrue, Commissioner, Social Security Administration

2009-07-23

U.S. D.Ct. Mass.

Civil Action No. 08-30203-MAP

637 F. Supp. 2d 59; 2009 U.S. Dist. LEXIS 64320; 146 Soc. Sec. Rep. Service 753 (D. Mass. 2009)

Judgment for the plaintiff

U.S. Judge: Michael A. Ponsor

ALJ: NA

SSDI and/or SSI disability: Supplemental Security Income (SSI) resources

Issues:

litigation costs consuming value of illiquid property

legal effect of POMS [Program Operations Manual System]

Chalmers in First Circuit

Excerpts:

--Plaintiff was found disabled and entitled to disability benefits beginning in 1992. In July 2001, she inherited a one-sixth ownership interest in a property in Warren,Vermont with five other relatives. Plaintiff’s co-owners have refused either to sell the property or to buy Plaintiff’s share. The property in question was valued at $21,800 and thus, her interest was worth $3,633.

--[The plaintiff] had not been entitled to receive [SSI] benefits since July 2001.

--Since January 1989, the [SSI] resource limit has been $2,000 for an unmarried individual. 42 U.S.C. § 1382(a)(3)(B). In regulations promulgated by SSA, “resources” includes “any real or personal property that an individual . . . owns and could convert into cash . . . .” 20 C.F.R. § 416.1201(a). The regulations further specify that if an individual has the “right, authority or power to liquidate the property or his or her share of the property, it is considered a resource.” 20 C.F.R. § 416.1201(a)(1). . . . However, “if a property right cannot be liquidated, the property will not be considered a resource . . . .” Id.

--The paucity of case law interpreting these provisions is striking, and the parties have pointed to only two cases. In Chalmers v. Shalala, on facts similar to this case, the Third Circuit held that the plaintiff’s one-fourth interest in inherited property was a “resource” she could liquidate and that the costs associated with selling her interest could not be used to mitigate the value of the available resource. 23 F.3d 752, 753-55 (3d Cir. 1994). While the Chalmers court expressed deep reservations about this result, it felt “not free to read into the statute or the regulation a requirement that is not there.” Id. at 755. Notably, SSA has adopted Chalmers. Social Security Ruling 95-4C, 1995 WL 470870 (S.S.A. Aug. 7, 1995).

--Conversely, in an unpublished decision, the Western District of Texas held that an ALJ erred by not considering the costs to plaintiff of turning her half-interest in a mobile home into cash. Miranda v. Barnhart, 2002 WL 1492202 (W.D. Tex. Mar. 29, 2002). As in this case, the plaintiff would have recovered almost nothing in a forced sale. Distinguishing Chalmers, the court held that “it would be inconsistent with the purposes of the [Social Security] Act for an otherwise eligible SSI recipient to be rendered ineligible if the sale of a resource would fail to result in cash available to her for her support.” Id. at *6.

--Though SSA has adopted Chalmers, the court will not for two reasons. First, while Chalmers is binding upon ALJs by virtue of its adoption by SSA, it is only persuasive authority in this Circuit. Second, Miranda states the better rule, one consonant with the structure and purposes of the Social Security Act.

--[Fn. 1] The court’s research discloses one case in this Circuit applying Chalmers. Hunt v. Astrue, 581 F. Supp. 2d 238 (D. Mass. 2008). In that case, the court affirmed the ALJ’s decision to consider a trust fund containing $202,000 as an available resource. Hunt may be distinguished easily since, obviously, any action to revoke the trust would have left the plaintiff with more cash than the $2,000 statutory resource limit.

--POMS instructions “do not have binding force, although courts frequently consider them in interpreting the SSA’s statutory and regulatory policies.” Bitsacos v. Barnhart, 353 F. Supp. 2d 161, 168 (D. Mass. 2005)[citations omitted] . . . Courts in this Circuit have required SSA to follow the standards set forth in POMS repeatedly. Da Rosa v. Sec’y Health & Human Svcs., 803 F.2d 24, 26 (1st Cir. 1986)[citations omitted]. . . .

--Thus, the court cannot affirm where the agency committed a clear error of law by forcing Plaintiff to engage in litigation despite its own clearly stated policy not to require it. See SI 01120.010.C.2.

Cited:

42 U.S.C. § 1382(a)(3)(B)

20 C.F.R. § 416.1201(a).

20 C.F.R. § 416.1202(c)(2)(I)-(ii)

SSR 95-4C

consideration of GAF scores

2011-02-14T15:58:00.003-08:00

PD v. Michael J. Astrue, Commissioner of the Social Security Administration

2009-05-29

U.S. D.Ct. Mass.

Civil Action No. 08-30123-KPN

2009 U.S. Dist. LEXIS 47082; 142 Soc. Sec. Rep. Service 463

Remand

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: general anxiety disorder, dysthmic disorder, mixed personality disorder with both schizoid and dependent features, T-12 compression, injury to right shoulder

Issues:

onset date

treating physician’s opinion

opinion of non-examining, non-testifying physician

Excerpts:

--[T]he First Circuit explained, an advisory report of a non-examining, non-testifying physician “is entitled to evidentiary weight, which will vary with the circumstances, including the nature of the illness and the information provided the expert.”

--[GAF] scores may be of help in assessing functional ability, although they are not determinative.

--Indeed, if the opinion of the treating source on the nature and severity of an impairment is well supported, and is not inconsistent with other evidence in the record, the Commissioner must give it controlling weight.

--Moreover, regardless of the subject matter as to which [the treating source’s] opinion was offered, the Commissioner was required to provide “good reasons” for discounting it.

--But, in the court’s view, the ALJ did not adequately consider these low GAF scores insofar as they were contemporaneously assigned over a number of years by the treating physician best positioned to provide a longitudinal picture of Plaintiff’s impairments.

Cited

Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427 (1^st Cir. 1991)

Howard v. Comm’r of Social Security, 276 F.3d 235 (6^th Cir. 2002)

Querido v. Barnhart, 344 F. Supp. 2d 236, 246 (D. Mass. 2004)

Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000)

analysis of contrary evidence

2011-02-14T15:57:00.000-08:00

CC v. Michael J. Astrue, Commissioner of the Social Security Administration

2009-05-26

U.S. D.Ct. Mass.

Civil Action No. 08-10846-DPW

2009 U.S. Dist. LEXIS 44766

Affirms SSA

U.S. Judge: Douglas P. Woodlock

ALJ: NA

SSDI and/or SSI disability: Child’s SSI: severe lanaguage disorder, selective mutism

Issues:

conflicting evidence

Excerpts:

--In order for the ALJ to have found that R.M. had two marked impairments and was therefore disabled he would have to have accepted Dr. Logue’s first finding but rejected her second finding and accepted Dr. Lynch’s and Ms. Gunning’s findings regarding R.M.’s marked limitation in acquiring and using information, at the same time rejecting their finding with regard to his ability to interact and relate with others.

--“A hearing officer ‘can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.’” Coggon, 354 F.Supp.2d at 55 quoting NLRB v. Beverly Enterprises Massachusetts, Inc., 174 F.3d 13, 26 (1st Cir. 1999).

--Nevertheless, when there is considerable evidence contrary to the position of the Social Security Administration, the hearing officer must provide at least a minimal analysis of this contrary evidence. Dasilva-Santos, 596 F.Supp.2d at 189.

--While the ALJ opinion does not acknowledge Dr. Logue’s specific contradictory findings regarding R.M.’s ability to interact and relate, the opinion does provide an analysis as to why he did not find R.M. to have a marked limitation in this domain.

Cited

Coggon v. Barnhart, 354 F. Supp. 2d 40 (D. Mass. 2005)

DaSilva-Santos v. Astrue, 596 F. Supp. 2d 181 (D. Mass. 2009)

non-acceptable medical source

2011-02-14T15:55:00.002-08:00

JH v. Michael J. Astrue, Commissioner of the Social Security Administration

2009-05-06

U.S. D.Ct. Mass.

Civil Action No. 08-30119-KPN

2009 U.S. Dist. LEXIS 38891

Affirms SSA

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: arthritis in the spine, minimal degenerative osteoarthritis, mild degenerative joint disease at L4-L5 and L5-S1, mild generalized disc bulge at L4-L5

Issues:

controlling weight for non-acceptable medical source

credibility

Excerpts:

--In determining whether an individual is disabled, the Commissioner considers evidence from both “acceptable medical sources,” such as licensed physicians, on the one hand and “other sources,” such as Nurse Stewart and other nurse practitioners, on the other. 20 C.F.R. §§ 416.913(a), (d)(1) (2009). See Social Security Ruling (“SSR”) 06-03p . . . . However, because “acceptable medical sources” are the ones who can establish the existence of a medically determinable impairment, they are the only sources whose

opinions are potentially entitled to controlling weight.

--[T]he ALJ appropriately discounted the weight he did give to Nurse Stewart’s assessment because it was inconsistent with her own treatment notes and other evidence in the record.

--[T]he ALJ elicited evidence from Plaintiff herself . . . that actually contradicted her complaints.

--[T]he ALJ’s residual functional capacity assessment . . . conformed precisely with the evidence of record . . . .

Cited:

SSR 06-03p

ALJ may not render medical opinion

2011-02-14T15:55:00.000-08:00

PG v. Michael J. Astrue

2009-05-04

U.S. D.Ct. Mass.

Civil Action No. 08-CV-11151-LTS

2009 U.S. Dist. LEXIS 37798

Remand

U.S. Magistrate Judge Leo T. Sorokin

ALJ: NA

SSDI and/or SSI disability: degenerative joint disease of the lumbar spine, learning disorder, cognitive disorder, cellulitis, diabetes, morbid obesity, obstructive sleep apnea, polysubstance abuse in remission, post-traumatic stress disorder, major depression, mental retardation

Issues:

12.05(C) IQ score criteria

manifestation before age 22

Excerpts:

--[Plaintiff] obtained a full-scale IQ score of 69, placing him in the mild mental retardation range. . . . [Plaintiff] was fifty years old when he took the IQ test. This test is one of the Wechsler series of intelligence tests, which are specifically mentioned in Listing 12.00(D)(6)(c). The Listing states that, “the narrative report that accompanies the test results should comment on whether the IQ scores are considered valid and consistent with the developmental history and the degree of functional limitation.” Listing 12.00(D)(6)(a). Dr Schumer stated unequivocally that, “the . . . results are considered valid measures of his current intellectual . . . functioning. . . . The ALJ never rejected Dr. Schumer’s finding that the IQ test results were valid and properly measured [Plaintiff's] intellectual functioning at the time of the test.

--Although [Plaintiff] had an IQ score of 69, and the ALJ had earlier found that [Plaintiff] had several severe impairments . . . the ALJ found that he did not meet or equal the requirements of Listing 12.05[C]

--The ALJ may not render a medical opinion, especially in the face of Dr. Schumer’s statement and without other medical evidence, that [Plaintiff's] substance abuse history between the age of 22 and the date of the test in November, 2006 when he was fifty years old diminished his mental functioning as measured by the IQ test. See Rosado v. Secretary of Health and Human Services, 807 F.2d 292, 293-94 (1st Cir.1986) (An ALJ may not substitute his own judgment for an uncontroverted medical opinion); Rose v. Shalala, 34 F.3d 13, 18 (1^st Cir.1994); Mathious v. Barnhart, 490 F.Supp.2d 833, 847 n. 14 (E.D. Mich.2007) (“The ALJ is not a medical doctor . . . and is therefore not qualified to determine whether someone’s functional limitations and IQ scores are the product of alcohol or drug usage without some competent evidence or more thorough explanation.”).

--Substantial evidence also fails to support the ALJ’s conclusion that [Plaintiff's], “learning disability . . . could be the cause of the low IQ scores.”

--Further, the First Circuit has also stated that, “courts do not engage in further inquiry as to the first (I.Q.) requirement of Listing 12.05[C] once they find that the claimant’s I.Q. was below 70.”

--[T]he Court notes that other courts have often applied a presumption, “for purposes of meeting the longitudinal [onset prior to age 22] requirement of Listing 12.05[C], that a person’s IQ remains fairly constant throughout life absent evidence indicating that the person suddenly became mentally retarded.” [See Fn. 8 below.]

--[Fn. 8] This remains an open question in the First Circuit.

Cited:

Nieves v. Sec’y of Health and Human Services, 775 F.2d 12 (1^st Cir. 1985).

hypothetical must conform to medical record

2011-02-14T15:53:00.001-08:00

AF v. Michael J. Astrue, Commissioner of the Social Security Administration

2009-03-19

U.S. D.Ct. Mass.

Civil Action No. 08-30078-KPN

2009 U.S. Dist. LEXIS 24423

Affirms SSA

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA; VE: Dr. Blake

SSDI and/or SSI disability: a degenerative disc with disc dessication at the L5-S1 vertebrate, with a small posterior central disc herniation; bilateral leg pain

Issues:

Avery factors

medical basis for hypothetical

Excerpts:

--[T]he ALJ’s inquiries at the administrative hearing addressed each of the Avery factors.

--The ALJ also made “specific findings as to the ‘relevant evidence’ when deciding to disbelieve [Plaintiff].”

--[A]n administrative law judge has no obligation to review, cite, discuss and weigh each and every piece of evidence before him. See Sanabria v. Astrue, 2008 WL 2704819, at *3 (D. Mass. 2008) (“[Although] the ALJ did not specifically pass on the impact of every piece of evidence in the record . . . [he] need not do so.”).

--Plaintiff suggests that the ALJ’s third hypothetical question should have controlled. That question added the following additional limitation: “secondary to problems with chronic pain and potential side effects of medication, narcotic and otherwise, that the individual would have the potential of being off task from any work duties at least 33 percent of the time.” . . . In response, the vocational expert stated that there would be no jobs available in the national or local economy for an individual with that added limitation.

--Plaintiff’s argument to the contrary, this third hypothetical question, although asked, did not conform to the medical record. Simply put, the record contains no evidence of the severity of the pain medication’s side effects or the amount of time Plaintiff would potentially be unable to perform work due to such side effects. The record merely reflects that Plaintiff’s then-current pain medications caused her to feel “dizzy,” “tired[ ]” and “groggy.” . . . Plaintiff’s representative had ample opportunity to develop the record further with respect to the effects of Plaintiff’s pain medications but declined to do so.

Cited:

Arroyo v. Barnhart, 295 F. Supp. 2d 214 (D. Mass. 2003)

POMS persuasive force

2011-02-14T15:52:00.001-08:00

DA v. Michael J. Astrue, Commissioner, Social Security Administration

2009-03-13

U.S. D.Ct. Mass.

Civil Action No. 07-30174-KPN

602 F. Supp. 2d 266; 2009 U.S. Dist. LEXIS 21580; 142 Soc. Sec. Rep. Service 104 (D. Mass.)

Affirms SSA

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: Worker’s Compensation Offset

Issues:

Period of time to prorate and offset worker’s compensation benefits

POMS guidelines

Excerpts:

--Where the question presented to the court is one of law, however, the Commissioner’s determination is reviewable to determine whether his conclusions of law comport with controlling legal standards. See Slessinger v. Sec’y of Health & Human Servs., 835 F.2d 937, 939 (1st Cir. 1987).

--The Commissioner also asserts that the ALJ’s decision complied with agency guidelines set out in the Program Operations Manual System (“POMS”). . . . POMS, section DI 52001.555(C)(4), 2001WL 1936336 (Prorating a Workers’ Compensation Public Disability Benefit (WC/PDB) Lump Sum).

--[Fn. 4] While the POMS guidelines do not have the force of law, Schweiker v. Hansen, 450 U.S. 785, 789 (1981), they have value, effect and persuasive force as the agency’s interpretation of the statutory mandate and deserve deference as long as they are reasonable and consistent with the statute, Barnhart v. Walton, 535 U.S. 212, 221- 22 (2002). See Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998); Davis v. Sec’y of Health & Human Servs., 867 F.2d 336, 340 (6th Cir. 1989).

--Plaintiff’s argument with respect to the 120 month proration is creative but, in the end, unpersuasive. For one thing, Plaintiff barely acknowledges that the SSDI offset is governed in the first instance by federal not state law.

--In essence, the First Circuit held that lump-sum awards were not exempt from consideration for an offset. Davidson, 942 F.2d at 95. Nevertheless, the First Circuit remanded the matter so that the district court could address whether the lump-sum award should be prorated over the plaintiff’s lifetime, an argument raised for the first time on appeal. Id. at 96. The First Circuit did not express an opinion on the merits of that argument nor has it addressed the issue since.

--Third and finally, lump-sum awards, by their very nature, are compromises which take into account a host of considerations unrelated to a claimant’s work capacity.

Cited:

Sciarotta v. Bowen, 837 F.2d 135 (3d Cir. 1988)

Sciarotta v. Bowen, 735 F. Supp. 148 (D.N.J. 1989)

Davidson v. Sullivan, 942 F.2d 90 (1^st Cir. 1991)

ALJ cannot reject evidence for no reason

2011-02-14T15:51:00.001-08:00

KD v. Michel [sic] J. Astrue, as the Commissioner, Social Security Administration

2009-02-10

U.S. D.Ct. Mass.

Civil Action No. 08-10019-WGY

596 F. Supp. 2d 181; 2009 U.S. Dist. LEXIS 11036; 141 Soc. Sec. Rep. Service 143 (D. Mass. 2009)

Remand

U.S. Judge: William G. Young

ALJ: NA

SSDI and/or SSI disability: back pain, leg pain, herniated disc, disc bulges, diffuse degenerative changes, sciatica, asthma, depression and anxiety

Issues:

ALJ must analyze conflicting evidence

medical consultant must refer to specific evidence

pain-credibility

ALJ duty to provide adequate basis for court determination re substantial evidence

Excerpts:

--DaSilva's recitation of the evidence omitted from the body of the decision does, however, demonstrate that with regard to a number of issues, there was a marked conflict in the evidence that went unaddressed in the decision.

--Administrative evidentiary conflict resolution is not, however, utterly unfettered. Seventh Circuit jurisprudence establishes that where there is considerable evidence contrary to the position of the Social Security Administration, the hearing officer must provide at least a minimal analysis of this contrary evidence. See Orlando v. Heckler, 776 F.2d 209, 213 (7th Cir.1985).

--In this case, the hearing officer never acknowledged the evidence that ran counter to his conclusions nor did he analyze, even minimally, the reasons for his resolution of the conflicts.

--According to 20 C.F.R. 404.1545(a)(1), where there is a hearing, the hearing officer is responsible for making the residual functional capacity assessment. . . . the hearing officer simply relied on the conclusions of the medical consultant . . . . The consultant never appropriately explained her conclusion by referring to the specific evidence. As this assessment was not appropriate itself, it may not become the main basis for the hearing officer's findings.

--There is no actual explanation, however, of the reasons that the hearing officer found DaSilva's back pain claims only partially credible.

--The hearing officer "cannot reject evidence for no reason, or for the wrong reason, and must explain the basis for his findings. Failure to provide an adequate basis for the reviewing court to determine whether the administrative decision is based on substantial evidence requires a remand to the [hearing officer] for further explanation." Crosby v. Heckler, 638 F. Supp. 383, 385-386 (D. Mass.1985) (Zobel, J.) (citation omitted).

substantially justified litigation-- EAJA

2011-02-14T13:45:00.000-08:00

BB v. Michael J. Astrue, Commissioner of Social Security

2009-01-06

U.S. D.Ct. Mass.

Civil Action No. 07-30075-KPN

593 F. Supp. 2d 310; 2009 U.S. Dist. LEXIS 6008; 138 Soc. Sec. Rep. Service 791 (D. Mass.)

Plaintiff’s motion denied

U.S. Magistrate Judge: Kenneth P. Neiman

ALJ: NA

SSDI and/or SSI disability: EAJA Fees

Issue:

EAJA Fees

Excerpts:

--The Commissioner acknowledges that he has the burden of establishing by a preponderance of the evidence that his litigation position was substantially justified. See United States v. Yoffe, 775 F.2d 447, 450 (1st Cir. 1985). . . .That inquiry entails three considerations: (1) “did the government have a reasonable basis for the facts alleged,” (2) “did it have a reasonable basis in law for the theories advanced,” and (3) “did the facts support its theory.” Yoffe, 775 F.2d at 450 . . . .

--[Fn. 2] [A] court’s reversal of a decision to deny benefits is not determinative as to whether the defendant’s position was substantially justified. . . . The standard, however, should not be read to raise a presumption that the government position was not substantially justified, simply because it lost the case.

--Accordingly, any “failure” on the part of the ALJ to apply Social Security Ruling 83-20, if failure it was, was caused by Plaintiff’s representative’s multiple errors.

Cited:

Baez v. Astrue, 550 F. Supp. 2d 210 (D. Mass. 2008)