Summary
stating the responsibility to develop the record includes, for example, "ordering easily obtained further or more complete records"
Summary of this case from Conway v. BerryhillOpinion
CIVIL ACTION NO. 02-10627-DPW
June 24, 2003
MEMORANDUM AND ORDER
This is an appeal from a decision of the Commissioner of the Social Security Administration ("SSA") denying a claimant social security disability insurance ("SSDI") and supplemental security income ("SSI") benefits. Before me is the claimant's motion for summary judgment on the appeal, and the Commissioner's motion for an order affirming her decision.
I. BACKGROUND
Peter G. Dalis instituted this action under 42 U.S.C. § 405(g) to review the Commissioner's order denying him SSI and SSDI benefits. The claimant contends that the Commissioner erred in denying him benefits, and now seeks to have the Commissioner's determination reversed or, in the alternative, remanded, as well as to be awarded "such other and further relief" as this court deems just, including legal fees.
Peter G. Dalis originally brought this motion. After his death in December 2002, the voluntary administrator of his estate, John P. Dalis, was substituted as plaintiff. For the sake of simplicity, I will hereinafter refer to the decedent as "the claimant," "the plaintiff," and "Dalis."
A. Medical Chronology
The claimant was born on October 3, 1953. At the time he applied for disability benefits, he was 45 years old. He had been a fish cutter and a tractor trailer driver.
Dalis sought medical attention for back pain beginning in 1990. He underwent a laminectomy in August 1994. He had episodes of back pain in 1995, 1996, and 1997.
Dr. Michael Taylor treated the plaintiff for headaches from October 2, 1998 through October 8, 1999. He diagnosed chronic headache and lower back pain. Dr. Taylor noted, "Only medications effective per his report Cafregot supp and Percocet."
The plaintiff sought treatment for his headaches from Dr. William Guptill at St. Anne's Pain Management Center beginning on January 20, 1999. At that time, Dalis described his migraine pain "as a 10 over 10 with two out of seven days of 0 over 10 pain." His medications included Cafergot suppositories and Percocet. In June 1999, Dr. Guptill noted that the claimant had violated his drug contract with the center in a dispute regarding the oxycodone prescription for his headaches. In October 1999, Dalis had an outburst at the center, which resulted in him sending letters to the nursing staff and a doctor asking for an apology. In November 1999, Dalis reported to Dr. Guptill that he was beginning to suffer lower back pain again, which he described as a "line of knots" running vertical on his back.
In May 1999, the plaintiff began seeing Dr. Peter Fleming at the Headache Centre at Faulkner Hospital. Dalis reported daily headaches that lasted 6-10 hours. Dr. Fleming's notes state that Dalis believed his headaches had begun in 1988. In May 1999, Dr. Fleming's noted that Dalis suffered from headaches, migraines, chronic daily headaches, and rebound from his medication. In July 1999, he added probable dependence. In October 1999, he diagnosed dependency and advised the claimant to look into a opiate maintenance program. On December 7, 1999, Dr. Fleming reports that the claimant's headaches "may be improving a bit [, with] headaches perhaps about every other day rather than everyday." On February 17, 2000, Dr. Fleming reported that Dalis had seen some improvement and was delaying his application to the rehabilitation center.
Dr. Robert Sandfort of Truesdale Surgical Associates performed hernia surgery on Dalis on December 15, 1999. Dr. Taylor completed a residual functional capacity questionnaire for the plaintiff on December 16, 1999. (It appears the evaluation may have taken place on December 14, 1999, not the day after the plaintiff's hernia surgery.)
In January 2000, Dr. Joseph Doerr of St. Anne's Hospital completed a functional capacity estimation following a consultation. In February 2000, Dr. Aldo Beretta of the Southcoast Wellness Center examined the claimant regarding his back pain. He recommended physical therapy, anti-inflammatories, and a progressive walking program.
Dr. Andrew Mazur treated the plaintiff for a knee impairment in March 2000. The treatment included aspiration and steroid injection. The following day, Dalis walked for a mile and a half and the pain and swelling returned.
An MRI exam was conducted on the lumbar region of the plaintiff's back on April 7, 2000. The MRI showed "broad based left L5-S1 extradural defect, primarily osteophytic with mild left lateral recess encroachment, transitional vertebral body, scoliosis and degenerative disc disease, [and] possible left common iliac artery aneurysm."
B. Procedural History
Dalis filed applications for SSDI and SSI benefits on March 9, 1999, alleging an inability to work since February 12, 1999. The Social Security Administration denied the applications first on April 15, 1999, and on reconsideration on August 13, 1999. Dalis filed a request for a hearing, which was held on March 22, 2000. Dalis, his attorney, and a vocational expert, Steven Sachs, Ph.D., appeared at the hearing. On May 12, 2000, the Administrative Law Judge (the "ALJ") found that Dalis did not have a disability and was thus not entitled to SSI or SSDI benefits. The Appeals Council denied Dalis's request for review on February 8, 2002, making the ALJ's decision the final decision of the Commissioner. On April 3, 2002, Dalis filed this action appealing the final decision of the Commissioner.
C. Disability Standard and the Decision of the ALJ
1. The Standard — Social Security regulations provide a five-step sequential evaluation to determine whether an individual is entitled to SSDI and SSI benefits. 20 C.F.R. § 404.1520; see Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). The evaluation process is as follows:
20 C.F.R. Part 404 relates to the provision of SSDI benefits and Part 416 to SSI benefits. Because these two sets of regulations are substantively identical, I will cite only to Part 404. See Craig v. Chater, 76 F.3d 585, 580 n. 1 (4th Cir. 1996).
First, does the claimant currently working and that work is substantial gainful activity? If so, the claimant is considered not disabled. 20 C.F.R. § 404.1520(b).
Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits [the claimant's] physical or mental capacity to do basic work activities." If not, the claimant is considered not disabled. 20 C.F.R. § 404.1520(c).
Third, does the claimant's impairment meet the duration requirement and equal an impairment on the list of impairments in Appendix 1 to the social security regulations? If so, the claimant is considered disabled. 20 C.F.R. § 404.1520(d).
Fourth, does the claimant's impairment permit the kind of physical or mental demands of work performed in the past? If so, the claimant is not considered disabled. 20 C.F.R. § 404.1520(e).
Fifth, can the claimant do other work considering the claimant's "residual functional capacity," age, education, and past work experience? If not, the claimant is considered disabled. 20 C.F.R. § 404.1520(f).
2. The ALJ's Decision — In this case, the ALJ found that the claimant had not engaged in substantial gainful activity since February 12, 1999. He determined that the claimant's "chronic degenerative disk disease and headaches significantly affects his ability to engage in basic work activities and constitutes a severe impairment" but that his condition did not meet the clinical requirements of an impairment in Appendix 1.
Next the ALJ concluded "[b]ased on the evidence in file and the testimony at the hearing," that the claimant retained the residual functional capacity to perform a full range of sedentary work and, because his past jobs were "classified from light to medium in their exertional demands," he could not return to his past relevant work.
In drawing this conclusion, the ALJ evaluated the credibility of claimant's testimony at the hearing regarding his lower back and headache pain in light of the medical records from Dr. Guptill, Dr. Doerr, Dr. Norton, Dr. Beretta, Dr. Taylor, Dr. Fleming, and Dr. Mazur. The ALJ did not find the claimant's testimony regarding his total disability "fully credible" because the claimant reported that he was able to do what the ALJ characterized as "exertionally light activities": doing housework, cooking, shopping for groceries, trying to walk and exercise his back, climbing stairs to get to his room, walking for 45 minutes at a time, standing up to an hour as long as he could shift his weight, sitting for ½ hour before he had to stand up, and walking 1 ½ miles after his knee was aspirated.
The ALJ also concluded that repeated medical examinations did not corroborate the claimant's alleged lower back pain. He noted that, while the MRIs conducted on April 7, 2000 showed defects in the cervical and lumbar spines, the claimant had never complained of problems with his neck. He noted that steroid injections for his back were cancelled in February 1999 because the claimant reported "only 2/10 pain" and that the claimant did not report further back problems until November 1999. Examinations in January 1999 and January, February, and March of 2000 showed no abnormalities, except for some tenderness and "limited flexion and extension of the back." In December 1999, Dr. Taylor found the claimant able to sit, walk, and stand 4 hours in an 8-hour day, and engage in a range of activities such as frequently lifting up to 20 pounds, engaging in simple grasping and reaching with his hands, and occasionally bending and squatting. In January 2000, Dr. Doerr limited the claimant to lifting less than 30 pounds with no frequent bending and twisting and being "allowed to alternate between sitting and standing at will and frequent stretch breaks." As far as the claimant's reported changes to his spine and setback with his right knee were concerned, the ALJ found, in light of the recent appearance of those problems, no basis for a conclusion that they would cause the claimant to be disabled for a period of 12 months.
Turning next to the issue of the claimant's headaches the ALJ concluded that, "contrary to the claimant's assertion at the hearing," the claimant's headaches had "improved." [Id.] The ALJ then reviewed the claimant's medical records from May 1999 through February 2000.
First, the ALJ turned to the records provided by Dr. Fleming:
As early as May 10, 1999, within four months of the claimant's alleged date of onset, Dr. Fleming opined that the migraines had transformed into chronic (presumably less intense than acute) daily headaches. The claimant was also described as suffering a rebound effect from the medication, further prolonging the headaches. Dr. Fleming found the claimant dependent on the medication on July 29, 1999.
Second, the ALJ pointed to the records provided by Dr. Guptill. According to the ALJ, Dr. Guptill had "opined the claimant justified his drug-seeking behavior with his reported headache pain," and had noted on December 7, 1999 that "the claimant reported that his headaches were improving a bit. They were occurring every other day rather than every day."
Third, the ALJ turned to Dr. Taylor's evaluation of the claimant:
Dr. Taylor assessed the effects of the headaches on the claimant's ability to work on December 16, 1999, and found no impairment in the ability to understand, carry out and remember instructions, mild impairment in the ability to respond appropriately to supervision and co-workers and perform simple, complex and varied tasks, moderate impairment in the ability to respond appropriately to supervision and co-workers and perform simple, complex and varied tasks, moderate impairment in the ability to respond to customary work pressures and perform repetitive tasks, moderately severe impairment in the ability to relate to other people, moderately severe restriction of daily activities and moderately severe constriction of interests.
The ALJ noted that "[t]he claimant reported some improvement on February 17, 2000. He had stopped smoking cigars and had discontinued several of the medications." From this medical history, the ALJ held that the "record supports a conclusion that as the claimant gains control over his drug-seeking behavior and cuts down on his medications, the headaches improve."
Based on "the evidence in file and the testimony at the hearing," the ALJ found that the claimant retained the residual functional capacity to perform "a full range of sedentary work as long as he is allowed to alternate between sitting and standing at will and with moderate reduction in the ability to maintain attention and concentration and deal appropriately with the ordinary requirements of attendance, perseverance and pace," and that the claimant could not return to his past work. He then drew upon the testimony of Dr. Sachs to find that there were a "significant" number of jobs that the claimant could perform. Consequently, the ALJ concluded that the claimant was not disabled.
II. DISCUSSION
The claimant argues that the ALJ made two errors in his denial of benefits: he failed (1) to develop the record properly and evaluate the claimant's alleged mental impairments and (2) to follow the appropriate standards for evaluating the claimant's credibility and his allegations of pain.
A. Standard of Review
A district court has the power to enter a judgment "affirming, modifying, or reversing" a decision of the Commissioner of the Social Security Administration ("SSA") "with or without remanding the cause for a hearing." 42 U.S.C. § 405(g). A denial of social security disability benefits must be upheld unless the Commissioner has committed legal or factual error in evaluating an applicant's claim. Manso-Pizarro v. Sec'y of Health Human Servs., 76 F.3d 15, 16 (1st Cir. 1996).
The Commissioner's factual findings are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro, 76 F.3d at 16. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see Montalvo v. Barnhart, 2003 WL 136257, at *1 (D.Mass. Jan. 16, 2003). Questions of law are reviewed de novo. Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001); Ward v. Comm'r of Social Security, 211 F.3d 652, 655 (1st Cir. 2000).
B. The claimant's alleged mental impairment
The claimant argues that the record established the presence of a mental disorder and that the ALJ erred in failing to develop that issue at the hearing. Because I find insubstantial evidence in the record of any mental impairment, I reject the claimant's contention.
Furthermore, I must note what appears to be an attempt on the part of the claimant to overstate when a heightened responsibility to develop the record attaches to the ALJ. The claimant accurately recites the ALJ's duty "to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 111 (2000); see Seavey v. Barnhart, 276 F.3d 1, 8 (1st Cir. 2001). This duty stems from the "nonadversarial nature of Social Security disability determinations," which are "investigatory, or inquisitorial, rather than adversarial." Seavey, 276 F.3d at 8; see Sims, 530 U.S. at 111. The claimant is not wholly accurate, however, when he asserts that the ALJ is "charged with the greater responsibility to develop the record, `in those cases in which the claimant is unrepresented or has a severe mental impairment.'" [Memo at 9 (citing Sylvia v. Barnhart, Civ. No. 01-11167-RCL (D. Mass. Aug. 1, 2002) (emphasis added)).] The claimant has plucked this particular quotation without context from the opinion in Sylvia v. Barnhart, the holding of which contradicts the proposition for which the claimant has cited to it. Interestingly, counsel for the claimant here was also counsel for the claimant in Sylvia.
In Sylvia, the claimant, Brett Sylvia, argued that in denying him benefits the ALJ had committed three errors. The first issue Sylvia raised was a denial of "due process by not having an opportunity to cross-examine the medical expert that the ALJ asked to appear at the hearing." Sylvia at 3-4. Second, Sylvia argued that "the ALJ did not follow First Circuit standards for pain evaluation and credibility and as a consequence did not adequately assess his symptoms" or develop the record on his physical disability. Sylvia at 4. Third, he argued that "the ALJ did not fulfill his duty to develop the record with regard to a possible mental impairment." Sylvia at 4. Dalis's memorandum in support of summary judgment draws from the Sylvia court's evaluation of these issues. His citations, however, do not capture the context in which the court addressed the issues.
In support of his argument that the ALJ failed to develop the record properly, Dalis quotes from Sylvia:
The Sylvia court reviewed the case law and determined that while generally in `run of the mill cases' the Plaintiff rather than the ALJ is charged with the greater responsibility to develop the record, `in those cases in which the claimant is unrepresented or has a severe mental impairment' the ALJ's duty rises to a higher level. (Emphasis added) . . .
[Motion for Summary Judgment, at 9-10.] Dalis misconstrues the meaning of the court's statements. From the plaintiff's presentation of the quotations it appears that, even if a claimant is represented at a hearing before the ALJ, the ALJ has a greater responsibility to develop the record. The court in Sylvia concluded just the opposite.
The Sylvia court begins its discussion of whether the ALJ failed to develop the record by pointing out that Sylvia has omitted a crucial portion of a quotation to which he has cited:
In support of the overall failure of the ALJ to develop the record, the plaintiff cites a case that sets forth the ALJ's responsibilities:
In most instances, where appellant himself fails to establish a sufficient claim of disability, the Secretary need proceed no further. Due to the non-adversarial nature of disability determination proceedings, however, the Secretary has recognized that she has certain responsibilities with regard to the development of evidence and we believe this responsibility increase in cases where the appellant is unrepresented, where the claim itself seems on its face to be substantial, where there are gaps in the evidence necessary to a reasoned evaluation of the claim, and where it is within the power of the administrative law judge, without undue effort, to see that the gaps are somewhat filled — as by ordering easily obtained further or more complete reports or requesting further assistance from a social worker or psychiatrist or key witness.
Heggarty, 947 F.2d at 997 (quoting Currier, 612 F.2d at 598). The just-quoted portion of the opinion in Heggarty comes entirely from Currier. Id. What is missing here from the original Currier quotation, however, is the final observation of the court: `We emphasize that we do not see such responsibilities [of the ALJ to investigate] arising in run of the mill cases . . .' Id. This action appears to be the precise `run of the mill' case that the Currier court described.
Sylvia at 5-6. Because Sylvia was represented by counsel at the hearing before the ALJ, the court rejected the plaintiff's claim that the ALJ failed to develop the record on the claimant's alleged physical disability:
Furthermore, because the plaintiff was represented by counsel at the hearing, it cannot be said that it was the duty of the ALJ to develop facts that were neglected by the claimant's attorney. . . . The case law suggests that it is only in those cases in which the claimant is unrepresented or has a severe mental impairment, that the ALJ's responsibilities increase to the point that he must make the plaintiff's case for him. . . . The plaintiff does not cite any case, and I have not found any, where an ALJ was required to develop the record when the claimant was represented by counsel at a hearing before the ALJ.
Sylvia at 6-7 (emphasis added). The court then affirmed the Commissioner's determination that the plaintiff was not physically disabled. Sylvia at 7.
The Sylvia court did remand the portion of Sylvia's claim relating to the failure of the ALJ to develop facts relating to the claimant's depression. The court found that, in light of the fact that the claimant and his attorney had raised the issue of his mental impairment at several points before and during the hearing, the ALJ had a responsibility to develop the facts regarding that impairment.
Sylvia had referenced his alleged depression and its effects in his statement in support of his request for a hearing before the ALJ, the day before the hearing the plaintiff wrote a letter to the ALJ requesting a mental evaluation of the plaintiff to develop the record as to his impairment, and his attorney put the plaintiff's alleged mental impairment before the ALJ at the hearing as a basis for seeking benefits. Sylvia at 7. Despite these efforts, the ALJ never addressed the issue of Sylvia's mental impairment and did not order the evaluation. The district court remanded this portion of the plaintiff's claim, holding that "[b]ecause the plaintiff's mental impairment was an issue addressed by his attorney, it was the ALJ's responsibility to further develop the facts relating to the claimant's depression." Sylvia at 8.
In contrast, neither Dalis nor his attorney made note of any mental impairment at any time prior to or during the hearing before the ALJ. Because the claimant never said he had a mental impairment, and because he submitted scant evidence relating to such an impairment, the ALJ was under no obligation to consider the claimant disabled on that basis.
The ALJ does have an obligation to develop the claimant's "complete medical history for at least the 12 months preceding the month in which you file your application." 20 C.F.R. § 404.1512; see 42 U.S.C. § 423(d)(5)(B). Nevertheless, the Administration "will consider only impairment(s) you say you have or about which we receive evidence." 20 C.F.R. § 404.1512. Furthermore, because there is insufficient medical evidence of a mental impairment on the record, the ALJ could not proceed beyond the first step in evaluating mental impairments, which is "to evaluate your pertinent symptoms, signs, and laboratory findings to determine whether you have a medically determinable mental impairment(s)." 20 C.F.R. § 404.1520a(b)(1); see Plummer v. Apfel, 186 F.3d 422, 433 (9th Cir. 1999).
In his Disability Report filed with the Social Security Administration in March 1999, the claimant listed "migraine pain and back pain from past injury" as "illnesses, injuries or conditions that limit your ability to work." In his reconsideration disability reports dated May 15, 1999, and September 20, 1999, the claimant does not mention any mental impairments. The only mention of the claimant's mental state at the hearing, by either the claimant or his attorney, is as follows:
The migraines have been horrendous, Your Honor. Because it, I believe because of the strain of trying to work with my back going off on me consistently. That's given me stress and tension to work with, which it hits me with migraines everyday. And the medicine that they have me on gives me varying side effects of dizziness and nausea, nausea, nausea and vomiting. The medicine they give me for migraines. And to take, to be at work, to get a migraine and to take that medicine and wait four hours for it to take affect, I mean you feel like a limp rag all day at work. Nobody wants to work with you because you're all aggravated and pain. You're going through side effects. And it was a miserable last couple of years of working. . . ."
In support of his claim that the record established the presence of a mental disorder, the claimant points to the phrase highlighted above: "Nobody wants to work with you because you're all aggravated." In context, however, this "aggravation" did not appear to stem from a mental disorder but rather the pain of the migraine itself and from the side effects of the medicine.
In an effort to show that "the record clearly established the presence of a mental disorder," the plaintiff also references statements in the record by physicians who had examined the plaintiff. These statements only serve to corroborate that plaintiff appeared, at times, aggravated and irritable.
First, the plaintiff argues that the presence of a "medically determinable mental impairment existed" from Dr. Michael Taylor's opinion as stated on the Supplemental Questionnaire as to Residual Functional Capacity that the plaintiff had moderately severe "impairment in his ability to relate to other people," "degree of restriction in daily activities," and "constriction of interests." Contrary to the plaintiff's interpretation of Dr. Taylor's findings, the plaintiff's impaired ability to relate to other people or engage in daily activities or interests was not an indication that a "medically determinable mental impairment existed." Dr. Taylor did not diagnose the claimant with a mental impairment. In fact, the Questionnaire specifically indicates that a psychological evaluation was not obtained.
Second, the plaintiff argues that the ALJ had notice of claimant's alleged mental impairment because a psychological evaluation of the claimant had been performed in the past by Dr. Peter Mosbach. Dr. Mosbach's notes, dated February 17, 2000, indicate that he had seen Mr. Dalis in the past for a psychological evaluation, but that the claimant "has learned to perform relaxation techniques, and thus does not require additional training in stress management." These notes would indicate that the claimant's psychological issues were related to stress management and had been resolved to Dr. Mosbach's satisfaction.
Finally, as noted by the ALJ noted in his decision, the plaintiff became agitated during an outburst at a pain clinic. As described by Dr. Fleming in his notes, the claimant was "[a]sked to leave St. Anne's Pain Clinic because he became irritable and angered with them `about predating prescriptions.'" Dr. Guptill, a physician at St. Anne's, was not present at the incident, but noted that the claimant reportedly presented himself at the clinic "in a very disorderly manner . . . and he made several disparaging statements." In the following paragraph, he wrote, "It is difficult for me really to evaluate Mr. Dalis, but I honestly feel that Mr. Dalis has a major psychological imbalance and possible drug-seeking behavior that he justifies with his headache pain." The ALJ acknowledged Dr. Guptill's observation in his decision.
By itself, Dr. Guptill's opinion that the claimant had a "major psychological imbalance," in light of the observation that it was "difficult" for him to evaluate the claimant and that the claimant had "possible drug-seeking behavior," did not constitute evidence such that the ALJ was obligated to consider the plaintiff mentally impaired. Moreover, Dr. Guptill's isolated observation, which was not made after a psychological evaluation of the claimant, did not create an obligation on the part of the ALJ to develop the record regarding the plaintiff's mental impairment, especially in light of the fact that, as discussed above, neither the plaintiff nor his attorney raised the issue at any time before or during the hearing.
C. Pain Evaluation and Credibility
According to the claimant, the ALJ's second error was his alleged failure to follow the proper standards for pain evaluation and credibility provided in Avery v. Sec'y of Health Human Servs., 797 F.2d 19 (1st Cir. 1986) and Social Security Ruling 96-7p, 61 Fed. Reg. 34483 (July 2, 1996).
The claimant also suggests that the ALJ found the claimant to be engaged in substantial gainful activity as a result of the claimant's ability to take care of himself, perform household tasks, and hobbies, in contravention of 20 C.F.R. § 404.1572. As discussed above, the ALJ in fact found that the claimant was not engaged in substantial gainful activity.
In Avery, the First Circuit set forth a road map for evaluating a claimant's complaints of pain. See Reeves v. Barnhart, 2003 WL 21135688 (D.Mass. May 12, 2003). A "primary requirement" under the Act is "a clinically determinable medical impairment that can reasonably be expected to produce the pain alleged." Avery, 797 F.2d at 21. When a claimant presents "claim of pain not supported by objective findings," an ALJ must "obtain detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant, his/her physicians from whom medical evidence is being requested, and other third parties who would be likely to have such knowledge." Avery, 797 F.2d at 23 (citations omitted).
The ALJ must then consider what are known as "the Avery factors": (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate the claimant's pain or other symptoms; (5) any treatment, other than medications, the claimant receives or has received for relief of the pain or other symptoms; (6) any measures used or have been used to relieve pain or other symptoms; and (7) any other factors relating to claimant's functional limitations and restrictions due to pain. 20 C.F.R. § 404.1536; see Avery, 797 F.2d at 23-25; see also Mosca v. Massanari, 2002 WL 511522, at *9 (D.Mass. Jan. 30, 2002); Ruling 96-7p, 61 Fed. Reg. at 34485.
An ALJ is not required to take a claimant's subjective allegations at face value. Sexton v. Barnhart, 247 F. Supp.2d 15, 23 (D.Mass. 2003) (citing Bianchi v. Sec'y of Health Human Servs., 764 F.2d 44, 45 (1st Cir. 1985)). An ALJ's credibility determination "is entitled to deference, especially when supported by specific findings." Frustaglia v. Sec'y of Health Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (holding that the adequacy of the ALJ's findings regarding head pain and credibility were supported by substantial evidence); see Mosca, 2002 WL 511522 at *9. A finding that the claimant's testimony regarding his pain is not credible "must be supported by substantial evidence and the ALJ must make specific findings as to the relevant evidence he considered in determining to disbelieve" the claimant. Da Rosa v. Sec'y of Health Human Servs., 803 F.2d 24, 26 (1st Cir. 1986); see Mosca, 2002 WL 511522 at *9.
The Commissioner of Social Security issued Ruling 96-7p to clarify when the evaluation of pain symptoms requires a finding about the credibility of a claimant's statements about pain and its effects, to explain what factors should be considered in assessing the credibility of those statements, and to emphasize the importance of explaining the reasons behind a credibility finding. 61 Fed. Reg. 34483, 34484 (July 2, 1996). The Ruling requires that the adjudicator consider the entire record in making a credibility determination, including the objective medical evidence, the claimant's statements about symptoms, information about the symptoms and their effect on the claimant from treating or examining physicians or psychologists, and any other relevant evidence in the record. 62 Fed. Reg. at 34484. A claimant's statements regarding the intensity, persistence, and effect of pain or other symptoms "may not be disregarded solely because they are not substantiated by objective medical evidence." 62 Fed. Reg. at 34484.
A credibility determination may not consist of a "single, conclusory statement" or a recitation of the Avery factors. Instead, the adjudicator must provide
specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.62 Fed. Reg. at 34484.
A lack of consistency between a claimant's statements from one period of time to another "does not necessarily mean that the individual's statements are not credible." 62 Fed. Reg. at 34486. The fact that symptoms "vary in their intensity, persistence, and functional effects, or may worsen or improve with time" may explain why the claimant does not always allege the same intensity, persistence, or functional effects of his symptoms. 62 Fed. Reg. at 34486. As such, the Ruling instructs the ALJ to "review the case record to determine whether there are any explanations for any variations in the individual's statements about symptoms and their effects." 62 Fed. Reg. at 34486.
The plaintiff argues that the ALJ failed to consider the factors provided in Avery and Ruling 96-7P. He notes that the ALJ did not discuss the adverse side effects of the claimant's medications or his attempts to try "other pain modalities" including heat and ice, physical therapy, meditation, and self-hypnosis "to no avail." The claimant also argues that the ALJ did not mention in his determination the problems claimant testified to at the hearing regarding performing daily activities.
I disagree. The ALJ was careful to lay out detailed reasons for his determination that he did not find the claimant's testimony regarding his pain "fully credible." In accordance with Avery and Ruling 96-7p, the ALJ reviewed the claimant's testimony concerning his daily activities; the location and intensity of his back, knee, and migraine pain; the apparent aggravating effect of his migraine medication; and the fact that he had discontinued smoking cigars and taking several medications. In light of the objective medical evidence in the record, he concluded that the claimant's testimony was not credible. To support this conclusion, as discussed above, he highlighted the inconsistencies between the claimant's testimony and the reports his physicians' submitted.
As far as his back pain was concerned, the claimant did not report any back pain from February 1999 to November 1999 and several physician evaluations of his pain "showed no abnormalities except for some tenderness to palpation and limited flexion and extension of the back" while other assessments of the pain on his ability to function found him able to engage in at least occasional lifting, use of his hands, bending, squatting, and reaching. Because of the recent nature of his spine changes and right knee pain, the ALJ could not reach a conclusion that they would impose significant functional limitations for a continuous period of 12 months.
As concerns claimant's headache pain, the ALJ rejected the claimant's assertion at the hearing that it had not improved. The ALJ based this determination on the fact that on December 7, 1999 and February 17, 2000, the claimant reported that his headaches were improving. The ALJ not only noted that the headaches "have improved," but stated that the headaches would improve, "as the claimant gains control over his drug-seeking behavior and cuts down on his medications." However, the ALJ did not make any findings on the issue of dependency or whether the claimant could expect an alleviation of his symptoms were it not for that dependency.
There has been some question among the courts as to whether an adjudicator must first make a disability determination before determining whether the addiction is a contributing factor to that determination. 20 C.F.R. § 404.1535 ("If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability.") (emphasis added); see Bustamente v. Massanari, 262 F.3d 949 (9th Cir. 2001); Drapeau v. Massanari, 255 F.3d 1211 (10th Cir. 2001). Section 404.1535 of the federal regulations, however, predates section 423(d)(2)(C) of the Social Security legislation itself, which was added on March 29, 1996 as part of the Contract with America Advancement Act of 1996 ("CAAA"). The CAAA provides that an individual "shall not be considered to be disabled" if addiction would be a contributing factor to the Commissioner's determination. Because there is substantial evidence of the actual improvement of his headaches as a separate and sufficient basis for upholding the ALJ's finding of no disability, the issue of drug dependency does not affect the outcome of the case. Aponte v. Barnhart, 2003 WL 1702002 (S.D.N.Y. Mar. 31, 2003); see Fastner v. Barnhart, 324 F.3d 981 (8th Cir. 2003); see also Hughes v. Barnhart, 2003 WL 459494 (7th Cir. Feb. 20, 2003) (unpublished order).
The Act provides that an individual "shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C).
Moreover, there is substantial evidence in the record to support a conclusion that the claimant was dependent on his medication and that, should the claimant have stopped his medication his headache pain, it would have alleviated.
In Dr. John P. Kootz's notes from St. Luke's Hospital dated 7/21/98, it states "According to the records he saw Dr. Sullivan at the New Bedford Community Heath Center and it was felt that the patient was probably overusing the Cafergot which is making the headaches worse. When the patient was asked to stop the patient felt that he couldn't do this because he was concerned about the headaches."
Dr. Fleming diagnosed the claimant with "probable dependence" on July 29, 1999. On October 18, 1999, Dr. Fleming's notes read "Headaches, migrane, REBOUND + dependency . . ." and "look into other Pain Clinics and Methadone maintenance program." On November 12, 1999, Dr. Fleming wrote, "chronic daily headache, migraine, rebound, [with] major dependence" and "Investigate High Point/New Bedford narcotics maintenance program." [Record 275.]
In the medical report "received from DDS," (as stated in the List of Exhibits), the "Examiner's Comments" include: "seems that migraines are painful/side effects from meds."
In a Supplemental Questionnaire as to Residual Functional Capacity, dated December 16, 1999, Dr. Taylor commented that the claimant had "chronic daily severe migraine [headache] which the only source of pain relief has developed both dependence psychologically and withdrawal headache effects."
A progress note written by Dr. Guptill on June 23, 1999, indicated that the claimant was instructed that day that he would be terminated from the pain management center if he violated his drug contract one more time or if his pill count was not accurate. And as noted above, on November 10, 1999, Dr. Guptill wrote, "It is difficult for me really to evaluate Mr. Dalis, but I honestly feel that Mr. Dalis has a major psychological imbalance and possible drug-seeking behavior that he justifies with his headache pain."
Dr. Doerr of St. Anne's Hospital conducted an evaluation of the claimant's back pain and headache on January 13, 2000. In his assessment of the claimant's condition, he wrote that the claimant "has a chronic problem of mechanical/myofascial pain of the lumbosacral area. . . . He has not had any version of conservative treatment for his back, including active physical therapy, in more than six years . . . Again, his bigger limitation might be his headaches and possible emotional disturbance secondary to h."
In a letter to Dr. Taylor, Dr. Jeffery Norton, a doctor at the Massachusetts General Hospital Pain Center, recommended that the claimant be evaluated by a physician at the Spaulding Rehabilitation Center and noted that "there is a good possibility that he may even benefit from the inpatient headache program at the Spaulding Rehabilitation Hospital." Finally, on December 7, 1999, Dr. Fleming noted that the claimant "is pursuing pain center around New Bedford." [Record 323.]
in the final analysis, I find substantial medical evidence that the claimant's headaches had improved; this led the ALJ to conclude that his testimony regarding his pain was not credible and that his headaches did not render him disabled. I find no basis to disturb that conclusion.
III. CONCLUSION
For the reasons set forth more fully above, I hereby AFFIRM the decision of the Commissioner below.