Opinion
CIVIL ACTION NO. 01-10481-PBS.
January 30, 2002.
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Peter Mosca seeks review of the denial of his application for social security benefits on the grounds (1) that the Administrative Law Judge ("ALJ") disregarded the treating physician's opinion as to the severity of his bipolar disease; and (2) that the ALJ improperly found his subjective complaints of depression, anxiety and auditory hallucinations incredible.
For the reasons set forth below, the Court ALLOWS Plaintiff's motion to remand the final decision of the Social Security Administration Acting Commissioner ("Commissioner") and DENIES Defendant's motion to affirm the Commissioner's decision.
II. FACTS
The administrative record contains the following facts. Mr. Peter Mosca ("Mosca"), a forty-nine year old divorced man with a twelfth grade education, currently resides with his elderly parents. Mosca previously worked as a forklift operator for thirteen years until his employer closed shop in 1994. Plaintiff subsequently worked as a rental car shuttle driver (1994-1995), a security guard, and a bakery worker. He last worked as a bakery worker in 1997 for six months until he lost his job when the bakery was downsized. He alleges that his bipolar disorder has rendered him unable to work since November 15, 1995.
A. Disability Impairment
Plaintiff claims he has been treated for bipolar disease since 1978, but the medical records begin in 1997. Dr. Nicholas A. Casaburi, a psychiatrist, treated Mosca at the Lynn Community Health and Counseling Center since May of 1997. There is no documentation of treatment in 1995 or 1996 when plaintiff alleges his disability began. In a letter supporting the disability claim, dated July 12, 1999, Dr. Casaburi diagnosed Mosca with bipolar disorder after Mosca presented the following symptoms: depression, insomnia, fatigue, anhedonia, weight gain, recurrent suicidal ideation without a plan, and periodical episodes of hypomania. Dr. Casaburi also noted that Mosca exhibited signs of pressured speech, flight of ideas, racing thoughts, decreased need for sleep and that he suffered from anxiety and auditory hallucinations. Dr. Casaburi prescribed a course of drug therapy for Mosca that included anti-anxiety (Xanax), anti-psychotic (Navane), anti-manic (Lithium), and anti-depressant (Celexa and Paxil) medications. There were other medications mentioned in the records which were illegible. Dr. Casaburi concluded that Mosca was disabled. In a follow-up letter dated July 13, 1998 to plaintiff's attorney, he states: "Mr. Mosca's use of substances is not material to his bipolar illness. His diagnosis of bipolar illness is the reason for his occasional use of substances."
The record contains conflicting information on the length of treatment. Plaintiff claims he first saw Dr. Casaburi in 1978 (Tr. 76), but Dr. Casaburi states he began treatment in 1997. (Tr. 135) Although plaintiff may have had mental health treatment since 1978, he has provided no documents to support his claim that Dr. Casaburi was his treating physician since then. Plaintiff's counsel contends that his treatment began in 1997, and the Court uses that as the starting date for Dr. Casaburi's involvement.
The inability to feel pleasure or happiness in response to experiences that are otherwise pleasurable. Mosky's Medical Dictionary, 5th ed. 1998 p. 83.
The record contains only Dr. Casaburi's treatment notes from May 3, 1997 through June 24, 1999. During that time, Mosca visited Dr. Casaburi for twenty-five minute support therapy and medicine reviews approximately once every month. A synopsis of his contemporaneous treatment notes follows:
• In June 1997, Dr. Casaburi noted that Mosca was depressed, and he prescribed Zoloft. Mosca, unemployed, reported that his friend might help him find a job.
• On July 3, 1997, Dr. Casaburi noted that Mosca had finally found a half-time job at Shaws, that he was attending Alcoholics Anonymous three to four times a week, and that he exhibited no depression.
• On July 31, 1997, Dr. Casaburi noted that plaintiff had lost the job due to low productivity. Mosca was depressed, but reported he would look for another job.
• On September 18, 1997, Dr. Casaburi reported that Mosca ended the relationship with his girlfriend and that he prescribed Xanax for anxiety.
• On October 16, 1997, Mosca reported that he was not depressed and had no complaints.
• On November 20, 1997, Mosca reported that he had been drug free for three years, was attending Alcoholics Anonymous one to two times a week, was not depressed, and was renewing his relationship with his girlfriend.
• On January 22, 1998, Mosca was doing well and had experienced no exacerbation of his mania or depression. Dr. Casaburi refilled the medications.
• On February 19, 1998, Mosca again reported no depression.
• On March 26, 1998, Mosca reported difficulty with his girlfriend. The doctor refilled the Xanax prescription.
• On April 23, 1998, plaintiff reported doing well. The Navane prescription was refilled.
• On May 21, 1998, when Mosca reported depression, Dr. Casaburi prescribed Paxil. The Navane prescription was refilled.
• On June 28, 1998, Mosca reported he was feeling better, was looking for work and was discouraged about not finding a job.
• On July 15, 1998, Mosca had a "slip", using cocaine and alcohol. He reported he was depressed. Dr. Mosca prescribed Paxil.
• On August 22, 1998, Mosca was in better control in a substance abuse program.
• On September 19, 1998, he left the substance abuse program but attended Alcoholics Anonymous on a daily basis. Xanax was given.
• On November 7, 1998, Mosca felt depressed he was unable to get a job and was not sleeping well. Medications were prescribed but the handwriting is illegible.
• On December 5, 1998, Mosca reported he was depressed. Dr. Casaburi wrote that his "thoughts were deranged (hearing voices) no mania evident." He reported that he might apply for SSDI.
• On January 2, 1999, he broke up with his girlfriend.
• On March 20, 1999, Dr. Casaburi noted that Mosca exhibited symptoms of anhedonia and suicidal ideation without a plan. Medication was prescribed.
• On May 13, 1999, he reported that he was turned down by disability and not even attempting to look for work.
• On June 24, 1999, Dr. Casaburi noted "some improvement" but wrote that Mosca continued to have suicidal ideation and racing thoughts. He added that the drugs helped somewhat.
Dr. Harry Sanger, a consulting psychiatrist, examined Mosca on February 1, 1999. Dr. Sanger reported that during his exam, Mosca stated that he had last worked at a bakery two years prior for a duration of six months. According to Dr. Sanger, Mosca also stated he could perform the work at his former bakery job if it was available and that he was "keeping his options open" in regards to looking for new work. Mosca also told Dr. Sanger that he has been pretty stable since a 1987 incident when, after stopping his medications, he believed his radio commanded him to jump from his balcony. Mosca reported to Dr. Sanger that during that period he suffered from over activity, racing thoughts and reckless driving, which Dr. Sanger describes in his evaluation as "manic symptoms." Mosca had been hospitalized in 1987. Since that time, Mosca reported that he had taken his medication faithfully.
At the same examination, Mosca also stated that he does not hear voices, have manic episodes, or have suicidal tendencies any longer. He reported that he performs self-care activities and household duties including washing dishes, laundry, grocery shopping, and light cooking. However, Mosca did state that he lies around the house often and does not do much around the house, which causes friction with his elderly father. Mosca also reported that he regularly attends church and visits a friend. Mosca told Dr. Sanger that he has suffered depression his whole life and that he had trouble sleeping and felt tired and restless during the daytime. Dr. Sanger found no other symptoms of major depression present in Mosca. Dr. Sanger found Mosca "neither particularly depressed, nor elevated in mood or anxious". He thought Mosca appeared fairly pleasant in manner and serious in mood. He found no evidence of delusions, hallucinations, ideas of reference, suicidal intent, or faulty perceptions during the examination. He found no indication of recent drug or alcohol use (although Dr. Casaburi's notes indicate use of drugs and alcohol in July 1998). Dr. Sanger tested Mosca's intellectual functioning and discovered that Mosca completed the Serial Seven task in good timing with only one error and scored 29/30 correct on the Mini-Mental Status Examination. Dr. Sanger concluded that Mosca was able to comprehend, remember, carry out instructions, and relate well during the evaluation. He also concluded that Mosca showed no indications of organic brain syndrome, that he is not psychotic, and that he was competent to manage funds. Furthermore, Dr. Sanger concluded that Mosca presented the diagnoses of bipolar disorder by history and substance abuse by history.
Dr. Kevin Flynn, PhD, and Dr. Jane Marks, M.D., also reviewed Mosca's records in relation to his application for SSI benefits and provided the Social Security Administration with a Mental Residual Functional Capacity Assessment of Mosca. In that assessment, both doctors concluded that Mosca was not significantly limited in his understanding, memory, social interaction, and adaptation. Both doctors also found that Mosca was not significantly limited in his ability to sustain concentration and persist. However, both believed that Mosca was moderately limited in his ability to maintain attention and concentration for extended periods and in his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. In his Functional Capacity Assessment, Dr. Flynn summarized that Mosca had full range of activities of daily living, related adequately interpersonally, and functioned relatively well cognitively. Both Dr. Flynn and Dr. Marks concluded that Mosca's main limitation is his ability to maintain extensive attention, concentration, persistence, and pace. According to Dr. Flynn, this limitation is moderate and does not prevent Mosca from simple substantial, gainful activity. According to Dr. Marks, this limitation "would be less than marked."
B. Social Security Application
Mosca applied for SSI benefits on December 8, 1998 and SSDI benefits on December 17, 1998, claiming an inability to work as of November 15, 1995 due to depression, paranoia, bipolar disorder, and auditory hallucinations, coupled with drug and alcohol abuse in remission. SSA denied the initial application on February 12, 1999 and the Request for Reconsideration on April 12, 1999. On May 11, 1999, Mosca requested a hearing before an ALJ, which took place on July 26, 1999 before the Honorable Linette Diehl Lang. At the hearing, Mosca offered testimony and appeared represented by counsel. Claimant alleged bipolar disorder as the disabling condition since November 15, 1995.
Plaintiff testified as follows. Mosca worked as a fork-lift operator for 15 years at Purity Supreme until 1994. During that time period, he was seeing his psychiatrist, receiving medication, and working. He testified, "I just needed my medication to go to work . . ." When the company went out of business, he lost his job. He worked as a security guard for three months, but was terminated because of a conviction for drunk driving. He says he can no longer work despite continuing to take medications for his depression because he "feels] depressed and they can't get me an anti-depressant that works." Medications that do work cause insomnia and cause him to "just [lay] around" making him unable to work. Specifically, he lays down three to four hours a day. He has delusions that he is the richest man in the world, and then he thinks he is a general and then he blacks out. He says that the radio tells him to hurt himself. He constantly thinks he is other people. People, regardless of age, make him paranoid; even seven-year-old children intimidate him. He has gained 50 pounds since 1995. He takes his medication every day. The Lithium causes dry mouth and the Xanax makes him sleepy and "dopey". For the past fifteen years, he has attended Alcoholics Anonymous meetings three to four times a week, where he socialized with others. He dines out or goes to the movies only about once a year. His elderly parents did all the housework but he made his own bed and washed the dishes. He previously dated a woman for about a year. He sees one friend, a cousin, who suffers from manic depression. Finally, he had manic stages in which he felt high or on top of the world. During the manic state, he went out, he drank, screamed, and caused all kinds of trouble. He used cocaine to stop the racing in his mind.
The ALJ denied plaintiff's application for benefits and concluded that Mosca was not under a "disability" as defined by the Social Security Act. The ALJ found that the medical evidence established "that the claimant has the `severe' impairments of depression, possible bipolar disorder (by history) and substance abuse in remission." However, the ALJ denied his application on the grounds that plaintiff has not met his burden of showing he could not perform his past relevant work as a fork lift operator, shuttle driver and bakery worker.
The SSA Appeals Council denied Mosca's request for review of the hearing decision on January 25, 2001 and rendered the ALJ's decision final, subject to judicial review. See 42 U.S.C. § 405(g). Consequently, Mosca filed this civil action on March 14, 2001 pursuant to 42 U.S.C. § 405(g), 1383(c)(3).
III. STANDARD
A. Disability Determination Process
The Commissioner has developed a five-step sequential evaluation process to determine whether a person is disabled. See 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health Human Serv., 690 F.2d 5, 6-7 (1st Cir. 1982). "Step one determines whether the claimant is engaged in `substantial gainful activity.' If he is, disability benefits are denied. If he is not, the decisionmaker proceeds to step two, which determines whether the claimant has a medically severe impairment or combinations of impairments." Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citation omitted). The "severity regulation" governs that determination; it provides:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.20 C.F.R. § 404.1520(c), 416.920(c).
"Basic Work Activities" are defined as "the abilities and aptitudes necessary to do most jobs." §§ 404.1521(b), 416.921(b). The severity regulation requires the claimant to show that he or she has an "impairment or combination of impairments which significantly limits . . . the abilities and aptitudes necessary to do most jobs." Bowen, 482 U.S. at 146 (quoting 20 C.F.R. § 404.1520(c), 404.1521(b)).
If the Commissioner determines that the claimant has a severe impairment, the third step is determining whether that impairment, or set of impairments,
is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity . . . If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. If the claimant cannot perform this work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education and work experience. The claimant is entitled to disability benefits only if he [or she] is not able to perform other work.
Id. at 141-42 (citations omitted).
The claimant bears the burden of proof throughout most of the five-step disability determination process. See id. at 146 n. 5. At the fifth step, however, the burden shifts to the Commissioner who must provide substantial evidence that the claimant is able to perform work in the national economy. See id.
B. Standard of Review
Judicial review of SSDI and SSI determinations are available under 42 U.S.C. § 405(g), which provides, in part, that:
Any individual, after any final decision of the Commissioner . . . made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner . . . may allow. . . . The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . ., with or without remanding the cause for a rehearing. The findings of the Commissioner . . . as to any fact, if supported by substantial evidence shall be conclusive. . . .
In reviewing decisions in such cases, district courts do not make de novo determinations. Lizotte v. Secretary of Health Human Serv., 654 F.2d 127, 128 (1st Cir. 1981). Instead, this Court "must affirm the [Commissioner's] findings if they are supported by substantial evidence." Cashman v. Shalala, 817 F. Supp. 217, 220 (D.Mass. 1993); see also Rodriguez Pagan v. Secretary of Health and Human Serv., 819 F.2d 1, 3 (1st Cir. 1987) (stating that the Commissioner's determination must be affirmed, "even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence."), cert. denied, 484 U.S. 1012 (1988).
Substantial evidence is "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence means such relevant evidence as a "reasonable mind, reviewing the evidence in the record as a whole, [would] accept . . . as adequate to support [a] conclusion." Ortiz v. Secretary of Health and Human Serv., 955 F.2d 765, 769 (1st Cir. 1991) (citing Rodriguez v. Secretary of Health and Human Serv., 647 F.2d 218, 222 (1st Cir. 1981)).
In reviewing the record for substantial evidence, "[i]ssues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Commissioner]." Rodriguez v. Secretary of Health and Human Serv., 647 F.2d 218, 222 (1st Cir. 1981) (quoting Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). When a conflict in the record exists, the Commissioner has the duty to weigh the evidence and resolve material conflicts in testimony. See Richardson, 402 U.S. at 399; Ortiz, 955 F.2d at 769.
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must consider whether the Commissioner applied the proper legal standard. "Failure of the [Commissioner] to apply the correct legal standards as promulgated by the regulations or failure to provide the reviewing court with the sufficient basis to determine that the [Commissioner] applied the correct legal standards are grounds for reversal." Weiler v. Shalala, 922 F. Supp. 689, 694 (D.Mass. 1996) (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)).
IV. DISCUSSION
A. Treating Physician Rule.
Mosca argues that this Court should reverse or remand the Commissioner's decision because the ALJ violated the treating physician rule by disregarding his treating physician's opinion that he was disabled as a result of bipolar disorder. 20 C.F.R. § 404.1502, 416.902 defines a treating source as a patient's
own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/ or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s).
Although the Commissioner recognized Dr. Casaburi as Mosca's treating physician, the ALJ did not grant Dr. Casaburi's opinion controlling weight, finding that the doctor's opinion that Mosca was "disabled" was inconsistent with both his own treatment notes and with the minimal nature of treatment required by the claimant.
The regulations require an ALJ to give more weight to the treating physician's opinion "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture" of the patient's medical condition. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). However, the ALJ is "not obligated automatically to accept [the treating physician's] conclusions." Guyton v. Apfel, 20 F. Supp.2d 156, 167 (D.Mass. 1998). See also Makuch v. Halter, 170 F. Supp.2d 117, 124 (D.Mass. 2001). Controlling weight is given only if the "treating source's opinion on the issue(s) of the nature and severity of [the patient's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence." 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). And the question whether an applicant meets the statutory definition of disabled is determined by the Commissioner and not the various medical sources. See 20 C.F.R. § 404.1527(e)(1), 416.927(e)(1).
In determining how much weight to give to a treating physician's report, the ALJ must consider six enumerated factors:
1) the length of the treatment relationship and the frequency of examination; 2) the nature and extent of the treatment relationship; 3) the relevant evidence in support of the medical opinion; 4) the consistency of the medical opinions reflected in the record as a whole; 5) whether the medical provider is a specialist in the area in which he renders his opinions; and 6) other factors which tend to support or contradict the opinion.
Guyton, 20 F. Supp.2d at 167 (citing 20 C.F.R. § 404.1527(d)(2)). Hence, the regulations do "not mandate assignment of some unvarying weight to every report in every case." Id. (citation omitted).
Various factors support giving the treating psychiatrist's opinion that Mosca suffered from bipolar disorder great weight here. Dr. Casaburi treated plaintiff from 1997 to 1999 at monthly intervals, and is a specialist in the field. However, the doctor's own notes indicate that the claimant was not disabled from bipolar disorder because the medication (Lithium) treated the disease effectively. Not one manic episode was reported from 1997 to 1999 to Dr. Casaburi. To be sure, Mosca seemed to take a turn for the worse in December 1998, when he reported hearing voices, but Dr. Casaburi concluded no mania was present. Racing thoughts were again noted in June 1999. Moreover, Dr. Casaburi's opinion of disabling bipolar disorder is not consistent with the three other medical opinions in the record, particularly Dr. Sanger, the examining psychiatrist, and the two consulting psychiatrists. While plaintiff's symptoms in the December 1998 to June 1999 time frame are troublesome, no doctor has concluded he was disabled as a result of paranoia or major depression and plaintiff does not make that argument. Accordingly, there is substantial evidence in the record to support the ALJ's conclusion that the plaintiff was not disabled by bipolar disorder.
B. Complaints of Other Disabling Mental Symptoms
The complicating factor here is that plaintiff complains of other mental impairments in addition to the bipolar disorder that he claims render him disabled. The ALJ found these complaints not fully credible. Specifically, Mosca complains he is depressed, anxious, not sleeping well, hears voices, suffers suicidal ideation and has racing thoughts. He also complains about the side effects of his medications, i.e. his sleepiness, lack of concentration, dopiness.
In evaluating subjective complaints, the ALJ must first determine whether there is a clinically determinable medical impairment that can reasonably be expected to produce the symptoms alleged. See Avery v. Secretary of Health and Human Serv., 797 F.2d 19, 21 (1st Cir. 1986) (discussing pain symptoms). When evaluating the clinical evidence, the ALJ should also consider "other evidence including statements of the claimant or his doctor, consistent with the medical findings." Id. However, this does not mean that any statements of subjective impairments go into the crucible. Id. The ALJ, in resolving conflicts of evidence, may determine that the claimant's subjective complaints concerning his condition "are not consistent with objective medical findings of record" if the ALJ's determination is supported by evidence in the record. Evangelista v. Secretary of Health and Human Serv., 826 F.2d 136, 141 (1st Cir. 1987).
With this evidence, the Agency is required to "evaluate the intensity and persistence of [the claimant's] symptoms so that [it] can determine how [the] symptoms limit [the claimant's] capacity for work." 20 C.F.R. § 404.1529(c). 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). Therefore, the regulations provide six factors (known as the Avery factors) that will be considered when an applicant alleges pain.
Considerations capable of substantiating subjective complaints of pain include evidence of (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness and side effects of any medication taken to alleviate the pain or other symptoms; (5) treatment, other than medications, received to relieve pain or other symptoms; and (6) any other factors relating to claimant's functional limitations and restrictions due to pain.
Adie v. Commissioner, Soc. Sec. Admin., 941 F. Supp. 261, 269 (D.N.H. 1996) (citing 20 C.F.R. § 404.1529(c)(3); Avery, 797 F.2d at 23). These factors are helpful in analyzing subjective symptoms other than pain.
The ALJ's credibility determination "is entitled to deference, especially when supported by specific findings." Frustaglia v. Secretary of Health and Human Serv., 829 F.2d 192, 195 (1st Cir. 1987) (citations omitted). However, an ALJ that does not believe a claimant's testimony regarding his subjective symptoms, "must make specific findings as to the relevant evidence he considered in determining to disbelieve the [claimant]." Da Rosa v. Secretary of Health and Human Serv., 803 F.2d 24, 26 (1st Cir. 1986). See also Social Security Ruling (SSR) 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 61 Fed. Reg. 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.").
In determining the severity of a claimant's subjective symptoms, "the absence of objective medical evidence supporting an individual's statements about the intensity and persistence of symptoms is only one factor that the adjudicator must consider in assessing an individual's credibility." SSR 96-7p, 61 Fed. Reg. at 34,487 (emphasis added). See also Gordils v. Secretary of Health and Human Serv., 921 F.2d 327, 330 (1st Cir. 1990) (upholding denial of benefits where ALJ described claimant's daily activities as "practically intact" and evaluated her demeanor at the hearing in addition to objective medical evidence); Berrios Lopez v. Secretary of Health and Human Serv., 951 F.2d 427 (1st Cir. 1991) (upholding ALJ's evaluation discrediting claimant's pain where the ALJ noted observations of claimant at the hearing (i.e., that she walked without assistance and drove to the hearing) and where claimant also performed household chores).
Here, there is conflicting evidence about Plaintiff's primary assertion that his disabling symptom is his inability to be productive due to his depression. He states that he "lays around all day," is frequently tired, and has insomnia. He was laid off from Shaws for low productivity and has friction with his family over his lack of get-up-and-go. However, while Mosca frequently complained to Dr. Casaburi about depression, Dr. Casaburi treated the depression with medication and did not diagnose Mosca as having major depression. The consulting psychiatrists found no evidence of major depression and only slight to moderate deficiencies in concentration, persistence and pace.
Plaintiff contends that the ALJ did not adequately consider the Avery factor concerning the "type, dosage, effectiveness and side effects of any medication" prescribed to alleviate his mental impairments. Plaintiff testified that the Xanax made him tired, the drugs made him dopey, and he sleeps all he time. The record shows that Dr. Casaburi prescribed at least four different medications which plaintiff argues caused his chronic fatigue. Plaintiff also had serious drug and alcohol abuse problems. It is difficult to tell from this record how much of his problems were the result of illegal narcotics versus legal prescriptions. According to the Physician's Desk Reference (PDR) adverse reactions to Lithium and Navene include muscular weakness and fatigue. 2000 WL 742225 (PDR); 2000 WL 1184339 (PDR). The PDR also reports that an adverse effect associated with the discontinuation of Paxil, a highly dependence forming drug, is somnolence and that "the most frequent side effects [of Xanax] are likely to be . . . drowsiness or lightheadedness." 2001 WL 742560 (PDR); 2001 WL 742225 (PDR).
Because there is an inadequate analysis of whether any of these psychiatric medications, or their combination, exacerbated his lack of energy and concentration so as to preclude a return to his prior employment, I remand for a consideration of this factor. See Corchado v. Shalala, 953 F. Supp. 12, 16 (D.Mass. 1996); Bazile v. Apfel 113 F. Supp.2d 181, 185-186 (D.Mass. 2000).
V. ORDER
Plaintiff's motion for remand of the Commissioner's decision is ALLOWED (Docket No. 9). Defendant's motion to affirm the decision of the Commissioner is DENIED (Docket No. 12).