Opinion
Civil Action No. 03-11889-DPW.
August 16, 2004
MEMORANDUM AND ORDER
Kim Rasmussen-Scholter instituted this action under 42 U.S.C. § 405(g) to challenge the decision of the Commissioner of the Social Security Administration ("SSA") denying her Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits. Mrs. Rasumussen-Scholter seeks to have the Commissioner's determination reversed or, in the alternative, have the matter remanded, maintaining she is entitled to benefits because she is unable to work due to debilitating pain in her right foot and ankle, caused by Reflex Sympathetic Dystrophy Syndrome ("RSDS").
I. BACKGROUND
A. Medical History
Mrs. Rasmussen-Scholter was born on December 18, 1970. At the time she applied for benefits, she was thirty-one years old. She is a college graduate with a degree in nursing. She worked primarily as a registered nurse until March 26, 1999, when she allegedly became disabled due to foot and ankle pain.
In 1971, at the age of five months, Mrs. Rasmussen-Scholter underwent corrective surgery for a severe club foot deformity on her right side. Tr. 157. Dr. Arthur M. Pappas, an orthopedic specialist, performed the surgery. He reported that Mrs. Rasmussen-Scholter recovered from the procedure "exceptionally well," and went on to her normal activities, including competitive ice skating. Id.
On June 12, 1998, Mrs. Rasmussen-Scholter saw Dr. Pappas with complaints of reduced mobility in her right foot. Dr. Pappas prescribed a stretching regimen Tr. 188, and by a followup visit in July 1998, Mrs. Rasmussen-Scholter's range of motion had "increased quite remarkably." Tr. 189. In September, observing an improved range of motion and muscle strength, Dr. Pappas cleared Mrs. Rasmussen-Scholter to return to figure skating, Tr. 190; through December, she was skating periodically without experiencing major discomfort. Tr. 191.
But in April, 1999, Mrs. Rasmussen-Scholter returned to Dr. Pappas suffering from pain in both feet. Because of the discomfort, on March 26, 1999, she had taken leave from her job as a registered nurse, complaining the prolonged standing and walking exacerbated the pain. On April 2, Dr. Pappas submitted a letter to her employer, asking that she be excused from work and given a "rest period" until her feet recovered. Tr. 192.
On May 12, 1999, Mrs. Rasmussen-Scholter saw Dr. George Theodore, an orthopedic surgeon, for the pain. On physical examination, Dr. Theodore observed mild to moderate supination of both feet, a tight right Achilles tendon, and tenderness to palpitation in the left tendon. She exhibited a normal gait and good motor strength and motion. Dr. Theodore diagnosed Mrs. Rasmussen-Scholter with residual right cavus foot with tight tendoAchilles and left posterior tibial tendinitis. He recommended a new course of physical therapy and accommodative orthotics. Tr. 133.
At a follow-up visit on July 30, 1999, Mrs. Rasmussen-Scholter reported that the therapy had significantly improved her left foot symptoms but that she was still suffering from residual pain and decreased motion in her right ankle. An MRI revealed no evidence of tendon degeneration or tissue swelling, but she continued to display mild to moderate supination of both feet and tightness in the right Achilles tendon. Dr. Theodore diagnosed her right ankle symptoms as being secondary to Achilles tendon contracture and relative dorsiflexion of the talus secondary to a cavus foot. Tr. 132. He recommended surgical correction and, on September 13, 1999, performed a right Achilles tendon lengthening to increase her range of motion and to reduce pain. Tr. 130.
Dr. Theodore reported Mrs. Rasmussen-Scholter did well postoperatively, although she did experience some numbness in her toes and mild nerve irritation, which by October, 1999 was improving. Tr. 127-28. At this time, she transitioned to a walking cast. In November, Mrs. Rasmussen-Scholter stated that she had been ambulating comfortably in the walking cast; she felt no pain and her numbness was continuing to improve. Tr. 126. Dr. Theodore felt she was ready for a well-padded shoe in place of the cast and recommended starting a physical therapy program. In December, Mrs. Rasmussen-Scholter was walking with full weight on her right foot in an air cast and had started physical therapy. Despite these improvements, she described symptoms of paresthesias (burning, tingling) in the foot and ankle accompanied by intermittent swelling and induration. Concerned about nerve injury, Dr. Theodore recommended a consultation in the Pain Service Unit. Tr. 122. A physical capacities assessment form completed by Dr. Theodore in late December indicated Mrs. Rasmussen-Scholter remained capable of sedentary work. Tr. 143.
At her next visit on February 11, 2000, Mrs. Rasmussen-Scholter was walking with full weight on her foot, aided by crutches. She described intermittent swelling, pain with prolonged standing, and occasional dysethesias (numbness). Despite her "considerable progress," Dr. Theodore opined that Mrs. Rasmussen-Scholter would not be able to return to her past employment as a nurse. Tr. 122. In May, 2000, Mrs. Rasmussen-Scholter was ambulating with full weight on her foot, but was still dependent on crutches and an air cast walker because of intermittent pain in her right ankle. Dr. Theodore believed her symptoms indicated complex regional pain syndrome (also known as Reflex Sympathetic Dystrophy Syndrome, "RSDS"); he prescribed a custom-molded AFO for the right foot (an orthotic device) and suggested reevaluation at the pain unit. Tr. 124. On a physical capacities form completed for insurance purposes, Dr. Theodore indicated that although Mrs. Rasmussen-Scholter could sit for up to six hours per day, he did not believe she would be able to work, even on a part-time basis, because her impairment was permanent in nature. Tr. 139-41.
RSDS is a neurological disorder characterized by acute pain and motion loss. It most often results from trauma to a single extremity, but can also result from surgery. An entire hand or foot is usually affected. RSDS typically presents as intense burning, aching, or searing pain accompanied by autonomic instability (color, temperature, or tropic changes in the skin), vasomotor instability, and bony demineralization. The degree of reported pain is often out of proportion to the severity of the precipitating injury. While the pathogenesis of this disorder is not well understood, dysfunction of the sympathetic nervous system has been strongly implicated. Abnormal sympathetic nervous function may produce inappropriate signals that might be misinterpreted as pain and may produce changes in the blood vessels, skin, musculature, and bone. Ruling 03-2p, 68 Fed. Reg. 59971.
By August, 2000, Mrs. Rasmussen-Scholter had nearly stopped using crutches. She still experienced persistent, although decreased, hypersensitivity with motion in her foot joints, but Dr. Theodore felt her symptoms had "stabilized." Tr. 123. In February, 2001, Mrs. Rasmussen-Scholter was walking with a cane, but still suffering pain and dysethesias in her right foot, with sensitivity to motion in her joints. Dr. Theodore diagnosed her RSDS as "unchanged." Tr. 121.
On April 13, 2001, Mrs. Rasmussen-Scholter reported that her recent car accident had caused increased pain and discoloration in her right limb. She was walking in a removable walking cast and using a crutch. On physical examination, Dr. Theodore observed that her right ankle was more discolored and cooler than the left, and was hypersensitive to light touch. He diagnosed an exacerbation of the RSDS and recommended the initiation of a physical therapy program and treatment in the Pain Service Unit. Tr. 120.
On July 31, 2001, Mrs. Rasmussen-Scholter returned to Dr. Pappas, complaining of continued pain and an inability to bear weight on her right foot. Despite extensive physical therapy, Mrs. Rasmussen-Scholter described being barely able to walk without significant discomfort. Dr. Pappas agreed that her symptoms were consistent with RSDS and recommended intensive physical therapy. Tr. 161. In September, Dr. Pappas expressed the view that although the RSDS persisted, "her discomfort [was] less than it had been" and encouraged her to walk "as much as possible." Tr. 160.
In December, 2001, Dr. Pappas reported Mrs. Rasmussen-Scholter's condition remained unchanged. She spent most of her time in a recumbent position due to pain, causing progressive atrophy in her calf and lower musculature. Mrs. Rasmussen-Scholter described being able to be upright for only brief intervals, with the pain becoming "more than disabling" with extended periods, interfering with "any attempt at activity she performs." Tr. 159.
In a letter dated January 7, 2002, Dr. Pappas wrote he did not believe Mrs. Rasmussen-Scholter could perform even a sedentary job because of her physical disability. He described her as unable to be "pain free for any extended period of time" and stated he was "unable to identify an end point" for her condition, opining that he could prescribe no additional treatments to hasten her recovery. Tr. 157.
Mrs. Rasmussen-Scholter underwent a functional capacity evaluation on April 18, 2002. The physical therapist found deficits in the musculoskeletal evaluation, including severe limitation in the right ankle's range of motion; moderate deficit of right lower extremity strength; significant hypersensitivity to touch below the knee; decreased temperature and discoloration in the right foot as compared to the left; and noted atrophy of the right limb. Asked to climb stairs as part of the evaluation, Mrs. Rasmussen-Scholter attempted to ascend using a crutch and the railing as support. After one flight, she became pale and dizzy, breathing and perspiring heavily. She complained of severe pain in her right leg, explaining her leg felt like it was "going to explode." The therapist noted that the leg appeared "bluish" in pallor with increased edema. Mrs. Rasmussen-Scholter could not complete the exercise and was taken to her car in a wheelchair, unable to ambulate. Tr. 177-78.
Although incapable of performing activities requiring standing or movement, Mrs. Rasmussen-Scholter proved capable of sedentary tasks. Testing revealed she was lifting in the sedentary category of work and was able to sit on a frequent basis. Tr. 173-78. The therapist concluded that Mrs. Rasmussen-Scholter could do work that involved frequent sitting with allowance for occasional position change, so long as she was not required to bear her full weight on her right leg. (Tr. 173).
In September, 2002, Mrs. Rasmussen-Scholter's condition was "unchanged." Dr. Pappas noted that she had experienced a "sensitive week" because of the hot and humid weather. He recommended that she continue with physical therapy, encouraging her to ride a stationary bike and to do more walking. Dr. Pappas also advised that she maintain her leg elevated "as much as possible." Tr. 194.
As of a March, 2003 visit with Dr. Pappas, Mrs. Rasmussen-Scholter's condition remained "about the same." Tr. 198.
B. Procedural History
Mrs. Rasmussen-Scholter filed an application for SSDI and SSI benefits on June 12, 2001, alleging an inability to work since March 26, 1999. Tr. 86-88. The SSA denied her claim initially on July 20, 2001, determining her condition was not severe enough to keep her from working. Tr. 56. On November 13, 2001 Mrs. Rasmussen-Scholter's claim was denied on reconsideration as well. Tr. 62.
Following the denial of her application on reconsideration, Mrs. Rasmussen-Scholter requested a hearing before an Administrative Law Judge ("ALJ"). Mrs. Rasmussen-Scholter and her attorney appeared before ALJ Barry H. Best on September 3, 2002. The ALJ issued an unfavorable decision on February 28, 2003, finding that Mrs. Rasmussen-Scholter was not disabled as defined by the Social Security Act and was thus not entitled to SSDI or SSI benefits. Tr. 18-26.
On April 16, 2003, Mrs. Rasmussen-Scholter filed a timely request for review of the hearing decision. The Appeals Council denied this request on July 29, 2003, making the ALJ's decision the final decision of the Commissioner. Tr. 7-9. Having exhausted all administrative remedies, Mrs. Rasmussen-Scholter filed this action on April 5, 2004.
C. The Disability Standard and the Decision of the ALJ
1. The Disability Standard
To qualify for social security disability benefits, a claimant must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 416(i)(1). A physical or mental impairment is not disabling unless it is "of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant meets this standard, the Commissioner applies a five-step sequential evaluation prescribed by SSA regulations. 20 C.F.R. § 404.1520; see Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). At step four, the Commissioner must determine whether the claimant's impairment prevents her from performing her past work. 20 C.F.R. § 404.1520(e). To make this determination, the Commissioner must assess both the claimant's residual functional capacity ("RFC"), that is, what the claimant can do despite her impairments, and the demands of the claimant's prior employment. Id.; 20 C.F.R. § 404.1545(a); see also Santiago v. Sec'y of Health Human Servs., 944 F.2d 1, 7 (1st Cir. 1991) (per curiam). The claimant bears the burden of showing she does not have the RFC to perform her past relevant work.See Vasquez v. Sec'y of Health Human Servs., 683 F.2d 1, 2 (1st Cir. 1982).
In applying the five-step sequential analysis, the Commissioner is required to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and, (5) whether the impairment prevents the claimant from doing any other work. See 20 C.F.R. § 404.1520.
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, 589 n. 1 (4th Cir. 1996).
A claimant's RFC is a measure of what the claimant can still do despite her limitations. 20 C.F.R. § 404.1545(a). It is an assessment "based upon all of the relevant evidence" including the claimant's own descriptions of limitations that go beyond the symptoms of the impairment, such as pain; observations by the claimant's treating or examining physicians, including medical records; and observations by other relevant witnesses. Id. The RFC expresses the category of physical exertion in which she is capable of performing, and also indicates the manner in which other limiting factors, such as pain, might disqualify the claimant from functioning in an otherwise physically suitable job.
However, once the claimant demonstrates at question four that she is unable to perform her past work because of her impairment, the burden shifts to the Commissioner at question five to prove "that there are jobs in the national economy that [the] claimant can perform" even with her particular set of impairments.Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991) (per curiam); see also Vasquez, 683 F.2d at 2. If the Commissioner cannot prove her employability, the claimant is declared disabled.
2. The ALJ's Decision
Applying this five-step analysis, (i) the ALJ found that Mrs. Rasmussen-Scholter had not engaged in any substantial gainful employment since March 26, 1999, the alleged onset of her disability. Finding 1, Tr. 24; he determined (ii) that she suffered from lower extremity RSDS, an impairment considered severe, but (iii) that her condition did not meet the clinical requirements of an impairment listed in Appendix 1. Tr. 20.
At question four, the ALJ concluded that Mrs. Rasmussen-Scholter retained the RFC to perform sedentary work, but was limited to jobs that were without ambulation requirements and that allowed for frequent shifts in sitting position. He further reduced the range of sedentary work Mrs. Rasmussen-Scholter could perform by finding a "moderate impairment of her ability to concentrate and attend." Because Mrs. Rasmussen-Scholter's past job as a nurse is classified as "exertionally heavy," the ALJ determined her impairments precluded her return to her past relevant work. Finding 6, Tr. 25.
Sedentary work is defined as "requiring lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567.
Consistent with the SSA definition, the ALJ defined "moderate" as an impairment which affects but does preclude functioning in the specified area (here, maintaining concentration and attention).
In defining her RFC, the ALJ evaluated the credibility of Mrs. Rasmussen-Scholter's testimony at the hearing regarding her foot and ankle pain in light of the medical records from Dr. Theodore and Dr. Pappas and the 2002 functional capacity evaluation. He found her testimony not "fully credible" because her "activities of daily living [were] consistent with the residual functional capacity" assessed. Tr. 23. He highlighted that Mrs. Rasmussen-Scholter was capable of doing two hours of physical therapy per day and was capable of some housework-vacuuming once or twice a week, doing laundry, grocery shopping, and some cooking. Further, she exhibited no manipulative limitations in her hands or arms, and was able to lift about a gallon of liquid without difficulty. He determined that such evidence revealed she was not as functionally impaired as she testified, Tr. 22, and hence was capable of performing some sedentary work.
The ALJ then drew on the testimony of the vocational expert and the framework provided by Rule 201.28 of the Medical-Vocational Guidelines ("the Grid") to find that there were a "significant number" of unskilled, sedentary jobs that Mrs. Rasmussen-Scholter could perform, including employment as a jewelry inspector, packer, and ticket seller or taker. Consequently, the ALJ concluded that Mrs. Rasmussen-Scholter was not disabled.
II. DISCUSSION
Mrs. Rasmussen-Scholter challenges the decision of the Commissioner on grounds that the ALJ's denial of benefits is not supported by substantial evidence. Specifically, she argues the ALJ made two errors in defining her RFC: (1) he gave inadequate consideration to her physical and mental impairments in determining what types of jobs she could perform; and (2) he failed to apply the appropriate standards and improperly evaluated her credibility. In this connection, she argues that he inappropriately applied the "the Grid" in making his determination.
A. Standard of Review
After a final determination by the Commissioner, a district court has the power to enter a judgment "affirming, modifying, or reversing" a decision of the Commissioner of the SSA "with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). A denial of 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).
In reviewing a disability decision, 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. The Commissioner, rather than the reviewing court, is responsible for evaluating credibility, drawing inferences from the record, and resolving conflicts in the evidence. See Irlanda Ortiz v. Sec'y of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991); Burgos Lopez v. Sec'y of Health Human Servs., 747 F.2d 37, 40 (1st Cir. 1984). Consequently, the district court must avoid reinterpreting the evidence or otherwise substituting its own judgment for that of the Commissioner. Colon v. Sec'y of Health Human Servs., 877 F.2d 148, 153 (1st Cir. 1989). Therefore, I must "`uphold the Commissioner's findings . . . if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support the Commissioner's conclusion.' Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec'y of Health Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971).
While the Commissioner's findings of fact are conclusive when supported by substantial evidence, they "are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
Questions of law are reviewed de novo. Failure to apply correct legal standards as promulgated by the SSA regulations constitutes grounds for reversal. Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).
B. Review of the Commissioner's Decision
Upon review of the ALJ's decision, I find his evaluation and denial of Mrs. Rasmussen-Scholter's disability claim to be supported by substantial evidence.
1. Mrs. Rasmussen-Scholter's RFC Ability to Do Other Work
Mrs. Rasmussen-Scholter alleges there is no substantial, competent evidence to support the ALJ's finding that she retains, despite her impairments, the RFC to perform a limited range of sedentary work. In her view, the ALJ failed to properly consider and weigh three of her physical and mental limitations when making this determination. I disagree, after considering each of these limitations in turn.
First, Mrs. Rasmussen-Scholter contends the ALJ erred in not including her need to keep her leg constantly elevated when defining her RFC and identifying jobs she could perform. The vocational expert testified that such a requirement would preclude her performance of the jobs the ALJ had identified. But, the record lacks substantial medical evidence that such a need for constant elevation exists. While Mrs. Rasmussen-Scholter testified to sitting "[j]ust about all the time" with her leg elevated, Tr. 42, Dr. Pappas only recommended that she keep her leg elevated "as much as possible," Tr. 194. This suggestion appears only once in her medical records, is not included as a limitation in any of the functional evaluations, see Tr. 173, and is tempered by a recommendation that Mrs. Rasmussen-Scholter do as much nonsedentary activity as she could. Id. While I do not doubt that Dr. Pappa's leg elevation suggestion is sound advice, it does not imply the mandatory, invariable requirement that Mrs. Rasmussen-Scholter suggests. Thus, the ALJ's decision not to include it in Mrs. Rasmussen-Scholter's RFC was reasonable.
Second, Mrs. Rasmussen-Scholter argues that the ALJ did not appropriately weigh her ambulation limitations, particularly regarding her capacity to walk to her work station each day. The vocational expert's testimony, used by the ALJ in drawing his conclusion, is sufficient to allay this concern. He testified that all of the identified jobs could be performed with the assistance of a crutch: because the work is "mostly seated," the "ambulation factor would not be critical." Tr. 48-49. He pointed out that work materials are brought to employees' work stations, requiring no ambulation. Tr. 50. When asked about how far an employee would be required to walk to reach her job station from the building's entry, the expert testified the distance could vary from twenty feet to twenty to thirty yards. Id. He noted though that all jobs were "barrier free," and that accommodations "could be created to satisfy individuality." Tr. 51-52. Because Mrs. Rasmussen-Scholter herself testified to being able to walk 150 to 200 feet, and Dr. Pappas and the functional evaluation indicated that she is capable of some walking, I find the ALJ's assessment of Mrs. Rasmussen-Scholter's ambulation limitation was supported by substantial evidence.
Yet Mrs. Rasmussen-Scholter further presses the ambulation point in the context of being able to walk from the parking lot to her work station. The vocational expert indicated that this distance could vary, "30 yards, 40 yards, maximally up and beyond 100 yards, like a football field." Tr. 50. But because Mrs. Rasmussen-Scholter already has a handicapped placard for her vehicle, Tr. 46, it seems unlikely that she would be in the distant reaches of any parking lot. And, while the distance might be difficult for Mrs. Rasmussen-Scholter, the expert recognized that "getting to the job" is a "different set of circumstances," distinct from the relevant inquiry of whether she can perform the job once there. Tr. 51. He did not suggest that jobs should be dismissed as impossibilities simply because of the parking situation. In light of this testimony, and the practical solutions available to accommodate Mrs. Rasmussen-Scholter's condition, such as front door drop-offs and wheelchair accessibility, the ALJ's limited consideration of this point was appropriate.
The vocational expert's statement was, generally speaking, accurate. As the First Circuit has observed, "Congress, tightening the definition of disability, eliminated consideration of travel difficulties when those difficulties were extrinsic to the claimed disability." Lopez Diaz v. Sec'y of Health, Ed., Welfare, 585 F.2d 1137, 1140 (1st Cir. 1978). But, in this case, Mrs. Rasmussen-Scholter's travel difficulties evidently are attributable to the pain in her foot and ankle. For this situation, the First Circuit has recognized a caveat: "When . . . the claimant asserts that his locomotive disabilities render it impossible, or extremely difficult, for him to physically move his body from home to work, the claim is of a different nature. His `commuting problems' are no longer extrinsic to his disabilities; they are a direct consequence of them." Id. Here, there is no indication that it is impossible or extremely difficult for Mrs. Rasmussen-Scholter to move her body from home to work. As the ALJ highlighted, she is capable of doing some household chores, does physical therapy for two hours each day, goes grocery shopping, and can drive short distances. Such activities are inconsistent with a determination that she is not able to travel to and from work.
Finally, Mrs. Rasmussen-Scholter contests the ALJ's characterization of her impaired ability to maintain concentration and attention as "moderate." She argues instead that her mental deficit is "moderately severe." Tr. 11. This distinction is important: the vocational expert testified that a claimant with a "moderately severe" attention and concentration deficit would be precluded from all of the occupations identified. Tr. 50. Mrs. Rasmussen-Scholter, however, has proffered insufficient evidence supporting a finding of "moderately severe." She testified that she cannot read for pleasure because she "can't really pay attention or remember." Tr. 37. But, in addition to questioning the credibility of Mrs. Rasmussen-Scholter's statements, see infra, Part II.B.2, the ALJ reasonably found that medical evidence did not corroborate her claimed mental limitation. Other than a single statement by Dr. Pappas in the January 2002 letter that Mrs. Rasmussen-Scholter is unable to be "mentally active for extended periods of time," Tr. 157, the record is devoid of medical evidence supporting a "moderately severe" mental impairment. Dr. Pappas does not mention even symptoms of such an impairment in his official medical records, and functional capacity assessments conducted in 2001 and 2002 indicate no such deficits. Tr. 148-53, 163-70, 173. Moreover, SSA regulations direct that medical opinions unsupported by relevant evidence or explanations, such as the statement by Dr. Pappas, not be given substantial weight. 20 C.F.R. 404.27(d)(3). Hence, the ALJ was reasonable in his characterization of Mrs. Rasmussen-Scholter's mental ability.
Beyond these particulars, the record substantially supports the Commissioner's RFC determination as a whole. Evidenced by clinical evaluations and her own description of her daily activities, Mrs. Rasmussen-Scholter can perform the minimal motor functions necessary for unskilled, sedentary work. Such work requires good use of the hands and fingers for fine movements: there is no suggestion anywhere in the record that Mrs. Rasmussen-Scholter suffers from such manipulative impairments. Nor is there a strong indication that she is unable to remain seated: her functional capacity assessments showed she can sit for the requisite hours. These evaluations further revealed that Mrs. Rasmussen-Scholter can lift up to ten pounds, and is capable of walking the short distances such employment might require. The activities she did struggle with, such as climbing stairs, are not the same as those required by sedentary jobs. Tr. 148, 163, 173-74; Cf. Ghazibayat v. Schweiker, 554 F. Supp. 1005, 1010 (S.D.N.Y. 1983) (claimant could not sit for over five minutes and could not work on small objects on a table before him). In light of the complete record, a RFC classification of sedentary work was supported by substantial evidence.
2. Credibility of Subjective Complaints of Pain
Mrs. Rasmussen-Scholter maintains that persistent severe pain, caused by her RSDS, renders her incapable of performing any substantial gainful employment. She argues that the ALJ did not properly assess the credibility of her complaints of pain and that his failure to explain his finding that her complaints were not "fully credible" constitutes legal error.
a. Standards Governing an ALJ's Credibility Determination
Social security regulations require that the ALJ consider a claimant's complaints of pain when determining whether she is disabled. 20 C.F.R. § 404.1529(a). Indeed, as the First Circuit has observed, "[p]roper consideration of the effect of pain . . . on an individual's ability to work is an important part of the disability evaluation process." Avery v. Sec'y of Health Human Servs., 797 F.2d 19, 27 (1st Cir. 1986). But, "[b]ecause pain is subjective, the existence of pain and the extent to which pain affects [the claimant's] functional ability to do basic work activities is difficult to evaluate." Id. Accordingly, a claimant's complaints "will not alone establish that [she] is disabled." 20 C.F.R. § 404.1529(a).
To evaluate subjective complaints, the ALJ must first, as a "primary requirement," determine whether the claimant suffers from "a clinically determinable medical impairment that can reasonably be expected to produce the pain alleged." Avery, 797 F.2d at 21; see also 20 C.F.R. § 404.1529(b);Dupuis v. Sec'y of Health Human Servs., 869 F.2d 622, 623 (1st Cir. 1989) (per curiam) (while "complaints of pain need not be precisely corroborated by objective findings, . . . they must be [at least] consistent with medical findings"). If such an impairment exists, the ALJ must then evaluate the intensity and persistence of the claimant's pain so that he can determine how the claimant's pain symptoms affect her RFC and limit her ability to perform gainful employment. See 20 C.F.R. § 404.1529(c)(1); Ruling 96-7p, 62 Fed. Reg. at 34485.
Here, the ALJ made a specific finding regarding the first step of the analysis, determining that Mrs. Rasmussen-Scholter "suffers from right lower extremity reflex sympathetic dystrophy," which limits the range of work she is capable of performing. See Tr. 20. Mrs. Rasmussen-Scholter does not dispute this determination; therefore, I focus on the second step of the analysis.
The regulations recognize that a claimant's reported symptoms of pain can be more severe or impose greater functional restrictions than can be demonstrated by objective medical evidence alone. 20 C.F.R. § 404.1529(c)(3). In such cases, the regulations provide seven factors (sometimes known as the Avery factors) that the ALJ must then consider: (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 adverse side effects of any medication taken to alleviate the pain or other symptoms; (5) treatment, other than medications, received to relieve pain; (6) any measures other than treatment the claimant uses to relieve symptoms (e.g. lying flat or standing periodically); and (7) any other factors relating to the claimant's functional limitations and restrictions due to pain. 20 C.F.R. § 404.1529(c)(3)(i)-(vii); Ruling 96-7p, 62 Fed. Reg. at 34485;see Avery, 797 F.2d at 23-25. In addition to these factors, the ALJ is entitled to observe the claimant, evaluate her demeanor, and consider how the claimant's testimony fits in with the entirety of the record. See Frustaglia v. Sec'y of Health Human Servs., 829 F.2d 192, 195 (1st Cir. 1989). If the complaints of pain are found to be credible under this criteria, the pain will be determined to diminish the claimant's capacity to work. 20 C.F.R. 404.1529(c)(4).
The Avery court adopted the Commissioner's pain policy outlined in the SSA's Program Operations Manual System, a copy of which was appended to its opinion. Avery, 797 F.2d at 24.
The ALJ's credibility determination "is entitled to deference, especially when supported by specific findings." Frustaglia, 829 F.2d at 195. Nevertheless, a court must review an ALJ's credibility determination to see if it comports with the law. A finding that the claimant's testimony regarding her 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's subjective complaints. Da Rosa v. Sec'y of Health Human Servs., 803 F.2d 24, 25 (1st Cir. 1986) (per curiam).
A credibility determination may not consist of a "single, conclusory statement" or a recitation of the Avery factors. Instead, regulations require that the ALJ articulate in his written decision
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 the subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.
Ruling 96-7p, 62 Fed. Reg. at 34484. Although "specific reasons" are required, the ALJ need not directly address every piece of evidence in the administrative record. See Rodriguez v. Sec'y of Health Human Servs., 915 F.2d 1557, 1990 WL 152336, at *1 (1st Cir. Sept. 11, 1990) (per curiam, table decision) ("An ALJ is not required to expressly refer to each document in the record, piece-by-piece"); cf. NLRB v. Beverly Enterprises-Massachusetts, Inc., 174 F.3d 13, 26 (1st Cir. 1999) (noting in labor context that "[a]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted"). The ALJ, however, may not ignore relevant evidence, especially evidence that supports a claimant's cause. See Ngyuen, 172 F.3d at 35; Dedis v. Chater, 956 F. Supp. 45, 51 (D. Mass. 1997) ("While the ALJ is free to make a finding which gives less credence to certain evidence, he cannot simply ignore . . . the `body of evidence opposed to . . . his view.'" (quotingUniversal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). The decision "must take into account whatever in the record fairly detracts from its weight," Universal Camera, 340 U.S. at 488.See Diaz v. Sec'y of Health Human Servs., 791 F. Supp. 905, 912 (D.P.R. 1992).
b. The ALJ's Evaluation of Mrs. Rasmussen-Scholter's Subjective Complaints of Pain
Mrs. Rasmussen-Scholter maintains that the ALJ failed to follow these standards, contending his credibility determination was unsupported by the record, that he failed to consider all of the relevant evidence, and that his findings were not properly explained.
It is difficult to fault the ALJ's credibility determination on any of these grounds. The ALJ was expressly mindful of the standards for evaluating credibility laid out in Avery and the principles requiring specificity in written findings. In his decision, he quoted at length the relevant standards and specifically cited the seven Avery factors used to assess a claimant's credibility. He proceeded to apply these elements to the record. The hearing's transcript reveals the ALJ carefully questioned Mrs. Rasmussen-Scholter about each Avery factor, developing testimony about her daily activities; the location and intensity of her pain; aggravating factors; and the effectiveness of medication and treatment regiments. He then weighed this testimony against the entire case record, including the relevant medical opinions, and concluded that her claims of pain were not "fully credible."
To be sure, the ALJ could have explained his findings even more extensively. In this connection, his decision at points might have elucidated his thought process more fully. Somewhat confusing in this regard on first reading was his recitation, in bullet-point style, of the strongest evidence supporting Mrs. Rasmussen-Scholter's claims of pain, a list which then did not counter, point-by-point, with his own evaluation and reasoning. Mrs. Rasmussen-Scholter highlights this recital as an example of the ALJ "selectively pick[ing] and choos[ing] from the evidence." But, in the context of the relevant legal standards, it seems clear that the ALJ catalogued these favorable medical opinions to make explicit his consideration of this evidence, in order to show he did not ignore any evidence supporting Mrs. Rasmussen-Scholter's claim. See Dedis, 957 F. Supp. at 51. And while the ALJ could have been more explicit and more detailed in "connecting the dots" of his credibility finding, his failure to do so does not render his decision erroneous or necessitate remand See Shaw v. Sec'y of Health Human Servs., 25 F.3d 1037, 1994 WL 251000, at *5 (1st Cir. June 9, 1994) (per curiam, table decision) ("While we would prefer more explanatory detail, we see no reason to return this case for the purely formulaic purpose of having the ALJ write out what seems plain on a review of the record."). An ALJ's written decision must assure the reviewer that he considered the important evidence and must make sufficiently clear the reasons for his findings. Id. The ALJ has fulfilled this duty here.
Assessing the quality of evidence relied on by the ALJ, I find the record substantially supports the ALJ's conclusion that Mrs. Rasmussen-Scholter's testimony regarding her pain was not "fully credible," "at least to the extent that she maintains she is more functionally limited" than her RFC might suggest. At the hearing, Mrs. Rasmussen-Scholter stated that she is "chronically in pain," Tr. 33, and consequently "really can't sit for any period of time", Tr. 39. But, she also testified to completing two hours of physical therapy every day. Tr. 36. She described spending her days sitting watching television, sitting in her yard, and occasionally relaxing in a hot bath. Tr. 37, 39. She insisted she is able to care for her personal needs, including being capable of showering independently. She testified to performing household chores, such as laundry from a seated position, and to driving when comfortable. Tr. 38. This portrait of Mrs. Rasmussen-Scholter's daily activities is not inconsistent with the ALJ's finding that her pain does not completely inhibit her from performing sedentary activities, as she attests to. As to her pain levels, Mrs. Rasmussen-Scholter stated that her foot gives her constant pain, averaging a level five out of ten, Tr. 45, and that sometimes it is "to the point where [she is] virtually in tears." Tr. 33. However, the record indicates Mrs. Rasmussen-Scholter is not currently being treated at a pain service unit. She takes only aspirin daily for the pain, and Demerol as needed, on average twice a week. Tr. 36. She The ALJ reasonably could conclude that this pain treatment is inconsistent with the incapacitating pain which Mrs. Rasmussen-Scholter claims she suffers.
Mrs. Rasmussen-Scholter's contentions might be read to argue that the ALJ did not give proper weight to the opinion of Dr. Pappas, her treating physician in evaluating her subjective complaints. In his January 7, 2002 letter, Dr. Pappas opined that Mrs. Rasmussen-Scholter was "unable to engage in substantial employment because of the pain" and asked that she be considered "disabled for activity at this time." Tr. 157. To be sure, SSA regulations tend to give great weight to the opinions of treating physicians; but statements of contention, such as those by Dr. Pappas, are not dispositive. 20 C.F.R. § 404.1527(d)(2). The determination of an individual's capacity to function in a work environment and the finding of disability is explicitly reserved to the Commissioner, not a treating source. See 20 C.F.R. § 404.1527(e)(1) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled.").
Granted, "[t]he ALJ may not `substitute his own layman's opinion for the findings and opinion of a physician.'" Chelte v. Apfel, 76 F. Supp. 2d 104, 109 (D. Mass. 1999) (quotingGonzalez Perez v. Sec'y of Health Human Servs., 812 F.2d 747, 749 (1st Cir. 1987)). But in the instant case, the ALJ relied not only on his own assessment of Mrs. Rasmussen-Scholter's condition, but, as his written discussion evidences, also on Dr. Pappas's treatment records and the functional capacity analyses. It was within the scope of the ALJ's discretion to weigh the relative worth of a treating's physician's report against the functional capacity assessments and other evidence in the record, such as Mrs. Rasmussen-Scholter's daily activities. See Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994). Any conflicts in the record are necessarily resolved by the ALJ and not on appeal to the federal court. See Irlanda Ortiz, 955 F.2d at 769. The ALJ's treatment of Dr. Pappas's opinion was hence reasonable.
3. Application of the Grid
Finally, Mrs. Rasmussen-Scholter contends that the ALJ erred in relying on the Grid in his analysis because she suffers from nonexertional limitations, including pain and deficits in concentration. She asserts that given the presence of these impairments, the ALJ was precluded from using the Grid to direct a finding of not disabled.
As defined by SSA regulations, a nonexertional impairment is one which is medically determinable and causes a nonstrength limitation of function or an environmental restriction. It is a limitation affecting such capacities as mental abilities, vision, hearing, speech, balancing, stooping, kneeling, crouching, crawling, reaching, handling, fingering, and feeling. See Ruling 83-14, 45 Fed. Reg. at 55566; 20 C.F.R § 416.969(a). Pain may be a nonexertional factor to be considered in combination with exertional limitations, or may serve as a separate and independent ground for disability. Gagnon v. Sec'y of Health Human Servs., 666 F.2d 662, 666 n. 8 (1st Cir. 1981).
The Grid is a tool utilized at question five of the sequential analysis. At that point, the burden is on the Commissioner to demonstrate that there are jobs in the national economy that a claimant can perform. Heggarty, 947 F.2d at 995. Where a claimant's impairments are only exertional, the Grid provides a streamlined method by which the Commissioner can carry this burden. See, e.g., Sherwin v. Sec'y of Health Human Servs., 685 F.2d 1, 1 (1st Cir. 1982). But, "[i]f a claimant has a nonexertional limitation in addition to his exertional limitations, then the ALJ may not mechanically apply the rules contained in the Grid." Da Rosa, 803 F.2d at 26. While the Grid may be used as a "framework for consideration," 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2), "`the Secretary must carry his burden of proving the availability of jobs in the national economy by other means,' typically through the use of a vocational expert." Ortiz v. Sec'y of Health Human Servs., 890 F.2d 520, 524 (quoting Gagnon, 666 F.2d at 665 n. 6) (internal citation omitted); see also Da Rosa, 803 F.2d at 27 ("the ALJ must . . . perhaps consider the testimony of a vocational expert").
Here, the ALJ appropriately heard such expert vocational testimony before making his final disability determination. The expert was asked to consider a hypothetical person of Mrs. Rasmussen-Scholter's age, education, work history, and RFC, and was asked specific questions relating to how the use of a crutch and the need to shift sitting positions and possibly keep the leg elevated would affect the types of jobs available. Further, the ALJ explicitly recognized that because the Grid could not mechanically direct his disability determination, the expert testimony should inform his decision. He was careful to use both the Grid and the expert's testimony as guides in drawing his conclusion: "Considering Rule 201.28 as a framework for decision making, in light of the opinion testimony of the vocational expert, it is concluded that there are significant jobs in the national and regional economies that the claimant would be capable of performing." Tr. 24. Plainly, the ALJ did not err in his application of the Grid: his use was consistent with SSA regulations and relevant case law.