Opinion
CIVIL ACTION NO. 05-11878-RGS.
November 29, 2006
MEMORANDUM AND ORDER ON CROSS-APPEALS OF THE DECISION OF THE COMMISSIONER
Patricia Snow objects to the decision of the Commissioner of Social Security denying her application for Supplemental Security Income (SSI) benefits. The issue on appeal is whether there is substantial evidence in the record to support the Commissioner's determination that Snow retains the residual capacity to perform light work. For reasons that will be explained below, the Commissioner's decision will be affirmed.
Snow applied for SSI benefits on June 25, 2002, alleging an inability to work since March 15, 2002. Snow's application for SSI benefits was denied initially and upon reconsideration by the Social Security Administration (SSA). On December 11, 2004, after holding an evidentiary hearing, Administrative Law Judge (ALJ) James H. Packer ruled that Snow was not disabled within the meaning of the Social Security Act. On July 19, 2005, the Appeals Council declined to review Snow's case, thereby ratifying the decision of the ALJ as the decision of the Commissioner. Snow's appeal is before this court pursuant to 42 U.S.C. § 405(g).
BACKGROUND
Snow was forty-five years old at the time of the ALJ's decision. She is a high school graduate with some computer training. Her significant work experience has been as a cab and limousine driver. Snow has a history of smoking. Snow claims that she is disabled by severe asthma, chronic back pain, depression, and anxiety. She stopped working on March 15, 2002.
Snow presented at the emergency room at Whidden Memorial Hospital in February of 2002. She was diagnosed with viral pleurisy and pneumonia in her right lung. In March of 2002, she was diagnosed with the same condition in her left lung. She improved after treatment, and on March 27, 2002, was found to be asymptomatic with no lingering impairment. She was still smoking, and was strongly encouraged by her doctors to quit.
On April 2, 2002, Snow saw Dr. Katherine Rufo at MGH-Everett regarding complaints of back pain. She had some lumbar tenderness, but her gait was normal. She showed no signs of spasm, and had a full range of motion and intact sensation and reflexes. She was diagnosed with asymptomatic back pain with no impairment. However, an x-ray taken on April 30, 2002, showed hyperlordosis at L5-S1 and osteophytes at T12-L1.
An abnormal extension deformity of the lumbar also known as "saddle back." Stedman's Medical Dictionary 996 (26th ed. 1995).
A bony outgrowth or protuberance.
On July 2, 2002, an MRI was taken of Snow's lumbar spine. It showed mild disc bulges at T12-L1 and L1-2, slight bulges at L2-3 and L3-4, a slight disc bulge with minimal neural foraminal stenosis at L4-5, and mild degenerative facet changes at L5-S1. On July 12, 2002, Snow reported that she slept fairly well at night and was not limited during the day by back pain. She was diagnosed with degenerative disc disease of the lumbar spine, but was found to have no impairment.
On July 19, 2002, in connection with her benefits application, Snow told the SSA that she sometimes needed help getting dressed and showering, but was able to do laundry, wash her dishes, and clean the floors. She further reported that she prepared her meals without assistance and took the bus or walked when shopping.
On August 14, 2002, Snow underwent a consultative examination with Dr. Roger Komer. Her chief complaints involved asthma and lower back pain. Snow stated that her asthma was getting worse and that she was using a bronchodilator. Dr. Komer found that Snow was able to walk unassisted although she exhibited a slight limp. She had mild tenderness in her right sacroiliac area and could reach 15 inches above the floor with her hands extended without bending her knees. Dr. Komer diagnosed Snow with mild to moderate chronic obstructive lung disease with mild to moderate chronic bronchitis. Dr. Komer opined that Snow's chronic back pain was most likely related to degenerative joint or disc disease and observed that Snow seemed to be psychologically well-adjusted to her condition.
On August 20, 2002, a physician selected by the SSA conducted a physical assessment of Snow. He found that she was able to lift 20 pounds occasionally and 10 pounds frequently; that she could sit, stand, and walk a total of six hours at a stretch; that she could occasionally climb, stoop, and crouch; and that she could frequently balance, kneel, and crawl. The examiner recommended that Snow avoid concentrated exposure to extreme heat, wetness, and humidity.
In September of 2002, Snow underwent an additional assessment at Tri-City Mental Health and Retardation Center. She reported suffering stress because of financial difficulties, her health, and her children's problems. She was given a Global Assessment of Functioning (GAF) score of 58, which was indicative of moderate psychological symptoms. In October of 2002, Snow was admitted to Whidden Memorial for a week's stay because of persistent nausea and vomiting. Her doctors ascribed her condition to psychogenic causes. Snow was diagnosed with severe anxiety and given a prescription for Ativan.
The GAF scale is a numeric scale ranging from 0 to 100 and is used by mental health clinicians to rate the social, occupational, and psychological functioning of adults. The higher the score, the better an individual is deemed able to cope with a wide range of activities.
Dr. Barry Kaye examined Snow on October 18, 2002. He observed that she was in generally good health and had a fair sense of well-being. Dr. Kaye noted that Snow's thought processes were logical and relevant, her associations and thought content were normal, and her judgment was realistic.
On October 30, 2002, Snow presented to Dr. George Hsu, the Tri-City physician who managed her psychiatric medications. Dr. Hsu gave Snow a GAF score of 45 and made a tentative diagnosis of bipolar disorder. By mid-November, Snow's GAF score had returned to 58. She was diagnosed with a generalized anxiety disorder attributable to parenting, financial, and health issues. On November 27, 2002, Dr. Hsu indicated a significant improvement in Snow's mental state. Dr. Wojciech Bulczynski of North Suburban Orthopedic Associates examined Snow in mid-November 2002 during a follow-up consultation regarding her complaints of back pain. The examination was unremarkable.
On November 26, 2002, Snow told the SSA that she needed help with grooming, but was able to clean her kitchen and bathroom, sweep, vacuum, clean her cat's litter box, take out the trash, and do laundry. She walked or took the bus on shopping trips. She believed she was beginning to suffer short term memory loss, but was able to watch TV for two or three hours each night, and could read magazines for two hours at a time. Snow saw Dr. Rufo once again on December 2, 2002, and was diagnosed with asymptomatic back pain without impairment and moderate generalized anxiety and asthma without impairment.
A second physical assessment was completed by an SSA physician on December 10, 2002. The doctor (as did the previous SSA examiner) found that Snow was able to lift up to 20 pounds occasionally and up to 10 pounds frequently; that she could sit, stand, and walk for six hours during an eight hour work day; that she could occasionally climb, balance, stoop, kneel, crouch, and crawl; and that she should avoid exposure to concentrated fumes. Snow presented to Eileen McAdams, a family nurse practitioner at MGH-Everett on January 22, 2003, complaining of back pain and hand and finger numbness. Snow was diagnosed with moderate asthma, asymptomatic back and limb pain, and moderate anxiety, but with no impairment.
An SSA doctor conducted a psychiatric review of Snow on January 23, 2003. Snow was found to have mild limitations in daily living, social interaction, and concentration. According to the SSA physician, Snow could understand and remember simple work tasks and could concentrate sufficiently to carry out those tasks; that she could relate appropriately with others; and that she could adapt to routine daily work changes.
On March 24, 2003, Snow saw Dr. Kaye for a follow-up for her asthma and back pain. Dr. Kaye noted that despite some wheezing and lumbar tenderness, Snow's gait was normal, that she had no scoliosis, and that she had a normal degree of lordosis. Her psychiatric examination indicated no change in condition since October 18, 2002, and a continued normal ability to concentrate. Snow was diagnosed with moderate anxiety, moderate depression with impairment, moderate asthma, moderate allergic rhinitis, and severe toxic effects from smoking.
On April 23, 2003, Snow visited the emergency room at Whidden Memorial complaining of breathing problems. She saw Dr. Jennifer Davies at MGH-Everett that same day. Dr. Davies noted that Snow continued to smoke. Snow saw Dr. Davies again on April 25, 2003, and reported that she no longer suffered from shortness of breath. Her psychiatric state remained stable. Snow saw Dr. Davies again on May 12, 2003, for a check-up of her asthma. Snow stated that she was still smoking, but was trying to quit. Dr. Davies examined Snow on June 26, 2003, and reported that Snow's breathing and mood were good.
Snow saw Dr. Kaye again on August 4, 2003, complaining of back pain. She had been playing with her grandchild the previous day and had felt a sudden pain in her lower back. Snow followed up with Dr. Davies on August 6, 2003, who diagnosed her with moderate back pain with impairment. Dr. Davies opined that the cause of Snow's pain was most likely muscular, and prescribed a regimen of physical therapy. On August 20, 2003, Snow reported that her back still felt sore, but that the pain had subsided. She was given a prescription for Motrin and Percocet.
On December 11, 2003, Snow visited Dr. Davies complaining of possible bronchitis. Snow was still smoking and was again strongly encouraged to quit. She was diagnosed with moderate asthma with no impairment. Snow treated with Dr. Hsu throughout 2003 and into January of 2004. Dr. Hsu's notes from January 15, 2003, indicate that Snow's mood was more constant and that she was responding to her psychiatric medications. Dr. Davies examined Snow on February 10, 2004, and found her breathing to be good.
Tri-City records from March through June of 2004 indicate continued treatment for depression and anxiety. Snow's GAF scores ranged from 45 to 55, indicating moderate to serious symptoms. Snow visited Dr. Davies on April 14, 2004, with complaints of shortness of breath and heaviness in her chest. In June of 2004, Snow reported she was still smoking two to three cigarettes per week, but that she felt "great."
On October 19, 2004, Patricia Morrissette, a Tri-City psychologist, opined on Snow's mental capacity to work. She concluded that Snow was seriously or completely limited in all categories except social interaction and neatness and cleanliness. She estimated that Snow would miss work three or more times a month because of mental health problems. On October 20, 2004, Dr. Davies provided the SSA with an assessment of Snow's physical capacity to work. She was of the opinion that Snow could lift 10 pounds occasionally and less than 10 pounds frequently; that she could stand and walk for up to four hours during an eight hour work day and could sit for six hours; that she would need the ability to shift from sitting to standing or walking at will; that she could occasionally twist, stoop, crouch, and climb stairs; and that she should avoid extended exposure to extreme cold, extreme heat, and humidity, and all exposure to fumes. She estimated Snow would be absent from work once a month because of her physical limitations.
The ALJ held an evidentiary hearing on Snow's application for SSI benefits on October 29, 2004. Snow testified that the primary reason that she had quit working was because of her lung problems. She testified that she had experienced "constant [back] pain . . . it's just a total, complete pain," since June or July of 2002. Snow stated that she needed help from her children to dress, to get in and out of the bathtub, and to cook. She estimated she could sit for 20 minutes at a time and could walk for a quarter of a mile with the aid of a cane. She said that bending increased her back pain and that nothing effectively relieved it. With respect to her mental health, Snow testified that she lost her "train of thought a lot," and that because of her depressed state she was "unable to follow directions, concentrate or keep things together."
An SSA medical examiner (ME) testified that Snow's records indicated a history of chronic back pain with minor objective findings, accompanied by symptoms of asthma, depression, and anxiety. The ME testified that while the MRIs revealed minor indications of disc bulges in Snow's spine, "all this is chronic low back pain . . . that would not actually meet a listing for a back problem, but it might lead to some restrictions or limitations." The ME further opined that Snow was being treated for asthma and that most hospital records indicated "either no symptoms or moderate symptoms" or "a slight impairment or impairment, but they don't say what the impairment is." With respect to Snow's mental health, the ME opined that "there is occasional mention of anxiety, sometimes referred to as anxiety, sometimes depression . . . again, moderate symptoms, no impairment." The ME stated that Snow's claim of bipolar disorder was not "supported by any content" and that Snow's depression and anxiety were situational.
In a written opinion, the ALJ found that Snow retained the residual functional capacity to perform light work. He therefore denied Snow's application for benefits.
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. Manso-Pizarro v. Sec'y of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). "Substantial evidence . . . means evidence reasonably sufficient to support a conclusion. Sufficiency, of course, does not disappear merely by reason of contradictory evidence. . . . [The] question [is] not which side [the court] believe[s] is right, but whether [the ALJ] had substantial evidentiary grounds for a reasonable decision . . ." Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998). The Commissioner's findings, however, "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).
DISCUSSION
The Social Security Act defines disability as the
inability 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 has lasted or can be expected to last for a continuous period of not less than 12 months. . . .42 U.S.C. §§ 416(i)(1) and 423(d)(1)(A). The Act further provides that
[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.42 U.S.C. § 423(d)(2)(A). A "physical or mental impairment" is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
Under the "sequential step analysis" set out in 20 C.F.R. § 404.1520, the ALJ must first determine whether a claimant was gainfully employed prior to the onset of the disabling condition. The ALJ must then determine whether the claimant suffers from a severe impairment limiting his or her ability to work. If the impairment is the same as, or equal in its effect to, an impairment (or combination of impairments) listed in Appendix 1 of the regulations, the claimant is presumptively deemed disabled. If the impairment is not covered by Appendix 1, the fourth step of the analysis requires that the claimant prove that his or her disability is sufficiently serious to preclude a return to her former occupation. Only if the claimant is able to meet this burden, is the Commissioner at the fifth step obligated to prove that there are other jobs in the national economy that claimant could nevertheless perform. Gonzalez Perez v. Sec'y of Health, Education and Welfare, 572 F.2d 886, 888 (1st Cir. 1978).
In applying the sequential step analysis, the ALJ found that Snow had not engaged in substantial gainful activity since the onset of her allegedly disabling conditions. He further found that Snow suffered from back pain, asthma, and anxiety. While recognizing that these can constitute severe impairments, the ALJ held that in Snow's case they did not meet or equal the criteria of any impairment listed in Appendix 1. The ALJ observed that Snow's MRI "revealed no significant abnormality," and that she had exhibited "no significant neurological deficit" during numerous examinations. The ALJ also observed that "[a]lthough Ms. Snow testified that she requires assistance from her children for basic activities of daily living, this allegation does not appear in any of the medical records . . . [f]urthermore, there is no evidence in the file that the claimant was prescribed the cane she uses to walk." He acknowledged that "[Snow's] asthma did result in a number of severe episodes in February and March 2002, when she contracted pneumonia." However, Snow's condition "resolved shortly thereafter" and that subsequent records "show only occasional or moderate findings." With respect to Snow's mental health, the ALJ noted that "Massachusetts General Hospital records find that the claimant has a moderate level of anxiety with no impairment." He also commented on the ME's observation that the treatment records referred only to situational anxiety with Snow "mostly complaining of stress from her adult children who still live with her, as well as her boyfriend of seven years."
At the fourth and fifth steps of the analysis, the ALJ found that Snow retained the residual capacity to perform light work that involved no more than occasional climbing, balancing, stooping, kneeling, crouching, and crawling, and no concentrated exposure to dust, fumes, or other environmental irritants. The ALJ further found that because of Snow's limited ability to concentrate, she was unable to perform her past relevant work as a cab and limousine driver. The ALJ concluded, however, that Snow could perform other jobs which existed in significant number in the national economy and that consequently, she was ineligible for SSI benefits.
On appeal, Snow alleges three principal grounds of error. She first argues that the ALJ failed to give proper consideration to the combined effects of her physical and mental impairments. SSA regulations and case law mandate that the ALJ consider the combined effect of a claimant's impairments at each step of the sequential analysis. 20 C.F.R. § 404.1520(g); McDonald v. Secretary of Health and Human Servs., 795 F.2d 1118, 1124 (1st Cir 1986). In rebuttal, the Commissioner relies on Gooch v. Sec'y of Health and Human Servs., 833 F.2d 589, 592 (6th Cir. 1987). InGooch, the court held that an ALJ's review of medical records may show adequate consideration of the combined effect of a claimant's impairments despite the fact that the impairments are discussed individually rather than collectively. The Commissioner argues, correctly I believe, that Snow's case is analogous to Gooch given the ALJ's comprehensive discussion of Snow's physical and mental impairments, including those reported by Dr. Davies and Dr. Morrissette.
In a second related argument, Snow maintains that the ALJ failed to give the appropriate deferential weight to the opinions of Dr. Davies and Dr. Morrissette. Under SSA regulations, the ALJ should ordinarily give "more weight" to the opinions of treating physicians and clinicians, "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations." 20 C.F.R. § 404.1527(d)(2). The Commissioner in response notes that while it is true that the regulations require the ALJ to give weight to the opinions of treating sources, they do not require the ALJ to give those opinions controlling weight. See Arroyo v. Sec'y of Health and Human Servs., 932 F.2d 82, 89 (1st Cir. 1991); Rodríguez Pagán v. Sec'y of Health and Human Servs., 819 F.2d 1, 4 (1st Cir. 1987). If the treating physician's opinion is inconsistent with other evidence in the record, the conflict is for the Commissioner — and not the court — to resolve.Rodríguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). See also 20 C.F.R. § 404.1527(d)(2); Rodríguez Pagán, 819 F.2d at 3; Lizotte v. Sec'y of Health and Human Servs., 654 F.2d 127, 130 (1st Cir. 1981).
Dr. Morrissette is a PhD psychologist and not a physician.
The Commissioner argues that it is impossible to determine whether Dr. Morrissette could have offered a longitudinal picture of Snow's mental health given the absence of any evidence regarding the duration and intensity of her treating relationship with Snow. See Arruda v. Barnhart, 314 F. Supp. 2d 52, 74 n. 20 (D. Mass. 2004). In Arruda, the court found that the ALJ did not err in classifying a psychologist who saw a claimant twice as an examining rather than a treating source. Id. The Commissioner also argues that Dr. Davies's opinion was properly discounted given Snow's own account of her ability to perform household chores when left to her own pace. See Berrios Lopez v. Sec'y of Health and Human Servs., 951 F.2d 427, 429 (1st Cir. 1991);Rogers v. Barnhart, 204 F. Supp. 2d 885, 894 (W.D.N.C. 2002). Aside from the Commissioner's arguments, it is evident that the opinions of the ME are inconsistent with those of Dr. Morrissette and Dr. Davies, and in Dr. Davies' case, that her ultimate opinion is inconsistent in many respects with her own records. As the ALJ noted, prior to June 25, 2002, Snow's primary complaints were of back pain and pneumonia. Her mental health complaints only surfaced in September of 2002, three months after she applied for disability benefits.
Finally, Snow argues that the ALJ misapplied the so-calledAvery factors in evaluating her subjective complaints of pain.See Avery v. Sec'y of Health and Human Servs., 797 F.2d 19, 22-23 (1st Cir. 1986). Under Avery, a claimant bears the initial burden of producing evidence of an objectively established medical condition that could reasonably be expected to cause symptoms of pain. If after evaluating the objective findings, the ALJ determines that the claimant's reports of pain are significantly greater than what could be reasonably anticipated given the objective evidence, the ALJ must consider other relevant information that might corroborate the statements of the claimant or her doctor. This includes evidence of (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain; (3) the precipitating and aggravating factors; (4) the type, dosage, effectiveness and side effects of any pain medication being administered; and (5) any other factors relating to a claimant's functional limitations and restrictions that could be ascribed to pain. See 20 C.F.R. §§ 404.1529 and 416.929(c)(3)(i-vii).
"In determining the severity of a claimant's pain, `the absence of objective medical evidence supporting an individual's statements about the intensity and persistence of pain or other symptoms is only one factor that the adjudicator must consider in assessing an individual's credibility.'" Makuch v. Halter, 170 F. Supp. 2d 117, 127 (D. Mass. 2001) quoting SSR 96-7p.
Snow argues that the medical evidence regarding the bulges in her spinal disks at T12-L1, L2-L2, and L3-L4, her back spasms, restricted gait and arthritic condition, are sufficient to satisfy her obligation to show an objective source of pain. See Bazile v. Apfel, 113 F. Supp. 2d 181, 188-190 (D. Mass 2000). Snow maintains that she is in constant, "complete," and intense pain that severely restricts her ability to care for herself or to walk or stand normally. The short answer is that while the ALJ did not find the objective medical evidence supportive of Snow's claims, he gave careful consideration to the evidence offered by Snow to corroborate her subjective complaints as his written opinion reflects. Avery requires only that the ALJ give proper consideration to a claimant's subjective complaints. It does not require that he believe them. See Irlanda Ortiz v. Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) ("It is the responsibility of the Secretary to determine issue of credibility and to draw inferences from the record evidence.").
Specifically, the ALJ found that the objective medical evidence did not establish an impairment of sufficient severity to preclude Snow from returning to work; that there was no corroborating support in the record for Snow's claims of severe limitations on her daily life activities; and that Snow's complaints of back pain were contradicted by the treatment notes and physical examination results recorded by her doctors. With respect to Snow's mental health, he noted that the psychiatric records indicated at most a case of moderate situational anxiety caused by external stressors.
ORDER
For the foregoing reasons, the decision of the Commissioner denying Snow's application for SSI benefits is AFFIRMED.
SO ORDERED.