Ormon v. Astrue

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Michael Boudin, Appellate Judge and Kermit V. Lipez, Appellate Judge. Per Curiam. Unpublished. [11-2107]

Case: 11-2107

Document: 00116428432

Page: 1

Date Filed: 09/07/2012

Entry ID: 5673093

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 11-2107
WILLIAM E. ORMON,
Plaintiff, Appellant,
v.
MICHAEL J. ASTRUE,
Commissioner, Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Torruella, Boudin and Lipez,
Circuit Judges.

Ronald B. Eskin on brief for appellant.
Anita Johnson, Assistant U.S. Attorney, and Carmen M. Ortiz,
United States Attorney, on brief for appellee.

September 7, 2012

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Per Curiam.

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Claimant William E. Ormon appeals from the

denial of Social Security disability benefits and raises two
issues:

(1)

whether

the

administrative

law

judge

(ALJ)

had

reopened the time period covered by claimant’s first application
for benefits; and (2) whether substantial evidence supports the
ALJ’s determination that because claimant could perform his past
work, he was not disabled.

As for the first issue, we agree with

the district court, essentially for the reasons given by that
court, that claimant's first application had not been reopened.
Ormon v. Astrue, 793 F. Supp. 2d 465, 471-72 (D. Mass. 2011).

The

relevant time period under consideration, then, runs from February
8, 2006, the day after the denial of the first application, to
September 30, 2008, the date claimant's insured status expired.
Whether claimant was disabled during this period, however, is
complicated, and we think that a remand is required.
I.

Background

Claimant was in an automobile accident in January 2004,
and eventually a spinal MRI showed the displacement of the S1 nerve
root as the result of a moderate to large disc extrusion at the L5S1 vertebrae.

Transcript, at 345-46.

Although claimant underwent

spinal fusion in September 2005, his back pain continued.

In

particular, Dr. Bruce Cook, claimant’s surgeon, noted in January
2006 that claimant's ability to bend forward was limited to 60 or
70 degrees.

Id. at 372.

Then, when a June 2006 MRI revealed no

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evidence of a residual or recurrent disc herniation, Dr. Cook
referred claimant to a pain medicine specialist for a facet block
injection.

Id. at 364, 369.
This physician, Dr. Gopala Dwarakanath, examined claimant

in July 2006 and reported that claimant could walk the length of a
corridor “briskly without any difficulty” and that straight leg
raising was negative; however, it was observed that extension was
positive bilaterally and that there was positive "facet loading" at
L4-L5 and L5-S1 (the term "facet loading" was not explained).
at 367-68.

Id.

Dr. Dwarakanath’s impression was that claimant’s

symptoms likely were arising from the facets, rather than from the
joints, and he scheduled a facet block injection.

Id.

Claimant

then sought a second opinion from Dr. Eugenio Martinez, a physician
at New England Baptist Hospital.
Dr.

Martinez,

who

also

saw

claimant

in

July

2006,

reported marked straightening of the normal lumbar lordosis of
claimant’s spine and noted that the range of motion of claimant’s
spine was limited in all directions – i.e., forward flexion was 75
degrees, extension was 15 degrees, bilateral side flexion was 15
degrees, and bilateral straight leg raising was limited to 75
degrees.1

Id. at 676.

Nonetheless, claimant's muscle strength was

5/5, and there was no obvious atrophy.

1

Id.

Dr. Martinez then

Flexion is the forward bending of the spine, and extension is
the straightening of the spine. 2 J. E. Schmidt, M.D., Attorneys'
Dictionary of Medicine, at F-113, E-251 (2011).
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explained that "it can be difficult if not impossible to determine
the specific cause of pain in these situations" and noted, without
explanation, that "[t]he presence of medical-legal involvement, as
well as current, pending application for Social Security Disability
could be considered negative prognostic indicators, according to
the literature."
physical therapy.

Id. at 677.

Dr. Martinez recommended aggressive

Id.

Claimant eventually began treatment with Dr. Edgar Ross
at the Pain Management Center at Brigham & Women's Hospital.

On

claimant's initial exam, which occurred in early August 2006,
Claimant’s

neurological

functioning

was

intact

to

sensation,

overall strength was 4/5 or 5/5, and straight leg raising was
negative.

Id. at 527, 529.

However, claimant’s range of motion in

his lumbar spine was limited in all directions – i.e., 70 degrees
flexion, 10 degrees extension, and 20 degrees side to side flexion
bilaterally.
normal.

Id. at 529.

A bone scan performed in late August was

Id. at 525.
In

October

2006,

claimant

consulted

with

Dr.

Troy

Schmidt, an orthopedic surgeon at Brigham & Women's Hospital.

At

this time, as at others, claimant’s motor strength was 5/5, and
sitting straight leg raising was negative.

Id. at 578.

Flat

straight leg raising, however, was positive bilaterally, with
elevation limited to 30 degrees; again, claimant’s range of motion
in his spine also was limited – i.e., claimant could forward flex

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only to the point where his fingers came to the level of his knees,
he could not extend at all, and sideways bending was limited to 10
degrees

bilaterally.

Id.

Dr.

Schmidt

also

noted,

without

explanation, that claimant had a “positive Waddell sign including
cervical compression, which seems to exacerbate his low back
symptoms.”

Id.

Dr. Schmidt diagnosed painful spine, status post

lumbar spine fusion, and opined that claimant might benefit from
“revision fusion to his lumbar back given his radiographic findings
of a possible lucency around the screws”; such lucency, according
to Dr. Schmidt, was suspicious for a possibly incomplete fusion.
Id.
The
briefly.

rest

of

claimant’s

treatment

can

be

described

Upon the recommendation of Dr. Ross, claimant received

three lumbar facet joint injections in 2006, two in 2007, and two
in 2008.

Id. at 580, 630, 643, 627, 706, 745, 741.

During this

time, claimant considered having either a revision of the spinal
fusion or the removal of the hardware in his spine, but there is no
record of such procedures having occurred.

Id. at 633, 698, 715.

Last, an MRI of claimant’s spine in December 2008 showed the
development of a central shallow protrusion at L4-L5, and, in
February 2009, EMG testing essentially was normal.

Id. at 729,

734-35.
Dr. Ross also completed two RFC assessments.

In August

2006, he opined that claimant was disabled due to low back pain and

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that this condition was chronic with no improvement expected.
at 608.

Id.

As for claimant’s physical abilities, Dr. Ross reported

that claimant (1) could stand and walk for a maximum of one hour
each, (2) could sit for 30 to 60 minutes at a time, (3) could not
lift or carry more than 10 pounds, and (4) could not stoop or bend.
Id. at 611.

Last, in April 2009 (about seven months after the

expiration of claimant’s insured status), Dr. Ross stated that
claimant could sit for only one hour, could not lift more than five
pounds, and was unable to bend or stoop; as a result, Dr. Ross
concluded, claimant was “functionally and completely disabled.”
Id. at 753.
A nonexamining physician, Dr. M. A. Gopal, completed an
RFC assessment in March 2007.

Id. at 616-23.

In this report, Dr.

Gopal opined that, in an eight-hour workday, claimant was capable
of sitting for six hours at a time, standing and/or walking for six
hours, and frequently lifting and/or carrying 10 pounds.
617.

Id. at

Claimant also was rated as being able to occasionally stoop,

kneel, crouch, and crawl.

Id. at 618.
II.

Discussion

The ALJ concluded, based on Dr. Gopal’s RFC assessment,
that claimant was capable of engaging in light work and thus could
perform his prior job as a cashier.

Id. at 58-59.

In so

concluding, the ALJ also rejected the opinions of Dr. Ross and

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found claimant’s complaints of disabling symptoms not credible. We
find the ALJ’s reasoning flawed in all three respects.
A.

Dr. Gopal

As the Commissioner correctly points out, an ALJ may
reach the conclusion that a claimant can perform a particular level
of work, even though such conclusion is based solely on the opinion
of a non-examining physician.

See Berrios Lopez v. Secretary of

Health and Human Services, 951 F.2d 427, 431 (1st Cir. 1991) (per
curiam).

Of course, such evidence must be “substantial,” and,

under the regulations, the weight given to a nonexamining opinion
“will depend on the degree to which [it] provide[s] supporting
explanations.”

20 C.F.R. § 404.1527(d)(3).

Here, the explanation

given by Dr. Gopal is lacking.
In this respect, Dr. Gopal gave four reasons for his RFC
assessment:

(1) claimant had no sensory or motor deficits, (2)

straight leg raising was positive bilaterally; (3) claimant had
painful and decreased range of motion in his back; and (4) despite
spinal fusion, claimant still had back pain.

Transcript at 617.

Dr. Gopal also opined that "[a]llegations are credible," and we
assume that this refers to claimant’s allegations.

Id.

The difficulty is that only one of these observations can
be said to provide an explanation for Dr. Gopal’s RFC assessment -i.e., that claimant had no sensory or motor problems -- and this
conclusory statement, standing alone, is hardly sufficient.

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See

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Berrios Lopez, 951 F.2d at 431 (where reports from nonexamining
sources “contain little more than brief conclusory statements . .
[such reports] are entitled to relatively little weight”).

The

other three reasons, in contrast, represent deficits in claimant's
functioning and, as such, simply say nothing about claimant's
ability to perform the demands of light work.

Moreover, since Dr.

Gopal apparently credited claimant’s allegations of disabling pain,
his conclusion that claimant nonetheless could work is internally
inconsistent.
Given

the

foregoing,

such assessment

cannot

provide

substantial support for the ALJ’s conclusion that claimant is
capable of performing light work.

Moreover, since this is not a

case

“relatively

involving

a

claimant

with

little

physical

impairment,” the ALJ could not make an RFC assessment based on the
bare medical record.

Manso-Pizarro v. Secretary of Health and

Human Services, 76 F.3d 15, 17 (1st Cir. 1996) (per curiam).
Although a remand, on this ground alone, is required, we go on to
discuss, so that matters will be clear on remand, the ALJ’s
treatment of Dr. Ross’s opinion and of claimant’s subjective
complaints of disabling pain.
B. Dr. Ross
As explained in the relevant regulation, a treating
source's opinion on the question of the severity of an impairment
will be given controlling weight so long as it "is well-supported

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medically

acceptable

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clinical

and

laboratory

Entry ID: 5673093

diagnostic

techniques and is not inconsistent with the other substantial
evidence in [the] record.”

20 C.F.R. § 404.1527(d)(2).

Here, the

ALJ gave three reasons for rejecting Dr. Ross's RFC assessment: (1)
Dr. Ross had not described any objective clinical signs to support
his RFC assessment and instead had relied solely on claimant’s
subjective complaints; (2) Dr. Ross’s opinions were inconsistent
with the other significant evidence in the record -- i.e., (a)
claimant had been consistently described as having normal motor
strength

and

sensation,

stable

gait,

no

muscle

atrophy,

and

negative straight leg raising, and (b) MRI and other tests showed
no significant abnormalities; and (3) Dr. Ross had not accounted
for

what

the

malingering.

ALJ

believed

was

evidence

that

claimant

was

Transcript, at 61.

The first problem with the ALJ's decision is that,
although

he

is

correct

that

claimant

consistently

had

been

described as having normal strength and sensation, stable gait, and
a lack of muscle atrophy, his straight leg raising was negative
only half of the time.
who

examined

Moreover, Dr. Ross, like the other doctors

claimant,

claimant’s spine.

noted

a

limited

range

of

motion

in

Like gait and straight leg raising, which the

ALJ plainly viewed as "objective" medical evidence, we assume that
a limited range of motion also qualifies as such evidence.

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Further,

Page: 10

claimant’s

Date Filed: 09/07/2012

physicians

possible physical causes for his pain:

had

Entry ID: 5673093

identified

two

(1) problems with the

facets in his lumbar spine; and/or (2) an incomplete spinal fusion.
The second possible cause, in turn, was supported by “radiographic”
findings.

Finally, there is no evidence in the record indicating

that either of these two possible causes have yet been ruled out.
Thus, the record is not devoid of objective medical findings
supporting Dr. Ross’s RFC assessment nor did Dr. Ross rely solely
on claimant’s subjective complaints.
The second difficulty concerns the ALJ’s determination
that Dr. Ross’s RFC assessment was inconsistent with the record
evidence.

In this respect, Dr. Ross plainly was aware of the

evidence that allegedly is inconsistent with the limits he placed
on claimant’s functioning; after all, Dr. Ross himself had made
some of the findings to which the ALJ cited – negative straight leg
raising, normal strength, and intact neurological functioning – and
the record shows that Dr. Ross had received the essentially normal
test results cited by the ALJ.

Given this, it is plain that,

despite these findings and test results, Dr. Ross believed that
claimant’s back condition was real and placed real limitations on
claimant’s ability to function.

As a result, we think that, in a

case involving complex back pain, such inconsistencies, standing
alone, are not a sufficient basis upon which to reject a treating
physician’s

opinion.

In

any

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event,

the

primary

evidence

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inconsistent with Dr. Ross’s RFC assessment is the assessment of
Dr. Gopal, and, as explained supra, this opinion is not wellexplained

and

thus

cannot

be

said

to

constitute

substantial

inconsistent evidence.
Last, The ALJ's decision to reject Dr. Ross's opinion
because he had neglected to address the evidence of malingering
post-surgery is similarly flawed.

As evidence that claimant was

faking it, the ALJ relied on the comments made by Dr. Dwarakanath,
Dr.

Martinez,

and

Dr.

Schmidt.

Transcript,

at

60-61.

The

difficulty is that none of these physicians ever indicated that
they believed that claimant was malingering or exaggerating his
pain.
As for Dr. Dwarakanath, he made no comment regarding his
observation that claimant could walk briskly down a corridor, much
less

a

suggestion

that

such

an

complaints of pain less credible.
stating

that

the

literature

ability

rendered

claimant's

Similarly, Dr. Martinez, in

indicates

that

medical-legal

involvement "could" be a negative prognostic indicator, did not
specifically say that, in claimant's case, such involvement was
such an indicator; rather, Dr. Martinez seemed to be making an
observation about recovery in the general population and mentioning
such a prognosis as a possibility to keep in mind in claimant’s
case.

Moreover, that both doctors did not believe that claimant

was faking his back pain is clear as Dr. Dwarakanath scheduled a

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facet

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block

therapy.

injection,

and

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Dr.

Date Filed: 09/07/2012

Martinez

recommended

Entry ID: 5673093

physical

See Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.

2004) (observing that it was improbable that claimant’s physicians
would have prescribed drugs and other treatment for her if they had
believed that she was faking her pain and noting that “[s]uch an
inference would amount to an accusation that the medical workers
who treated [the claimant] were behaving unprofessionally”).
This leaves Dr. Schmidt's unexplained statement that his
examination had revealed a “positive Waddell sign.”

Waddell signs

are behavioral responses to physical examination that indicate the
presence of nonorganic – e.g., psychological, social or behavioral
– involvement in lower back pain, and such signs “are not on their
own a test of credibility or faking.”

Chris J. Main & Gordon

Waddell, Behavioral Responses to Examination: A Reappraisal of the
Interpretation of "Nonorganic Signs", 23 Spine 2367 (November
1998), reproduced in the Appendix, at 763-67.

As the authors of

the above article explain, since Waddell signs occur in patients
who also have clear organic findings, isolated signs should not be
considered clinically significant.

Id. at 763.

Indeed, the

authors specifically state that “[i]t is safer to assume that all
patients complaining of back pain have a physical source of pain in
their back[s].”

Id. (emphasis added).

Given the foregoing, then,

and given that Dr. Schmidt did not offer any interpretation of the

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Waddell sign that he had observed, we can see nothing to support a
finding that he believed that claimant was malingering.
C.

Claimant's Subjective Complaints

The ALJ found that, although claimant's back condition
could be expected to produce pain, the intensity, persistence, and
limiting effects of the pain were not credible to the extent
alleged.

Transcript, at 59.

As support for this finding, the ALJ

relied on the same reasons that he had used in rejecting Dr. Ross's
RFC assessment:

(1) the lack of objective medical findings to

account for such pain; and (2) the evidence that claimant was
malingering.

Id. at 59-60.

Neither of the reasons, however,

provides a sufficient basis upon which to discredit claimant's
complaints.
As just discussed, no doctor determined that claimant was
malingering, and the ALJ, as a lay person, was not qualified to
make such a determination on his own in the circumstances of this
case.

See Manso-Pizarro, 76 F.3d at 17.

Further, that claimant's

pain may have a psychological component does not make the pain any
less real.

"Medical science confirms that pain can be severe and

disabling even in the absence of 'objective' medical findings, that
is,

test

results

that

demonstrate

a

physical

condition

that

normally causes pain of the severity claimed by the applicant.”
Carradine, 360 F.3d at 753 (citations omitted).
point.

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Carradine is on

Case: 11-2107

Document: 00116428432

In

that

case,

Page: 14

the

Date Filed: 09/07/2012

claimant

applied

for

Entry ID: 5673093

disability

benefits after injuring her back, and her diagnoses included
degenerative disc disease, scoliosis, depression, and psychosomatic
illness.

The ALJ, as here, discredited the claimant's allegations

concerning the severity of her pain on the ground, in part, that
psychological testing had shown that she was exaggerating the pain.
The Seventh Circuit held that the ALJ's reasoning in this regard
was flawed.
First, the court explained that “[t]he question whether
the [subjective] experience [of pain] is more acute because of a
psychiatric condition is different from the question whether the
applicant is pretending to experience pain, or more pain than she
actually feels.

The pain is genuine in the first, the psychiatric

case, though fabricated in the second."

Id. at 754.

Second, the

court emphasized that the claimant’s extensive treatment history
was inconsistent with a finding that she was exaggerating her pain:
What
is
significant
is
the
improbability that [the claimant]
would
have
undergone
the
pain-treatment procedures that she
did, which included not only heavy
doses of strong drugs . . . but also
the surgical implantation in her
spine
of
a
catheter
and
a
spinal-cord stimulator, merely in
order to strengthen the credibility
of her complaints of pain and so
increase her chances of obtaining
disability benefits; likewise the
improbability that she is a good
enough actress to fool a host of
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doctors . . . into thinking she
suffers extreme pain.
Id.

at

755

(citation

omitted).

Here,

too,

claimant

sought

treatment from many doctors, underwent back surgery and spinal
injections, and was on pain drugs, some of which made him feel like
a “zombie.”

Transcript, at 675.

Similarly, and while not out of

the question, we too think that it is improbable that claimant
would have had an easy time fooling the various doctors who treated
him, especially Dr. Ross, a pain medicine specialist.
Last, although the ALJ did not mention the extent of
claimant’s daily activities in discrediting his complaints of
disabling pain, the Commissioner argues on appeal that these
activities support the ALJ’s decision in this regard.

As the

Commissioner notes, claimant reported, in June 2007, that he goes
grocery shopping, does laundry and the dishes, and takes out light
trash.2

Id. at 200-07.

However, claimant clarified that due to

his back pain, he needs help bending when doing the laundry and the
dishes, and he cannot handle heavy trash or yard work.
event,

and

as

the

court

observed

in

Carradine,

Id.
there

In any
is

a

“difference between a person's being able to engage in sporadic
physical activities and her being able to work eight hours a day
five consecutive days of the week.”
2

360 F.3d at 755.

The Commissioner also relies on claimant’s testimony at the
hearing that he drives his daughter to and from school and that
this takes a total of about four and a half hours per day. Id. at
24-27. It is clear, however, that such driving occurred in 2009,
which is after clamant’s insured status had expired. Id.
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We therefore vacate the district court's judgment and
direct that court to remand the matter for further proceedings
consistent with this opinion.

No costs are awarded.

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