Pelletier v. Astrue

Filing 22

Judge George A. OToole, Jr: ORDER AND OPINION entered denying 13 Motion for Order Reversing Decision of Commissioner; granting 15 Motion for Order Affirming Decision of Commissioner (Danieli, Chris)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 09-10098-GAO
WAYNE PELLETIER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration,
Defendant.

OPINION AND ORDER
March 15, 2012

O’TOOLE, D.J.
Wayne Pelletier appeals the denial of his application for Social Security Disability
Insurance

(“SSDI”)

by

the

Commissioner

of

the

Social

Security

Administration

(“Commissioner”). 1 He filed his application on August 17, 2006, alleging disability beginning on
July 11, 2006. (Administrative Tr. at 104-08 [hereinafter R.].) His application was denied
initially on November 21, 2006, (id. at 46-48), and by a Federal Reviewing Official on
November 9, 2007, (id. at 57-64). Pelletier timely appealed to an administrative law judge
(“ALJ”), (id. at 77-78), and a hearing was held on September 12, 2009, (id. at 24-45). After the
hearing, the ALJ issued a written decision finding that Pelletier was not disabled. (Id. at 10-23.)
The Decision Review Board affirmed, (id. at 1-3), making the ALJ’s decision the final decision
of the Commissioner. Pelletier subsequently appealed to this Court pursuant to 45 U.S.C. §
405(g).
1

Pelletier also purports to appeal the denial of his application for Social Security Income (“SSI”) benefits.
He filed an application for SSI benefits on August 17, 2006, (R. at 109-11), which was denied because of
excess resources, (id. at 65-69). He reapplied on February 9, 2008. (Id. 112-18.) The record, however,
does not contain any documents showing what happened to that application. In the end, the omission is
irrelevant because the record substantially supports the ALJ’s decision and no error of law was made.

Before the Court are cross-motions to reverse, and alternatively to affirm, the decision of
the Commissioner. Concluding that the administrative record substantially supports the ALJ’s
decision and that no error of law was made, the Court now affirms.
I.

Background
Pelletier had previously worked as a baker and an auto technician. (R. at 144-46.) On July

11, 2006, Pelletier was working on a car when a piece of metal flew into his right eye causing
him to lose vision in that eye. (Id. at 185-86, 269-71.) This appeal does not seek review of the
ALJ’s findings with respect to Pelletier’s eye injury, but only seeks review of the ALJ’s findings
with respect to the depression secondary to his eye injury.
A.

Medical History

Following his eye injury, Pelletier became depressed and began experiencing panic
attacks. (Id. at 316-17.) In May 2007, he sought treatment with Elizabeth Velzis, a licensed
clinical social worker, at the Family Service Association of Greater Fall River, Inc. (“Family
Service Association”). Velzis diagnosed him with a panic disorder with agoraphobia and a mood
disorder, not otherwise specified. (Id. at 317.) She assigned him a global assessment of
functioning score (“GAF”) of fifty-one, (id.), suggesting a moderate difficulty in social,
occupational, or school functioning, Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 34 (4th ed. 2000) [hereinafter DSM-IV].
Dr. Jean K. Boyd completed a Consultative Examination Report for the Massachusetts
Rehabilitation Commission Disability Determination Services on June 21, 2007. (R. at 242-45.)
Pelletier informed Dr. Boyd that he could perform activities of daily living without difficulty, but
that he shared household duties with his live-in girlfriend. (Id. at 244.) He also stated that he
“constantly” felt depressed. (Id.) Dr. Boyd found that Pelletier displayed signs of a mild
depressive reaction secondary to his eye injury. Dr. Boyd assigned him a GAF score of forty2

two, (id. at 245), indicative of serious symptoms or a serious impairment in social, occupational
or school functioning, DSM-IV 34.
Pelletier returned to Family Service Association for a quarterly review in July 2007. (Id.
at 250.) During this quarterly review, Velzis recorded in her treatment notes that Pelletier’s
condition had improved. (Id.) He no longer suffered from daily panic attacks, but would
experience attacks only once per week; his mood, motivation, and energy level had improved
while his depressive thoughts had decreased; and he slept an average of five hours per night. (Id.)
Pelletier also saw Velzis for five, sixty-minute counseling sessions between October 11,
2007 and December 13, 2007. (Id. at 260-64.) Velzis’ treatment notes indicate that Pelletier was
“making progress,” (id. at 261), and that his medication was reducing his anxiety and decreasing
the intensity of panic attacks, (id. at 260).
In addition to his counseling sessions with Velzis, Pelletier had periodic, fifteen minute
medication reviews with Dr. Douglas H. Griffiths of Family Service Association between
September 2007 and January 2008. (Id. at 265-67.) Dr. Griffiths noted that his anxiety had
“improved,” (id. at 265), and that his “panic feelings are managed,” (id. at 266). Dr. Griffiths
completed a Medical Source Statement of Ability to Do Work Related Activities (Mental)
(“Medical Source Statement”) on February 28, 2008, in which he opined that Pelletier had
moderate limitations in his ability to understand, remember, and carry out simple instructions,
make judgments on simple work-related decisions, interact appropriately with the public and coworkers, and maintain socially appropriate behavior; marked restrictions in his ability to
understand, remember, and carry out complex instructions, maintain concentration for an
extended period of time, interact with supervisors, and respond appropriately to usual work
situations; and an extreme restriction in his ability to make judgments on complex work-related
decisions. (Id. at 268.)
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Pelletier had quarterly reviews in October 2007 and January 2008. (Id. at 292-93.) In
October, Velzis noted that his anxiety had decreased, no panic attacks had occurred in two
weeks, and that he slept an average of seven hours per night. (Id. at 293.) In January, however,
Velzis reported that his anxiety and depressed mood had gotten worse, that his panic attacks
continued on an irregular basis, and that his alcohol consumption had increased after Pelletier
learned that the Commissioner denied his application for SSDI. (Id. at 292.)
Between January and June 2008, Pelletier had another twelve, sixty-minute counseling
sessions with Velzis. (Id. at 301-15.) Velzis noted that he showed a “mild improvement” or a
“moderate improvement” after eight sessions. (Id.)
Velzis also completed a Medical Source Statement. (Id. at 300.) She opined that Pelletier
had no restriction in his ability to understand, remember, and carry out simple instructions or to
maintain socially appropriate behavior; mild restrictions in his ability to make judgments on
simple work-related decisions, interact appropriately with supervisors and co-workers, and to
respond appropriately to usual work situations; moderate restrictions in his ability to make
judgments on complex work-related decisions and to interact with the public; and marked
restrictions in his ability to understand, remember, and carry out complex instructions and to
maintain concentration for an extended period of time. (Id.)
B.

Pelletier’s Testimony

Pelletier testified at the hearing about the intensity, persistence, and functionally limiting
effects of his depression. He stated that he could not work because of “social fear,” (id. at 27),
and that it was “tough leaving the house,” (id. at 30). Yet, Pelletier also testified that he goes for
thirty-minute walks every day, (id.), sits under a tree to mediate and practice his coping
exercises, (id.), and goes fishing weekly or biweekly with a friend, (id. at 31).

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Pelletier testified that he tried to enlist the assistance of the Massachusetts Vocational
Rehabilitation office, but “the social phobia took over.” (Id. at 29.) He, however, conceded that
he previously told Velzis that he could not use the office because of the hearing before the ALJ.
(Id. at 33.) Pelletier could not explain how the hearing affected his ability to use the office. (Id.)
He testified that he did not do any household chores, (id. at 30), but conceded that he
previously told Velzis that he tried to stay busy by spring cleaning including vacuuming and
dusting his house, (id. at 32). He testified that he stopped exercising with weights when he
injured his eye in July 2006, but then conceded that he had reported exercising with weights in
November 2007. (Id.) He also testified that he had stopped drinking after he started seeing Dr.
Griffiths in May 2007, but had reported in January 2008 that he was drinking approximately
twenty-one beers a week. (Id. at 34-35.)
C.

ALJ’s Findings

The ALJ concluded that Pelletier’s testimony was not credible, (id. at 19-20); she also
concluded that the opinions expressed by Dr. Griffiths and Velzis in their Medical Source
Statements were not entitled to “substantial probative weight,” (id. at 21).
Based on the remaining evidence, the ALJ found that Pelletier retained the residual
functional capacity (“RFC”) to perform a full range of work at all exertional levels with the
mental restrictions of (1) a moderate limitation in concentration, persistence and pace such that
he can understand, remember and carry out simple 1-2-3 step tasks not involving independent
judgment making over an eight hour day with appropriate breaks; and (2) a moderate limitation
in social interactions, requiring an object or material focused job that entails only occasional
work related interactions with supervisors, co-workers, and the public. (Id. at 16-17.) The ALJ
also found that Pelletier could not perform his past relevant work, but that he could perform jobs
existing in significant numbers in the national economy including material handler, general
5

cleaner, machine tender, assembly and packaging, and hand packager. (Id. at 21-22.)
Accordingly, the ALJ held that Pelletier was not disabled. (Id. at 23.)
II.

Discussion
A.

Opinions of Treating Psychiatrist and Therapist

Pelletier asserts that the ALJ failed to comply with 20 C.F.R. § 404.1527(d) and Social
Security Rulings 96-2p and 06-03p before discounting the opinions of his treating psychiatrist,
Dr. Griffiths, and treating therapist, Velzis.
The opinions of treating sources, i.e., “acceptable medical sources” with whom the
claimant has an ongoing treatment relationship, must always be carefully considered by the ALJ.
Where, as here, the opinion is not entitled to controlling weight, 2 the opinion is “still entitled to
deference.” SSR 96-2p, 1996 WL 374188, at *4 (July 2, 1996). The degree of deference afforded
is determined using the factors provided in 20 C.F.R. § 404.1527(d)(2) including: the length of
the treatment relationship and frequency of examination; the nature and extent of the treatment
relationship; supportability; consistency; and specialization. The opinions of non-medical
sources, such as licensed clinical social workers, with whom the claimant has an ongoing
relationship should be evaluated using the same factors. SSR 06-3p, 2006 WL 2329939, at *4
(Aug. 9, 2006).
The ALJ determined that the opinions of Dr. Griffiths and Velzis had little probative
value because they were not supported by and were not consistent with the record. Pelletier
asserts that the ALJ erred by not explicitly discussing each factor under 20 C.F.R. §
404.1527(d)(2) before making this determination. That assertion lacks merit. An ALJ need not
“slavishly discuss every one of those factors in his or her decision.” Moore v. Astrue, No. 062

Pelletier does not contend that the ALJ should have given Dr. Griffiths’ opinion controlling weight, and
he could not argue that Velzis’ opinion should have be given controlling weight because, as a licensed
clinical social worker, she is not an “acceptable medical source” whose opinions may be given controlling
weight. See SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).

6

136, 2007 WL 2021919, at *6 (D. Me. July 11, 2007). An ALJ need only provide “good reasons”
for the weight given to a treating source’s opinion. 20 C.F.R. § 404.1527(d)(2). Good reasons
can be provided by discussing just one factor. See, e.g., Green v. Astrue, 588 F. Supp. 2d 147,
155 (D. Mass. 2008) (discussing only consistency).
Alternatively, Pelletier contends that the ALJ did not give “good reasons” for discounting
the opinions of Dr. Griffiths and Velzis because she failed to explain how their opinions were
inconsistent with the record. Although the ALJ did not provide specific examples of
inconsistency, that omission is not fatal because their opinions were inconsistent with the entire
record as outlined in the ALJ’s decision. Pelletier’s treatment records, the primary source of
evidence concerning his depression, showed that he was assessed a GAF score of fifty-one in
July 2007, 3 indicating that his depression caused a moderate limitation in social and occupational
functioning. The records then show a steady improvement between July 2007 and August 2008.
In August 2008, Velzis assessed Pelletier had a GAF of 55. (R. 324.)
The opinions of Dr. Griffiths and Velzis contravene this empirical data. They opined that
his depression caused marked and/or extreme limitations in social and occupational functioning
when all empirical data showed that he started with a moderate limitation and improved.
Inconsistency with all empirical data constitutes a “good reason” for discounting the opinions Dr.
Griffiths and Velzis. To remand and require the ALJ to repeat these inconsistencies more
explicitly, when they are clearly set out in her decision, would be an exercise in futility.
B.

Credibility of the Claimant

Pelletier claims that the ALJ erred in assessing his credibility. He contends that the ALJ
did not follow the procedure set forth in Avery v. Secretary of Health & Human Services, 797

3

A GAF score, contrary to Pelletier’s assertion, need not be assessed in a work environment to indicate
an individual’s ability to function in a work environment. See DSM-IV 34 (noting that a GAF score
between fifty-one and sixty indicates a moderate difficultly in occupational functioning).

7

F.2d 19 (1st Cir. 1986), and Social Security Ruling 96-7p when evaluating his statements about
his symptoms and finding them not credible.
The ALJ need not take the claimant’s statements about the intensity, persistence, and
functionally limiting effects of his symptoms at face value. See Bianchi v. Sec’y of Health &
Human Servs., 764 F.2d 44, 45 (1st Cir. 1985). Where, as here, the medical treatment record
does not support the claimant’s statements, the ALJ must assess the claimant’s credibility. See
SSR 96-7p, 1996 WL374186, at *2 (July 2, 1996). The ALJ must investigate all evidence that
relates to the claimant’s statements when assessing credibility. See Avery, 797 F.2d at 23.
Specifically, the ALJ must consider the so-called Avery factors including: the nature, location,
onset, duration, frequency, radiation, and intensity of the reported pain; any precipitating and
aggravating factors; the type, dosage, effectiveness, and side effects of any medication taken to
alleviate the pain or other symptoms; any treatment, other than medication, for relief of pain; the
claimant’s functional restrictions; and the claimant’s daily activities.
If after weighing all of the evidence the ALJ determines that the claimant’s statements
lack credibility, she “must make specific findings as to the relevant evidence he considered in
determining to disbelieve the [claimant].” Da Rosa v. Sec’y of Health & Human Servs., 803 F.2d
24, 26 (1st Cir. 1986). A credibility determination supported by specific findings will not be
disturbed. Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987).
Pelletier perceives error in the ALJ’s failure to explicitly discuss the Avery factors in her
written decision. While an explicit discussion of the Avery factors is preferable, the ALJ
complies with Avery if it is clear that all factors were considered. See id. at 194; Lopes v.
Barnhart, 372 F. Supp. 2d 185, 192 (D. Mass. 2005). The ALJ may not have explicitly discussed
the Avery factors, but her decision touches on them such that it is clear that she gave due
consideration to them. As to the first Avery factor, the ALJ described the nature, onset,
8

frequency, and intensity of Pelletier’s depression, anxiety, and difficultly sleeping by
summarizing his treatment records from his first visit to the Family Service Association in May
2007 until August 2008. Pelletier now contends that this summary does not “fairly reflect the
severity of [his] symptoms highlighted in the treatment notes” or “discuss [his] ongoing
symptoms nor the chronic exacerbation of the multiple symptoms that impeded his progress,”
(Pl.’s Mem. of Law in Supp. of Reversal of Comm’r’s Denial of Benefits 16); however, this
contention does not justify reversal because Pelletier points to no evidence ignored by the ALJ,
see Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 42 (1st Cir. 2006) (noting that the plaintiff must
direct the court’s attention to evidence in support of his arguments).
As to the second Avery factor, the ALJ recognized that the denial of Pelletier’s
application for SSDI aggravated his symptoms. As to the third Avery factor, Pelletier asserts that
the ALJ ignored the drowsiness caused by Klonopin. This assertion is contrary to fact. The ALJ
stated that Pelletier took “Paxil, Clonozepam 4 [sic] and Wellbutrin,” (R. at 19), and that he
testified that “his medication makes him tired and dizzy,” (id. at 17). As to the fourth Avery
factor, the ALJ mentioned his regular counseling sessions with Velzis and the exercise, coping
skills, and relaxation techniques used to control his symptoms. As to the fifth Avery factor, the
ALJ cited Pelletier’s claimed functional limitations of social fear and difficultly leaving the
house, but found the limitations to be contradicted by his daily activities.
As to the final Avery factor, Pelletier concedes that the ALJ discussed his daily activities,
but suggests that the ALJ improperly equated these activities with an ability to perform
substantial gainful activity. Pelletier is correct that the claimant’s ability to perform limited daily
activities does, not in and of itself, prove that he has the ability to perform substantial gainful
activity. See Dedis v. Chater, 956 F. Supp. 45, 54 (D. Mass. 1997); see also 20 C.F.R. §
4

Clonazepam is the generic name for Klonopin. Physician’s Desk Reference 2639 (63rd ed. 2009).

9

404.1572(c) (“Generally, we do not consider activities like taking care of yourself, household
tasks, hobbies, therapy, school attendance, club activities, or social programs to be substantial
gainful activity.”). But Pelletier’s argument falls flat because the ALJ did not equate his daily
activities with substantial gainful activities. She used the daily activities precisely as Avery
requires: to determine whether Pelletier’s statements were credible. That is, the ALJ considered
his daily activities to determine whether the activities reasonably reflected the symptoms he
described. She concluded that they did not.
Pelletier argues that even if the ALJ considered the Avery factors, she erred by not also
acknowledging his solid work history which he contends bolsters his credibility. Although the
ALJ must investigate all evidence relating to the claimant’s statements, see Avery, 797 F.2d at
23, she can do so “without directly addressing in [her] written decision every piece of evidence
submitted by a party,” NLRB v. Beverly Enters.-Mass., 174 F.3d 13, 26 (1st Cir. 1999). The ALJ
knew about Pelletier’s work history. (R. at 38.) The decision to emphasize certain factors over
others was a decision for the ALJ, not the reviewing court, to make. See Rodriguez v. Sec’y of
Health & Human Servs., 647 F.2d 218, 221 (1st Cir. 1981) (“[T]he resolution of conflicts in the
evidence . . . is for the [ALJ], not for the doctors or for the courts.”).
After considering all of the Avery factors, the ALJ gave three specific reasons for her
determination that Pelletier’s testimony was not credible: (1) he made numerous inconsistent
statements; (2) his statements were inconsistent with the record medical evidence; and (3) his
activities of daily living belied the severity of the symptoms alleged.
The first reason alone justifies the ALJ’s decision to find Pelletier’s statements not
credible. When “evaluating the claimant’s credibility, the ALJ is entitled to consider the
consistency and inherent probability of the testimony.” Frustaglia, 829 F.2d at 195 n.1 (internal
quotation omitted); see also SSR 96-7p, 1996 WL 374186, at *5 (“One strong indication of the
10

credibility of an individual’s statements is their consistency, both internally and with other
information in the case record.”). The ALJ is entitled to discount the claimant’s statements if
inconsistencies exist. Frustaglia, 829 F.2d at 195 n.1. Here, the ALJ noted that “certain of the
claimant’s statements are inconsistent and undermine his credibility.” (R. at 20.) She identified
two specific examples: he testified at the hearing that he had stopped drinking when he began
treatment with Dr. Griffiths, but the record showed that he had been drinking approximately
twenty-one beers a week in January 2008; and he testified at the hearing that he did not pursue
working with the Massachusetts Vocational Rehabilitation office because of his social phobias,
but the record showed that he told Velzis that he was unable to use the office because of his
pending social security claim. (Id.)
Having complied with the procedure set forth in Avery and Social Security Ruling 96-7p,
the ALJ properly found Pelletier’s statements not to be credible.
C.

RFC Assessment

Pelletier argues that the ALJ’s RFC assessment was not supported by substantial
evidence as a result of the two errors discussed above, i.e., failure to properly weigh treating
sources’ opinions and failure to properly assess the claimant’s credibility. Because those two
arguments lack merit, this argument too lacks merit.
III.

Conclusion
For the foregoing reasons, the plaintiff’s Motion for Order Reversing the Decision of the

Commissioner (dkt. no. 13) is DENIED and the defendant’s Motion for an Order Affirming the
Decision of the Commissioner (dkt. no. 15) is GRANTED.
It is SO ORDERED.

/s/ George A. O’Toole, Jr.
United States District Judge
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