McDonald v. Astrue

Filing 20

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying 12 Motion for Judgment on the Pleadings; granting 17 Motion for Order Affirming Decision of Commissioner (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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DANIEL B. McDONALD,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant.

CIVIL ACTION
NO. 10-10896-DPW

MEMORANDUM AND ORDER
August 15, 2011
Pursuant to 42 U.S.C. § 405(g), plaintiff Daniel McDonald
appeals the final decision of the Commissioner of Social Security
(the “Commissioner”) denying his 2006 claim for a period of
disability and Social Security Disability Insurance (“SSDI”).
The Commissioner has moved for an order affirming his decision.
After full consideration of the record, I will grant the
Commissioner’s motion and deny McDonald’s.
I. BACKGROUND
A.

Procedural History
McDonald’s claim was first denied on June 29, 2006, and was

again denied on January 5, 2007, following reconsideration.
at 75.)

(R.

In both decisions, the reviewing specialists determined

that his condition was not severe enough to be considered
disabling.

(R. at 83, 87.)

McDonald timely requested a hearing.

1

On December 6, 2007, he appeared and testified at such a hearing
during which he was represented by counsel.1

(R. at 75.)

The Administrative Law Judge (“ALJ”) issued an unfavorable
decision on January 25, 2008.

(R. at 72.)

The Appeals Council

denied review of the ALJ’s decision on April 16, 2010.
1.)

(R. at

Consequently, the ALJ’s January 25, 2008, decision is the

Commissioner’s final decision.
B.

Medical History
McDonald, born in June 1955, married his second wife on

November 21, 1986, and has four children from a previous
marriage.

(R. at 110, 127.)

In his April 26, 2006, application

for SSDI, he claimed that he could not work due to herniated
discs in his back and lower neck, depression, anxiety, and
numbness in his wrist and hand.

(R. at 136.)

He stated that

these conditions limit his ability to work because he “cannot sit
stand or walk for any period of time [and has] chronic pain at
all times.”

(R. at 136.)

He claimed on his application that he

stopped working on July 1, 1985, due to “back problems.”
136.)

(R. at

He responded “no” to the question “Have you ever been seen

by a doctor/hospital/clinic/ or anyone else for emotional or
mental problems that limit your ability to work?”

1

(R. at 138.)

The ALJ’s decision states that McDonald appeared and
testified without assistance of counsel. (R. at 74). But, the
transcript shows that McDonald was represented at the hearing.
(R. at 14.)
2

He listed his current medications as cymbalta (depression),
ambien and trazadone (sleeplessness), and xanax (anxiety).
at 202.)

(R.

On a pain questionnaire submitted to the Social

Security Administration (“SSA”) on May 11, 2006, McDonald stated
that he has “had bouts with depression for a long time.
therapist wanted me to make you aware of it.
important to my file.”

(R. at 151.)

My

She thinks it is

He then disclosed a suicide

attempt in 1983 and stated that “[s]ince then I have still been
in depression.”

(R. at 151.)

In his appeal of the Commissioner’s decision, McDonald rests
entirely upon his claim of mental impairment.
1.

1983 Suicide Attempt

McDonald’s first hospitalization was on January 29, 1983,
when he was brought to the emergency room (“ER”) in a coma due to
an overdose.

(R. at 212–13.)

McDonald was twenty-seven years

old at the time and had been “drinking heavily” when he took the
pills.

(R. at 212.)

The report notes that he had a “history of

‘mental problems’” that was “significant for depression.”
212.)

(R. at

Dr. Bahrawy, a treating physician, “felt that [McDonald]

was not suicidal, that it was a situational depression and would
continue seeing the patient and his wife as an outpatient.”
at 213.)

(R.

According to further medical reports and McDonald’s

testimony, the suicide attempt occurred at a stressful time in
his life when he was separated from his first wife and unable to

3

see his four children.

(R. at 289.)

McDonald testified that he

had continued to see Dr. Bahrawy for eight months to a year but
then stopped treatment of his own accord.

(R. at 35.)

He also

testified that he may have taken Ativan briefly at that time.
(R. at 35.)
2.

Medical Record of Treatment for Mental Impairment

According to McDonald’s medical record, he next reported
feeling depressed during a September 22, 2004, appointment with
Dr. Onassis Caneris of the New England Neurological Associates
(“NENA”).

(R. 247–48.)

He had begun to see physicians at NENA

in March 2004 to address chronic back pain that had been
aggravated by a November 2003 motor vehicle accident.
249–50.)

(R. at

Dr. Caneris reported: “He has progressive pain.

does have depressive symptomatology.

Again, that is not to imply

that that is the primary cause, secondarily, depression.
not had any depression before this.”

He

(R. at 248.)

He had

Dr. Caneris

also noted that McDonald worked as a carpenter, but had not
worked since the 2003 car accident.

(R. at 247.)

In a second

evaluation on December 15, 2004, Dr. Caneris diagnosed cervical
and lumbar pain, bilateral component of myofascial pain, and
“some mild depressive symptomatology, but he is pleasant and
cooperative, as usual.”

(R. at 245–56.)

Dr. Caneris prescribed

sleep medication, but did not treat the depressive symptoms.
at 248.)

4

(R.

McDonald did not seek treatment for his depressive symptoms
until the end of 2005.

On November 3, 2005, McDonald underwent

an initial clinical evaluation by Fran Eisenman, a social worker
at Arbour Counseling Services.

(R. at 289–96.)

The report

states that symptoms of depression first appeared “2 yrs +” ago,
and that he had received treatment twenty years prior in
Lawrence, Massachusetts, which presumably refers to his treatment
by Dr. Bahrawy at Lawrence General Hospital.

(R. at 289.)

With

respect to alcohol abuse, the report notes that McDonald began
drinking at age eleven and drinks three or four beers per night
if he has money.

(R. at 291–92.)

Eisenman diagnosed McDonald

with major depression recurrent and anxiety, cited his father’s
death as a stressor, and noted chronic back pain.
295–97.)

(R. at

His global assessment of functioning (“GAF”) was 35.2

(R. at 295.)
Beginning on November 11, 2005, McDonald attended therapy

2

Clinicians use the GAF to rate the social, psychological,
and occupational functioning of adults. The GAF is a numeric
scale ranging from 100 (superior functioning and no symptoms) to
1 (persistent danger of hurting self or others, suicidal, or
persistent inability to take care of oneself). The GAF considers
both an individual’s symptoms and the level of impairment of an
individual’s ability to function in several key areas. According
to the GAF scale, 61–70 indicates mild symptoms or some
difficulties in functioning, 51–60 indicates moderate symptoms or
difficulties in functioning, 41–50 indicates serious symptoms or
a serious impairment in any one area of functioning, and 31–40
indicates an impairment in reality testing or communication or
major impairments in more than one area of functioning. See
Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR
34 (Am. Psychiatric Ass’n ed., 4th ed. text rev., 2000).
5

with Eisenman twice per month and had a monthly medical
consultation regarding his prescription medications, which he
took for depression, anxiety, and sleeplessness.

(R. at 143.)

Eisenman’s bimonthly reports chronicle McDonald’s depression and
anxiety, listing as stressors his father’s death in 2004,
difficulties with his grown children and brothers, tension with
his wife, financial problems, and the status of his disability
application.

(R. at 285–88, 298–315, 348–54.)

Eisenman’s

reports state that McDonald “struggles [with ]depression and
anxiety which have been [an] issue for 25+ years and exacerbated
by physical disability.”

(R. at 306.)

The reports also discuss

his previous alcohol abuse, noting that he “uses alcohol (beer)
at times to reduce his anxiety.”

(R. at 307.)

3. Treatment for Physical Impairments
Despite the lack of medical reports of mental health
treatment following the 1983 suicide attempt, the record includes
a number of medical reports concerning various physical injuries.
In June 1983, McDonald had surgery on his wrist to repair a
lacerated artery and nerve resulting from punching a fish tank.
(R. at 208–12.)

In the 1980s, there are six more ER visits for

blacking out due to alcohol consumption, back pain, an injured
foot, a laceration due to a BB gun shot to the head, and a
laceration to his hand from putting his fist through a window.
(R. at 205–07, 214–27, 263–65.)

A report from October 1984 or

6

1989 notes the injury is work related.

(R. at 206–07.)

In the

1990s there are five ER visits arising from sore ribs, back pain
and a numb leg, a swollen knee, an ear condition, and a rash on
his cheek that he said was due to contact with shrubbery where he
worked.

(R. at 228–31, 260–62, 266.)

McDonald’s back injury and chronic pain became more
pronounced in the 2000s.

On June 19, 2002, he “fell of an

embankment @ work - rolled 14" down to nails and bricks,”
resulting in cuts requiring stitches.

(R. at 258–59.)

McDonald

completed an evaluation for worker’s compensation on June 27,
2002.

(R. at 256–57.)

vehicle accident.

In November 2003, McDonald was in a motor

(R. at 254.)

His head hit the windshield, and

he presented at the ER on November 5, 2003, with a stiff neck and
back pain.

(R. at 254–55.)

On January 28, 2004, Dr. Malcolm

Murdock conducted a physiatry consultation, reporting symptoms of
headaches, neck pain, and low back pain resulting from the car
accident.

(R. at 238–40.)

Dr. Murdock noted that McDonald

“continues to work but has avoided doing the manual heavy labor
and is doing most of his time supervising at the job sites.”
at 238.)

(R.

McDonald continued to experience chronic back, neck

pain, and numbness and received chiropractic treatment through
February and March of 2004.

(R. at 236–40.)

From March 2004

through December 2004, McDonald saw neurological physicians at
NENA regarding his ongoing back and neck pain.

7

(R. at 245–50.)

In his first consultation at NENA, there is no reference to
depression, but he did present with “depressive symptomatology”
in September 2004.
4.

(R. at 247–50.)

Examining Opinions

On July 28, 2005, before McDonald reported depressive
symptoms to Dr. Caneris and began treatment at Arbour Counseling
Services, Dr. Kevin Witham conducted a diagnostic evaluation in
conjunction with an application for state disability benefits.
(R. at 155–58.)

Dr. Witham noted the 1983 suicide attempt and

stated that McDonald “reported no other history of mental health
treatment.

He is resistant to obtaining mental health treatment

and does not feel comfortable discussing mental health
complaints.”

(R. at 155.)

However, there is a note that

McDonald briefly took antidepressants at one time but stopped
because they were not helpful.

(R. at 156.)

Dr. Witham reports

that McDonald’s depression began “shortly after his original back
injury about 15 years ago,” which would have been approximately
in 1990, and “[h]is depressive symptoms appear to be chronic and
fairly mild in nature.”

(R. at 157.)

McDonald told Dr. Witham

“that his depressed mood has gradually built up over the years.
He stated that he feels depressed all of the time, and that it
has never gone away. . . .

He did not report any episodes of

major depressive disorder since the onset of his pain and
depression about 15 years ago.”

(R. at 156.)

8

According to the

evaluation, McDonald began experiencing panic attacks in January
2005, after his father passed away.

(R. at 157.)

told Dr. Witham that he did not abuse alcohol.

McDonald also

(R. at 155.)

The

report states that McDonald injured his back by slipping on ice
fifteen years prior, and that he has not worked since then.

(R.

at 156.)
Dr. Ronald Goldberg saw McDonald and conducted a similar
disability evaluation on August 12, 2005.

(R. at 152–53.)

The

report states that McDonald has had “chronic low back pain of 14
years” due to an injury, and that a motor vehicle accident in
2003 aggravated the injury.

(R. at 152.)

Dr. Goldberg also

stated that McDonald last worked as a carpenter fifteen years ago
but stopped working due to back pain.

(R. at 152–53.)

not address any mental health conditions.

He did

(R. at 152–53.)

Dr.

Goldberg concluded that with successful pain management
treatment, “there would be no medical contraindication for fulltime sedentary employment.”

(R. at 153.)

Eisenman, the social worker who had seen McDonald regularly
since November 2005, provided a one-page letter dated February
15, 2007, in support of McDonald’s Social Security application.
(R. at 335.)

She concluded that “McDonald has experienced

symptoms severe enough to keep him from working for the past 24
years.

For most of that period, he was not in formal treatment,

but self-medicated with alcohol.”

9

(R. at 335.)

Eisenman based

her determination on “hospital documents and records of his
treatment for his suicide attempt and depression in 1983” and the
symptoms he currently presents, which “Mr. McDonald reports . . .
have been present ever since his initial suicide attempt in
1983.”

(R. at 335.)

In a shorter letter of the same month,

Eisenman gave her diagnosis as “major depression, recurrent” and
stated that McDonald had reported at his initial interview that
he had suffered severe emotional symptoms for twenty years.3

(R.

at 336.)
Rachel York, the registered nurse who prescribes McDonald’s
medications at Arbour Counseling Services, reported that he “has
been unable to work for many years due to the severity of his
symptoms.”

(R. at 338.)

She also reports that he “is coping

with chronic physical pain from old work related injuries.”

(R.

at 338.)
On February 12, 2007, Dr. William Krueger conducted another
disability evaluation of McDonald for the Commonwealth.
340–43.)

(R. at

In addition to discussing McDonald’s chronic pain, Dr.

3

The initial interview form lists “2 yrs +” as the onset of
his depressive symptoms and notes that he had prior mental health
treatment more than twenty years prior. (R. at 289.) There is
an important inconsistency between “2 yrs+” and twenty years.
The “2 yrs+” could date approximately back to the 2003 car
accident that reaggravated McDonald’s back injuries, and would
correspond with the reports of Dr. Caneris, who reported that
McDonald’s depression started after the motor vehicle accident.
(R. at 247–48, 289.) Twenty years could date back to before he
was last eligible to claim Social Security benefits.
10

Krueger noted that McDonald “reports a history of depression and
anxiety.”

(R. at 340.)

In addition to the 1983 suicide attempt

“trigger[ed]” by “marital conflicts,” Dr. Krueger states that
McDonald reported a second suicide attempt, “8 or 9 years ago,”
when he overdosed but woke up the next day and was not
hospitalized or treated.

(R. at 340.)

McDonald reported that he

only drinks on social occasions and “has never been a heavy
drinker” (R. at 341) and that he stopped working in the 1980s (R.
at 343).

Dr. Krueger diagnosed McDonald with “major depression,”

“anxiety disorder, not otherwise specified,” “panic disorder
without agoraphobia,” and stated that he “is not able to work due
to herniated discs, reports depression keeps him from working.”
(R. at 343.)
5.

Non-Examining Opinions

The SSA arranged two psychiatric reviews of McDonald’s file,
one dated June 22, 2006, and the other dated November 28, 2006.
(R. at 269–83, 319–33.)

In both decisions, the reviewing

physicians determined that there was insufficient evidence to
make a medical disposition regarding McDonald’s condition as of
December 31, 1986.

(R. at 269, 319.)

The second review,

conducted by Dr. D. Levoy, stated, “there are no psych sources
for info reflecting the [date last insured] period, and the prior
sources fr[om] 83 to 84 suggest alcohol-associated episodes and a
mention of situational depression for which he was not treated

11

with antidepressants.

There is no evidence establishing adequate

duration even to the alcohol and situational depression, nor is
th[e] severity clear, nor the mental status even back then.”
at 331.)

(R.

Dr. Levoy also noted the inconsistencies in McDonald’s

reported work history and the discrepancy between the Arbour
Counseling Services reports regarding the duration of his
depression and medical reports indicating that McDonald had not
suffered from depression until after his 2003 car accident.

(R.

at 331.)
6.

Hearing Testimony

At the December 6, 2007, hearing, the ALJ heard testimony
from an impartial medical expert, Dr. Louis Sorrentino, and an
impartial vocational expert, Amy Versilla.
Sorrentino, a board certified psychiatrist, reviewed
McDonald’s medical record, including exhibits submitted shortly
before the hearing, and concluded that McDonald suffers from
three listed impairments: affective disorders (12.04), anxiety
disorders (12.06), and substance addiction (12.09).
50–52.)

(R. at

With respect to the alcohol addiction, he stated

“[t]hat’s not very relevant” and that the “alcohol disorder has
been mainly to relieve his symptoms of severe depression and
anxiety.”

(R. at 52–53.)

Dr. Sorrentino concluded that

McDonald’s depression was “severe” and that the anxiety disorder
includes “severe panic attacks occurring at least once a week.”

12

(R. at 53.)

McDonald’s impairments, Dr. Sorrentino testified,

affect concentration and social interaction and he has had two
suicide attempts.

(R. at 53–54.)

When asked by the ALJ to supply citations to the record to
support his findings, Dr. Sorrentino referred to Eisenman’s
notation that McDonald’s GAF score was 35 and “[t]he psychiatrist
that reviewed his case — trying to find the quote.

He has — says

he has a long history of depression that’s gotten worse since the
‘80s with chronic symptoms of depression since that time.”
at 54.)

(R.

Dr. Sorrentino also cited McDonald’s herniated discs and

that he is presently prescribed medications.

(R. at 54.)

Dr.

Sorrentino maintained that McDonald was consistently suffering
severe mental and physical impairments since the date last
insured, citing the September 22, 2004, report from Dr. Caneris.
(R. at 56.)

When confronted with Dr. Caneris’s notation, in the

same report, that McDonald had not had depressive symptoms prior
to the 2003 car accident, Dr. Sorrentino struggled to find the
notation even after successfully locating the correct page.
at 61–63.)

(R.

He then questioned the completeness of Dr. Caneris’s

medical history, suggesting that Eisenman’s reports are more
complete.

He observed that “the social worker felt his

depression went way back,” although he admitted that her reports
were based entirely on self-reporting by McDonald.

13

(R. at 63.)

The ALJ also questioned Dr. Sorrentino extensively about the
effects of McDonald’s alcohol abuse.

Dr. Sorrentino suggested

that McDonald may have suffered brain damage from his alcohol
abuse, but admitted that there was no medical evidence of any
such damage.

(R. at 57.)

Dr. Sorrentino also stated that the

alcohol could have been a contributing factor to his depression.
(R. at 57.)
Versilla, a vocational rehabilitation counselor, testified
that, as of 1986, McDonald could have performed all past relevant
work other than driving a cab without exertional limitations.
(R. at 68.)
7.

ALJ’s Decision

The ALJ found that McDonald was not engaged in substantial
gainful employment from December 31, 1986, and that he had a
medical determinable impairment of situational depression as of
that time.

(R. at 77.)

However, the ALJ determined that

McDonald’s situational impairment did not significantly limit his
ability to work for twelve consecutive months and, consequently,
was not “severe” within the meaning of the Social Security Act.
(R. at 77.)

The ALJ thus concluded that there was no evidence of

a disability as defined in the Social Security Act as of December
31, 1986.

(R. at 81.)

The ALJ determined that although McDonald’s current
impairments are severe and disabling, “with the exception of the

14

claimant’s testimony that he was treated by Dr. Bahrawy for about
one year following [the 1983] suicide attempt, there is no
longitudinal medical evidence of any mental impairment prior to
December 31, 1986 other than situational depression, the
diagnosis offered on discharge March 15, 1983.”

(R. at 79.)

next documented evidence of treatment was in 2005.

The

(R. at 79.)

The ALJ also noted that there was record evidence that McDonald
was “well able to function” following his 1983 suicide with only
“mild limitations in the areas of activities of daily living,
social functioning and concentration, persistence and pace.”
at 80.)

(R.

The ALJ concluded that the medical evidence suggested

that his “suicide attempt in January of 1983 was related to
alcohol abuse and that his depression was situational in nature.”
(R. at 81.)
In assessing the record before him, the ALJ found McDonald
lacked credibility due to “his demeanor at the hearing, the
glaring inconsistencies between his testimony and the documentary
record and his unwillingness to answer questions in a forthright
manner.”

(R. at 81.)

He gave Dr. Sorrentino’s testimony “little

weight as upon further questioning it became clear that Dr.
Sorrentino was not familiar [with] many of the details contained
in the medical record.

Further, he was unable to provide

references to support his opinion.

Additionally, Dr. Sorrentino

stated that 12.09 [alcohol abuse] was not relevant which is also

15

at odds with Regulations as it appears the claimant had a
significant drinking problem in the 1980’s [sic].”

(R. at 79.)

The ALJ likewise found the reports of the Arbour Counseling
Services clinicians “of limited weight” because “neither of these
clinicians treated the claimant prior to 2005 and both relied
heavily on the claimant’s self-reporting in their durational
assessments,” and because it was not clear that they reviewed the
complete medical records.

(R. at 81.)

By contrast, the ALJ gave

the SSA’s non-examining psychiatrists’ reports “significant
weight as it reflects a reasoned judgment based on all of the
available evidence of the record.”

(R. at 81.)

II. STANDARD OF REVIEW
My review of the Commissioner’s decision on disability is
limited.

Although I may enter a judgment “affirming, modifying,

or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing,” the
Commissioner’s factual findings are treated as conclusive so long
as they are “supported by substantial evidence.”
§ 405(g).

42 U.S.C.

Thus, I must uphold the ALJ’s findings if “a

reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adequate to support his conclusion.”

Ortiz v.

Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(per curiam) (citation omitted).

16

Because the ALJ is tasked with making credibility
determinations and drawing inferences from the record, if
substantial evidence exists, I must defer to the ALJ’s finding
“even if the record arguably could justify a different
conclusion.”

Rodriguez Pagan v. Sec’y of Health & Human Servs.,

819 F.2d 1, 3 (1st Cir. 1987) (per curiam) (citation and
quotation marks omitted).

However, even if deference is due to

the ALJ’s factual findings, I “may review conclusions of law
. . . and invalidate findings of fact that are ‘derived by
ignoring evidence, misapplying the law, or judging matters
entrusted to the experts.’”

Musto v. Halter, 135 F. Supp. 2d

220, 225 (D. Mass. 2001) (quoting Nguyen v. Chater, 172 F.3d 31,
35 (1st Cir. 1999) (per curiam) (additional citations omitted).
Consequently, I must consider “whether the final decision is
supported by substantial evidence and whether the correct legal
standard was used.”

Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir.

2001).
III. DISCUSSION
In seeking disability benefits, a claimant “bears the
initial burden of establishing through credible evidence, that he
was disabled within the meaning of the Social Security Act.”
Musto, 135 F. Supp. 2d at 220; see also Goodermote v. Sec’y of
Health & Human Servs., 690 F.2d 5, 7 (1st Cir. 1982).

An

individual is considered disabled if he is unable “to engage in
17

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 12 months.”

42 U.S.C.

§ 423(d)(1)(A).
The SSA has established a five-step sequential evaluation
process to determine whether a claimant is disabled and thereby
eligible for disability benefits.

20 C.F.R. § 404.1520.

The ALJ

must determine (1) whether the claimant is engaged in substantial
gainful activity; (2) whether the claimant has a severe
impairment or a combination of impairments that is severe; (3)
whether that impairment falls within the listings in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) whether the claimant has the
residual functional capacity to perform past relevant work; and
(5) whether the impairment prevents the claimant from doing any
other work considering the claimant’s age, education, and work
experience.

Id.

In making this determination, the ALJ must

consider the record as a whole, but is “not at liberty to
substitute his own impressions of an individual’s health for
uncontroverted medical opinion.”

Carillo Marin v. Sec’y of

Health & Human Servs., 758 F.2d 14, 16 (1st Cir. 1985) (per
curiam).

18

The ALJ found that McDonald’s claim failed at the second
step of this inquiry because his impairment was not “severe” as
defined by the Social Security Act.
A.

(R. at 81.)

McDonald’s Insured Status
McDonald’s Social Security claim is complicated by his

distant date last insured.

In addition to demonstrating

disability, a claimant must also meet the “insured status”
requirement of 42 U.S.C. § 423(a)(1).

Coughlin v. Astrue, No.

09-30217, 2010 WL 4225380, at *2 (D. Mass. Oct. 20, 2010) (“An
individual is entitled to SSDI benefits if, among other things,
she has an insured status and, prior to the expiration of that
status, was under a disability. 42 U.S.C. § 423(a)(1)(A) and
(D).”).

If the claimant no longer meets that requirement — i.e.,

no longer makes sufficient contributions to the SSA via payroll
taxes or otherwise — in order to be eligible for benefits, he
must demonstrate that “prior to the expiration of that status,
[he] was under a disability that lasted, or could be expected to
last, for a continuous period of at least twelve months.”
Resendes v. Astrue, — F. Supp. 2d —, 2011 WL 669090, at *1 (D.
Mass. Feb. 17, 2011) (citing 42 U.S.C. § 423(a)(1)(A) and (C)).
The parties agree that McDonald’s date last insured is
December 31, 1986.

(R. at 17.)

Consequently, he bears the

burden of establishing that he was disabled, within the meaning
of the Social Security Act, by that date.

19

In his application for

benefits, McDonald listed December 31, 1986, as the onset date
for his disability.

(R. at 136.)

The relevant time period for

assessing McDonald’s mental and physical impairments, therefore,
is January 31, 1986, through January 31, 1986.4

See Resendes,

2011 WL 669090, at *1.
B.

ALJ’s Failure to Credit Medical Expert’s Testimony
The claimant bears the burden at step two in the sequential

evaluation process of demonstrating the severity of his
impairment. 20 C.F.R. § 404.1520(c) (“If you do not have any
impairment or combination of impairments which significantly
limits your physical or mental ability to do basic work
activities, we will find that you do not have a severe impairment
and are, therefore, not disabled.”).

An impairment is not severe

if it does not significantly limit a claimant’s ability to do
basic work activities.

20 C.F.R. § 404.1521(a).

4

During the hearing, McDonald’s counsel argued that the
onset of McDonald’s disability was “immediately upon the
occurrence of his . . . attempted suicide in January 1983” and
that this disability has been ongoing and uninterrupted since
that date. (R. at 19.) Although McDonald’s application for
benefits suggests that the relevant time period for considering
his impairments is as of the date last insured, the argument made
at the hearing suggests a relevant time period of January 29,
1983, to December 31, 1986. See Resendes, 2011 WL 669090, at
*12; see also Coughlin, 2010 WL 4225380, at *2. Because the ALJ
thoroughly considered McDonald’s mental impairments during this
extended period — particularly the suicide attempt as the only
contemporaneous medical evidence of McDonald’s mental impairment
before the expiration of the date last insured — I am satisfied
that any potentially relevant time period has been properly
considered by the ALJ despite McDonald’s inconsistent approach to
the relevant time of disability.
20

When there are inconsistent medical opinions in a claimant’s
case record regarding the severity of a claimant’s purported
disability, the SSA “will weigh all of the evidence and see
whether [it] can decide whether [claimant is] disabled based on
the evidence” the SSA has.

20 C.F.R. § 404.1527.

The SSA gives

“more weight” to medical opinions in which the source provides a
better explanation for that opinion, or in which the opinion is
more consistent with the record as a whole.

20 C.F.R.

§§ 404.1527(d)(3)–(4).
McDonald argues that the ALJ’s decision that his mental
impairment was not severe is not supported by substantial
evidence because the ALJ wrongly dismissed the opinion of the
impartial medical expert, Dr. Sorrentino.

The ALJ gave Dr.

Sorrentino’s testimony “little weight” because “upon further
questioning it became clear that Dr. Sorrentino was not familiar
[with] many of the details contained in the medical record. . . .
[and] he was unable to provide references to support his
opinion.”

(R. at 79.)

The transcript of the hearing provides substantial support
for the ALJ’s determination.

For example, Dr. Sorrentino was

unaware of Dr. Caneris’s report stating that the depressive
symptoms began only after the 2003 accident, he originally stated
that the alcohol abuse was “not very relevant” and then asserted
without any record support that McDonald may have sustained brain

21

damage due to drinking, Dr. Sorrentino also pointed to the severe
panic attacks — which the reports indicate began after his
father’s death in 2005 — as evidence of the severity of
McDonald’s anxiety condition in 1986.5

(R. at 50–54.)

Dr.

Sorrentino also based his diagnosis of McDonald’s condition on
the GAF score of 35 reported by Eisenman on November 3, 2005,
noting that “[u]sually 50 is the cutoff.”

(R. at 54.)

However,

the record evidence indicates that McDonald had received higher
GAF assessments contemporaneously and more recently than
Eisenman’s.

On July 28, 2005, Dr. Witham listed a GAF of 61 and,

in 2007, Dr. Krueger stated McDonald’s GAF was 53.

5

(R. at

The following is an example of Dr. Sorrentino’s apparent
confusion regarding the record during the hearing:
Q: Doctor, is it fair to say that the information that
Dr. Krueger is relying on is the report of the Claimant
himself?
A: Krueger is —
Q: I think that’s who you were referring — if that’ who
you were reading from, I thought —
A: Yeah.
Q: — that was the most recent —
A: Yes
Q: — document. Okay, Doctor, is there any evidence of —
to document the Claimant’s depression from — anything
to document his depression prior to his most recent
treatment beginning with Arbor Counseling Service?
A: Well, I think some of the depression was there, but
don’t think it was as severe until the attempted
suicide. . . .
Q: Okay, but is it fair to say, Doctor, there’s no
evidence in the medical — no medical evidence to
support the diagnosis from 1983 until some treatment
with Arbor Counseling?
A: Been in treatment, and has kept his appointments and
taken his medication . . .
(R. at 54–55.)
22

157–58, 343.)

Dr. Sorrentino also conceded that Eisenman’s

reports, upon which he relied almost exclusively as
support for his medical opinion, were themselves largely based on
McDonald’s own self-reporting.

(R. at 63.)

McDonald also argues that Dr. Sorrentino’s testimony is
consistent with all of the other medical evidence except the
SSA’s non-examining psychiatrists’ opinions and is especially
consistent with Eisenman’s opinions and reports.

McDonald is

only partially correct in this assertion.
First, Dr. Sorrentino, a non-examining psychiatrist, stated
in testimony that he credited Eisenman’s opinion over the other
reports in the file.

(R. at 63.)

Consequently, that Dr.

Sorrentino’s testimony is consistent with Eisenman’s reports and
opinion provides no additional support for Dr. Sorrentino’s
testimony.

Moreover, as Dr. Sorrentino conceded at the hearing,

Eisenman’s reports were generated twenty years after the date
last insured and are almost exclusively derived from McDonald’s
self-reporting.

(R. at 56.)

Second, while Dr. Sorrentino’s testimony is consistent with
Eisenman’s reports and opinion, his testimony is inconsistent
with the objective medical evidence in the record.

Dr.

Sorrentino’s opinion that McDonald’s severe mental impairment
dated from the 1983 suicide attempt is inconsistent with Dr.
Bahrawy’s 1983 notation that the diagnosis was “situational

23

depression” treatable by outpatient therapy and that the apparent
trigger for the suicide attempt was marital problems (which is
situational in nature).

(R. at 212–13.)

Other medical reports,

including Eisenman’s, also note that the suicide attempt was
triggered by McDonald’s separation from his wife.

(R. at 289–96

(Eisenman), 341 (Dr. Krueger).)
Additionally, the medical reports regarding work-related
injuries in 1998 and 2002 suggest that any impairment was not
severe as of the date last insured.

(R. at 228–31, 258–59.)

In

fact, McDonald completed a worker’s compensation evaluation for
the injury at a job site in 2002; told Dr. Murdock that he
“continues to work but has avoided doing the manual heavy labor
and is doing most of his time supervising at the job sites” in
2004; and told Dr. Caneris in 2004 that he had stopped working
after the 2003 motor vehicle accident.
256–57.)

(R. at 238–40, 247–48,

Furthermore, the disability evaluations in 2005, before

McDonald’s SSDI claim was initially rejected, focus on his back
pain.

(R. at 152–53, 157–58.)

Dr. Goldberg’s evaluation does

not mention depression, and Dr. Witham’s evaluation describes his
depression as “chronic and fairly mild in nature” and arising
“shortly after his original back injury about 15 years ago.”

(R.

at 152–53, 157.)
Thus, Eisenman and Dr. Sorrentino’s testimony regarding the
severity and duration of McDonald’s depression are inconsistent

24

with the medical record.6

Consequently, while McDonald is

correct that the ALJ may not dismiss “uncontroverted medical
opinion,” Carillo Marin, 758 F.2d at 1, the medical evidence in
the record indicates that Dr. Sorrentino’s opinion is not
uncontroverted.

It was therefore not error for the ALJ to give

the testimony of Dr. Sorrentino — and Eisenman — little weight.
See Ramos v. Barnhart, 119 Fed. Appx. 295, 296 (1st Cir. 2005)
(per curiam) (concluding that the “ALJ was justified in according
the treating psychiatrist’s report little weight” where the
physician’s opinion was “inconsistent with the bulk of the
medical evidence and [wa]s not supported by any progress notes or
clinical or laboratory findings”).

Given the lack of evidence of

any mental impairment between 1983 and 2004, based on the record

6

McDonald argues that the ALJ also erred in granting
“significant weight” to the non-examining reviews of the SSA’s
psychiatrists because they did not have a full record. Dr. Stone
and Dr. Levoy conducted their reviews on June 22, 2006, and
November 28, 2006, respectively. (R. at 269–83, 319–33.) While
Dr. Stone’s report simply stated that there was insufficient
evidence to support a medical disposition as of December 31,
1986, Dr. Levoy provided additional notations citing to the
record evidence, including the hospital reports from the 1980s.
(R. at 331.) Dr. Levoy observed that the hospital reports from
the 1980s noted involvement of alcohol and only one mention of
situational depression in 1983. (R. at 331.) The record
evidence that Dr. Levoy did not review were the opinions of
Eisenman, York, and Dr. Krueger, which were based entirely on
McDonald’s self-reporting and, with the exception of the
additional suicide attempt reported by Dr. Krueger, did not
provide any additional medical information. (R. at 335–43.)
Thus, there is substantial evidence supporting the ALJ’s
determination that Dr. Levoy’s conclusions were credible.
25

as a whole, I am satisfied that the ALJ’s decision was supported
by substantial evidence.
C.

Social Security Regulation 83-20
Social Security Regulation 83-20 (“SSR 83-20”) provides

guidelines for determining the onset date of a disability.
Ruling 83-20, Titles II and XVI: Onset of Disability, 1983 WL
31249 (SSA 1983).

SSR 83-20 defines the onset date of a

disability as “the first day an individual is disabled as defined
in the Act and the regulations.”
*1.

SSR 83-20, 1983 WL 31249, at

Three factors are relevant to a determination of an onset

date: the individual’s allegations, work history, and medical
evidence.

Id. at *2.

According to SSR 83-20, “medical evidence

serves as the primary element in the onset determination.”

Id.

When “the alleged onset and the date last worked are far in the
past and adequate medical records are not available[,] . . . it
will be necessary to infer the onset date from the medical and
other evidence that describe the history and symptomatology of
the disease process.”

Id.

SSR 83-20 further states that “[w]hen

the medical or work evidence is not consistent with the
allegation, additional development may be needed to reconcile the
discrepancy.

However, the established onset date must be fixed

based on the facts and can never be inconsistent with the medical
evidence of record.”

Id. at *3 (emphasis added).

26

McDonald argues that the ALJ abused his discretion by
failing to comply with SSR 83-20.

He cites two alleged errors.

The first is that the ALJ substituted his own view of the medical
evidence for that of Dr. Sorrentino, the medical expert called
pursuant to SSR 83-20.

This argument is duplicative of his

unsuccessful first argument regarding the weight afforded Dr.
Sorrentino’s testimony.
here.

Consequently, I need not repeat myself

See supra Part III.B.

McDonald next contends that the ALJ

erred by not exploring alternative sources of information when he
concluded that there was a “lack of longitudinal evidence”
supporting a finding of disability as of December 31, 1986.
It should first be noted that the ALJ was not under any
obligation to apply SSR 83-20 in this case.

“[A] determination

concerning the onset of disability does not need to be made
unless an individual has been determined at some point to have
been disabled during the insured period.”

Biron v. Astrue, No.

09-40084, 2010 WL 3221950, at *6 (D. Mass. Aug. 13, 2010).

Thus,

if, as here, the ALJ finds that the claimant was not disabled
during the relevant period, there is no requirement that the ALJ
determine the onset date.

See, e.g., Scheck v. Barnhart, 357

F.3d 697, 701 (7th Cir. 2004); Klawinski v. Comm’r of Soc. Sec.,
391 F. App’x 772, 776 (11th Cir. Aug. 6, 2010) (per curiam); Key
v. Callahan, 109 F.3d 270, 273–74 (6th Cir. 1997) (concluding
that when there is no finding of disability, “[t]he only

27

necessary inquiry is whether the claimant was disabled prior to
the expiration of his insured status”); see also Cohen v.
Barnhart, 61 F. App’x 722, 722 (1st Cir. 2003) (per curiam)
(finding compliance with SSR 83-20 unnecessary where the
purported disability, “as of the date of his application for
disability benefits, had not yet reached a level of severity that
would in itself preclude him from performing his past relevant
work . . ., and that, accordingly, appellant’s mental impairment
was not in itself severe enough to be disabling as of the much
earlier [date last insured]”).
SSR 83-20 may provide a helpful rubric for determining
whether a disability existed prior to the date last insured.

See

Blanda v. Astrue, No. 05-CV-5723, 2008 WL 2371419, at *14
(E.D.N.Y. June 9, 2008) (“[T]he most logical interpretation of
SSR 83-20 is to apply it to situations where the ALJ is called
upon to make a retroactive inference regarding disability
involving a slowly progressive impairment, and the medical
evidence during the insured period is inadequate or ambiguous.”).
Here, the ALJ in fact did call a medical expert, Dr. Sorrentino,
and addressed the three SSR 83-20 factors to that end.

Thus,

although he was not required to do so, the ALJ complied with SSR
83-20 and, consequently, committed no reversible error.
Biron, 2010 WL 3221950, at *6–7.

28

See

The ALJ also did not err in failing to develop the record
further.

The ALJ determined that the medical evidence did not

support a finding of disability as of December 31, 1986.
81.)

(R. at

Consequently, McDonald essentially is “contend[ing] the ALJ

should have sought [additional] assistance so that by inference
he could reach a conclusion that would be contrary to the medical
evidence already before him.”

TheLosen v. Comm’r of Soc. Sec.,

384 F. App’x 86, 91 (3d Cir. 2010).

Because the ALJ here

“consider[ed] the medical evidence, the consultative reports, and
the hearing testimony” to “determine[] that the evidence did not
support a finding, at step two of the sequential evaluation, that
[McDonald] had a severe impairment at a time that would qualify
h[im] to receive . . . benefits,” the ALJ “was not required to
obtain additional assistance.”7
D.

Id.

McDonald’s Credibility
Generally speaking, “[t]he credibility determination by the

ALJ, who observed the claimant, evaluated his demeanor, and
considered how that testimony fit in with the rest of the
evidence, is entitled to deference, especially when supported by
7

McDonald points out that his wife was present at the
hearing and could have provided testimony regarding his mental
impairment as of the date last insured. However, during the
hearing, McDonald’s counsel “made the decision not to offer Mrs.
McDonald as a witness, as her testimony would have been
redundant.” (Pl.’s Mem. at 17.) Given the potential testimony’s
redundant nature, and that McDonald contemplated but chose not to
offer it, the ALJ cannot be faulted for failing to require or
seek it.
29

specific findings.”

Frustaglia v. Sec'y of Health & Human

Servs., 829 F.2d 192, 195 (1st Cir. 1987) (per curiam).

However,

in making a credibility determination, the ALJ must consider six
prescribed factors:
(1) the claimant’s daily activities, (2) the location,
duration, frequency, and intensity of the medical
symptoms, (3) precipitating and aggravating factors,
(4) the type, dosage, effectiveness and side effects of
any medication, (5) treatment other than medication the
claimant receives, (6) measures claimant uses for pain
relief, and any other functional limitations and
restrictions due to the claimant’s impairments.
20 C.F.R. § 416.929(c)(3).

“Then, in assessing the credibility

of a claimant’s complaints . . ., the ALJ must consider whether,
in light of [these] factors, h[is] complaints are consistent with
the objective medical evidence and other evidence in the record.”
Arnold v. Astrue, No. 10-10429, 2011 WL 2940718, at *5 (D. Mass.
July 19, 2011) (citations omitted).
McDonald contends that the ALJ did not thoroughly or
properly evaluate his credibility because he relied on a few
purported inconsistencies in his testimony and did not give
sufficient consideration to his medications and prior alcohol
abuse.

However, the ALJ’s decision and his questioning at the

hearing demonstrate that he thoroughly considered the required
factors and, in light of McDonald’s inconsistent statements,
found him to lack credibility.

(R. at 79–80.)

A “strong indication of the credibility of an individual’s
statements is their consistency, both internally and with other
30

information in the case record.”

Ruling 96–7p, Evaluation of

Symptoms in Disability Claims: Assessing the Credibility of an
Individual’s Statements, 1996 WL 374186, at *5 (SSA 1996).
McDonald’s testimony and statements to various healthcare
providers, as evidenced in the hospital and other medical
reports, are laden with inconsistencies.

In particular, the ALJ

noted (1) McDonald’s failure to fully represent his criminal
history when directly asked; (2) his assertion that he had not
worked since 1985 due to herniated discs despite record evidence
that he had worked in construction after the date last insured;
(3) his denials that those same hospital reports documenting work
were accurate or even his; and (4) his failure to disclose his
previous alcohol abuse to Dr. Krueger.

(R. at 80.)

First, although the record indicates that he had been
convicted of intimidating a witness, resulting in a five-month
sentence, McDonald reported only a two-month sentence for driving
under the influence; he admitted to the witness intimidation
conviction and sentence only after prompting from his attorney.
(R. at 23, 46; see also R. at 155 (reporting disability
evaluation interview of Aug. 4, 2005, in which McDonald reported
both convictions).)
Second, the record includes several medical reports that
suggest that McDonald worked — albeit irregularly — after both
his suicide attempt in 1983 and the date he claims to have

31

stopped working, 1985.

(R. at 228–31 (Mar. 7, 1998), 238–40

(Jan. 28, 2004), 258 (June 19, 2002).)

Soon after he was treated

for contusions due to falling down an embankment at work on June
19, 2002, Merrimack Valley Hospital completed an Occupational
Health Workman Compensation Initial Visit evaluation on June 27,
2002.

(R. at 256–57.)

There is also a report from Bon Secours

Hospital of a work-related injury due to lifting in what appears
to be October 1984, which is after McDonald’s suicide attempt.
(R. at 205.)

Additionally, he is listed as a self-employed

construction worker on records from various hospitals, once
listing as employer D&B Construction at his own address in 1992.
(R. at 247–50 (New England Neurological Associates, 2004), 261
(Hale Hospital, 1992), 263 (Lawrence General Hospital, 1986), 256
(Merrimack Hospital, 2002), 260 (Hale Hospital, 1996).)

That the

ALJ found that McDonald had no substantial gainful employment as
of December 31, 1986, is not inconsistent with his finding that
McDonald worked occasionally as a self-employed construction
worker.
Third, the record evidence is inconsistent with McDonald’s
testimony at the hearing regarding why the records reflect some
work history.

The appropriate changes in personal information

(residential and employer address) and number of hospitals
involved cast doubt on his explanation that the records used old
occupational information from his 20s without being updated.

32

The

use of his own birth date and age on the report from Holy Family
Hospital from 1998 — where he was treated for a rash after coming
into contact with shrubbery while putting up siding — and the
fact that he has never questioned the authenticity of the Holy
Family report previously provides evidence to support the ALJ’s
finding that McDonald’s explanation that it was not a report
about him was inaccurate.

(R. at 25–26.)

Fourth, the medical records are also replete with incidents
involving alcohol and a history of alcohol abuse.

(R. at 205

(blackout due to alcohol), 212 (1983 suicide attempt), 214
(alcohol on breath when seen for BB gun shot to head), 258
(hospital report listing approximately thirty drinks per week),
289–96 (Arbour Counseling Services’ Initial Clinical
Evaluation).)

Indeed, the impact of McDonald’s alcohol abuse was

discussed at length during the hearing — both during McDonald’s
and Dr. Sorrentino’s testimony — and forms an integral basis for
his disability claim (i.e., that he did not seek treatment for
his depression until 2005 because he was self-medicating with
alcohol).

(R. at 34–37, 57.)

Nevertheless, on several

occasions, McDonald told treating or examining doctors that he
had no history of heavy drinking or alcohol abuse.

(R. at 155

(disability evaluation of Aug. 4, 2005), 247–48 (report of Dr.
Caneris, Sept. 22, 2004), 341 (report of Dr. William Krueger,

33

Feb. 12, 2007).)

These inconsistent representations provide a

substantial basis to question McDonald’s credibility.
Finally, insofar as McDonald contends that the ALJ did not
consider the impact of McDonald’s medications, potential side
effects, and alcohol abuse in determining his credibility, his
contention is without merit.

Although the ALJ did not explicitly

discuss the relevance of these factors in his reasoning regarding
credibility, the ALJ considered the influence and effects of
McDonald’s alcohol abuse in great detail during the hearing,
including considering the possibility of permanent brain damage
and the use of alcohol as self-medication.
56–64.)

(R. at 34–37, 45,

Testimony was also heard regarding McDonald’s current

symptoms, such as social withdrawal, sleeplessness, lack of
concentration, panic attacks, poor memory, and lack of appetite.
(R. at 39–40, 43–4.)

Reference was also made to the list of

medications that McDonald currently takes, which is found in the
record.

(R. at 28, 54.)

While the ALJ must consider all of the relevant factors, “as
a matter of law, the ALJ is not required to address all of the
[required] factors in his decision.”

Matos v. Astrue, — F. Supp.

2d —, 2011 WL 2648446, at *6 (D. Mass. 2011) (citing Nat’l Labor
Review Bd. v. Beverly Enters.-Mass., Inc., 174 F.3d 13, 26 (1st
Cir. 1999)); see also Shields v. Astrue, No. 10-10234, 2011 WL
1233105, at *11 (D. Mass. Mar. 30, 2011) (“[T]here is no

34

requirement that he make specific findings regarding each of the
factors in his written decision.” (citations omitted)).

All that

is required is that the ALJ’s “determination or decision must
contain specific reasons for the findings on credibility,
supported by evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reason for that weight.”
96–7p, 1996 WL 374186, at *4.

Ruling

The ALJ’s decision “contain[s]

specific reasons for the findings on credibility” and there is
substantial evidence in the record to support those findings.
Thus, viewing the record as a whole, I find the ALJ had
substantial evidence to support his adverse credibility
determination.
IV. CONCLUSION
For the reasons set forth more fully above, I GRANT the
Defendant’s motion (Doc. No. 17) to affirm and DENY McDonald’s
motion (Doc. No. 12) for Judgment on the Pleadings in his favor.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

35