Alberts v. Astrue
Filing
13
Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER GRANTING the Commissioner's motion to affirm (D. 11) and DENYING the Plaintiff's motion for judgment on the pleadings (D. 8). (Casper, Denise)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________________
)
)
LORI JEAN ALBERTS,
)
)
Plaintiff,
)
) Civil Action No. 11-11139-DJC
v.
)
MICHAEL J. ASTRUE, Commissioner,
)
Social Security Administration,
)
)
Defendant.
)
_________________________________________ )
MEMORANDUM AND ORDER
CASPER, J.
I.
March 29, 2013
Introduction
Plaintiff Lori Jean Alberts (“Alberts”) filed claims for disability insurance benefits
(“SSDI”) and supplemental security income (“SSI”) with the Social Security Administration
(“SSA”). Pursuant to the procedures set forth in the Social Security Act, 42 U.S.C. §§ 405(g),
1383(c)(3), Alberts brings this action for judicial review of the final decision of Defendant
Michael J. Astrue, Commissioner of the Social Security Administration (“the Commissioner”),
issued by an Administrative Law Judge (“ALJ”) on February 18, 2011, denying her claim.
Before the Court are Alberts’s Motion for Judgment on the Pleadings, D. 8, requesting reversal
or remand of the decision below, and the Commissioner’s Motion to Affirm that decision, D. 11.
In her motion, Alberts claims that the ALJ erred in denying her claim because: (1) the ALJ gave
the opinions from Alberts’s treating psychiatrist “minimal probative weight” without properly
supporting that decision, Pl. Mem., D. 9 at 9, and based his residual functional capacity (“RFC”)
finding “entirely upon the opinions from the non-examining State agency review psychologist,”
1
D. 9 at 11; (2) the ALJ failed to evaluate Alberts’s credibility properly, D. 9 at 14; and (3) the
ALJ erred by relying on testimony offered by a vocational expert (“VE”), where the VE based
his opinion on the allegedly flawed RFC provided by the ALJ, D. 9 at 18.
II.
Factual Background
Alberts was 47 years old when she ceased working on May 16, 2008. R. 29, 117. She
had previously worked as a telephone answering service operator and as a clerical worker.
R. 36. In her August 5, 2008 application for SSDI and SSI with the SSA, she alleged disability
due to anxiety, post traumatic stress disorder (“PTSD”), major depression, diabetes, high blood
pressure (“HBP”) and cholesterol. R. 47, 111, 117, 146.
III.
Procedural Background
Alberts filed claims for SSDI and SSI with the SSA on August 5, 2008, asserting that she
was unable to work as of May 16, 2008. R. 111, 117. After initial review, her claims were
denied on November 21, 2008. R. 47. She filed a request for reconsideration on December 18,
2008, stating that she disagreed with the initial determination because she was “unable to work
due to . . . major depression, PTSD with visual and auditory hallucinations and crying spells.”
R. 51-52. Her applications for SSDI and SSI were reconsidered by a state “physician and
disability specialist” and both requests for reconsideration were denied on June 16, 2009. R. 5358. On August 6, 2009, Alberts filed a timely request for a hearing before an ALJ pursuant to
SSA regulations. R. 59. A hearing was held before an ALJ on February 14, 2011. R. 24-25.
Alberts was represented at the hearing by an attorney. R. 25. In a written decision, dated
February 18, 2011, the ALJ determined that Alberts was not disabled within the definition of the
Social Security Act and denied her claims. R. 13-23. Although the ALJ notified Alberts that the
SSA’s Decision Review Board (“the Board”) had selected her claim for review, R. 10, the Board
2
did not complete its review of Alberts’s claim during the requisite time period.
R. 1.
Accordingly, the ALJ’s decision is the Commissioner’s final decision. R. 1.
IV.
Discussion
A.
Legal Standards
1.
Entitlement to Disability Benefits and Supplemental Security Income
A claimant’s entitlement to SSDI and SSI turns in part on whether she has a “disability,”
defined in the Social Security context as an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. §§ 416(i), 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The inability
must be severe, rendering the claimant unable to do his or her previous work or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2);
20 C.F.R. §§ 404.1505-404.1511.
The Commissioner must follow a five-step process when he determines whether an
individual has a disability for Social Security purposes and, thus, whether that individual’s
application for benefits will be granted. 20 C.F.R. § 416.920. All five steps are not applied to
every applicant; the determination may be concluded at any step along the process. Id. First, if
the applicant is engaged in substantial gainful work activity, then the application is denied. Id.
Second, if the applicant does not have, or has not had within the relevant time period, a severe
impairment or combination of impairments, then the application is denied. Id. Third, if the
impairment meets the conditions for one of the “listed” impairments in the Social Security
regulations, then the application is granted. Id. Fourth, if the applicant’s RFC is such that he or
she can still perform past relevant work, then the application is denied. Id. Fifth and finally, if
3
the applicant, given his or her RFC, education, work experience, and age, is unable to do any
other work, the application is granted. Id.
2.
Standard of Review
This Court has the power to affirm, modify or reverse a decision of the Commissioner
upon review of the pleadings and record. 42 U.S.C. § 405(g). Such review, however, is “limited
to determining whether the ALJ used the proper legal standards and found facts upon the proper
quantum of evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000) (citing
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)). The ALJ’s findings of fact are conclusive
when supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence exists “if a
reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to
support [the Commissioner’s] conclusion.” Rodriguez v. Sec’y of Health & Human Servs., 647
F.2d 218, 222 (1st Cir. 1981).
B.
Before the ALJ
1.
Medical History
Alberts presented the ALJ with extensive evidence about her medical history, including
diagnoses and treatment, particularly in regard to the conditions upon which she relied in
claiming a disability in her application for SSDI and SSI benefits. Alberts listed her disabilities
as “anxiety, PTSD [post traumatic stress disorder], major depression, diabetes, HBP [high blood
pressure] [and] cholesterol.” R. 146. Her basis for a hearing before an ALJ was focused on her
inability to work “due to emotional and concentration problems.” R. 59.
a)
Anxiety, PTSD and Major Depression
Alberts has a history of depression and PTSD dating back to 2000. R. 186. An initial
psychiatric evaluation, dated November 26, 2007, reported that Alberts suffered from depression
4
since childhood and that she was a victim of sexual abuse as a child. R. 216-17. The report also
noted that Alberts suffered from anxiety, panic attacks and became angry and irritable easily. Id.
That evaluation initially assessed Alberts as suffering from PTSD, panic disorder, major
depression, recurrent and other illnesses. R. 217.
On December 11, 2007, Alberts was examined by her primary care physician, Dr. Paul
Fallon (“Dr. Fallon”) at Caritas Medical Group where she was referred to a psychiatrist after
complaining of “crying, fatigue and decreased motivation.” R. 35; 186-87. From January 2008
through June 2009, Alberts received psychiatric counseling at Wilmington Family Counseling
Services (“WFCS”). R. 215-47, 303-23. The record contains detailed progress notes written by
WFCS counseling staff regarding Alberts. Id. These notes show that Alberts’s mood and
depression fluctuated over the year and a half that she received services at WFCS. Id. For
example, on January 17, 2008, Alberts reported “feeling up and down” and that she was “still
having crying spells . . . but [was] feeling a little better.” R. 223. At times, the notes report that
she was “doing well” or that she was “feeling less depressed.” See, e.g., R. 239, 305-06, 313.
However, at other times the notes show Alberts was feeling “down” or “more depressed.” See,
e.g., R. 236, 241, 311.
On December 5, 2008, Dr. Fallon noted that Alberts “feels her [depression and PTSD]
symptoms are under good control.” R. 376. On January 8, 2009, Colette April, a nurse at
WFCS, opined that “Alberts is unable to work because of her psychiatric illness,” and that “[h]er
problems with concentration, energy and mood preclude her ability to sustain attention for any
reasonable amount of time.” R. 310. The last WFCS progress note is dated June 3, 2009 and
notes that Alberts is “still doing well.” R. 305. On January 5, 2010, at a follow-up visit with her
primary care physician, Dr. Fallon noted that Alberts continued to suffer from depression and
5
fatigue and had not found a new psychiatrist, but that she was sleeping well and was not suicidal.
R. 356. Dr. Fallon continued her medications prescribed by her previous psychiatrists. R. 357.
There is a gap in the psychiatric medical records from June 2009 to February 2010.1
From February 5, 2010 to January 11, 2011, Alberts was under the psychiatric care of Dr. Daniel
Greene (“Dr. Greene”) at St. Elizabeth’s Medical Center. R. 324-35, 343-50, 388-93. In his
initial evaluation of Alberts, Dr. Greene diagnosed Alberts with major depressive disorder and
PTSD in remission. R. 335. Dr. Greene noted that Alberts had worsening depression and social
anxiety, but that her medications were helping and that she displayed good coping skills. R. 33135. The treatment notes from Dr. Greene indicate that Alberts’s mood and depression fluctuated.
R. 324-330, 337, 391-393. At times, Dr. Greene reported that Alberts had an “improved mood”
or “generally good mood.” See, e.g., R. 324, 326, 327, 329, 392. At other times, Dr. Greene
reports that Alberts “felt more depressed.” See, e.g., R. 325, 331.
On May 27, 2010, Dr. Fallon noted that Alberts had found a new psychiatrist, namely Dr.
Greene, and that she was less depressed and less fatigued. R. 358. On August 27, 2010, Dr.
Greene completed a Psychiatric/Psychological Impairment Questionnaire indicating that Alberts
suffers from major depressive disorder and had a current Global Assessment of Functioning
(“GAF”) score of 45, stating her primary symptoms as “daily frequent tearfulness, frequent
awakening at night, [and] poor concentration.”2 R. 343-45. Dr. Greene opined that despite
Alberts’s compliance with her medications and her “clubhouse services,”3 Alberts “has been
1
This gap coincides with Alberts’s self-reported break from psychiatric treatment. R. 31.
2
A treating endocrinologist wrote four days later, on August 31, 2010, that Alberts
reported she “feels her depression is well controlled, although on occasion she still has crying
spells.” R. 374.
3
Alberts testified that the “clubhouse” is a clubhouse for mentally impaired people that
provided social and support services. R. 32.
6
struggling with mental illness for many years” and it is “unlikely that she will be able to function
in a job for the foreseeable future.” R. 350. In his last treatment note dated January 11, 2011,
Dr. Greene noted that Alberts reported a “good mood,” that she was “sleeping well lately,” and
was “getting along well with her roommate.” R. 393.
On January 27, 2011, Dr. Greene completed a second Psychiatric/Psychological
Impairment Questionnaire indicating that Alberts suffered from major depression and had a
current GAF score of 55. R. 395. Dr. Greene stated that Alberts was “chronically depressed but
recently her mood has been improved.” Id. However, citing her history of mood fluctuation
when under stress, Dr. Greene opined that Alberts is incapable of even low work stress and it is
unlikely Alberts “will be unable to function at a job at this time and for the foreseeable future.”
R. 395, 402. Dr. Greene noted that Alberts was taking the medications Temazepam, Cymbalta,
Abilify, Clonidine, Trazodone, Topomax and Buspar. R. 400.
b)
Diabetes, HBP and Cholesterol
Although not the focus of Alberts’s disability claim either before the ALJ or on appeal,
the Court briefly reviews Alberts’s medical history related to diabetes, HBP and cholesterol since
Alberts raised these conditions as a basis for her initial disability claim, R. 146, and the ALJ
commented on these conditions in his findings, R. 15-16.
From December 11, 2007 to November 29, 2010, Alberts was treated at Caritas Medical
Group where Dr. Fallon was her primary care physician. R. 186-214, 352-366. In his initial
examination on December 11, 2007, Dr. Fallon noted that Alberts had been diagnosed with
diabetes a year earlier and had a history of hypertension. R. 186. Dr. Fallon assessed that
Alberts suffered from depression, hypertension and other medical issues and suggested some
general health maintenance tests. R. 187. Alberts continued to be treated by Dr. Fallon for her
7
diabetes, hypercholesterolemia, hypertension and other general medical issues. R. 186-214, 352366. On January 11, 2008, Dr. Fallon noted that Alberts’s cholesterol was “still a little high” and
increased her medication. R. 209. On August 8, 2008, Dr. Fallon reported that her diabetes was
“in good control.” R. 193. On December 5, 2008, Alberts received a complete physical exam
from Dr. Fallon.
R. 376.
Dr. Fallon indicated that Alberts was suffering from diabetes,
hypertension, and depression/posttraumatic stress disorder, among other maladies. R. 377-78.
During this time, Alberts was prescribed Lisinopril, Topamaz, Effexor, Trazodone, Clonidine,
Lisinopril, Lovastatin and Metformin. R. 149, 186-89. Alberts’s primary care medical records
continue until November 29, 2010, noting that Alberts was controlling her diabetes and
hypertension through medication, diet and exercise. R. 365.
2.
RFC Assessments and Other Evaluations by Massachusetts Disability
Determination Services
In addition to Alberts’s medical records, the ALJ had before him two mental and one
physical RFC assessments dated November 19, 2008, June 12, 2009 and May 27, 2009
respectively, which were performed by three different medical consultants working for the
Disability Determination Services (“DDS”) department of the Massachusetts Rehabilitation
Commission. R. 259-62, 277-84, 299-302. Dr. John Jao (“Dr. Jao”) performed the physical
RFC assessment. R. 284. Dr. Carol McKenna (“Dr. McKenna”) performed the June 12, 2009
mental RFC evaluation apparently only from existing medical records, R. 297, which included a
consulting evaluation by examining doctor Dr. Le M. Doan (“Dr. Doan”) performed on October
17, 2008. R. 255. The ALJ also had Dr. Doan’s evaluation before him in the record.4
4
The earlier November 19, 2008 mental RFC evaluation was performed by a different
medical consultant and is not mentioned in the ALJ’s decision. That RFC evaluation provided
an identical general evaluation except that it had evaluated Alberts as “not significantly limited”
rather than “moderately limited” in the metric of “ability to work in coordination with or
8
Dr. Jao’s physical RFC evaluations states that Alberts could occasionally lift and/or carry
twenty pounds, could frequently lift and/or carry ten pounds, could stand and/or walk with
normal breaks for about six hours in an eight-hour workday, could sit with normal breaks for
about six hours in an eight-hour workday, and was not otherwise limited in her ability to push
and/or pull. R. 278. The physical RFC evaluation also indicated that her activities of daily
living included “cooking, light cleaning, walking, use of public transportation, shopping in
stores, reading[,] TV and social activities.” R. 278.
Dr. McKenna’s mental RFC evaluation stated that Alberts was either “not significantly
limited” or was “moderately limited” in all of the measured categories. R. 299-300. Under a
section labeled “Functional Capacity Assessment” the RFC states that without substantial
assistance, Alberts is: “A: Able to comprehend & recall simple info & . . . B: Complete same
level tasks & with effort, sustain for 2 hr increments across an 8 hr day for 5 days/week. C:
Likely to be sensitive to perceived criticism but is capable of adeq[u]ate [sic] social interaction
overall. D: Able to adapt to routine change following a brief period of adjustment.” R. 301
(ellipsis in original).
3.
ALJ Hearing
At the February 14, 2011 administrative hearing, the ALJ heard testimony from two
witnesses, Alberts and a VE, James Sarnos. Alberts testified that she had last worked on May
16, 2008, but had stopped after having an argument with her boss. R. 29. Alberts testified that
her boss had asked Alberts to continue working “overnights,” but that Alberts was unable to do
so because she has “a dog that barks at night.” Id. Alberts felt that her boss was “giving
proximity to others without being distracted by them.” Compare R. 259 with R. 299. The earlier
evaluation contains a similar evaluation. Compare R. 261 with R. 301. Only the later June 12,
2009 mental RFC, which presents a slightly stronger case for Alberts’s disability claim, was a
basis for the ALJ’s RFC finding. R. 37.
9
[Alberts] unreasonable things to do about the dog” and was “continually harassing [Alberts]
about it.” Id. Alberts testified that she “just couldn’t take it anymore and left.” Id. She reported
that she hadn’t worked since that time because of “issues with depression and extreme
exhaustion [and] criticism” that cause her to “cry very easily [for five or ten minutes] at the
lowest amount of pressure.” R. 30, 33. Alberts testified that her days were spent sleeping,
watching television or going to the “clubhouse” for mentally impaired people where she would
talk with others, make cards or check e-mail. R. 31-32. She reported that she took break from
her psychiatric treatment between June 2009 and February 2010 because she was in the process
of a move. R. 31. Alberts reported that she was on medication to help her depression and was
uncertain if her medication was causing her tiredness. R. 32. She testified to the ALJ that
“exhaustion” would keep her from being able to hold a low stress job, and that she previously
had found herself “falling asleep a lot on the night shifts” even when she was well-rested
beforehand. R. 34-35. Alberts testified that she also had other problems, such as seeing images,
and that she had difficulty concentrating, which prevented her from reading or finishing a
television show. R. 33-34.
The VE testified next, and stated that Alberts had worked as a telephone answering
service operator, which he described as a semi-skilled job with a sedentary exertion level, and as
a general officer helper, which he described as unskilled job with a light exertion level. R. 36.
The ALJ then presented the VE with a RFC of a hypothetical person and asked if that person
would be able to work as a telephone answering service operator or as a general officer helper.
D. 37. Specifically, the ALJ asked the VE to consider a hypothetical individual whose age
ranged from 47 to 50; who had the same work experience as Alberts; whose exertion
impairments are limited to the light level; who may only occasionally climb a ladder, rope or
10
scaffold; who may only occasionally kneel, crouch or crawl; who was able to comprehend and
recall simple information and complete simple tasks with effort sustained for two-hour
increments across an eight-hour day for five days a week; who was likely to be sensitive to
perceived criticism, but is capable of adequate social interaction overall; and who was able to
adapt to routine changes following a brief period of adjustment. R. 37. The VE responded that
because the jobs of telephone answering service operator and general officer helper required
more than the completion of simple tasks, the hypothetical individual would not be able to do
those jobs. R. 37. The ALJ asked whether there would be unskilled jobs available to a
hypothetical person with the given RFC and the VE replied yes, and identified “bottling line
attendant,” “light housekeeping” and “garment folder” as three such jobs that existed both in the
national and state economies. R. 37-38.
The ALJ then asked the VE to read a medical report written by Greene and provided by
Alberts and was then asked if the medical evaluation was “disabling.” R. 38 (citing R. 343-50).
The VE responded yes, and explained his answer. R. 39. The ALJ then asked the VE to assume
that Alberts was credible in her testimony and whether on that assumption there were any jobs
that the VE knew of that Alberts could perform. Id. The VE responded that based on this
proffer, there would be no jobs that Alberts could perform on a competitive basis. Id. After
Alberts’s attorney conducted a short cross-examination of the VE with respect to the work
involved in light housekeeping, R. 39-41, Alberts added that she had trouble doing her own
housekeeping, R. 41, and the ALJ closed the hearing. R. 42.
4.
Findings of the ALJ
Following the five-step process, 20 C.F.R. § 416.920, at step one, the ALJ found that
Alberts had not engaged in substantial gainful activity since May 16, 2008. R. 15. At step two,
11
the ALJ found that Alberts suffered from two severe impairments: major depressive disorder
and obesity.5
R. 15.
The ALJ also noted that Alberts suffered from “diabetes mellitus,
hyperlipidemia, and hypertension,” but that these conditions were effectively managed with
medication and diet and that the record contained no evidence that the signs or symptoms from
these conditions had “more than minimally” affected Alberts’s ability to work. R. 15-16. At
step three, the ALJ found that Alberts did not have an impairment, singly or in combination, that
was one of the “listed” impairments in the Social Security regulations requiring a finding of
disablement. R. 16-17. Alberts does not challenge any of those findings.
Before proceeding to step four, the ALJ then determined that Alberts has the RFC “to
perform light work” with a few noted limitations. R. 17-21. Alberts disputes this finding. The
ALJ found that the objective medical evidence supported this conclusion and found that
Alberts’s testimony was not credible in part where it described symptoms beyond what was
supported by the medical evidence. R. 18-20. The ALJ recited the findings of Alberts’s treating
physician, Dr. Greene, as well as the findings by state agency consultants, Dr. Jao and Dr.
McKenna, and state agency consulting examiner Dr. Doan. R. 20-21. The ALJ described Dr.
Jao’s RFC determination (as recited above) as to Alberts’s physical capabilities and Dr.
McKenna’s RFC determination (as recited above) as to Alberts’s mental capabilities. Id. The
ALJ found that these two RFCs determined by state doctors were “well-supported by the record
as a whole.” R. 21.
At step four, based on that RFC determination, the ALJ found that Alberts was unable to
perform any past relevant work. R. 21. Alberts does not dispute this conclusion. At step five,
5
Alberts did not claim obesity as a disability. R. 16, 146. The ALJ noted that the
claimant was 5’2’’ tall, weighed 209 pounds and had a body mass index of 38. He concluded
that this rendered Alberts “obese” and since “obesity is considered a severe impairment, [the
ALJ] took it into consideration in evaluating the claimant’s [RFC].” R. 16.
12
the ALJ determined that “considering [Alberts’s] age, education, work experience, and [RFC],
there are jobs that exist in significant numbers in the national economy that the claimant can
perform.” R. 22. Alberts disputes the ALJ’s ultimate conclusion that she is not disabled.
C.
Alberts Challenges to the ALJ’s Findings
Alberts contends that the ALJ’s determination that Alberts is not disabled and has the
RFC to perform “light work” was not supported by substantial evidence. First, Alberts argues
that the ALJ did not properly follow the treating physician rule and gave undue consideration to
non-treating physician reports. Second, Alberts argues that the ALJ failed to evaluate her
credibility properly. Finally, Alberts argues that the ALJ relied upon flawed VE testimony
because the RFC given to the VE was flawed. For the reasons discussed below, the Court finds
no reversible error and affirms the ALJ’s decision.
1.
ALJ’s Evaluation of the Medical Opinions
Alberts first argues that the ALJ erred when he accorded minimal weight to the opinion
of Alberts’s treating psychiatrist, Dr. Greene. Alberts also argues that the ALJ improperly relied
on the opinion of the non-examining, non-treating state agency psychologist, Dr. McKenna, in
determining Alberts’s RFC. The Court will examine the ALJ’s use of each doctor’s opinions in
turn.
a)
Treating Psychiatrist’s Opinion: Dr. Greene
The ALJ found that Dr. Greene’s opinion was inconsistent with the record as a whole and
with statements made by Alberts, and therefore, that Dr. Greene’s opinion was only entitled to
minimal probative weight.
R. 20-21.
Alberts argues that Dr. Greene’s opinion is not
inconsistent with the record, and therefore, that the ALJ was required to give the opinion
controlling weight. Pl. Mem., D. 9 at 13. Alberts also argues that even if the ALJ did not err in
13
refusing to give Dr. Greene’s opinion controlling weight, the ALJ did not provide “good
reasons” for rejecting Dr. Greene’s opinions and “failed to weigh Dr. Greene’s opinions under
the factors in 20 C.F.R. § 404.1527(d)(2)-(6) and § 416.927(d)(2)-(6).” Id. at 13-14.
An ALJ should give controlling weight to a treating physician’s opinion if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent
with
the
other
substantial
evidence
in
[the]
case
record.”
20 C.F.R. § 404.1527(c)(2). If the ALJ determines that the treating physician’s opinion is not
entitled to controlling weight, the ALJ must determine the amount of weight to give the opinion
based on the following six factors: (1) “[l]ength of treatment relationship and the frequency of
examination,” (2) “[n]ature and extent of the treatment relationship,” (3) “[s]upportability” of the
medical opinion, (4) consistency of the opinion “with the record as a whole,” (5)
“[s]pecialization” of the treating source, and (6) “other factors . . . that tend to support or
contradict the opinion.” Id. § 404.1527(c). In addition, the ALJ must “give good reasons” for
the weight given to the treating source’s opinions. Id. That is, the ALJ must give reasons that
are “sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.” Social Security
Ruling 96-2p, 1996 SSR LEXIS 9, at *12 (S.S.A. 1996); see Haggblad v. Astrue, No. 11-cv-028JL, 2011 U.S. Dist. LEXIS 140274, at *21 (D.N.H. Nov. 17, 2011). The ALJ’s reasons must
also be supportable and reasonable. Haggblad, 2011 U.S. Dist. LEXIS 140274, at *22. The ALJ
is not required to discuss each factor under 20 C.F.R. § 404.1527 in his decision, so long as he
gives good reasons, supported by the evidence in the record, for the weight he ultimately gives to
the treating physician’s opinion. Crocker v. Astrue, No. 07-220-P-S, 2008 U.S. Dist. LEXIS
50201, at *30 (D. Me. June 30, 2008); see Delafontaine v. Astrue, No. 1:10-cv-027-JL, 2011
14
U.S. Dist. LEXIS 2794, at *53 (D.N.H. Jan. 7, 2011) (noting that “an ALJ is not required to
methodically apply [the factors] so long as the ALJ’s decision makes it clear that these factors
were properly considered”); Braley v. Barnhart, No. 04-176-B-W, 2005 U.S. Dist. LEXIS 11070,
at *12 (D. Me. June 7, 2005) (noting that “the plaintiff does not cite, nor can [the court] find, any
First Circuit authority for the proposition that an [ALJ] must slavishly discuss each of these
factors for his consideration of a treating-source opinion to pass muster”). The factors provide a
balancing test, not a checklist. See Conte v. McMahon, 472 F. Supp. 2d 39, 48-49 (D. Mass.
2007) (disagreeing with claimant that a “failure to address specifically each factor constitutes
legal error” because the list “presents the quintessential balancing test” and stating that the ALJ
did not “neglect[] to perform the balancing,” but rather “chose to stress one factor[, consistency
of the opinion with the record as a whole,] over the others”).
Like the ALJ in Conte, the ALJ in the instant case focused on the inconsistency of Dr.
Greene’s opinions with the entirety of the record. While the ALJ did not specifically address
each individual factor, his opinion makes it clear that he balanced the statutory factors in
determining how much weight to afford Dr. Greene’s opinion. First, as for length of treatment
relationship and nature and extent of the relationship, the ALJ noted that Alberts did not begin
treatment with Dr. Greene until February 2010. R. 19; see also R. 31 (Alberts’s testimony that
she saw Dr. Greene monthly starting in February 2010), R. 395 (noting monthly visits with Dr.
Greene from February 5, 2010 to January 11, 2011). Second, as to supportability of the medical
opinion, the ALJ noted that Dr. Greene gave Alberts Global Assessment of Functioning (“GAF”)
scores in the 40s and 50s and that the most recent score was a 55. R. 19; see R. 395 (January 27,
2011 questionnaire scoring Alberts at a GAF score of 55). A GAF score of 55 indicates that the
patient has “moderate difficulty in social, occupational, or school functioning.” Pl. Mem., D. 9
15
at 3 n.6. But as the ALJ noted, R. 21, Dr. Greene did not have access to Alberts’s prior
examination records, which, as described in detail below, painted a different picture of Albert’s
social and occupational functioning abilities, including her ability to maintain long-term
relationships with a roommate and boyfriend and her volunteering in the business unit at the
clubhouse. See, e.g., R. 159, 226, 258-68. The ALJ noted that “Dr. Greene did not have access
to the full longitudinal evidence of record, which . . . indicat[es] that [Alberts] is not as limited as
set forth in Dr. Greene’s opinion.” R. 21; see 20 C.F.R. § 404.1527(d)(6) (stating that the ALJ
shall consider “other factors” including “the extent to which [the source] is familiar with the
other information in [the] case record”).
In addition, there is substantial evidence in the record to support the ALJ’s determination
that Dr. Greene’s opinions were inconsistent with record as a whole.6
First, as the ALJ
discussed, a report from Dr. Doan, the DDS consultant who examined Alberts, indicates that
Alberts has “a robust social life” and that “[her] symptoms do not limit her activities to the extent
alleged.” R. 20. Dr. Doan reported that Alberts spent time with friends, including her boyfriend,
and participated in a variety of daily activities and that she “displayed appropriate attitude” and
had a “pleasant and stable” mood. R. 256-68. Second, the ALJ noted that Alberts’s own
statements are inconsistent with Dr. Greene’s opinion and suggest that Alberts “is not as limited
as set forth in Dr. Greene’s opinion.” R. 21; see, e.g., R. 159-62 (Social Security Administration
Function report in which Alberts discusses going to the clubhouse, volunteering, visiting with
friends on a daily basis, shopping and completing household chores); R. 226 (progress notes
6
The ALJ is not required to discuss all of the evidence in the record. Avery v. Astrue,
No. 11-20100-DJC, 2012 U.S. Dist LEXIS 135824, at *32 (D. Mass. Sept. 21, 2012) (citing
Frost v. Barnhart, 121 F. App’x 399, 400 (1st Cir. 2005)). There is a presumption “that the ALJ
has considered all of the evidence before him.” Miller v. Astrue, No. 2009-12018-RBC, 2011
U.S. Dist. LEXIS 64338 (D. Mass. June 16, 2011) (quoting Quigley v. Barnhart, 224 F. Supp. 2d
357, 369 (D. Mass. 2002)) (internal quotation marks omitted).
16
from WFCS noting that Alberts reports that she volunteers in the business unit at the clubhouse);
R. 374 (August 31, 2010 letter from an examining physician noting that “[Alberts] feels her
depression is well controlled, although on occasion she still has crying spells”); R. 31 (Alberts’s
testimony discussing a more than six-month break in her treatment to move to a new apartment
and “take care [of] other things related to the move”); R. 31-32 (Alberts’s testimony discussing
going to the clubhouse for five hours a day and living with her roommate, and stating that the
medicine is “helping [but] not totally curing” her depression). Third, Dr. Greene’s treatment
notes also support the ALJ’s conclusion that Alberts is not as limited as Dr. Greene’s opinion
states. See e.g., R. 324 (July 22, 2010 treatment note stating that Alberts’s mood is improved
and that she has been exercising at the YMCA); R. 392 (December 10, 2010 treatment note
stating that Alberts mood is “good,” she is dating, and her concentration is improving); R. 393
(January 11, 2011 treatment note stating that Alberts “report[s] a good mood[,] . . . has been
sleeping well lately . . . getting along well with her roommate[,] and regularly attending her
clubhouse” and indicating changes to her medication to help her concentration); R. 395 (January
27, 2011 psychiatric questionnaire stating that Alberts is unable to function in a job, but also
noting that while she is “chronically depressed . . . recently her mood has been improved”). For
all these reasons, it was not reversible error for the ALJ to afford minimal weight to Dr. Greene’s
opinion.
In support of his decision to give Dr. Greene’s opinion minimal weight, the ALJ also
noted that “the ultimate determination of disability is a matter reserved to the Commissioner
under Social Security regulations (20 CFR 404.1527; SSR 96-5P).” R. 21. Alberts argues that
this was improper because Dr. Greene’s analysis was a medical opinion, and not an opinion on
an issue reserved to the Commissioner. Pl. Mem., D. 9 at 11. The Social Security regulations
17
reserve the decision of whether an individual is disabled for the Commissioner. 20 C.F.R
§ 404.1527(d)(1); see Avery, 2012 U.S. Dist LEXIS 135824, at *31 (noting that the ALJ’s
statement that the “decision of whether [plaintiff] is disabled is a decision reserved to the
Commissioner . . . correctly reflects the law”). “A statement by a medical source that [the
claimant is] ‘disabled’ or ‘unable to work’ does not mean that [the SSA] will determine that [the
claimant is] disabled.” 20 C.F.R § 404.1527(d)(1). Dr. Greene’s statements that “[i]t is unlikely
that [Alberts] will be able to function in a job for the foreseeable future” are opinions regarding
Alberts’s ability to work. See R. 395, 402. Thus, the ALJ was correct that, while he is required
to consider the opinion of the treating source, the decision regarding Alberts’s disability is
ultimately for the ALJ to determine. See 20 C.F.R § 404.1527(d)(1); Social Security Ruling 965p, 1996 SSR LEXIS 2, at *6 (S.S.A. 1996) (stating that while “opinions from any medical
source on issues reserved to the Commissioner must never be ignored,” such opinions “are never
entitled to controlling weight or special significance”). The ALJ properly considered the opinion
of Dr. Greene but, as noted above, afforded it minimal weight after considering the record as a
whole in making his determination of disability.
b)
Non-Examining, Non-Treating Psychologist’s Opinion:
Dr. McKenna
Alberts next argues that the ALJ erred by relying on the opinions of the non-examining
state agency psychologist, Dr. McKenna, in determining Alberts’s RFC. Pl. Mem., D. 9 at 1112. When making an RFC determination, the ALJ considers the medical opinions in conjunction
with all other relevant evidence in the record. See 20 C.F.R. § 404.1527(b); Moore v. Astrue,
No. 11-cv-11936-DJC, 2013 U.S. Dist. LEXIS 28865, at *20 (D. Mass. Mar. 2, 2013). In
general, less weight is given to the opinion of a non-examining medical source than that of an
examining source. 20 C.F.R. § 404.1527(c)(1). However, “nontreating, nonexamining sources
18
may override treating doctor opinions, provided there is support for the result in the record.”
Haggblad, 2011 U.S. Dist. LEXIS 140274, at *22 (quoting Shaw v. Sec’y of Health & Human
Servs., 25 F.3d 1037 (unreported table decision), No. 93-2173, 1994 U.S. App. LEXIS 14287, at
*13 (1st Cir. 1994)) (internal quotation mark omitted). The ALJ must give an explanation for the
amount of weight given to the non-treating, non-examining source’s opinion, just as he must do
for a treating physician’s opinion. 20 C.F.R. § 404.1527(e)(2)(ii). In analyzing the opinion of a
nonexamining source, the ALJ must consider the same factors used to consider the treating
physician’s opinion “such as the consultant’s medical specialty and expertise in [the SSA’s]
rules, the supporting evidence in the case record, supporting explanations the medical or
psychological consultant provides, and any other factors relevant to the weighing of opinions.”
Id.
The ALJ relied on Dr. McKenna’s opinion because it was “well-supported by the record
as a whole.” R. 21. Dr. McKenna’s psychiatric review indicates that she had evaluated Alberts’s
medical records from January 26, 2007 to June 12, 2009 (the date of McKenna’s evaluation) and
that she reviewed the WFCS records as well as Dr. Doan’s DDS evaluation. R. 297. The Court
agrees with the ALJ’s assessment that Dr. McKenna’s opinion is consistent with the medical
record as a whole. First, Dr. McKenna’s assessment that Alberts is able to “comprehend and
recall simple information,” “complete same level tasks” and “sustain for two-hour increments,”
R. 21, 301, is supported by the progress notes from Alberts’s treatment at WFCS as well as other
evidence in the record. See, e.g., R. 215 (August 21, 2008 WFCS progress report noting that
Alberts says she has been working in the business unit at the clubhouse); R. 256-57 (medical
examination report from Dr. Doan discussing Alberts’s daily living activities and mental status).
Second, Dr. McKenna’s assessment that Alberts is “capable of adeq[u]ate [sic] social interaction
19
overall,” R. 301, is supported by Alberts’s ability to participate in daily activities and maintain
relationships. See, e.g., R. 215 (August 21, 2008 WFCS progress note stating that Alberts
described being around people and working in the business unit at the clubhouse as a
“godsend”); R. 226 (July 3, 2008 WFCS progress note stating that Alberts’s “affect is bright
which [Alberts] attributes to socialization at social club”); R. 219 (July 1, 2008 psychiatric
evaluation stating that Alberts “thinks that getting out of the house helps [her] energy and
mood”); R. 312 (WFCS progress note stating that Alberts “reports benefits of being around
people at [the] social club and also appreciates the structure); R. 324, 392 (treatment notes from
Dr. Greene stating that Alberts has been “dating”); R. 309 (January 28, 2009 treatment note
discussing how Alberts reported that she has been dating the same man since August 2008).
Finally, Dr. McKenna’s opinion that Alberts is “able to adapt to routine changes following a
brief period of adjustment,” R. 21, 301, is supported by the record. See R. 31 (Alberts’s
testimony explaining that the gap in her psychiatric treatment from June 2009 to February 2010
was due to moving apartments and taking care of issues related to the move). Therefore, the
ALJ’s decision to rely on Dr. McKenna’s opinion in formulating the RFC was supported by
substantial evidence in the record and does not merit reversal.
2.
Credibility
Alberts argues that the ALJ failed to evaluate properly her credibility. Pl. Mem., D. 9 at
14-18. “Credibility determinations, while the sole responsibility of the ALJ, ‘must be supported
by substantial evidence[,] and the ALJ must make specific findings as to the relevant evidence he
considered in determining to disbelieve the [claimant].’” Carr v. Astrue, No. 09-10502-NG,
2010 U.S. Dist. LEXIS 104973, at *15 (D. Mass. Sept. 30, 2010) (quoting Da Rosa v. Sec’y of
Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986)); Becker v. Sec’y of Health & Human
20
Servs., 895 F.2d 34, 36 (1st Cir. 1990) (giving weight to the ALJ’s credibility determinations
because the ALJ has the opportunity to view the witnesses and has special expertise and
knowledge of subject matter). The ALJ here found that Alberts’s “statements concerning the
intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they
are inconsistent with the [RFC] assessment.” R. 18. Alberts argues that the ALJ erred in four
ways by making this determination.
First, Alberts argues that the “ALJ applied the incorrect legal standard . . . by finding her
not credible to the extent her testimony conflicted with a pre-determined [RFC].” D. 9 at 16.
Second, Alberts argues that “the ALJ’s reasons for finding [Alberts] not credible are not
supported by substantial evidence.”
Id.
Third, Alberts argues that the ALJ gave undue
consideration to Alberts’s lack of hospitalization and to her improvement while on medication.
Id. at 16-17. Fourth, Alberts alleges that the ALJ failed to recognize Alberts’s “work history” as
a factor that should have positively informed the ALJ’s credibility determination of Alberts’s
testimony. Id. at 17. The Court considers the first two arguments together since they are
logically related.
a)
The ALJ’s Legal Standard and Evidentiary Support
The Court concludes that the ALJ did use the correct legal standard and that his findings
regarding Alberts’s credibility were properly supported by substantial evidence. The Court
agrees with Alberts that the ALJ could not take his own RFC determination as a starting point
and use it as a litmus test to evaluate whether Alberts’s statements were credible. See, e.g.,
Longerman v. Astrue, No. 11 CV 383, 2011 U.S. Dist. LEXIS 125162, at *43 (N.D. Ill. Oct. 28,
2011) (observing that “[a]s the Seventh Circuit has made clear, finding statements that support
the RFC credible and disregarding statements that do not ‘turns the credibility determination
21
process on its head’” (quoting Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7th Cir. 2003)));
Smollins v. Astrue, No. 11-CV-424 (JG), 2011 U.S. Dist. LEXIS 98257, at *37 (E.D.N.Y. Sept.
1, 2011) (holding that the ALJ “merely compared [claimant’s] statements regarding her
symptoms to his own RFC assessment [and thus] failed to follow the dictates of the Social
Security regulations in performing his credibility assessment”).
But it is clear that the ALJ did not do this and that his statement regarding Alberts’s
credibility with respect to the RFC was commentary to explain the scope of a credibility
determination that he had already made using the correct legal standard to evaluate her
statements. As the ALJ recognized, in considering a claimant’s symptoms, he had to:
follow a two-step process in which it must first be determined whether there is an
underlying . . . impairment . . . that could reasonably be expected to produce [the
claimant’s symptoms]. Second, [where that] has been shown, the [ALJ] must
evaluate the intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to which they limit [her] functioning. For this
purpose, whenever statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by objective
medical evidence, the [ALJ] must make a finding on the credibility of the
statements based on a consideration of the entire case record.
R. 18; Social Security Ruling 96-7p, 1996 SSR LEXIS 4, at *5-6; 20 C.F.R §§ 404.1529(c),
416.929(c).
Here, the ALJ performed the first step, and found that Alberts’s “medically
determinable impairments could reasonably be expected to cause the alleged symptoms.” Id.
The ALJ next found that the extent of Alberts’s alleged “intensity, persistence and limiting
effects” was not fully supported by objective medical evidence. R. 18-19. The ALJ then
proceeded with his credibility determination to evaluate those symptoms that went beyond the
objective medical evidence. Id.
The ALJ correctly recognized that “[b]ecause a claimant’s symptoms can sometimes
suggest a greater level of severity of impairment than can be shown by the objective medical
22
evidence alone, 20 CFR 404.1529(c) and 416.929(c) describe the kinds of evidence, including
the factors [an ALJ] must consider in addition to the objective medical evidence when assessing
the credibility of the claimant’s statements.” R. 19; see also Social Security Ruling 96-7p, 1996
SSR LEXIS 4, at *1-7; 20 C.F.R §§ 404.1529(c), 416.929(c). The ALJ then listed and analyzed
those factors, which as he correctly noted, include: (1) “[t]he individual’s daily activities,” (2)
“[t]he location, duration, frequency, and intensity of the individual’s pain or other symptoms,”
(3) “[f]actors that precipitate and aggravate the symptoms,” (4) “[t]he type, dosage,
effectiveness, and side effects of any medication the individual takes or has taken to alleviate
pain or other symptoms,” (5) “[t]reatment, other than medication, the individual receives or has
received for relief of pain or other symptoms,” (6) “[a]ny measures other than treatment the
individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a board),” and (7) “[a]ny other factors
concerning the individual’s functional limitations and restrictions due to pain or other
symptoms.” R. 20 (quoting Social Security Ruling 96-7p, 1996 SSR LEXIS 4, at *3); see 20
CFR §§ 404.1529(c), 416.929(c); Avery v. Dept. of Health and Human Servs., 797 F.2d 19, 29
(1st Cir. 1986).
Here, the ALJ considered each of these factors in his opinion, even if he did not explicitly
map each piece of evidence he cited into one of the aforementioned seven factors. The ALJ cited
evidence including Alberts’s testimony that she cooked, performed light household tasks,
shopped, cared for her dog, read books, watched television and spent time at the clubhouse. R.
20 (citing R. 31-32, 159-166); see also R. 256-257 (Dr. Doan’s October 17, 2008 evaluation).
He noted that Alberts reported to Dr. Doan that she spoke with family members nearly every
day, she often spoke with friends and family, she often went out to eat with family and friends
23
and that she occasionally corresponded with friends using letters and electronic mail. R. 20
(citing 256-57); cf. Teixeira v. Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010) (observing that
“evidence of daily activities can be used to support a negative credibility finding”) (citing
Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 429 (1st Cir. 1991)).
The ALJ noted Alberts’s symptoms included “sadness, crying spells, sensitivity to
criticism,” “difficulty concentrating” and “constant fatigue and tiredness despite a full night of
sleep.” R. 18 (citing R. 30, 143, 146, 159-66). The ALJ noted that Alberts testified that she felt
that her difficulty in dealing with criticism “would frequently [lead to] 5-10 minute crying spells
in the bathroom” and “had significantly contributed to her inability to sustain consistent
employment over the past several years.” R. 18 (citing R. 30). The ALJ noted that Alberts was
on a “regimen of medication,” listed the specific drugs in his opinion, and noted that Alberts was
unsure if her “fatigue and tiredness” stemmed from her impairment or from her regimen of
medication. R. 18-19 (citing R. 32, 348). The ALJ noted that Alberts had not been hospitalized
due to her mental impairment and that her medical records indicated that treatment with
medications had been at least partially successful in “reducing her symptoms.” R. 19 (citing
R. 219, 235, 239, 329, 392). The ALJ also noted the non-medication treatment that Alberts had
been receiving, including counseling sessions. R. 19 (citing R. 215-47, 303-23, 294-402). The
ALJ also noted that the record reflected “a significant gap in the claimant’s history of mental
health treatment from June 2009 through February of 2010, which Alberts explained in her
testimony was due to the fact that she had moved and “had to take care [of] other things related
to the move and stuff like that.” R. 19, 31.
Here, it is apparent from the ALJ’s decision that the ALJ properly identified the relevant
legal framework, considered Alberts’s statements in light of the entire record, considered the
24
factors relevant to assessing Alberts’s credibility and concluded from the record that Alberts’s
own testimony was not fully credible regarding the “intensity, persistence, or functionally
limiting effects” of symptoms not supported by objective medical evidence. See 20 C.F.R. §
404.1529(c). Although Alberts argues that the ALJ improperly did not evaluate the “consistency
of [her] statements . . . with the evidence of the record,” this argument is belied by both the form
and the substance of ALJ’s decision, which found “that the objective medical evidence of record
is not entirely consistent with the claimant’s allegations regarding her impairments” and
evaluated Alberts’s statements against other evidence in the record.
The ALJ also concluded that the objective evidence was consistent with DDS’s RFC
determinations that the ALJ credited, R. 21 (noting that “Dr. Jao’s and Dr. McKenna’s [RFC]
opinions . . . are both well-supported by the record as a whole”), and that Alberts’s “statements
concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to
the extent they are inconsistent with the [RFC],” R. 18. Alberts argues that this last statement is
reversible error. Read in context of all of the ALJ’s analysis and the entire opinion, the reference
to credibility and the RFC was shorthand for stating that after applying the correct legal standard,
the ALJ had found that the sum of the evidence established that the DDS RFC determination
accurately reflected the true state of Alberts’s functional limitations and Alberts’s self reports of
same did not. See Teixeira, 755 F. Supp. 2d at 347 (affirming ALJ’s credibility determination of
claimant’s testimony “insofar as it was reasonably consistent with the objective medical
evidence”); Social Security Ruling 96-7p, 1996 SSR LEXIS 4, at *12 (stating that an ALJ “need
not totally accept or totally reject the individual’s statement [but may] find an individual’s
statements, such as statements about the extent of functional limitations or restrictions due to
pain or other symptoms, to be credible to a certain degree”). The Court finds no error, where the
25
ALJ applied the proper legal standards and his determinations were supported by substantial
evidence.
b)
Alberts’s Hospitalization and Treatment
The Court finds that the ALJ did not give undue consideration to Alberts’s lack of
hospitalization and her improvement on medication. Alberts argues that the ALJ’s “conclusion
that her treatment was conservative because she was never hospitalized and her medications
improved her functioning” was not the issue, where the issue was “whether Alberts’s
“functioning improved to a degree that she could perform work activities.” Pl. Mem., D. 9 at 1617.
Alberts argues that both reference to the lack of hospitalization and purported
characterization of her treatment as conservative was error. Id. at 17.
But the ALJ never described Alberts’s treatment as conservative. The ALJ’s reference to
the lack of hospitalization was made in the context of describing Alberts’s treatment to highlight
a perceived inconsistency between Alberts’s testimony and the objective medical evidence
suggesting that Alberts only received some “treatment[, and] with a significant gap in the
middle,” and yet was able to engage in normal activities of daily living. That inconsistency went
entirely to Alberts’s credibility regarding her testimony about alleged symptoms beyond what
was otherwise supported by the record. See Social Security Ruling 96-7p, 1996 SSR LEXIS 4,
at *15-17 (requiring the ALJ to consider “the degree to which the individual’s statements are
consistent with . . . information about medical history and treatment . . . and observations by
other persons concerning the individual’s daily activities”); Irlanda Ortiz v. Sec’y of Health &
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (considering “gaps in the medical record as
‘evidence’” as to severity of symptoms). The Court finds no error.
c)
Alberts’s Work History
26
Alberts also argues that the ALJ failed to recognize Alberts’s work history as a factor
weighing on credibility. Alberts’s argument is that because she worked every “nearly every year
since 1979” that this entitles her to “substantial credibility when claiming an inability to work.”
D. 9 at 17; R. 123 (earnings history). Alberts and the Commissioner both note that the First
Circuit has not addressed whether one’s work history should inform a credibility determination.
D. 9 at 17; D. 12 at 19 n.6. Circuits that have addressed work history as a factor in evaluating
credibility do so in part on the basis that a long “prior work history justifies the inference that
when [a claimant] stop[s] working [the claimant] did so for the reasons testified to.” Singletary
v. Sec’y of Health, Ed. & Welfare, 623 F.2d 217, 219 (2d. Cir. 1980); see also O’Donnell v.
Barnhart, 318 F.3d 811, 817 (8th Cir. 2003). Even if the Court accepts that rationale, Alberts’s
direct testimony and her counseling records suggest that Alberts stopped working for reasons
unrelated to her disability.
As the ALJ noted in his decision, R. 19, Alberts testified that she stopped working after
having an argument with her boss regarding Alberts not wanting to work “overnights” because
her dog would be up barking all night. R. 19; R. 29. Furthermore, while not stated in the ALJ’s
opinion, Alberts’s counseling records show that in April 2008, just prior to leaving her job,
Alberts reported that she wanted a new job, and in June 2008, Alberts reported that she was
concerned that she would not receive unemployment benefits or disability benefits because she
left her job “under [her] own free will.” R. 227 (WFCS progress note of June 26, 2008); R. 238
(WFCS progress note of April 18, 2008). In February 2009, the counseling notes reflect that
Alberts was resistant to obtaining a part-time job “due [to] possible repercussions from the
government, i.e., denial of SSI.” R. 307. All of this direct evidence was before the ALJ, and
would tend to counter any substantial inference about the credibility of Alberts’s claims based
27
upon her past work history. See Social Security Ruling 96-7p, 1996 SSR LEXIS 4, at *15-17
(requiring the ALJ to consider “the degree to which the individual’s statements are consistent
with . . . observations by other persons concerning the individual’s . . . efforts to work.”) In fact,
the ALJ did take note of Alberts’s work history, but found that it was not a positive factor. R. 19
(noting that Alberts’s “work history – and the nature of her separation from her most recent
employer – does not tend to support her allegations of a disabling medical condition”).
Accordingly, the Court finds no error.
3.
Vocational Expert’s Testimony
Alberts argues that the ALJ erred in relying on the VE’s testimony that Alberts could
work in the state and national economy because the VE’s testimony was based on an allegedly
flawed RFC provided by the ALJ. Pl. Mem., D. 9 at 18. Giving a flawed RFC to a VE
undermines the relevance of the VE’s testimony. Arocho v. Sec’y of Health & Human Servs.,
670 F.2d 374, 375 (1st Cir. 1982). Here, Alberts argues that the RFC was flawed because it
“was based entirely upon the unsupported opinion of [Dr. McKenna].” D. 9 at 18. But as
already discussed above, the RFC determined by the ALJ and then given to the VE was
supported by substantial evidence in the record. Accordingly, the ALJ did not commit reversible
error in relying on the VE’s opinion as to Alberts’s ability to work in the local or national
economy.
V.
Conclusion
Based on the foregoing, the Commissioner’s motion for an order affirming his decision,
D. 11, is GRANTED and Alberts’s motion for judgment on the pleadings, D. 8, is DENIED.
So Ordered.
/s/ Denise J. Casper
United States District Judge
28
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?