Veiga v. Astrue

Filing 25

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER: This Court DENIES Veiga's motion for an order reversing the decision of the Commissioner or, in the alternative, remanding matter for further proceedings, ECF No. 16, and GRANTS the Commissioner's motion to affirm the Commissioner's decision, ECF No. 22. Judgment shall enter for the Commissioner. (Paine, Matthew)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social Security,1 )
)
Defendant.
)
___________________________________)
SEBASTIAN CENTEIO VEIGA,

CIVIL ACTION
NO. 13-10013-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.
I.

March 25, 2014

INTRODUCTION
Sebastian Centeio Veiga (“Veiga”) brings this action

pursuant to section 205(g) of the Social Security Act, codified
at 42 U.S.C. § 405(g), and section 1631(c)(3) of the Social
Security Act, codified at 42 U.S.C. § 1383(c)(3). Veiga seeks
judicial review of the final decision of the Social Security
Commissioner (the “Commissioner”) denying his claims for social
security disability insurance benefits. Prelim. Statement
(“Compl.”) 1, ECF No. 1. Veiga challenges the denial of his
1

Carolyn W. Colvin, the now-Acting Commissioner of the
Social Security Administration, has replaced former Commissioner
Michael J. Astrue in this case caption. See Fed. R. Civ. P.
25(d).

1

claim for benefits on grounds that the presiding Administrative
Law Judge (the “hearing officer”) based her decision on mistaken
facts and failed in her duty fully to develop the administrative
record. Mem. Supp. Mot. Reverse Decision & Remand Soc. Sec.
Admin. (“Pl.’s Mem.”) 5, ECF No. 16. Veiga requests that this
Court reverse the decision of the Commissioner and remand the
case for a new hearing. Compl. 3. The Commissioner has filed a
motion requesting an order affirming her decision. Mot. Order
Affirming Decision Comm’r, ECF No. 22.
A.

Procedural Posture

On December 31, 2009, Veiga filed an application for
disability insurance benefits, alleging disability since May 9,
2009. Admin. R. 109, ECF No. 9.2 Veiga’s application was denied
on June 10, 2010, id. at 68-70, and denied again upon
reconsideration on October 14, 2010, id. at 75-77. Approximately
one month later, on November 29, 2010, Veiga filed a written
request for hearing, id. at 78-79, and such hearing was held on
November 1, 2011, id. at 12. On April 22, 2011, the presiding
2

The certified record of administrative proceedings related
to this case was provided to this Court in nine parts, docketed
as a group of eight exhibits and one subsequent submission. See
SSA Admin. R. Soc. Sec. Proceedings, ECF Nos. 9-1 through 9-8
(pages 1 through 618); Supplemental SSA Admin. R. Soc. Sec.
Proceedings, ECF No. 24 (pages 619 through 815). This record,
however, is continuously paginated across the nine parts. For
ease of citation, the Court will treat these nine exhibits as
one continuously paginated document comprising the full
administrative record (“Admin. R.”) and cite to the page numbers
assigned by the agency therein.
2

hearing officer issued an unfavorable decision finding that
Veiga was not disabled within the meaning of the Social Security
Act for the alleged disability period. See id. at 12-21. On
November 7, 2012, the Social Security Administration’s Appeals
Council denied Veiga’s request for review, rendering the hearing
officer’s decision final. Id. at 1. On January 3, 2013, Veiga
filed the present action before this Court to review the
decision of the Commissioner pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). Compl. 1–3.
B.

Background

Veiga was born on January 27, 1962, and has an eighth grade
education. Admin. R. 44. He is divorced and has two children who
live with their mother, and whom he sometimes visits by
appointment. Id. at 46. Since his divorce, he has lived with his
sister and her daughter. Id. at 45. Veiga receives financial
support from his sister and is also a recipient of food stamps.
Id. at 51.
For twelve years, Veiga worked at Boston Logan
International Airport, id. at 52, where his duties included
preparing food and food equipment to be loaded onto airplanes,
id. at 137. He left employment at that airport to move to New
Bedford, Massachusetts, and began working for Home Depot. Id. at
52-53. On May 29, 2009, during his employment at Home Depot,
Veiga fell from an eight-foot ladder while trying to reach a
3

heavy box on a high shelf for a customer. Id. at 53. He lost
consciousness and was immediately taken by ambulance to St.
Luke’s Hospital in New Bedford, where he was examined and
released. See id. at 229-233. Since then, he has not worked at
or applied for any job. Id. at 44-45.
1.

Physical Impairments

Veiga’s physical impairments dating to the accident at Home
Depot are the primary basis for his claim for social security
disability insurance benefits. In the week following his
accident, Veiga sought follow-up care at SouthCoast
Chiropractic, LLC, in New Bedford. Id. at 236. He reported
experiencing back and shoulder pain, headaches accompanied by
nausea, and dizziness. Id. at 236-37. In June 2009, Veiga came
under the care of Dr. Robert DiTullio (“Dr. DiTullio”). Id. at
491. Dr. DiTullio, concluding that Veiga was “totally disabled,”
id. at 493, ordered physical therapy and chiropractic management
for Veiga’s shoulder and back injury, id. at 499. Records from
Buttonwood Physical Therapy & Sports Rehabilitation, Inc. dated
September 25, 2009, attest to minimal improvement after four
weeks of treatment for pain in Veiga’s right shoulder. Id. at
354.
Dr. DiTullio also ordered additional imaging studies of
Veiga’s back and shoulder. Although earlier X-rays had revealed
no abnormalities, id. at 491, imaging studies in November 2009
4

revealed “[i]nfraspinatus tendinophaty with additional AC joint
arthropathy and possible impingement,” and intra-articular
biceps tendinopathy, id. at 502-03. Further imaging studies of
Veiga’s spine conducted in December 2009 showed, among other
things, moderate intervertebral disc space narrowing at several
levels of the cervical and lumbar spine. Id. at 241.
Although Veiga expressed feeling “a little better” after
continuing physical therapy through February 2010, id. at 373,
patient reports through that time largely observe minimal
improvement, see, e.g., id. at 358-59, 360-61, 368, 370-71. In
March 2010, Dr. DiTullio referred Veiga to Dr. Charles DiCecca
(“Dr. DiCecca”) for further treatment. Id. at 501. Dr. DiCecca
diagnosed Veiga with impingement syndrome of the right shoulder,
biceps tendinopathy, and infraspinatus tendinopathy. Id. at 499.
He suggested Veiga undergo cortisone injections and ultimately,
subacromial decompression and biceps tenodesis. Id. Veiga,
however, decided not to pursue immediate treatment and requested
time to think things over. Id. at 500. It does not appear that
Veiga ever returned for follow-up treatment from Dr. DiCecca.
On June 1, 2010, Dr. Theresa Kriston, a state agency
medical consultant, assessed Veiga’s physical residual
functional capacity. Id. at 481, 488. She found that Veiga could
only occasionally climb, balance, stoop, kneel, crouch, or
crawl, and that he had limited overhead reach on his right side.
5

Id. at 483-84. She also concluded that he remained capable of
lifting and carrying twenty pounds occasionally and ten pounds
frequently, standing or walking for six hours in an eight-hour
day, and sitting for six hours in an eight-hour day. Id. at 482.
2.

Mental Impairments

In addition to his physical impairments, Veiga claims
mental impairment, describing symptoms of poor concentration,
social withdrawal, and sleep disturbance. Pl.’s Mem. 2-3. Four
months after his accident, Veiga reported to his primary care
physician, Dr. Jan Dohlman (“Dr. Dohlman”), that he felt “very
well” and had been dieting and exercising. Admin. R. 409. In
December 2009, however, Veiga reported that he had been
experiencing depressive symptoms during the previous few months.
Id. at 412. Dr. Dohlman diagnosed him with depression with
anxiety, id. at 414, and referred Veiga to Dr. Rasim Arikan
(“Dr. Arikan”) for psychiatric treatment, id. at 344. In
February 2010, Dr. Arikan diagnosed Veiga with a single moderate
episode of major depressive disorder. Id. at 342. Dr. Arikan’s
notes reflect that Veiga suffered from anxiety but showed no
sign of difficulty with attention, cognitive functions, or short
and long term memory. Id. During his initial intake session with
Dr. Arikan, Veiga mentioned a prior history of alcohol abuse,
but also that he had stopped drinking in 2006. Id. at 344.

6

The record shows that as of April 2011, Veiga had begun
treatment with a new psychiatrist, Dr. Mohammad Munir (“Dr.
Munir”). Id. at 705. Dr. Munir’s April report amended Veiga’s
depression diagnosis to recurrent mild episodes of major
depressive disorder and diagnosed Veiga with active alcohol
abuse. Id. at 703. By August of that year, however, Veiga
reported feeling better and that his anxiety and depression
symptoms had lessened in frequency and intensity. Id. at 750.
Dr. Munir’s examinations of Veiga regularly observed no serious
mental status abnormalities. Id. at 705, 750, 752.
During the course of his treatment with Dr. Arikan and Dr.
Munir, Veiga also attended counseling sessions with social
worker James Tooley (“Tooley”). Id. at 506. In August 2010,
Tooley completed a psychiatric disorder questionnaire in which
he stated that Veiga could take care of himself and perform the
activities of daily living. Id. He also stated that Veiga had
great difficulty with concentration and attention, particularly
noting Veiga’s difficulty staying attentive to events or
information for more than fifteen to twenty minutes. Id. Tooley
also noted that Veiga appeared to be socially withdrawn and had
difficulties dealing with “work-like tasks.” Id.
On May 25, 2010, Dr. Susan Chipman, a state agency
consultant, assessed Veiga’s mental residual functional capacity
and concluded that he retained the ability to understand and
7

remember “simple task instructions” and to “sustain adequate
concentration, pace, and persistence for simple, straightforward
task performance.” Id. at 479. She further found that he did not
have major problems in getting along with people and that he
could adapt to changes in simple, low-stress work situations.
Id.
3.

Testimony

On November 1, 2011, Veiga attended a hearing regarding the
denial of his application for disability insurance benefits. Id.
at 37. At the hearing, he stated that every day, he wakes up at
10:00 AM and helps his sister with housework, such as folding
laundry. Id. at 47. Except for medical appointments, he usually
does not go out, and when he does, his sister drives him. Id. at
47-49, 56. He does not read or watch television, and he sleeps
during much of the day because of fatigue caused by his
medications for pain and depression. Id. at 48, 52.
Veiga also explained that since his accident, his right
shoulder has been particularly impaired, preventing him from
lifting even a one-gallon milk jug. Id. at 53. He described his
back pain as limiting his ability to walk, sit, or stand for
extended periods of time. Id. at 54-56. He also alleged symptoms
of depression including difficulty with concentration, social
isolation, lack of energy, and sleep disturbance. Id. at 55-56.
He indicated that his mental impairment causes him to lack
8

motivation and interest in activities he previously enjoyed. Id.
at 56-57. He attested to undergoing counseling to deal with
depression and is currently on medication. Id. at 55.
II.

LEGAL STANDARD
A.

Standard of Review

Under 42 U.S.C. § 405(g), a district court has the power to
affirm, modify, or reverse a decision of the Commissioner of
Social Security. While questions of law are reviewed de novo,
the Court makes its decision based on the pleadings and
transcript of the record before the hearing officer. Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000)
(citations omitted). Generally, the Commissioner’s “findings of
fact are conclusive if supported by substantial evidence.”
Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 16
(1st Cir. 1996). Further, the First Circuit has held that the
Commissioner’s findings must be upheld “if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it
as adequate to support his conclusion.” Rodriguez v. Sec’y of
Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)
(citations omitted). It is the role of the hearing officer, not
the reviewing court, to make credibility determinations and to
draw inferences from the record. See id. Resolutions of
conflicts in evidence and credibility are committed to the
Commissioner’s purview. See Evangelista v. Sec’y of Health &
9

Human Servs., 826 F.2d 136, 141 (1st Cir. 1987). This Court must
affirm a decision supported by substantial evidence “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) (citing Lizotte v. Sec’y of Health & Human Servs., 654
F.2d 127, 128 (1st Cir. 1981)).
B.

Social Security Disability Standard

A claimant is disabled for purposes of eligibility for
social security disability insurance benefits if he is “[unable]
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 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 Social Security
Administration has promulgated a five-step sequential evaluation
process to determine whether a claimant meets this standard. See
20 C.F.R. § 404.1520 (relating to the evaluation of disability
in general); see also 20 C.F.R. § 416.920 (setting out the same
test for evaluation of disability in adults). The hearing
officer must determine: (1) whether the claimant is engaged in
“substantial gainful [work] activity,” (2) whether the claimant
has a severe physical or mental impairment, (3) whether the
impairment qualifies as a listed impairment under 20 C.F.R. part
404, subpart P, appendix 1, lasting beyond the required
10

duration, (4) whether the claimant has the residual functional
capacity to perform his past relevant work, and (5) whether the
impairment prevents the claimant from doing other work,
considering the claimant's age, education, and work experience.
20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of
proof at the first four stages of this evaluation, while the
Commissioner bears the burden at the last stage. See Goodermote
v. Sec’y of Health & Human Servs., 690 F.2d 5, 7 (1st Cir.
1982).
III. THE HEARING OFFICER’S DECISION
The decision rendered by the presiding hearing officer in
Veiga’s case reflects a considered application of the prescribed
five-step evaluation process. See Admin. R. 12-28. First, the
hearing officer found that Veiga has not engaged in substantial
gainful activity since May, 29, 2009. Id. at 14. Second, she
found that Veiga “has the following severe impairments: right
shoulder tendinopathy, degenerative disc disease of the cervical
and lumbar spine, and major depressive disorder.” Id. The
hearing officer’s comments note additional impairments that were
not found to be “severe,” including knee impairment,
hypertension, hyperlipidemia, chronic obstructive pulmonary
disease, and a history of alcohol dependence. Id. at 15. At the
third stage of evaluation, however, she did not find that any of
Veiga’s impairments meet or medically equal the severity of any
11

impairments listed in 20 C.F.R. part 404, subpart P, appendix 1.
Id. at 16.
At step four, the analysis of residual functional capacity,
the hearing officer found that Veiga has a residual capacity to
perform light work, although he can only occasionally climb
ramps and stairs, balance, stoop, kneel, crouch, or crawl. Id.
at 18. Further, the hearing officer found Veiga to be unable to
climb ladders, ropes, or scaffolds, and recommended that he
“avoid concentrated exposure to hazards such as dangerous
machinery or unprotected heights.” Id. Based on these findings,
the hearing officer determined that Veiga’s tasks “would be
limited to simple routine tasks involving only occasional
decision-making, occasional changes in the work setting, and
occasional interaction with the general public.” Id. Her
ultimate finding at this step was that Veiga is unable to
perform his past relevant work as a hardware associate or an
airport assembler. Id. at 26.
But at the fifth step of her evaluation, after analyzing
the evidence regarding Veiga’s residual functional capacity,
age, education, and work experience in conjunction with the
relevant guidelines, the hearing officer concluded that Veiga is
“capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.” Id. at
27. Relying on the testimony of a vocational expert present at
12

Veiga’s hearing, id. at 35, the hearing officer concluded that
Veiga can, for example, perform the tasks required for work as a
mail clerk, photocopy machine operator, or housekeeping cleaner,
id. at 27. Accordingly, the hearing officer found that Veiga was
not disabled from May 9, 2009, through the date of her decision,
November 17, 2011. Id.
IV.

ANALYSIS
Veiga asks this Court to reverse the hearing officer’s

determination and remand for a new hearing. Pl.’s Mem. 4. He
argues that the hearing officer committed prejudicial error by
basing her decision, at least in part, on the “incorrect belief”
that Veiga was receiving unemployment benefits, and by ignoring
evidence that he was, in fact, receiving workers’ compensation
benefits. Id.
Dr. Arikan’s records show that during his initial intake
evaluation of Veiga, Veiga made a statement explaining the
reason for his referral. See Admin. R. 777. Dr. Arikan appears
to have quoted this statement in his notes, including Veiga’s
assertion, “I am on unemployment now.” Id. This notation
prompted the following observation in the hearing officer’s
decision:
In order to collect unemployment benefits, an
individual must attest that he/she is willing and able
to work. Thus, the claimant was applying for
disability benefits (claiming that he was disabled) at
the same time that he was collecting unemployment
13

benefits (claiming that he was willing and able to
work). While the simultaneous collection of
unemployment and disability benefits is not
necessarily mutually exclusive, I find that this
apparent inconsistency does not enhance the
credibility of the claimant’s allegations in the
present matter.
Id.
A.

The Hearing Officer’s Duty to Develop the Record

Veiga argues that the hearing officer improperly relied on
the statement in Dr. Arikan’s report without attempting to
independently verify whether Veiga really was receiving
unemployment benefits. Pls.’ Mem. 6-7. Veiga also points out
that the hearing officer did not take appropriate notice of
evidence in the record suggesting that Veiga actually was
receiving workers’ compensation, implying an inability to work
as well as possible confusion on the part of Veiga or Dr. Arikan
that could explain Dr. Arikan’s allegedly erroneous notation.
Id. Veiga contends that by failing to clarify Veiga’s actual
work and benefits status, the hearing officer failed to carry
out her “responsibility . . . to clarify contradictions in the
facts.” Id. at 6.
No flaw, however, lies in the officer’s failure to obtain
more evidence regarding Veiga’s work and benefits status.
Although a hearing officer has an affirmative duty to develop
the administrative record, she is under no obligation to seek
additional information where there are no obvious gaps in the
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record, and where there is a complete medical history. See,
e.g., Ribeiro v. Barnhart, No. 05–1011, 2005 WL 2435233, at *7
(1st Cir. Oct. 4, 2005) (concluding that although the hearing
officer did not request further information to fill in gaps in a
physician’s report, she complied with her duty to develop the
record if a reasonable conclusion could be drawn from the
available evidence); Shaw v. Sec’y of Health & Human Servs., No.
93-2173, 25 F.3d 1037, at *5 (1st Cir. June 9, 1994) (holding
that when there is other evidence in the record sufficient to
support the hearing officer’s decision, there is no duty to seek
clarification of inconsistencies in one medical report).
Moreover, “remand is appropriate only where the court determines
that further evidence is necessary to develop the facts of the
case fully, that such evidence is not cumulative, and that
consideration of it is essential to a fair hearing.”
Evangelista, 826 F.2d at 139.
Such is not the case here. The hearing officer’s alleged
mistake about Veiga’s collection of unemployment benefits does
not create a gap in the record that would require this Court to
reverse or remand the case for further proceedings. Dr. Arikan’s
allegedly mistaken notation was not the only ground on which the
hearing officer based her assessment of Veiga’s credibility. See
Admin. R. 23-26. The record contains numerous reports from the
different specialists who treated Veiga that sufficiently
15

support the hearing officer’s decision, and the hearing officer
gave considerable treatment to the reports of Dr. Dohlman, Dr.
Munir, Dr. DiTullio, and Tooley. Id. The Court rules, therefore,
that the hearing officer in this case did not fail in her duty
to develop the record, and that she based her decision on
substantial evidence. Further evidence is not necessary to fully
develop the facts of Veiga’s case.
B.

Prejudice to Veiga’s Claim

Even were this Court to assume that the hearing officer
erred in not further developing the record, remand is
appropriate only if Veiga is able to show that the hearing
officer’s failure prejudiced his claim. See Mickevich v.
Barnhart, 453 F. Supp. 2d 279, 287 (D. Mass. 2006) (Collings,
M.J.) (citing Mandziej v. Chater, 944 F. Supp. 121, 130 (D.N.H.
1996) (holding that even if a hearing officer did not perform
his duty to fill evidentiary gaps in the record, those gaps must
also prejudice the claimant to warrant remand)). The Fifth
Circuit sensibly has held that to establish prejudice in a case
like Veiga’s, a claimant must show that he “could and would have
adduced evidence that might have altered the result.” Brock v.
Chater, 84 F.3d 726, 728 (5th Cir. 1996) (quoting Kane v.
Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984)). Here, Veiga has
failed to demonstrate that the hearing officer’s decision would
have been different if she had not considered Dr. Arikan’s note.
16

The hearing officer was clear that Dr. Arikan’s mention of
unemployment benefits was not “a primary consideration” in her
decision, and as previously noted, she gave several other
independent reasons for denying Veiga’s benefits claim. Admin.
R. 23.
Moreover, the decision contains a thorough analysis of the
medical reports and Veiga’s testimony amply supporting the
hearing officer’s credibility determination. When making such a
determination, the hearing officer ought take the claimant’s
reports of pain and other limitations into account, but he is
“not required to accept the claimant’s subjective complaints
without question.” Perez v. Astrue, 907 F. Supp. 2d 266, 272
(N.D.N.Y. 2012) (quoting Genier v. Astrue, 606 F.3d 46, 49 (2d
Cir. 2010)). Instead, the hearing officer “may exercise
discretion in weighing the credibility of the claimant’s
testimony in light of the other evidence in the record.” Id.
(quoting Genier, 606 F.3d at 48). When supported by substantial
evidence, this determination is entitled to deference because
the hearing officer had the opportunity to observe and examine
the claimant and to consider how his testimony fits with other
evidence in the record. See Frustaglia v. Sec’y of Health &
Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (citing DaRosa
v. Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir.
1986)).
17

Consistent with this guidance, the hearing officer found
that the abilities described by Veiga in his self-assessments
and in several portions of the medical records were not
consistent with the allegations he made at his November 2011
hearing. Id. at 22. For example, in February 2010, Veiga
completed a self-assessment form and stated that his daily
activities included watching television, talking walks, going
shopping, and helping his sister with “whatever [he] can do.”
Id. at 148. He also reported that he went outside on a daily
basis and went to church on a regular basis. Id. at 151-52. At
the hearing held on November 1, 2011, however, he testified that
he did not watch television or read, id. at 47-48, and that he
did not leave his house except to attend medical appointments,
id. at 56. Overall, the hearing officer found that to the extent
Veiga’s statements concerning the limiting effects of his
symptoms were inconsistent with her assessment of his residual
functional capacity, his statements were not credible. Id. at
22-23.
In addition to assessing Veiga’s credibility, the hearing
officer relied on both subjective and objective medical evidence
in the record to conclude that Veiga is not disabled. Id. at 22.
She considered his daily activities, the frequency and intensity
of his symptoms, the modest regime of medication he took to
alleviate his symptoms, and other treatments he used to relieve
18

pain, such as physical and chiropractic care. Id. After
reviewing these factors, she found that Veiga’s statements
during his hearing were outweighed by other evidence. Id. at 21.
Thus, while the hearing officer conceded that Veiga “has
impairments that more than minimally affect his ability to
engage in work activities,” she did not find that his
impairments render him disabled. Id.
The extent of this analysis demonstrates that in the course
of assessing Veiga’s claim for disability benefits, Dr. Arikan’s
note was only one of many factors that weighed in the balance.
The hearing officer’s failure to clarify Veiga’s work and
benefits status did not prejudice him, and absent prejudice,
there is no cause for remand.
V.

CONCLUSION
For the aforementioned reasons, this Court DENIES Veiga's

motion for an order reversing the decision of the Commissioner
or, in the alternative, remanding matter for further
proceedings, ECF No. 16, and GRANTS the Commissioner's motion to
affirm the Commissioner's decision, ECF No. 22. Judgment shall
enter for the Commissioner.3

3

Compare this case with Walsh v. Colvin, No. 1:12-cv-00933
(WGY) (N.D.N.Y. Mar. 25, 2014), issued this same day by this
judge, but sitting in the Northern District of New York within
the Second Circuit. Both this decision and that are “right” in
light of the controlling precedent in the respective courts of
appeal. Yet any fair-minded observer would conclude that review
19

SO ORDERED.

/s/ William G. Young_
WILLIAM G. YOUNG
DISTRICT JUDGE

is far more lenient to the Social Security Administration in the
First Circuit and far more rigorous in the Second. Such
disparate intercircuit jurisprudence is something of a reproach
to courts charged with interpreting a national statute of such
broad administrative and judicial importance.
20