Brown v. Colvin
Filing
25
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying 17 Motion for Order Reversing Decision of Commissioner; granting 21 Motion for Order Affirming Decision of Commissioner (Woodlock, Douglas)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
KELLY E. BROWN,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff.
v.
CAROLYN W. COLVIN
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
CIVIL ACTION NO.
1:14-CV-10801-DPW
MEMORANDUM AND ORDER
June 30, 2015
Kerry E. Brown instituted this action pursuant to 42 U.S.C.
405(g), seeking judicial review of a final administrative
decision denying her claim for social security disability
insurance benefits.
She seeks to have the Commissioner’s
decision remanded to reassess her eligibility and issue a new
decision.
I.
A.
BACKGROUND
Procedural History
Ms. Brown filed applications for SSDI benefits on June 14,
2010 pursuant to Title II of the Social Security Act, alleging
disability beginning October 23, 2007.
the Act lapsed on December 31, 2009.
initially on September 23, 2010.
Her insured status under
The application was denied
That denial was affirmed upon
reconsideration by the Social Security Administration (“SSA”) on
March 11, 2011.
After a video hearing on November 2, 2012, an
Administrative Law Judge issued a decision on November 15, 2012,
finding the claimant was not disabled from her alleged onset
date through her date last insured. On December 6, 2013, the
Appeal Council of SSA denied the claimant’s request for review
and the ALJ’s decision became final.
Ms. Brown then filed the
instant action with this Court, seeking judicial review of the
decision pursuant to 42 U.S.C. 405 (g).
B.
Medical Chronology
Ms. Brown was born on September 5, 1974.
She was thirty-
three years old on her alleged onset date of disability and
thirty-five years old on her date last insured.
She had a high
school education and had been a secretary and data entry clerk.
Ms. Brown first sought medical treatment from her primary
care physician Roberts Gagnon, M.D. for limb pain and
paresthesias (a sensation of tingling or prickling of a person’s
skin) beginning on October 24, 2007.
She reported that her
symptoms were of severe intensity and they occurred every couple
of minutes.
She claimed that the symptoms were aggravated by
her typing, filing and fine manipulation.
Dr. Gagnon assessed
her condition to be carpal tunnel syndrome (a numbness and
tingling in the hand caused by a pinched nerve in the wrist),
for which he prescribed ibuprofen.
2
On December 17, 2007, Ms. Brown went to see Dina Galvin,
M.D. for her continuing numbness and tingling.
She reported
that the symptoms had become constant even without working in
the past six months. She claimed that she started dropping
objects because she was unable to feel them.
At Dr. Galvin’s
recommendation, she underwent a nerve conduction study on
January 1, 2008. The study only revealed a moderate right median
neuropathy at the right wrist.
Dr. Galvin concluded that Ms.
Brown did not have clinical evidence of carpal tunnel syndrome
but would benefit from the physical therapy for her thoracic
outlet syndrome (a condition involving compression of the nerves
or blood vessels causing pain in the neck or shoulder and
numbness in hands).
Ms. Brown subsequently started physical
therapy from January 21, 2008.
However, she was put on hold on
March 28, 2008 due to the lack of improvement in her numbness
and paresthesias.
On January 17, 2008, Ms. Brown sought treatment with
neurologist Donald S. Marks, M.D. for numbness and paresthesias
in both hands.
Dr. Marks performed a Nerve Conduction Velocity
test, finding nothing but a moderate R median neuropathy across
the R wrist.
He suggested clinical correlation. On that same
day, Ms. Brown consulted Dr. Galvin, who concluded again that
Ms. Brown’s numbness and tingling resulted from thoracic outlet
syndrome and that she may benefit from physical therapy.
3
Ms. Brown went to see Dr. Gagnon on February 11, 2008.
She
expressed her frustration about Dr. Galvin’s failure to explain
her thoracic outlet syndrome.
After reexamination, Dr. Gagnon
assessed her condition to be carpel tunnel syndrome and thoracic
outlet syndrome.
cervical spine.
Dr. Gagnon ordered a MRI scan of Ms. Brown’s
The test, performed on February 15, 2008,
disclosed minimal central posterior disc protrusion at the C5-6
level and muscle spasm.
On her third visit to Dr. Gagnon dated
March 18, 2008, she complained about the persistent numbness and
paresthesia and, in addition, problems with her eyesight. Dr.
Gagnon believed that Ms. Brown was disabled on the basis at
these symptoms.
On April 8, 2008, Ms. Brown sought treatment from Mazen
Eneyni, M.D. of Angels Neurological Centers.
In addition to
pain and numbness in both hands, she also reported fatigue and
body aches.
On examination, Ms. Brown showed normal gait,
strength, sensation, and reflexes.
Her cognition was generally
intact except that she had blurring of the nasal margins without
swelling.
Dr. Eneyni’s impression included carpal tunnel
syndrome, fibromyalgia (a condition of widespread muscle pain or
tenderness) and pseudopappiledema (optic disc swelling that is
secondary to an underlying process).
He then ordered a new EMG,
which was administered by Federick Nahm, M.D., on April 19,
2008.
The study showed reduced median and ulnar motor response
4
amplitudes on the right, which Dr. Nahm indicated might be
“suggestive of a low trunk plexopathy as in thoracic outlet
syndrome”.
On April 18, 2008, Ms. Brown visited Aleksander Feoktistov,
M.D., at the Raynham Rheumatology office.
She reported
persistent pain in joints, random sensations of numbness and
tingling, as well as sleep problems and episodes of profound
fatigue.
She also complained about stomach problems with
constipation or diarrhea.
Upon examination, Ms. Brown was found
to have mild tenderness to palpation in the proximal
interphalangeal joints of the hands bilaterally and in the
wrists.
She also had anterior shoulder tenderness on palpation
and tenderness to digital palpation at the occiput, trapezius,
second lib, lateral epicondyle, medially over knees, greater
trochanter and gluteal area bilaterally.
to have acute pain.
Yet she did not appear
Dr. Feoktistov concluded that Ms. Brown
presented with symptoms of fibromyalgia possibly secondary to
sleeping problems.
Upon referral by Dr. Feoktistov, Ms. Brown visited Imad J.
Bahhady, M.D., for her insomnia and fatigue on April 29, 3008.
She reported excessive daytime sleepiness, snoring and sleep
onset and maintenance insomnia.
The doctor assessed obstructive
sleep apnea and psychophysiological insomnia, which arose out of
her stress and pain associated with fibromyalgia.
5
Ms. Brown returned to Dr. Feoktistov on May 2, 2009. She
complained that she had an increase in joint pain.
She reported
that a few weeks earlier she had to stay in bed due to excessive
fatigue and that this profound episode resolved after a few
days.
Dr. Feoktistov concluded that she had symptoms of
fibromyalgia and symptoms suggestive of carpal tunnel syndrome.
He also noticed Ms. Brown’s depressive symptoms because of
frustration over her level of function.
By referral of Dr. Bahhady and Dr. Gagnon, Ms. Brown
visited Carolyn M. D’Ambrosio, M.D., for polysomnography on June
4, 2008.
The examination resulted in no determination because
Ms. Brown could not achieve any sleep due to her pain. Dr.
D’Ambrosio performed another polysomnography on September 22,
2008.
The study demonstrated moderate sleep disordered
breathing with prominent snoring and paradoxical breathing.
On July 9, 2008, Ms. Brown was examined by Peter Schuter,
M.D., a rheumatologist. She complained about her numbness,
achiness, fatigue and flu-like symptoms under the sun.
She also
reported her sleep problems and cognitive defects as a result.
She had symptoms suggestive of lupus, such as arthritis, skin
lesions, and canker sores.
The physical examination showed that
she was clearly overweight, had marked limitation in internal
rotation in both shoulders and decreased rotation of both hips,
and was tender everywhere in her body.
6
Dr. Schuter opined that
her symptoms were consistent with either lupus, or fibromyalgia,
or both.
He recommended that Ms. Brown lose 100 pounds once the
pain level went down and her sleep got better.
On July 16, 2008, Ms. Brown visited Dr. Gagnon for the
fourth time since her alleged onset date of disability.
Dr.
Gagnon assessed her condition to be carpal tunnel syndrome,
thoracic outlet syndrome and fibromyalgia.
On July 28, 2008, he
completed a “Continuing Disability Claim Form”, in which he
opined that Ms. Brown had been unable to work since February 2,
2008 and that she could not perform any lifting or typing.
In a
letter dated September 26, 2008, Dr. Gagnon wrote that Ms. Brown
was incapacitated by medical problems as well as fatigue and
numbness.
He expected Ms. Brown would return to work in three
to six months but that the amount and the type of work would be
limited.
On October 2, 2008, Ms. Brown was evaluated by Carolyn B.
Becker.
The review of her symptoms demonstrated positive pain,
numbness, loss of strength and feeling in both her hands, arms,
feet and legs, muscle inflammation, muscle pain and stiffness,
blurry vision, tender points, intolerance to pressure on her
skin, extreme fatigue, insomnia, terrible headaches, and
alternating diarrhea and constipation. Upon examination, Dr.
Becker opined that Ms. Brown’s symptoms were complex and most
consistent with fibromyalgia.
On October 9, 2008, Ms. Brown
7
went to see another neurologist Slavenka Kam-Hanson, M.D.
Upon
examination, Dr. Kam-Hanson concluded that Ms. Brown did not
have a neurological disease, except some chronic pain syndrome.
He also questioned whether any further MRI test would change the
diagnosis.
On December 9, 2008, Ms. Brown visited Michael Biber, M.D.
Upon his examination, Dr. Biber concluded that there were no
neurologic signs except for possible Tinel’s (irritated nerves
detected by lightly tapping over the nerve to elicit a sensation
of tingling) over the right median nerve at the wrist.
He also
opined that some of her sensory symptoms could represent a
conversion reaction due to the nonanatomic distribution of her
sensory symptoms and her eight-month history of anxiety.
On February 12, 2009, Ms. Brown underwent laparoscopic
Roux-en-Y gastric bypass surgery (a weight loss procedure) by
Ali Tavakkolizadeh, M.D.
On March 25, 2009, Dr. Tavakkolizadeh
wrote that the surgery was uneventful and that Ms. Brown was
doing wonderfully well.
lost 57 pounds.
Since the surgery, she had successfully
Although there was no noticeable decrease in
the frequency of her fibromyalgia attacks, Ms. Brown reported
that she felt better and more energized in between these
attacks.
Ms. Brown did not seek further medical treatment until July
1, 2010, when she was referred to Roland Chan, M.D. by Dr.
8
Gagnon.
fatigue.
She reported diffuse, constant and severe pain with
The physical examination revealed normal gait and
station and no misalignment, asymmetry, crepitation, defects,
tenderness or masses upon palpation.
She also demonstrated
normal muscle strength and tone with no atrophy.
She
experienced no pain, crepitation or contracture with range of
motion.
Based on his examination, Dr. Chan assessed probable
fibromyalgia.
He opined that Ms. Brown should be encouraged to
exercise, lose weight and remain productive full time in the
workforce.
On August 5, 2010, Dr. Gagnon, upon the request of
Massachusetts Rehabilitation Commission, opined about Ms.
Brown’s disability and stated that she was unable to work due to
the chronic muscle pain she suffered from fibromyalgia.
On September 7, 2010, Beth Schaff, M.D., a State agency
medical consultant, completed a physical functional capacity
assessment on Ms. Brown.
She opined that Ms. Brown could carry
or lift ten pounds occasionally and less than ten pounds
frequently, stand or walk three to four hours in an eight hour
workday, sit for a total of about six hours in an eight hour
workday, and push or pull occasionally with limitation in upper
extremities.
She observed that Ms. Brown occasionally had
difficulty in climbing, balancing, stooping, kneeling, crouching
and crawling.
She also wrote that Ms. Brown was occasionally
9
unable to perform bilateral overhead reaching, grasping and
twisting.
Despite these limitations, Dr. Schaff found that Ms.
Brown had no visual, communicative or environmental limitations.
On September 22, 2010, John Warren, Ed. D., a state agency
psychological consultant, reviewed Ms. Brown’s medical records
and concluded that she had no medically determinable impairment
during the relevant period.
His finding was confirmed by Henry
Schniewind, M.D., in another psychiatric review performed on
January 4, 2011.
Ms. Brown returned to Dr. Chan on October 7, 2010.
She
complained about her join pain and muscle pain. Dr. Chan
reviewed the history of her illness and noted that distribution
of joint pain was widespread and severity of pain was moderate,
ranging from dull to sharp.
After physical exam, Dr. Chan
assessed chronic fibromyalgia, slightly improved.
Ms. Brown was
evaluated by Dr. Chan again on December 21, 2010.
The result of
physical examination was similar to that of October 7, 2010.
However, Dr. Chan noticed that her fibromyalgia was worsening.
C.
Subjective Testimonial Reports
Ms. Brown completed a questionnaire on pain on July 27,
2010.
She reported that her pain had started three and a half
years earlier in her back and joints.
Despite medication, the
pain remained constant and had spread to other places in her
body. She explained that she had to rest at home on a typical
10
day.
Ms. Brown also submitted a function report on July 27,
2010.
She wrote that she was suffering from insomnia due to her
pain.
She could not dress, bathe, feed or shave herself because
she had extreme pain, could not stand steady on her feet and had
no feeling in hands to move items.
With her husband’s help, she
was able to care for two dogs and a bird.
She could perform
light-house cleaning when she felt no extreme pain, but she had
to stop and rest for one hour every thirty minutes.
occasionally cook frozen food.
She could
She was also able to drive or
ride in a car and shop for necessities.
Her social activities
were limited to visiting her mother and the doctors.
She
reported that her illness had affected her ability to lift,
walk, climb stairs, squat, sit, bend, kneel, stand, concentrate,
understand, memorize, follow instructions and complete tasks.
She alleged that she could walk only twenty feet before she
stopped and rested for an hour.
During her administrative hearing, Ms. Brown testified that
she stopped working as a data entry clerk in 2007 due to the
numbness in her hands and pain in her neck, which prevented her
from sitting and working through all the work hours.
She also
reported that she experienced fatigue, stress and serious
headaches.
Eventually the symptoms got so serious that she
could not even sit at the computer for ten or fifteen minutes.
11
Ms. Brown testified that she could only hold small things,
for example, cups, pens, forks and knives, for a short amount of
time with both hands providing support underneath.
She reported
that she could not feel the things nor manipulate them very
well.
She claimed that she burned her hands a lot and pinched
her fingers in a door due to the lack of sensation.
She could
sign her own signature but would usually drop the pen down or
stop to shake her hands for a minute.
She was able to type for
a Google search but unable to write an email.
Overall, she
explained that her hands felt like wearing big, thick, heavy
gloves.
When asked to describe the pain, Ms. Brown claimed that the
pain fluctuated a great deal.
On a bad day, she experienced
soreness and muscle spasm in her lower back, hips and shoulders.
She described the muscle spasm as a “stabbing in the leg” or a
sudden jerk.
Because of the pain, she had to change positions
very often.
Ms. Brown also reported that the computer screen bothered
her eyes and that she became very agitated about flashing
lights.
She said she tried to avoid the newspaper because she
was unable to hold it and the ink smelled dirty to her.
She
said she was in fear and emotionally depressed all the time due
to the illness and she tried very hard to stay focused.
12
D.
Disability Standard and the Decision of the
Administrative Law Judge
1.
The Standard for Disability Determination
To determine whether a claimant is entitled to Social
Security Disability Insurance benefits, the Administrative Law
Judge (the “ALJ”) must follow a five-step sequential inquiry.
20 C.F.R. § 404.1520; see Goodermote v. Sec’y of Health & Human
Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
At the first step, the ALJ considers the claimant’s
work activity.
If he or she is doing substantial gainful
activity, then the ALJ will find no disability. 20 C.F.R. §
404.1520 (4)(i).
At the second step, the ALJ evaluates the medical
severity of the claimant’s impairment(s).
If the claimant
does not have a severe medically determinable physical or
mental impairment that meets the duration requirement in
§ 404.1509, or a combination of impairments that are severe
and meet the duration requirement, the ALJ will find no
disability.
20 C.F.R. § 404.1520 (4)(ii).
At the third step, the ALJ also considers the medical
severity of the impairment(s).
If the claimant has an
impairment(s) that meets or equals one of the listings in
Appendix 1 to the social security regulations, the ALJ will
13
find that he or she is disabled.
20 C.F.R. § 404. 1520
(4)(iii).
At the fourth step, the ALJ makes an assessment of the
claimant’s residual functional capacity and his or her past
relevant work.
If the claimant can still do the past
relevant work, the ALJ will find no disability.
20 C.F.R.
§ 404.1520 (4)(iv).
At the fifth step, the ALJ makes an assessment of the
residual functional capacity and the claimant’s age,
education, and work experience to see if he or she can make
an adjustment to other work.
If the claimant can make an
adjustment to other work, the ALJ will find that he or she
is not disabled.
2.
20 C.F.R. § 404.1520 (4)(v).
The ALJ’s Decision
In this case, the ALJ first concluded the Ms. Brown last
met the insured status requirements of the Social Security Act
on December 31, 2009.
He then found that Ms. Brown was not
engaged in substantial gainful activity during the relevant
period.
Based upon the records, ALJ concluded that through the
date last insured, Ms. Brown suffered from obesity,
fibromyalgia, carpal tunnel syndrome and thoracic outlet
syndrome.
However, none of these impairments or combination of
impairments medically met the clinical requirements of an
impairment in the Appendix 1.
14
Next the ALJ concluded that “through the date last insured,
the claimant had the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except she was
able to lift and/or carry 10 pounds frequently.”
He found that
“she was able occasionally to climb, balance, stoop, kneel,
crouch, or crawl.
She was able occasionally to push or pull or
reach overhear with her upper extremities, and could frequently
handle, finger and feel.
She was limited to only occasional
interaction with the public, co-workers, and supervisors, and to
simple, routine and repetitive instructions.”
In reaching this conclusion about the claimant’s residual
functional capacity, the ALJ considered all the symptoms and
medical opinions.
He followed a two-step process in considering
Ms. Brown’s symptoms as required by 20 CFR 404.1529.
First, he
evaluated the medical records from Dr. Gagnon, Dr. Galvin. Dr.
Marks, Dr. Eneyni, Dr. Feoktistov. Dr. Schur, Dr. Becker, Dr.
Kam-Hansen, Dr. Biber and Dr. Tavakkolizadeh and concluded that
Ms. Brown’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms.
Second, he concluded that although Ms. Brown’s assertions
were “partially credible, her description of her limitations as
of her date last insured are not consistent with the medical
evidence of record.” In support of his conclusion, the ALJ
explained that none of Ms. Brown’s treating sources found the
15
debilitating pain that Ms. Brown had reported since 2007.
In
particular, he observed that the medical examinations revealed
very few objective findings of the alleged limitations: there
were no findings of a complete lack of sensation in Ms. Brown’s
hands and no evidence of injuries to her hands or fingers as a
result of her numbness.
With respect to the medical records from Dr. Gagnon, the
ALJ gave some weight to the doctor’s opinion on April 4, 2008,
finding that Ms. Brown had some difficulty with the use of her
hands.
However, the ALJ gave little weight to Dr. Gagnon’s
opinion on August 5, 2010, which concluded Ms. Brown’s chronic
muscle pain prevented her from working at all.
That opinion was
accorded little weight because it merely “conveys the claimant’s
reports to Dr. Gagnon, not his objective opinion.”
Conversely,
the ALJ indicated that he had given great weight to the
limitations assessment by Dr. Schaff, the state agency medical
consultant, “in the absence of any treating source statement of
specific findings of the limitations.”
He concluded that Dr.
Schaff’s opinion was “the most consistent with the medical
evidence as a whole.”
The ALJ further noted that Ms. Brown reported no decrease
in the frequency of her fibromyalgia attacks after her gastric
bypass surgery, but she “felt better and more energized in
between the attacks.”
He noted that Ms. Brown did not submit
16
any evidence of medical treatment between May of 2009 and June
8, 2010.
Based on his assessment of Ms. Brown’s residual functional
capacity, the ALJ concluded that “through the date last insured,
the claimant was capable of performing past relevant work as a
data entry clerk” and that she was “not under a disability, as
defined in the Social Security Act”.
II.
DISCUSSION
Ms. Brown contends that the Administrative Law Judge made
two legal errors in his denial of social security insurance
benefits: (1) he erred in assessing residual function capacity
before determination of her subjective complaints of pain and
limitation; and (2) he failed to follow the proper legal
standards for evaluation of her subjective complaints of pain
provided in Avery v. Sec’y of Health & Human Servs., 797 F.2d 19
(1st Cir. 1986)
A.
Standard of Review
A district court has the power to enter a judgment
“affirming, modifying, or reversing” a decision of the
Commissioner of the Social Security Administration “with or
without remanding the cause for a hearing.” 42 U.S.C. § 405(g).
My review of the Commissioner’s decision is “limited to
determining whether the ALJ used the proper standards and found
17
facts based on the proper quantum of evidence.” Ward v. Comm'r
of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
Questions of law are reviewed de novo. Seavey v. Barnhart,
276 F.3d 1, 9 (1st Cir.2001); Ward, 211 F.3d at 655. By
contrast, the Commissioner's factual findings are treated as
conclusive only if they are “supported by substantial evidence.”
42 U.S.C. § 405(g). Substantial evidence is that which “a
reasonable mind, reviewing the record as a whole, could accept .
. . as adequate to support [the Commissioner's] conclusion.”
Ortiz v. Sec'y of Health and Human Servs., 955 F.2d 765, 769
(1st Cir.1991) (citing Rodriguez v. Secretary of Health and
Human Services, 647 F.2d 218, 222 (1st Cir.1981)).
I am bound
by the Commissioner’s factual findings unless they are “derived
by ignoring evidence, misapplying law, or judging matters
entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir.1999) (per curiam).
B.
The Administrative Law Judge’s alleged failure to
follow the sequential evaluation protocol
Ms. Brown first contends that the Administrative Law Judge
failed to follow the correct standard because he determined
residual functional capacity before consideration of her
subjective complaints of pain and then used that conclusion as a
“bootstrap to create a post hoc determination of credibility”.
She alleges that the ALJ was mistaken about the sequence because
18
he asserted in his decision that “the claimant’s statements
concerning the intensity, persistence and limiting effects of
the symptoms are not credible to the extent that they are
inconsistent with the above residual functional capacity
assessment.”
I agree with Ms. Brown that an ALJ should ordinarily assess
the credibility of the subjective complaints before
determination of the claimant’s residual function capacity. See
Alberts v. Astrue, No. 11-11139-DJC, 2013 WL 1331110, at *11 (D.
Mass. Mar. 29, 2013) (citing Longerman v. Astrue, 2011 WL
5190319 (N.D.Ill.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 process on its head’ ” (quoting Brindisi v.
Barnhart, 315 F.3d 783, 787–88 (7th Cir.2003))).
However, I disagree with Ms. Brown that the ALJ’s
conclusive statement alone demonstrated his failure to follow
the correct sequence.
In Alberts, a case to which both parties
refer, the ALJ made an almost identical statement when he
asserted that the claimant’s “statements concerning the
intensity, persistence and limiting effects of her symptoms are
not credible to the extent they are inconsistent with the RFC
determination.”
Alberts, No. 11-11139-DJC, 2013 WL 1331110, at
*11 (D. Mass. Mar. 29, 2013).
Judge Casper, however, did not
19
stop her analysis with this boilerplate statement.
Instead, she
carefully reviewed the ALJ’s opinion and found that he had
properly considered each of the Avery factors. Id. at 13.
Accordingly, she concluded that the ALJ’s statement “was
commentary to explain the scope of a credibility determination
that he had already made using the correct legal standard to
evaluate her statements. “ Id. at 12.
In Cabral v. Colvin, No. 12-11757-FDS, 2013 WL 4046721, at
*5 (D. Mass. Aug. 6, 2013), a case the claimant heavily relies
on, Judge Saylor followed the practical approach employed in
Alberts to a similar conclusive statement.
To be sure, Judge
Saylor ultimately concluded that the ALJ failed to follow the
correct legal standard in his evaluation. Id. at 5. Yet he
reached that conclusion only after he found that the ALJ did not
in fact analyze the Avery factors. Id. at 8.
Because Ms. Brown offers no reason in the present case to
justify her wooden textual approach as opposed to the practical
approach adopted by Judge Casper in Alberts and Judge Saylor in
Cabral, I decline to find error of law from the ALJ’s conclusive
statement alone.
C.
The Administrative Law Judge’s alleged failure to follow
the proper standards in assessing credibility of the
claimant’s subjective complaints
Ms. Brown’s principal contention is that the Administrative
Law Judge failed to follow the proper legal standards in
20
assessing the credibility of her subjective complaints of pain.
Before discussing the merits of her arguments, an overview of
the correct legal standard for credibility determination
regarding pain is warranted.
In assessing a claimant’s subjective complaints of the
pain, an ALJ must first find a “clinically determinable medical
impairment that can reasonably be expected to produce the pain
alleged.” Avery, 797 F.2d 19, at 21.
Once a medically
determinable physical or mental impairment has been established,
the ALJ must consider “the intensity, persistence, and
functionality limiting effects of the symptoms” so as to
“determine the extent to which the symptoms affect the
individual’s ability to do basis work activities.”
(codified at §404.1529(a)).
SSR 96-7p
This second step requires a finding
regarding the credibility of the claimant’s subjective
statements of her pain and its functional effects based on a
consideration of the entire case record.
Id.
When evaluating the credibility of the claimant’s
subjective complaints, the ALJ must consider the so-called
“Avery factors”: (1) the nature, location, onset, duration,
frequency, radiation, and intensity of pain; (2) precipitating
and aggravating factors (e.g., movement, activity, environmental
conditions); (3) type, dosage, effectiveness, and adverse side
effects of any pain medication; (4)treatment, other than
21
medication, for pain relief; (5) functional restrictions; and
(6) the claimant’s daily activities.
Avery, 797 F.2d at 29;
(codified at 20 C.F.R. § 404.1529 (c)(3)).
It is inappropriate for the ALJ to rely solely on objective
medical evidence to determine the credibility of the subjective
complaints.
To be sure, “objective medical evidence is a useful
indicator to assist us in making reasonable conclusions about
the intensity and persistence of an individual’s symptoms and
effects those symptoms may have on the individual’s ability to
function.”
SSR 96-7p (codified at § 404.1529(c)(2)).
However,
“the absence of objective medical evidence supporting an
individual’s statements about the intensity and persistence of
pain or other symptoms is only one factor that the adjudicator
must consider.”
SSR 96-7p (codified at § 404.1529(c)(2)).
In
other words, the ALJ must consider evidence in addition to
medical tests. Nguyen, 172 F.3d 31, at 34 (citing 20 C.F.R. §
404.1529 (c)).
When the ALJ makes a finding as to the credibility of
subjective testimony, the finding “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].”
Da Rosa v. Sec’y of Health & Human
Servs., 803 F.2d 24, 26 (1st Cir. 1986).
The Social Security
Administration’s policy interpretation further provides that the
22
ALJ’s finding is not deemed sufficient if the ALJ only makes a
conclusive statement or simply recites the Avery factors that
are described in the regulations for evaluating symptoms.
SSR
96-7p.
In light of the prescribed evaluation process, Ms. Brown
first argues that the ALJ erred in finding her subjective
complaints not credible solely because they were not
substantiated by the objective medical records.
In supporting
this argument, Ms. Brown focuses on the following paragraph from
the ALJ’s opinion:
The claimant alleges that she has had debilitating pain
since 2007. However, none of her numerous treating
sources have described her as appearing to be in
significant pain . . . . Examinations have consistently
shown very few objective findings to support the
claimant’s alleged limitations . . . . There are no
findings of a complete lack of sensation in the
claimant’s hands, or of the claimant having significant
pain on palpation. There is no evidence that the claimant
has suffered from falls or injuries of her hands of
fingers as a result of her numbness.
While the paragraph cited reflects the ALJ’s consideration
of the dissonance between medical records and the subjective
complaints, the ALJ did not end with this alone.
Instead, he
continued his discussion by offering three additional reasons
for his disregard of the complaints.
The ALJ first explained that he gave less weight to her
primary physician’s medical opinion dated April 4, 2008, because
“Dr. Gagnon’s treatment records do not support an inability to
23
perform any work activities at all.”
He also gave little weight
to Dr. Gagnon’s opinion dated on August 5, 2010, because that
opinion only recited what Ms. Brown reported to him.
The ALJ then identified three inconsistencies in Ms.
Brown’s subjective reports of pain and disability: she claimed
regular periods when she must stay in bed but the records show
she reported this only once; she did not seek mental health
treatment or medication during relevant period though she
claimed her mental limitations; she reported feeling more
energized after the surgery and she failed to submit evidence of
medical treatment between May of 2009 and June 8, 2010.
Finally, the ALJ noted that he relied heavily upon the
assessment by the state agency medical consultant, Dr. Schaff
“in the absence of any treating source statement of specific
limitations”.
Because the ALJ articulated a number of supportable
justifications for his finding of credibility, it is not fair to
say that he discredited the complaint’s subjective testimony
solely based on its incompatibility with objective medical
records.
Therefore, I will not overturn the ALJ’s credibility
determination on that ground.
Moving to the Ms. Brown’s second argument.
She claims
that, because the ALJ’s opinion failed to provide specific
reasons for his findings on the credibility, it is impossible to
24
determine which of her statements were considered credible and
whether they were discredited based upon evidence in the record.
She alleges that “[t]he ALJ engaged in cherry picking and
inappropriate emphasis, particularly, upon minor comments, to
the exclusion of fair consideration of all the evidence upon the
record as a whole.”
I interpret this argument as alleging that
the ALJ’s findings were too general and not supported by
substantial evidence from the record.
Ms. Brown cites Cabral and Bazile v. Apfel, 113 F. Supp. 2d
181 (D. Mass. 2000) in support of her contention.
In Cabral,
Judge Saylor observed: “[a]lthough a factual summary of the
Avery factors is often sufficient to demonstrate that the ALJ
considered those factors, more may be required where the
evidence does not clearly support the ALJ’s credibility
determination.”
Cabral, No. 12-11757-FDS, 2013 WL 4046721, at
*10 (D. Mass. Aug. 6, 2013); see also Pires v. Astrue, 553 F.
Supp. 2d 15, 24 (D. Mass. 2008) (“Though at times courts have
considered the recitation of such [objective medical findings]
to be enough to demonstrate that the ALJ considered it, that is
not the case where the evidence as laid out does not support the
ALJ’s credibility determination.”) (internal citation omitted).
Because the ALJ in Cabral failed to analyze the Avery factors in
detail and because “there was substantial evidence in support of
plaintiff’s subjective allegations of pain”, Judge Saylor
25
remanded the case to the ALJ to make specific findings as to the
plaintiff’s credibility.
Id. at 9-11.
In Bazile, Judge Young articulated a similar standard:
“general findings are insufficient; rather, the ALJ must
identify what testimony is not credible and what evidence
undermines the claimant’s complaints.”
Bazile v. Apfel, 113 F.
Supp. 2d at 188 (citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).
While the ALJ in Bazile offered some reasons to
discredit the Bazile’s testimony, including objective medical
evidence and the minimal medication the plaintiff received,
Judge Young concluded that “it is too broad” to disregard
Bazile’s description of her daily living activities.
187-88.
Id. at
Accordingly, he remanded the case for reconsideration.1
Id. at 190.
Ms. Brown’s reliance on Bazile and Cabral is misplaced.
The explanations the ALJ offered in the present case are more
extensive and specific than the reasoning found inadequate in
Bazile and Cabral.
In fact, the ALJ here offered several
reasons to impugn the parts of Ms. Brown’s testimony he regarded
as not credible.
Judge Young also held that because the plaintiff, whose native
language was Spanish, appeared to misunderstand many questions
at the hearing, the ALJ failed to give due consideration to the
effects of her medication. Bazile, 113 F. Supp. 2d 181, 189-90
(D. Mass. 2000).
1
26
First, the ALJ properly questioned the intensity of Ms.
Brown’s pain and her alleged complete disability because none of
the treating sources except Dr. Gagnon’s medical opinions
provided medical support for those complaints.
For example, Dr.
Feoktistove noticed on April 18, 2008 that Ms. Brown, having
mild tenderness in hands and wrist and anterior shoulder
tenderness on palpation, did not appear to have acute pain.
On
April 8, 2008, Dr. Eneyni observed she showed normal gait,
strength, sensation, and reflexes.
This assessment was echoed
in Dr. Chan’s evaluation on July 1, 2010, which showed Ms. Brown
had normal muscle strength and tone with no atrophy and
experienced no pain, crepitation or contracture with range of
motion.
The ALJ further explained that he gave less weight to the
medical opinions by Ms. Brown’s primary physician because the
opinion listed no specific limitations and was not supported by
his treatment records.
The ALJ’s position is clearly justified.
See 20 C.F.R. § 404.1527(c) (“The more a medical source presents
relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give that
opinion.”)
Second, Ms. Brown’s allegations about the persistence of
her pain and limitation were also properly discredited.
The ALJ
noticed that while she testified at the hearing that she had to
27
stay in bed until 2 or 3 in the afternoon, she only reported one
such episode in her treatment and was able to carry on with
daily activities a few days afterwards.
Social Security
regulations allow an ALJ to rely on such an inconsistency to
discredit the claimant’s subjective complaints.
See, e.g., SSR
96-7P (codified at 20 CFR 404.1529(c)(4) (“One strong indication
of the credibility of an individual’s statements is their
consistency . . . [including] consistency of the individual’s
own statements.”); Frustaglia v. Secretary of Health and Human
Services, 829 F.2d 192, 195 (1st Cir. 1987) (upholding the ALJ’s
finding of credibility when the claimant made inconsistent and
contrary statements.)
In addition to the inconsistency recited above, the ALJ
also recognized the incompatibility between Ms. Brown’s
testimony at the hearing alleging “she never feels like she is
improving” and her report of feeling “better and more energized”
after her gastric bypass surgery.
The ALJ found that Ms. Brown
did not seek medical treatment between May of 2009 and June 8,
2010, five days before she filed for social security disability
insurance benefit.
From the evidence the ALJ could reasonably
conclude that Ms. Brown did not seek treatment because her
situation improved due to the surgery and the symptoms were not
severe enough to prompt her to see a doctor.
See SSR 96-7p
(codified at 20 CFR 404.1529(c)(4) (“the individual’s statements
28
may be less credible if the level or frequency of treatment is
inconsistent with the level of complaints,” provided that “the
adjudicator first consider[s] any explanations that the
individual may provide, or other information in the case
record”); Tsarelka v. Sec’y of HHS, 842 F.2d 529, 534 (1st Cir.
1988) (“Implicit in a finding of disability is a determination
that existing treatment alternatives would not restore a
claimant's ability to work.”).
Even assuming, arguendo, that the ALJ’s reasoning had been
too general to offer specific refutation, the determination
should still be upheld because his finding of credibility is
supported by substantial evidence in the record.
See
Frustaglia, 829 F.2d at 195 (holding that “although more express
findings regarding head pain and credibility than those given
here are preferable”, the ALJ’s opinion may be upheld when the
finding is adequately supported by substantial evidence.)
In his opinion the ALJ derived most of his residual
functional limitation determination from the findings of the
state agency medical consultant, Dr. Schaff. Because Dr. Schaff
had the opportunity to review all of the medical evidence from
all of the claimant’s treating sources, the ALJ’s reliance on
those findings to discredit Ms. Brown’s subjective complaints
was proper.
See SSR 96-6p; (“[T]he opinion of a State agency
medical or psychological consultant . . . may be entitled to
29
greater weight than a treating source's medical opinion if the
State agency medical or psychological consultant's opinion is
based on a review of a complete case record that includes a
medical report from a specialist in the individual's particular
impairment.”) See generally 20 CFR § 404.1527(e).
Furthermore, Ms. Brown’s own subjective testimony about her
daily life lends additional support to the ALJ’s finding of
limitation.
The ALJ found that, during the relevant period, Ms.
Brown was able to perform sedentary work except lifting and/or
carrying 10 pounds frequently.
She was also found able
occasionally to climb, balance, stoop, kneel, crouch or crawl
and occasionally push or pull reach overhead, grasp or twist
with her bilateral upper extremities.
His findings were in fact
consistent with the claimant’s own reports regarding her daily
life: she was able to cook frozen food, care for two dogs and a
bird with her husband’s help, perform light-house cleaning when
she felt no extreme pain, drive or ride in a car and shop for
necessities and visit her mother and doctors.
In other words,
Ms. Brown’s subjective reports of her daily life supported,
rather than undermined, the ALJ’s determination of her physical
limitation.
See Balaguer v. Astrue, 880 F.Supp.2d 258 (D. Mass.
2012) (affirming the hearing officer’s finding that the
claimant’s reported limitations in her daily activities was not
30
credible because she could generally take her four dogs out,
cook, clean, go grocery shopping, write, read, and play games).
In sum, the ALJ made specific findings regarding the
credibility of Ms. Brown’s subjective complaints and those
findings are supported by substantial evidence in the record.
Accordingly, I find no basis to disturb the ALJ’s determinations
regarding credibility.
III. CONCLUSION
For the reasons set forth more fully above, I hereby AFFIRM
the decision of the Commissioner denying benefits.
/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
31
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