Pafume v. Astrue
Filing
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MEMORANDUM AND ORDER denying 9 Motion to Reverse Decision of the Commissioner; granting 12 Motion to Affirm the Decision of the Commissioner. Final judgment shall enter in favor of Defendant. So Ordered by Magistrate Judge Lincoln D. Almond on 6/12/2012. (Noel, Jeannine)
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
LISA PAFUME
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration
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C.A. No. 11-310A
MEMORANDUM AND ORDER
This matter is before the Court for judicial review of a final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying Richard Pafume1 Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits under the Social
Security Act (“Act”), 42 U.S.C. § 405(g). The Complaint was filed on July 26, 2011 seeking to
reverse the decision of the Commissioner. On February 15, 2012, Plaintiff filed a Motion to Reverse
the Decision of the Commissioner. (Document No. 9). On May 10, 2012, the Commissioner filed
a Motion for Order Affirming the Decision of the Commissioner. (Document No. 12). Plaintiff filed
a reply brief on May 28, 2012. (Document No. 13).
With the consent of the parties, this case has been referred to me for all further proceedings
and the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Based upon
my review of the record and the legal memoranda filed by the parties, I find that there is substantial
evidence in the record to support the Commissioner’s decision and findings that Plaintiff is not
1
This appeal was filed by Lisa Pafume as an eligible surviving spouse of Richard Pafume pursuant to 20 C.F.R.
§ 416.542(b). Mr. Pafume died on May 8, 2011.
disabled within the meaning of the Act. Consequently, I order that the Commissioner’s Motion for
Order Affirming the Decision of the Commissioner (Document No. 12) be GRANTED and
Plaintiff’s Motion to Reverse the Decision of the Commissioner (Document No. 9) be DENIED.
I.
PROCEDURAL HISTORY
Mr. Pafume filed applications for DIB (Tr. 172-176) and SSI (Tr. 177-184) on January 30,
2008 alleging disability as of January 1, 2005. Mr. Pafume was insured for DIB only through June
30, 2006. (Tr. 8). The applications were denied initially on September 15, 2008 (Tr. 73-78) and on
reconsideration on August 25, 2009. (Tr. 82-88). Plaintiff requested an administrative hearing on
August 25, 2009. (Tr. 88). On October 21, 2010, a hearing was held before Administrative Law
Judge Randy Riley (the “ALJ”) at which time Mr. Pafume, represented by counsel, a vocational
expert (“VE”) and a medical expert (“ME”) appeared and testified. (Tr. 41-68). A supplemental
hearing was held on February 1, 2011 at which time Mr. Pafume, represented by counsel, a
vocational expert (“VE”) and a medical expert (“ME”) appeared and testified. (Tr. 23-34). The ALJ
issued an adverse decision on February 16, 2011. (Tr. 4-22). The claim was selected for review by
the Decision Review Board, and on May 23, 2011, the Decision Review Board advised that it had
not completed its review of the ALJ’s decision within the time allowed and that the ALJ’s decision
had become final. (Tr. 1-3). A timely appeal was then filed in this Court.
II.
THE PARTIES’ POSITIONS
Plaintiff argues that the ALJ erred at Step 2 by not finding Mr. Pafume’s personality disorder
to be a severe impairment, and by failing to properly evaluate and weigh the medical evidence.
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The Commissioner disputes Plaintiff’s claims and argues that the ALJ properly evaluated
the medical evidence, and that his RFC and non-disability findings are supported by substantial
evidence and must be affirmed.
III.
THE STANDARD OF REVIEW
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is more than a scintilla – i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support the conclusion. Ortiz v. Sec’y of Health
and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec’y of Health and
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
Where the Commissioner’s decision is supported by substantial evidence, the court must
affirm, even if the court would have reached a contrary result as finder of fact. Rodriguez Pagan v.
Sec’y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir. 1987); Barnes v. Sullivan, 932 F.2d 1356,
1358 (11th Cir. 1991). The court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the decision. Frustaglia v. Sec’y of Health and Human Servs.,
829 F.2d 192, 195 (1st Cir. 1987); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (court also must
consider evidence detracting from evidence on which Commissioner relied).
The court must reverse the ALJ’s decision on plenary review, however, if the ALJ applies
incorrect law, or if the ALJ fails to provide the court with sufficient reasoning to determine that he
or she properly applied the law. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam);
accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Remand is unnecessary where
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all of the essential evidence was before the Appeals Council when it denied review, and the evidence
establishes without any doubt that the claimant was disabled. Seavey v. Barnhart, 276 F.3d 1, 11
(1st Cir. 2001) citing, Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
The court may remand a case to the Commissioner for a rehearing under sentence four of 42
U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both sentences. Seavey, 276
F.3d at 8. To remand under sentence four, the court must either find that the Commissioner’s
decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the
law relevant to the disability claim. Id.; accord Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980)
(remand appropriate where record was insufficient to affirm, but also was insufficient for district
court to find claimant disabled).
Where the court cannot discern the basis for the Commissioner’s decision, a sentence four
remand may be appropriate to allow her to explain the basis for her decision. Freeman v. Barnhart,
274 F.3d 606, 609-610 (1st Cir. 2001). On remand under sentence four, the ALJ should review the
case on a complete record, including any new material evidence. Diorio v. Heckler, 721 F.2d 726,
729 (11th Cir. 1983) (necessary for ALJ on remand to consider psychiatric report tendered to Appeals
Council). After a sentence four remand, the court enters a final and appealable judgment
immediately, and thus loses jurisdiction. Freeman, 274 F.3d at 610.
In contrast, sentence six of 42 U.S.C. § 405(g) provides:
The court...may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in
a prior proceeding;
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42 U.S.C. § 405(g). To remand under sentence six, the claimant must establish: (1) that there is
new, non-cumulative evidence; (2) that the evidence is material, relevant and probative so that there
is a reasonable possibility that it would change the administrative result; and (3) there is good cause
for failure to submit the evidence at the administrative level. See Jackson v. Chater, 99 F.3d 1086,
1090-1092 (11th Cir. 1996).
A sentence six remand may be warranted, even in the absence of an error by the
Commissioner, if new, material evidence becomes available to the claimant. Jackson, 99 F.3d at
1095. With a sentence six remand, the parties must return to the court after remand to file modified
findings of fact. Id. The court retains jurisdiction pending remand, and does not enter a final
judgment until after the completion of remand proceedings. Id.
IV.
DISABILITY DETERMINATION
The law defines disability as the inability to do 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 twelve months.
42 U.S.C. §§ 416(I), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe, making the
claimant unable to do 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.
A.
Treating Physicians
Substantial weight should be given to the opinion, diagnosis and medical evidence of a
treating physician unless there is good cause to do otherwise. See Rohrberg v. Apfel, 26 F. Supp.
2d 303, 311 (D. Mass. 1998); 20 C.F.R. § 404.1527(d). If a treating physician’s opinion on the
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nature and severity of a claimant’s impairments is well-supported by medically acceptable clinical
and laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence in
the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(d)(2). The ALJ may
discount a treating physician’s opinion or report regarding an inability to work if it is unsupported
by objective medical evidence or is wholly conclusory. See Keating v. Sec’y of Health and Human
Servs., 848 F.2d 271, 275-276 (1st Cir. 1988).
Where a treating physician has merely made conclusory statements, the ALJ may afford them
such weight as is supported by clinical or laboratory findings and other consistent evidence of a
claimant’s impairments. See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986). When a
treating physician’s opinion does not warrant controlling weight, the ALJ must nevertheless weigh
the medical opinion based on the (1) length of the treatment relationship and the frequency of
examination; (2) nature and extent of the treatment relationship; (3) medical evidence supporting
the opinion; (4) consistency with the record as a whole; (5) specialization in the medical conditions
at issue; and (6) other factors which tend to support or contradict the opinion. 20 C.F.R §
404.1527(d). However, a treating physician’s opinion is generally entitled to more weight than a
consulting physician’s opinion. See 20 C.F.R. § 404.1527(d)(2).
The ALJ is required to review all of the medical findings and other evidence that support a
medical source’s statement that a claimant is disabled. However, the ALJ is responsible for making
the ultimate determination about whether a claimant meets the statutory definition of disability. 20
C.F.R. § 404.1527(e). The ALJ is not required to give any special significance to the status of a
physician as treating or non-treating in weighing an opinion on whether the claimant meets a listed
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impairment, a claimant’s RFC (see 20 C.F.R. §§ 404.1545 and 404.1546), or the application of
vocational factors because that ultimate determination is the province of the Commissioner. 20
C.F.R. § 404.1527(e). See also Dudley v. Sec’y of Health and Human Servs., 816 F.2d 792, 794 (1st
Cir. 1987).
B.
Developing the Record
The ALJ has a duty to fully and fairly develop the record. Heggarty v. Sullivan, 947 F.2d
990, 997 (1st Cir. 1991). The Commissioner also has a duty to notify a claimant of the statutory right
to retained counsel at the social security hearing, and to solicit a knowing and voluntary waiver of
that right if counsel is not retained. See 42 U.S.C. § 406; Evangelista v. Sec’y of Health and Human
Servs., 826 F.2d 136, 142 (1st Cir. 1987). The obligation to fully and fairly develop the record exists
if a claimant has waived the right to retained counsel, and even if the claimant is represented by
counsel. Id. However, where an unrepresented claimant has not waived the right to retained
counsel, the ALJ’s obligation to develop a full and fair record rises to a special duty. See Heggarty,
947 F.2d at 997, citing Currier v. Sec’y of Health Educ. and Welfare, 612 F.2d 594, 598 (1st Cir.
1980).
C.
Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant’s
medical sources do not give sufficient medical evidence about an impairment to determine whether
the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir.
1986). In fulfilling his duty to conduct a full and fair inquiry, the ALJ is not required to order a
consultative examination unless the record establishes that such an examination is necessary to
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enable the ALJ to render an informed decision. Carrillo Marin v. Sec’y of Health and Human
Servs., 758 F.2d 14, 17 (1st Cir. 1985).
D.
The Five-step Evaluation
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§
404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, she is not
disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or
combination of impairments which significantly limit her physical or mental ability to do basic work
activities, then she does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c).
Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1, she is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s impairments do
not prevent her from doing past relevant work, she is not disabled. 20 C.F.R. § 404.1520(e). Fifth,
if a claimant’s impairments (considering her RFC, age, education and past work) prevent her from
doing other work that exists in the national economy, then she is disabled. 20 C.F.R. § 404.1520(f).
Significantly, the claimant bears the burden of proof at steps one through four, but the Commissioner
bears the burden at step five. Wells v. Barnhart, 267 F. Supp. 2d 138, 144 (D. Mass. 2003) (fivestep process applies to both SSDI and SSI claims).
In determining whether a claimant’s physical and mental impairments are sufficiently severe,
the ALJ must consider the combined effect of all of the claimant’s impairments, and must consider
any medically severe combination of impairments throughout the disability determination process.
42 U.S.C. § 423(d)(2)(B). Accordingly, the ALJ must make specific and well-articulated findings
as to the effect of a combination of impairments when determining whether an individual is disabled.
Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993).
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The claimant bears the ultimate burden of proving the existence of a disability as defined by
the Social Security Act. Seavey, 276 F.3d at 5. The claimant must prove disability on or before the
last day of her insured status for the purposes of disability benefits. Deblois v. Sec’y of Health and
Human Servs., 686 F.2d 76 (1st Cir. 1982), 42 U.S.C. §§ 416(I)(3), 423(a), (c). If a claimant
becomes disabled after she has lost insured status, her claim for disability benefits must be denied
despite her disability. Id.
E.
Other Work
Once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts
to the Commissioner to establish that the claimant could perform other work that exists in the
national economy. Seavey, 276 F.3d at 5. In determining whether the Commissioner has met this
burden, the ALJ must develop a full record regarding the vocational opportunities available to a
claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). This burden may sometimes be
met through exclusive reliance on the Medical-Vocational Guidelines (the “grids”). Seavey, 276
F.3d at 5. Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from
an exertional impairment, without significant non-exertional factors. Id.; see also Heckler v.
Campbell, 461 U.S. 458, 103 S. Ct. 1952, 76 L.Ed.2d 66 (1983) (exclusive reliance on the grids is
appropriate in cases involving only exertional impairments, impairments which place limits on an
individual’s ability to meet job strength requirements).
Exclusive reliance is not appropriate when a claimant is unable to perform a full range of
work at a given residual functional level or when a claimant has a non-exertional impairment that
significantly limits basic work skills. Nguyen, 172 F.3d at 36. In almost all of such cases, the
Commissioner’s burden can be met only through the use of a vocational expert. Heggarty, 947 F.2d
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at 996. It is only when the claimant can clearly do unlimited types of work at a given residual
functional level that it is unnecessary to call a vocational expert to establish whether the claimant
can perform work which exists in the national economy. See Ferguson v. Schweiker, 641 F.2d 243,
248 (5th Cir. 1981). In any event, the ALJ must make a specific finding as to whether the nonexertional limitations are severe enough to preclude a wide range of employment at the given work
capacity level indicated by the exertional limitations.
1.
Pain
“Pain can constitute a significant non-exertional impairment.” Nguyen, 172 F.3d at 36.
Congress has determined that a claimant will not be considered disabled unless he furnishes medical
and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical
impairment which could reasonably be expected to produce the pain or symptoms alleged. 42
U.S.C. § 423(d)(5)(A). The ALJ must consider all of a claimant’s statements about his symptoms,
including pain, and determine the extent to which the symptoms can reasonably be accepted as
consistent with the objective medical evidence. 20 C.F.R. § 404.1528. In determining whether the
medical signs and laboratory findings show medical impairments which reasonably could be
expected to produce the pain alleged, the ALJ must apply the First Circuit’s six-part pain analysis
and consider the following factors:
(1) The nature, location, onset, duration, frequency, radiation, and
intensity of any 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 medication, for relief of pain;
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(5) Functional restrictions; and
(6) The claimant’s daily activities.
Avery v. Sec’y of Health and Human Servs., 797 F.2d 19, 29 (1st Cir. 1986). An individual’s
statement as to pain is not, by itself, conclusive of disability. 42 U.S.C. § 423(d)(5)(A).
2.
Credibility
Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ must
articulate specific and adequate reasons for doing so, or the record must be obvious as to the
credibility finding. Rohrberg, 26 F. Supp. 2d at 309. A reviewing court will not disturb a clearly
articulated credibility finding with substantial supporting evidence in the record. See Frustaglia, 829
F.2d at 195. The failure to articulate the reasons for discrediting subjective pain testimony requires
that the testimony be accepted as true. See DaRosa v. Sec’y of Health and Human Servs., 803 F.2d
24 (1st Cir. 1986).
A lack of a sufficiently explicit credibility finding becomes a ground for remand when
credibility is critical to the outcome of the case. See Smallwood v. Schweiker, 681 F.2d 1349, 1352
(11th Cir. 1982). If proof of disability is based on subjective evidence and a credibility determination
is, therefore, critical to the decision, “the ALJ must either explicitly discredit such testimony or the
implication must be so clear as to amount to a specific credibility finding.” Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995) (quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983)).
V.
APPLICATION AND ANALYSIS
Plaintiff was forty years old at the time of the ALJ’s decision. (Tr. 45). He had a seventh
grade education and worked in the relevant past as a loan officer, dispatch supervisor, convenience
store clerk, telemarketer and landscaper. (Tr. 31, 47). Mr. Pafume claimed disability due to
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blindness in his right eye, C6-C7 ruptured disc, anxiety, fibromyalgia, bronchial asthma, left foot
problems, chronic headaches, neck and shoulder problems and Hepatitis C. (Tr. 223).
The Commissioner does not dispute the summary of medical evidence presented by Plaintiff
at pages 9-12 of her brief. (Document No. 9 at pp. 9-12). Thus, the Court adopts and incorporates
this undisputed summary by reference. However, the Commissioner also relies upon additional
medical evidence in the record which is summarized below. First, Dr. Paolino, a psychiatrist,
appears to have seen Mr. Pafume on several occasions prior to preparing his assessment of his
capacities in June 2010. (See Tr. 761-765). On the initial visit, no psychological abnormalities
beyond a depressed, sad and anxious (yet pleasant) affect were noted. (Tr. 757-759). Later office
notes document no other symptoms or signs, and indicate either no change or that symptoms had
decreased. (Tr. 763-765).
Mr. Pafume was seen by Dr. O’Hair, his primary care physician, on a regular basis during
2007 (and into early 2008). These notes show that depression (and other psychiatric problems) were
rarely reported (or noted). (Tr. 294, 317, 346, 364, 368, 371, 372, 376, 378, 382, 385, 387, 391).
When seen in the emergency room for treatment of pneumonia in February 2008, Mr.
Pafume did not report any psychiatric symptoms. (Tr. 421). In March 2008, when seen by Dr.
Fishman in a follow-up for hepatitis, Mr. Pafume denied depression, sleep problems, nervousness
and anxiety. (Tr. 618).
Contrary to his report to the SSA in 2008 (Tr. 209), Mr. Pafume told Dr. Paolino in 2010 that
he had quit working as a loan officer because he was terminated due to inability to do this job. (Tr.
522).
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At the time of Dr. Fontaine’s psychological evaluation of Mr. Pafume in May 2008, Mr.
Pafume told Dr. Fontaine that he spent his days looking for work, but that due to his past felony
convictions, he was having difficulty finding work. (Tr. 447). Mr. Pafume explained that although
he would apply for jobs, whenever a prospective employer did a “BCI” background check, he would
not receive a job offer. Id. Mr. Pafume also seemed to indicate that he was currently doing some
work “in the telecommunications area as an installer.” (Tr. 448).
In January 2009, Mr. Pafume told Dr. Rosenberg (who he saw in connection with
fibromyalgia treatment) that he was “working in his own construction business.” (Tr. 515).
In November 2009, Mr. Pafume told Dr. Paolino that he was currently a self-employed
construction worker. (Tr. 751). He described his typical day as getting up at 7:00 a.m. to help his
kids get ready for school, going to work until 5:00 p.m., coming home and eating, and then staying
in his room. (Tr. 752).
When seen by Dr. Fishman in January 2010 (for abdominal pain), Mr. Pafume showed no
signs of depression, anxiety, or memory problems. (Tr. 621). Dr. Fishman’s mental status
examination findings were similar in June 2010. (Tr. 623).
At the time of Dr. DuWors’ psychological evaluation of Mr. Pafume in May 2010, Dr.
DuWors noted that MMPI testing “yielded such a negative response profile that the overall testing
was seen as invalid.” (Tr. 35). MCMI findings suggested “a moderate tendency towards selfdeprecation and a consequent exaggeration of current emotional problems.” Id. Dr. DuWors noted
that in interpreting the profile, one “should be aware that the patient may have reported more
psychological symptoms than objectively exist.” Id.
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In May 2010, when Mr. Pafume saw Dr. Morrissey in connection with injuries sustained in
a recent fall, he told Dr. Morrissey that he had been working on a full-time basis doing foreclosure
cleanups with his brother. (Tr. 685).
In August 2010, Mr. Pafume told Dr. Machata that he was working in construction (selfemployed). (Tr. 887). At that time, Dr. Machata interpreted a depression screening as showing only
minimal depression. Id.
At his hearing in February 2011, Mr. Pafume stated that he met with his therapist Mr.
Keating once or twice a week. (Tr. 61). Records submitted into evidence show that in May 2010,
Mr. Keating assessed Mr. Pafume’s global functioning (currently and over the past year) at 60. (Tr.
627). In June 2010, Mr. Keating recorded essentially normal findings on mental status, other than
noting Mr. Pafume was distractable. (Tr. 629).
A.
The ALJ’s Decision
The ALJ decided this case adverse to Plaintiff at Step 5. At Step 1, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since January 1, 2005 but noted evidence in
the record of other work performed subsequently by Plaintiff. (Tr. 9). At Step 2, Plaintiff was found
to have the following severe impairments as defined in 20 C.F.R. §§ 404.1520(c) and 416.920(c):
anxiety disorder, ADHD, degenerative disc disease, COPD, fibromyalgia, right eye blindness,
Hepatitis C, right shoulder disorder, PTSD and borderline intellectual functioning. (Tr. 10). As to
RFC, the ALJ found that Plaintiff was able to perform a range of light work limited by certain
postural and environmental limitations. (Tr. 11-12). Plaintiff was also limited to work not requiring
right-eye depth perception or binocular vision, and to work involving 1-3 step tasks that is isolated
with occasional supervision. (Tr. 12). In making this finding, the ALJ determined that the
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Plaintiff’s testimony as to his limitations was not entirely credible in part because the records
indicated that Plaintiff worked after his alleged disability onset date. (Tr. 18). Finally, based on this
RFC and testimony from the VE, the ALJ rendered a no-disability finding at Step 5 that Plaintiff was
capable of performing several unskilled light and sedentary jobs that exist in significant numbers
in the economy. (Tr. 21-22).
B.
Plaintiff Has Shown No Error in the ALJ’s Evaluation of the Medical Evidence
Plaintiff’s appeal focuses on the degree of mental limitations found by the ALJ. In
particular, Plaintiff argues that the ALJ did not give enough weight to the opinions of Dr. Parsons
and Dr. Paolino and too much weight to the opinions of Dr. Paxson and Dr. Gordon.
First, as to Dr. Paolino, a treating psychiatrist, the ALJ discredited his opinions because they
were “based on [Mr. Pafume’s] reports, which were not consistent with his reported activities in the
record or observations by other sources” and “not consistent with [his] report to him [on November
23, 2009] that he was a self-employed construction worker that worked until 5 pm daily.” (Tr. 20,
752). In addition, contrary to Mr. Pafume’s assertions of disability as of January 1, 2005, he
completed a history questionnaire for Dr. Paolino in 2009 in which he identified his “current
employer” as “self employed construction” for five years. (Tr. 751). He also described a “typical
day” as “get up @ 7am help kids for school, go to work till 5pm then eat then stay in bedroom.” (Tr.
752).2 Yet, when he met with Dr. Paolino in 2010 to get an evaluation in support of his disability
application, Mr. Pafume told Dr. Paolino that he had not worked since 2007 and that he was
terminated because he was unable to do the job. (Tr. 522). However, in 2008, Mr. Pafume reported
2
Furthermore, Mr. Pafume reported to Dr. Rosenberg in 2009 that “he is working in his own construction
business,” (Tr. 515); to Dr. Morrissey in 2010 that he “is working with his brother,” “normally it is a full time job” and
that he has been out of work totally since he fell on May 25, 2010, (Tr. 685); and to Dr. Machata in 2010 that he was
“working – construction – self-employed.” (Tr. 887).
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that he was terminated in 2007 because “the company closed my position and moved to another
location.” (Tr. 209).
As to Dr. Paolino’s treatment records, the ME, Dr. Ruggiano, testified that he expected
“there to be a mountain of treatment notes” in view of the contents of Dr. Paolino’s psychiatric
evaluation that Mr. Pafume had four severe Axis I mental disorders (Ex. 27F) but that his underlying
treatment notes are few, “incomprehensible” and “say nothing.” (Tr. 27-28); see also 20 C.F.R. §
416.927(d)(3) (“[t]he more a medical source presents relevant evidence to support an opinion...the
more weight we will give that opinion”). Plaintiff also concedes in her brief that Dr. Paolino’s
underlying treatment notes are “sparse.” (Document No. 9 at p. 16).
Second, as to Dr. Parsons, he evaluated Mr. Pafume on May 26, 2009 at the request of his
attorney. (Ex. 23F). The ALJ gave Dr. Parsons’ opinions “limited weight” because they were
obtained by counsel for the sole purpose of supporting the disability application and were
“inconsistent with the findings of other sources as well as [Mr. Pafume’s] reported activities in the
record.” (Tr. 20). Again, contrary to the record, Mr. Pafume told Dr. Parsons in May 2009 that he
was unemployed for two years and “spends most of his day in his room.” (Tr. 504, 506). Yet, Mr.
Pafume told Dr. Rosenberg in February 2009 that “he is working in his own construction business.”
(Tr. 515). He also told Dr. Parsons that he was “looking for work” which is inconsistent with his
assertion of disability. (Tr. 504). Finally, in 2008, Mr. Pafume attributed his difficulty finding work
to his criminal record and not his disabilities. (Tr. 447). In her reply, Plaintiff concedes that “the
record clearly reflects inconsistency regarding [Mr. Pafume’s] self-reporting of employment.”
(Document No. 13 at p. 2).
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Here, the ALJ’s RFC assessment is supported by the opinion of Dr. Fontaine, a consultative
examining psychologist (Tr. 450); the GAF rating of 60 (moderate symptoms) rendered by Mr.
Keating, a treating therapist; and consistent with the assessments of Dr. Paxson and Dr. Gordon,
consulting psychologists, (Exs. 13F, 14F and 24F). Thus, it has adequate record support. See Castro
v. Barnhart, 198 F. Supp. 2d 47, 54 (D. Mass. 2002) (The ALJ “may reject a treating physician’s
opinion as controlling if it is inconsistent with other substantial evidence in the record, even if that
evidence consists of reports from non-treating doctors.”).
Plaintiff has not established any legal basis for reversing the ALJ’s non-disability
determination. While reasonable minds could differ as to the interpretation of the medical evidence,
the issue is not whether this Court would have reached the same conclusion as did the ALJ. “The
ALJ’s resolution of evidentiary conflicts must be upheld if supported by substantial evidence, even
if contrary results might have been tenable also.” Benetti v. Barnhart, 193 Fed. Appx. 6, 2006 WL
2555972 (1st Cir. Sept. 6, 2006) (per curiam) (citing Rodriguez Pagan v. Sec’y of HHS, 819 F.2d 1,
(1st Cir. 1987)). Rather, the issue is whether the ALJ’s RFC finding and non-disability determination
have adequate support in the record. Since they do, there is no basis upon which to reject them in
this case.
C.
Plaintiff Has Shown No Error in the ALJ’s “Paragraph B” Criteria Finding at
Step 3
In order to meet the “paragraph B” criteria for mental impairments, a claimant’s impairments
must result in at least two of the following: a marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining concentration,
persistence or pace; and/or repeated episodes of decompensation. See generally Listing 12.00
(Mental Disorders). In this case, the ALJ found that Mr. Pafume had only moderate difficulties in
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social functioning and concentration which he accounted for in his RFC finding. (Tr. 11). He also
found no restriction in activities of daily living and no episodes of decompensation. Id. Plaintiff
faults the ALJ for rejecting the opinions of Dr. Parsons and Dr. Paolino in this regard. (Tr. 512,
528). However, as noted above, the opinions of Dr. Parsons and Dr. Paolino were based in large part
on the reports of Mr. Pafume, and the ALJ did not find Mr. Pafume’s statements regarding his
limitations to be “entirely credible.” (Tr. 18). Plaintiff has not challenged the ALJ’s adverse
credibility finding and concedes that “the record clearly reflects inconsistency regarding [Mr.
Pafume’s] self-reporting of employment.” (Document No. 13 at p. 2). Since Plaintiff has shown
no error as to the ALJ’s evaluation of the opinions of Dr. Parsons and Dr. Paolino, she has also
shown no error in his evaluation of the “paragraph B” criteria. Finally, Plaintiff argues that the ALJ
had no basis in the record for his “paragraph B” findings because he did not exactly adopt the
opinions of Dr. Paxson and Dr. Gordon. (Tr. 462, 514). In particular, Dr. Paxson and Dr. Gordon
agreed that Plaintiff had only a mild difficulty in concentration but the ALJ gave Mr. Pafume “the
benefit of the doubt in assessing a moderate limitation in this area.” (Tr. 11). Plaintiff has not
identified any law that would make such an allowance in the claimant’s favor reversible error.
D.
Plaintiff Has Shown No Reversible Error in the ALJ’s Step 2 Findings
At Step 2, the ALJ found Mr. Pafume’s anxiety disorder, ADHD, PTSD and borderline
intellectual functioning to be severe mental impairments. (Tr. 10). Plaintiff contends that the ALJ
erred by failing to also find at Step 2 that Mr. Pafume suffered from a “severe” personality disorder.
At Step 2, an impairment is considered “severe” when it significantly limits a claimant’s
physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). The Commissioner
has adopted a “slight abnormality” standard which provides that an impairment is “non-severe”
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when the medical evidence establishes only a slight abnormality that has “no more than a minimal
effect on an individual’s ability to work.” Social Security Ruling (“SSR”) 85-28. Although Step
2 is a de minimis standard, Orellana v. Astrue, 547 F. Supp. 2d 1169, 1172 (E.D. Wash. 2008)
(citing Bowen v. Yuckert, 482 U.S. 137, 153-154 (1987)), it is still a standard and a standard on
which Plaintiff bears the burden of proof. See Desjardins v. Astrue, No. 09-2-B-W, 2009 WL
3152808 (D.Me. Sept. 28, 2009).
An ALJ may properly base her Step 2 finding on the absence of medical evidence supporting
a finding that a claimant suffers from a “severe medically determinable physical or mental
impairment” which “significantly limits” her physical or mental ability to do basic work activities.
20 C.F.R. § 404.1520(a)(4)(ii), (c) (emphasis added). See also Teves v. Astrue, No. 08-246-B-W,
2009 WL 961231 (D.Me. April 7, 2009) (“[A] claimant’s testimony about symptoms is insufficient
to establish a severe impairment at Step 2 in the absence of medical evidence.”). At Step 2, Mr.
Pafume bore the burden of demonstrating that he had a “medically determinable” mental
impairment(s) that significantly limited his ability to do basic work activity at the relevant time, i.e.,
prior to June 30, 2006. Id. The ALJ found that Mr. Pafume met that burden as to four mental
impairments but not as to personality disorder, and Plaintiff has shown no error in his finding.
The record is far from clear as to the presence of a personality disorder. First, neither Dr.
Parsons nor Dr. Paolino found Mr. Pafume to have a personality disorder in the reports they
prepared for Plaintiff’s counsel. (Tr. 510, 527). Dr. Ruggiano, the ME, did not testify as to the
presence of a personality disorder. (Tr. 27). Dr. DuWors assessed various forms of personality
disorder in his June 2010 report. (Tr. 40). However, Plaintiff concedes that his report was submitted
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post-hearing and not considered by either the ALJ or the ME. (Document No. 9 at p. 14).3 Plaintiff
does not explain why Dr. DuWors’ report was not submitted earlier in the process or provide any
legal analysis regarding the relevance on appeal of medical evidence presented after the ALJ hearing
and after (or at best contemporaneously with) the ALJ’s decision.
Dr. Parson and Dr. Gordon assessed a personality disorder. (Tr. 459, 514). However, as to
functional limitations, they found only a moderate difficulty in maintaining social functioning which
is consistent with both the ALJ’s “paragraph B” analysis and RFC assessment. (Tr. 11-12, 462,
514). Finally, while Dr. Fontaine assessed a personality disorder, he assessed a GAF of 60 reflecting
moderate symptoms and the possibility of “moderate difficulties dealing with supervision and coworkers within the work setting.” (Tr. 449-450). Again, these findings are consistent with the
ALJ’s findings.
Finally, even if Plaintiff could establish that the ALJ erred at Step 2, any such error would
be harmless since it is apparent from the ALJ’s decision that he accounted for Mr. Pafume’s
difficulties in social functioning. At Step 3, the ALJ found that Plaintiff had “moderate difficulties”
in social functioning, and his RFC finding limited Plaintiff to work “that is isolated with occasional
supervision.” (Tr. 11-12).
IV.
CONCLUSION
For the reasons stated above, I order that the Commissioner’s Motion for Order Affirming
the Decision of the Commissioner (Document No. 12) be GRANTED and Plaintiff’s Motion to
Reverse the Decision of the Commissioner (Document No. 9) be DENIED. Final judgment shall
enter in favor of Defendant.
3
The header on Dr. DuWors report indicates that it was faxed on February 16, 2011 which was the date the
ALJ mailed out his decision. (Tr. 4, 35).
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/s/ Lincoln D. Almond
LINCOLN D. ALMOND
United States Magistrate Judge
June 12, 2012
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