Opinion
Civil Action No. 05-10940-DPW.
March 3, 2006
MEMORANDUM AND ORDER
Ms. Brunilda Aguirre brings this action against the Commissioner of the Social Security Administration seeking review of the decision to deny her supplemental security income (SSI) benefits. Because I find that the Commissioner's decision was supported by substantial evidence, I affirm.
I. BACKGROUND
Ms. Aguirre was born on February 8, 1949. She has an eighth grade education. [Tr. 18] Ms. Aguirre's work history is not entirely clear from the record. However, it appears, and the ALJ found, that she has worked as a "trimmer" at a lamp or lighting company and as an "assembler/packer" in other factories. [Tr. 18, 22-23, 68, 70-71, 260.] Ms. Aguirre last worked in about 1993 (although at the hearing she was unsure about the year) at a pajama company trimming, folding and packing clothes. [Tr. 54-55, 68-69, 259] She testified that the primary reason she left that job after a few months was to take care of her mentally ill daughter. [Tr. 54, 260.] According to the Summary of her Federal Insurance Contributions Act (FICA) Earnings, Ms. Aguirre earned approximately $5,032, $1,041, $5,118, $7,625, $5,600, $460, and $216 for the years 1987 through 1993, respectively [Tr. 51.]
Ms. Aguirre applied for SSI benefits on August 15, 2002, alleging an inability to work since December 1, 1993 (although she claimed that the disability began October 31, 1992) due to problems with her liver, arthritis, diabetes, pain, dizziness and numbness in her arm and entire side. [Tr. 48-50, 54, 63.] Ms. Aguirre also began complaining of pain in her left shoulder in 2002. She was ultimately diagnosed with left shoulder tendinitis. [Tr. 169-71, 174, 177, 194, 208, 212, 214, 227-28, 234-35.] She received some relief from steroid injections and physical therapy. [Tr. 208, 210, 212, 214, 235-37.] In fact, on April 30, 2003, Ms. Aguirre told her doctor, Dr. Falla, that the pain in her left shoulder was better after the physical therapy, [Tr. 227], and she testified at the hearing that the pain "came back" about a month before the hearing on March 9, 2004, implying that it had gone away after the physical therapy. [Tr. 245, 265-66.] In the hearing, Ms. Aguirre complained of shoulder pain, back pain, rib cage pain and swollen, painful feet. [Tr. 264, 272.] Ms. Aguirre also has a history of arthritis, hypertension, obesity, and depression. [Tr. 169-70, 177-78, 181, 183, 193, 209, 225-28, 238-41, 245.] The diabetes and hypertension appear to be controllable by medication when Ms. Aguirre follows the recommended regimen. [Tr. 169, 170, 226.]
After considering the medical evidence and Ms. Aguirre's testimony, the ALJ denied her claim, concluding she was not "disabled" within the meaning of the Social Security Act as of when she applied on August 15, 2002 and at least through the date of the decision on July 30, 2004. [Tr. 17.] In making this determination, the ALJ followed the sequential evaluation process set out in 20 C.F.R. 416.920. See also 20 C.F.R. § 416.905.
First, the ALJ determined that Ms. Aguirre was not currently doing "substantial gainful activity". 20 C.F.R. § 416.920(a)(4)(i), (b); Tr. 20. Next, he determined that Ms. Aguirre's left shoulder tendinitis, diabetes mellitus and hypertension together amounted to severe physical impairments. 20 C.F.R. § 416.920(a)(4)(ii); § 416.921; Tr. 20. At the third step, the ALJ determined that none of Ms. Aguirre's impairments met or equaled, either singularly or in combination, any of the criteria in the Listing of Impairments. 20 C.F.R. § 416.920(a)(4)(iii), (d); § 416.925; 20 C.F.R. Pt. 404, Subpt. P, App. 1; Tr. 20.
The ALJ did not make a specific determination that her severe medical impairments met the duration requirement in 20 C.F.R. § 416.909 as required by § 416.920(a)(4)(ii). However, he proceeded to the third step so I conclude that impliedly he made such a finding. See 20 C.F.R. § 416.920(a).
In order to proceed to step four, the ALJ assessed Ms. Aguirre's "residual functional capacity." 20 C.F.R. § 416.920(4), (4)(d); § 416.945. The ALJ indicated that he considered the guidelines for evaluating pain set forth in Avery v. Secretary of Health and Human Service, 797 F.2d 19 (1st Cir. 1986), SSR 96-7p, SSR 96-3p, and 20 C.F.R. § 416.929. [Tr. 20-21.] The ALJ concluded:
[Ms. Aguirre's] general allegations that she would be completely unable to work are not found to be entirely credible in light of the degree of the reports from [her] treating and examining physicians and in view of [her] own testimony. . . . [Ms. Aguirre] does retain the residual functional capacity to perform the exertional demands of light work. Light work is defined by 20 CFR 404.1567(b) as work involving no more than 20 pounds at a time with frequent lifting carrying of objects weighing up to 10 pounds. However, the [ALJ] finds that [her] ability to perform a complete range of light work would be limited by the fact that [she] could only occasionally do any climbing, standing, crouching or crawling and was limited with regard to overhead reaching with her left upper extremity.
[Tr. 21-22.]
Next, the ALJ concluded that Ms. Aguirre's "past relevant job has been as a trimmer and as a packer/assembler." [Tr. 22.] He then noted that Ms. Aguirre's testimony at the hearing regarding her past work as a trimmer "indicated that that job could be performed mostly by sitting and did [not] [ sic] require much lifting." [Tr. 22; see Tr. 260-61.] Consequently, the ALJ concluded that "that job was of a sedentary exertional level." [Tr. 22] Citing to the "Work History Report" that Ms. Aguirre filled out on September 3, 2002, the ALJ concluded that her past relevant work as a packer/assembler "was of a sedentary and light exertional level." [Tr. 22.]
The ALJ did not cite to the Work History Report with respect to Ms. Aguirre's past job as a trimmer. In that report, Ms. Aguirre indicated that she had worked at a lighting company factory "sitting on a chair working at a machine, cutting materials to make lamps" for 1 year from 1988 through 1989. [Tr. 68, 70.] In the hearing, Ms. Aguirre indicated that before working at the pajama company, she had worked for a company that made lamps trimming the material to make lamp shades. [Tr. 260.] Ms. Aguirre indicated at the hearing that she worked there for about two years in 1989 or 1990, although she was uncertain about the dates. [Tr. 260-61.]
Finally, for step four, the ALJ compared his findings with respect to Ms. Aguirre's "residual functional capacity" to the physical demands of her "past relevant work," concluding that Ms. Aguirre is not disabled because she "would be capable of performing and returning to her past relevant work as a trimmer and assembler/packer." [Tr. 22.] 20 C.F.R. § 416.920(a)(iv). In drawing this conclusion, the ALJ noted that Ms. Aguirre's "additional limitations of only be[ing] able to perform . . . stooping, crouching, climbing or crawling ["occasionally"] and being limited in the use of her left upper extremity and doing any overhead reaching would not prevent [her] from performing her pa[s]t relevant work as a trimmer and as a[n] assembler/packer." [Tr. 22.]
The Appeals Council subsequently denied Ms. Aguirre's timely request for review, and the decision to deny benefits became that of the Commissioner.
II. STANDARD OF REVIEW
The Commissioner's decision to deny social security benefits must be upheld unless she has "committed a legal or factual error in evaluating a particular claim." Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 16 (1st Cir. 1996).
The Social Security Act specifically mandates that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971). The standard is met when "a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 223 (1st Cir. 1981) citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (other citations omitted). This standard "gives the agency the benefit of the doubt, since it requires not the degree of evidence which satisfies the court that the requisite fact exists, but merely the degree that could satisfy a reasonable factfinder." Penobscot Air Services v. Federal Aviation Administration, 164 F.3d 713, 718 (1st Cir. 1999) citing Allentown Mack Sales Services, Inc. v. National Labor Relations Board, 522 U.S. 359, 377 (1998).
In reviewing the record for substantial evidence, a court must keep in mind that "[i]ssues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the" agency. Rodriguez, 647 F.2d at 222. In other words, a reviewing court is to "accept the findings and inferences drawn by the ALJ, whatever they may be, unless they are `irrational'." Bath Iron Works Corp. v. U.S. Department of Labor, 336 F.3d 51, 56 (1st Cir. 2003) citing Barker v. U.S. Department of Labor, 138 F.3d 431, 438 (1st Cir. 1998).
"[T]he resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [the Commissioner], not for the doctors or for the courts."Rodriguez, 647 F.2d at 222. Thus, while the reviewing court must take into account contradictory evidence, "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Penobscot, 164 F.3d at 718 (internal citations omitted). Nonetheless, "deference owed to [an] agency `cannot be allowed to slip into a judicial inertia,'" because reviewing courts are not "`to stand aside and rubber stamp'" the agency's decision. Mayburg v. Secretary of Health and Human Services, 740 F.2d 100, (1st Cir. 1984) quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1964) and NLRB v. Brown Food Store, 380 U.S. 278, 291 (1964).
Unlike factual findings, questions of law are reviewed de novo. Splude v. Apfel, 165 F.3d 85, 88 (1st Cir. 1999). This means "`[t]he legal issues presented — that is, the identification of governing legal standards and their application to the facts found — are, by contrast to factual findings, for the courts to resolve, although even in considering such issues the courts are to give some deference to the agency's informed judgment' in applying statutory terms if the statute is silent or ambiguous on the issue." N.L.R.B. v. Beverly Enterprises — Massachusetts, Inc., 174 F.3d 13, 22 (1st Cir. 1999) quoting Indiana Fed'n of Dentists, 476 U.S. 447, 454 (1986) (alterations omitted).
III. DISCUSSION
Ms. Aguirre argues that the ALJ committed two errors: (1) by finding that she is capable of performing her past relevant work and (2) by failing to follow the proper standards for pain evaluation.
A. Past Relevant Work
Ms. Aguirre's first argument is in effect a challenge to the ALJ's finding that Ms. Aguirre's past relevant work "has been as a trimmer and as a packer/assembler," and his findings that her work as a trimmer "was of a sedentary exertional level" while her work as a packer/assembler "was of a sedentary and light exertional level" without reference to vocational expert evidence. [Tr. 22.]
If I were to find that the ALJ incorrectly ascribed any past relevant work to Ms. Aguirre, the mandatory finding of "disabled" in § 416.962(a)(b) would apply. Compare Mills v. Apfel, 244 F.3d 1, 2, 8 (1st Cir. 2001) (where the claimant, who was 43 at the time of the ALJ's decision, argued on appeal that the ALJ should not have considered whether she could return to her prior jobs, since they had been sporadic and outside the scope of relevant past work as defined by 20 C.F.R. § 416.965(a), but should have instead required the Commissioner to show that there were other jobs reasonably available to her that she could perform). However, in this appeal Ms. Aguirre's counsel does not make such an argument. Rather, Ms. Aguirre requests that her claim "should, at least, be remanded to the Social Security Administration to clarify the nature of her past work and to determine whether the work represented substantial gainful activity." [Plaintiff's Memorandum, p. 10-11.]
"If you have a severe, medically determinable impairment(s) (see §§ 416.920(c), 416.921, and 416.923), are of advanced age (age 55 or older, see § 416.963), have a limited education or less (see § 416.964), and have no past relevant work experience (see § 416.965), we will find you disabled. If the evidence shows that you meet this profile, we will not need to assess your residual functional capacity or consider the rules in appendix 2 to subpart P of part 404 of this chapter." 20 C.F.R. § 416.962(b) (emphasis supplied).
The ALJ determined that Ms. Aguirre had severe, medically determinable impairments. [Tr. 20.] Ms. Aguirre is "of advanced age" because she was 55 at the time of the hearing. 20 C.F.R. § 416.963(b) ("We will use each of the age categories that applies to you during the period for which we must determine if you are disabled."); Otero Suarez v. Barnhart, Civ. No. 05-792 E, 2005 WL 2305012, *2 (C.D.Cal. Sept. 21, 2005) (determining age as of the time of the hearing). And, her eighth grade education would be considered "limited education" since the regulations indicate that a formal education at a "7th grade through the 11th grade level" is "generally considered" a "limited education." 20 C.F.R. § 416.964(b)(3). Thus, if Ms. Aguirre had no past relevant work experience, the regulations deem her disabled without having to consider her residual functional capacity and whether she could make an adjustment to other work at stage five of the sequential evaluation.
As an initial matter, the Commissioner argues that Ms. Aguirre is barred from raising the issue that she did not have "past relevant work experience" now for the first time. The Commissioner contends that "the issue of whether Plaintiff's past positions constituted substantial gainful activity was not raised either before the ALJ at the hearing or before the Appeals Council."
I note, however, that on the form requesting review of the ALJ's hearing decision, Ms. Aguirre indicated that the reasons for her request were set out in the "attached letter fax from attorney." [Tr. 13.] That letter/fax does not appear to be included in the Administrative Record, but Ms. Aguirre elected not to file a Reply Brief correcting this contention should it be incorrect. Consequently, I find that neither Ms. Aguirre, nor her counsel, Maria L. Nunez, raised this issue with the ALJ or the Appeals Council.
The only argument raised by Ms. Aguirre's counsel in the hearing is that as of at least her 55th birthday, Ms. Aguirre is "gridded pursuant to 201.01" because her left shoulder tendinitis prevents her from doing all of her prior work, which required bilateral dexterity and use of the entire arm. [Tr. 261-62.] I understand this statement to refer to Rule 201.01 in Appendix 2 to Subpart P of Part 404 (Medical-Vocational Guidelines). See 20 C.F.R. Pt. 404, Subpt. P, App. 2. The rules in Appendix 2 are to be applied "in cases where a person is not doing substantial gainful activity and is prevented by a severe medically determinable impairment from doing vocationally relevant past work." 20 C.F.R. § 416.969. Since the ALJ found that Ms. Aguirre could do her vocationally relevant past work at stage four of the sequential evaluation, he did not need to proceed to step five or consider the rules in Appendix 2. In any event, Ms. Nunez's argument at the hearing goes to the issue whether Ms. Aguirre could perform her past relevant work, not whether any of her past work is relevant.
The First Circuit has made clear that "the failure of an applicant to raise an issue at the ALJ level" bars the claim that the ALJ erred with respect to that issue. Mills, 244 F.3d at 8. Even in the Complaint filed in this action, Ms. Aguirre pleads that she "has been employed in the relevant past as packer/assembler and trimmer." [Complaint, ¶ 12.] Thus, I find that the issue has been waived.
"Other courts that have confronted this issue have not reached a consensus about the First Circuit's position that an issue is waived when a claimant fails to present it to an ALJ."Logan v. Barnhart, 72 Fed.Appx. 488, 491 (7th Cir. 2003)comparing Bechtold v. Massanari, 152 F.Supp.2d 1340, 1347 (M.D.Fla. 2001) (issue deemed waived when not raised in administrative hearing) with Kokal v. Massanari, 163 F.Supp.2d 1122, 1129 (N.D.Cal. 2001) (claimant who was not represented by counsel at administrative hearing did not waive issue by failing to raise it before ALJ). I am, of course, bound by First Circuit law.
Were I to consider that Ms. Nunez's "gridded" comment somehow put the ALJ on notice of this issue, I find that there is "substantial evidence" supporting the ALJ's decision that Ms. Aguirre's past relevant work included both her work as a trimmer and as an assembler/packer. To be sure, Ms. Aguirre's work history is not entirely clear from the record. Ms. Aguirre testified that she had worked as a "trimmer" for about two years in 1989 or 1990. [Tr. 260-61.] Ms. Aguirre's FICA Earnings Report indicates that she earned approximately $5,118 and $7,625 in 1989 and 1990, for monthly average earnings of $426 and $635, respectfully. [Tr. 51.] According to 20 C.F.R. § 416.974(2)(b)(2), average monthly earnings of more than $300 during the 1980s and more than $500 during the 1990s "will ordinarily show that [the claimant has] engaged in substantial gainful activity." Ms. Aguirre indicated in her 2002 Work History Report that she had worked at a lighting company factory "sitting on a chair working at a machine, cutting materials to make lamps" for 1 year from 1987 through 1988. [Tr. 68, 70.] The Commissioner points to these dates, as opposed to those mentioned in Ms. Aguirre's testimony. Since Ms. Aguirre earned less than an average monthly income of $190 in 1988, that "ordinarily show[s] that [she did] not engage in substantial gainful activity" in 1988. 20 C.F.R. § 416.974(b)(3). Although Ms. Aguirre did earn above the monthly average earnings in 1987, triggering the presumption of "substantial gainful activity," 1987 is more than fifteen years before the hearing and SSI decision-makers do not usually consider the work the claimant did more than fifteen years before the time he or she makes the disability determination. 20 C.F.R. § 416.965(a); Otero Suarez v. Barnhart, Civ. No. 05-792 E, 2005 WL 2305012, *2 (C.D.Cal. Sept. 21, 2005) (measuring the fifteen year period from the date the ALJ adjudicates the claim). Thus, Ms. Aguirre's work in 1987 and 1988 would not ordinarily be considered substantial gainful activity.
Despite the conflicting dates, I find that Ms. Aguirre's testimony at the hearing provided substantial evidence to support the ALJ's finding that she engaged in the prior substantial gainful work of "trimming" in the relevant past. While she was not entirely clear as to the years she worked as a trimmer in the hearing, the transcript suggests no hesitancy on the fact that her trimming job at the lamp shade factory was the job before her last one at the pajama factory. In addition, I note that in the Work History Report, Ms. Aguirre seems to have written "Cornell Manufacturing" in the second and third lines after the pajama company, but then she crossed it out on the second line and wrote "light company" instead. [Tr. 68.] Consequently, it would not be unreasonable to rely on her testimony rather than on the dates in the Work History Report. In any event, "the resolution of conflicts in the evidence . . . is for [the Commissioner], not . . . for the courts." Rodriguez, 647 F.2d at 222.
With respect to Ms. Aguirre's position as an assembler/packer, the ALJ specifically pointed to her Work History Report from 2002, which indicates that she worked at Cornell Manufacturing doing "assembly work, assembled and packing" for 1 year from 1988 through 1989. [Tr. 68, 71.] While she did not earn above the minimum in 1988, as noted above, she did earn enough in 1989 for the presumption of substantial gainful activity to apply for that calendar year. Consequently, I also find that there are sufficient facts to support the ALJ's finding that Ms. Aguirre engaged in the prior work of "assembling/packing" in the relevant past.
To the extent that Ms. Aguirre is also arguing that the ALJ erred in determining that the nature of her past relevant work was of a sedentary exertional level (trimmer) and of a light exertional level (assembler/packer), I am unpersuaded. Ms. Aguirre's uncontested testimony and Work History Report about her duties in her past jobs certainly amounted to substantial evidence allowing the ALJ to make a reasonable decision about "the physical and mental demands of [her] past relevant work." 20 C.F.R. § 416.920(4)(f). In addition, I note that, as the Commissioner points out, "at step four, the burden was on claimant to demonstrate inability to perform [her] former work, and, specifically, to clarify the nature of [her] former work to support [her] contention that it was too short in duration to be relevant." Dudley v. Secretary of Health and Human Services, 816 F.2d 792, 794 (1st Cir. 1987); Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 17 (1st Cir. 1996).
Finally, I note that Ms. Aguirre also contends in this appeal that the ALJ's "failure to call a Vocational Expert to clarify the nature of the plaintiff's past work constitutes an error of law." [Plaintiff's Memorandum, p. 10.] Ms. Aguirre cites to no authority for this proposition, nor did I find any. On the contrary, the regulations indicate that the ALJ:
may use the services of vocational experts or vocational specialists, or other resources, such as the `Dictionary of Occupational Titles' and its companion volumes and supplements, published by the Department of Labor, to obtain evidence we need to help us determine whether you can do your past relevant work, given your residual functional capacity.20 C.F.R. § 416.960(b)(2) (emphasis supplied). This option is in contrast to the direction that the ALJ " will ask you for information about work you have done in the past." Id.
B. Pain Determination
Ms. Aguirre argues that the ALJ's second error is that he failed to make adequate findings regarding her claim of physical pain. Ms. Aguirre does not appear to contest the ALJ's finding that none of her impairments met or equaled, either singularly or in combination, any of the criteria in the Listing of Impairments. Nor does Ms. Aguirre appear to contest the ALJ's finding that her diabetes and hypertension could be controlled and did not reduce her residual functional capacity below the level determined by the ALJ. Rather, Ms. Nunez's argument during the hearing and on appeal rests on whether the ALJ properly considered Ms. Aguirre's pain in determining her residual functional capacity, which in turn determines whether she can still do her prior relevant work.
"Implicit in a finding of disability is a determination that existing treatment alternatives would not restore a claimant's ability to work. The regulations specifically provide that `to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work.' 20 C.F.R. §§ 404.1530(a), 416.930(a). If a claimant does not follow prescribed treatment `without a good reason,' he or she will not be found to be disabled. Id. at §§ 404.1530(b), 416.930(b)[.]" Tsarelka v. Secretary of Health and Human Services, 842 F.2d 529, 534 (1st Cir. 1988). Consequently, I find that the ALJ's determination that Ms. Aguirre's diabetes and hypertension were controllable and not further restricting was reasonable.
"Residual functional capacity is the most [the claimant] can still do despite [his or her] limitations." 20 C.F.R. § 416.945(a)(1). In determining a claimant's residual functional capacity, the ALJ is to "consider all of [the claimant's] medically determinable impairments . . ., [even those] that are not `severe'." § 416.945(a)(2). "Pain or other symptoms may cause a limitation of function beyond that which can be determined on the basis of the anatomical, physiological or psychological abnormalities considered alone[.]" § 416.945(e).
In Avery, the First Circuit instructed adjudicators "to investigate all avenues presented that relate to subjective complaints, including the claimant's prior work record and information and observations by treating and examining physicians and third parties" when considering evidence of pain or other symptoms. Avery, 797 F.2d at 28. Careful consideration is to be given such matters as:
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;
5. Functional restrictions; and
6. The claimant's daily activities.
Id. at 29. The ALJ listed these considerations at Tr. 20. He also acknowledged that "[i]n reaching a conclusion about the claimant's residual functional capacity [he] must consider the effect of the claimant's alleged pain in accordance with the criteria set forth in" SSR 96-7p and 20 C.F.R. § 416.929. With respect to allegations of pain, SSR 96-7p instructs that:
It is not sufficient for the adjudicator to make a single, conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.
. . .
The finding on the credibility of the individual's statements cannot be based on an intangible or intuitive notion about an individual's credibility.
In this case, the ALJ drew the following conclusion with respect to Ms. Aguirre's credibility.
[T]he claimant's general allegations that she would be completely unable to work are not found to be entirely credible in light of the degree of the reports form the claimant's treating and examining physicians and in view of the claimant's testimony.
If this were the extent of his discussion on the topic, he certainly would have failed to meet the required standard. However, he justified his conclusion with the following observations:
• "she testified that she can do the laundry and take care of her daughter";
• "she has not had concentration problems caused by pain";
• she had "made good progress with physical therapy regarding her le[f]t shoulder" and was "discharged from physical therapy in April 2003";
• as of April 2003 she was only complaining of pain at night, although she did have difficulty reaching behind her back or doing her hair; [see Tr. 208, 237]
• when the pain recurred in March 2004 it caused a decrease in her range of motion in her left arm;
• Ms. Aguirre is right hand dominant and the pain is in her left upper extremity (her non-dominant extremity);
As part of the discussion of the ALJ's second error, Ms. Aguirre argues that the ALJ "misrepresent[ed] portions of [her testimony] to support his finding that [her] allegations of pain are not entirely credible." [Id.] Specifically, Ms. Aguirre identifies that the ALJ incorrectly pointed to the fact that "she can do the laundry and take care of her daughter." [Tr. 21.] Earlier in the decision, however, the ALJ was more specific about her ability to do laundry stating that Ms. Aguirre had testified that "she has no problems doing laundry or lifting dry clothes. She stated that she does have problems lifting wet clothes. She stated that she loads the washing machine using her right upper extremity." [Tr. 18; compare Tr. 270-71.] Consequently, I do not deem the alleged misstatement on page 21 of his decision to be material or to reflect misunderstanding by the ALJ.
Having made these observations and apparently having drawn the conclusion that her diabetes and hypertension would not limit her residual functional capacity, the ALJ then adopted Dr. Brissette's May 2003 residual functional capacity evaluation, which was based on his review of Dr. Yufit's April 16, 2003 consultive exam. In this evaluation, Dr. Brissette "indicated that [Ms. Aguirre] could occasionally lift 20 pounds, frequently lift 10 pounds, could stand and/or walk about 6 hours in an 8-hour workday and could sit with normal breaks for about 6 hours in an 8-hour workday." [Tr. 20] Dr. Brissette also "indicated that [she] would be limited to only occasionally climbing, stooping, crouching and crawling," as a result of her "back and shoulder issues," and that she "would only occasionally be able to reach with her le[f]t arm above the left shoulder level secondary to her shoulder pain." [Tr. 20; see 201-06.]
During the consultive exam, Ms. Aguirre was still complaining of lower back pain and left shoulder pain, which apparently improved within the next few weeks because on April 30 she told Dr. Falla that the pain in her left shoulder was better after the physical therapy. [Tr. 208-10, 227.] Dr. Yufit determined that she did not have muscle atrophy and that she had normal range of motion in her right shoulder and back. In fact, her musculoskeletal exam was within normal limits except for her left shoulder. [Tr. 210.]
i. Shoulder Pain: I find that the ALJ's credibility determination with respect to Ms. Aguirre's shoulder pain was not so lacking as to be an error of law or unsupported by the facts. The ALJ thoroughly questioned Ms. Aguirre regarding her "daily activities, functional restrictions, . . . prior work record, and frequency and duration of the pain, . . . in conformity with the guidelines set out in Avery regarding the evaluation of subjective symptoms." Frustaglia v. Secretary of Health and Human Services, 829 F.2d 192, 195 (1st Cir. 1987). And in his decision, the ALJ specifically considered the onset and duration of the shoulder pain, the treatment and relief she received for her shoulder pain in the past, and the functional restrictions measured by her doctors in the past. In any event, the ALJ determined that Ms. Aguirre's ability to perform a range of light work would be "limited with regard to overhead reaching with her left upper extremity." This is reasonable and supported by substantial evidence. See id. ("Although more express findings, regarding . . . pain and credibility, than those given here are preferable, we have examined the entire record and their adequacy is supported by substantial evidence[.]")
Ms. Aguirre testified that her ability to do household chores was limited as a result of the pain in her left shoulder. However, these assertions and her testimony that she could not carry anything because of the shoulder pain, [Tr. 262], must be considered in light of the fact that she intended to return to physical therapy, [Tr. 264], and that she responded well in the past to physical therapy and steroid injections. See Tsarelka v. Secretary of Health and Human Services, 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."); 20 C.F.R. § 416.930. While Dr. Jaslow diagnosed her with "type III acromion" in February 2003 and Dr. Yufit diagnosed her with "left shoulder pain secondary to acromioclavicular joint disease" in April 2003, [Tr. 210, 212], her pain did improve later in April 2003 and seems to have gone away prior to March 2004. [Tr. 227, 237, 265-66.] Consequently, I find the ALJ's arguably conservative conclusion, based on Dr. Brissette's 2003 pre-improvement assessment, that Ms. Aguirre's ability to perform a range of light work would be "limited with regard to overhead reaching with her left upper extremity," even if she followed the recommended treatment, is supported by substantial evidence.
According to Ms. Aguirre's testimony, her daughter helps around the house since she needs help with just about every household chore. [Tr. 263, 266.] Sometimes the pain in her left shoulder makes it difficult to make her bed, lift pots and pans, sweep or vacuum, and even get dressed. [Tr. 266-67, 270.] She can load laundry with her right arm without a problem, but her daughter helps her hang up the wet clothes. [Tr. 270-71.]
While the ALJ's conclusion regarding Ms. Aguirre's residual functional capacity in light of her shoulder issues is reasonable and supported by substantial evidence, noticeably absent from the determination of Ms. Aguirre's residual function capacity is any mention of Ms. Aguirre's allegations about pain in her back, rib cage and feet.
ii. Back Pain: In summarizing the history of Ms. Aguirre's case, the ALJ referenced the medical evidence disclosing Ms. Aguirre's back issues. [Tr. 18, 19.] As the ALJ noted, medical records from May and October 2000 include spine x-rays showing that Ms. Aguirre suffered from mild or moderate facet atrophy in her back. [Tr. 18.] In December 2001 and January 2002, Dr. Falla diagnosed her as suffering from a "back sprain." [Tr. 183, 188.] In April 2003, Dr. Yufit reported that she complained of "lower back pain, aching in nature" that did not interfere with her ability to bend or walk, but which was most prominent when she went down stairs and sat for more than one hour. [T. 208.] He diagnosed her with "spondylitis," an inflammatory arthritis that primarily affects the spine, and found that she had "facet osteoarthritis at LF-S1 bilaterally." [Tr. 210-11.] And in March 2004, Dr. Falla again diagnosed her with a "[left] neck/upper back sprain," recommending physical therapy. [Tr. 19, 245.]
Despite this history of documented back pain, the ALJ did not make any express reference to ongoing back pain in discussing Ms. Aguirre's residual function capacity. Nevertheless, I do not find that either remand or a finding of disabled is appropriate as a result of this omission because the ALJ adopted Dr. Brissette's residual capacity conclusion that was based on Dr. Yufit's examination, which took into account Ms. Aguirre's low back pain and his opinion that she suffered from "spondylitis" and "facet osteoarthritis at LF-S1 bilaterally." Consequently, the ALJ's determination that Ms. Aguirre "retain[ed] the residual functional capacity to perform the exertional demands of light work" subject to the limitation that she "could only occasionally do any climbing, standing, crouching or crawling" is supported by substantial evidence.
In the hearing, Ms. Aguirre testified that sometimes she has difficulty sitting and doing household chores, and that everyday she has to lie down for about three hours because of the pain in her back. [Tr. 267.]
iii. Feet and Rib cage Pain: During the hearing, Ms. Aguirre testified that she had just recently started having periodic pain in her rib cage that lasted for at least two days and made it hard for her to breathe. [Tr. 272.] She testified that she had not been reporting this pain to the doctor. Similarly, Ms. Aguirre testified that "now" her feet also get swollen and painful, but that she had not told her doctor about her feet either. [Tr. 264.] The ALJ did not make reference in his decision to this feet and rib cage pain, other than a reference early in his decision to a medical note from May 2001 indicating that Ms. Aguirre complained of feet pain at night. [Tr. 18.] Nevertheless, I do not consider this a reversible error because in determining whether a claimant is disabled "there must be medical signs and laboratory findings which show that [the claimant] ha[s] a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged[.]" 20 C.F.R. § 416.929(a); see also SSR 96-7p ("No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms.").
"Regarding any other problems" (that is other than the shoulder pains, diabetes and hypertension), the ALJ noted "the consultative exam performed by Dr. Yufit indicated that a normal physical examination except for the claimant's left shoulder." [Tr. 21-22.] He also observed that he "must consider SSR 96-3p as this ruling provides that a symptom alone cannot be found to affect the claimant's ability to perform basic work related activities." [Tr. 21.] After citing this principle, the ALJ then stated that "[o]nly after the requisite relationship between the medically determinable impairment and the alleged symptoms are established [can I consider] the intensity and limiting effects of the symptoms . . . along with the objective medical evidence and other evidence in determining whether the claimant's impairment or combination of impairments is disabling." [Tr. 21.] I understand this paragraph to be an explanation of why the ALJ did not consider the newly developed feet and rib cage pain. He determined that because there was no medical evidence linking the new pain to a medically determinable physical or mental impairment, he would not consider it in evaluating Ms. Aguirre's residual functional capacity. Consequently, while it would have been preferable for the ALJ to articulate more clearly his reasons for not addressing explicitly the feet and rib cage pain, I find that his decision to evaluate Mrs. Aguirre's residual functional capacity without express reference to the newly developed and medically undocumented feet and rib cage pain to be reasonable.
This characterization is not entirely complete. In Dr. Yufit's April 16, 2003 report, he indicated that Ms. Aguirre was complaining of "lower back pain, aching in nature" and he diagnosed her spondylitis.
SSR 96-3p restates and clarifies the proper way to conduct "[t]he evaluation of whether an impairment(s) is `severe' that is done at step 2 of the applicable sequential evaluation process set out in" 20 C.F.R. § 416.920. According to this Social Security Ruling, "[s]ymptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect an individual's ability to do basic work activities unless the individual first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s)." This instruction is essentially a restatement of 20 C.F.R. § 929(b).
To the degree that Ms. Aguirre's diabetes might be considered a medically determinable physical impairment that could reasonably cause swelling or pain of the feet, the ALJ found that Ms. Aguirre's diabetes "is partially controlled through medications" and could be controlled if she complied with Dr. Falla's recommended drug regime. [Tr. 21-22.]
C. Overall Determination
After determining Ms. Aguirre's residual functional capacity, the ALJ concluded that the "additional limitations of only be[ing] able to perform stooping, crouching, climbing or crawling ["occasionally"] and being limited in the use of her left upper extremity and doing any overhead reaching would not prevent the claimant from performing her pa[s]t relevant work." [Tr. 22.] Ms. Aguirre has not challenged this finding. Consequently, I uphold the ALJ's determination that Ms. Aguirre is not disabled for the purpose of SSI benefits.
III. CONCLUSION
For the reasons set forth more fully above, I GRANT the Defendant's motion to affirm and I DENY the Plaintiff's motion for summary judgment.