Opinion
CIVIL ACTION NO. 06-10815-RGS.
April 4, 2007
MEMORANDUM AND ORDER ON APPELLANT'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
Robert F. MacDonald, Jr., appeals the denial by the Social Security Administration (SSA) of his application for an award of long-term Social Security disability insurance benefits. MacDonald claims to suffer from debilitating back pain as a result of injuries sustained in a motor vehicle accident on October 15, 2003. MacDonald's application was rejected by the SSA on March 29, 2004, and again after a request for reconsideration on July 10, 2004. On September 15, 2005, an appeal of the denial was heard by Administrative Law Judge (ALJ) Robert Halfyard. On January 11, 2006, ALJ Halfyard, in a written decision, found that MacDonald had the capacity to perform light unskilled work and was therefore not disabled within the meaning of the Social Security Act. On March 14, 2006, the Appeals Council denied MacDonald's request for further review, affirming the ALJ's opinion as the final decision of the Commissioner.
On May 5, 2006, MacDonald brought this action in the district court pursuant to 42 U.S.C. § 405(g). MacDonald argues that the ALJ ignored the weight of the medical evidence in denying his claim that he is totally disabled by a spinal injury. On December 19, 2006, the Commissioner filed a cross-motion seeking an affirmance of the ALJ's decision. The court heard oral argument on February 22, 2007. For the reasons explained below, the Commissioner's decision will be affirmed.
MEDICAL BACKGROUND
MacDonald is forty-eight years old and married. He has one child, a seventeen-year old daughter. MacDonald last worked as a furniture deliveryman. On October 15, 2003, he injured his left elbow and back in a low-impact automobile collision. MacDonald did not seek immediate medical attention. However, on October 17, 2003, he presented at the emergency room of the South Shore Hospital complaining of "back pain, numbness and tingling to his buttocks." MacDonald has not worked since the date of the accident. His major daily activity is driving his daughter to and from work.
The following is summarized from MacDonald's medical records. On November 1, 2003, MacDonald underwent lumbar and thoracic magnetic resonance imaging (MRI) tests. These revealed a possible T10 compression fracture and herniated disks with nerve root compression at L4-5 and L5-S1. MacDonald saw Dr. Stephen Johnson at South Suburban Neurosurgical Associates on November 3, 2003. Dr. Johnson prescribed physical therapy, muscle relaxants, and Percocet as a painkiller.
On November 7, 2003, Dr. Michael Ayers reviewed MacDonald's MRIs and conducted a physical examination. Dr. Ayers found that MacDonald "walks well . . . the pain that he states is mostly anterior." Dr. Ayers found the MRI to reveal "some evidence of bony narrowing towards T10, suspicious for a compression fracture." Dr. Ayers recommended "conservative treatment and patience" and encouraged MacDonald to "continue being up active and walking as much as he can." Dr. Ayers warned MacDonald to use the Percocet only "at night and use it judiciously." In January of 2004, Dr. William Shucart of Tufts New England Medical Center found MacDonald to have a "very mild partial fracture of the T10 vertebral with no significant collapse or displacement." Dr. Shucart encouraged MacDonald to undergo physical therapy with the observation that "usually in three to four months the pain gets considerably better."
On January 21, 2004, MacDonald saw Dr. Michael DiTullio, a colleague of Dr. Johnson. Dr. DiTullio reviewed the November MRI results and conducted a physical examination. Dr. DiTullio concluded that MacDonald had degenerative disc disease, but retained a "normal gait" with mobility in the range of 95 to 100 percent of normal in the cervical area of his spine and 90 percent of normal in the lumbar area. Dr. DiTullio recommended a pain clinic referral and physical therapy and ordered an updated MRI of MacDonald's cervical spine region.
MacDonald underwent the new MRI on February 5, 2004. It confirmed degenerative disc disease from C4 through C7 with a narrowing of the neural foramina. On March 15, 2004, MacDonald presented at Brockton Hospital complaining of headaches, dizziness, weakness, pain, depression, and anxiety. He was treated with an epidural injection for "lumbar radiculopathy."
The neural foramina is an opening between vertebrae through which nerves leave the spine and extend to other parts of the body.
On March 24, 2004, Dr. Virginia E. Byrnes, an independent medical examiner reviewed MacDonald's medical records and completed a SSA Residual Functional Capacity (RFC) form and a Massachusetts Disability Determination Services (DDS) evaluation. Dr. Byrnes was of the opinion that MacDonald's back injury limited him to work at a "sedentary exertional level." On July 6, 2004, Dr. Mark Colb, a second independent examiner, similarly concluded that MacDonald was limited to work at "the light exertional level."
MacDonald continued to treat with Dr. DiTullio during visits on April 6, June 10, July 8, and July 31 of 2004. During Dr. DiTullio's examinations, MacDonald was found to retain 90 to 95 percent of mobility in the lumbar, thoracic, and cervical areas of his spine, and to have no difficulty demonstrating straight leg raising. Dr. DiTullio concluded that there was no need for neurosurgical intervention. On July 31, 2004, Dr. DiTullio opined that MacDonald had been disabled from October 15, 2003, until June 10, 2004, and presently exhibited a whole person 12 percent impairment. Dr. DiTullio was also of the opinion that MacDonald had "not yet reached a medical end result" and retained a "good prognosis for the future." Dr. DiTullio recommended that MacDonald not return to his previous employment as a furniture deliveryman as he "should avoid lifting over thirty pounds, prolonged postural fixation, repetitive bending, or excessive spinal loading."
The straight leg raising test (Lasègue's sign), which is performed by raising the lower extremity and dorsiflexing the foot, is classically associated with the reproduction of ipsilateral radicular pain secondary to nerve root compression by a herniated lumbar disc, presumably by stretching the compressed ipsilateral nerve root. The test result is positive when pain is produced. Most patients with a true positive straight leg raising sign complain of excruciating sciatica-like pain in the leg at 30 to 40 degrees of elevation. See Robert L. Bratton, M.D., American Family Physician, Vol. 60/No. 8 (November 15, 1999).
On December 8, 2004, MacDonald visited the Spine Center at New England Baptist Hospital on the recommendation of his primary care physician. Dr. Janet Limke noted that MacDonald reported his pain as a 7/10, but a 2/10 when taking pain medication. Based on MacDonald's reporting, Dr. Limke gave him an Oswestry score of 31/45. Dr. Limke emphasized to MacDonald "the importance of working through pain to restore full function to the spine." Dr. Limke suggested a more aggressive course of physical therapy, that "he should attend therapy at Dedham Health and Athletic Club three times a week for six to eight weeks . . . and to improve flexibility through tae chi or yoga." She also advised MacDonald to "use the OxyContin only temporarily to help him achieve a higher level of function."
The Oswestry Low Back Pain Disability Index utilizes a patient questionnaire which contains six statements (denoted by the letters A through F) in each of ten sections. The questions concern impairments like pain, and the ability to cope with such things as personal care, lifting, reading, driving, and recreation. For each section, the patient chooses the statement that best describes their status. The designers of the test interpret "percentage of disability" scores in this manner: 0% to 20% — minimal disability; 20% to 40% — moderate disability; 40% to 60% — severe disability; 60% to 80% — crippled; and 80% to 100% — bed bound (or exaggerating symptoms).
One week prior to the hearing before the ALJ, MacDonald saw Dr. Joseph Zolot for the first (and only) time. Dr. Zolot obtained a medical history and conducted a physical examination. Dr. Zolot diagnosed MacDonald with a "chronic mechanical back pain condition." He found that MacDonald had "at this point, no chance of returning to work due to a decreased range of motion of the spine, severe and constant pain, an inability to sit for more than 15-20 minutes, no lifting over five pounds, and the need for twenty minute breaks every hour from any sitting position." Dr. Zolot wrote that MacDonald was "totally disabled for any gainful employment at the time of the evaluation." Dr. Zolot opined that "this condition will last at least 12 months. His prognosis is poor for further improvement into the future that would allow him to be gainfully employed." Dr. Zolot also offered the opinion that MacDonald's medical condition "meets" the criteria for SSA Disability 1.04, Disorders of the Spine.
In completing his benefits application, MacDonald stated that he had "degenerative herniated disks in [his] back and neck," and that he had undertaken physical therapy "3x per week for six months until they came to the conclusion that it wasn't helping me." MacDonald reported that pain affects his ability to concentrate and that he was always fatigued. In an "Activities of Daily Living" form completed on March 26, 2004, MacDonald stated that he drove himself to physical therapy three times a week, watched television "a few hours a day . . . [a] couple at night," and read six hours a day, with no trouble concentrating. MacDonald also stated that his social activities consisted of "going out to eat or visit [a] couple times a month," and meeting friends "once or twice a month to watch sports." MacDonald said that he had pain twenty-four hours a day, and "ha[d] trouble getting dressed or getting in or out of a car."
THE HEARING
MacDonald testified at the hearing. The ALJ also heard the testimony of Jeff Goldfarb, a vocational expert (VE). The ALJ asked Goldfarb to list jobs in which
[i]f you're uncomfortable sitting, you can stand up. If you're uncomfortable standing, you can move around a little or do things to produce some body reduction of pain. First, think in terms of some light jobs and then sedentary.
Goldfarb recommended jobs like sales attendant, hospital TV rental clerk, cashier, surveillance system monitor, and parking lot cashier, jobs that are readily available in the national economy. MacDonald's counsel then asked the VE to assume that MacDonald has a T10 compression fracture, a herniated disk with nerve root compression, degenerative disk disease, arthritis, spondylosis, and narrowing of the foramina, and further to assume that MacDonald is "unable to walk for more than 15 minutes, unable to sit for more than an hour, to stand for more than 15 to 20 minutes, is unable to crouch, has constant pain at a pain level of 7 to 8, gets fatigued easily, is unable to concentrate on simple tasks or instructions due to pain and has to take breaks of 20 to 30 minutes after every hour of work." Accepting these assumptions, and considering MacDonald's age, education, and past work experience, the VE testified that there would be no appropriate jobs that he could perform.
The Social Security Act defines disability as "the inability to engage in any substantial gainful activity by reason of an impairment expected either to result in death or last for a continuous period of at least 12 months." 42 U.S.C. § 423(d)(1)(A). Disability determinations follow a "sequential step analysis" mandated by 20 C.F.R. § 404.1520. The analysis requires that the ALJ first determine whether or not a claimant was gainfully employed prior to the onset of the disabling condition. At the second step, the ALJ must determine whether a claimant suffers from a severe impairment limiting his ability to work. If the impairment is the same as, or equal in its effect to, an impairment (or combination of impairments) listed in Appendix 1 of the regulations, the claimant is presumptively deemed disabled. If the impairment is not covered by Appendix 1, the fourth step of the analysis requires that the claimant prove that his disability is sufficiently serious to preclude a return to his former occupation. If he meets that burden, the Commissioner at the fifth step is obligated to prove that there are other jobs in the national economy that the claimant is able to perform.Gonzalez Perez v. Sec'y of HEW, 572 F.2d 886, 888 (1st Cir. 1978).
The ALJ found at Step One that MacDonald had not engaged in any substantial gainful activity since October 15, 2003, the date of the automobile accident. At Step Two, the ALJ found that MacDonald suffered from myofascial pain syndrome and thoracic and lumbar degenerative disease, which are severe impairments. However, at Step Three, the ALJ found that these impairments, even in combination, did not qualify as disabling under the Listing of Impairments found in 20 C.F.R. 404, subpart P, Regulation 4, Appendix 1. While at Step Four, the ALJ found that MacDonald could not perform any of his past relevant work, he nonetheless determined at Step Five that MacDonald could perform light work in a significant number of jobs that exist in the national economy. Consequentially, the ALJ determined that MacDonald was not disabled within the meaning of the Social Security Act.
The ALJ's findings were as follows.
1. The claimant meets the non-disability requirements for a period of disability and disability insurance benefits set forth in section 216(i) of the Social Security Act through December 31, 2008.
2. The claimant testified he has not engaged in substantial gainful activity since October 15, 2003 ( 20 C.F.R. § 404.1520(b)). A year ago approximately, he settled a motor vehicle accident case and has been living on the proceeds and his wife's income from her employment.
3. The claimant has the following severe impairment: myofascial pain syndrome and thoracic and lumbar degenerative disease ( 20 C.F.R. § 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. 404, Subpart P, Appendix 1, Regulations No. 4 ( 20 C.F.R. § 404.1520(d)).
5. On the preponderance of the evidence, it is reasonable to find that the claimant has the residual functional capacity for a limited range of light work. Light work involves lifting and carrying objects weighing up to twenty pounds occasionally and ten pounds frequently. The full range of light work is diminished by flexible functioning whereby the claimant requires the ability to occasionally alternate between sitting and standing throughout an eight hour work day.
6. The claimant is unable to perform any past relevant work ( 20 C.F.R. § 404.1565).
7. The claimant was born on June 10, 1958 and was forty-five years old on the alleged disability onset date, which is defined as a younger individual age 18-44 ( 20 C.F.R. § 404.1563).
8. The claimant has a high school education equivalency education ( 20 C.F.R. § 404.1564).
9. Transferability of job skills is not material to the determination of disability due to the claimant's age ( 20 C.F.R. § 404.1568).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs identified by the vocational expert that exist in significant number in the national economy that the claimant can perform ( 20 C.F.R. §§ 404.1560(c) and 404.1566).
11. The claimant has not been under a "disability," as defined in the Social Security Act, from October 15, 2003 through the date of this decision ( 20 C.F.R. § 404.1520(g)).
MACDONALD'S APPEAL
MacDonald objects to the following three of the ALJ's findings.1. The finding of the ALJ that "although the claimant has made statements about subjective symptoms, the record does not contain convincing medical information with evidence of signs or laboratory studies establishing a medically determinable impairment."
2. The finding of the ALJ that "the impairment does not meet listing 1.04 as diagnostic imaging has failed to conclusively identify nerve root involvement and straight leg testing was reported as negative."
3. The finding of the ALJ that "the allegations of a disabling level of pain and fatigue are not medically supported in the medical evidence by clinical signs, symptoms or laboratory findings.
With regard to the first contested finding, MacDonald points to the several MRIs which corroborate his T10 compression fracture, herniated disks with nerve root compression at L4-5 and L5-S1, stenosis and narrowing of the neural foramina, and spondylosis (stiffening of the spine). As to the second contested finding, MacDonald argues that his MRIs "conclusively" demonstrate "nerve root involvement." MacDonald cites the November 1, 2003 MRI findings of "displacing slightly posteriorly the left L5 nerve root . . . and displacing slightly posteriorly the left S1 nerve root." Similarly, he points to the July 1, 2004 MRI that identifies a "left paracentral disc protrusion which displaces the left exiting nerve root." Finally, in response to the ALJ's finding that the record did not support his complaints of disabling pain, he points to the prescriptions for OxyContin and Neurontin and to numerous notes in the medical records recording his reports of severe pain.
A statement of symptoms by itself is not sufficient to establish a physical or mental impairment. See 20 C.F.R. § 404.1528. The statement of symptoms must be corroborated by significant clinical signs and laboratory findings.
While the ALJ did state that the imaging tests had failed to conclusively identify nerve root involvement and that MacDonald's impairment did not as a result meet Listing 1.04, this finding, even if in error, does not compel a finding that MacDonald was incapable of performing all work. The ALJ supported his conclusion that MacDonald remained employable with the following findings and analysis.
The claimant's testimony about his impairments and their impact on his ability to work are considerably more limited and restricted than is established by the medical evidence. His alleged limitations tend to be primarily self imposed restrictions not sufficiently supported by the medical evidence. The allegations of a disabling level of pain and fatigue are not medically supported in the medical evidence by clinical signs, symptoms, or laboratory findings ( 20 C.F.R. § 404.1528). He is prescribed OxyContin, so he obviously is believed to have moderate discomfort, but his doctors do not restrict his activities and seem to feel OxyContin cures his pain syndrome. His activities of daily living have not been profoundly compromised by his impairment, as evidenced by the ability to prepare simple meals and drive on a regular basis. During the hearing, the claimant's demeanor was sometimes vague and evasive, on his motor vehicle litigation, for example. No treating or examining source has imposed restrictions consistent with the claimant's allegations. This is not to say that the claimant is pain free or does not have limitations in performing some tasks and he should observe the restrictions imposed on July 21, 2004 by Dr. DiTullio. Nonetheless, his statements are inconsistent with the objective evidence that does not demonstrate the existence of pain and limitations of such severity as to preclude the claimant from performing any work on a regular and continuing basis. Objectively, he does not demonstrate an inability to walk and stand or occasionally lift up to 20 pounds.
As to the medical evidence, ALJ found that
[a]n MRI of the thoracic spine was read to show a very mild acute partial compression fracture with no evidence of focal disc herniation while an MRI of the lumbar spine was read to show a left posterior disc protrusion at L4-5, and herniation at L5-S1, spondylosis, and facet hypertrophy. Steven Johnson, M.D., a specialist brought in by his treating doctor, performed a physical examination in January 2004 and found straight leg raising negative bilaterally and no neurological deficits, and decreased range of motion of the cervical spine. Subsequent examinations in by Michael DiTullio, M.D., indicated the doctor was unable to demonstrate any obvious radiculopathy or myelopathy or any neurosurgically treatable problem. Dr. DiTullio has a lengthy and convincing seven page analysis finding disability for less than nine months. The claimant also received treatment from his primary care physician who prescribed pool therapy, and began prescribing OxyContin. Unfortunately, the claimant has become addicted and began to abuse the opiate-based analgesic. Dr. Carpenter has been attempting to wean the claimant off and prescribe a lower dosage, but Dr. Molloy kept the dosage the same and merely warned him of overusing the drug. A referral was also made to the Spine Center at the New England Baptist Hospital. Janet Limke, M.D., obtained a detailed past medical history and treatment to date and offered the diagnoses of widespread myofascial pain and dysfunction with underlying disk degeneration affecting various levels of the cervical, thoracic, and lumbar spines without focal neurological impairment. She discussed the importance of working through the pain to restore full function and suggested a more aggressive rehabilitation which would be clearly different than what he had in the past. Finally, the claimant evaluated on one occasion by Joseph Zolot, M.D., at the request of the claimant's representative. Interesting, unlike the physician's before him, Dr. Zolot found straight leg raising positive at 90/. Even though the report is from a specialist, Dr. Zolot's opinion is inherently inconsistent and not supported by the medical evidence as a whole. Moreover, this was a one time examination and is more akin to an advocacy opinion. There is no testing of how long the patient can sit, merely a conclusion apparently derived form the patient.
References to exhibits in the record have been omitted from the text of the ALJ's opinion.
The ALJ also pointed to the fact that MacDonald's back pain has been treated very conservatively without any recommendation of surgical intervention by his doctors.
DISCUSSION
The Commissioner's findings of fact are conclusive if supported by substantial evidence. Manso-Pizarro v. Sec'y of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). "Substantial evidence . . . means evidence reasonably sufficient to support a conclusion. Sufficiency, of course, does not disappear merely by reason of contradictory evidence. . . . [The] question [is] not which side [the court] believe[s] is right, but whether [the ALJ] had substantial evidentiary grounds for a reasonable decision. . . ." Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998). The Commissioner's findings, however, "are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
While the ALJ credited Dr. DiTullio's determination that MacDonald was disabled for a nine month period from October 15, 2003, to June 10, 2004, that time period does not meet the Social Security Act's requirement that a disability persist for "a continuous period of at least 12 months." 42 U.S.C. § 423(d)(1)(A). The ALJ carefully and thoroughly reviewed the evidence in the record indicating that MacDonald's symptoms were not so debilitating as to preclude him from performing light work. All of the physicians who treated MacDonald were of the opinion that he had the capacity to work, as were the disability specialists who reviewed his medical record. The ALJ could reasonably reject Dr. Zolot's opinion that MacDonald was "totally disabled" under SSA regulations. That opinion was based on a single examination that could reasonably be inferred to have been solicited for purposes of litigation — as the ALJ believed — rather than for treatment. The ALJ chose instead to rely on the more positive opinion of Dr. DiTullio, the physician with the most experience treating MacDonald, that MacDonald's prognosis was favorable. This latter opinion has substantial support not only in the medical record, but also in the opinions of the other physicians who treated MacDonald.
It is not the province of the physician to make a legal determination of disability. See 20 C.F.R. §§ 404.1527(e)(1) and (2) ("A statement by a medical source that you are "disabled" or "unable to work" does not mean that we will determine that you are disabled. . . . Although we consider opinions from medical sources on issues such as whether your impairment(s) meets or equals the requirements of any impairment(s) in the Listing of Impairments in appendix 1 to this subpart, your residual functional capacity (see §§ 404.1545 and 404.1546), or the application of vocational factors, the final responsibility for deciding these issues is reserved to the Commissioner.").
ORDER
For the foregoing reasons, the decision of the Commissioner denying MacDonald's application for disability benefits isAFFIRMED.
SO ORDERED.