Opinion
CIVIL ACTION NO, 03-10942-PBS
March 17, 2004
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Joanne E. Harper, who suffers from major depression, seeks review of the denial of her application for social security benefits on the grounds (1) that the Administrative Law Judge ("ALJ") failed to give controlling weight to the treating physician's opinion as to the severity of her impairment; and (2) that the ALJ failed to adequately explain why he found Plaintiff's testimony less than fully credible.
For the reasons set forth below, the Court DENIES Plaintiff's motion for summary judgment and DENIES Defendant's motion to affirm the Commissioner's decision. The Court remands the action.
II. FACTUAL BACKGROUND
The administrative record contains the following facts. Plaintiff, Joanne Harper, was born on October 16, 1954. (Tr. 76, 118.) A high school graduate, she has received extensive advanced training as a licensed insurance broker and a certified insurance counselor. (Tr. 30-31.) For over twenty years, she has worked in the insurance industry, most recently as a branch supervisor. (Tr. 127.) Plaintiff alleges that she has not been able to work since July 9, 1999 due to severe clinical depression. (Tr. 118, 126.)A. Disability Impairment
Psychologist Dr. Susan Powers, Psy.D., first saw Plaintiff for individual psychotherapy on March 18, 1998. (Tr. 231, 250.) Plaintiff complained of feeling overwhelmed at work and Dr. Powers diagnosed her with Dysthymic (Severe Depressive) Disorder. (Id.) At this point Plaintiff had already been on Zoloft for two years (Id.) On July 14, 1999, Plaintiff called Dr. Powers to report that her boyfriend's mother had a heart attack, that she was unable to focus, and that she was home from work. (Tr. 229.) In a subsequent phone call Ms. Harper indicated that she wanted two weeks off from work to deal with the future loss of her daughter, who has AIDS. (Id.) The following day, in treatment, Ms. Harper told Dr. Powers that "July was a difficult time of year" and that her boyfriend's mother's heart attack had caused numerous past traumas to surface. (Id.) Furthermore, Ms. Harper indicated that she had requested two weeks of short-term disability from work because she was unable to focus or make decisions. (Id.)
On July 19, 1999, Dr. Powers referred Ms. Harper to St. Luke's hospital for day treatment. (Tr. 232.) However upon arrival for evaluation, she was admitted as an in-patient. (Tr. 157.) On arrival, Plaintiff was described as "overtly depressed, tearful with positive suicidal ideation but no plan and had not been able to work for one week, feeling very overwhelmed with many stressors." (Id.) On initial examination on the morning of July 20, Dr. Epstein, the examining physician, described the Plaintiff as "anxious, depressed, mildly agitated, very articulate and intelligent, tells her story well. She is oriented times three. No evidence of cognitive pathology." (Tr. 158.) Ms. Harper was given a diagnosis of "major depression, recurring" and her Global Assessment of Functioning ("GAF") was scaled at 25. ( Id .) Ms. Harper was admitted to St. Luke's for two to ten days of inpatient treatment. (Id.)
GAF assigns a numerical rating (1-100) to a patient's psychological, social and occupational functioning. A GAF of 25 denotes an inability to function in almost all areas.
On July 20, 1999, Dr. Epstein completed an Attending Physician's Statement concerning Plaintiff's condition. (Tr. 191-92.) Dr. Epstein opined that Plaintiff "will undoubtedly be able to function well after discharge." (Tr. 191.) Regarding her potential return to work, Dr. Epstein stated "shortly after [discharge] from hospital — prob[ably] within 2-3 wks." (Id.)
On July 21, 1999, Plaintiff was discharged from St. Luke's. (Tr. 153-54.) In his Discharge Summary, Dr. Epstein described her stay at the hospital as "uneventful. The patient reintegrated quite quickly, and at discharge, was no longer depressed." (Tr. 153.) Dr. Epstein further described Ms. Harper as "confident about discharge, no longer fearful about hurting herself, able to contract for safety, looking forward to going back to work and picking up her life again." (Tr. 153.) Plaintiff's GAF on discharge was scaled at 60.
A GAF of 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks); or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
On August 30, 1999, Dr. Powers wrote to UNUM Life Insurance Company ("UNUM") in support of Plaintiff's application for short-term disability. (Tr. 231-32.) In the letter, Dr. Powers stated that she had been seeing Ms. Harper since March 1998 and that Ms. Harper began feeling overwhelmed in August 1998 by medical and family problems. (Tr. 231-32.) Dr. Powers explained that Ms. Harper had improved from January through May 1999, at which time work and family problems resurfaced. (Id.) She further wrote that after the heart attack incident in July 1999, old traumas resurfaced causing severe depression. (Tr. 232.) Dr. Powers stated that as of the letter date, Plaintiff's depression continued to be serious, causing teariness and inability to concentrate. (Id.) She recounted Plaintiff's complaints of quickly becoming exhausted and opined that "it is hard to imagine that she could function at work at this time especially given that work had been stressful for her when she was doing better than she is now." (Id.)
On October 12, 1999, Plaintiff informed Dr. Powers that a Workman's Compensation application that she filed was rejected and that Plaintiff was looking at returning to work in one month. (Tr. 236.) Dr. Powers suggested that Plaintiff return to work on a part-time basis to start. (Id.)
On October 20, 1999, Plaintiff informed Dr. Powers that she had been terminated from her job, which left her "tearful [and] angry." (Tr. 236.) Plaintiff stated that she was going to apply for unemployment and was considering long-term disability. (Id.) Dr. Powers "urged her to consider the pros [and] cons" of long-term disability. (Id.)
On November 17, 1999, Dr. Powers, in her notes, writes that "in general [Plaintiff] has been feeling better, but when she does she questions the reality of the illness as she believes others do too." (Tr. 240.)
On December 3, 1999, a UNUM nurse called Dr. Powers to inquire about Plaintiff's condition and treatment. (Tr. 238.) Dr. Powers stated that although "the medication appears to be helping some with [Plaintiff's] depressive symptoms, . . situations keep coming up in the patient's life that are very stressful and exacerbate her symptoms of depression." (Id.) She described Ms. Harper's limitations as an "inability to focus, impaired concentration, decreased stamina, and tearfulness much of the time." (Id.) Dr. Powers expressed her opinion that "the patient could not perform any job demands at this time." (Id.)
On December 8, 1999, Dr. Powers noted that Plaintiff was doing better with less fatigue and no teariness during the session. (Tr. 239.) Plaintiff also discussed plans for returning to work, specifically about choosing an insurance company rather than an agency so that she would not have to work with the public. (Id.)
On February 9, 2000, Dr. Powers, in her notes, writes that Ms. Harper "had a severe period of depression yesterday," which was triggered by her preparing to do her taxes and reading a letter from her previous disability insurer, which talked about decreasing her benefits. (Tr. 241.) Dr. Powers noted that Plaintiff has "more perspective than usual and a better sense of what leads to the depression." (Id.)
In her March 15, 2000 notes, Dr. Powers writes that Ms. Harper was "pleased with being able to have 3 basically O.K. weeks" and that there "were moments of depression that she was able to push away." (Tr. 244.) She further wrote that Plaintiff was planning "to start inquiring about work in next two weeks." (Id.)
On May 1, 2000, Dr. Powers summarized her treatment of Ms. Harper since December 1, 1999. (Tr. 245-46.) She wrote that "in December [Plaintiff] had begun a taking a new medication, in addition to the others, and it seemed to make a difference. (Id.) She stated that Ms. Harper "reported having more good days than bad although she was very easily fatigued." (Id.) Dr. Powers further stated that Plaintiff was "doing better with much less time spent in significant depression." (Id.) Dr. Powers' final assessment was that Ms. Harper "does not seem able to manage yet that level of stimulation and expectation that would be present in any new job." (Id.) She opined that Ms. Harper's first step should be exploring what positions are available and talking to people in her field." (Id.)
On May 10, 2000, Plaintiff informed Dr. Powers that she was going to attend a two-to-three day training session to renew her professional license. (Tr. 247.) Following the session, on May 24, 2000, Mr. Harper reported that she had done "all right with training, was tired after but not depressed." (Id.)
On July 19, 2000, Plaintiff told Dr. Powers that she had applied for Social Security disability. (Tr. 249.) That day, Dr. Powers wrote in her notes that Ms. Harper "did O.K. over the two weeks — better than before." She further wrote that Ms. Harper "sounds good" and that she had made plans for a five-day trip with her daughter and to go to another insurance training in August. (Id.)
On July 26, 2000, Dr. Powers completed a Social Security assessment of Plaintiff's condition and capacities. (Tr. 250-53.) In her diagnosis, Dr. Powers checked off that Plaintiff was: (A) attentive to personal appearance, (B) got along with other people, (C) could deal with routine stress, (D) could travel independently in public, and (E) that Dr. Powers had noticed some memory, concentration or attention deficits. (Tr. 250.) Dr. Powers noted that Plaintiff had not had any "significant deterioration in [her] habits, interests, relationships or daily activities." (Id.) She further stated that "patient is responding to treatment and making slow solid improvements" in response to individual psychotherapy and medication. (Id.) Dr. Powers indicated that Ms. Harper's "level of functioning is good when [there is] no stress," but that "at times she can get overwhelmed with normal demands." (Tr. 251.) Dr. Powers opined that "there is gradual improvement, but [Plaintiff] is not back to where she was before the major depression." (Id.) Dr. Powers also stated that she thought the Plaintiff did "fine most of the time" with "timely task completion or regular routine[s]." (Id.) Dr. Powers further indicated that Plaintiff could sustain attention and concentration for extended periods, could remember work-like tasks and instructions, and would not require excessive supervision. (Tr. 252.) Dr. Powers indicated that Ms. Harper could get along well with others, although she expected better behavior from others than was realistic. (Id.) Finally, Dr. Powers indicated that she had performed no psychological testing and stated that Ms. Harper's prognosis was "good." (Tr. 253.)
On October 18, 2000, Dr. Powers completed a mental Work Capacity Evaluation of the Plaintiff. (Tr. 258-60.) In the evaluation, Dr. Powers indicated that Plaintiff had no impairments as to her ability to understand and remember work procedures, simple or detailed instructions. (Id.) Dr. Powers indicated a slight impairment in Plaintiff's ability to work with others, moderate impairments in her ability to maintain attention and concentration for extended periods and to maintain regular attendance, and a marked impairment in Plaintiff's ability to accept instructions and respond appropriately to criticism. (Id.) Dr. Powers further stated that Plaintiff had not been able to maintain more than two days of activity per week without increased depression. (Id.)
On October 24, 2000, Dr. Powers sent a letter to a Social Security representative regarding Plaintiff's prognosis and ability to return to work. (Tr. 261.) She stated that Ms. Harper's recovery "has been slow with significant good days and significant days of severe depression." (Id.) Dr. Powers stated that "at this time she is not able to deal with the stresses of being out of her home for more than 2 days a week." (Id.) She further wrote that she "hope[d] that at some point in the near future she could take on a part-time job" and that "she might do well in a 1:1 job such as a home health aide." (Id.) Dr. Powers stated her prognosis was guarded. (Id.)
On January 10, 2001, Dr. Powers, in her notes, writes that Plaintiff "had pretty good two weeks" and that Ms. Harper no longer wished to do insurance work and wanted to start a decorating business. (Tr. 263.)
On April 26, 2001, upon Plaintiff's request, Dr. Powers wrote a letter in support of Plaintiff's continuing application for Workman's Compensation. (Tr. 266-67.) Dr. Powers stated that Plaintiff "continues to be teary frequently, she has difficulty concentrating and completing tasks at home, . . has a very low tolerance for stress and becomes fatigued easily." (Id.) Dr. Powers further wrote that "there are times when [Ms. Harper] can't drive because she is feeling suicidal" and opined that "it is hard for me to imagine that she could do even part-time work at this time." (Id.) Dr. Powers also states that "I like to think that she will be able to return to the level of functioning that she had prior to the onset of the major depression." (Id.)
On May 11, 2001, in her notes, Dr. Powers writes that Plaintiff told her that she was planning on contacting a lawyer to assist her with her disability claim. (Tr. 276.) Dr. Powers raised the question of "whether [Ms. Harper] is hurting self by pursuing this and that [Dr. Powers] would rather see her energy go into getting well and that it does not seem healing to [Dr. Powers] to pursue this." (Id.) Dr. Powers also suggested that the Plaintiff volunteer at a nursing home to add structure to her life. (Id.)
On July 11, 2001, in her notes, Dr. Powers recounts that she and Ms. Harper "discussed the idea of her getting a mundane job in order to provide structure and money." (Tr. 275.) Dr. Powers writes that while Plaintiff was still easily overwhelmed, she was taking control more and could tolerate more stress. (Id.) In the following session, on July 18, 2001, Ms. Harper told Dr. Powers that she had worked four hours a day for two consecutive days at a "Waterfront Celebration" and felt tired, but not overwhelmed. (Id.)
On October 31, 2001, in her notes, Dr. Powers writes that Ms. Harper had filed for bankruptcy. (Tr. 271.) Ms. Harper also told Dr. Powers that her partner had rented a shop for her to open a second-hand store. (Id.)
On November 1, 2001, Dr. Powers completed a subsequent mental Work Capacity Evaluation of Plaintiff. (Tr. 268-70.) Based on her observations and Plaintiff's self-reports, Dr. Powers assessed Plaintiff's "ability to understand and remember detailed instructions" as slightly impaired. (Id.) Based solely on Plaintiff's self-reports, Dr. Powers assessed Plaintiff's "ability to carry out detailed instructions," "ability to work in coordination with or in proximity to others without being distracted by them," "ability to ask simple questions and request assistance," and "ability to respond appropriately to changes in the work setting" as slightly impaired. (Id.) Dr. Powers also assessed Plaintiff's "ability to maintain attention and concentration for extended periods," "ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances," "ability to travel in unfamiliar places or use public transportation," and ability to set realistic goals or make plans independently of others" as moderately impaired. Finally, based on Plaintiff's reports of "past sensitivities to criticism," she assessed Plaintiff's "ability to accept instructions and respond appropriately to criticism from supervisors" as markedly impaired. (Id.) In an accompanying letter to the Social Security Disability Program, Dr. Powers wrote that Plaintiff "knows she must find some kind of work but has made little progress." (Tr. 278.) Dr. Powers further stated that Ms. Harper's "thinking can be unrealistic and impractical and she resists the idea of an ordinary job that would mean working with others." (Id.)
B. Social Security Application
On May 24, 2000, Ms. Harper filed an application for Disability Insurance Benefits. (Tr. 20.) Her claim was denied initially and on reconsideration, and a request for hearing was timely filed. (Id.)
On August 3, 2000, Dr. Fischer, a state Disability Determination Services ("DDS") consultant psychologist, conducted a "Mental Residual Functional Capacity Assessment" of the Plaintiff based on his review of her file. (Tr. 194-96.) Dr. Fisher assessed Plaintiff's "ability to maintain attention and concentration for extended periods" and "ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes" were moderately impaired. Dr. Fischer found that Plaintiff was not significantly limited in any other area of cognitive functioning. (Id.) In an accompanying "Psychiatric Review Technique" form, Dr. Fischer indicated that the record supported a diagnosis of major depression, an affective disorder. (Tr. 198-201.) He indicated that Plaintiff's condition could be expected to result in slight limitations in "maintaining social functioning," often "deficiencies of concentration," and "episodes of deterioration or decompensation in work-like settings" to occur "once or twice." (Id.)
On November 17, 2000, Dr. Menachem Kasdan, another DDS consultant psychologist, completed a Mental Residual Functional Capacity Assessment of the Plaintiff. (Tr. 209-26.) Dr. Kasdan found that Plaintiff's "ability to maintain attention and concentration for extended periods," "ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances," "ability to complete a normal workday and workweek without interruptions from psychologically based symptoms," "ability to accept instructions and respond appropriately to criticism from supervisors," and ability to respond appropriately to changes in the work setting" were moderately impaired. (Tr. 209-10.) Dr. Kasdan also completed an accompanying "Psychiatric Review Technique" form. (Tr. 213-26.) He indicated that the record supported a diagnosis of major depression, an affective disorder and non-specific anxiety related disorders. (Id.) Dr. Kasdan found that Plaintiff's condition is expected to result in mild functional limitations in daily living activities and moderate functional limitations in maintaining social functioning and maintaining concentration, persistence or pace. (Id.) He found insufficient evidence to determine whether Plaintiff suffered any episodes of decompensation of extended duration. (Id.)
On November 30, 2001, a hearing was held before ALJ Robert Halfyard. (Tr. 26-75.) Ms. Harper, who was represented by counsel, appeared and testified at the hearing. (Tr. 28-44.) Alfred G. Jonas, M.D., an impartial medical expert ("IME"), (Tr. 45-52, 61-63.) and Carl E. Barchi, an impartial vocational epxert, also appeared and testified.
Dr. Jonas, the medical expert, testified "there's nothing in the record to suggest any impairment in the ability to perform activities of daily living," "a moderate . . . or marked level for impairment of social functioning," and "a deficiency of concentration as probably not being never, but maybe seldom and occasionally often." (Tr. 51.) He found that "the only clear episode of deterioration was the abdication of vocational function which occurred way back in July 1999." (Id.) As a result, Dr. Jonas "did not feel on evaluation of the record that [Plaintiff's condition] was at the listing level." (Id.) When further questioned regarding the Mental Work Capacity Evaluation of the Plaintiff, completed by Dr. Powers on November 1, 2001, Dr. Jonas testified that the "form doesn't necessarily tell the most accurate picture of Ms. Harper's real capacity. I think that there's some overstatement of problems or understatement of capacity here." (Tr. 63.) Dr. Jones based his opinion on his review of treatment notes and the fact that most of Dr. Powers' assessments were based on Plaintiff's own reports. (Id.)
Following the hearing, the ALJ found that the Plaintiff was not under a `disability' for a continuous period of 12 months or longer within the meaning of the Social Security Act, "at any time through the date of [the] decision." (Tr. 20, 25.) He concluded that she suffered a severe impairment but not severe enough to meet the listings in Appendix 1, Subpart P, Regulations No. 4. The ALJ found she could return to most of her past relevant work and, in an event there are other jobs in the national economy that the claimant could perform "with consistent residual functional capacity, age, education and work experience." (Tr. 23-24.)
III. STANDARD
A. Disability Determination Process
The Commissioner has developed a five-step sequential evaluation process to determine whether a person is disabled. See 20 C.F.R. § 404.1520; Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). "Step one determines whether the claimant is engaged in `substantial gainful activity.' If he is, disability benefits are denied. If he is not, the decision maker proceeds to step two, which determines whether the claimant has a medically severe impairment or combinations of impairments." Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citation omitted). The "severity regulation," which governs that determination provides:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.20 C.F.R. § 404.1520(c), 416.920(c).
"Basic Work Activities" are defined as "the abilities and aptitudes necessary to do most jobs." §§ 404.1521(b), 416.921(b). The severity regulation requires the claimant to show that he or she has an "impairment or combination of impairments which significantly limits . . . the abilities and aptitudes necessary to do most jobs." Bowen, 482 U.S. at 146 (quoting 20 C.F.R. § 404.1520(c), 404.1521(b)).
If the Commissioner determines that the claimant has a severe impairment, the third step is determining whether that impairment, or set of impairments,
is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity . . . If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. If the claimant cannot perform this work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education and work experience. The claimant is entitled to disability benefits only if he [or she] is not able to perform other work.Id. at 141-42 (citations omitted).
The claimant bears the burden of proof throughout most of the five-step disability determination process. See id. at 146 n. 5. At the fifth step, however, the burden shifts to the Commissioner who must provide substantial evidence that the claimant is able to perform work in the national economy. See id. Claimant's impairment must be so severe as to prevent her from working not only in her usual occupation, but in any other work considering her age, education, training and work experience. 42 U.S.C. § 423(d)(2)(A).
B. Standard of Review
Judicial review of SSDI and SSI determinations are available under 42 U.S.C. § 405(g), which provides, in part, that:
Any individual, after any final decision of the Commissioner . . . made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner . . . may allow. . . . The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . ., with or without remanding the cause for a rehearing. The findings of the Commissioner . . . as to any fact, if supported by substantial evidence shall be conclusive. . . .
In reviewing decisions in such cases, district courts do not makede novo determinations. Lizotte v. Sec'y of Health Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). Instead, this Court "must affirm the [Commissioner's] findings if they are supported by substantial evidence." Cashman v. Shalala, 817 F. Supp. 217, 220 (D. Mass. 1993); see also Rodriguez Pagan v. Sec'y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (stating that the Commissioner's determination must be affirmed, "even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence"), cert. denied, 484 U.S. 1012 (1988).
Substantial evidence is "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence means such relevant evidence as a "reasonable mind, reviewing the evidence in the record as a whole, [would] accept . . . as adequate to support [a] conclusion." Ortiz v. Sec'y of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991).
In reviewing the record for substantial evidence, "[i]ssues of credibility and the drawing of permissible inferences from evidentiary facts are the prime responsibility of the [Commissioner]." Rodriguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). When a conflict in the record exists, the Commissioner has the duty to weigh the evidence and resolve material conflicts in testimony.See Richardson, 402 U.S. at 399; Ortiz, 955 F.2d at 769.
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must consider whether the Commissioner applied the proper legal standard. "Failure of the [Commissioner] to apply the correct legal standards as promulgated by the regulations or failure to provide the reviewing court with the sufficient basis to determine that the [Commissioner] applied the correct legal standards are grounds for reversal." Weiler v. Shalala, 922 F. Supp. 689, 694 (D. Mass. 1996).
IV. DISCUSSION
A. Treating Physician Rule.
Because this case was decided at Step 5 of the sequential evaluation process, the government bears the burden of proof in establishing that plaintiff's residual functional capacity would allow her to perform work as an office clerk or a teacher's aide, Ms. Harper argues that this Court should reverse or remand the Commissioner's decision because the ALJ violated the treating physician rule by disregarding her treating psychologist's opinion that she was disabled as a result of severe depression. 20 C.F.R. § 404.1502, 416.902 defines a treating source as a patient's
own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/ or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s).
Although the Commissioner recognized Dr. Susan Powers as Ms. Harper's treating psychologist, the ALJ did not give Dr. Powers' opinion controlling weight. Rather, he found that the opinion of Dr. Jones, an impartial medical expert, was more persuasive.
The regulations require an ALJ to give more weight to the treating physician's opinion "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture" of the patient's medical condition. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2.) However, the ALJ is "not obligated automatically to accept [the treating physician's] conclusions." Guyton v. Apfel, 20 F. Supp.2d 156, 167 (D. Mass. 1998). See also Makuch v. Halter, 170 F. Supp.2d 117, 124 (D. Mass. 2001). Controlling weight is given only if the "treating source's opinion on the issue(s) of the nature and severity of [the patient's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence." 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). And the question whether an applicant meets the statutory definition of disabled is determined by the Commissioner and not the various medical sources. See 20 C.F.R. § 404.1527(e)(1), 416.927(e)(1).
In determining how much weight to give to a treating physician's report, the ALJ must consider six enumerated factors:
1) the length of the treatment relationship and the frequency of examination; 2) the nature and extent of the treatment relationship; 3) the relevant evidence in support of the medical opinion; 4) the consistency of the medical opinions reflected in the record as a whole; 5) whether the medical provider is a specialist in the area in which he renders his opinions; and 6) other factors which tend to support or contradict the opinion.Guyton, 20 F. Supp.2d at 167. (citing 20 C.F.R. § 404.1527(d)(2).) Hence, the regulations do "not mandate assignment of some unvarying weight to every report in every case."Id. (citation omitted).
Various factors support giving the treating psychologist's opinion weight here. Dr. Powers' bi-weekly treatment relationship with the claimant began in 1998 and continues to this day. Furthermore, Dr. Powers is a Doctor of Psychology (Psy.D.), a specialist in her field. On the other hand, two factors cut against giving Dr. Power's opinion controlling weight. Many of her findings are based on subjective complaints by Ms. Harper rather than psychological testing or clinical observations. However, this factor is less significant because the complaints here are psychological in nature and less amenable to clinical and laboratory diagnostic techniques.
The bigger problem is the lack of consistency in Dr. Powers' opinion. In her treatment notes, Dr. Powers' indicated many instances of solid improvement and made optimistic prognoses. On July 26, 2000, Dr. Powers gave the general prognosis as "good" (Tr. 253) and gave a fairly upbeat evaluation (Tr. 250-53.) On July 31, 2000 in a treatment summary, Dr. Powers stated that plaintiff wanted to return to work "although she does not yet seem able to manage the level of stimulation and expectation that would be present in any new job." (Tr. 255.) On October 24, 2000, Dr. Powers suggested a part time job as a home health aid but her prognosis was "guarded." (Tr. 262.) Yet six months later, on April 26, 2000, she states "It is hard for me to imagine that she could do even part-time work at this time." (Tr. 260.) In light of the inconsistencies in Dr. Powers' prognoses in a one-year timetable, the ALJ properly looked to the other non-treating psychological opinions. Dr. Powers' opinion of the severity of the claimant's condition is not consistent with four other medical opinions in the record, specifically those of Dr. Epstein, Dr. Jonas, who testified, and the two DDS consulting psychologists.
Dr. Jonas, the IME, opined that the claimant has "periods of improvement, with only brief problems with social relations and interactions;" that the treatment notes do not report emotional lability; that there were problems at a moderate level in social functioning, but basically no problems in other areas of daily functioning, concentration and persistence; and that there was only one "episode of deterioration" in July 1999. (Tr. 22).
Accordingly, there is substantial evidence in the record to support the ALJ's determination not to give the treating physician's evaluation controlling weight.
B. Credibility of Subjective Complaints
Plaintiff claims that the ALJ improperly discredited her testimony regarding her emotional and fatigue symptoms without adequately explaining the reasons for his determination.
In evaluating subjective complaints, the ALJ must first determine whether there is a clinically determinable medical impairment that can reasonably be expected to produce the symptoms alleged. See Avery v. Sec'y of Health and Human Servs., 797 F.2d 19, 21 (1st Cir. 1986) (discussing pain symptoms). When evaluating the clinical evidence, the ALJ should also consider "other evidence including statements of the claimant or his doctor, consistent with the medical findings."Id. However, this does not mean that any statements of subjective impairments go into the crucible. Id. The ALJ, in resolving conflicts of evidence, may determine that the claimant's subjective complaints concerning his condition "are not consistent with objective medical findings of record" if the ALJ's determination is supported by evidence in the record. Evangelista v. Sec'y of Health and Human Servs., 826 F.2d 136, 141 (1st Cir. 1987).
With this evidence, the Agency is required to "evaluate the intensity and persistence of [the claimant's] symptoms so that [it] can determine how [the] symptoms limit [the claimant's] capacity for work." 20 C.F.R. § 404.1529(c). The regulations recognize that a person's symptoms may be more severe than the objective medical evidence suggests.See 20 C.F.R. § 404.1529(c)(3). Therefore, the regulations provide six factors (known as the Avery factors) that will be considered when an applicant alleges subjective symptoms, including pain.
Considerations capable of substantiating subjective complaints of pain include evidence of (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness and side effects of any medication taken to alleviate the pain or other symptoms; (5) treatment, other than medications, received to relieve pain or other symptoms; and (6) any other factors relating to claimant's functional limitations and restrictions due to pain.Adie v. Comm'r, Soc. Sec. Admin., 941 F. Supp. 261, 269 (D.N.H. 1996) (citing 20 C.F.R. § 404.1529 (c)(3); Avery, 797 F.2d at 23)
The ALJ's credibility determination "is entitled to deference, especially when supported by specific findings." Frustaglia v. Sec'y of Health and Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (citations omitted). However, an ALJ that does not believe a claimant's testimony regarding his subjective symptoms, "must make specific findings as to the relevant evidence he considered in determining to disbelieve the [claimant]." Da Rosa v. Sec'y of Health and Human Servs., 803 F.2d 24, 26 (1st Cir. 1986). See also Social Security Ruling (SSR) 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 61 Fed. Reg. 34,483, 34,485-86 (1996) (requiring that "[w]hen evaluating the credibility of an individual's statements, the adjudicator must . . . give specific reasons for the weight given to the individual's statements"; and "the reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision.").
In determining the severity of a claimant's subjective symptoms, "the absence of objective medical evidence supporting an individual's statements about the intensity and persistence of symptoms is only one factor that the adjudicator must consider in assessing an individual's credibility." SSR 96-7p, 61 Fed. Reg. at 34,487 (emphasis added). Cf. Gordils v. Sec'y of Health and Human Servs., 921 F.2d 327, 330 (1st Cir. 1990) (upholding denial of benefits where ALJ described claimant's daily activities as "practically intact" and evaluated her demeanor at the hearing in addition to objective medical evidence); Berrios Lopez v. Sec'y of Health and Human Servs., 951 F.2d 427 (1st Cir. 1991) (upholding ALJ's evaluation discrediting claimant's pain where the ALJ noted observations of claimant at the hearing (i.e., that she walked without assistance and drove to the hearing) and where claimant also performed household chores).
Ms. Harper contends that she is unable to work because she becomes easily overwhelmed and fatigued, is not able to focus or concentrate for extended periods of time, has constant teariness, and has a general inability to be out of her house for more than short periods of time as a result of her depression.
In assessing Plaintiff's residual functional capacity, the ALJ determined Ms. Harper's complaints not to be fully credible. Some of the reasons relied on by the ALJ are unpersuasive. The record suggests plaintiff was lachrymose during the proceeding. The ALJ makes a finding that Ms. Harper cried during testimony regarding her financial affairs, but "strangely remained composed" when discussing her ex-husband's incarceration and her daughter's medical problems. (Tr. 23.) An analysis of the record undercuts the weight to be given to the finding. For example, Ms. Harper became upset when the ALJ asked her about her training and profession. (Tr. 31.) Moreover, any suggestion that Ms. Harper was not concerned by her daughter's health is vitiated by the consensus that her one major episode of deterioration resulting in institutionalization arose as a result of her daughter's health problems. Also, her ex-husband allegedly abused her daughter so it is little wonder she did not cry in discussing her husband's incarceration. Discrediting plaintiff, the ALJ finds that Ms. Harper has handled the "complex tasks involved in a bankruptcy filing," but he did not point out she was represented by counsel. (Tr. 54.) Therefore, her involvement in the bankruptcy filing does not necessarily undercut her claim that the depression decreases her ability to concentrate. While the ALJ need not fully credit plaintiff's claims of stress and fatigue, he must articulate plausible reasons for this determination.
On the other hand, plaintiff's motion to reverse the ALJ's credibility assessment is not appropriate either, for there is evidence in the record suggesting that plaintiff may not be fully credible. Dr. Jonas, the independent medical examiner, pointed out entries in the medical record which indicate plaintiff may be exaggerating in areas like ability to concentrate. (Tr. 51.) Also, the ALJ states that she is able to care for her personal needs, perform household chores and prepare her own meals. The record is replete with references to plaintiff's good days and plans to work. There is some indication that plaintiff is not disabled from all jobs, but may be reluctant to work in a mundane, low-stress job like office clerk in light of her training and background.
Cases involving mental disorders like depression are difficult to parse because stress is so subjective. The ALJ does discuss some of theAvery factors: like claimant's daily activities, aggravating factors, the kinds of psychiatric medications, and treatment for the stress. The flaw in the opinion is the ALJ's failure to articulate reasonable grounds for discrediting plaintiff's testimony regarding the frequency, intensity, and duration of her complaints of fatigue and stress as required by Avery. Accordingly, I remand for reconsideration.
V. ORDER
Plaintiff's motion for summary judgment (Docket No. 10) isDENIED. Defendant's motion to affirm the decision of the Commissioner (Docket No. 12) is DENIED. The case is remanded.