Opinion
Civil Action No. 01-11577-DPW
March 19, 2003
MEMORANDUM AND ORDER
Plaintiff Felix M. Thomas appeals a decision denying him Disability Insurance Benefits ("DIB") and Supplemental Security Income benefits ("SSI"). Thomas claims that the initial decision of the Administrative Law Judge ("ALJ") was marred by legal error and unsupported by substantial evidence. Thomas requests reversal of the final decision of the Commissioner and remand for the calculation of benefits owed, or in the alternative, a remand for a new hearing for the taking of additional evidence. For the reasons set forth below, I will affirm the Commissioner's decision.
I. BACKGROUND A. Procedural History
Plaintiff Felix Thomas ("Thomas") filed applications for DIB and SSI benefits on May 14, 1999 for the onset of a disability on April 19, 1999. Thomas alleged that he was unable to work due to testicular cancer and related complaints. The applications were denied upon initial review and again upon reconsideration. Thomas then requested a hearing on his application before an Administrative Law Judge. A hearing was held on June 6, 2000 before Administrative Law Judge J. Alan McKay ("ALJ") during which Thomas was represented by counsel.
In a written decision issued June 29, 2000, the ALJ determined that Thomas had the functional capacity to perform a significant range of light work, including the jobs of hand packer and assembler. These existing functional capacities established that Thomas was not disabled under SSA regulations. Thomas subsequently requested review of the ALJ's decision by the Social Security Appeals Council and submitted additional evidence to the Council. By letters dated July 3, 2001 and March 13, 2002, the Appeals Council declined to review Thomas's claim, rendering the ALJ's decision the Commissioner's "final decision."
Thomas filed a complaint for judicial review of the denial of benefits on or around September 14, 2001.
B. Factual History
Thomas was born on December 3, 1963. After graduating from high school, he joined the Army where he was trained as a Defense Acquisition Radar Operator. After his honorable discharge from the military in 1985, Thomas held jobs as a dishwasher and grocery stock clerk. Most recently, Thomas had been an assistant manager of a convenience store for four years, until May 1999, when he quit as a result of testicular pain.
In November 1991, seeking to reenlist in the Army, Thomas had been examined by a Veterans' Administration physician who diagnosed him with an asymptomatic testicular mass. Thomas initially scheduled, but ultimately cancelled, a follow-up appointment.
On September 27, 1993, Thomas again presented to the Veterans' Administration in the effort to reenlist. Thomas complained that he experienced discomfort, particularly when lifting objects. An ultrasound of Thomas's scrotum on October 23, 1993 revealed extensive calcification and enlargement of the epididymis and the presence of a small to moderate hydrocele. Apparently, however, no treatment was undertaken at this time.
Hydrocele: an accumulation of serous fluid in an sacculated cavity, esp. the scrotum. Websters Third New International Dictionary (1986).
Approximately six years later, on May 5, 1999, Thomas returned to the VA complaining of pain in the region of his left testicle. Examination by VA physician Mark Selby revealed marked swelling and tenderness of Thomas's scrotum. An ultrasound taken that day indicated an encapsulated neoplasm which may have "hemorrhaged into mass while lifting."
Two days later, on May 7, 1999, Thomas requested stronger pain medication. By May 12, the pain had increased and Thomas's left leg was swollen. On follow-up consultation, Thomas stated that the pain in his scrotum and leg was so severe that he had been forced to quit his job at the convenience store. The opinion of Dr. Selby that Thomas was "unemployable" was stated in the Social Work Note, dated May 14, 1999 prepared by Social Work Associate Tamara Sperry.
Thomas had surgery on May 19, 1999 to remove his left testicle. Pathological examination of the testicle showed no malignancy. Percocet was prescribed for Thomas's post-operative pain and he was discharged.
In a follow-up exam on May 26, 1999, Dr. Leif Olsson, a VA urologist, examined Thomas and found no signs of post-operative infection. Dr. Olson detected what he believed to be a hydrocele in the left hemiscrotum. Later, on July 13, 1999, Thomas reported pain in the left region of his groin "most of the time." Dr. Olsson prescribed Motrin for pain and sitz baths.
On July 14, 1999, Thomas consulted with Dr. Michael Braverman, a psychiatrist retained by the Disability Determination Services of the Massachusetts Rehabilitation Commission, on the request of the Social Security Administration. Thomas told Dr. Braverman that he had recently had surgery for testicular cancer, that he had a congenital hip problem that was becoming worse, and that he suffered from recurring depression. Thomas also told Dr. Braverman that he had been hospitalized for a suicide attempt five years before, but had not had any psychiatric treatment since that time. Thomas told Dr. Braverman that he was anxious and unable to concentrate or deal with stress, and that he was experiencing problems sleeping and with diminished appetite. Thomas reported to Dr. Braverman that his poor physical health was one of the causes of his depression and anxiety. As a result of this consultation, Dr. Braverman diagnosed "significant" physical problems and recurrent major depression in reaction to multiple stressors, chief among them Thomas's physical problems.
On July 20, 1999, Thomas was examined by Disability Determination Services' internist, Dr. Daniel Dress. In the course of this examination, Thomas complained of cataracts, left hip and knee pain, chest pain, and continuing pain from his May 19 testectomy. Dr. Dress found that internal rotation of Thomas's left hip was painful and restricted to about two-thirds of normal, but that external rotation was full. Dr. Dress also found that Thomas had a full range of motion in his left knee and no swelling, pain or tenderness.
On August 12, 1999, Thomas went to the Springfield Southwest Community Health Center where he was given a complete physical exam by Dr. Daniel Layman, an internist. During this examination, Thomas reported pain in his left hip which, he stated, had been dislocated at birth and had caused him "problems all his life." Thomas also complained of cataracts, his left testicular "tumor," and May surgery. Hip and pelvis x-rays were taken the following day, August 13, 1999, but showed no abnormalities.
Thomas was referred to the clinics' urology department for follow-up on his testicular condition; he was examined by Dr. Leonard Shaker, a urologist, on August 23, 1999. During this exam, Thomas reported pain at the surgical site and also pain in his right testicle. An ultrasound of his scrotum at this time revealed a right spermatocele, and subsequent examination showed a transluminating cystic lesion at the head of the right epididymis, consistent with a spermatocele. At this time, Dr. Shaker discussed with Thomas the option of surgery to correct the right spermatocele.
"Spermatocele:" a cystic swelling in the ducts of the epididymis, usually containing spermatozoa. Websters, Third New International Dictionary (1986).
Thomas returned to the Southwestern Springfield Clinic the following day, August 24, 1999. Thomas stated that the pain caused by his testicular condition was so great that he was unable to work while Dr. Shaker waited for Thomas's medical records to be delivered from the Veterans' Administration. In a note recording Thomas's meeting with him, Dr. Layman wrote that Thomas was "unable to work until released by Dr. Shaker."
On September 21, 1999, Thomas returned to the clinic, again complaining of testicular pain. At this time Thomas was diagnosed with "spermatocele — symptomatic" and surgery was scheduled for September 24, 1999. On September 24 1999, Dr. Layman confirmed this diagnosis of Thomas as left hip pain. Dr. Layman further noted that major function had been restored and that Thomas needed no assistive device to ambulate.
Throughout this time period, Thomas also received mental health treatment. On August 25, 1999, he presented to the Behavorial Health Network, Inc. ("BHN"). In his initial consultation with a licensed therapist at BHN, Thomas reported that he had left his job because of "an argument with his supervisor." Thomas stated that his depression and anger had increased as a consequence of his testicular condition and his cataracts, as well as of the loss of his job and his resulting fear about not being able to provide for his family. Thomas also reported a suicide threat four years before and stated that he was having suicidal thoughts, but currently had no plan to kill himself. Thomas also reported past drug and alcohol abuse which had ended sometime in 1997.
A mental status exam conducted at this time described Thomas as having a depressed and nervous mood, sleep disturbances, diminished appetite, impaired concentration, short term memory difficulty, frequent anger, but "mostly intact" judgment and insight. Upon evaluation the BHN psychologist noted that Thomas was neatly dressed and groomed, was fully oriented, and gave no apparent symptoms of psychosis; he was also cooperative and made good eye contact. Nevertheless, his affect was consistent with his reportedly depressed mood and Thomas's concentration and attention were observed to be impaired. Upon the conclusion of this consultation. Thomas was diagnosed by Edmund Bouley, R.N, M.S., C.S., and Mark August, L.C.S.W., with depression, suicidal ideation, marital distress and employment and financial problems.
Thomas was subsequently evaluated by Dr. Darien McFadden, PhD, a psychologist at BHN, on September, 17, 1999. Thomas and McFadden discussed Thomas's anger and its possible sources. Thomas then resumed therapy with Bouley on September 21, 1999 during which Thomas underwent a metal status exam which showed irritability, anger, dysphoria, constricted affect and hypervigilance. Nurse Bouley diagnosed post-traumatic stress disorder ("PTSD") and major depression. Bouley expressed the opinion that Thomas "truly suffers" and indicated the "need to rule out intermittent explosive disorder." Bouley prescribed Remeron as a sleep aid and as treatment for Thomas's appetite disturbances, depression, and irritability.
Almost a month later, Thomas reported to Bouley that he had ceased taking Remeron as it made him itch. Because Thomas continued to show signs of depression, anger and irritability however, Bouley prescribed Prozac and Neurontin.
On October 1, 1999 Thomas's medical records were reviewed by Dr. Avad Ramachandra, MD, in the course of preparing a Physical Residual Functional Capacity Assessment for SSA. Dr. Ramachandra concluded that, notwithstanding his existing impairments, Thomas retained the ability to lift and carry twenty pounds occasionally, and ten pounds frequently, and to sit or stand for six hours in an eight hour day. Ramachandra also noted that the only other limitation of Thomas's physical functional capacity was that he should not crouch more than occasionally.
On October 25, 1999 also on request of the SSA, Thomas's mental health records were reviewed by Dr. Douglas M. Siegel, PhD.; Dr. Siegel reviewed. among other records, the intake assessment performed by BHN on August 25, 1999. On the basis of his review, Dr. Siegel prepared an assessment of Thomas's mental functional capacity and a psychiatric review technique form that rated the severity of Thomas's mental condition. Dr. Siegel concluded that Thomas had mental limitations only in his ability to maintain attention and concentration for extended periods, in accepting instructions and responding appropriately to criticism from supervisors, and in completing a normal workday or workweek without interruptions caused by his psychological symptoms. Dr. Siegel noted however that these limitations were, in fact, moderate. Dr. Siegel also concluded that Thomas's affective disorder, anxiety disorder and substance abuse in remission had resulted in slight restriction of his daily activities and moderate difficulty in maintaining social functioning, noting that Thomas demonstrated deficiencies of concentration, persistence or pace resulting in a failure to complete tasks. Finally, Dr. Siegel stated that there was insufficient evidence to determine whether Thomas's condition resulted in deterioration or decompensation.
In a consultation with BHN's Bouley on October 29 1999, Thomas told Bouley that he had recently gone to a neighbor's apartment to use a shower and heard a voice saying "crush, crush, kill, kill." Thomas told Bouley that he had experienced hearing voices this one occasion and no other.
In a consultation on November 5, 1999, Thomas reported to Bouley that he had been in a fight with a man who, Thomas claimed, had rubbed up against Thomas's fourteen-year-old daughter in a sexual way. Thomas stated however that he had not been involved in other incidents like this. By the end of November 1999, Sonata, a sedative hypnotic, was added to Thomas's medical regimen.
On December 7, 1999, Bouley prepared a Functional Capacity Assessment of Thomas's mental impairment. Bouley rated Thomas's "GAF" (global assessment of functioning) score at 51, indicating that Thomas had moderate psychological symptoms or moderate difficulty in social, occupational, or school functioning. Bouley concluded that Thomas had moderate restriction of the activities of daily living, marked difficulty maintaining social functioning and frequently had deficiencies of concentration, persistence or pace, resulting in failure to complete tasks. In contrast to Dr. Siegel's earlier evaluation, Bouley stated that Thomas had repeated episodes of deterioration and decompensation in work or work-like settings, exemplified by withdrawal for the situation or exacerbations of the signs and symptoms of his condition.
See generally American Psychiatric Assoc., Diagnosis and Statistical Manual of Mental Disorders, 32-34 (4th Ed. 1994).
On December 21, 1999 Thomas reported feeling less depressed but also reported incidents of unconsciously hitting his wife in his sleep. As a consequence, Bouley discontinued Thomas's prescription for Sonata, replacing it with Zyprexa. Subsequently, at his next consultation with Bouley, Thomas reported that he was no longer hitting his wife in his sleep, and that his energy level was much better during the day, such that Thomas was able to take walks and play pinball.
On February 4, 2000, Thomas reported that the medication was "helping him" "a great deal." He stated that he was "mellow" during the day and had not had any "rage attacks." Bouley recommended that Thomas take regular walks during the days so as to improve his sleep. About one month later, however, Thomas reported that his anger problem had returned, that he was not sleeping well and felt depressed. On March 17, 2000, Thomas told Bouley that he was "holed up" in the house playing computer games and watching television during the day and had problems sleeping at night.
During the course of his consultation with Thomas, Bouley noted that Thomas was alert and oriented, exhibited good hygiene and dress, had clear, spontaneous speech of normal rate and rhythm, full affect and intact judgment and insight. Bouley nevertheless described Thomas's mood as "concerned."
By letter dated May 19, 2000, Dr. McFadden stated his opinion that Thomas "will be unable to return to work at this time." Dr. McFadden wrote in another letter dated June 2, 2000 stating that Thomas had significant difficulty concentrating and remaining focused, experienced severe anxiety and agitation around people as well as anhedonia and decreased energy. In a letter dated June 5, 2000, Dr. McFadden wrote that Thomas was "disabled by his mental illness."
On June 1, 2000, Dr. McFadden completed a psychiatric/ psychological impairment questionnaire in which he gave Thomas a GAF rating of 58. Dr. McFadden reported a large number of findings relating to Thomas's condition, but noted that BHN, as a clinic, did not perform diagnostic "tests." Rather, Dr. McFadden stated that his diagnosis of Thomas was based on his initial evaluation and subsequent weekly therapy sessions. Dr. McFadden concluded the questionnaire by stating that Thomas had moderate or marked limitation in every area, including moderate limits in understanding, remembering and carrying out simple one or two step instructions, in asking simple questions or requesting assistance.
At a June 8, 2000 meeting with Thomas, Bouley noted that Thomas was still sleeping poorly, was easily emotionally aroused and was hypersensitive to personal slights. Bouley noted improvement in Thomas's lack of suicidal ideation however. In July of 2000, Thomas reported sleeping and eating well, but also felt depressed. Following these statements, Thomas's Neurontin dosage was reduced. The following month the prescribed dosage of Zyprexa was also reduced because of Thomas's weight gain and difficulty breathing; Thomas's weight increase ultimately led to the replacement of Zyprexa with Risperdal in September 2000. At this time Thomas reported sleeping well, eating well and had no acute symptoms form his PTSD.
At the hearing before Administrative Law Judge J. Alan McKay on June 6, 2000, the ALJ heard testimony from Thomas, who was represented by counsel, as to the nature and duration of his alleged disability. The ALJ also questioned vocational expert David Soja as to the existence of jobs which would match the residual functional capacity, if any, Thomas possessed. Soja stated that, on the basis of his review of Thomas's medical and occupational history, Thomas could perform what Soja described as "light" work in the national economy as a hand packer or assembler. Soja stated that such work was reasonable given Thomas's moderate physical, mental and social capacities. The ALJ reviewed the medical records submitted by Thomas in light of the testimony given at the June 6 hearing and concluded that Thomas was not disabled under the SSA regulations. The written decision of the ALJ was issued on June 29, 2000.
After the written decision of the ALJ was issued, Thomas requested review of the decision by the Appeals Council on July 12, 2000. He submitted additional evidence to the Appeals Council in support of his claim, including treatment notes by Bouley dating from June through December 2000, after the date of the ALJ's decision. Bouley stated that Thomas's pharmacotherapy continued during this period.
In a treatment note from June 8, 2000, Bouley noted that Thomas still had a high level of vigilance, was sleeping poorly, and was still subject to a "high level of arousal" which made interpersonal relationships difficult because Thomas could "easily fly off the handle and hit someone." Nonetheless, Bouley reported a degree of satisfaction with Thomas's progress thus far, stating that Thomas had no suicidal or homicidal thoughts and fewer psychotic symptoms. Nevertheless Bouley concluded that it was unlikely that Thomas would be able "to work competitively now or in the near future."
In the treatment note for July 20, 2000, Bouley stated that Thomas eats well and sleeps well at least in part because he takes "a good long walk" and his body is tired. In addition to his favorable assessment of Thomas's physical well-being, Bouley reported that Thomas's mental state was also positive: "no voices or visions, no suicidal or homicidal ideas, inclinations or urges. Judgment and insight are intact." Bouley discounted Thomas's report of feeling a little depressed, attributing this feeling to the sedative effects of the Neurontin.
Later, in a treatment note dated September 29, 2000, Bouley noted Thomas's weight gain, which he attributed to the medication. Bouley also stated that Thomas "exercises daily," "sleeps well, eats well and doesn't have any symptoms of a PTSD nature." Bouley also reported that Thomas has "no thought disorder" and that his "judgment and insight are intact."
Although Thomas apparently missed his next scheduled appointment with Bouley, according to Bouley's notes dated October 19, 2000, a telephone conversation permitted Bouley to state that Thomas had no suicidal or homicidal ideas, inclinations or urges.
In treatment notes describing a consultation with Thomas on November 8, 2000, Bouley reported that Thomas had been held up at gunpoint the week before. Thomas told Bouley that after this experience, he no longer wanted to leave the house at night; Bouley reassured him that this was a normal reaction. Otherwise, Bouley stated that Thomas has "no untoward or side effects from the medication and is not clinically depressed."
In treatment notes recorded after his consultation with Thomas on December 8, 2000, Bouley again noted that although Thomas expressed continued anger about having been robbed, he was sleeping well, had no suicidal or homicidal thoughts inclinations or urges, and "is not having intrusive thoughts of paranoid thinking." Bouley concluded that "we have reached maximum benefit from the medication in terms of efficacy balanced against side effects."
Thomas also submitted treatment reports from Dr. McFadden dating from January 3 to May 14, 2001. The record indicates that during this time, Thomas was seen by Dr. McFadden on six occasions.
In his treatment notes dated January 3, 2001, Dr. McFadden stated that Thomas was "in better spirits" and "a little less depressed." In the next consultation on February 20, 2001 however, Dr. McFadden reported that Thomas was "bored and uninterested in things" and felt badly about himself because his wife had told him he was lazy. Dr. McFadden spoke to Thomas about "doing things during the day to cut down on his boredom."
During a March 5, 2001 consultation, Thomas told Dr. McFadden that he felt depressed and moody but also said that he had a "great day" helping his landlord shovel snow the previous day. Nonetheless, Thomas reported that he "just didn't care about things."
Thomas and his wife attended the next consultation together on March 8, 2001. McFadden reported that Thomas continued to feel depressed. Thomas's wife told Dr. McFadden that when Thomas feels depressed he isolates himself from the rest of the family. McFadden urged them to work on their communication.
Approximately two months later, in a consultation on May 1, 2001, Thomas told McFadden that he was feeling better physically but that his mood was "up and down." Thomas also reported that he still felt angry but was working to control these feelings. Dr. McFadden encouraged Thomas "to get out more . . . to join the YMCA."
In the consultation on May 14, 2001, Dr. McFadden reported that Thomas had told him that he was "very depressed." Thomas attributed this feeling to the Mother's Day holiday which brought up memories of his abandonment as a child. McFadden again noted Thomas's tendency to withdraw from others when he feels depressed.
McFadden wrote a letter, also dated May 14, 2001, summarizing his evaluation of Thomas's mental health. McFadden stated that Thomas suffered symptoms of anxiety and depression, including insomnia, difficulty with concentration and focus, and "unpredictable angry outbursts." Dr. McFadden concluded that Thomas was "disabled by his mental illness" and that it would be "difficult for Thomas to successfully return to work at this time."
The ALJ's decision became the final decision of the Commissioner when the SSA Appeals Council rejected Thomas's request for review or rehearing, after considering the ALJ decision and additional evidence.
II. DISCUSSION
Thomas grounds his appeal of the Commissioner's decision on two contentions. First, Thomas argues that the ALJ's decision was based on what Thomas alleges was an improper weighting of the opinions of non-treating physicians and psychologists employed by the SSA to review Thomas's medical records over the opinions and evaluations of those individuals who actually treated Thomas's medical and psychological conditions. Second, Thomas argues that the ALJ exceeded his proper role when he presumed to evaluate Thomas's appearance and demeanor at the hearing, and in particular, to include this evaluation in his decision.
Standard of Review
A district court has the power to enter a judgment "affirming, modifying, or reversing a decision of the Commissioner of the Social Security Administration with or without remanding the cause for a hearing." 42 U.S.C. § 405(g). A denial of social security benefits must be upheld unless the Commissioner has committed legal or factual error in evaluating an applicant's claim. Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 16 (1st Cir. 1996).
The central question in this appeal is the determination whether Thomas has a disability as that term is defined within the Social Security system. An individual may be considered disabled only if he or she suffers from a medical condition which which makes it impossible to perform any substantial gainful work, and which can be expected to result in death or to last for a continuous period of at least twelve months. 42 U.S.C. § 416(i)(1), 423(d)(1); see Dacosta v. Apfel, 81 F. Supp.2d 235, 239 (D.Mass. 2000). Whenever a claimant is partially but not totally disabled by his impairments, the claimant is not disabled within the meaning of the Social Security Act. See Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965). In order to establish disability, the impairment must be so severe as to prevent the claimant from working not only in his usual job but in any other substantial gainful work. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f), 416.920(f); see McDonald v. Sec'y of Health and Human Servs., 795 F.2d 1118, 1120 (1st Cir. 1986).
A claimant's impairment will not form the basis of an entitlement where it is not supported by medical evidence. See Avery v. Sec'y of Health and Human Servs., 797 F.2d 19, 20-21 (1st Cir. 1986); Winn v. Heckler, 762 F.2d 180, 182 (1st Cir. 1985). In this respect, the Commissioner's factual findings are conclusive if supported by substantial evidence. 42 U.S.C. § s 405(g); Manso-Pizarro, 76 F.3d at 16; Lizotte v. Sec'y of Health and Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). Substantial evidence is such relevant evidence as a reasonable person would find adequate to support a conclusion. See Rodriguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981); Richardson v. Perales, 402 U.S. 389, 401 (1971). An administrative finding of fact is not based on substantial evidence however, "when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts." See Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam). While a reviewing court must take into account any contradictory evidence in the record, the First Circuit has stated that "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 Air Services, Ltd. v. F.A.A., 164 F.3d 713 (1st Cir. 1999) quoting Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). Finally, although a district court reviewing a decision of the Commissioner has discretion "to order additional evidence to be taken before the Commissioner," such an order can only issue "upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). After a review of the record before me, I conclude that the Commissioner's decision was supported by substantial evidence.
Analysis of Social Security Claims
Social Security Regulations mandate a five-step process for the evaluation of claims for SSI and DIB. 20 C.F.R. § 404.1520(b-f); see Goodermote v. Sec'y of Health and Human Services, 690 F.2d 5, 6-7 (1st Cir. 1982). Under these regulations, the Commissioner must first determine whether or not an individual is currently working at "substantial gainful activity," defined as work that involves doing significant mental or physical activities, a kind of activity usually done for pay or profit, whether or not any profit is realized. If so, the individual is considered "not disabled." 20 C.F.R. § 404.1520(b).
The second inquiry is whether the claimant has a "severe impairment": an impairment which "significantly limits the claimant's physical or mental capacity to do basic work activities." 20 C.F.R. § 404.1520(c). If the claimant's disability does not fall within this definition, he or she is considered "not disabled." Id.
Third, the SSA inquires as to whether the claimant's impairment meets the duration requirement and equals an impairment on the list of impairments set forth in Appendix I to the Social Security regulations. If it does, the claimant will be considered disabled. 20 C.F.R. § 404.1520(d).
The fourth step is an inquiry into whether the claimant's impairment permits the kind of mental and physical demands of the claimant's past work. If so, the plaintiff is considered "not disabled." 20 C.F.R. § 404.1520(e).
Fifth, and finally, the SSA evaluates a claim on the basis of whether the claimant can do other work, taking into account the claimant's "residual functional capacity" ("RFC"), age, education, and past work experience. If not, the claimant is considered disabled. 20 C.F.R. § 404.1520(f).
Application to Thomas's Claims
The ALJ applied this evaluative scheme to the facts of Thomas's impairment as demonstrated in the record. First, the ALJ determined that Thomas had not engaged in substantial gainful activity since his alleged onset date, April 19, 1999.
The ALJ next considered whether the record demonstrated that Thomas's impairment was "severe," meaning that it significantly limited Thomas's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521, 416.921. The ALJ rejected Thomas's allegation that he had been treated for "testicular cancer," noting that the medical evidence in the record demonstrated only that Thomas had received treatment, and surgery, for a non-malignant hydrocele and spermatocele. The ALJ thus concluded that Thomas' allegation of cancer was without merit.
The ALJ also rejected Thomas' claims of a severe impairment of his hip, knee, and heart. The ALJ cited the physical examination of Thomas legs which showed that the left hip produced pain on internal motion and had a range of motion limited to two-thirds of normal. The ALJ also considered an x-ray of Thomas's hip and knee which showed diffuse tendinitis throughout, but noted that this was within "normal limits." An electrocardiogram taken at this time showed normal readings. On this evidence, the ALJ concluded that these impairments would not result in any significant work-related limitations and therefore could not be considered "severe" under the regulations.
Nevertheless, the ALJ stated that, upon his review of the record, Thomas did suffer residual pain from the surgeries, as well as depression, anxiety and PTSD which met the definition of severe within the regulations, but, following the next step of the evaluative scheme, were not severe enough to meet or medically equal one of the impairments specifically identified in Appendix I. The ALJ considered the statements of Bouley and Dr. McFadden, both of which indicated that Thomas was disabled. The ALJ also considered statements of consulting psychiatrist Braverman to the effect that Thomas was unable to concentrate and deal with stress. However, the ALJ also noted Dr. Braverman's opinion that Thomas's condition was likely to improve with psychiatric treatment. The ALJ also took into account the opinions of the consulting psychologists of the Disability Determination Service, who reached less negative conclusions about Thomas's condition. For example, the ALJ acknowledged the opinion of psychologist Blaisdell who stated that although Thomas's impairment seemed severe at the time, "it would not be severe by March 2000," in other words within one year of the alleged onset date. Likewise, the ALJ considered the opinion of consulting psychologist Siegel, who had concluded that Thomas's impairment did not rise to the listing severity level under the regulations. The ALJ concluded that Thomas's impairment did not meet or medically equal any of the listed impairments.
Specifically, the ALJ rejected as "extreme" the opinions of Bouley and Dr. McFadden that Thomas was unable to work and was disabled. He explained his view that Dr. Siegel's analysis of Thomas condition was most consistent with the medical evidence, especially in light of Thomas's progress discussed in the treating notes and also "his bearing at the hearing." The ALJ declared himself in agreement with Dr. Siegel's assessment that Thomas was "moderately limited in his ability to maintain attention and concentration for extended periods, to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods and to accept instructions and respond appropriately to criticism from supervisors." As one factor supporting this conclusion, the ALJ cited the fact that Thomas had been appropriately dressed and groomed for the hearing and intake interview. The ALJ also considered relevant evidence contained in Thomas's progress notes which showed that he did in fact go out of his house and played pinball. The ALJ stated that this evidence showed that Thomas had "slight limitations in activities of daily living."
The ALJ then discussed evidence that Thomas had been let go from one job for fighting, and that he had previously been abusive to his spouse as supporting the conclusion that Thomas had "moderate limitations in his social functioning." The ALJ also found evidence supporting the conclusion that Thomas had deficiencies of concentration, persistence and pace, pointing to evidence in Thomas's progress notes which showed that he becomes overwhelmed with stress and is unable to sleep. However, the ALJ noted that the medical evidence in the record was inconclusive as to whether Thomas had episodes of decompensation or deterioration when at work or in a work-like setting.
As the evaluative scheme requires, the ALJ next considered whether Thomas retained the residual functional capacity to perform his past relevant work or other work. Noting that the definition of "residual functional capacity" is "the most an individual can still do after considering the effects of physical and/or mental limitations that affect the ability to perform work related tasks," the ALJ concluded that Thomas had the residual functional capacity qualifying him for "light work:" the capacity to lift up to ten pounds frequently and up to 20 pounds on occasion, with no more than occasional crouching. Reflecting the physical and other psychological limitations noted above, the ALJ also concluded that Thomas's residual functional capacity required "minimal contact" with the public and co-workers.
The ALJ reached his conclusion in reliance upon the assessment of Dr. Ramachandra, the consulting physician at the Disability Determination Service, which the ALJ concluded was "consistent with the objective evidence of the record." In adopting Dr. Ramachandra's assessment, the ALJ rejected Thomas's allegations that he was unable to "lift more than a gallon of milk," was unable to walk more than one block, and was able to sit for only about one hour due to his pain, as "not entirely credible." The ALJ further stated that the medical evidence in the record did not support the limitations on his physical activity which Thomas claimed. For example, the ALJ noted that nothing in the medical progress notes supported Thomas's claim that his medications made him feel "tired and dizzy." Indeed the progress notes specifically stated that Thomas had no dizzy spells from the medications.
Given his determination of Thomas's residual functional capacity, the ALJ next addressed the question of whether Thomas could perform any of his past relevant work, or if not, whether the Social Security Administration had shown that there are in fact other jobs existing in significant numbers in the national economy which Thomas could perform, in light of his residual functional capacity, his age, education and work experience. The ALJ stated that, based on the evidence before him, Thomas was unable to perform his past relevant work. The ALJ explained that Thomas's past relevant work had required that he lift more than twenty pounds or have more than minimal contact with the public or coworkers. Because the record evidence, particularly the assessments of Dr. Ramachandra and Dr. Siegel described above, expressly ruled out these activities for Thomas, the ALJ concluded that he could not return to his past relevant work.
The ALJ then scrutinized the evidence proffered by the SSA to show that Thomas could find other work fitting his several limitations. This evidence took two forms: first, a series of rules derived from the Medical-Vocational Guidelines of Appendix 2 of Subpart P of the SSA regulations, the "Grid", 20 C.F.R. § 404.1563, 416.963, and second, the assessment of an impartial vocational expert.
Applying the facts of Thomas's case to the Grid set out in the Guidelines, the ALJ determined that Thomas's age of 36 qualified him as a "younger individual," possessed of a high school education, or its equivalent, with transferable skills from his prior work. See 20 C.F.R. § 404.1563, 416.963. The ALJ next concluded that according to the Guidelines, Thomas had the residual functional capacity for "light work," namely the lifting of no more than twenty pounds, and the frequent lifting or carrying of objects weighing up to ten pounds. See 20 C.F.R. § 404.1567, 416.967. The ALJ noted that in addition to its lifting requirements, light work also involved a "good deal" of walking or standing and frequently, when sitting, the operation of arm and leg controls. The ALJ observed that the capacity to do light work, by definition, establishes the claimant's capacity to do less arduous "sedentary work."
The ALJ then considered the opinion of vocational expert David Soja as to whether Thomas could find light work which matched his residual functional capacity in the national economy. Soja stated at the hearing that, given all the factors identified in his medical history, Thomas could work as a "hand packer" or an "assembler" of which there were 1,350 and 6,250 jobs in Massachusetts respectively. The ALJ concluded that Thomas was "not disabled" within the framework of Medical-Vocational Rule 202.21 on the basis of the Guidelines and the testimony of the vocational expert.
Substantial Evidence
Based on my review of Thomas's medical records and the decision of the ALJ, I find that the decision to deny Thomas disability benefits was based on substantial evidence. The ALJ's decision to prefer the medical opinions of Dr. Ramachandra and Dr. Siegel over the opinions of other doctors and psychologists was appropriate and reasonable. See Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 144 (1st Cir. 1987) (in reaching disability determination, ALJ may "piece together" relevant medical facts from findings and opinions of multiple physicians).
Thomas contends that the ALJ committed an error in not giving greater weight to the opinions of treating physicians, specifically Dr. McFadden, than to other physicians. Thomas cites language in DaCosta v. Apfel stating that, under 20 C.F.R. § 404.1527, "a treating doctor's opinion may be entitled to controlling weight, but only when the opinion is well-supported by medically acceptable diagnostic techniques and is not inconsistent with other substantial evidence of the record." 81 F. Supp.2d at 241 (emphasis added). Given the flexibility of the standard as reflected in the language of DaCosta, the plaintiff's argument is without merit.
Contrary to the plaintiff's attempt to draw larger implications from its holding, DaCosta simply expresses the principle that a treating physician's opinion may be afforded controlling weight, in absence of contradictory evidence. See id. In this case, the ALJ expressly found the opinions of the treating professionals to be "extreme" and in contradiction to the opinions of Doctors Ramachandra and Siegel. Under such circumstances it was not unreasonable for the ALJ to have chosen not to have afforded the opinion of Dr. McFadden controlling weight. See id. Moreover, the First Circuit has expressly rejected a per se rule affording priority to the opinions of treating, as opposed to non-treating, physicians in social security disability cases. See Arroyo v. Sec'y of Health and Human Servs., 932 F.2d 82, 89 (1st Cir. 1991). In Arroyo, the Court stated the rule succinctly: "the law in this Circuit does not require ALJs to give greater weight to the opinions of treating physicians." Id., citing Tremblay v. Sec'y of Health and Human Servs., 676 F.2d 11, 13 (1982); Lord v. Apfel, 114 F. Supp.2d 3, 15 (D.N.H. 2000) (treating physician opinion not assigned controlling weight but must not be disregarded).
From my review of the record, it is clear that the ALJ took into account the opinions of Thomas's treating and non-treating physicians alike. Indeed, contrary to the contention of Thomas, I note that the ALJ gave ample consideration to the assessments of both Nurse Bouley and Dr. McFadden. The mere fact that he rejected their evaluations as "extreme" and adopted the assessments of non-treating Doctors Ramachandra and Siegel does not amount to an absence of substantial evidence.
Thomas contends that the ALJ's decision was erroneous in light of evidence "timely submitted to the Appeals Council" after the date of the ALJ decision. Specifically, Thomas argues that Dr. McFadden's treatment notes indicating Thomas's continued depressive symptoms, mood swings, and angry outbursts reveal the error in the ALJ's determination that Thomas's condition was improving.
The First Circuit has held that judicial review of the decision of an ALJ must be based "solely on the evidence presented to the ALJ." Mills v. Apfel, 244 F.3d at 5. Acknowledging a split among the Courts of Appeal concerning the scope of judicial review of the decision of the ALJ in light of a subsequent refusal of the Appeals Council formally to review that decision, Mills held that the reviewing court was limited to the record established before the ALJ. See id.
The First Circuit noted however that such a rule posed some analytical difficulty, in light of the fact that the Commissioner expressly allows the introduction of new and additional evidence by a claimant upon a request for Appeals Council review. See id. at 4. The court in Mills addressed this situation by holding that a reviewing court may consider additional evidence submitted to the Appeals Council where the Appeals Council's refusal to review the ALJ decision was based on "an egregiously mistaken ground." See id. at 5. The court explained: "the Appeals Council `may have made a mistake' in refusing to consider new evidence presented to it, depending on the ground it gave. . . . In such a situation, if the Appeals Council mistakenly rejected the new evidence on the ground that it was not material, we think a court ought to be able to correct that mistake . . ." 244 F.3d at 5. Thus under the rule articulated in Mills, I may consider the additional evidence offered by Thomas in order to determine whether the Appeals Council was egregiously mistaken in refusing to review the decision of the ALJ. See id. at 4-5.
Applying this analysis, I note first that the Appeals Council acknowledged the additional evidence submitted by Thomas, but concluded that it did not provide a basis for changing the ALJ's decision. I find that the refusal to review the ALJ decision was not egregiously mistaken.
The additional evidence which Thomas offered to the Appeals Council, consisting primarily of treatment notes prepared by Dr. McFadden and Bouley upon consultations with Thomas subsequent to the ALJ's decision, was, as the Appeals Council observed in its letter of March 13, 2002, "duplicative or cumulative of evidence" that had already been put before the ALJ and the Appeals Council. This evidence provides little in the way of new information demonstrating either that the ALJ failed to account properly for Thomas's medical history or that the Appeals Council's refusal to review the ALJ decision was severely mistaken. See Mills, 244 F.3d at 5. Indeed, these notes depict a treatment regimen of medication and therapy that seems to be working; Bouley frequently notes Thomas's improved sleeping patterns, appetite, intact judgment and insight, and the absence of depression. Significantly, Bouley states with some satisfaction that Thomas is engaging in regular exercise, including "long walks" which, in fact, lends credence to the ALJ's determination that Thomas's alleged inability to walk more than one block was not supported by evidence in the record. In short, the additional medical evidence submitted by Thomas does not reveal an "egregiously mistaken ground" for the Appeals Council's refusal to review the ALJ's decision. See id. Under such circumstances, remand for the taking of additional evidence is not warranted. See 42 U.S.C. § 405(g).
Role of ALJ
Thomas also argues that the ALJ's reliance on his own lay observations, and psychological interpretations of Thomas's appearance and demeanor at the hearing was improper, "outside [his] expertise" and transgressed his proper role. Thomas concedes that an ALJ is properly a fact-finder, but asserts that the ALJ somehow crossed the line and acted as a "psychological expert" which he had no authority to do. I find this contention without merit on two grounds.
First, even if the ALJ had transgressed the proper bounds of his role (which I do not accept) by offering his opinion that "claimant was able to give a coherent history of his medical treatment and able to give answers which were not tangential, but direct answers to the questions asked," and "[claimant] was able to function in what was a stressful situation for him," such statements would not be sufficient to call into question the other substantial evidence of Thomas's medical history which supported the ALJ's decision. Of course, if the ALJ had based his conclusion that Thomas was not disabled solely on his impressions of Thomas at the hearing, then a closer question would be presented whether his conclusion was supported by substantial evidence.
But that is not what happened here: the ALJ discussed and considered each and every available piece of evidence in Thomas's medical history and made a reasoned determination on the basis of the evidence that Thomas was not disabled. A pertinent observation made in the course of such a determination will not undermine an otherwise valid analysis.
Moreover, I find the ALJ's statements to be appropriate reflections of his role as finder of fact. See Lord, 114 F. Supp.2d at 12 (ALJ is responsible for settling credibility issues, drawing inferences from record evidence and resolving conflicting evidence). As Thomas concedes, the ALJ is authorized to make credibility determinations of the evidence before him. In this case, it is significant that the ALJ's allegedly improper comments were made as part of a consideration of the efficacy of the therapy and medication in treating Thomas's "severe mental impairment" which, as the records indicated, included difficulty with concentration, focus, as well as a tendency to "become overwhelmed with stress" and have "temper tantrums."
The comments alleged to have been improper here are, in fact, quite similar to comments made by an ALJ and approved in Lizotte, 654 F.2d at 130. In Lizotte, the First Circuit rejected the plaintiff's claim that the ALJ had not properly accounted for the claimant's alleged inability, among other impairments, to relate to or tolerate other people, noting that the ALJ had in fact addressed this claim by means of his observations of the claimant's appearance and behavior at the hearing. The ALJ in Lizotte had written that the claimant in that case
exhibited no significant observable physical signs which could be related to [his disability]. At the hearing, claimant did not appear preoccupied with personal discomfort and his thoughts did not wander during the hearings. He answered questions alertly and his general appearance suggested no obvious abnormality.654 F.2d at 130. The Lizotte Court explained that this statement was a proper execution of the ALJs plenary responsibility as a finder of fact, stating that "questions of demeanor and credibility are correctly left for the Secretary." See id.
Given the other support in the record, I conclude that the ALJ did not impermissibly substitute his lay assessment of Thomas's RFC or exceed his fact-finding role, but supportably relied on the opinion of the non-examining consultants, see Arroyo, 932 F.2d at 89; Lizotte, 654 F.2d at 130, in making the reasoned judgment he was required to make.
III. CONCLUSION
For the reasons set forth more fully above, the final decision of the Commissioner is AFFIRMED.