MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY #12); DEFENDANT'S MOTION FOR ORDER AFFIRMING THE DECISION OF THE COMMISSIONER (DOCKET ENTRY # 15)
Pending before this court are cross motions by the parties, plaintiffDarleen M. Arruda ("Arruda") and defendant Jo Anne Barnhart, Commissionerof the Social Security Administration ("the Commissioner"). Arruda movesfor a reversal of the decision of the Commissioner or, in thealternative, a remand under 42 U.S.C. § 405(g). (Docket Entry # 13).The Commissioner moves for an order affirming the denial of benefits.(Docket Entry # 15). Inasmuch as a hearing, which neither partyrequested, see LR. 7.1(d), is unnecessary, the matter is ripefor review.
On April 24, 2000, Arruda, a 38 year old former home health aide andresidential counselor, filed applications for supplemental securityincome benefits and disability benefits. In her applications under TitleII and part A of Title XVIII of the Social Security Act, Arruda alleged that she has been disabledsince March 24, 2000, due to gastroesophageal reflux disease ("GERD"),depression, anxiety attacks, hypertension, edema, asthma and diabetesmellitus. (Tr. 93 & 106).
On October 19, 2000, the Social Security Administration ("the SSA")denied Arruda's applications. The SSA determined that although Arrudadoes have GERD, asthma, diabetes mellitus, depression and anxiety whichprevent her from doing her past job, she is not prevented from doingother work. (Tr. 57).
In December 2000, Arruda filed a pro se request for reconsideration. Ina reconsideration disability report filed in conjunction with thisrequest, Arruda additionally claimed she was disabled due to a herniateddisk and sciatic problems with her right leg. On February 6, 2001, theSSA denied the request for reconsideration. On February 13, 2001, Arrudarequested a hearing before an administrative law judge ("ALJ") andreiterated the diagnosis of two herniated disks and a hiatal hernia. (Tr.64-65, 69, 129, 135, 360 & 362).
On December 17, 2001, with Arruda represented by counsel, the ALJconducted a hearing. On April 12, 2002, the ALJ rendered a writtendecision finding that Arruda was not disabled within the meaning ofsections 216 and 223 of the Social Security Act, 42 U.S.C. § 416 and423. The ALJ further found that Arruda was not entitled to a period ofdisability or to disability insurance benefits, nor was she eligible forsupplementary security income. (Tr. 16 & 23-26). As set forth in the decision, the ALJ viewed Arruda's impairments asincluding back pain, depression and diabetes mellitus and that theyimpacted her ability to do basic work activities. While the ALJ foundthat the limitations did not meet or equal any of the impairments listedin 20 C.F.R. § 404, Subpart P, Appendix 1, the ALJ determined thatArruda's past work was beyond her residual functional capacity. The ALJconcluded, however, that there were jobs that exist in significantnumbers in the regional and national economies which Arruda was able toperform. (Tr. 18 & 21-22).
On May 20, 2002, Arruda, represented by counsel, filed an appeal of theALJ's decision. On December 20, 2002, the Appeals Council denied Arruda'srequest for review and affirmed the ALJ's conclusion thereby rendering ita final decision of the Commissioner. (Tr. 8 & 11-12). On March 11,2003, Arruda filed the present action. (Docket Entry # 3).
Arruda asserts that the ALJ failed to give appropriate weight to theopinions of the treating physicians and the treating psychologist. Shefurther contends that the ALJ failed to follow the proper standards forpain evaluation as set forth in Avery v. Secretary of Health andHuman Services, 797 F.2d 19 (1st Cir. 1986), and Social SecurityRuling 96-7p. Finally, Arruda argues that the ALJ failed to make thefindings required by certain regulations applicable to the functionallimitations caused by her mental impairment. (Docket Entry # 13).
Examining the administrative record as required, see Wilkins v. Secretary of Department of Health and Human Services,953 F.2d 93, 96 (4th Cir. 1991) (limiting social security review toadministrative record); 42 U.S.C. § 405(g), this court turns to thefactual history.
A. Background Information
Born on September 18, 1965, Arruda is five feet seven or eight inchestall and weighs between 285 and 399 pounds.1 She did not graduatefrom high school but did receive a graduate equivalency degree in June1993. Arruda is licensed as a residential counselor, a home health aide,a nurse's aide and a foster mother. She completed the MassachusettsApproach to Partnership in Parenting training in March 1999 in order toqualify to foster or adopt children from the Department of SocialServices. (Tr. 32, 93, 105, 112 & 124).
Arruda is single and has never been married. She lived by herself at338 Mott Street in Fall River, Massachusetts at the time she applied forbenefits. She has lived with her sister in a second floor apartment at241 Barnes Street in Fall River since late 2000. (Tr. 31, 95, 105, 154& 287). Arruda worked as a nurse's aide, residential aide or home health aideat nursing homes through various agencies and in a homeless shelterbetween 1985 and 1992. She worked as a residential counselor in a grouphome from September 1992 until April 1996. Arruda's most recentemployment was as a privately contracted personal care attendant in agroup home for physically and mentally handicapped individuals. Accordingto her testimony at the hearing, Arruda helped the eight individuals,ranging in age from 22 to 62, with activities of daily living. She heldthis position from September 1998 to March 2000.2 (Tr. 33, 98-99,107, 115-122 & 139).
In the disability report that she filed with the SSA on April 24, 2000,Arruda stated that her conditions first began to bother her on April 6,1988. According to Arruda, she stopped working as a personal careattendant on March 24, 2000, because she could not lift the patients andneeded a less stressful environment. She also indicated that prior toleaving her job she worked fewer hours, altered her job duties and madechanges in attendance because of her injuries. At the hearing, Arrudatestified that she "went to light duty" because of her injuries from afall at work but still could not keep up with workload. Because herdoctor advised her not to perform her job, Arruda asked for extended sickleave. Her employer, however, refused and Arruda quit citing medical reasons, according to her testimony.(Tr. 33-36 & 106).
At the hearing, Arruda testified that it is a physical challenge forher just to take care of her own needs throughout the day. She assertedthat the medications she takes cause her to be "out of it" (Tr. 37) andestimated that it takes her an hour to prepare an egg sandwich forbreakfast. She further testified that her sister will "set her up" in themorning by preparing her a bath if needed before going to work. Arrudastated that she generally stays home all day watching television andsleeping because of the pain and the medications. She neverthelessestimated that she usually leaves home about three times a week to visitfriends, go shopping or attend doctor's appointments. Arruda testifiedthat she shops with her sister but that she is only able to walk down twoor three aisles in a store before she must return to the car while hersister completes the shopping, bagging and carrying of the groceries. Shealso indicated that she does dishes while sitting in a chair and preparessandwiches but is unable to cook things like pasta because she cannotcarry the pot. Arruda testified that she drove to the hearing. (Tr.36-39).
On an SSA questionnaire regarding her activities of daily livingcompleted on June 8, 2000, Arruda noted that she prepares lunch anddinner for herself three times a week, making microwave meals and fastfoods. She indicated that she needs assistance picking up heavy pans andhas difficulty standing for long periods of time, bending over to put food in the oven or picking upitems that she drops on the floor. Arruda also noted that she doeshousehold jobs such as washing dishes, dusting and folding laundry from achair. She receives help from family members with other chores thatrequire lifting and walking back and forth. She indicated that she goesshopping "one time bi-weekly" with her sister or a friend. (Tr. 125). Ongood days, Arruda will drive to the shopping. Arruda also indicated thatshe watches television throughout the day and night, although sheasserted that she has trouble concentrating on what she watches becauseof stress and pain in her legs and back. She also looks through magazinesand reads the newspaper for about five minutes. She expressed an interestin a wide range of activities, including doing crafts, going to fleamarkets and renovating homes and furniture. She asserted, however, thatshe could not do these activities anymore because of her physical andemotional problems. Arruda further indicated that she eats out and visitsfriends socially, although she now ends the visits early because of hercondition. (Tr. 124-126).
In a December 2000 request for reconsideration of her disability due tothe recently diagnosed herniated disk, Arruda described a similarpicture. Therein, she described her diabetes as "uncontrolled" and thatshe "cannot shop for [a] long time . . . cannot carry groceries or putthem away without assistance, cannot unload or carry laundry, cannot walkor climb stairs holding anything because [she] needs bars to pull upstairs, [she is] restricted bending up and down because of pain and swelling. . . ."(Tr. 130). Arruda further indicated that she cannot carry heavy objects,vacuum or mop the floor, or sit in the tub and get out withoutassistance. She also noted that she must sit down while cooking, washingdishes or dressing. (Tr. 130).
B. Medical History
In her applications and in her testimony before the ALJ, Arrudamaintained that she is disabled and suffering from a back injury,anxiety, depression, diabetes mellitus, asthma, hypertension and GERD. OnApril 22, 2000, Diane Patrick, M.D. ("Dr. Patrick"), Arruda's treatingphysician, completed a medical report for the Massachusetts Department ofTransitional Assistance. On the form, Dr. Patrick diagnosed Arruda withdiabetes mellitus, GERD, anxiety, depression and hypertension. Sheindicated that Arruda was unable to work for approximately three monthsbecause she needed an "un-stressful environment." (Tr. 203). Shecharacterized Arruda's prognosis as "good." (Tr. 204).
On May 8, 2000, Arruda reported to Dr. Patrick that she had injured herback in a fall at work in December 1999 but had continued to work afterthat injury until March 2000. Dr. Patrick noted that on examinationArruda had diffuse lumbar tenderness. A straight leg raise test waspositive at 70 degrees, although she had a full range of motion in herlumbrosacral spine. Dr. Patrick's records indicate that Arruda wastearful and appeared depressed yet declined a prescription for antidepressant medication. She preferred to see a counselorwhen she received insurance. Dr. Patrick diagnosed Arruda's conditions aspoorly controlled diabetes mellitus, anxiety or depression, sciatica andchest pain of unknown origin. She suggested that Arruda have anelectrocardiogram ("EKG") to evaluate her chest pain and a magneticresonance imaging ("MRI") test to evaluate the sciatica. (Tr. 201 &211).
Dr. Patrick also completed a Massachusetts Department of TransitionalAssistance emergency aid medical report on May 8, 2000. On the form, Dr.Patrick indicated that Arruda had a physical and/or mental impairmentmeeting or equivalent to the department's standards or the SSA listing ofimpairments that was expected to last more than one year. She alsoindicated that Arruda needed insurance coverage to pursue furtherevaluation. Dr. Patrick listed Arruda's impairments as poorly controlleddiabetes mellitus with sugar readings of 400, unstable angina and lowback syndrome or sciatica. She further opined that as a result of theseconditions, Arruda could walk less than 100 feet, could stand, sit oralternate between positions for less than one hour, could never bend orstoop, had significant leg restrictions and could not even occasionallylift or carry ten pounds. Dr. Patrick further noted that Arruda's moodproblem moderately limited her ability to work at a constant pace withoutextraordinary supervision or to respond appropriately to changes in workroutine or environment. She nevertheless opined that Arruda was notlimited in her ability to remember and carry out simple instructions and only slightly limited in maintainingattention and concentration, making simple work decisions and interactingappropriately with coworkers and supervisors. (Tr. 207 & 209-210).
On May 25, 2000, Arruda was admitted to Charlton Memorial Hospital inFall River complaining of chest pain. Upon examination, the emergencyroom physician described the pain as located on the left side of thechest and characterized by tightness and a sensation "like a charlie[sic] horse." (Tr. 160). He further noted that the onset of the pain wasduring emotional upset. His clinical impression expressed doubt that thepain was caused by cardiac ischemia and opined that it might be caused byanxiety. Notably, he described Arruda1s extremities as non-tender with anormal range of motion. (Tr. 159-164).
On May 27, 2000, Charles Mandell, M.D. reported the results of Arruda'sradiological exam at the hospital. He noted that there were nosignificant abnormalities of the heart or lungs and identified novisualized bony structures. He concluded that Arruda's examination wasnormal. (Tr. 162).
On June 13, 2000, Arruda saw Dr. Patrick again regarding back pain. Dr.Patrick's notes indicate that Arruda reported the pain as traveling downthe left leg without numbness. Dr. Patrick noted diffuse lumbartenderness, an ability to flex ten degrees while walking and positivestraight leg raising at 70 degrees for her left leg and 50 degrees forher right leg. (Tr. 212). In June 2000, an examiner completed a medical evaluation sheet onbehalf of the Massachusetts Disability Determination Services("DDS").3 The examiner noted that Arruda's alleged impairments ofGERD, diabetes mellitus, hypertension, asthma, obesity, depression andanxiety were not severe impairments. It was also noted that there was noevidence of target organ damage from diabetes mellitus orhypertension.4 (Tr. 140).
Arruda saw Dr. Patrick again on August 8, 2000. Dr. Patrick noted thatArruda complained of trouble getting around, difficulty walking, fluidretention, aching legs, back pain and associated right leg pain. Arrudaindicated that she had gone to court the previous week and had gottenupset but that taking Ativan had helped her feel better. Dr. Patrick alsonoted edema in the thighs, diffuse lumbar tenderness and tenderness ofthe right leg. Arruda's straight leg raise test was positive at 80degrees for her right leg. Dr. Patrick noted her impressions of Arruda'scondition as edema, sciatica and diabetes mellitus. (Tr. 213-214).
Arruda returned to Dr. Patrick on August 24, 2000, still experiencingedema and GERD. Dr. Patrick's notes reflect that Arruda felt "better" and that her back was "a bit better." AlthoughDr. Patrick again noted diffuse lumbar tenderness, she indicated thatArruda had a full range of motion. (Tr. 214).
Arruda was admitted to Charlton Memorial Hospital again on September 5,2000, complaining of chest pain that began the previous night. Theemergency physician record indicates that Arruda's chest pain wascharacterized by pressure, tightness and aching in the center of herchest aggravated by anxiety and relieved by rest. The emergency roomphysician noted that the onset of the pain occurred with emotional upsetand that the pain was mild at its worst and almost gone when Arruda wasseen in the emergency room. The physician expressed doubt that Arruda'spain was related to cardiac problems and opined that anxiety, stress andhypertension might be the cause. Significantly, he also described theextremities as non-tender and Arruda as having a normal range of motion.(Tr. 166-168 & 215).
Arruda returned to the emergency room at Charlton Memorial Hospital onSeptember 12, 2000, where she was examined by Richard Nunez, M.D. ("Dr.Nunez"). According to Dr. Nunez, Arruda's chief complaint was that shewas being poisoned. He described Arruda as "an overweight woman restingin bed, in no acute distress." (Tr. 170). With a glucose level of 311,Dr. Nunez concluded that Arruda had poorly controlled diabetes mellitusand severe anxiety and suggested a social services consultation togetherwith a follow up appointment with Dr. Patrick. Notably, the past medicalhistory fails to reflect a lower back syndrome. Arruda was discharged from the hospital the same day. (Tr. 169-171).
On September 14, 2000, Michael J. Meuth, M.D. ("Dr. Meuth") examinedArruda in consultation at Charlton Memorial Hospital where she wasadmitted for evaluation after seeing Dr. Patrick with an episode of chestpain. She remained in the hospital until September 19, 2000. Afterconducting an EKG and noting her weight problem, Dr. Meuth concluded thather chest pain and shortness of breath were not of cardiac origin. (Tr.173-174, 182 & 223).
Dr. Patrick also examined Arruda on September 14, 2000, at thehospital. Describing Arruda as recently having "been under tremendousstress," Dr. Patrick noted that Arruda came to see her complaining ofchest pain on the left side, occasionally radiating to the left arm withsweats and shortness of breath. Upon examination, Arruda's lungs wereclear and her heart had a regular rate and rhythm. There were no backspasms. She also described Arruda as recently experiencing only "somelow-back discomfort with radiation to the legs." (Tr. 177; emphasisadded). Dr. Patrick concluded that Arruda should be kept for cardiacevaluation as she had several risk factors such as smoking, diabetesmellitus, hypertension and family history. She also added Actose toimprove sugar control and increased Arruda's dosage of Lasix to improveher peripheral edema. (Tr. 176-178).
A September 14, 2000 radiological report concluded there was noevidence of intrathoracic disease. (Tr. 184). A second report detailing the results of a stress test, which Arrudatolerated "well," similarly revealed no arrhythmias or diagnostic EKGchanges. (Tr. 185-187).
Dr. Meuth performed a cardiac catheterization test on September 18,2000. After interpreting the test results, he opined that "her chest painis not of a coronary disease nature." (Tr. 183). He did not see the needfor further testing and simply recommended that Arruda stop smoking andbegin lifestyle modifications such as exercise and dietary changes. (Tr.182-183).
In the September 19, 2000 discharge report, Dr. Patrick describedArruda as "amubulatory" and only "a bit limited because of her back."(Tr. 175; emphasis added). Dr. Patrick further noted that Arrudacomplained of diffuse low back discomfort with some radiation to thelegs, but that there were no back spasms on examination and the resultsof straight leg raise testing were negative. Dr. Patrick also referredArruda to the Diabetes Treatment Center at the hospital to manage herdiabetes mellitus. Arruda attended the center on October 5, 2000, andonly completed one part of the two part core curriculum.5 (Tr. 175,179-181, 188, 193, 223 & 237).
On September 27, 2000, James M. Slayton, M.D. ("Dr. Slayton") conducteda consultative examination of Arruda for DDS. In a telerecorded message of his findings created on September 30,2000, Dr. Slayton noted that Arruda drove to the office withoutlimitations, was approximately 20 minutes late and complained primarilyof anxiety with panic attacks and anger. She reported that she fell atwork on a wet floor in December 1999, landing on her buttocks andtwisting her leg. She further noted she was scheduled for an open tableMRI on September 29, 2000. Arruda indicated that despite her injury shehad continued working on light duty at the residential homes betweenDecember 1999, when she was injured, and March 2000. She reported that inMarch 2000 she could no longer lift the residents because of back painand sciatic pain in her leg. (Tr. 152).
Arruda reported to Dr. Slayton that she first became depressed in 1987when her son was stillborn. Her most recent period of depression began inDecember 1999 when she had the fall at work. In addition to her back andthe shame Arruda experiences for being on welfare, the other sources ofstress stemmed from family issues. Dr. Slayton noted that Arruda has ahistory of panic attacks triggered when other people talk fast or whenshe talks about her health. Conversely, he described her interests asgood and that she participates in activities such as crocheting and otherarts and crafts. Arruda also indicated to Dr. Slayton that she had lost100 pounds or more in the past year and recently gained 16 pounds. Arrudadenied feelings of guilt and suicidal or homicidal ideation. Dr. Slaytondescribed her case as "remarkable for no hospitalization ordetoxification" and "[n]o psychotherapy or psychopharmacology."6 (Tr. 153-154).
Dr. Slayton characterized Arruda as a "primarily anxious,well-developed, obese white female, appearing stated age." (Tr. 155). Hedescribed her speech as normal in rate, rhythm and volume and that it wasgoal directed, occasionally tangential and circumstantial, but that sheeventually got to the point. His overall impression of Arruda's mentalcondition was that she had a history of dysthymic disorder and mixedpersonality traits including a prominent borderline component. He ruledout major depression and panic disorder. He estimated Arruda's currentglobal assessment of functioning ("GAF") as 55. He placed Arruda's GAFduring the last year as ranging from 55 to 80.7 Dr. Slayton opinedthat Arruda would have a difficult time with coworkers and supervisorsunder routine work circumstances given her complicated personalitytraits. On the other hand, he opined she might do well retraining in astructured work setting that took into account her personality traits andmultiple medical problems. (Tr. 155-156). On October 16, 2000, Dr. Chipman completed a mental residual functionalcapacity ("mental RFC") form. She indicated that Arruda was "moderatelylimited" in her abilities to maintain attention and concentration forextended periods, to complete a normal workday and workweek withoutinterruptions from psychologically based symptoms and to perform at aconsistent pace without an unreasonable number of rest periods, to acceptinstructions and respond appropriately to criticism from supervisors andto respond appropriately to changes in the work setting. Dr. Chipmanfurther found that Arruda was "not significantly limited" in herabilities to understand and remember detailed instructions, carry outvery short and simple instructions or detailed instructions, to work incoordination with or proximity to others without being distracted bythem, to get along with coworkers without distracting them or exhibitingbehavioral extremes and to maintain socially appropriate behavior and toadhere to basic standards of neatness and cleanliness. Dr. Chipman found"no evidence of limitation" in the other categories listed in theassessment form.
The mental RFC also contains an elaborate narrative and explanation tosupport Dr. Chipman's findings. After describing Arruda, including herhistory of depression and current anxiety attacks, her education and herwork history, the narrative reads as follows: Anxiety and characterological issues would compromise her concentration, pace, stress tolerance and, likely, interpersonal relationship with supervisors. [Arruda's] cognition and memory functions adequate . . . She reports some "confused" concentration and would have difficulty with tasks requiring clear focus and careful, sustained concentration. Combination of medical problems and anxiety would slow her pace at times. She is angry at her rejecting mother and would likely have difficulty with supervisor who was excessively critical. Overall less-demanding situation helpful.(Tr. 142-143).
In a psychiatric review technique form ("PRTF") also completed onOctober 16, 2000, Dr. Chipman diagnosed Arruda as suffering frommedically determinable impairments but that the impairments did notprecisely satisfy the diagnostic criteria to constitute an affectivedisorder under section 12.04, an anxiety related disorder under section12.06 or a personality disorder under section 12.08.8 See 20 C.F.R.Part 404, Subpart P, Appendix 1, §§ 12.04, 12.06 & 12.08. Inrating Arruda's functional limitations, Dr. Chipman found that Arruda hadonly a "mild" restriction of activities of daily living, "moderate"difficulties in maintaining social functioning and "moderate"difficulties in maintaining concentration, persistence or pace. There was"insufficient evidence" for a determination regarding repeated episodesof decompensation. (Tr. 149).
On October 17, 2000, the same examiner who completed the June 2000evaluation sheet filled out a vocational analysis form on behalf of DDS.The examiner found that Arruda's past work was precluded by the mentalRFC because it required high stress. The examiner stated that Arruda's "anxiety and other issues willcompromise concentration, pace, stress tolerance and interpersonalrelationships." (Tr. 128). He nevertheless opined that vocational rule204 would direct a finding that Arruda was not disabled. The examinerexplained his finding with some detail as follows: [Arruda] has no physically significant impairments and no mentally significant impairments that would preclude performing unskilled occupations. Given [Arruda's] vocational profile accommodation would be expected to such fields of work in Massachusetts as the cleaning services with 75,000 positions or the packing and inspecting occupations with 15,000 positions.(Tr. 128).
On October 30, 2000, Arruda saw Dr. Patrick for a follow up. Dr.Patrick reviewed her glucose levels, dietary intake and fluids. She notedthat Arruda complained of sleepiness attributed to Buspar and that shewas still smoking half a pack of cigarettes a day. Dr. Patrick alsoobserved that Arruda had a stiff gait and indicated that she used a caneon stairs. Dr. Patrick again noted that Arruda had diffuse lumbartenderness and edema. Her impression was that Arruda's diabetes mellituswas improved but that she still had anxiety. (Tr. 219-220).
Dr. Patrick referred Arruda to Stephen Howard Karshbaum, M.D. ("Dr.Karshbaum") at the Fall River-New Bedford Regional MRI Center ("MRICenter") in order to obtain an MRI. The MRI, conducted on November 9,2000, revealed a "large disc extrusion" extending inferiorly "at the L4L5 level." (Tr. 157). Dr. Karshbaum also noted the presence of discdessication, endplate discogenic reactive changes and described the inferior aspects ofthe bilateral neural foramina as mildly narrowed. He found no other areasof disc herniation, spinal canal narrowing or neural foraminal narrowing.(Tr. 157-158).
On December 11, 2000, Dr. Patrick saw Arruda and noted that shecomplained of increased fluid retention. Arruda's back was "the same" andher glucose levels were "better." (Tr. 221). In response to Arruda'sinterest in losing weight, Dr. Patrick prescribed Meridia. Dr. Patrickindicated that she had reviewed Arruda's MRI and noted the problem withthe disk and planned to obtain an evaluation by a neurosurgeon. (Tr.221-222).
At the request of Dr. Patrick, Leslie Stern, M.D., Ph.D., F.A.C.S.("Dr. Stern"), a neurosurgeon, examined Arruda on January 16, 2001.According to Dr. Stern's letter to Dr. Patrick, Arruda described herpain as "not consistently severe, but tending to wax and wane inseverity . . . worse with activity and somewhat improved by rest." (Tr.273). He noted that she takes Vicodin for the pain. On examination, Dr.Stern observed that Arruda walked slowly but steadily and that the powerin her lower extremities was normal. Deep tendon reflexes were silent.He noted that a sensory examination revealed a diminution of pinpricksensation in Arruda's lower right leg "in a nondermatomal distribution."(Tr. 273). Dr. Stern performed a straight leg raising test which waspositive at 40 degrees on the left leg and 20 degrees on the right leg.The peripheral pulses, however, were good. Reviewing the MRI, Dr. Sternnoted the "herniation at L4-5" as well as "considerable degenerative changeat the disc space itself." (Tr. 274). Surgery, however, would provedifficult due to Arruda's "large size." (Tr. 274). Accordingly, herecommended that Arruda undertake a weight loss program and that he wouldconsider such surgery "if she can get down to a more acceptable weight."(Tr. 273-274).
In conjunction with Arruda's request for reconsideration, a DDSexaminer prepared a medical evaluation sheet on January 22, 2001. SaroPalmeri, M.D. ("Dr. Palmeri") signed the evaluation sheet as a consultanton January 23, 2001. The evaluation indicated that Arruda's conditions ofhypertension, chest pain syndrome, diabetes mellitus, GERD and mildasthma were not severe impairments. Dr. Palmeri did consider Arruda'sback pain and disc disease severe impairments. (Tr. 241).
Dr. Palmeri completed a physical residual capacity assessment("physical RFC") form on January 23, 2001. He provided a primarydiagnosis of a discogenic or lumbar disorder, a secondary diagnosis ofdiabetes mellitus and hypertension and also noted Arruda's problem withobesity. In assessing Arruda's exertional limitations, Dr. Palmeri opinedthat she could occasionally lift 20 pounds and frequently lift and carryten pounds. He further opined that Arruda could stand and/or walk forabout six hours in an eight hour workday, sit for approximately six hoursin an eight hour workday and that her ability to push or pull wasunlimited. Dr. Palmeri noted that Arruda "undoubtedly is limited as muchby the obesity as by LBP [low back pain]." (Tr. 244). Dr. Palmeri opined that Arruda wouldonly occasionally experience all of the listed postural limitations,including climbing, balancing, stooping, kneeling, crouching andcrawling. Dr. Palmeri found no manipulative, visual, communicative orenvironmental limitations.9 (Tr. 242-249).
On January 29, 2001, after a DDS examiner completed a psychologicalmedical evaluation sheet, S. Fischer, Psy.D. ("Dr. Fischer") completed amental RFC and a PRTF. Turning to the mental RFC, Dr. Fischer, anonexamining physician, opined that Arruda's ability to rememberlocations and work like procedures and her abilities to understand,remember and carry out very short and simple instructions were "notsignificantly limited." Likewise, Dr. Fischer found no significantlimitation in Arruda's ability to: (1) sustain an ordinary routinewithout supervision; (2) work in coordination with or in proximity toothers without distraction; (3) make simple work related decisions; (4)interact appropriately with the general public; (5) ask simple questionsor request assistance; (6) maintain socially appropriate behavior andadhere to basic standards of neatness and cleanliness; (7) be aware ofnormal hazards and take appropriate precautions; (8) travel in unfamiliarplaces or use public transportation; and (9) set realistic goals or makeplans independently of others. Dr. Fischer classified Arruda as "moderately limited" in her ability to perform the followingfunctions: (1) understand, remember and carry out detailed instructions;(2) maintain attention and concentration for extended periods; (3)perform activities within a schedule, maintain regular attendance and bepunctual within customary tolerances; (4) complete a normal workday andworkweek without interruptions from psychologically based symptoms and toperform at a consistent pace without an unreasonable number of restperiods; (5) accept instructions and respond appropriately to criticismfrom supervisors; and (6) get along with coworkers or peers withoutdistracting them or exhibiting behavioral extremes. (Tr. 251-253).
In the PRTF, Dr. Fischer diagnosed Arruda with dysthymia, anxietydisorder and personality disorder and noted the correlating listings forthese disorders. See 20 C.F.R. Part 404, Subpart P, Appendix 1, §§12.04, 12.06 & 12.08. Arruda's impairments, however, did notprecisely satisfy the diagnostic criteria for these listings. Dr.Fischer's ratings in the four categories of functional limitation areidentical to Dr. Chapman's ratings in the October 2000 PRTF. Dr. Fischerrated Arruda's functional limitation as "moderate" vis-a-vis thecategories of maintaining social functioning and concentration,persistence or pace and "mild" vis-a-vis the category of activities ofdaily living. Dr. Fischer concluded there was "insufficient evidence" fora finding regarding episodes of decompensation. (Tr. 255-266). Dr. Patrick conducted another examination of Arruda on February 1,2001. Dr. Patrick described Arruda as tearful but controlled when talkingabout the situation in her home. Although noting that Arruda hadtemporarily stopped taking Vicodin, Dr. Patrick made no notations ofdiffuse lumbar tenderness or leg pain. She also limited her impression todiabetes mellitus and edema. (Tr. 298).
Shortly thereafter, however, on February 6, 2001, Arruda's statement inconjunction with her request for a hearing contains the diagnosis of "twoherniated back disks [and a] hiatal hernia, both unoperative [sic]because of obesity and diabetes and blood pressure problems." (Tr. 135).She also stated that she has sciatic nerve problems in her right leg andsevere pain in her back and right leg. (Tr. 135).
Upon a referral from Dr. Patrick, Sanford W. Udis, M.D., a radiologist,examined Arruda regarding her heartburn on February 7, 2001. He completedan upper gastrointestinal series examination and diagnosed a hiatalhernia. (Tr. 285).
On April 26, 2001, Dr. Patrick examined Arruda again. While notingcontinuing problems with edema, the notes reflect an improvement inArruda's glucose levels. Dr. Patrick described Arruda as "calm" albeitwith diffuse lumbar tenderness. (Tr. 300-301).
On April 30, 2001, Dr. Stern completed a series of brief forms, to wit,a one page physical capacity evaluation, a pain questionnaire and amedical questionnaire. These forms contrast with findings in the January 16, 2001 letter Dr. Stern wrote to Dr.Patrick summarizing his findings of the examination of Arruda conductedthat same day. The January 16, 2001 examination was the only time Dr.Stern examined and treated Arruda. (Tr. 269).
In the physical capacity evaluation form, Dr. Stern noted that Arrudacould not sit, stand or walk at all in an eight hour workday. Heindicated that Arruda could never lift or carry even items weighing up tofive pounds and was never able to bend, squat, kneel or crawl. (Tr. 267).In the six question pain questionnaire, Dr. Stern identified Arruda'simpairment as a disc herniation that could reasonably be expected toproduce significant pain. He described the degree of pain as "moderate"as opposed to "severe." The pain would nevertheless preclude "sustainedconcentration and productivity which would be needed for full-timeemployment on an ongoing sustained basis." (Tr. 268). On the medicalquestionnaire, Dr. Stern limited his diagnosis of Arruda to the lumbardisc herniation. He classified the severity of the symptoms in her backand right leg as "moderate." In conclusion, he opined that Arruda couldnot sustain competitive employment on a full time, ongoing basis. (Tr.270).
On May 18, 2001, Arruda completed a form detailing her currentmedications. She indicated that she was presently taking Zaroxlyn forwater retention and edema, Vicodin for back pain, Buspar for anxietyattacks, "K-Dur" to supplement her potassium, Verapamil for high bloodpressure, Humalog for diabetes control, Ativan for anxiety attacks and chest pain, Pericolace forintestinal blockage and constipation, Lasix for water retention andedema, Allegra for allergies, an Albuterol inhaler for asthma, entericaspirin, fiber tablets for blockage and gas and Tums for acidindigestion. (Tr. 272).
Dr. Patrick examined Arruda again in June or July 2001. Dr. Patrick'snotes indicate that Arruda's glucose levels were better, averaging lessthat 200, but that she still complained of ongoing back pain andexperienced anxiety. Although Dr. Patrick observed diffuse lumbartenderness, Arruda had a full range of motion. (Tr. 303).
Charles Howland, Ph.D. ("Dr. Howland"), referred by Arruda's attorney,conducted a psychological evaluation on August 8, 2001. According to Dr.Howland, Arruda reported that she had fallen at work in November 1999 andruptured several disks in her back.10 Arruda also told Dr. Howlandthat she had a heart attack in April 2000.11 She further indicatedthat she had become increasingly depressed and anxious after she injuredher back, experiencing symptoms such as depressed and anxious moods, frequent cryingspells, chest pain, shortness of breath and rapid heartbeats. (Tr. 286).
Dr. Rowland observed that Arruda was neatly dressed and adequatelygroomed and that her use of language appeared consistent with her levelof education. He noted that her affect was constricted, her mood anxiousand depressed and that she cried several times during the evaluation.Arruda admitted thoughts of worthlessness but denied any suicidalideation or the presence of psychotic symptoms. Dr. Rowland noteddifficulty "with tasks sensitive to problems with attention andconcentration," such as counting in serial threes or remembering a seriesof numbers forwards or backwards. (Tr. 287). On the other hand, hedescribed her reasoning as "quite concrete" and her cognitive functioningas "within the low average range." (Tr. 287). Testing likewise suggesteda level of cognitive functioning in the low average range. Dr. Rowlandproffered a diagnosis of major depression (single episode) and moderatepanic disorder without agoraphobia. He placed her GAF at 57. Hecharacterized Arruda's prognosis as guarded at best due to the chronicphysical complaints, the somewhat limited cognitive abilities and theanxiety and depression. (Tr. 286-288).
Dr. Patrick examined Arruda again on October 1, 2001. Dr. Patrick'snotes indicate that Arruda continued to have anxiety, GERD and edema. Shenoted the completion of the psychological evaluation and that nomedications were suggested. The notes additionally reflect the clinical impression of a lower backsyndrome and a prescription for Vicodin. (Tr. 305).
Dr. Patrick referred Arruda to Douglas R. Johnson, M.D. ("Dr. Johnson")to better evaluate Arruda's lower back pain. During Dr. Johnson's October30, 2001 examination, Arruda described her pain as radiating "in a bandaround the low back . . . burning, aching and stabbing spasms as wellas some aching pain in the neck . . . some numbness in the legs andoccasionally drags the legs." (Tr. 321). Arruda also described herphysical activity as "very limited." (Tr. 321). On examination, Dr.Johnson noted that Arruda was "very obese" and weighed close to 300pounds. He further noted that she had a "very limited range of motion"and chronic bilateral edema. Dr. Johnson performed a straight leg raisingtest which was positive at 50 degrees on the right side and 35 degrees onthe left side. Her strength proved normal with "no substantialneurological defects" or spinal instability. (Tr. 322).
As a result of the examination, Dr. Johnson prescribed a rehabilitationprogram to gradually increase Arruda's flexibility and strength. Headvised limited lifting and a program of physical therapy three time perweek for four to six weeks. The suggested goals for the program were tonormalize Arruda's lumbar flexibility, back strength, endurance andlifting ability. Dr. Johnson cautioned against anterior loading in excessof 20 pounds. (Tr. 338).
On November 7, 2001, Susan Sherman ("Sherman"), a licensed physical therapist at the South Coast Wellness Center in NorthDartmouth, Massachusetts, completed forms detailing Arruda's initialtreatment plan and the examination. Sherman's initial assessmentdemonstrated that Arruda was currently able to walk for 15 minutes threetimes per week, stand for ten minutes at a time and sit with back supportfor over an hour or without back support for less than 20 minutes. Therecord contains treatment notes from November 14, November 15 andNovember 19 indicating that Arruda repeatedly cancelled and rescheduledher therapy appointments.
Notably, Arruda indicated to a physical therapy assistant on November21, 2001, that she performed exercises in bed for her legs with a fivepound weight. The assistant stated that Arruda tolerated her treatmentwell, including testing on a treadmill, modified roman chain and pile,lateral pull down, four-way hip and rowing exercises with a "T-band" and"bridging" with a ball. (Tr. 349). The record fails to contain furthertreatment notes regarding Arruda's physical therapy. (Tr. 340 &345-349).
On December 7, 2001, Dr. Howland completed a short emotional impairmentquestionnaire as well as a supplemental RFC. The former document reflectsthat Dr. Howland saw Arruda twice, once on August 8, 2001, and again onOctober 3, 2001. He described her as suffering from an emotionalimpairment which significantly limited her ability to engage insubstantial gainful activity in a competitive setting on a full time,ongoing basis. Dr. Howland listed Arruda's impairments as single episode major depression and moderate panic disorder without agoraphobia.He also briefly described her symptoms as including anxiety, depression,"crying spells" and "thoughts of worthlessness." He rated her symptoms as"severe." (Tr. 296).
In a supplemental RFC, Dr. Howland rated Arruda's impairments along afive point scale ranging from "none" to "severe." He classified herability to respond to work pressures and perform complex tasks as"severe." Dr. Howland rated three categories as "moderately severe," towit, ability to relate to other people, restrictions of daily activitiesand ability to respond appropriately to supervision. Dr. Howlandclassified as "moderate" Arruda's ability to understand, carry out orremember instructions and her ability to perform simple, repetitive orvaried tasks. He rated as "mild" the following categories: (1)deterioration of Arruda's personal habits; (2) constriction of interests;and (3) ability to respond appropriately to coworkers. (Tr. 318-319).
On January 9, 2002, Dr. Patrick completed the same three forms that Dr.Stern completed in April 2001. In response to the question in thephysical evaluation form regarding Arruda's total capacity for sitting,standing and walking in an eight hour workday, Dr. Patrick circled zerofor each category. She also indicated that Arruda could sit and/or standat her discretion for one hour at a time. Dr. Patrick opined that Arrudacould occasionally or frequently lift and carry up to ten pounds. Shenoted that Arruda could use her arms and hands for repetitive grasping, reaching and fine manipulation but not for pushing andpulling. Dr. Patrick also indicated that Arruda could never bend, squat,kneel or crawl. (Tr. 323).
On the pain questionnaire, Dr. Patrick classified Arruda's pain as"severe." (Tr. 324). She limited the diagnosis of a medicallydeterminable impairment to lumbar disc disease as opposed to diabetesmellitus or any of Arruda's other ailments. Like Dr. Stern, she concludedthat the severity of the pain would preclude "sustained concentration andproductivity which would be needed for full-time employment on an ongoingsustained basis." (Tr. 324). On the medical questionnaire, Dr. Patrickagain limited the diagnosis to lumbar disc disease located at L4 to L5.(Tr. 325-326).
C. ALJ Hearing
At the December 17, 2001 hearing, the ALJ heard testimony from Arrudasummarized supra and from an impartial vocational expert ("VE"). Afterexploring Arruda's living arrangements, educational background andefforts to lose weight, the ALJ questioned her in depth about her workhistory, job requirements and the circumstances under which she becameinjured and ceased her employment. He comprehensively questioned Arrudaabout the effect of her condition on her ability to work, her medicalproblems, her various doctors and medications and her daily activities.(Tr. 31-43). When the ALJ questioned Arruda about her current physicalcapacity for walking, standing and sitting, she responded that she couldnot walk any further than to her car in the parking lot and that she could stand comfortably for 15minutes and sit comfortably for 30 minutes. (Tr. 33-43).
When questioned by her attorney, Arruda testified that she lies downfor at least eight to ten hours in a day and has difficulty sleeping atnight because of the pain. She explained that changes in her routine makeher upset and cause her to cry. She also stated that the medication foranxiety makes her "like a zombie . . . you're in another world." (Tr.45). The pain medications dull her pain to an ache but if she neglects totake them, the pain becomes excruciating. In response to questions abouther diabetes mellitus, Arruda testified that her glucose "crashed" orwent up and down drastically every day and that she either eats or takesinsulin to normalize the glucose levels. She also expressed a belief thatshe would have problems getting along with others at work, includingsupervisors, and that she would have trouble with work related stress.(Tr. 43-48).
After reviewing the record and hearing testimony concerning Arruda'smedical complaints and limitations, the ALJ asked the VE for anassessment of the skill and exertional levels of Arruda's past work. TheVE classified the positions as skilled or semiskilled with "heavy to veryheavy" or "medium" exertional requirements or levels. (Tr. 49-51). TheALJ then posed the following hypothetical to the VE: . . . Consider a hypothetical claimant the same age, education, work experience of [Arruda] with a residual functional capacity for sedentary work, but requiring an option to sit or stand at her will, and further limited by inability to engage in work requiring understanding, remembering, carrying out complex or detailed job instructions and moderate reductions in maintaining attention and concentration and dealing with the public or coworkers or supervisors or dealing with ordinary expectations of attendance, perseverance or pace.(Tr. 51).
The VE responded that those limitations would rule out Arruda's pastwork. Significantly, however, he identified 1,500 assembler jobs, 600inspector jobs and 1,000 hand packager jobs in Rhode Island andsoutheastern Massachusetts which could be performed under the limitationsprovided in the hypothetical. The VE then testified that if any of thelimitations described by the ALJ as moderately limited were insteadmoderately severely limited or severely limited, the jobs that he hadidentified would be precluded. (Tr. 51-52).
D. ALJ Decision
On April 12, 2001, the ALJ issued a written decision wherein hecomprehensively reviewed and evaluated the medical and vocationalevidence. He found that the medical record showed that Arruda experienced"back pain, obesity, depression and diabetes mellitus." (Tr. 18). As aresult, he concluded that she had a severe medically determinableimpairment. None of the impairments alone or in combination, however, metor equaled a listed impairment. (Tr. 17-18).
Although acknowledging the legitimacy of her symptoms, the ALJ foundthat Arruda's "pain [was] not so severe as to produce the inability toengage in virtually any activity that she alleges." (Tr. 20). Heexplained that her statements concerning her impairments and their impact on her ability to work were notentirely credible in light of her ability to maintain a household andprovide for her personal needs. In addition, the ALJ afforded reducedevidentiary weight to Dr. Howland's opinion that Arruda "suffersdisabling mental limitations" because the opinion was "supported neitherby his own findings and estimates of functional impairment nor by themedical [sic] as a whole. . . ." (Tr. 20-21). The ALJ also afforded"little evidentiary weight" to the opinions of Dr. Patrick and Dr. Sternbecause their opinions regarding Arruda's residual functioning capacitywere not supported by other evidence of record, particularly the notesfrom Arruda's physical therapist and the inferences drawn from Arruda'sdaily activities. (Tr. 20-21).
The ALJ indicated that Arruda retains the residual functional capacityfor a wide range of sedentary occupations that would allow an option tosit or stand at will. He found that Arruda is further affected bymoderate limitations in her ability to maintain attention andconcentration, deal appropriately with the public, with coworkers andsupervisors and deal appropriately with the ordinary requirements ofattendance, perseverance and pace. He also found that she is affected bya severe restriction on her ability to understand, remember and carry outdetailed instructions.
The ALJ found that Arruda's past relevant work as a residentialcounselor, group home attendant and nurse's assistant were thereforebeyond her functional capacity. He found, however, that there are jobs which exist in significant numbers inthe regional and national economies which Arruda is able to perform.Accordingly, the ALJ concluded that Arruda was not disabled. (Tr. 20-23).
The standard of review of the Commissioner's decision is prescribed bystatute. Under 42 U.S.C. § 405(g), the court has the power to affirm,modify or reverse the Commissioner's decision, with or without remandingthe case for a rehearing. As stated in 42 U.S.C. § 405(g), "Thefindings of the Commissioner of Social Security as to any fact, ifsupported by substantial evidence, shall be conclusive. . . ." Thecourt therefore determines "whether the final decision is supported bysubstantial evidence and whether the correct legal standard was used."Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). Substantial evidenceis "more than a scintilla. It means such relevant evidence as areasonable mind might accept as adequate to support a conclusion."Richardson v. Perales, 402 U.S. 389, 401 (1971); accord Rodriguez v.Secretary of Health and Human Services. 647 F.2d 218, 222 (1st Cir. 1981)(findings upheld if a reasonable mind, reviewing record as a whole, wouldaccept it as adequate to support the Commissioner's conclusion); accordDedis v. Chater. 956 F. Supp. 45, 49 (D.Mass. 1997).
Thus, under 42 U.S.C. § 405(g), review of the Commissioner's decision is not de novo.12 Lizotte v. Secretaryof Health and Human Services. 654 F.2d 127, 128 (1st Cir. 1981)."`[I] ssues of credibility and the drawing of permissible inference fromevidentiary facts are the prime responsibility of the Secretary.'"Lizotte v. Secretary of Health and Human Services, 654 F.2d at128 (quoting Rodriguez v. Secretary of Health and HumanServices, 647 F.2d at 222). It is also the responsibility of theCommissioner, not the courts, to resolve conflicts in the evidence.Irlanda Ortiz v. Secretary of Health and Human Services.955 F.2d 765, 769 (1st Cir. 1991). Accordingly, even if the record canjustify a contrary conclusion, this court must affirm the Commissioner'sdecision if it is supported by substantial evidence. See Evangelistav. Secretary of Health and Human Services, 826 F.2d 136, 144 (1stCir. 1987); Rodriguez Pagan v. Secretary of Health and HumanServices, 819 F.2d 1, 3 (1st Cir. 1987).
In the case at bar, the ALJ determined that Arruda was not disabled.The Social Security Act defines a disability as the: . . . inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 416 (i)(1) & 423(d)(1). "The impairment mustbe of such severity that [the claimant] is not only unable to do hisprevious work but cannot, considering his age, education, and work experience, engage in any other kind of substantial work whichexists in the national economy.'" Deblois v. Secretary of Health andHuman Services. 686 F.2d 76, 79 (1st Cir. 1982) (quoting42 U.S.C. § 423(d)(2)(A)).
The above statutory framework is implemented by applying a five stepsequential analysis. Bowen v. Yuckert, 482 U.S. 137, 140(1987); Goodermote v. Secretary of Health and Human Services,690 F.2d 5, 6-7 (1st Cir. 1982); 20 C.F.R. § 404.1520. TheCommissioner first determines if the claimant is engaged in "substantialgainful activity." 20 C.F.R. § 404.1520(b); Cashman v.Shalala, 817 F. Supp. 217, 221 n. 5 (D.Mass. 1993). If so, theclaimant is not disabled.
If the claimant is not engaged in substantial gainful activity, theCommissioner next determines if he or she suffers from a severeimpairment or combination of impairments. A "severe impairment" is acondition that "significantly limits [the claimant's] physical or mentalability to perform basic work-related functions." McDonald v.Secretary of Health and Human Services. 795 F.2d 1118, 1120 (1stCir. 1986); see 20 C.F.R. § 404.1520(c) and 416.920(c)(defining "severe impairment"). The ability to perform basic workactivities is defined as the ability and aptitude "to do most jobs."Bowen v. Yuckert, 482 U.S. at 141 (abilities and aptitudesinclude walking, sitting, standing, lifting, seeing, hearing, speakingand understanding simple instructions).
If severe, the Commissioner proceeds to the third step and determines whether the impairment is equivalent to one of a numberof listed impairments in the Code of Federal Regulations, 20 C.F.R. Part404, Subpart P, Appendix 1. McDonald v. Secretary of Health andHuman Services, 795 F.2d at 1120. If the impairment meets or equalsa listed impairment, the claimant is automatically disabled.1320 C.F.R. § 404.1520(d).
Under the fourth step of the sequential evaluation, a claimant is notdisabled if "he or she retains the [residual functional capacity] toperform `the actual functional demands and job duties of a particularpast relevant job.1" Santiago v. Secretary of Health and HumanServices, 944 F.2d 1, 5 (1st Cir. 1991); 20 C.F.R. § 404.1520(e)& 404.1560(b). "At step four the initial burden is on the claimant toshow that she can no longer perform her former work because of herimpairments." Manso-Pizarro v. Secretary of Health and HumanServices, 76 F.3d 15, 17 (1st Cir. 1996). The ALJ then must measurethe physical and mental demands of that former work with the claimant'scurrent functional capacity. Manso-Pizarro v. Secretary of Healthand Human Services, 76 F.3d at 17 ("Secretary must ascertain thedemands of the usual former work and then compare those demands withpresent mental and physical abilities"); Santiago v. Secretary ofHealth and Human Services, 944 F.2d at 7.
The ALJ found that Arruda lacked the functional capacity to perform her past relevant work as a residential counselor orattendant or nurse's assistant, all skilled or semi-skilled positionsrequiring medium or heavy exertional work. Substantial evidence,including the VE's testimony at the hearing, supports this conclusionwhich neither party contests.
At the fifth and final stage, the Commissioner determines whether, inview of the claimant's exertional and nonexertional impairments, age,educational background and work experience, the claimant can performother work in the national economy. Bowen v. Yuckert. 482 U.S.at 141-142; 20 C.F.R. § 404.1520 & 416.20. It is the claimant'sburden to prove that he or she is disabled within the meaning of theSocial Security Act. Ortiz v. Secretary of Health and HumanServices. 890 F.2d 520, 524 (1st Cir. 1989). At the fifth step,however, the Commissioner has the burden to "com[e] forward with evidenceof specific jobs in the national economy that the applicant can stillperform." Freeman v. Barnhart. 274 F.3d 606, 608 (1st Cir.2001); accord Heggarty v. Secretary of Health and HumanServices, 947 F.2d 990, 995 (1st Cir. 1991) (burden is "on theSecretary to demonstrate that there are jobs in the national economy thatclaimant can perform").
At the fifth stage, the ALJ found that Arruda lacked the ability toperform the full range of sedentary work because she required an optionto sit or stand and also had additional mental restrictions. (Tr. 22,¶ 5). Accordingly, the ALJ posed a hypothetical question to the VEdetailing at length these qualifications. In response, the VE testifiedto the presence of unskilled jobs in the economy. (Tr. 51-52).
Arruda first submits that the ALJ failed to give appropriate weight tothe residual functioning capacity assessments and the opinions profferedby Arruda's treating physicians, Drs. Patrick and Stern. Arrudaspecifically points to the opinions of both Drs. Patrick and Stern thatshe could not sit, stand or walk for more than one hour. (Tr. 209, 267& 323). These opinions are contained in physical capacity evaluationforms or similar questionnaires that each doctor completed by checkingappropriate boxes to standard questions. An extended discussion does notaccompany the reports.
Arruda acknowledges that the ALJ did not reject the assessments of Drs.Patrick and Stern outright.14 See Keating v. Secretary of Healthand Human Services. 848 F.2d 271, 276 (1st Cir. 1988) (affirmingdecision denying claim due to contradictory medical advisor evidence inthe record and noting "this was not a case of wholesale rejection by theALJ of the treating physician's opinion"). Rather, the ALJ expressly gavethe opinions "little evidentiary weight" due to the lack of support inthe record, citing specifically the physical therapy notes indicating asignificant amount of weight loss from increased physical activity andthe inferences drawn from Arruda's daily activities.15 The ALJ additionally reasoned that Arruda'streatment "has been strictly conservative" and there was no evidence thatArruda "experiences any neurological deficits." (Tr. 21).
"The law in this circuit does not require the ALJ to give greaterweight to the opinions of treating physicians." Arroyo v. Secretaryof Health and Human Services, 932 F.2d 82, 89 (1st Cir. 1991);accord Keating v. Secretary of Health and Human Services.848 F.2d 271, 276 (1st Cir. 1988) ("treating physician's conclusionsregarding total disability may be rejected by the Secretary especiallywhen, as here, contradictory medical advisor evidence appears in therecord"). "Controlling weight" is typically afforded a treatingphysician's opinion on the nature and severity of an impairment where itis "is well-supported by medically acceptable clinical and laboratorydiagnostic techniques and is not inconsistent with the other substantialevidence" in the claimant's case. 20 C.F.R. § 404.1527(d)(2) &416.927(d)(2). The relevant regulations further permit the ALJ todownplay the weight afforded a treating physician's assessment of thenature and severity of an impairment where, as here, it is internallyinconsistent or inconsistent with other evidence in the record includingtreatment notes and evaluations by examining and nonexamining physicians. 20 C.F.R. § 404.1527(d)(2)-(4)& 416.927(d)(2) — (4).
Dr. Stern examined Arruda only once in January 2001. Such a briefreview warrants less weight than a review given by a physician such asDr. Patrick who has a more longstanding relationship with Arruda and amore in depth knowledge of her ailments. See20 C.F.R. § 404.1527(d)(2)(i) & 416.927(d)(2)(i) ("the more times you havebeen seen by a treating source, the more weight we will give to the source'smedical opinion"). In addition, Dr. Stern's two page letter to Dr.Patrick wherein he notes that Arruda "walked slowly but steadily" and hadnormal power in her lower extremities (Tr. 273-274) contravenes hisassessment in the physical capacity evaluation form that she could neverlift or carry even up to five pounds of weight. (Tr. 267); see20 C.F.R. § 404.1527(d)(2) — (4) & 416.927(d)(2) —(4). Dr. Stern's conclusions relative to the inability to sit, stand andwalk are also inconsistent with the report itself which, as the ALJrecognized, only characterizes Arruda's pain as "moderate" as opposed to"severe." (Tr. 268). Finally, Dr. Stern's physical capacity evaluationform is a brief list of checked answers to form questions unaccompaniedby explanation.16 See 20 C.F.R. § 404.1527(d)(3) &416.927(d)(3) (" [t]he better an explanation a source provides for anopinion, the more weight we will give to that opinion"); see also Masonv. Shalala, 994 F.2d 1058, 1065 (3rd Cir. 1993) (characterizing the reliability of"`residual functional capacity reports'" that "`are unaccompanied bythorough written reports'" as "`suspect'"); Berrios Lopez v.Secretary of Health and Human Services. 951 F.2d 427, 431 (1st Cir.1991) (providing greater credence to consulting non-examiningphysician's report given the greater detail than was typical for suchreports).
Similarly, Dr. Patrick's checked answers on the January 2002 physicalcapacity evaluation form that Arruda can never bend, squat, kneel orcrawl or sit, stand or walk for more than one hour (Tr. 323) differs fromher treatment notes. See 20 C.F.R. § 404.1527(d)(2)-(4) &416.927(d)(2)-(4). Although, like Dr. Stern (Tr. 267), she circlesanswers indicating that Arruda lacks the ability to sit, stand or walk inan eight hour work day (Tr. 209 & 323), Dr. Patrick's treatment notesindicate otherwise. For example, the September 2000 discharge summaryfrom Charlton Memorial Hospital signed by Dr. Patrick describes Arruda'scondition as "ambulatory" and only "a bit limited because of her back."(Tr. 175). Emergency room examinations due to chest pain in May andSeptember 2000 reflect a normal range of motion in the extremities whichare described as "non-tender." (Tr. 161 & 167). While at times Dr.Patrick's treatment notes show an increase in back pain (Tr. 302) and thepresence of diffuse lumbar tenderness (Tr. 300, 303, 305& 306), shealso records improvements in Arruda's lower back syndrome afterexaminations three different times in 2001. (Tr. 303, 305 & 306). Dr.Patrick's treatment notes also reveal that at one time Arruda stopped taking the painreliever Vicodin although she requested an alternate pain reliever a fewweeks later and subsequently resumed taking Vicodin. (Tr. 298, 299, 302& 304-306). Dr. Patrick's treatment notes additionally fail to recorda consistent numbness in Arruda's legs associated with the diffuse lumbartenderness.17 Although Arruda reported "ongoing pain" in her back inthe summer of 2001, Dr. Patrick's examination showed a full range ofmotion at the time. (Tr. 303).
The January 2002 form itself is internally inconsistent. For example,although Dr. Patrick checks the answer describing Arruda's pain as"severe," she simultaneously notes that Arruda can frequently carry andlift as much as ten pounds.18 (Tr. 323).
Furthermore, the ALJ did not ignore the evidence of Arruda's difficultyin sitting, standing and walking. To the contrary, he took it intoaccount by finding that Arruda could not perform the demands of the fullrange of sedentary work precisely because she required a sit-standoption. (Tr. 22 & 23). The ALJ likewise took the restrictions into account in framing the appropriatequestion to the VE and incorporated the restrictions into his findingthat Arruda was not disabled.
The existence of other evidence in the record inconsistent with theopinions of Drs. Patrick and Stern that Arruda could not sit, stand orwalk for more than one hour also justifies the ALJ's assessment of therecord. The physical therapy notes show that in November 2001 Arrudarecited performing exercises at home with five pound weights. Even thoughDr. Johnson characterized Arruda's physical activity as "very limited,"he simultaneously prescribed a physical therapy program with anteriorloading no greater than 20 pounds, as opposed to 15 or ten pounds. (Tr.321 & 338). Arruda tolerated the physical therapy exercises"well."19 (Tr. 349).
Dr. Palmeri, a nontestifying, nonexamining physician, completed aphysical RFC assessment in January 2001. Recognizing a primary diagnosisof discogenic lumbar disease and secondary diagnoses of diabetes mellitusand hypertension, Dr. Palmeri checked various boxes indicating thatArruda could sit, stand and walk for approximately six hours during aneight hour day.
Although usually the report of a nontestifying, nonexmaining physiciandoes not, standing alone, constitute substantial evidence, "this is notan ironclad rule." Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994). The amount of weight afforded anadvisory opinion "`will vary with the circumstances, including the natureof the illness and the information provided to the expert.'" Gordilsv. Secretary of Health and Human Services, 921 F.2d 327, 328 (1stCir. 1990); accord Rose v. Shalala. 34 F.3d at 18 (same). Dr.Palmeri's report and, in particular, the explanation in answer toquestion number six (Tr. 243-244), provides a level of detail oftentimesabsent in such reports. See Berrios Lopez v. Secretary of Health andHuman Services, 951 F.2d at 431 (noting that report "contains morein the way of subsidiary medical findings to support his conclusionsconcerning residual functional capacity than is customarily found in thereports of consulting, nonexamining physicians").
In short, substantial evidence supports the ALJ's assessments relativeto Arruda's ability to stand, sit and walk and the opinions of Drs.Patrick and Stern. Arruda's argument to the contrary is unavailing inlight of the aforementioned inconsistencies, Dr. Palmeri's opinion andexplanation and the fact that the ALJ imposed a sit/stand option therebyrecognizing, to a degree, the findings of Drs. Patrick and Stern in thephysical capacity evaluations or equivalent forms.
Arruda's additional contention that the ALJ improperly interpreted rawmedical data in finding that she could perform sedentary work ismisplaced. Although the principle that the ALJ cannot interpret rawmedical data is correct, the cases cited by Arruda are distinguishablebecause in the case at bar there is a physical RFC that supports and, in fact, goes beyond the ALJ's moreconservative findings. See Nguyen v. Chater, 172 F.3d 31, 35(1st Cir. 1999) (ALJ as lay person cannot interpret "raw medical data"and Dr. Mahoney's opinion that claimant suffered severe pain "wasuncontroverted"); Manso-Pizarro v. Secretary of Health and HumanServices. 76 F.3d 15, 17 (1st Cir. 1996) (ALJ "not qualified tointerpret raw data" and "record contains no analysis of functionalcapacity by a physician or other expert"); Perez v. Secretary ofHealth and Human Services, 958 F.2d 445, 446 (1st Cir. 1991) (ALJnot qualified "to interpret raw medical data" and "record did not containany medical evaluation of claimant's physical residual functionalcapacity"). The ALJ did not substitute his lay opinion for the opinionsof Drs. Patrick and Stern.
Arruda next asserts that the ALJ ignored the opinion of Dr. Howlandand, instead, substituted his own lay opinion about Arruda'spsychological well being.20 In affording Dr. Howland's opinion"reduced evidentiary weight," the ALJ correctly noted that Dr. Howland's opinion of a severe depression was inconsistent withhis GAF score. See 20 C.F.R. § 404.1527(d)(2)-(4). Assubstantially supported by the record, the ALJ reasoned that Dr.Howland's was inconsistent with "the medical record as a whole." (Tr.21). For example, Dr. Patrick noted in May 2000 that Arruda had nolimitations with her ability to carry out simple instructions and wasonly slightly limited in her ability to maintain concentration, completetasks, make simple decisions at work and respond appropriately toco-workers and supervisors.21 (Tr. 210). The mental RFCs from Dr.Chipman and Dr. Fischer (Tr. 141-143 & 251-253), both nonexamining,nontestifying physicians, also support the ALJ's assessment.22Furthermore, both these mental RFCs provide narrative assessments (Tr.143 & 253) reflecting a significant level of attention and thoughtafforded by the physicians to their assessments. See Mason v.Shalala, 994 F.2d at 1065; Berrios Lopez v. Secretary of Healthand Human Services, 951 F.2d at 431. While Dr. Slayton opined thatArruda "would have a difficult time with coworkers and supervisors underroutine work circumstances," he also surmised that "she would do a good job retraining in a structured work setting that took intoaccount her personality traits and multiple medical problems." (Tr. 156).Finally, consistent with Dr. Slayton's and Dr. Rowland's observations(Tr. 154 & 311), the ALJ noted the absence of hospitalization forArruda's mental condition.
In light of the foregoing, substantial evidence supports the ALJ'sassessment of Arruda's mental restrictions and Dr. Howland's opinion. Theconflict between Dr. Howland and these other physicians was therefore forthe Secretary to resolve. See Tremblay v. Secretary of Health andHuman Services, 676 F.2d 11, 12 (1st Cir. 1982) ("conflict betweenthe personal physician and the medical advisor was for the Secretary toresolve" and there was substantial evidence to support the Secretary'sconclusion).
Citing Avery v. Secretary of Health and Human Services,797 F.2d 19 (1st Cir. 1986), Arruda next argues that the ALJ failed to followthe proper standards in evaluating Arruda's subjective complaints ofpain.23 The ALJ did not discount the entirety of Arruda's subjectivecomplaints of pain. Instead, he found that she had "impairments thatcould reasonably be expected to produce the symptoms she alleges." (Tr. 20).
The ALJ nevertheless did not find Arruda fully credible to the extentshe described impairments so severe as to preclude all sustained workactivity.24 Where, as here, the degree of alleged pain "`issignificantly greater than that which can be reasonably anticipated basedon the objective physical findings,1" the ALJ should "`obtain detaileddescriptions of [the claimant's] daily activities'" and it is "`essentialto investigate all avenues presented that relate to subjectivecomplaints.'" Avery v. Secretary of Health and Human Services,797 F.2d at 23 (quoting instructions from the Secretary and finding thatsuch instructions "conform faithfully to the Act"); see also Dedisv. Chater, 956 F. Supp. at 54; Morgan v. Chater. 1996 WL392144 at * 13 (D.N.H. April 26, 1996). Similarly, Social Security Ruling96-7p, relied upon by Arruda and issued after Avery, describesevidence relevant to evaluating pain as including: 1. The individual's daily activities; 2. The location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.Farris v. Barnhart. 2002 WL 449289 at * 3-4 (D.Me. March25, 2002) (quoting Social Security Ruling 96-7p); see also20 C.F.R. § 404.1529(c)(3).
The ALJ recited the aforementioned relevant factors to consider andapplied them to Arruda's complaints and allegations of pain. At thehearing, he elicited the information that Arruda suffered a fall at workand fully explored her daily activities, including shopping, houseworkand preparing meals.25 (Tr. 33, 36-39 & 41-42). He described hermedications and the absence of side effects from Vicodin, which, henoted, Arruda takes to relieve the pain.26 He also noted that shedrives occasionally. As is evident from the ALJ's opinion, he fullyrecognized his obligations to evaluate Arruda's pain.27 (Tr. 20, ¶ 2). Healso fully discharged those obligations. (Tr. 20, ¶¶ 3 & 4);see e.g., Berrios Lopez v. Secretary of Health and HumanServices, 951 F.2d at 429 (ALJ adequately discussed and consideredclaimant's pain under Avery noting that she could walk withoutassistance and drive an automobile); Gordils v. Secretary of Healthand Human Services, 921 F.2d at 330 (ALJ described claimant's dailyactivities as intact, her ability to walk and drive and her demeanorthereby complying with Avery). The ALJ's credibilitydetermination, which he supports with specific findings, "is entitled todeference." Frustaglia v. Secretary of Health and HumanServices, 829 F.2d at 195; see also Ortiz v. Secretary ofHealth and Human Services. 890 F.2d 520, 523 (1st Cir. 1989)("`particular attention'" is afforded an ALJ's "evaluations of complaintsof pain in light of their `subjective nature'"). Given the record,Arruda's argument that the ALJ failed to adhere to the proper standardsin evaluating her pain is unconvincing. Arruda next asserts that the ALJ failed to consider her diabetes as animpairment. Although not discussed at great length in the opinion, theALJ recognized that Arruda was being treated for diabetes mellitus andalleged a disability from that condition. (Tr. 18 & 19). He alsofound that the diabetes mellitus constituted a severe medicallydeterminable impairment at step two.
Nevertheless, it is true that Dr. Patrick's notes are replete withreferences to Arruda's treatment for diabetes mellitus. On the otherhand, there is little, if any, indication in the record that thecondition affects Arruda's ability to engage in sedentary work. Thethrust and focus of the residual functional capacity assessments is uponArruda's pain, mental and back ailments. Dr. Patrick's and Dr. Stern'spain questionnaires identify only lumbar disc herniation or disease asopposed to diabetes mellitus as Arruda's impairment. (Tr. 268 & 324).Indeed, on her most recent questionnaire, Dr. Patrick, Arruda's treatingphysician, was asked whether Arruda suffers from an impairment thatsignificantly limits her ability to perform basic work. Answeringaffirmatively, Dr. Patrick only identifies the diagnosis of "lumbar diskdisease" at L-4 to L-5. (Tr. 325). In addition, Dr. Palmeri notes thatArruda has diabetes mellitus but classifies it as not a severeimpairment. (Tr. 241). The ALJ did not ignore the evidence of Arruda'sdiabetes mellitus. Rather, he recognized and considered the conditionbut, consistent with the record, focused upon the more disablingconditions. Substantial evidence supports the ALJ's limited consideration of this impairment.
As a final matter, Arruda submits that the ALJ failed to comply withregulations by making certain required findings with respect to Arruda'smental impairments. In particular, Arruda relies on20 C.F.R. § 416.920a(c) and 416.920a(e)28 and complains that the ALJ didnot make specific findings or otherwise rate Arruda's activities in two ofthe four required categories in accordance with the regulations.
Because, as discussed infra, the regulations at issue involvestep two, it is useful to review the ALJ's sequential decision process.In step two, the ALJ determined that Arruda suffered from a severeimpairment and that the medical evidence indicated that Arruda has, inaddition to her back pain, diabetes mellitus, obesity and the mentalimpairment of depression. In step three, he determined, interalia, that Arruda's depression was not severe enough to meet theequivalent of a listed impairment in section 12.04 of Appendix 1 inSubpart P. (Tr. 18). Having therefore determined that Arruda's depressionwas severe, albeit not the equivalent of a listed impairment, the ALJthen proceeded to determine, as required by the regulations, Arruda'sphysical and mental residual functional capacity. 20 C.F.R. § 416.920a(d)(3),29
As noted, the regulations that Arruda relies upon apply to the ALJ'sdeterminations under step two, i.e., the existence of a severeimpairment. When the severity of a mental impairment is determined atstep two, "SSA regulations require the ALJ to utilize a `specialtechnique1 at each [level]30 of the administrative review process."Pabon v. Barnhart, 273 F. Supp.2d 506, 513 (S.D.N.Y. 2003)(citing 20 C.F.R. § 416.920a(a)). Stated otherwise, the regulations,20 C.F.R. § 404.1520a(c) and 416.920a(c), "provide the frameworkwithin which the ALJ should" determine whether the claimant has "a`severe' mental impairment." Torres v. Barnhart, 249 F. Supp.2d 83,95 (D.Mass. 2003).
"At step two," 20 C.F.R. § 416.920a requires the ALJ to "rate thedegree of functional limitation resulting from the claimant's mental impairment(s) to determine whether they are `severe.'"Rosado v. Barnhart. 2003 WL 22703935 at * 5 (S.D.N.Y. Nov. 13,2003); Pabon v. Barnhart, 273 F. Supp.2d at 513 ("[a]t steptwo . . ., the ALJ must rate the degree of functional limitationresulting from the claimant's mental impairment(s) to determine whetheror not they are `severe'"); 20 C.F.R. § 416.920a(b)(2), 416.920a(c)& 416.920a(e)(2); see Ashby v. Barnhart. 2003 WL 22245142at * 2 (E.D.Pa. June 11, 2003) (ALJ must "rate the degree of functionalloss resulting from the impairment in certain areas deemed essential forwork;" citing 20 C.F.R. § 404.1520a(b)(2) &416.920a(b)(2)).31 The regulations specify four broad areas toconduct the rating using a five point scale. Pabon v. Barnhart,273 F. Supp.2d at 513; Torres v. Barnhart. 249 F. Supp.2d at 96(" § 404.1520a(c)(3) delineates the `four broad functional areas inwhich [the ALJ] will rate the degree of [her] functional limitation'");Rosado v. Barnhart. 2003 WL 22703935 at * 5 (S.D.N.Y. Nov. 13,2003). These four functional areas, as correctly noted in Arruda's brief(Docket Entry # 13, p. 16), are "(1) activities of daily living; (2)social functioning; (3) concentration, persistence, or pace; and (4)episodes of decompensation." Pabon v. Barnhart, 273 F. Supp.2d at513.32
Further, in no uncertain terms, 20 C.F.R. § 416.920a(e)(2) statesthat the ALJ's "decision must include a specific finding as to the degreeof limitation in each of the [four] functional areas." Arruda argues thatthe ALJ only rated her with respect to her physical impairments asopposed to her mental impairments and even then did not rate her in thecategories of social functioning and episodes of decompensation.
To the contrary, however, the ALJ's decision states that, "The claimantis further affected by moderate limitations in her ability to: maintainattention and concentration; deal appropriately with the public,coworkers, and supervisors; and deal with the ordinary requirements ofattendance, perseverance and pace." (Tr. 21). Although discussed inconnection with Arruda's residual functional capacity, the findingsprovide the necessary ratings for the functional areas of socialactivities, see 20 C.F.R. Part 404, Subpart P, App. 1, §12.00(C)(2) (defining "social activities" as including ability to getalong with others and, in work situations, "responding appropriately topersons in authority (e.g., supervisors), or cooperative behaviorsinvolving coworkers") and concentration, persistence or pace. See,e.g., Molina v. Massanari. 2001 WL 1502587 at * 7 (D.Me. Nov. 26,2001) (while the ALJ's techniques did not precisely track the regulations, the differences were not significant and were"sufficiently similar to that required by the current regulation to makeremand unnecessary").
As to the daily living rating, Arruda admits that the ALJ states that"The evidence indicates that the claimant's activities of daily livingare not significantly impaired, as she is capable of maintaining ahousehold and providing for her personal needs."33 (Tr. 20). Arruda'sargument with respect to the daily living category confines itself to theallegation that the ALJ's rating "was only from the point of view of herphysical activities." (Docket Entry # 13, p. 16). The argument, however,ignores that the next sentence in the opinion after the above quotediscusses the opinions of Dr. Howland regarding Arruda's mentallimitations.
Substantial evidence supports the ALJ's ratings and findings. The aboveratings vis-à-vis Arruda's daily activities, social functioningand concentration, persistence or pace comport with the PRTFs in therecord. (Tr. 149 & 263). Dr. Chipman and Dr. Fischer rated Arruda'sdaily activities as "mild", social functioning as "moderate,"concentration, persistence or pace as also "moderate" and found"insufficient evidence" with respect to the category of episodes ofdecompensation. (Tr. 149; see also Tr. 141-142).
In addition to these ratings, Dr. Slayton noted that Arruda has problems dressing and is slow to the dishes. Dr. Rowland notedArruda's well groomed appearance (Tr. 311) which also supports Dr.Chipman's rating regarding Arruda's daily activities. See20 C.F.R. Part 404, Subpart P, App. 1, § 12.00(C)(1) (defining"activities of daily living" as including "grooming and hygiene"). Dr.Rowland further noted that Arruda "has a group of friends with whom shespeaks" and attends church in good weather thereby lending credence toDr. Chipman's rating regarding social functioning.34 Dr. Slaytonopines that, "It is conceivable that [Arruda] would do a good jobretraining in a structured work setting that took into account herpersonality traits and multiple medical problems and that she would bemotivated to pursue this given her identity until the past year has beenas a working person." (Tr. 155-156).
Such findings provide substantial evidence for the ALJ's ratings andconclusions regarding Arruda's mental limitations with respect to dailyliving, social functioning and concentration, persistence or pace. Thefact that the ALJ made no findings regarding episodes of decompensationcomports with the finding of Dr. Chipman and Dr. Fischer of "insufficientevidence" with respect to this functional limitation. As similarlyreasoned by the court in Torres in affirming the ALJ's denialof benefits at step two, "The ALJ made no findings on episodes ofdecompensation because no evidence was offered that there had been anysuch episodes, and, consequently, the ALJ made no rating on thisfunctional area." Torres v. Barnhart, 249 F. Supp.2d at 97. Inany event, Dr. Slayton characterizes Arruda's speech as having a normalrhythm, rate and volume and further notes that Arruda is alert andoriented and is capable of repeating serial even numbers without amistake.
In the alternative, any nonconformity with the regulation,20 C.F.R. § 416.920a(e)(2), does not warrant a remand. The error at issueimplicates the remedy provided under the fourth as opposed to the sixthsentence of 42 U.S.C. § 405(g). See Seavey v. Barnhart,276 F.3d 1, 13 (1st Cir. 2001) ("[s]entence six and its `good cause'limitation come into play only `when the district court learns ofevidence not in existence or available to the applicant at the time ofthe administrative proceeding that might have changed the outcome of thatproceeding'"). The fourth sentence of 42 U.S.C. § 405(g) allows thecourt to "order the agency to provide the relief it denied," i.e., anaward of benefits, "only in the unusual case in which the underlyingfacts and law are such that the agency has no discretion to act in anymanner other than to award or to deny benefits." Seavey v.Barnhart, 276 F.3d at 11. Stated otherwise, "a judicial award ofbenefits would be proper where the proof of disability is overwhelming orwhere the proof is very strong and there is no contrary evidence."Seavey v. Barnhart, 276 F.3d at 11. The circumstances of thiscase and the error at issue, the failure of the ALJ to rate Arruda'sepisodes of decompensation, fall measurably below this standard.
The decision of "what remedy to apply under sentence four of §405(g) is largely dictated by the type of error committed by the ALJ."Seavey v. Barnhart, 276 F.3d at 9. Furthermore, "[t]he questionof remedy is tied to the strictures of § 405(g)" that "`the findingsof the Commissioner of Social Security as to any fact, if supported bysubstantial evidence, shall be conclusive.1" Seavey v.Barnhart, 276 F.3d at 10.
The ALJ's error in not including a rating for episodes ofdecompensation in the decision as required under20 C.F.R. § 416.920a(e)(2) does not merit a remand because a correctionwould not change, alter or impact the result. The error involved the ALJ'sreasoning at step two. The ALJ already ruled in Arruda's favor at thislevel in the sequential process. He found that Arruda suffered from asevere mental impairment in the nature of depression. A remand would onlyconfirm the ruling in Arruda's favor at step two.
It is true that "if an essential factual issue has not beenresolved . . . and there is no clear entitlement to benefits, the courtmust remand for further proceedings." Seavey v. Barnhart, 276F.3d at 11 (emphasis added). Inclusion of the rating for episodes ofdecompensation in the decision is not an "essential factual issue,"however, particularly where there is insufficient evidence in the recordregarding this functional limitation. In addition, the regulationviolated involves the evaluation made at step two of the presence of a"severe" impairment. The ALJ ruled in Arruda's favor with respect to this issue by finding that Arrudahad an impairment or combination of impairments that was "severe."See, e.g., Torres v. Barnhart, 249 F. Supp.2d at 94 & 96-97(upholding ALJ's denial of benefits notwithstanding ALJ's failure to makefindings on claimant's episodes of decompensation rate as mandated by20 C.F.R. § 404.1520a(c)(2) in the face of claimant's request forreversal or remand).
In accordance with the foregoing discussion, Arruda's motion forsummary judgment (Docket Entry #12) is DENIED and the Commissioner'smotion to affirm (Docket Entry #15) is ALLOWED. A final judgment shallissue in accord with this opinion.
1. In her April 24, 2000 application for benefits, Arruda indicatedthat she weighed 300 pounds. The record notes that she weighed as much as399 pounds before losing 100 pounds prior to injuring her back. Sheregained some weight after the injury. She then increased her level ofactivity and reportedly lost 75 pounds sometime in 2001. Records from theSouth Coast Spine Center indicate that Arruda weighed 300 pounds inNovember 2001. (Tr. 33, 105, 153, 321, 338 & 343).
2. Arruda indicated that she held the position as a personal careattendant until April 2000 in the work history report filed inconjunction with her application for benefits. An earnings report filedin the record, however, indicates that Arruda had no income in 2000. (Tr.98 & 115).
3. The signature on the vocational analysis form is illegible andthe name of the examining physician is not provided elsewhere in therecord. This court identifies the individual as the examiner inasmuch asthis is the manner the medical evaluation sheet refers to the individual.The individual, however, did not conduct an examination of Arruda therebylessening the impact of the findings. See 20 C.M.R. §404.1527(d)(1).
4. Susan B. Chipman, Ph.D. ("Dr. Chipman") signed the form as aconsultant on October 16, 2000.
5. According to a notice contained in the record, on November 20,2000, Arruda failed to attend an additional appointment at the diabetesmanagement program that had been scheduled through Dr. Patrick's office.(Tr. 237).
6. Dr. Slayton's findings provide support for the ALJ's explanationdiscrediting the opinion of Dr. Charles Howland, Ph.D., on the basis thatArruda "has never required hospitalization, or crisis intervention forreasons related to mental impairment, has not been treated aggressively,and in fact, appears to have received no treatment from any mental healthprofessional." (Tr. 21).
7. A GAF ranging between 51 to 60 indicates an individual withmoderate psychological symptoms or moderate difficulty in social oroccupational functioning. American Psychiatric AssociationDiagnostic and Statistical Manual of Mental Disorders §32 (1994). A higher rating within the range shows a less severedifficulty.
8. In determining the existence of a disabling impairment, thepsychiatric review form is primarily used during steps two and three ofthe sequential process whereas the mental RFC is primarily used duringsteps four and five. See Dudley v. Barnhart, 2002 WL 449699 at* 2 (D.Me. March 25, 2002).
9. Dr. Palmeri's assessment provides support for the ALJ'sfindings.
10. As noted supra, Arruda had indicated in herapplications and her reports to Dr. Patrick that she had injured her backin December 1999. Also, Dr. Patrick, Dr. Karshbaum and Dr. Sternconcurred that Arruda had a herniated disc at L4-5, not multiple ruptureddiscs as Arruda indicated to Dr. Howland.
11. There is no evidence in the record of Arruda suffering a heartattack in April 2000. She was hospitalized on May 25, 2000, for chestpain, but the emergency room physician and a radiologist concluded thatArruda's heart was normal and her chest pain was likely caused byanxiety. While the ALJ credited a portion of Arruda's testimony in his decision,he did "not find her fully credible." (Tr. 20). Substantial evidencesupports the ALJ's assessment of Arruda's credibility.
12. Indeed, if this court reviewed the case de novo, it wouldconclude that Arruda was disabled.
13. As discussed infra, substantial evidence supports theALJ's conclusions that Arruda had a severe impairment but did not sufferfrom an automatically disabling listed impairment or an equivalentthereof.
14. Indeed, if the ALJ rejected the findings outright, he would haveaccepted Dr. Chipman's and Dr. Fischer's respective assessments thatArruda was not significantly limited or only moderately limited in herability to carry out detailed instructions (Tr. 141 & 251) instead offinding that Arruda "is affected by a severe restriction on her abilityto understand[,] remember, and carry out detailed instructions." (Tr.21).
15. It is worth noting that Dr. Patrick's summary assessment in theJanuary 2002 physical capacity evaluation form that Arruda could lift andcarry up to ten pounds frequently (Tr. 323) parallels the ALJ'sassessment that Arruda could perform sedentary work. See20 C.F.R. § 404.1567(a) (defining "sedentary work" as "involving liftingno more than 10 pounds at a time").
16. In contrast, the form completed by Dr. Palmeri is more elaborateand detailed.
17. The record is equivocal in this regard. Dr. Stern's January 2001letter summarizing the examination notes that Arruda reports"paresthesiae [sic] in the leg" and that "the leg has given out onoccasion." (Tr. 273). Upon examination, Dr. Stern noted a "diminution ofpinprick in the right lower leg." (Tr. 273). In addition, Dr. Patrick'snotes reflect that Arruda reported that her right leg drags if tired andpain traveled down her left leg in June 2000 and down her right leg inAugust 2000. (Tr. 212, 213 & 336). Dr. Johnson's notes reflect thatArruda "complains of some numbness in the legs and occasionally drags thelegs." (Tr. 321).
18. Dr. Patrick's January 2002 findings represent an improvementover her May 2000 findings that Arruda could not reasonably be expectedto lift or carry ten pounds. (Tr. 209).
19. On the other hand, the November 2001 physical therapy notesreveal a reported ability to walk for only 15 minutes three times a week,stand for ten minutes and sit for more than one hour with a backsupport.
20. Dr. Howland examined Arruda at the request of her attorney onAugust 8, 2001. (Tr. 286). He later saw Arruda for an initial assessmenton October 3, 2001. (Tr. 289-293). There is no further indication oftreatment thereby showing a brief treatment relationship which, in turn,lessens the impact of the opinion. See20 C.F.R. § 404.1527(d)(2)(i). Arruda submits that the ALJ inaccurately concluded that Dr. Howland wasan examining as opposed to a treating source and ignored the testimonythat the second visit was not a referral from her attorney. The lattercontention is correct because Dr. Howland's notes simply state thatArruda was "originally referred by her attorney." (Tr. 289; emphasisadded). The error, however, does not warrant a remand and the ALJcorrectly noted that the August 8th visit was a referral from Arruda'sattorney. (Tr. 21, n. 3; Tr. 286, ¶ 1).
21. In contrast, Dr. Howland opined, albeit in December 2001, thatArruda's ability to respond to supervision and relate to other people is"moderately severe" and her ability to respond to customary work pressureis "severe."
22. As previously noted, in finding Arruda capable of performingsedentary work, the ALJ incorporated moderate restrictions on Arruda'sability to maintain attention; deal appropriately with the public,coworkers and supervisors; "and deal appropriately with the ordinaryrequirements of attendance, perseverance and pace." (Tr. 23). He alsoplaced a severe restriction on Arruda's ability to remember and carry outdetailed instructions.
23. As separately noted by the court in Avery, the SocialSecurity Act "makes clear that, as a primary requirement, there must be aclinically determinable medical impairment that can reasonably beexpected to produce the pain alleged." Avery v. Secretary of Healthand Human Services, 797 F.2d at 21; see20 C.F.R. § 404.1529(b). The MRI provides the necessary evidence of a"medically determinable impairment" that can reasonably be expected toproduce the symptoms such as pain and, in conformity therewith, the ALJfound that Arruda had impairments that could reasonably be expected toproduce the symptoms she alleges.
24. Dr. Stern's classification of Arruda's pain as "moderate" ratherthan "severe" supports the ALJ's assessment. (Tr. 268). Dr. Stern'sJanuary 2001 letter to Dr. Patrick similarly describes "[t]he pain [as]not consistently severe, but tending to wax and wane in severity." (Tr.273).
25. To a degree, the ALJ understated Arruda's ability to performdaily activities. Arruda testified to performing these tasks withdifficulty. She stated that it "takes long" to make breakfast. (Tr. 37).She noted that where it takes a "regular person" five minutes to make asandwich, it takes her an hour. (Tr. 38). She does the dishes and foldslaundry sitting in a chair. (Tr. 39 & 124). Although she groceryshops, she cannot carry the bags. (Tr. 38-39). The ALJ did not, however, misstate Arruda's activities. Moreover,evidence in the record supports the ALJ's findings. For example, Dr.Stern classified Arruda's symptoms as "moderate" rather than "severe."(Tr. 269). Dr. Howland stated that Arruda is "able to cook" although "shecannot lift heavier pots." (Tr. 287). According to Dr. Howland, Arrudawas also able to make a shopping list, "pay for her groceries, but cannotcarry bags" except for "one or two very light items." (Tr. 287). Dr.Howland also noted that Arruda is able to dress and bathe herself. (Tr.287).
26. Arruda testified at the hearing that when her medications areincreased she feels "like a zombie." (Tr. 45). When she takes themedications, however, the pain is dulled to an ache. (Tr. 45).
27. In the opinion, the ALJ summarizes the relevant inquiry: In evaluating subjective complaints, the undersigned must give careful consideration to the claimant's daily activities; the location, duration, frequency and intensity of the claimant's symptoms; the type, dosage, effectiveness, and adverse side-effects of any medications the claimant has taken to alleviate her symptoms; treatment, other than medication, the claimant has received; other measures used by the claimant to relieve her symptoms; other factors concerning the claimant's functional limitations and restrictions due to her symptoms.(Tr. 20, ¶ 2). The summary comports with the relevant analysisrequired under the regulations. See 20 C.F.R. § 404.1529(c)(3) &(4); accord Social Security Ruling 96-7p.
28. Although Arruda cites regulation "20 C.F.R. § 920a(c)(2)" and"20 C.F.R. § 920a(e)(2)" (Docket Entry # 13, p. 16), this court assumes thatArruda intended to cite 20 C.F.R. § 416.920a(c) and 416.920a(e), theapplicable regulations for evaluating mental impairments. This regulation, 20 C.F.R. § 416.920a, is identical "for allintents and purposes" to 20 C.F.R. § 404.1520a. Torres v.Barnhart. 249 F. Supp.2d 83, 94 n. 7 (D.Mass. 2003). Although thediscussion applies equally to both regulations, this court primarilycites to 20 C.F.R. § 416.920a, the regulation relied upon byArruda.
29. Regulation 416.920a(d)(3) and its counterpart in Part 404,20 C.F.R. § 404.1520a(d)(3), provide that: (3) If we find that you have a severe mental impairment(s) that neither meets nor is equivalent in severity to any listing, we will then assess your residual functional capacity.20 C.F.R. § 416.920a(d)(3);20 C.F.R. § 404.1520a(d)(3).
30. Although the exact quote uses the word "step" as opposed to theword "level," the regulations clarify that the technique must be used ateach level in the administrative review process as opposed to each stepin the evaluation process. To avoid confusing the levels ofadministrative review with the five part sequential steps of evaluation,this court inserts the word "level" which is the word used in theregulation. See 20 C.F.R. § 416.920a(a) ("when we evaluatethe severity of mental impairments for adults . . ., we must follow aspecial technique at each level in the administrative reviewprocess").
31. The June 11, 2003 Ashby opinion is a report andrecommendation recommending a remand to the ALJ. One month later, thedistrict court adopted the recommendation in part. In lieu of remandingthe matter to the ALJ for further findings, the district court remandedthe matter for an immediate award of benefits. Ashby v.Barnhart. 2003 WL 22272151 (E.D.Pa. July 28, 2003).
32. The first three categories "use the following five point scale:None, mild, moderate, marked, and extreme."20 C.F.R. § 416.920a(c)(4). The final category uses "the following fourpoint scale: None, one or two, three, four or more."20 C.F.R. § 416.920a(c)(4).
33. Arruda's brief only quotes the first portion of thissentence.
34. Dr. Rowland later characterized Arruda's daily activities as"very limited" and opined that, "[s]ocially, she is becoming increasinglyisolated." (Tr. 310).