REPORT AND RECOMMENDED DECISION1
This Social Security Disability ("SSD") and SupplementalSecurity Income ("SSI") appeal raises the following issues:whether the administrative law judge misinterpreted the medicalevidence, whether the administrative law judge was required toconsult a medical expert at the hearing held on the plaintiff'sapplication for benefits, whether the administrative law judgewas required to contact the plaintiff's treating physician forclarification of his opinion and whether the administrative lawjudge's assessment of the credibility of the plaintiff'stestimony was sufficient under Social Security Ruling 96-7p. Irecommend that the decision of the commissioner be vacated andthe case remanded for further proceedings. In accordance with the commissioner's sequential evaluationprocess, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretaryof Health & Human Servs., 690 F.2d 5. 6 (1st Cir. 1982), theadministrative law judge found, in relevant part, that theplaintiff had an impairment or combination of impairments thatwas severe but did not meet or equal the criteria of any of theimpairments listed in Appendix 1 to Subpart P, 20 C.F.R. Part 404(the "Listings"), Findings 3-4, Record at 23; that hisallegations regarding his limitations were not totally credible,Finding 5, id.; that he had the residual functional capacity tolift and/or carry 10 pounds frequently and 20 poundsoccasionally, to stand and/or walk a total of 6 hours in an8-hour work day and to sit for about 6 hours in an 8-hour workday, with unlimited ability to push and/or pull; Finding 7,id.; that he had no ability to climb ladders, ropes orscaffolds, with occasional ability to perform other posturalfunctions and a need to avoid concentrated exposure to hazards orcommercial driving secondary to fatigue from untreated sleepapnea, id.; that he was unable to perform any of his pastrelevant work, Finding 8, id.; that, given his age (youngerindividual between the ages of 18 and 44), education (high schoolor equivalent), lack of transferable skills and residualfunctional capacity to perform a significant range of light andsedentary work, use of Rule 202.21 of Appendix 2 to subpart P, 20C.F.R. Part 404 (the "Grid") as a framework resulted in theconclusion that there was a significant number of jobs in thenational economy that he could perform, Findings 9-13, id. at23-24; and that the plaintiff therefore was not under adisability, as that term is defined in the Social Security Act,at any time through the date of the decision, Finding 14, id.at 24. The Appeals Council declined to review the decision, id.at 5-7, making it the final determination of the commissioner,20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Secretary of Health &Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner's decision iswhether the determination made is supported by substantialevidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v.Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In otherwords, the determination made must be supported by such relevantevidence as a reasonable mind might accept as adequate to supportthe conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401(1971); Rodriguez v. Secretary of Health & Human Servs.,647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 5 of the sequentialreview process, at which stage the burden of proof shifts to thecommissioner to show that a claimant can perform work other thanhis past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f);Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Goodermote,690 F.2d at 7. The record must contain positive evidence insupport of the commissioner's findings regarding the plaintiff'sresidual work capacity to perform such other work. Rosado v.Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir.1986).
The plaintiff contends that the administrative law judgeimproperly rejected the conclusion of Alan Glann, M.D., that hemet the Listing for sleep apnea. Plaintiff's Itemized Statementof Errors (Docket No. 13) ("Itemized Statement") at 4-6. If anapplicant for Social Security benefits meets a Listing, he isentitled to benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d).Accordingly, Dr. Glann's opinion that the plaintiff meets aListing is an opinion on an issue that is reserved to thecommissioner and thus is not treated as a medical opinion underapplicable regulations. 20 C.F.R. §§ 404.1527(e), 416.927(e).While the commissioner must consider such opinions, SocialSecurity Ruling 96-5p ("SSR 96-5p"), reprinted in West's SocialSecurity Reporting Service Rulings (Supp. 2004), at 123, thereis no regulatory requirement that the commissioner state anyreason for rejecting such an opinion. The administrative lawjudge did point out that Dr. Glann's opinion that the plaintiffmet the Listing for sleep apnea is unsupported by any evidence inthe medical records that the plaintiff's apnea resulted inchronic pulmonary hypertension or disturbance in cognitive functioning, Record at 37, at least one of which isrequired by the terms of the Listing. Listing 3.00(H). Theplaintiff suggests that the fact that Dr. Glann "believed [he]was impaired sufficiently to be unable to drive," ItemizedStatement at 6 and n. 17, indicates the required disturbance incognitive functioning, but the Listings are quite specific inthis regard. That element is to be evaluated under section 12.02of the Listings, Listings 3.00(H), 3.10, and an inability todrive does not begin to meet the requirements of subsections Aand B or subsection C of Listing 12.02.
The plaintiff argues that the administrative law judge'sconsideration of Dr. Glann's opinion is nonetheless fatallyflawed, apparently because his "choice to emphasize" Dr. Glenn'scharacterization of the plaintiff's sleep apnea as "mild" somehowconstitutes an impermissible lay evaluation of raw medical data.Itemized Statement at 5. At oral argument, counsel for theplaintiff identified this "raw medical data" as a letter from Dr.Glann dated May 14, 2002 reporting on the plaintiff's medicalcondition, Record at 302-03; a report from Dr. Glann datedOctober 21, 2001 including Dr. Glann's interpretation of theresults of overnight polysomnography, id. at 312-13; a letterdated February 13, 2001 from Dr. Glann reporting on his care ofthe plaintiff, id. at 315; and an "initial evaluation" of theplaintiff by Dr. Glann, dated September 17, 2001, id. at317-18. With the exception of portions of the October 21, 2001report, none of this material is properly characterized as "rawmedical data." I find no indication in the record that theadministrative law judge interpreted the results of thepolysomnography tests in a manner inconsistent with Dr. Glann'sinterpretation as set forth in that document. Indeed, that is thevery document in which Dr. Glann concludes that the data showsthe existence of a "[s]leep-disordered breathing abnormalityconsistent with mild obstructive sleep apnea/hypopnea syndrome."Id. at 313.
The plaintiff also finds it significant that the administrativelaw judge did not mention the scores on the Epworth SleepinessScale assigned to him on four occasions by Dr. Glann. ItemizedStatement at 5. However, there is no regulatory or other legal requirement thatthe administrative law judge refer to any particular entries inthe medical record in reviewing a claimant's medical evidence.Nor does an administrative law judge's review of all of themedical evidence, a task that is the essence of theadministrative law judge's job in the Social Security setting,necessarily require that he interpret raw medical data as a layperson. Here, the administrative law judge neither ignoredmedical evidence — indeed, he specifically addressed Dr. Glann'sopinion with respect to the Listing — nor substituted his ownviews for uncontroverted medical opinion on an issue not reservedto the commissioner. Nguyen v. Chater, 172 F.3d 31, 35 (1stCir. 1999). In Perez v. Secretary of Health & Human Servs.,958 F.2d 445 (1st Cir. 1991), one of the two remaining cases cited bythe plaintiff in support of his position on this point, the FirstCircuit observed that it had held that an ALJ may not reachconclusions about residual functional capacity without anyassessment of residual functional capacity by a physician, id.at 446. In the other cited case, the record was devoid of anymedical evaluation of the claimant's residual functionalcapacity. Manso-Pizaarro, 76 F.3d at 17. That is not the casehere. E.g., Record at 283-86 (consultative physicalexamination), 287-94 (state-agency RFC evaluation), 319-26(same).
In this case, evaluation of the evidence which the plaintiffidentifies as inconsistent with Dr. Glann's own characterizationof the plaintiff's condition as "mild" — the increase in theapnea index when the plaintiff slept on his back, ItemizedStatement at 5, which Dr. Glann thereafter instructed him not todo, Record at 302; the plaintiff's inability to use the CPAPdevice without surgery, which he refused to consider, id. at302, 351, 352; and the Epworth Scale numbers assigned by Dr.Glann — may all be evaluated without necessarily construing rawmedical data. Indeed, counsel for the plaintiff has done sohimself. Since Dr. Glann had all of this evidence before him whenhe characterized the plaintiff's condition as "mild," theadministrative law judge was justified in relying on thatcharacterization. Finally, the decision whether to call a medical expert to testify at the hearing beforethe administrative law judge remains within the discretion of thecommissioner and the failure to do so may not provide the basisfor vacating the decision of the commissioner. Rodriguez Paganv. Secretary of Health & Human Servs., 819 F.2d 1, 5 (1st Cir.1987).
The plaintiff next asserts that the administrative law judgewas required to contact Dr. Glann under20 C.F.R. § 404.1512(e)(1) and Social Security Ruling 96-5p. ItemizedStatement at 6. He contends that the administrative law judge wasrequired to "clarify" Dr. Glann's opinion that his medicalcondition met the Listing for sleep apnea "and, if not, toascertain the sleep specialist's opinion on the particulars ofhis patient's mental and physical functional capacity." Id.Since the administrative law judge found it "critical" that Dr.Glann "did not say" whether the plaintiff suffered from pulmonaryhypertension or had cognitive impairments, a required element ofthe Listing, the plaintiff asserts that the administrative lawjudge was "required" to give Dr. Glann "an opportunity to statehis opinion on these points." Id. Initially, it is important tonote that the burden of proof with respect to Listing status(Step 3 of the sequential process) and residual functionalcapacity (Step 4) is on the claimant. The regulation cited by theplaintiff states that a treating physician will be contacted whenthe evidence received by the administrative law judge "isinadequate for us to determine whether you are disabled."20 C.F.R. § 404.1512(e)(1). See also 20 C.F.R. § 416.912(e)(1).SSR 96-5p, on which the plaintiff also relies, states that theadministrative law judge must make reasonable efforts to contacta treating physician when he "cannot ascertain the basis of" thephysician's opinion on an issue reserved to the commissioner fromthe case record. SSR 96-5p at 127. The basis for Dr. Glann'sopinion is set forth in his records and can be ascertained; theadministrative law judge stated his reasons for finding that theopinion was not supported by objective medical data. Record at18. See Alejandro v. Barnhart, 291 F.Supp.2d 497, 512 (S.D.Tex.2003). Neither the regulation nor the Ruling requires the commissioner to give a physician a secondchance to support his conclusions in circumstances where thephysician may not have been familiar with all of the requirementsof a Listing. See generally Thomas v. Barnhart, 278 F.3d 947,958 (9th Cir. 2002) (ALJ's disagreement with treating physician'sconclusion not equivalent of finding that evidence from physicianis inadequate to make disability determination); White v.Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) ("It is theinadequacy of the record, rather than the rejection of thetreating physician's opinion, that triggers the duty to recontactthat physician.").
In this case, it was incumbent on the plaintiff to show fromthe medical records that he suffered from pulmonary hypertensionor cognitive impairments as described in Listing 12.02; I havealready concluded that the records do not contain such evidence.The commissioner was not required to give the plaintiff'streating physician the opportunity to create such records afterthe hearing. It is highly unlikely that either condition would gounremarked in the plaintiff's extensive medical records. Remandin order to recontact Dr. Glann would be based purely onspeculation.
The plaintiff fares better with his final argument concerningthe administrative law judge's evaluation of his credibility. Theplaintiff's argument is brief, Itemized Statement at 7, butraises a valid concern. The administrative law judge found that"the claimant's allegations regarding his limitations are nottotally credible for reasons set forth in the body of thedecision." Record at 23. The only reference in the body of thedecision to the plaintiff's credibility is the following:
The claimant's subjective complaints of symptoms and their resulting work-related limitations are credible only to the extent that certain strenuous activities are precluded. However, the objective clinical findings are out of proportion with the claimant's subjective symptoms, and do not support a conclusion that such symptom-related limitations are of an intensity, frequency or duration as to preclude performance of all exertional activities (SSR 96-7p). Id. at 21. Merely to mention a Ruling is not to comply with it.Social Security Ruling 96-7p requires that the administrative lawjudge articulate the reasons for his credibility finding. SocialSecurity Ruling 96-7p ("SSR 96-7p"). reprinted in West's SocialSecurity Reporting Service Rulings (Supp. 2004), at 136. "Thedetermination or decision must contain specific reasons for thefinding on credibility, supported by the evidence in the caserecord, and must be sufficiently specific to make clear to theindividual and to any subsequent reviewers the weight theadjudicator gave to the individual's statements and the reasonsfor that weight." Id. at 137. The administrative law judge'sopinion in this case does not meet this standard.
At oral argument, counsel for the commissioner argued that theadministrative law judge discusses his evaluation of theplaintiff's testimony at pages 38-39 of the record in a mannerthat satisfies the intent of SSR 96-7p, although it admittedlydoes not conform exactly to the Ruling's requirement. I cannotagree. On those pages, the administrative law judge lists some ofthe information reported by the plaintiff on various forms; hedoes not refer to the plaintiff's testimony at all. There is nostatement explaining the reasons for any finding about thecredibility of the defendant's written or oral statements, whichis required. SSR 96-7p at 133. A reviewing court is not able todetermine the weight given by the administrative law judge to theplaintiff's statements about his symptoms and limitations or thereasons for that weight from what appears on pages 38-39, oranywhere else in the decision. There is no apparent considerationof the seven factors set forth by the Ruling as ones that theadjudicator "must consider." Id. at 135.
I cannot conclude that this error in the decision is harmless.The decision strongly suggests that the plaintiff's statementsare inconsistent with the administrative law judge's conclusions.Record at 40. The plaintiff's testimony about his pain andlimitations at the hearing, id. at 67-70, 73-80, which theadministrative law judge does not even mention, may fairly besaid to be inconsistent with the conclusion that the plaintiffhas a residual functional capacity to perform a significant rangeof light and sedentary work, id. at 24. It may be that the medical evidence is inconsistent withthis testimony and that there are other reasons for rejecting it.One simply cannot tell whether that is the case from theadministrative law judge's decision in this case. The failure tocomply with SSR 96-7p requires remand in this case.
For the foregoing reasons, I recommend that the commissioner'sdecision be VACATED and the case remanded for furtherproceedings consistent herewith.
1. This action is properly brought under 42 U.S.C. §§ 405(g)and 1383(c)(3). The commissioner has admitted that the plaintiffhas exhausted his administrative remedies. The case is presentedas a request for judicial review by this court pursuant to LocalRule 16.3(a)(2)(A), which requires the plaintiff to file anitemized statement of the specific errors upon which he seeksreversal of the commissioner's decision and to complete and filea fact sheet available at the Clerk's Office. Oral argument washeld before me on August 20, 2004, pursuant to Local Rule16.3(a)(2)(C) requiring the parties to set forth at oral argumenttheir respective positions with citations to relevant statutes,regulations, case authority and page references to theadministrative record.