2004 | Cited 0 times | D. Maine | April 30, 2004


This Supplemental Security Income ("SSI") appeal raises the questionwhether the administrative law judge properly considered the opinion of atreating physician. I recommend that the court affirm the commissioner'sdecision.

In accordance with the commissioner's sequential evaluation process,20 C.F.R. § 416.920; Goodermote v. Secretary of Health & HumanServs., 690 F.2d 5, 6(1st Cir. 1982), the administrative law judgefound, in relevant part, that the plaintiff had degenerative discdisease, an impairment that was severe but did not meet or equal anyimpairment listed in Appendix 1 to Subpart P, 20 C.F.R. Part 404 (the "Listings"), Finding 2, Record at 16; that the plaintiff'sstatements concerning his impairment and its effect on his ability towork were not entirely credible, Finding 3, id., that theplaintiff lacked the residual functional capacity to lift and carry morethan 20 pounds or more than 10 pounds on a regular basis, Finding 4,id.; that he was unable to perform his past relevant work as agas station attendant, Finding 5, id; that his capacity for thefull range of light work was diminished by his inability to perform worknot permitting a sit/stand option, to use vibratory tools and to walk onuneven surfaces, Finding 6, id.; that given his age (39, ayounger individual), limited education, work experience and residualfunctional capacity, application of Rule 202.18 from Appendix 2 toSubpart P, 20 C.F.R. Part 404 (the "Grid") would direct a conclusion of"not disabled," without regard to the skill level of or transferabilityof skills from the plaintiff's former work, Findings 7-9, id. at16-17; that although the plaintiff was not able to perform the full rangeof light work, he was capable of making an adjustment to work thatexisted in significant numbers in the national economy, so that a findingof "not disabled" was reached within the framework of the Grid, Finding10, id. at 17; and that the plaintiff accordingly was not undera disability, as that term is defined in the Social Security Act, at anytime through the date of the decision, Finding 10 [sic], id. TheAppeals Council declined to review the decision, id. at 4-5,making it the final determination of the commissioner,20 C.F.R. § 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 is whether thedetermination made is supported by substantial evidence.42 U.S.C. § 1383(c)(3); Manso-Pizarro v. Secretary of Health & HumanServs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, thedetermination must be supported by such relevant evidence as areasonable mind might accept as adequate to support the conclusiondrawn. 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 sequential process,at which stage the burden of proof shifts to the commissioner to showthat a claimant can perform work other than his or her past relevantwork. 20 C.F.R. § 416.920(f); Bowen v. Yuckert,482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record mustcontain positive evidence in support of the commissioner's findingsregarding the plaintiff's residual work capacity to perform such otherwork. Rosado v. Secretary of Health & Human Servs.,807 F.2d 292, 294 (1st Cir. 1986).


The plaintiff contends that the administrative law judge should havegiven controlling weight to the physical capacities assessment completedby Stephen Z. Hull, M.D., a physician who was treating him for back pain.Plaintiff's Itemized Statement of Errors ("Itemized Statement") (DocketNo. 5) at 5. The applicable regulation provides, in pertinent part: Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairments) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairments) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 416.927(d)(2). The assessment by Dr. Hull on which theplaintiff relies, Itemized Statement at 3, dated January 10, 2002,states, inter alia, that the plaintiff could lift and carryfewer than 10 pounds on an occasional basis; could stand no more than twohours in an eight-hour work day; could sit less than two hours in anormal work day; could sit for no more than fifteen minutes nor stand formore than ten minutes without changing position; had to walk around everyfifteen minutes for five minutes; had to shift from sitting to standing at will; could climb ladders only rarely; could climbstairs no more than nine minutes per hour; could twist, stoop and crouchrarely to no more than nine minutes per hour; could engage in onlyminimal reaching; could push and pull only with low resistance; shouldlimit exposure to extreme cold; and would be absent from work about twicea month for medical appointments, Record at 203-05. Most of theselimitations are not reflected in the residual functional capacity adoptedby the administrative law judge. Id. at 15.

The plaintiff attempts to discount the findings of a consultantexaminer, Steven G. Johnson, M.D., Itemized Statement at 5-6, therebyimplicitly and correctly acknowledging that Dr. Johnson's findings arenot consistent with the limitations described by Dr. Hull. Dr. Johnsonexamined the plaintiff on April 12, 2001 and concluded that he had"sustained a soft tissue injury to his lower back and buttocks threeyears ago" for which he was still under treatment, that there was nomechanical or neurological impairment and that his MRI was normal. Recordat 126-27. Dr. Johnson also concluded that the plaintiff had nodifficulty sitting, standing or walking; that he would limit theplaintiff to the moderate range of lifting and carrying; that theplaintiff could bend occasionally at the waist; and that the plaintiffwould have no difficulty handling objects, hearing, speaking ortraveling. Id. at 127. This report constitutes substantialevidence that is sufficiently inconsistent with Dr. Hull's limitations todeprive them of controlling weight.

The plaintiff contends that administrative law judge nonethelesscommitted errors requiring remand because he failed "to explicate thefactors relevant to giving Dr. Hull's opinions less than controllingweight" and because he undertook "a lay analysis of a complex medicalcondition" by "selectively cho[osing] the evidence that fit" anassumption that the plaintiff's allegations of severe pain could only besupported by the signs and symptoms of a serious discogenic paindisorder. Itemized Statement at 6. However, the administrative law judgedid give reasons for his rejection of portions of Dr. Hull's assessment. In light of the foregoing, the undersigned concludes that the claimant's statements concerning his impairment and its impact on his ability to work are not credible. The claimant's doctor apparently relied quite heavily on the subjective report of symptoms and limitations provided by the claimant, and seemed to uncritically accept as true most, if not all, of what the claimant reported. Yet, as explained in the foregoing, there exist good reasons for questioning the reliability of the claimant's subjective complaints. Dr. Hull's opinion regarding the claimant's functional capacity provides very little explanation of the evidence relied on in forming that opinion. The doctor's own reports fail to reveal the type of significant clinical and laboratory abnormalities one would expect if the claimant were in fact disabled, and the doctor did not specifically address this weakness. Although the claimant has received treatment for the allegedly disabling impairment, that treatment has been essentially routine and/or conservative in nature.

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The undersigned finds that controlling weight may not be given to Dr. Hull's functional capacity as his medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques. An MRI on August 1, 2001 revealed only minor degenerative changes in the 4-5 and 5-1 discs with small central bulges (Exhibit 4F). The claimant has no radicular pain, no neurological compromise, and he has full range of motion.Record at 14-15. The administrative law judge then cites the reports ofthe state-agency reviewers. Id. at 15. Contrary to the argumentof the plaintiff, this statement of the administrative law judge'sreasons for rejecting Dr. Hull's limitations complies with20 C.F.R. § 416.927(d)(2).2 See, e.g., Jerry v. Commissioner of Soc.Sec. Admin., 97 F. Supp.2d 1219, 1223-24 (D. Or. 2000); Hayes v.Callahan, 976 F. Supp. 1391, 1395 (D. Kan. 1997). The plaintiffargues that the administrative law judge's conclusions that he had noradicular pain or neurological compromise and did have full range ofmotion are inconsistent with Dr. Hull's findings, but they are consistent withDr. Johnson's findings. The administrative law judge could rely on Dr.Johnson's findings under the circumstances of this case.

The plaintiff's assertion that the administrative law judge's rejectionof Dr. Hull's limitations was based on an impermissible lay analysis ofmedical evidence because the rejection was itself based solely on anassumption that signs and symptoms of a severe discogenic pain disorderwere necessary also may not prevail. The opinion does refer to the MRI asrevealing only minor changes, but it also refers to Dr. Johnson'sconclusions and those of the state-agency reviewers. Record at 15. Noneof those conclusions is raw medical data that an administrative law judgeis not competent to interpret. One of the state-agency reviewersconcluded that the plaintiff had a physical capacity exceeding the limitsfound by the administrative law judge, id. at 129, and the otherfound a physical capacity essentially the same as that adopted by theadministrative law judge, id. at 196. The first reviewer, aftermentioning the MRI, id. at 130, stated that the medical recordsand "physical exam partially supports [sic] limitations alleged by[claimant]. This RFC reflects limitations secondary to pain which issupported by [medical records and physical exam] but few objectivefindings preclude further restrictions," id. at 134. The secondreviewer noted that the severity or duration of the symptoms alleged bythe plaintiff was disproportionate to the expected severity or durationon the basis of the claimant's medically determinable impairments.Id. at 200. The existence of this evidence demonstrates that theadministrative law judge did not make a lay evaluation of raw medicaldata; the necessary evaluations were performed by the state agency'smedical professionals.

At oral argument, counsel for the plaintiff cited Singletary v.Apfel, 981 F. Supp. 802 (W.D. N.Y. 1997), in support of hiscontention that this case requires remand for consultation with a medicalexpert at hearing. However, that case turned on the administrative lawjudge's reliance on his own lay opinion that degenerative disc disease and disc bulges cannot cause significantpain or be disabling. Id. at 807. For the reasons already noted,that is not the case here.


For the foregoing reasons, I recommend that the commissioner's decisionbe AFFIRMED.


A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommended decisionsentered pursuant to 28 U.S.C. § 636(b)(1)(B) for which denovo review by the district court is sought, together with asupporting memorandum and request for oral argument before the districtjudge, if any is sought, within ten (10) days after being served with acopy thereof. A responsive memorandum and any request for oral argumentbefore the district judge shall be filed within ten (10) days after thefiling of the objection.

Failure to file a timely objection shall constitute a waiver ofthe right to de novo review by the district courtand to appeal the district court's order.

1. This action is properly brought under 42 U.S.C. § 1383(c)(3).The commissioner has admitted that the plaintiff has exhausted hisadministrative remedies. The case is presented as a request for judicialreview by this court pursuant to Local Rule 16.3(a)(2)(A), which requiresthe plaintiff to file an itemized statement of the specific errors uponwhich he seeks reversal of the commissioner's decision and to completeand file a fact sheet available at the Clerk's Office. Oral argument washeld before me on April 28, 2004, pursuant to Local Rule 16.3(a)(2)(C)requiring the parties to set forth at oral argument their respectivepositions with citations to relevant statutes, regulations, caseauthority and page references to the administrative record.

2. Counsel for the plaintiff contended at oral argument that SocialSecurity Ruling 96-2p also supports his position on this issue. Contraryto counsel's assertion, nothing in that Ruling requires an administrativelaw judge to "isolate the amount of weight given" to a treatingphysician's medical opinion when that opinion is not entitled tocontrolling weight. Social Security Ruling 96-2p, reprinted in West'sSocial Security Reporting Service Rulings (Supp. 2003) at 111-15.For the reasons stated in the body of this recommended decision, theadministrative law judge complied with the terms of this Ruling as wellas with 20 C.F.R. § 416.927(d)(2).

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