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USCA1 Opinion
June 9, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2173
BARBARA SHAW,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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David Waldfogel, J. Patterson Rae, and Western Mass. Legal
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Services, Inc., on brief for appellant.
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Donald K. Stern, United States Attorney, Karen L. Goodwin,
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Assistant United States Attorney, and John Germanotta, Assistant
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Regional Counsel, Department of Health & Human Services, on brief
for appellee.
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Per Curiam. Plaintiff appeals the denial of her
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second application for SSDI and SSI benefits for a period of
alleged disability beginning November 15, 1988, due to back,
neck and shoulder problems. The procedural history of
plaintiff's claim, and the medical evidence in the record are
thoroughly detailed in the district court's opinion. We
reiterate here only to the extent necessary to orient our
discussion.
Plaintiff had a history of back, neck and shoulder
complaints dating back to October, 1979. She worked as a
self-employed housekeeper for approximately seven years
immediately prior to her initial application for disability
benefits at age 47. The alleged onset of her disability was
not triggered by any sudden event, but its date roughly
coincides with the date upon which her physician, who had
diagnosed cervical arthritis, referred her to an orthopedic
surgeon, Dr. Kanner. (T.187).
Dr. Kanner diagnosed plaintiff as suffering from
advanced degenerative disc disease of the cervical spine
affecting four discs, with kyphotic deformity, and
significant osteophytic formation at two of the discs.1 In
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1. Kyphosis is defined as "abnormally increased convexity in
the curvature of the thoracic spine as viewed from the side;
hunchback." Dorland's Illustrated Medical Dictionary 705
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(26th ed. 1985). Osteophyte is defined as "a bony
excrescence or osseous outgrowth." Id. at 943.
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2
plaintiff's first two office visits, Dr. Kanner also observed
decreased sensitivity in plaintiff's hands and paresthesia in
all fingers.2 (T.199, 200). Plaintiff's range of motion was
initially restricted in all planes by 50 percent, she was
unable to do any lifting or bending, and unable to use her
hands at great length. (T.195-96, 199-200). Dr. Kanner
recommended cervical traction and exercise therapy. (T.199-
200). Later he also recommended a soft cervical collar and
lower back support. (T.226-27).
Within a few months of starting treatment, Dr.
Kanner noted that plaintiff's neck condition was "greatly
improved." (T.199). By February, 1990, he recorded that her
upper extremity symptoms had "completely resolved," there
were no radicular symptoms in her lower back, only "mild
restricted motion, but otherwise no neurological deficit or
spasm." (T.226). Her disc spaces were well maintained.
Nevertheless, Dr. Kanner simultaneously reported on
a Welfare Department form that plaintiff was "totally
disabled," and predicted that her disability would last from
10 to 12 months. (T.224). On three earlier forms, he had
predicted shorter durations of 3 months, 4-6 months and 2
months respectively. (T.190, 193, 196). During the shorter
time periods, he said that plaintiff would have difficulty
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2. Paresthesia is defined as an "abnormal sensation, such as
burning, prickling, formication, etc." The Sloane-Dorland
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Annotated Medical-Legal Dictionary 533 (1987).
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3
with prolonged standing, walking, sitting, bending or heavy
lifting. (T.190, 193, 196). On the last form (10-12 months)
no functional limits were noted.3
In December, 1989, a consultative orthopedic
surgeon, Dr. Silver, concurred in Dr. Kanner's diagnoses of
significant degenerative disc disease, osteophyte formation,
and "moderate kyphosis which can only be measured
radiologically." (T.202). He observed, however, that
plaintiff walked with a normal gait, maintained normal
posture, and got on and off the examining table without
hesitation. (T.201). The range of motion for her lumbosacral
spine was sufficient to enable her to reach within an inch of
the floor with her knees straight. As to the cervical spine,
she was able to touch her chin to her chest and rotate forty
five degrees to the right and left. There was "no tenderness
throughout the spinous process of the cervical spine," and
"no pain on palpation to the shoulder musculature," no spasm
or neurological deficit, and no indication of weakness of
grasp. (T.202-03). Dr. Silver opined that plaintiff's
kyphosis was the main cause of her difficulties. (T.203).
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3. In answer to a written question from appellant's attorney
in May, 1990, Dr. Kanner checked "no" when asked "has
[appellant] achieved pain relief to such a degree that you
would no longer judge her to have difficulty with prolonged
[activities] as you had in your [earlier] reports to the
Welfare Department?" (T.205) He did not further explain his
answer, however, despite a request for an explanation (T.
205).
4
There were also three residual functional capacity
assessments ("RFCs") by State agency doctors based on
plaintiff's medical records. All three found that plaintiff
had a residual functional capacity to frequently lift or
carry up to 25 pounds, and to sit, stand and walk for up to
six hours a day with normal breaks. (T.79-80, 139-46, 165-
72). The facts detailed by two of the agency doctors in
support of their assessments include the medical signs
recited by the two examining orthopedists that seem
inconsistent with a high degree of pain, i.e., plaintiff's
normal gait, the absence of muscle spasm, radicular or
neurological deficits, and a mild limitation on range of
motion.
After a hearing at which plaintiff testified at
length about her pain, the ALJ found plaintiff "not disabled"
at step four of the regulatory sequential analysis, in that
she was able to return to her past relevant work as a house
cleaner. See 20 C.F.R. 404.1520.
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There seems little question that there is
substantial evidence in the record to support the ALJ's
decision. Plaintiff's claim to a disability of statutory
severity was based on impairments which, by definition,
include a degree of pain. The question before the ALJ at
step four was whether plaintiff's pain was so intense,
persistent or functionally limiting as to prevent her from
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returning to her past relevant work. 20 C.F.R.
404.1529(b). Both examining orthopedists reported medical
signs and symptoms inconsistent with the unremitting pain
which plaintiff alleged. In conformance with the regulations
and caselaw, the ALJ considered detailed testimony from the
plaintiff and her son about her symptoms, her intolerance of
pain medication, her home traction and exercise regimen, her
other daily activities, and the extent to which her pain
allegedly impeded her functioning. Avery v. Secretary of
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HHS, 797 F.2d 19, 23 (1st Cir. 1986); 20 C.F.R.
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404.1529(c), 416.929(c) (1991). Although the ALJ's findings
are more abbreviated than we might prefer, it is clear that
he found plaintiff's testimony about the limiting severity of
her pain not credible, inconsistent with the medical signs
reported, and inconsistent with the daily activities and work
history which she described. In these circumstances, "the
credibility determination by the ALJ, who observed the
claimant, evaluated [her] demeanor, and considered how that
testimony fit in with the rest of the evidence, is entitled
to deference . . . " Frustaglia v. Secretary of HHS, 829
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F.2d 192, 195 (1st Cir. 1987).
Plaintiff bore the burden of proving that her
impairments prevented her from performing her former type of
work. Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985);
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see also Dudley v. Secretary of HHS, 816 F.2d 792, 795 (1st
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6
Cir. 1987) (plaintiff's burden includes proving the
particular demands of her past work that she cannot perform).
She described her work as requiring frequent bending and
reaching, and the lifting of 10 to 20 pounds,4 capacities
which the nontreating doctors concluded that she retained.
Although plaintiff produced three reports from Dr. Kanner to
the Welfare Department stating that her functional capacities
were then more limited, each report predicted a very short
disability period, together totalling less than the statutory
minimum for disability. See 42 U.S.C. 423(d)(1)(A) (a
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qualifying impairment is one which "can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months"). Dr. Kanner's
fourth report carried the prediction of "total disability"
into the statutory period, but did not specify any functional
limitation. Viewed as a mixed legal-medical conclusion, it
was not binding on the ALJ. 20 C.F.R. 404.1527(d)(2)
(1991).
Plaintiff argues, however, that the ALJ and the
district court erred in applying the recently promulgated
regulation relating to the weight to be assigned to treating
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4. Plaintiff gave several somewhat contradictory
descriptions of the demands of her past work (T.84, 98, 131).
The ALJ was entitled to rely on the description he found most
credible. See Santiago v. Secretary of HHS, 944 F.2d 1, 5
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(1st Cir. 1991) (ALJ is entitled to rely on claimant's own
description).
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doctor reports, 20 C.F.R. S 404.1527 (1991).5 She contends
that the regulation required that the ALJ assign (1)
"controlling weight" to Dr. Kanner's evaluation, and/or (2)
"substantially greater weight" to his opinion than to those
of the non-treating physicians. A part of the regulation
provides:
Generally we give more weight to opinions from your
treating sources .... 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
other substantial evidence in your case record, we
will give it controlling weight. When we do not
give ... controlling weight, we will apply [other
factors] in determining [its] weight ... We will
always give good reasons in our ... decision for
the weight we give your treating source's opinion.
20 C.F.R. 404.1527(d)(2). While the district court seems
to have overlooked this regulation, we do not think a remand
is required.
Controlling weight may be accorded to a treating
doctor's opinion as to the "nature" and "severity" of a
claimant's impairments where, among other qualifications, the
opinion is "not inconsistent" with substantial evidence in
the case. By this measure, Dr. Kanner's diagnosis, confirmed
by the consulting orthopedist and accepted by the three non-
examining doctors, qualified for "controlling weight." We
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5. The Secretary has not objected to the applicability of
this regulation, which became final shortly after the ALJ's
decision was issued.
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find no fault with the decisions below on this score. Both
the ALJ and the district court accepted as a given Dr.
Kanner's diagnosis of plaintiff's condition.
On the other hand, Dr. Kanner's opinion as to the
"severity" of claimant's impairments is not easily
characterized, making inexact any attempt at bottom line
contrasts with the other doctors' opinions. While Dr. Kanner
three times reported to the Welfare Department that appellant
was unable to engage in prolonged bending, sitting or
standing, on each occasion he indicated that the expected
duration of appellant's disability would be quite short,
suggesting only an episodic impairment. During the same
period, moreover, his office notes indicate that appellant
was showing marked improvement, some of her symptoms were
"completely resolved," and she had achieved significant
relief through a regimen of home traction and exercise
therapy. His fourth report, extending the conclusion
"totally disabled" for another 10 to 12 months, is not
explained.
Appellant's line of argument presumably would have
us disregard the time limits and internal inconsistencies in
Dr. Kanner's reports and interpret his statement that
appellant was "totally disabled" as a shorthand expression of
his medical opinion that appellant's impairments were of such
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"severity" as to cause lasting functional incapacity.6
Appellant points to the doctor's recommended treatment as
further proof that his actual opinion supports her
interpretation. Even so, however, Dr. Kanner's opinion would
not automatically qualify for "controlling weight" because
the consulting physician and the three non-examining doctors
reached a divergent result. When a treating doctor's opinion
is inconsistent with other substantial evidence in the
record, the requirement of "controlling weight" does not
apply. All things being equal, however, a treating doctor's
report may be entitled to "greater" weight than an
inconsistent non-treating source.7
We do not agree, however, that the ALJ was required
to construe Dr. Kanner's time limited welfare form statements
in the manner most advantageous to appellant. The
regulations do not require a particular view of the evidence,
but leave ambiguities and inconsistencies to be sifted and
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6. The decision whether a claimant is "disabled" within the
meaning of the statute and regulations is reserved solely for
the Secretary. 20 C.F.R. 404.1526(e). To the extent that
Dr. Kanner's opinion is urged as reflecting an answer to the
statutory question, it was not binding on the ALJ. 20 C.F.R.
404.1526(e)(1); see supra text at 7.
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7. The Secretary's comments accompanying promulgation of the
final regulation observe that if a treating and non-treating
source conflict, and the two opinions are equally well-
supported, the Secretary will give "greater weight" to the
treating source opinion, at least where the treating doctor
is shown to have superior familiarity with the patient and a
variety of other qualifications are met. 20 Fed. Reg.
36,951.
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weighed by the ALJ, who may, as here, use a consultative
examination to help resolve uncertainties. 20 C.F.R.
404.1527(c)(3)(4). The ALJ must evaluate all medical
opinions from all sources in light of a non-exclusive list of
possibly relevant factors. 20 C.F.R. 404.1527(f),
416.927(f). While generic deference is reserved for treating
source opinions, the regulations also presuppose that
nontreating, nonexamining sources may override treating
doctor opinions, provided there is support for the result in
the record. See Standards for Consultative Examinations and
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Existing Medical Evidence; Final Rule, 56 Fed. Reg. 36,931,
36,936 (1991); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.
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1993) (observing that the new regulation differs in this
regard from the Second Circuit's former rule, and affirming
the Secretary's authority to promulgate the new regulation).
Appellant would have us reweigh the evidence in
light of the multitude of factors identified in the
regulations. Our standard of review on appeal, however, is
whether the Secretary's findings are supported by
"substantial evidence." Although the record may support more
than one conclusion, we must uphold the Secretary "if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his
conclusion." Ortiz v. Secretary of HHS, 955 F.2d 765, 769
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(1st Cir. 1991) (quoting Rodriguez v. Secretary of HHS, 647
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F.2d 218, 222 (1st Cir. 1981)); see also Richardson v.
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Perales, 402 U.S. 389, 401 (1971). Resolutions of conflicts
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in the evidence and credibility issues are for the Secretary,
not the courts. Ortiz, 955 F.2d at 769; Evangelista v.
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Secretary of HHS, 826 F.2d 136, 141 (1st Cir. 1987). Where
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the facts permit diverse inferences, we will affirm the
Secretary even if we might have reached a different result.
Rodriguez Pagan v. Secretary of HHS, 819 F.2d 1, 3 (1st Cir.
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1987), cert. denied, 484 U.S. 1012 (1988); Lizotte v.
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Secretary of HHS, 654 F.2d 127, 128 (1st Cir. 1981).
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As we have said, on the one hand Dr. Kanner's
reports might be fairly viewed as consistent with the other
medical evidence in reflecting only episodic functional
limitations. On the other hand, they might be viewed as
internally inconsistent or inconsistent with the record as a
whole, factors which weigh against excessive reliance on the
treating doctor's opinion. 20 C.F.R.
404.1527(d)(ii)(3)(4). The ALJ was required to consider
these ambiguities in light of the other medical evidence,
plaintiff's testimony about her pain, and his own assessment
of plaintiff's credibility. 20 C.F.R. 404.1529(c)(1) (in
evaluating intensity and persistence of pain, medical
opinions are to be considered in light of factors stated in
404.1527). We hold only that the ALJ's reconciliation of the
evidence as revealing an impairment "severe" enough to pass
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muster at step two of the process, but not so severe as to
prevent plaintiff from returning to her past work, is
supported by substantial evidence in the record.
We also find appellant's remaining arguments
wanting. We agree with the district court that while the ALJ
did not expressly cite the agency doctors' reports (only the
agency findings) he implicitly took them into account. While
we would prefer more explanatory detail, and the new
regulation contemplates greater detail, we see no reason to
return this case for the purely formulaic purpose of having
the ALJ write out what seems plain on a review of the record.
We also reject appellant's argument that the ALJ
erred by failing to obtain more information from Dr. Kanner.
Where the evidence is inconsistent or insufficient to enable
the ALJ make a decision, the ALJ may recontact medical
sources, request that the claimant undergo a consultative
examination or produce additional information. 20 C.F.R.
1519p, 1527(c)(3). There was a consultative examination
here, and the ALJ apparently did not see the need for more
evidence from Dr. Kanner. Appellant, too, had an obligation.
She was required to produce all information supportive of her
claim. 20 C.F.R. 404.1512(a). She was well represented by
a paralegal under the supervision of an attorney, afforded
ample opportunity to present her case, and did not indicate
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any desire to offer further evidence. (T.72). After the
ALJ's decision, she was afforded a further opportunity to
present additional or clarifying evidence to the appeals
council, but chose not to. (T.73, 232). Under these
circumstances, we see no prejudice in the ALJ's failure to
recontact the doctors.
Accordingly, the judgment below is affirmed.
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Document Info
Docket Number： 93-2173
Filed Date： 6/10/1994
Precedential Status： Precedential
Modified Date： 9/21/2015