Nicholson v. Callahan ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1858
PAULINE NICHOLSON,
Plaintiff, Appellant,
v.
JOHN J. CALLAHAN, ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. David L. Martin, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
David B. Green and Green & Greenberg on brief for appellant.
Margaret E. Curran, United States Attorney, Robin E. Feder,
Assistant United States Attorney, and Nancy B. Salafia,
Assistant Regional Counsel, on brief for appellee.
March 6, 2000
Per Curiam. Appellant appeals from the district
court's decision affirming the final decision of the
Commissioner of Social Security denying disability insurance
benefits under the Social Security Act. After carefully
reviewing the administrative record and the arguments of the
parties, we conclude that substantial evidence supported the
denial of benefits, essentially for the reasons given by the
district court in its Memorandum and Order dated May 20,
1999 and by the Commissioner in his appellate brief. We
make only the following additional comments relative to
claims of error not directly addressed by the district court
or the Commissioner.1
1. Appellant suggests that the administrative law
judge (ALJ) had an obligation to consult a medical advisor
to determine her onset date of disability, but we disagree.
Since the ALJ concluded that claimant was not disabled at
any time during the insured period, there was no ambiguity
as to the date of onset which needed to be resolved. We are
1 There is no need to address the question whether the new
evidence given to the Appeals Council in support of the petition
for review comprises part of the administrative record. Whether
or not that evidence is considered, substantial evidence of
record supported the denial of benefits.
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also unpersuaded by appellant's suggestion that the ALJ
erred in not recontacting her treating physician, Dr. Ralph
DiGiacomo, to clarify his opinion that claimant was totally
disabled. On this case record, which contains scant
objective evidence of disability, we think that the district
court reasonably suggested that the doctor based his
otherwise unexplained opinion on appellant's subjective
complaints of pain. For reasons adequately stated by the
district court and Commissioner, the ALJ properly determined
that her allegations of pain were not fully creditable.
2. Appellant is right that the functional capacity
reports by non-examining consulting physicians, which the
ALJ partly relied on in finding her not disabled, were made
before Dr. DiGiacomo saw her for hand and low back/leg pain
in December 1994 and March 1995. Nonetheless, we conclude
that those reports, both of which were supported by citation
to medical findings of record, retained considerable
reliability. This is especially true of the November 2,
1994 report by Dr. Stankiewicz, which was completed just two
months before the alleged onset date of disability. Dr.
Stankiewicz reviewed reports by Dr. John Przygoda, which, as
appellant herself states, "generally recorded abnormalities
consistent with those found by Dr. DiGiacomo" (appellant's
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brief, at page 13). In particular, Dr. Przygoda noted
claimant's arthritis, low back strain, leg cramps and
difficulty in bending, although he attributed her bending
difficulty to a different cause than did Dr. DiGiacomo.
Appellant has not shown -- or made any attempt to show --
that the limitation in lumbar motion which Dr. DiGiacomo
observed in March 1995, just before expiration of insured
status, constituted a significant impairment necessitating
a new functional capacity assessment. In addition, Dr.
DiGiacomo's findings relative to claimant's hand condition
were compatible with March 1994 findings by treating
physician, Dr. Vaughn Gooding, which both consulting
physicians considered and noted in their reports. Although
Dr. DiGiacomo found some minor Bouchard's nodes developing
in December 1994, his subsequent progress notes never
mentioned them again (or any hand pain or other hand
problem, for that matter). Hence, the ALJ would have been
justified in giving some weight to the consulting
physicians' reports, as he did. See Manso-Pizarro v. SHHS,
76 F.3d 15, 17 (1st Cir. 1996) (per curiam) (stating that a
functional capacity report is not necessary where the
medical evidence suggests a "relatively mild physical
impairment posing, to the laymen's eye, no significant
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exertional restriction"); Gordils v. SHHS, 921 F.2d 327, 330
(1st Cir. 1990) (per curiam) (concluding that, together with
the objective medical evidence, a functional capacity report
made before a later physical examination which failed to
find objective evidence of disability constituted
substantial evidence in support of the denial of benefits).
The decision of the district court is affirmed.
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