Opinion
CIVIL ACTION NO. 00-12611-PBS.
December 20, 2001.
MEMORANDUM AND ORDER
INTRODUCTION
Plaintiff Daniel Dozier, who suffers from Graves' Disease, seeks review of the denial of his application for Social Security Disability ("SSDI") benefits and Supplemental Security Income ("SSI") benefits. The plaintiff argues: (1) that the Administrative Law Judge ("ALJ") violated the treating physician rule by disregarding the opinion of his treating physician as to the severity of his impairment; and (2) that the ALJ improperly evaluated his subjective complaints of weakness and fatigue.
For the reasons set forth below, the Court DENIES plaintiff's motion to remand the final decision of the Social Security Administration Commissioner ("the Commissioner") (docket 10) and ALLOWS defendant's motion to affirm the decision of the Commissioner (docket 12).
FACTS
The administrative record contains the following facts. Mr. Daniel Dozier ("Dozier") is a fifty-one year old man with a twelfth grade education. (Tr. 36, 38.) Prior to being diagnosed with Graves' Disease, Dozier worked part-time at Harvard University as a janitor/maintenance worker, a job which involved climbing ladders, some heavy lifting and setting up for meetings. (Tr. 39-41.) Dozier had previously worked cleaning office buildings. (Tr. 41-42.) Dozier resigned his position with Harvard in late 1997 due to his impairments. (Tr. 38-39.)
A. Graves' Disease
Mr. Dozier was admitted to the Brigham and Women's Hospital on November 30, 1996 with pneumonia and was diagnosed with Graves' Disease and an enlarged liver. (Tr. 137.) Graves' Disease is a form of hyperthyroidism, an "autoimmune disease that has a chronic course with remissions and relapses." Upon admission, Dozier was described as a "chronically ill appearing" man with the following symptoms: pneumonia, hyperthyroid induced tachycardia and weight loss, low blood pressure, goiter, anemia, diarrhea, dizziness and weakness. (Tr. 138-39, 141, 145.) After treatment, Dozier was discharged on December 4, 1996, with no dietary, activity or work restrictions. (Tr. 137.) He was started on 600 milligrams of PTU daily. (Tr. 176.)
Hyperthyroidism is characterized by a hypermetabolic state ("[h]eat production by the body above normal . . ."), usually with weight loss, tremors, elevated levels of thyroid hormones, and sometimes exophthalmos ("protrusion of one or both eyeballs"); it may progress to severe weakness, wasting, and extremely high fevers. Stedman's Medical Dictionary 831 (26th ed. 1995).
PTU is "an antithyroid agent that inhibits the synthesis of thyroid hormones" and is used to treat hyperthyroidism. Stedman's Medical Dictionary, supra note 1, at 1440.
Dozier had a follow-up visit with Dr. Gail Adler, a certified endocrinologist, on December 12, 1996. At this time, Dozier "complain[ed] of some heat intolerance but admits to increased appetite with weight gain of about 10 lbs. over the last week since discharge. . . . He is less tired. His diarrhea has subsided [yet] [h]e says his muscles are still sore." (Tr. 176.) At this visit, Dozier was prescribed 200 milligrams of PTU three times a day. (See id.) Adler's physical exam showed that Dozier's thyroid gland was about "2 times the normal size" and was "still clinically very hyperthyroid." (Id.) Adler ordered repeat thyroid function tests and a followup in four weeks. (See id.)
On January 9, 1997, Dozier's thyroid was still enlarged, but he was improving: he had gained ten pounds since the last visit, had an improved appetite, was walking without fatigue and had more energy. (Tr. 175.) Adler emphasized to Dozier the importance of his continuing to take the medication prescribed. (See id.)
Dozier reported to Adler on January 23, 1997 that he went back to work on January 21, 1997. (Tr. 177.) He reported to be "a little tired" but was no longer suffering from palpitations or anxiety. His strength was improved and his muscles were no longer sore. (See id.) Adler noted that he was "continuing to do better on PTU. I encouraged compliance with meds." (Id.)
Dozier did not see Adler again until August 21, 1997. (Tr. 179.) At this time, Dozier was taking 200 milligrams of PTU twice a day, and reported that he was feeling better, was less tired, had stable weight gain, no temperature intolerances, no palpitations and had "good energy." (Id.) Adler noted that he was "relatively euthyroid on PTU." (Id.) At this visit, Adler and Dozier discussed the risks and benefits of iodine therapy; Adler noted that Dozier "knows he needs to be on T4 for life." (Id.)
"Euthyroid" denotes normal functioning of the thryoid. See Stedman's Medical Dictionary, supra note 1, at 606.
Iodine Therapy is a radioactive iodine isotope used as therapy in hyperthyroidism. T4 is the symbol for thyroxine, the active iodine compound "existing normally in the thyroid gland and extracted therefrom in crystalline form for therapeutic use . . . for the relief of hyperthyroidism." Id.
Dozier received iodine therapy in September, 1997. (Tr. 185.) At his next visit on October 16, Dozier reported that he "has not been feeling as well. He is feeling weak, tired and has tremors." (Id.) Despite having a "good appetite," he had "lost 13 lbs in 4 weeks." (Id.) Adler noted that his symptoms had worsened in the last week. Other than the iodine therapy, Dozier was not taking any medication. (See id.) Adler noted that he was "markedly hyperthyroid with significant weight loss." (Id.) Dozier was prescribed 100 milligrams of PTU twice a day. (See id.)
Dozier next saw Adler on November 13, 1997, at which point he reported feeling much better since restarting the PTU. "He has no weakness, less fatigue, w[eight] is beginning to increase (117.5 today vs 116 two weeks ago), exercise tolerance is better and shakiness is gone." (Tr. 186.) Adler noted that since he had already had two antithyroid treatments (I131 and PTU) he would need to be watched. (See id.)
On April 7, 1998, Dozier's primary care physician, Dr. Louis Brenner, referred him to Amalia Gonzalez, a Care Coordination financial counselor/resource specialist, to assist Dozier in completing applications for Free Care and Medicaid. (Tr. 245.) At the end of April, Dr. Brenner completed an "Emergency Aid to the Elderly, Disabled and Children Medical Report" for the Massachusetts Department of Public Welfare. Brenner opined that Dozier had "a physical and/or mental impairment(s) that meets or is equivalent to the Department's Medical Standards or the SSI Listing of Impairments and is expected to last: 6 to 12 months" listing Graves' Disease as the impairment. (Tr. 211-12) Dr. Brenner noted that while taking 50 milligrams of PTU three times a day, Dozier could walk 1/4 mile, could stand for 2 hours daily, could sit for 4 hours daily, could stand and sit intermittently for 4 hours (with breaks), could bend/stoop occasionally, and could lift 20 pounds occasionally despite significant restrictions of gross motor, fine motor and manipulation. (Tr. 214.) Dr. Brenner further noted that Dozier was "limited by fatigue and weakness and difficulty concentrating." (Id.)
After filing his application for benefits with the SSA, Dozier underwent a consultative psychiatric exam with Dr. Michael Bohnert on June 25, 1998. (Tr. 187.) Dozier told Bohnert that sometimes he has "good energy" and sometimes he does not, and that sometimes he finds it difficult to concentrate. (Tr. 188.) Dr. Bohnert diagnosed Dozier with a mild to moderate adjustment disorder with "mixed emotional features secondary to his medical condition." (Tr. 190.) He also noted that Dozier "is capable of managing his own funds if he is awarded benefits." (Id.) The results of Dr. Bohnert's examination were reviewed by Dr. Edwin Davidson on June 30, 1998. Dr. Davidson concluded that Dozier's "functional limitations" were not severe enough to meet the "`B' Criteria Listings." (Tr. 206.)
Dozier's had a medical consultative examination on December 1, 1998, with Dr. David Cahan. (Tr. 216.) According to Dr. Cahan's report, Dozier was not taking any medication at this time, and his last iodine therapy treatment was in September, 1997. (See id.) Dozier told Dr. Cahan that he could "walk two to three blocks, climb one flight of stairs and den[ied] any specific disuse of his hands;" he also stated that he could lift 10 to 15 pounds and could stand for 10-20 minutes. (Id.) Dr. Cahan noted that Dozier was "still clinically hyperthyroid." (Tr. 217.)
Dozier had a "psychodiagnostic interview" with Dr. Richard Stellar on December 1, 1998. (Tr. 218.) Dr. Stellar reported that Dozier did not present "with any major psychiatric problems." (Tr. 221.) Dr. Stellar, in contrast with Dr. Bohnert, noted that Dozier "should be assisted in managing funds." (Tr. 222.)
Dozier was placed back on 100 milligrams of PTU daily in the beginning of May because he was still hyperthyroid. (Tr. 248.) In June 1999, Dr. Adler reported that Dozier's blood tests "look good with reinitiation of antithyroid medication." (Tr. 247.) Adler noted, on July 22, 1999, that as a result of the reintroduction of PTU, Dozier "has been less tired, sleeping better . . . not having any palpitations . . . no temperature intolerance and his weight ha[d] increased slightly . . . [o]verall, the patient feels better." (Tr. 248.) Dr. Adler also reported that Dozier's thyroid was "normal to small in size and firm." (Id.) Dr. Adler concluded her report by stating that she told Dozier to stop taking PTU and call her if he develops an infection or a fever. (See id.) Dozier never reported any side effects from his use of the prescribed medication.
In October, 1999, Dozier saw Adler again, and reported that he had run out of his medication in the beginning of September, and as a result was "feeling a little more tired than he did in April." Adler noted that the "fatigue has increased since he ran out of his medications." (Tr. 250.) Despite these facts, Dozier's thyroid was approximately normal in size. (See id.) Adler put Dozier back on 50 milligrams of PTU twice a day with instructions to return to the clinic in three months. (See id.)
B. Social Security Application
Dozier applied for benefits on May 6, 1998, alleging an inability to work since September 15, 1997, at age 48. (Tr. 105.) The Agency denied the claim on July 3, 1998, and on reconsideration on January 15, 1999. (Tr. 79, 83.) Dozier then requested a hearing before an ALJ. (Tr. 87.) A hearing was held on October 6, 1999. (Tr. 30.) The hearing included testimony by Dozier, an impartial medical expert — James Todd, M.D., a board certified internist and cardiologist — and a vocational expert.
Dozier testified that he is currently receiving food stamps and Emergency Aid to the Disabled and that he receives no compensation from his previous employer, Harvard University. (Tr. 39.) He resigned from Harvard in the Fall of 1997 because he could not do the tasks required which included climbing ladders and moving heavy tables. (Tr. 38, 41.) Dozier stated that he did not ask for a "lighter" or "less demanding" job because there were none. (Tr. 56.) He does not believe that he can do any work because he gets tired and feels weak, has "nervous problems" which cause his hands to stay wet all the time, and has difficulty holding things in his hands. (Tr. 43- 44.)
Dozier also testified that he has seen Dr. Brenner about every two months for two years; he began seeing a new doctor when Dr. Brenner transferred to the kidney department. (Tr. 46.) He said that he takes two "thyroid pills" a day, which keep him from "sweating a lot and stuff like that" and he had been taking this medication for the last previous or six months. (Tr. 47.) Dr. Todd, however, stated that Dozier has been taking the medication since he was diagnosed with Graves' Disease. (Tr. 62-63.) Dozier saw Dr. Adler, his thyroid doctor, during the same time that he saw Dr. Brenner. (Tr. 48.) Neither of his doctors instructed him not to work or put any restrictions or limitations on his ability to work. (Tr. 49-50.)
Dozier also stated that he can stand for five or six minutes, can sit for three to five hours, can lift eight pounds (although not repeatedly), and can walk a block before getting tired. (Tr. 50, 59.) Though he testified it took him about twenty minutes to walk one block, he admitted he walked four or five blocks the morning of the hearing in thirty minutes. (Tr. 51.) On a typical day, Dozier watches television or, depending on the weather, sits outside on the steps; he rests about six or seven hours a day. (Tr. 53, 59.) Sometimes his twin brother helps him wash and dress if necessary. (See id.) Dozier does not do housework and does not cook. (Tr. 54-55.)
Dr. Todd, the medical expert, testified, after reviewing the medical records, that Dozier appears to be stable and "no longer suffering from the disease of Graves' Disease." (Tr. 63-64.) Dr. Todd concluded that Dozier does not "meet or equal any of the disability criteria set forth in the listings of impairments." (Id.) When asked by Dozier's attorney what symptoms are common to someone suffering from Graves' Disease, Dr. Todd responded that fatigue can be a symptom of Graves' Disease "while the disease is in the active phase." (Tr. 68.) Dr. Todd testified that low dosages of PTU controlled plaintiff's disease. (Tr. 69.)
Assuming that plaintiff was required to alternate sitting and standing, but had no difficulty sitting, and could stand only for one hour at a time, the vocational expert testified that Dozier could perform light and sedentary unskilled work activities. Although he could not return to his past work, he could work as a security guard, or as an inspector of electronics, textiles or shoes, regardless of any IQ or memory limitations he may have. (Tr. 73-74.)
On January 28, 2000, the ALJ denied the plaintiff's claim for benefits and concluded that Dozier has not been "`disabled' within the meaning of the Social Security Act" during the time of his application. (Tr. 16.) The ALJ found that the medical evidence established "that the claimant suffers from the severe impairments of Graves' disease, hypertension, anemia, low average range of intelligence and adjustment disorder with mixed emotional features secondary to medical condition, but they do not meet or equal" any of the "Listing of Impairments" necessary to obtain benefits. (Tr. 23.) He concluded that Dozier's "allegations that he is incapable of work activity due to his limitations and restrictions are not entirely credible in light of the reports of the claimant's treating physician, the consultative physicians, and the medical expert at the hearing." (Id.) The ALJ found that although Dozier lacks the residual functional capacity necessary to perform his past work and therefore the burden shifts to the Commissioner, he is capable of performing routine and repetitive tasks, or the normal work functions of light work given his intellectual limitations. Under Social Security regulations,
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.20 C.F.R. § 404.1567(b), 416.967(b). The ALJ listed the jobs named by the vocational expert as examples of jobs Dozier is capable of performing. (Tr. 24, 25.)
On November 17, 2000, the Appeals Council denied Dozier's request for review, rendering the ALJ's decision final, subject to judicial review. See 42 U.S.C. § 405(g).
STANDARD
A. Disability Determination Process
The Commissioner has developed a five step sequential evaluation process to determine whether a person is disabled. See 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health Human Serv., 690 F.2d 5, 6-7 (1st Cir. 1982). "Step one determines whether the claimant is engaged in `substantial gainful activity.' If he is, disability benefits are denied. If he is not, the decisionmaker proceeds to step two, which determines whether the claimant has a medically severe impairment or combinations of impairments." Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citation omitted). That determination is governed by the "severity regulation," which provides:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.20 C.F.R. § 404.1520(c), 416.920(c). "Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs." §§ 404.1521(b), 416.921(b). The severity regulation requires the claimant to show that he or she has an "impairment or combination of impairments which significantly limits . . . the abilities and aptitudes necessary to do most jobs." Bowen, 482 U.S. at 146 (quoting 20 C.F.R. § 404.1520(c), 404.1521(b)).
If the Social Security Commissioner determines that the claimant has a severe impairment, the third step is determining whether that impairment, or set of impairments,
is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity . . . If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. If the claimant cannot perform this work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education, and work experience. The claimant is entitled to disability benefits only if he is not able to perform other work.
Id. at 141-42 (citations omitted).
Throughout most of the five-step disability determination process, the burden of proof is on the claimant. See id. at 146 n. 5. At the fifth step, however, the burden shifts to the Commissioner who must provide substantial evidence that the claimant is able to perform work in the national economy. See id.
B. Standard of Review
Judicial review of SSDI determinations is available under 42 U.S.C. § 405(g), which provides, in part, that:
Any individual, after any final decision of the Commissioner . . . made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner . . . may allow. . . . The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . ., with or without remanding the cause for a rehearing. The findings of the Commissioner . . . as to any fact, if supported by substantial evidence shall be conclusive. . . .
In reviewing decisions in such cases, district courts do not make de novo determinations. Lizotte v. Secretary of Health Human Serv., 654 F.2d 127, 128 (1st Cir. 1981). Instead, this Court "must affirm the [Commissioner's] findings if they are supported by substantial evidence." Cashman v. Shalala, 817 F. Supp. 217, 220 (D.Mass. 1993); see also Rodriguez Pagan v. Secretary of Health and Human Serv., 819 F.2d 1, 3 (1st Cir. 1987) (stating that the Commissioner's determination must be affirmed, "even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence."), cert. denied, 484 U.S. 1012 (1988).
Substantial evidence is "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence means such relevant evidence as a "reasonable mind, reviewing the evidence in the record as a whole, [would] accept . . . as adequate to support [a] conclusion." Ortiz v. Secretary of Health and Human Serv., 955 F.2d 765, 769 (1st Cir. 1991) (citing Rodriguez v. Secretary of Health and Human Serv., 647 F.2d 218, 222 (1st Cir. 1981)). In reviewing the record for substantial evidence, "[i]ssues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Commissioner]." Rodriguez v. Secretary of Health and Human Serv., 647 F.2d 218, 222 (1st Cir. 1981) (quoting Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). When there is a conflict in the record, the Commissioner has the duty to weigh the evidence and resolve material conflicts in testimony. See Richardson, 402 U.S. at 399; Ortiz, 955 F.2d at 769.
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must consider whether the proper legal standard was applied. "Failure of the [Commissioner] to apply the correct legal standards as promulgated by the regulations or failure to provide the reviewing court with the sufficient basis to determine that the [Commissioner] applied the correct legal standards are grounds for reversal." Weiler v. Shalala, 922 F. Supp. 689, 694 (D. Mass. 1996) (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)).
DISCUSSION
1. Treating Physician Rule.
Dozier argues that the Commissioner's decision should be reversed because the ALJ violated the "treating physician rule" by disregarding the treating physician's opinion that his impairment was disabling.
A treating source is defined by 20 C.F.R. § 404.1502, 416.902 as a patient's
own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/ or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s).
Under the regulations, an ALJ must give greater weight to the opinion of treating physicians "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture" of the patient's medical condition. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). However, the ALJ is not obligated automatically to accept the treating physician's conclusions. See Makuch v. Halter, 170 F. Supp.2d 17, 2001 WL 1423984, *6 (D. Mass). Controlling weight is given only if the "treating source's opinion on the issue(s) of the nature and severity of [the patient's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence." 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). Whether an applicant meets the statutory definition of disabled is determined by the Commissioner and not the various medical sources. See 20 C.F.R. § 404.1527(e)(1), 416.927(e)(1).
In determining the weight to be given to a treating physician's report, the ALJ must consider six enumerated factors:
1) the length of the treatment relationship and the frequency of examination; 2) the nature and extent of the treatment relationship; 3) the relevant evidence in support of the medical opinion; 4) the consistency of the medical opinions reflected in the record as a whole; 5) whether the medical provider is a specialist in the area in which he renders his opinions; and 6) other factors which tend to support or contradict the opinion.20 C.F.R. § 404.1527(d)(2).
These factors support the ALJ's decision not to give controlling weight to Dr. Brenner's opinion even though he was a treating primary care physician. Although Plaintiff saw Dr. Brenner regularly and he seems to have made the initial diagnosis of Graves' disease, Dr. Brenner did not treat him regularly for Graves' Disease. Instead, he referred Dozier to Dr. Adler, a specialist, for follow-up treatment. Dr. Adler's medical records establish that Dozier saw her regularly over a three-year period for his thyroid. Dr. Adler's notes are consistent with the testimony of Dr. Todd, the non-examining expert, who stated at the hearing that medication is effective in treating plaintiff's Graves' Disease. (Tr. 63.) Defendant criticizes Dr. Todd because he is a board certified cardiologist, not an endocrinologist. The critical point is that Dr. Todd relied on the contemporaneous records of Dr. Adler, who was the treating endocrinologist. In light of the fact that Dr. Adler is a specialist in the field, and her views are consistent with the consultant's, the ALJ did not err in discarding Dr. Brenner's opinion regarding total disability.
Moreover, Dr. Brenner's opinion that Dozier's thyroid disorder was per se disabling is inconsistent with the record as a whole. An applicant suffering from a thyroid disorder could be considered per se disabled if the symptoms of his disorder include "progressive exophthalmos" (abnormal protrusion of the eyeballs) or if the disorder results in an impairment of another body system under the criteria for the affected body system. 20 C.F.R. Part 404 Subpart P, Appendix 1, 9.00, 9.02. Although the medical records do indicate that Dozier was a glaucoma suspect, there is no evidence indicating exophthalmos. Moreover, plaintiff does not point to any other impairment of the endocrine system that would qualify for per se disability. Instead, plaintiff relies exclusively on Dr. Brenner's "Emergency Aid to the Elderly, Disabled and Children Medical Report," completed in April, 1998, which stated that Plaintiff's impairment met or equaled the state standards or the Social Security Listing of Impairments for the Endocrine System, and was expected to last 6 to 12 months (although federal standards require an impairment expected to last at least 12 months). Indeed, other than insisting that the ALJ must give robot-like adherence to the treating physician's opinion, plaintiff did not brief how his symptoms match the per se listing. He has failed to meet his burden at step three.
2. Subjective Complaints
The thornier issue, as usual, involves the plaintiff's subjective complaints of weakness and fatigue, which he argues prevent him from working. The ALJ found that the plaintiff's testimony concerning his complaints was "not entirely credible in light of the reports of the claimant's treating physician [(Dr. Adler)], the consultative physicians, and the medical expert at the hearing." (Tr. 23.)
In evaluating subjective complaints of fatigue, the ALJ must first determine whether there is a "clinically determinable medical impairment that can reasonably be expected to produce the pain [or fatigue] alleged." Avery v. Secretary of Health and Human Serv., 797 F.2d 19, 21 (1st Cir. 1986) (setting forth factors for assessing subjective complaints of pain); see also Oliveras v. Shalala, 870 F. Supp. 411, 416 (D.Mass. 1994) (considering complaints of fatigue in light of the factors listed in 20 C.F.R. § 416.929(c)(3)). When evaluating the clinical evidence, the ALJ should also consider "other evidence including statements of the claimant or his doctor, consistent with the medical findings." Id. However, this does not mean that "any statements" of subjective symptoms go into the weighing. Id. (emphasis in original). The ALJ, in resolving conflicts of evidence, may determine that the claimant's subjective complaints concerning his condition "are not consistent with objective medical findings of record" if the ALJ's determination is supported by evidence in the record. Evangelista v. Secretary of Health and Human Serv., 826 F.2d 136, 141 (1st Cir. 1987).
With this evidence in hand, the Agency must "evaluate the intensity and persistence of [the claimant's] symptoms so that [it] can determine how [the] symptoms limit [the claimant's] capacity for work." 20 C.F.R. § 404.1529(c). The regulations recognize that a person's symptoms may be more severe than the objective medical evidence suggests. See 20 C.F.R. § 404.1529(c)(3). Therefore, the regulations provide six factors (known as the Avery factors) that will be considered when an applicant alleges pain or other symptoms:
Considerations capable of substantiating subjective complaints of pain [or other symptoms] include evidence of (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain [or other symptom]; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness and side effects of any medication taken to alleviate the pain or other symptoms; (5) treatment, other than medications, received to relieve pain or other symptoms; and (6) any other factors relating to claimant's functional limitations and restrictions due to pain [or other symptoms].
Adie v. Commissioner, Soc. Sec. Admin., 941 F. Supp. 261, 269 (D.N.H. 1996) (citing 20 C.F.R. § 404.1529(c)(3)); Avery, 797 F.2d at 23).
The ALJ's credibility determination "is entitled to deference, especially when supported by specific findings." Frustaglia v. Secretary of Health and Human Serv., 829 F.2d 192, 195 (1st Cir. 1987) (citations omitted). However, an ALJ that does not believe a claimant's testimony regarding his symptoms, "must make specific findings as to the relevant evidence he considered in determining to disbelieve the [claimant]." Da Rosa v. Secretary of Health and Human Serv., 803 F.2d 24, 26 (1st Cir. 1986). See also Social Security Ruling (SSR) 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 61 Fed. Reg. 34,483, 34,485-86 (1996) (requiring that "[w]hen evaluating the credibility of an individual's statements, the adjudicator must . . . give specific reasons for the weight given to the individual's statements"; and "the reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision.").
In determining the severity of a claimant's symptoms, "the absence of objective medical evidence supporting an individual's statements about the intensity and persistence of pain or other symptoms is only one factor that the adjudicator must consider in assessing an individual's credibility." SSR 96-7p, 61 Fed. Reg. at 34,487 (emphasis added). See also Gordils v. Secretary of Health and Human Serv., 921 F.2d 327, 330 (1st Cir. 1990) (upholding denial of benefits where ALJ described claimant's daily activities as "practically intact" and evaluated her demeanor at the hearing in addition to objective medical evidence); Berrios Lopez v. Secretary of Health and Human Serv., 951 F.2d 427 (1st Cir. 1991) (upholding ALJ's evaluation discrediting claimant's pain where the ALJ noted observations of claimant at the hearing (i.e., that she walked without assistance and drove to the hearing) and where claimant also performed household chores).
Although Graves' Disease, by itself, is not included in the Listing of Impairments, claimants with Graves' Disease have been awarded disability benefits, particularly when it is coupled with severe chronic fatigue or other combinations of disabling impairments. See e.g., Vines v. Califano, 442 F. Supp. 471, 474 (W.D.La. 1977) (due to Graves' Disease Plaintiff's eyes bulged so much that he had to tape them shut to sleep at night; no improvement in this severe exophthalmos despite treatment for two years); Blair v. Sec. of HHS, 1989 WL 280284 (W.D.Pa. Sept. 26, 1989) (finding disability where plaintiff suffered from atrial fibrillation, cardiac arrhythmia, well-documented chest pain, fatigue during activity despite medication, and Graves' Disease); Powell v. Chater, 959 F. Supp. 1238, 1243 (C.D. Ca. 1997) (remanding where Plaintiff suffered from chronic fatigue syndrome, hypertension and migraine headaches as well a reported history of Graves' Disease).
The ALJ relied on three factors to support his conclusion that plaintiff's combination of impairments did not totally disable him. First, the evidence supports the ALJ's determination that medications largely alleviated plaintiff's symptoms. The First Circuit has ruled that "[i]mplicit in a finding of disability is a determination that existing treatment alternatives would not restore a claimant's ability to work." Tsarelka v. Secretary of Health and Human Services, 842 F.2d 529, 534 (1st Cir. 1988). Furthermore, in order to "get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work." 20 C.F.R. § 404.1530(a), 416.930(a). If a claimant does not have a "good reason" for not following the prescribed treatment, in this case taking the PTU, "he or she will not be found to be disabled." Id. at §§ 404.1530(b), 416.930(b). While plaintiff certainly had relapses when he was not taking medications, the medical records demonstrate that medications were successful in treating his symptoms.
Next, the ALJ considered the reports submitted by Drs. Bohnert and Stellar, both of whom concluded that Dozier suffered, at most, from a mild to moderate adjustment disorder with low range intelligence. The ALJ properly considered claimant's mental impairments in questioning the vocational expert at step five (Tr. 75).
Finally, while the ALJ's findings regarding credibility could have been more explicit, his opinion was specific enough. Acknowledging that claimant suffered from some fatigue and weakness from the Graves' disease, the ALJ recounted plaintiff's own statements at the hearing of his residual functional capacity and compared them with statements to Doctors Cahan (an endocronologist) and Brenner. For example, Dozier said he could lift approximately 8 pounds, (Tr. 16), but he told Dr. Cahan that he could lift between 10 and 15 pounds and could do most forms of housework (Tr. 18); and Dr. Brenner, his treating physician, concluded he could lift occasionally up to 20 pounds (Tr. 19). He testified he could only walk one block (Tr. 16) but Dr. Brenner said he could walk one quarter of a mile (Tr. 19) and he indicated to Dr. Cahan that he could walk 2-3 blocks. Claimant stated he could sit from 3-5 hours. The fact that the statements did not jive with each other works against Dozier's credibility with respect to the intensity of his fatigue and weakness. The ALJ took the restrictions created by the fatigue (i.e., the need to alternate sitting and standing and weight limitations) into account when questioning the vocational expert. (Tr. 73). In short, the record as a whole supports the ALJ's determination that any fatigue and/or mental impairment, when coupled with his condition while medicated, did not render him wholly disabled and that he could perform light work.
ORDER
Plaintiff's motion for remand of the Commissioner's decision is DENIED. Defendant's motion to affirm the decision of the Commissioner is ALLOWED.
PATTI B. SARIS United States District Judge