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holding that an omission of findings to a specific listing is not fatal for an ALJ decision as long there is sufficient evidence that the listing was not met
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Civil Action No. 04-30131-KPN.
March 14, 2005
This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration ("Commissioner") regarding an individual's entitlement to Supplemental Security Income ("SSI") and Social Security Disability Insurance ("SSDI") benefits. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Elias Rivera ("Plaintiff") alleges that the Commissioner's decision denying him these benefits — memorialized in a March 23, 2004, decision by an administrative law judge — is not based on substantial evidence of record and is predicated upon errors of law. Plaintiff, via a motion for judgment on the pleadings, has moved to reverse or, in the alternative, to remand the decision, and the Commissioner, in turn, has moved to affirm.
The parties have consented to the jurisdiction of this court pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b). For the reasons set forth below, Plaintiff's motion will be denied and the Commissioner's motion to affirm will be granted.
I. STANDARD OF REVIEW
The Commissioner's factual findings in making her disability determination are conclusive as long as they are grounded in substantial evidence. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla." Id. Thus, even if the administrative record could support multiple conclusions, a court must uphold the Commissioner's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion." Irlanda Ortiz v. Sec'y of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citation and internal quotation marks omitted).
Even so, a denial of disability benefits need not be upheld if there has been an error of fact or law in the evaluation of the particular claim. See Manso-Pizarro v. Sec'y of Health Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In the end, the court maintains the power, in appropriate circumstances, "to enter . . . a judgment affirming, modifying, or reversing the [Commissioner's] decision" or to "remand the cause for a rehearing." 42 U.S.C. 405(g).
II. BACKGROUND
Plaintiff, born on July 21, 1979, has the equivalent of a high school education. (Administrative Record ("A.R.") at 21.) His past relevant work includes employment as a machine operator, cleaner, and dishwasher. ( Id.) He claims to be disabled and, thus, unable to work as a result of epilepsy. The frequency of his epileptic seizures is at the heart of this case and, accordingly, is described in detail below.
A. Medical History
Plaintiff's seizures apparently began in his adolescence. (See A.R. at 204.) In October of 2000, when Plaintiff was twenty-one, Dr. Richard Shuman of Medical West Associates concluded that Plaintiff's seizures were not under control and, accordingly, prescribed medication. (A.R. at 184-85.) He also referred Plaintiff to Dr. Dawn Pearson of the Neurosurgical Neurological Group who diagnosed a primary generalized seizure disorder. (A.R. at 180-83.)
In follow-up sessions through February 23, 2001, Dr. Pearson prescribed additional medication and Plaintiff experienced no further seizures; accordingly, Dr. Pearson advised Plaintiff that he could return to work. (A.R. at 175-79.) On March 7th, after Plaintiff reported two seizures, she again increased his medication. (A.R. at 174.) Thereafter, between March 23rd and September 19th, Plaintiff reported only one seizure, which occurred on or about August 30th after he got drunk. (A.R. at 169.) Dr. Pearson, noting that the seizures were better controlled otherwise, cautioned Plaintiff about excessive alcohol use. ( Id.) Plaintiff informed Dr. Pearson that he rarely drinks a lot. (A.R. at 169, 173.)
On January 16, 2002, Dr. Nadeem Anwar of the River Bend Medical Group evaluated Plaintiff following a seizure which occurred four days earlier while Plaintiff was sleeping. (A.R. at 200.) Plaintiff reported that his last seizure before that incident "was about two to three months ago." ( Id.) Finding Plaintiff to be in no acute distress, Dr. Anwar increased Plaintiff's medication. ( Id.) Thereafter, on January 24, 2002, another neurological consultant, Dr. Syed Ali, diagnosed a seizure disorder, not fully controlled, with an episode "every three to six months, sometimes more frequently." (A.R. at 208-09.)
On February 25, 2002, Plaintiff informed Dr. Mohamad Ali Hazratji of the Neurology Associates of Western Massachusetts (where he had apparently been referred by Dr. Anwar) that he had two spells of "blanking out" for a few seconds that very morning and that he had a "funny feeling." (A.R. at 204, 206.) Dr. Hazratji determined that Plaintiff had normal cranial nerves, sensation, posture and involuntary movements, but nonetheless increased Plaintiff's medication and scheduled a three-month follow-up visit. (A.R. at 206.) At that time, May 15, 2002, Plaintiff reported to Dr. Zubair Kareem, Dr. Hazratji's associate, that his last seizure was about "2 months ago when his [medication] was slightly increased" and that there had been "no further seizures." (A.R. at 204.) Dr. Kareem concluded that Plaintiff suffered from "[e]pilepsy comprised mostly of grand mal seizures." (A.R. at 205.)
On November 13, 2002, Plaintiff reported to Dr. Kareem that he had experienced "no further seizures since we last met." (A.R. at 203.) Dr. Kareem concluded that Plaintiff's epilepsy was being controlled with medication without obvious side effects. ( Id.) Although Plaintiff was not scheduled to see Dr. Kareem for another six months, he returned on January 16, 2003, reporting "two seizures 3 weeks ago and a feeling of blacking out this morning." (A.R. at 202.) Dr. Kareem increased Plaintiff's medication once again. (A.R. at 203.)
On May 29, 2003, Plaintiff went to Holyoke Hospital after suffering a seizure and reported that his last seizure had been the previous Friday. (See A.R. at 251-59.) On July 22, 2003, Plaintiff again visited Holyoke Hospital, this time complaining of blurry vision and difficulty walking. (A.R. at 244.) The physicians there found high levels of medication in Plaintiff's blood and decreased his dosage. (A.R. 243-50, 267-74.) In the interim, on June 25, 2003, Dr. Kareem saw Plaintiff and diagnosed intractable epilepsy. (A.R. at 302.) At his next visit on July 28, 2003, Plaintiff reported to Dr. Kareem that "[t]here have been no seizures since we last met." (A.R. 301.)
On October 8, 2003, Plaintiff visited Holyoke Hospital after suffering a seizure. (A.R. at 291-94.) He reported that his last seizure had been "1 mo. ago." (A.R. 292.) Then, on October 29, 2003, Dr. Kareem increased Plaintiff's medication after he reported that he suffered "four seizures in October." (A.R. at 300.) Subsequently, on January 16, 2004, Plaintiff reported to Dr. Kareem that he had "two seizures in December [of 2003]." (A.R. at 317.)
Apparently, Dr. Kareem recommended in January of 2003 that Plaintiff begin to keep a "log" describing his seizures. (See A.R. at 49.) Plaintiff supplied a handwritten piece of paper at the administrative hearing on January 15, 2004, which stated simply: "Seizure 1. Dec. 7, 2003[;] 2. Dec. 20, 2003." (A.R.at 318.)
B. Procedural History
On January 4, 2003, in the midst of these medical benchmarks, Plaintiff filed for SSDI and SSI benefits, alleging disability since April 1, 2002. (A.R. at 90-92.) After his claim was denied initially and upon reconsideration, Plaintiff filed a request for an administrative hearing. (A.R. at 58-70, 211, 228.)
At the hearing, conducted on January 15, 2004, the Administrative Law Judge (hereinafter "ALJ") and Plaintiff's counsel agreed that the pivotal issue was whether Plaintiff's epilepsy met the standards of a listed impairment (see below). (A.R. at 56.) In a decision dated March 23, 2004, the ALJ concluded that Plaintiff's epilepsy did not qualify as a listed impairment and, therefore, he was not disabled.
On June 25, 2004, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision final and subject to judicial review. (A.R. at 6-8.) In due course, Plaintiff filed the instant action and the parties submitted the cross motions currently before the court.
III. DISCUSSION
An individual is entitled to SSDI benefits if, among other things, he has an insured status and, prior to the expiration of that status, was under a disability. See 42 U.S.C. § 423(a)(1)(A) and (D). SSI benefits, on the other hand, require a showing of both disability and financial need. See 42 U.S.C. § 1381a. Plaintiff's need, for purposes of SSI, and his insured status, for purposes of SSDI, are not challenged. The only question is whether the ALJ had substantial evidence with which to conclude that Plaintiff did not suffer from a disability.
A. Disability Standard and the ALJ's Decision
The Social Security Act (the "Act") defines disability, in part, as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3)(A) (similar). An individual is considered disabled under the Act
only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49 (1987).
In determining disability, the Commissioner follows the five-step protocol described by the First Circuit as follows:
First, is the claimant currently employed? If he is, the claimant is automatically considered not disabled.
Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits the claimants physical or mental capacity to perform basic work-related functions." If he does not have an impairment of at least this degree of severity, he is automatically not disabled.
Third, does the claimant have an impairment equivalent to a specific list of impairments in the regulations' Appendix 1? If the claimant has an impairment of so serious a degree of severity, the claimant is automatically found disabled.
. . . .
Fourth, . . . does the claimant's impairment prevent him from performing work of the sort he has done in the past? If not, he is not disabled. If so, the agency asks the fifth question.
Fifth, does the claimant's impairment prevent him from performing other work of the sort found in the economy? If so, he is disabled; if not he is not disabled.Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
In the instant case, the ALJ found as follows with respect to these questions: that Plaintiff had not engaged in substantial gainful activity since the alleged onset of his disability (question one); that his impairment was "severe," although not severe enough to be listed in Appendix 1 (questions two and three); that Plaintiff was prevented from performing his past relevant work (question four); and that Plaintiff retains the capacity to adjust to work that exists in significant numbers in the national economy (question five). (A.R. at 21-26.) As a result, the ALJ concluded that Plaintiff is not disabled.
B. Plaintiff's Challenge to the ALJ's Decision
As noted, the instant case turns on whether Plaintiff's epilepsy meets the step three listing for convulsive epilepsy, more specifically, whether Plaintiff's seizures occur with the frequency required by the listing. Plaintiff makes no argument with regard to any other steps in the five step protocol.
The parties agree that the pertinent listing for convulsive epilepsy is Listing 11.02A. To be deemed automatically disabled under that listing, a claimant's condition must be "documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once a month in spite of at least 3 months of prescribed treatment. . . ." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.02A (2005) (emphasis added). Since a claimant bears the burden of showing that his impairment meets the severity requirements for a particular listing, see Deblois v. Sec'y of Health Human Servs., 686 F.2d 76, 79 (1st Cir. 1982); 20 C.F.R. §§ 404.1512 and 416.912 (2005), the question here is whether Plaintiff proved to the Commissioner that his seizures were "occurring more frequently than once a month." In the court's view, he did not.
As a preliminary matter, the court rejects Plaintiff's argument that the ALJ failed to provide sufficiently detailed findings as to why Plaintiff did not meet the listed impairment. As the Commissioner points out, the failure — if failure it is — to make specific findings as to whether a claimant's impairment meets the requirements of a listed impairment is an insufficient reason in and of itself for setting aside an administrative finding. See Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999) (citation omitted). See also Scheck v. Barnhart, 357 F.3d 697, 701 (7th Cir. 2004) ("It was unnecessary for the ALJ to articulate her reasons for accepting the state agency physicians' determination [that the claimant met the listing]."). Rather, the focus must be on whether there exists substantial evidence for the step three decision. See Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969). Here, in the court's view, such evidence exists.
Even when viewed in a light most favorable to Plaintiff, the evidence established, at most, only thirteen months in which Plaintiff had a seizure (twenty-one seizures in all) over a thirty-four month period, as demonstrated by the following chart:
2001 March 2 August 1 April 0 September 0 May 0 October 0 June 0 November 1 July 0 December 0
2002 January 1 July 0 February 2 August 0 March 1 September 0 April 0 October 0 May 0 November 0 June 0 December 2
2003 January 1 July 1 February 0 August 0 March 0 September 1 April 0 October 4 May 2 November 0 June 0 December 2
Given this information, it was entirely appropriate for the ALJ to conclude that Plaintiff's seizures were not "occurring more frequently than once a month." Indeed, as indicated, there were several multi-month periods in which there were no seizures at all.
Furthermore, most of the seizures were not "documented by detailed descriptions," but simply reported by Plaintiff himself. (See also A.R. at 44 (Plaintiff's testimony that he is now having seizures "[a]bout twice a month") and 50-53 (father's testimony implying that Plaintiff does not always seek medical help for his seizures).) To be sure, some lack of documentation is more than understandable; seizures, by their very nature, are unexpected and, hence, not observed by medical personnel. Moreover, as Plaintiff notes, even the ALJ deemed his testimony to be "generally credible." Unfortunately for Plaintiff's cause, however, the ALJ also found that Plaintiff's subjective allegations "do not warrant a finding of disability." (A.R. at 26.) And, as the First Circuit has often explained, an administrative law judge is not required to take a claimant's subjective allegations at face value, see Bianchi v. Sec'y of Health Human Servs., 764 F.2d 44, 45 (1st Cir. 1985) (citing Burgos Lopez v. Sec'y of Health Human Servs., 747 F.2d 37, 40 (1st Cir. 1984)), and the court should cautiously respect such assessments, see Frustaglia v. Sec'y of Health Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). Cf. Rodriguez, 647 F.2d at 222 (resolving conflicts and determining credibility is for the Commissioner, not the courts).
It is even debatable whether several of the episodes could be defined as "seizures." For example, Plaintiff described the two incidents on February 25, 2002, as spells of "blanking out" for a few seconds with a "funny feeling," the incident on January 16, 2003, as "a feeling of blacking out," and the incident on July 22, 2003, as "blurry vision and difficulty walking." Nonetheless, the court has assumed these episodes were seizures for purposes of its analysis.
Still, Plaintiff makes two further arguments in favor of reversal. First, Plaintiff asserts that administrative "evidence" may include "[s]tatements you or others make about your impairment(s)." 20 C.F.R. §§ 404.1512(b)(3) and 416.912(b)(3) (2005). That may be true, but it does not alter the court's analysis. As Plaintiff must concede, the governing statute provides that "[a]n individual's statement as to . . . symptoms shall not alone be conclusive evidence of disability." 42 U.S.C. § 423(d)(5)(A) (emphasis added). See also 42 U.S.C. § 1382c(a)(3)(H)(i) (applying language of 42 U.S.C. § 423(d)(5) to SSI determinations of disability). Rather, "[o]bjective medical evidence of . . . symptoms established by medically acceptable clinical or laboratory techniques . . . must be considered in reaching a conclusion as to whether the individual is under a disability." 42 U.S.C. § 423(d)(5)(A). Here, the objective medical evidence fully supports the ALJ's conclusion.
Second, Plaintiff argues that he had four seizures in October of 2003 and two in December of 2003, which average two per month in the last quarter of 2003. Such selective averaging, however, appears nowhere in the statute or regulations. It would seem that if averaging were to occur, it would have to be over a continuous twelve month period. See 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). See also 20 C.F.R. § 404.1525(a) (2005) (unless the listed SSDI impairment is "permanent or expected to result in death, or a specific statement of duration is made . . ., the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months") (emphasis added); 20 C.F.R. § 416.925(a) (2005) (same for SSI). Further, and perhaps more importantly, there is no "detailed description" (other than his recent two-entry "log," see n. 1) that Plaintiff's seizures more recently increased to a sufficient frequency threshold. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (to satisfy listing, impairment must meet all specified criteria). Of course, Plaintiff is not precluded from reapplying for benefits based on increased frequency and better documentation. The current record, however, does not support his appeal.
Plaintiff's argument to the contrary, the court does not view the phrase "occurring more frequently than once a month in spite of at least 3 months of prescribed treatment" as used in Listing 11.02 as "a specific statement of duration" which might otherwise exempt the listing from the twelve-month continuity requirement. The other listings which Plaintiff claims are exempted from the twelve-month requirement have much clearer durational statements than Listing 11.02A. Compare, e.g., Listing 5.05D (claimant's ascites must be "recurrent or persisting for at least 5 months"); Listing 5.08 (claimant's obesity must have "persisted for at least 3 months despite prescribed therapy and [be] expected to persist at this level for at least 12 months"); Listing 7.10B (claimant's myelofibrosis must include "recurrent systemic bacterial infections occurring at least 3 times during the 5 months prior to adjudication").
IV. CONCLUSION
For the reasons stated, Plaintiff's motion for judgment on the pleadings is DENIED and the Commissioner's motion to affirm is ALLOWED.
IT IS SO ORDERED.