Sunday, September 10, 2017

Confucius Says

“You cannot open a book without learning something.”  Confucius

How to Get Social Security Disability & SSI Disability is available at 

The paperback edition is now only $5.99, and the Kindle version is now only $2.99.

Wednesday, December 7, 2011

Severe impairment not included in RFC; evidence from surrounding time periods

L R v. Astrue
Civil Action No. 09cv11044-NG
U.S. Judge: Nancy Gertner

ALJ: NA; ME: John Ruggiano

SSDI and/or SSI disability:  migraine headaches, pain and stiffness in hands, swelling of joints, carpal tunnel syndrome, arthritis, foot pain and cramps, mild cervical spondylosis and disc bulges, right shoulder pain; anxiety and depression, cognitive problems—severe memory and concentration problems


severe impairments

RFC & credibility

medical evidence and relevant time period


--The ALJ erred in determining that [the Plaintiff’s] mental impairments were not severe because he improperly weighed certain medical reports and test results. The ALJ’s RFC assessment is flawed because it was based in part on a finding that [the Plaintiff’s] testimony was not credible enough to be incorporated into the RFC assessment. Yet the ALJ failed to articulate an accurate and logical reason for his determination that [the Plaintiff’s] testimony was not credible. It is also flawed because the record did not contain sufficient evidence from which the ALJ could draw reasonable conclusions as to [the Plaintiff’s] RFC during the relevant time period of January 1, 2001 to September 30, 2001. The ALJ’s RFC assessment is inconclusive for a third reason: it does not take into account the impact of [the Plaintiff’s] headaches on her ability to work, despite the fact that these headaches were found to be a severe impairment.

--When the evidence “lacks precision and focus in light of the narrow relevant time period,” an ALJ may use evidence from the surrounding time periods to draw conclusions regarding the relevant time period. Carillo Marin, 758 F.2d at 16 (citing Suarez v. Sec’y of Health & Human Servs., 740 F.2d 1, 1 (1st Cir. 1984)). This is permitted because and ALJ is “simply not at liberty to substitute his own impressions of an individual’s health for uncontroverted medical opinion.” Id.


Barrientos v. Sec’y of Health and Human Servs., 820 F.2d 1 (1st Cir. 1987) (per curiam)

Ramos v. Barnhart, 60 Fed. App'x. 334 (1st Cir. 2003)

Carrillo Marin v. Sec’y of Health & Human Servs., 758 F.2d 14 (1st Cir. 1985)

Step 2

N O v. Astrue
Civil Action No. 10-30009-MAP
2011 U.S. Dist. LEXIS 13119
Affirms SSA
U.S. Judge:  Michael A. Ponsor
(adopting recommendation of U.S. Magistrate Judge Kenneth P. Neiman; 2011-01-10)

SSDI and/or SSI disability:  migraine headaches, depression, hand pain, low back pain due to herniations, kidney problems, history of asthma and obesity


non-inclusion of migraine headaches and depression as severe impairments (step 2)

lack of substantial evidence for RFC


McDonald v. Sec’y of Health & Human Servs., 795 F.2d 1118 (1st Cir. 1986)

Bowen v. Yuckert, 482 U.S. 137 (1987)

Freeman v. Barnhart, 274 F.3d 606 (1st Cir. 2001)

Munoz v. Sec’y of Health & Human Servs., 788 F. 2d 822 (1st Cir. 1986)

SSR 85-28

DAA, post-hearing evidence, SSR 06-03p

C R v. Astrue
Civil Action No. 09cv11273-NG
U.S. Judge: Nancy Gertner

ALJ: NA; ME: Alfred Jonas; VE: Carl Barchi

SSDI and/or SSI disability:  alcohol dependence in partial remission; anxiety with panic attacks;depression; suicidal ideation; low back pain; status post left ankle arthroscopy and hardware removal


extent to which alcohol affects disability

opinions of treating providers


--Because the ALJ’s conclusion that [the Plaintiff’s] alcohol dependence was a contributing factor material to his disability was not based on substantial evidence on the record, and because the ALJ failed to apply the law correctly when evaluating conflicting medical opinions, the decision of the ALJ is REMANDED for a rehearing and further consideration of the application for benefits consistent with this opinion.

--Dr. Jonas reviewed claimant's medical records and testified as a qualified medical expert. . . . He opined that, absent substance abuse, claimant was mildly-moderately impaired in activities of daily living, social functioning, and concentration, and that he possibly had experienced one episode of decompensation.  . . . With substance abuse, Dr. Jonas opined that claimant's limitation in social functioning rose from moderate to marked, and that he had sustained an additional episode of decompensation. Id. at 303. Citing claimant's history and testimony regarding his continued use of alcohol, Dr. Jonas pointed out that Dr. Price’s clinical assessments did not sufficiently address the role that claimant's substance abuse played in his mental impairments and associated limitations.

--Licensed or certified psychologist, however, is only one of the many enumerated categories of profession considered to be acceptable medical source under 20 C.F.R. § 404.1513 (a) (2). In fact, Dr. Price is a licensed mental health counselor ("LMHC"), as the Massachusetts Division of Professional Licensure confirms [footnote omitted] . . . as does the Lynn Community Health Center.6 In light of this, an argument could be made that Dr. Price was one of “other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting” under 20 C.F.R. § 404.1513 (a), which in turn would qualify Dr. Price as an “acceptable medical source.” 20 C.F.R. § 404.1513 (a). As such, the defendant’s primary argument that “there is no indication that Dr. Price is a licensed or certified psychologist or any other regulatorily-defined acceptable medical source,” is flawed, undermining the attemptto discredit Dr. Price’s opinion regarding the relationship between the plaintiff’s drinking and disability.

--Defendant argues that, just because the ALJ did not explicitly cite to Dr. Price’s letter of November 24, 2008, in his decision does not necessarily mean that he did not consider it as part of Dr. Price’s overall clinical assessment. . . . Without the ALJ’s adequate justification, it is impossible to determine whether this evidence was considered and implicitly discredited or instead was simply overlooked.

--Fn. 15:  The Court in Lord v. Apfel held that since “the ALJ’s decision completely failed to mention any of the posthearing evidence, it was impossible to determine whether this evidence was considered and implicitly discredited or instead was simply overlooked.” 114 F. Supp. 2d 3, 14 (D.N.H. 2000). The court concluded that the Administrative Law Judge committed legal error in failing to address a treating physician’s opinion letter in her decision, noting that while the ALJ was entitled to find this opinion “unworthy of credit, she was not entitled to find it unworthy of comment.” Id. at 15-16. In so holding, the court noted that the SSA’s regulations and directives allow for a claimant to submit additional evidence after an administrative hearing but before the ALJ renders her decision. Id. at 13.


Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000)

SSR 06-03p

Tuesday, July 12, 2011

"off the record" discussion violates due process

GB v. Astrue
Civil Action No. 09-30204-KPN
2011 U.S. Dist. LEXIS 7317; 161 Soc. Sec. Rep. Service 550
Remand to a different ALJ
U.S. Magistrate Judge: Kenneth P. Neiman


SSDI and/or SSI disability:  degenerative spine: four damaged discs, back spasms, severe back bank; osteoarthritis of the right knee; myofascial pain syndrome; fibromyalgia; anxiety; bipolar disorder; depression


(1)  evidentiary: morbid obesity impact; treating source opinion; credibility determination—Avery factors

(2) procedural: violation of due process rights due to an “off-the-record” discussion at the outset of the hearing


As Plaintiff notes, the regulations require an administrative law judge to compile a “complete record”, see 20 C.F.R. § 404.951, and failure to do so is a violation of due process. See, e.g., Roy v. Sec’y of Health & Human Servs., 512 F. Supp. 1245, 1252 (C.D. Ill. 1981) (“The administrative record must represent a full and fair hearing of the claim for disability in order to comply with the basic requirements of fairness and procedural due process.”) (citing, inter alia, Richardson, 402 U.S. at 401-02). Similarly, the Social Security Hearings Appeals and Litigation Law manual, often referred to as the “HALLEX” manual, indicates the following:

[The administrative law judge] must make a complete record of the hearing proceedings. Therefore, the ALJ or designee will make a verbatim record of the entire hearing. If a question arises during the course of a hearing which is not relevant to the issue in the claimant’s case, the ALJ may decide to discuss and resolve it off-the-record. However, the ALJ must summarize on the record the content and conclusion of any off-the-record discussion.

HALLEX, I-2-640, RECORD OF THE HEARING (emphasis added).

Here, the ALJ violated both the regulations and the HALLEX manual as the Administrative Record does not sufficiently reflect -- let alone summarize -- the off-the record discussion that occurred between Plaintiff and the ALJ.

As is obvious, contrary to the directives of the regulations and the HALLEX manual, the record does not reflect what was discussed off the record prior to the hearing regarding a “proposal” Plaintiff apparently felt pressured to “accept” in lieu of “a full hearing.”

Simply put, under any standard, such substantive off-the-record discussions regarding the possibility of settlement and whether or not a hearing, or “full hearing,” is warranted would amount to an error of law.


Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)

Tuesday, May 3, 2011

recontacting treating sources

AC v. Michael J. Astrue, Commissioner of the Social Security Administration  2009-01-16
U.S. D.Ct. Mass.
Civil Action No. 08-10400-DPW
2009 U.S. Dist. LEXIS 6064
Affirms SSA
U.S. Judge: Douglas P. Woodlock
SSDI and/or SSI disability:  pain, subdural hematoma, right humerus fractures, left femur fractures, vertigo, memory and concentration problems, difficulty sleeping


consideration of vertigo condition

re-contacting treating physician

credibility of pain complaints—Avery factors


--The claimant did not identify vertigo as a cause of her alleged disability, and the record contained no evidence that vertigo affected her functionality.

--The ALJ has a duty to recontact the treating physician “[w]hen the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled.” 20 C.F.R. §§ 404.1512(e), 416.912(e).

--When the medical record resolves the claim, however, the Administrative Law Judge is not obligated to recontact the treating physician. Social Security Ruling 96-2P . . . (“Ordinarily, development should not be undertaken for the purpose of determining whether a treating source's medical opinion should receive controlling weight if the case record is otherwise adequately developed.”); White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (“It is the inadequacy of the record, rather than the rejection of the treating physician's opinion, that triggers the duty to recontact that physician.”). In Shaw v. Sec'y of Health and Human Servs., 25 F.3d 1037 (table only), 1994 WL 251000 (1st Cir. June 9, 1994) (per curiam), the First Circuit rejected the plaintiff's argument that the ALJ failed to recontact the treating physician.

--The First Circuit determined in an unpublished opinion that the ALJ had no duty to recontact the physician when the physician had filled out a questionnaire, articulating the basis for his opinion that the claimant was disabled. Colon v. Chater, 187 F.3d 621 (table only), 1998 WL 1085796, at *1 (1st Cir. Sept. 30, 1998) (per curiam, unpublished).

--Despite the lack of detail on these issues in the written decision, the ALJ provided enough discussion of the Avery factors in that decision to demonstrate the basis on which he determined Cox's credibility regarding her statements of subjective pain.


Nguyen v. Callahan, 997 F. Supp. 179(D. Mass. 1998)

Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)

Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)

Avery v. Sec'y of Health and Human Servs., 797 F.2d 19 (1st Cir. 1986)

20 C.F.R. § 404.1529(c)(3)(i)-(vii)

*A subsequent claim by the plaintiff was decided by this court on December 9, 2010.  See AC v. Michael J. Astrue, Commissioner of the Social Security Administration, No. 09-12103-GAO, 2010 U.S. Dist. LEXIS 130002.

Thursday, April 14, 2011

non-dominant arm

MT v. Michael J. Astrue, Commissioner of the Social Security Administration
Civil Action No. 10-10048-WGY
2010 U.S. Dist. LEXIS 134832
Affirms SSA
U.S. Judge: William G. Young
ALJ: NA; VE: Dr. Robert Lasky
SSDI and/or SSI disability:  degloving injury to left hand, weakness in left hand, numbness in ring and small fingers, left hand gross atrophy


one arm--non-dominant



transferable skills

substantial evidence


--[The plaintiff] relies on a Seventh Circuit decision holding that even if a claimant were to competently care for children and a household, such activity would not necessarily equate to an ability to work in the labor market. See Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005).

--While a claimant’s performance of household chores or the like ought not be equated to an ability to participate effectively in the workforce, evidence of daily activities can be used to support a negative credibility finding. See Berrios Lopez v. Sec’y of Health and Human Servs., 951 F.2d 427, 429 (1st Cir. 1991).

--The contrast between the numerous Occupational Therapy Progress Notes, which rated [plaintiff’s] pain as 2 or 3 out of 10, and her testimony of constantly being in pain rated at an 8 out of 10, supports the negative credibility finding. See Arruda v. Barnhart, 314 F. Supp. 2d 52, 76 n.24 (D. Mass. 2004) (Bowler, M.J.). . . .

--The fact that [plaintiff] took medication no stronger than Motrin further supports discrediting her assertion of disabling pain. See Albors v. Sec’y of Health and Human Servs., 817 F.2d 146, 147 (1st Cir. 1986).

--[Plaintiff] notes that the transferable work skills identified by the hearing officer are beyond those identified by the vocational expert. This incongruence does not alter the fact that there are jobs in the national labor market that [plaintiff] is capable of performing. The error is harmless . . . .

--The loss, or loss of use, of an arm or hand, however, is not disabling per se. See Social Security Ruling 83-12; see also Odle v. Sec’y of Health and Human Servs., 788 F.2d 1158, 1161 (6th Cir. 1985).

--[Plaintiff] claims she is not capable of doing the surveillance system monitoring because she is unable to communicate in English. . . . noting that the hearing officer declared her illiterate. . . . The record indicates, however, that while [plaintiff] may have trouble writing in English, she is perfectly competent in speaking and understanding the language.