April 14, 1992 [NOT FOR PUBLICATION]
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No. 91-1964
FRANCESCA CARBONE,
Plaintiff, Appellant,
v.
LOUIS W. SULLIVAN,
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Gretchen Bath on brief for appellant.
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Lincoln C. Almond, United States Attorney, Michael P. Iannotti,
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Assistant United States Attorney, and Nancy B. Salafia, Assistant
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Regional Counsel, Department of Health and Human Services, on brief
for appellee.
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Per Curiam. Francesca Carbone (claimant) appeals from a
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district court judgment affirming a decision by the Secretary
of Health and Human Services to deny her application for
disability benefits under the Supplemental Security Income
(SSI) program. Claimant was born in Italy in 1941 and
attended school there through the fifth or sixth grade. She
came to this country in 1970 and worked as a press machine
operator from 1974 to 1976. On October 21, 1988, she filed
the instant application for benefits, alleging that she has
been disabled since March 1976 due to arthritis, high blood
pressure, sciatic pain, dizzy spells and nerves. Following a
hearing at which claimant, her daughter and a vocational
expert (VE) testified, the Administrative Law Judge (ALJ)
denied her claim at step four of the sequential analysis--
finding that claimant had failed to establish an inability to
perform her past work. The Appeals Council considered but
declined claimant's request for review, and the district
court, at the recommendation of a magistrate-judge,
subsequently affirmed. Claimant now appeals.
I.
Claimant advances a barrage of objections to the ALJ's
opinion. The thrust of her argument is that the ALJ misread
or ignored key medical findings, with the result that the
assessments of various physicians were improperly
discredited, with the further result that her complaints of
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pain were improperly discounted. An evaluation of these
claims requires a brief summary of the medical evidence.
Such evidence comes from four sources: Dr. Chun Kak Lee,
claimant's treating physician since 1980; Dr. Karen Holmes, a
consulting internist; several treating physicians at the
Roger Williams Hospital rheumatology clinic; and Dr. Dominic
Coppolino, a consulting psychiatrist. In line with the focus
of claimant's argument, our attention will be directed
principally to the evidence concerning her complaints of
pain. And because disability benefits under the SSI program
are available only from the date of a claimant's application,
see, e.g., 20 C.F.R. 416.202; Commonwealth of Pennsylvania
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v. United States, 752 F.2d 795, 799 (3d Cir. 1984), we shall
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concentrate on the period beginning in October 1988.
Claimant visited Dr. Lee approximately 80 times between
July 1980 and November 1989. The notes from these visits are
cursory, containing little more than a notation of claimant's
complaints, her weight and blood pressure, and the
medications prescribed. The complaints were varied and for
the most part minor; with few exceptions, physical
examination was reported as being within normal limits.
Claimant was prescribed pain medication continuously
throughout this period--at first Norgesic Forte, and then
Motrin. Yet on only eight occasions (one in 1988, three in
1989) did Dr. Lee record complaints of pain other than
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headaches, and only rarely did these concern the same part of
the body.1
Dr. Holmes examined claimant on January 6, 1989, several
months after the filing of her application. After recording
claimant's complaints,2 she made the following findings.
Her knees revealed some changes of osteoarthritis, but no
effusion. There was a full range of motion in all joints,
without synovial bogginess or redness. Straight leg raises
resulted in pain in the right knee and right back with an
elevation of 25 degrees. Range of motion was diminished in
the neck in all directions, and also in the back; claimant
could bend forward only 20 degrees before the onset of severe
pain. Neurological findings were normal, with full motor
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1. Dr. Lee's notes record the following complaints of pain:
8/9/80 sciatic nerve
10/23/80 pain in right and left knees
9/20/86 pain in back
10/31/87 general aching pain
3/5/88 pain in knees
4/29/89 pain in elbows and ankles
8/5/89 pain in left leg
9/5/89 pain "everywhere"
His notes also reflect intermittent complaints of swelling
and "puffiness."
2. Claimant stated that her arthritis was a long-standing
condition which affected her feet, knees, hands, elbows and
neck. It caused much stiffness extending throughout the day,
and also led to swelling, particularly in the knees, without
redness. It sharply restricted her mobility, allowing her to
walk for only ten minutes before needing to rest. Claimant
also stated that she had suffered from sciatic pain for the
last 15 to 20 years. She continued to have seven to eight
flare-ups per year, which lasted for several weeks and made
all movement difficult.
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strength in all extremities, and an intact sensory exam.
Gait was slow, favoring the right leg, and claimant was
unable to perform heel or toe walking, tandem gait walking,
or squatting movements. Dr. Holmes' assessment was that
claimant's arthritis imposed "quite severe" restrictions;
even when claimant was not having an attack of her sciatic
problem, she remained "very limited in her ability to
maneuver ... and be active."3
In an August 1989 report, Dr. Lee stated that claimant's
"hypertension, tachycardia, anxiety, headache, and arthritis
ha[ve] been fairly controlled by medications. [Claimant] is
obese and main problem is dizziness [with] headache." With
respect to her arthritis, he added that claimant complained
occasionally of back pain, which was "fairly responding" to
medications. In October, Dr. Lee referred claimant to the
rheumatology clinic at Roger Williams Hospital for treatment
of her arthritis. And on December 3, 1989, he submitted a
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3. On the basis of Dr. Holmes' report, an agency physician
submitted a residual functional capacity (RFC) assessment in
May 1989. It indicated that claimant could lift 20 pounds
(10 pounds frequently). She could stand or walk only for
four hours in an eight-hour workday, with pace and distance
markedly limited. Her ability to perform repetitive leg
movements, such as pushing foot controls, was moderately
limited. She could climb only rarely, for only a few steps.
And she could stoop, kneel, or crouch only occasionally.
In a redetermination rationale that same month, the
agency relied on this RFC to find that claimant was unable to
return to her past work as a foot press operator. It further
held, however, that she remained capable of performing other
work not involving prolonged standing or the use of foot
controls.
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report indicating that her condition was "not any better,"
and that her arthritis had been "extremely painful" during a
November 25 visit. He also provided on that date an RFC
assessment indicating that claimant could lift or carry only
five pounds occasionally, could sit, stand, or walk for only
one hour in an eight-hour workday, was unable to use her feet
for repetitive movements such as pushing of leg controls, and
was unable to climb. In an accompanying commentary, he added
that claimant was suffering from rheumatoid arthritis.
Claimant was first seen at the hospital clinic on
October 18, 1989. She voiced complaints similar to those
recorded by Dr. Holmes ten months earlier.4 During the
examination, she was in no acute distress at rest but
grimaced when rising from a chair. There was limited range
of motion in the neck secondary to pain complaints.
Examination of the extremities proved difficult due to pain
complaints; range of motion could not be tested. The joints
revealed no acute inflammation, effusions, or erythema
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4. The following complaints were noted. Claimant suffered
from generalized pain in all of her joints for the past 6-10
years. Redness, swelling, and warmth in the joints occurred
intermittently, especially in her ankles, hands, right knee
and left elbow. The problem had grown progressively worse
over the past year, although medication afforded some relief.
Because of the pain, claimant experienced difficulties in
sleeping, climbing stairs, and walking for more than short
periods, and had lost 33 pounds in the last year. She also
had a 15-year history of sciatic pain in the lower right back
and right leg, which flared up intermittently and required
localized injections and extended bed rest.
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(redness or swelling). Gait was consistent with right hip
and low back pain, and generalized tenderness to palpation
existed over the entire body. The examining physician
reached an initial assessment of generalized musculoskeletal
pain, stated that fibrositis5 and depression must be
considered, expressed doubt that rheumatoid arthritis or
other connective tissue diseases were involved, and ordered
x-rays of the knees, hips and spine. These x-rays, performed
that same day, revealed the following: mild degenerative
changes in both knees with effusions but no soft tissue
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5. Fibrositis is the "swelling of fiberlike connective
tissue," the symptoms of which include "pain and stiffness of
the neck, shoulder, and body." Mosby Medical Encyclopedia
291 (1985). The Sixth Circuit has recently described this
ailment as follows:
[F]ibrositis [is] a condition only recognized in
the last several years .... [It] causes severe
musculoskeletal pain which is accompanied by
stiffness and fatigue due to sleep disturbances.
In stark contrast to the unremitting pain of which
fibrositis patients complain, physical examinations
will usually yield normal results--a full range of
motion, no joint swelling, as well as normal muscle
strength and neurological reactions. There are no
objective tests which can conclusively confirm the
disease; rather it is a process of diagnosis by
exclusion and testing of certain "focal tender
points" on the body for acute tenderness which is
characteristic in fibrositis patients....
[F]ibrositis patients may also have psychological
disorders. The disease commonly strikes between
the ages of 35 and 60 and affects women nine times
more than men.
Preston v. Secretary of HHS, 854 F.2d 815, 817-18 (6th Cir.
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1988) (per curiam) (quoted in Lisa v. Secretary of HHS, 940
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F.2d 40, 44-45 (2d Cir. 1991)); see also Tsarelka v.
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Secretary of HHS, 842 F.2d 529, 532-33 (1st Cir. 1988) (per
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curiam).
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abnormality; mild degenerative changes in the right hip; and
disc space narrowing L4-5, along with mild scoliosis
(curvature of the spine).
The record contains reports from four additional visits
made by claimant to the hospital clinic. On November 3,
1989, she complained of continuing pain, more on the right
side than the left. The hands revealed moderate synovitis
with erythema and tenderness, and the wrists were tender and
painful. Lateral rotation of the neck was restricted, and
the left shoulder revealed point tenderness. The knees
showed no erythema or effusion. An assessment of fibrositis
was reached. On December 12, claimant presented with
complaints of continued diffuse pains with increased pain in
the neck and left shoulder, pain and numbness in the first
three fingers of the right hand, and increased difficulty in
sleeping. Examination proved very difficult due to pain.
There were no effusions, warmth, or erythema in any joint.
Shoulder movement was restricted. The hands revealed
heberdens nodes (an abnormal enlargement of the bone or
cartilage in the joints), and trigger points appeared in the
neck, shoulder, elbow and thigh. The assessment was: (1)
osteoarthritis involving the hands, the knees and probably
the neck; (2) diffuse musculoskeletal pains, with numerous
reproducible trigger points on exam, consistent with
fibrositis; and (3) sciatica symptoms, with no evidence of
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spinal cord compression, but with narrowed disc space
compressing on nerve roots.
At a January 12, 1990 hospital visit, claimant stated
that her main problem lately had been increased blood
pressure and headaches; her aches and pain were described as
"up and down." Physical exam revealed no "inflammatory
findings." Finally, on April 13, 1990, claimant complained
of pain in the right knee, calf, left ankle and hips, along
with swollen joints and headaches. Multiple reproducible
trigger points were detected, her hands showed heberdens
nodes, and shoulder movement was restricted. The assessment
was osteoarthritis and fibrositis. Medications (Clinoril and
Elavil) were continued, and claimant was directed to return
in four months.
Dr. Coppolino performed a psychiatric examination on
November 28, 1989. In his report, he first noted that
claimant was limping, favoring her left ankle, and that her
principal complaint was pain. Without meaning to suggest
that she was free of clinical problems, he stated that there
was "no doubt an exaggeration on her part" with respect to
"whatever physical conditions she has," and that restrictions
in movement were likely "psychogenic." As to her mental
condition, Dr. Coppolino found it significant that the onset
of claimant's varied complaints apparently coincided with her
divorce in 1975. Speech was slow and hesitant, but Dr.
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Coppolino attributed this to deliberate hesitation rather
than psychomotor retardation. Claimant was oriented in the
three spheres, with intact memory. There was no evidence of
hallucinations, delusions, or psychosis. And in a test
measuring retention of consecutive digits, Dr. Coppolino
found that claimant deliberately gave wrong answers. His
assessment was chronic dysthymia with anxiety, moderate. He
indicated that conversion features were mildly to moderately
present, but also noted evidence of exaggeration and
volitional elements.
In an accompanying RFC evaluation, Dr. Coppolino rated
claimant as moderately impaired in relating to other people,
performing daily activities, responding appropriately to
customary work pressures, and performing complex tasks. She
was deemed mildly to moderately impaired in her ability to
carry out instructions, and only mildly impaired in seven
other categories. Dr. Coppolino stated that her pain
complaints were "probably not" consistent with clinical
findings, while adding that the actual restrictions imposed
by her pain depended "on the nature and extent of physical
ailments." He also noted that his judgments were
"exclusively based on psychiatric impressions" obtained
during the examination.
II.
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The ALJ viewed much of this evidence with skepticism.
Dr. Lee's notes, he determined, did not support a diagnosis
of arthritis (or any other painful condition); only
intermittent complaints of pain and stiffness had been
recorded, no x-ray evidence had been obtained "which is
essential for a diagnosis of arthritis as it clearly will
show up on x-ray," and no arthritis medication had been
prescribed. He also observed that, while Dr. Lee's December
3, 1989 report had described claimant's arthritis during the
November 25 visit as "extremely painful," the notes from that
visit made no reference to pain complaints. The ALJ likewise
rejected Dr. Holmes' assessment that claimant's arthritis was
"severely" limiting. Again, no x-rays had been taken, the
reported limitations in movement involved areas of the body
claimant had not complained about, and the medical findings
"reflect[ed] only [claimant's] subjective complaints, none of
which were borne out on examination." Of the five hospital
reports, the ALJ only saw the first two (the hearing having
been held on December 7, 1989). These, he determined,
reflected some minor findings but "little evidence of severe
arthritis or joint disease." He found "no sound medical exam
evidence for the basis of any back, hip, or neck pain," and
regarded the limitations reported by the examining physicians
to be "more an exaggeration on her part than caused by any
medical condition." Finally, while the ALJ otherwise fully
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credited the psychiatric report, he disagreed with Dr.
Coppolino's finding that claimant was moderately limited in
her ability to perform daily activities and relate to other
people. Claimant had stated to Dr. Coppolino that she
attributed her mental difficulties to her physical ailments.
The ALJ, having found no serious physical impairment,
therefore determined that she was only mildly limited in her
ability to perform the above-mentioned activities.
Based on his evaluation of the medical evidence, the ALJ
determined that claimant suffered from hypertension, mild
degenerative joint disease in the knees, and chronic
dysthymia with mild to moderate anxiety. He discounted the
"complaints of severe disabling pain throughout her body,
dizziness and nervousness and anxiety," on the grounds that
they were "not credible to the degree alleged and ... not
supported by substantial medical evidence."6 And he found
that claimant remained capable of lifting up to twenty pounds
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6. At the hearing, both claimant and her daughter had
described the nature of her pain, in terms consistent with
the complaints recited above. They also had explained how it
restricted her activities. Claimant, it was said, often
needs her daughter's assistance to get out of bed and get
dressed. She spends most of the day sitting or lying on a
sofa. She sometimes dusts, and performs a little cooking.
Once a week, she might go shopping with her daughter for
thirty minutes, spending most of the time sitting on a bench
or leaning against the shopping cart. She attends church
once a month. Otherwise, she stays at home, in part because
of difficulty in climbing the stairs to her third-floor
apartment. Claimant also stated she could walk for only ten
minutes at a stretch, could sit for thirty minutes before
needing to stand, and experienced difficulty sleeping.
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at a time (ten frequently), and thus could perform the full
range of light work. As the VE had classified claimant's
prior work (as usually performed) as light and unskilled,7
the ALJ therefore denied her application at step four.
In seeking review by the Appeals Council, claimant
emphasized, inter alia, the diagnoses of fibrositis and
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osteoarthritis contained in the more recent hospital reports.
The Appeals Council, after "carefully consider[ing]" such
evidence, held that it "establishes neither a new impairment
nor a greater degree of severity regarding a previously
diagnosed disorder"; rather, it "essentially repeats
information that was available to the [ALJ] in the hearing
record." After further determining that the ALJ had
justifiably discredited claimant's complaints of pain, the
Appeals Council declined review.
III.
Of the various challenges lodged by claimant to the
ALJ's decision, many prove to be well-founded; indeed, the
government takes exception with few of them. For example,
the ALJ's assumption that x-rays are a prerequisite to the
diagnosis of arthritis finds no support in the record, and
would appear a dubious one. See, e.g., Merck Manual 1260
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7. This was the extent of the VE's testimony; he provided no
further description of claimant's past work nor any
hypothetical opinion as to her continued ability to perform
it.
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(15th ed. 1987) ("Diagnosis [of osteoarthritis] is usually
based on symptoms and signs, as described above, or by x-ray
in asymptomatic patients"). His statement that the pain
medications prescribed by Dr. Lee were inappropriate for
treating arthritis likewise lacks support. His finding that
there was "no medical basis" for any complaints of back or
hip pain would appear inconsistent with the x-ray results.
In a similar vein, while it is proper to discount the
evaluation of a physician who has "relied excessively on
claimant's subjective symptoms, rather than on objective
medical findings," Rodriguez Pagan v. Secretary of HHS, 819
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F.2d 1, 3 (1st Cir. 1987) (per curiam), cert. denied, 484
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U.S. 1012 (1988), the ALJ appears to have been overly
disposed to reject those clinical findings not confirmed by
laboratory results on the ground of being "subjective." See,
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e.g., Gatson v. Bowen, 838 F.2d 442, 447 (10th Cir. 1988)
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("objective medical evidence of disabling pain need not
consist of concrete physiological data alone but can consist
of a medical doctor's clinical assessment"); accord Miranda
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v. Secretary of HHS, 514 F.2d 996, 999 (1st Cir. 1975). And
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claimant is correct in asserting that the ALJ ignored the
assessment of fibrositis reached in the November 3, 1989
hospital report.8
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8. At the same time, claimant's assertion that "the
Secretary ... wholly ignored the more recent Roger Williams
hospital records, which contain a new diagnosis
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Whether these deficiencies in the ALJ's decision warrant
a remand presents a closer question. Claimant's various
allegations essentially reduce to the question of whether her
complaints of pain were properly evaluated. Any claimant
alleging disability due to pain has the threshold burden of
establishing a clinically determinable medical impairment
that can reasonably be expected to produce the pain alleged.
See, e.g., 20 C.F.R. 404.1529; Avery v. Secretary of HHS,
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797 F.2d 19, 21 (1st Cir 1986). Upon such a showing, the
Secretary is not free to discount pain complaints simply
because the alleged severity thereof is not corroborated by
objective medical findings. See, e.g., Da Rosa v. Secretary
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of HHS, 803 F.2d 24, 25-26 (1st Cir. 1986) (per curiam).
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Rather, those complaints must be considered along with all
other relevant evidence, and "detailed descriptions of
[claimant's] daily activities" must be obtained. Avery, 797
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F.2d at 23; accord, e.g., Social Security Ruling (SSR) 88-13.
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And "[w]hen medical signs and laboratory findings do not
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(fibrositis)," Brief at 15, is disingenuous. First, as
mentioned, fibrositis was diagnosed earlier, on November 3,
1989. Second, claimant did not forward the updated records
until June 1990, over two months after the ALJ's decision.
They were sent to the Appeals Council; there is no indication
the ALJ ever saw them. And third, as mentioned, the Appeals
Council fully considered these records in reaching its
decision to deny review.
On a separate matter, claimant is likewise mistaken in
arguing that Dr. Lee's notes "repeatedly" document "on-going
complaints of pain and stiffness." Brief at 14. The record,
as mentioned earlier, is to the contrary. See note 1 supra.
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substantiate any physical impairment capable of producing the
alleged pain (and a favorable determination cannot be made on
the basis of the total record), the possibility of a mental
impairment as the basis for the pain should be investigated."
Id. (quoted, in earlier format, in Avery, 797 F.2d at 27).
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Fitting the ALJ's decision into this analytical
framework is somewhat problematic. Claimant suggests that
her pain complaints were dismissed because the ALJ
categorically (and improperly) rejected the diagnosis of
arthritis. Yet, while portions of the ALJ's decision support
such an inference, he did reach a finding of mild
degenerative joint disease in the knees--which is another
name for osteoarthritis. See, e.g., Mosby Medical
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Encyclopedia 215 (1985). At the same time, the government
agrees that the ALJ dismissed the pain allegations at the
threshold stage: "Avery requires a threshold showing of a
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clinically determinable medical impairment that could
reasonably be expected to produce the pain .... The absence
of such a showing constitutes the basis of the ALJ's
rejection of plaintiff's subjective complaints." Brief at
11. The Appeals Council read the ALJ's decision differently,
finding that the pain complaints had been discredited only
after a full Avery inquiry. It stated:
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The Appeals Council agrees with the [ALJ] that the
objective medical findings do not disclose a degree
of pathology consistent with your subjective
complaints. Under these circumstances, the Avery
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[case] requires the [ALJ] to consider other
evidence relating to pain. In this case the
Appeals Council is satisfied that the [ALJ's]
consideration of the suggested factors is
substantially in compliance with the Avery
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decision.
The magistrate-judge construed the ALJ's decision in similar
fashion.
Had the ALJ dismissed the pain allegations at the
threshold level (as the government contends), we would be
hard-pressed to find support therefor. For claimant's
fibrositis (if not her osteoarthritis) clearly constitutes an
impairment reasonably capable of producing the pain alleged.
Yet we agree with the Appeals Council and district court that
the ALJ, despite some intimations to the contrary in his
decision, did accord full consideration to the subjective
pain complaints. To be sure, in explaining the basis for his
decision to discount such complaints, the ALJ emphasized the
perceived weaknesses in the medical evidence and concluded
that "no significantly limiting physical impairment" had been
shown. But his consideration of the matter did not end
there. He questioned claimant at length during the hearing
as to the nature of her daily activities, and described her
responses in some detail in his decision. And he expressly
relied on Dr. Coppolino's findings of exaggerated symptoms
and false answers in determining that claimant's subjective
complaints were not fully credible. None of this further
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inquiry would have been necessary had he dismissed such
complaints at the threshold level.
We remain troubled, however, by the fact that the ALJ
overlooked the diagnosis of fibrositis. Such an impairment,
while not invariably disabling of course, see, e.g., Tsarelka
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v. Secretary of HHS, 842 F.2d 529 (1st Cir. 1988) (per
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curiam), is a potentially serious one. See note 5 supra.
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And several factors here suggest that reconsideration of
claimant's complaints of pain in light of such diagnosis
would be appropriate. As mentioned, the ALJ evaluated such
complaints primarily with reference to the arthritis claim.
And in doing so, he emphasized that the physical examinations
yielded, for the most part, seemingly unremarkable
"objective" results (a term he defined on occasion too
narrowly). Yet this is apparently not unusual in fibrositis
sufferers: "In stark contrast to the unremitting pain of
which fibrositis patients complain, physical examinations
will usually yield normal results--a full range of motion, no
joint swelling, as well as normal muscle strength and
neurological reactions." Preston v. Secretary of HHS, 854
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F.2d 815, 817-18 (6th Cir. 1988) (per curiam) (paraphrasing
"medical journal articles"); accord Tsarelka, 842 F.2d at 532
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(quoting medical testimony). We think that, without an
awareness of claimant's fibrositis condition and an
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appreciation of its unusual symptoms, the ALJ's Avery
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analysis was necessarily skewed.9
To a lesser extent, we are troubled by the ALJ's failure
to investigate the possibility of a psychological basis for
the pain alleged, as called for by Avery and SSR 88-13. The
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Preston court informs us that "fibrositis patients may also
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have psychological disorders." 854 F.2d at 818. To be sure,
Dr. Coppolino found that claimant was purposefully
exaggerating her symptoms. Yet he also reported mild to
moderate evidence of conversion factors, which the ALJ
mentioned in his factual summary but never addressed. More
to the point, Dr. Coppolino never reviewed claimant's medical
records or ascertained the nature of her physical ailments
with any precision; he presumably was unaware of the
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9. We disagree, in other words, with the Appeals Council's
conclusion that the fibrositis diagnosis "establishes neither
a new impairment nor a greater degree of severity regarding a
previously diagnosed disorder," but rather "essentially
repeats information that was available" to the ALJ. That
diagnosis was "new" in the sense that the ALJ failed to
consider it. And it potentially involved more severe pain,
and manifested itself differently, than the ailments
recognized by the ALJ.
Contrary to the Appeals Council's further conclusion, we
do not see how the ALJ can be said to have conducted a
meaningful Avery inquiry while remaining ignorant of
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claimant's fibrositis. It is noteworthy in this regard that
the "specific inquiries" called for by Avery were here
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directed only to claimant and her daughter. Their replies
provided little, if any, support for the ALJ's conclusion.
Compare, e.g., Gordils v. Secretary of HHS, 921 F.2d 327, 330
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(1st Cir. 1990) (per curiam) (pain allegations appropriately
discredited in part because daily activities found to be
"practically intact").
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fibrositis diagnosis. Given the unusual manner in which the
symptoms associated with that ailment are manifested, his
ignorance in this regard may well have affected his findings.
We therefore question whether the ALJ satisfied his burden
under Avery simply by relying on the Coppolino report.10
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Taken together, we think these factors warrant a remand
for reconsideration of claimant's pain complaints.
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10. Although not raised by claimant on appeal, we note two
difficulties with the ALJ's review of the psychiatric RFC
evaluation. As mentioned, Dr. Coppolino found that claimant
was moderately restricted in her ability to relate to other
people and to perform daily activities. The ALJ rejected
these findings on the ground that claimant had attributed her
sadness to her physical ailments, and those ailments in the
ALJ's view were insubstantial; he therefore found only mild
restrictions in this regard. Yet contrary to the ALJ's
premise, Dr. Coppolino determined that claimant's mental
condition was related primarily to her divorce. And to the
extent the ALJ was disagreeing with the RFC based on his own
review of the evidence, we think he "overstep[ped] the bounds
of a lay person's competence and render[ed] a medical
judgment." Gordils v. Secretary of HHS, 921 F.2d 327, 329
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(1st Cir. 1990); accord Berrios Lopez v. Secretary of HHS,
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951 F.2d 427, 430 (1st Cir. 1991) (per curiam) ("the ALJ is
not qualified to assess claimant's residual functional
capacity based on the bare medical record").
Second, Dr. Coppolino found that claimant's ability to
respond to customary work pressures was moderately
restricted. The ALJ disregarded this finding on the ground
that it was not applicable to her past work as a press
machine operator. Although he did not elaborate, we read
this to mean that he regarded her past job as a low-stress
one; the Appeals Council, in fact, stated as much. To be
sure, a claimant bears the initial burden of establishing
that her former employment was stressful when disability is
alleged on that basis. See, e.g., Santiago v. Secretary of
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HHS, 944 F.2d 1, 6 (1st Cir. 1991) (per curiam); May v.
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Bowen, 663 F. Supp. 388, 394 (D. Me. 1987). Yet we do not
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think the ALJ was free to assume, absent vocational evidence,
that claimant's past work did not involve "customary" work
pressures, and to reject Dr. Coppolino's RFC assessment based
on that assumption.
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Admittedly, there are countervailing indications. The record
contains considerable evidence militating against a finding
of intense, disabling pain.11 An ALJ's credibility
determination is entitled to "considerable deference."
Dupuis v. Secretary of HHS, 869 F.2d 622, 623 (1st Cir.
______ _________________
1989). Some of the ALJ's skepticism concerning the medical
evidence was warranted.12 And claimant bears the burden at
step four "of making some reasonable threshold showing that
she cannot return to her former employment because of her
alleged disability." Santiago v. Secretary of HHS, 944 F.2d
________ _________________
1, 4 (1st Cir. 1991) (per curiam). Nonetheless, disability
determination proceedings are nonadversarial in nature, see,
___
e.g., Currier v. Secretary of HHS, 612 F.2d 594, 598 (1st
____ _______ _________________
Cir. 1980), and the Secretary--while under no duty to go to
____________________
11. For example, claimant exhibited few of the objective
indicia of severe pain, such as muscle spasm, muscle atrophy,
or sensory or motor loss. Dr. Lee's notes, as mentioned,
recorded only intermittent complaints of pain. In August
1989, he reported that all of claimant's problems were
"fairly controlled by medications," that her back pain was
"fairly responding" to Motrin and Tylenol, and that her "main
problem" was dizziness with headaches. At the hospital on
November 3, 1989, claimant complained of pain more on the
right side than the left; to Dr. Coppolino some three weeks
later, she was favoring her left ankle. The hospital
reported on January 12, 1990 that her "main problem lately"
was increased blood pressure and headaches, and that her
aches and pains were up and down. Follow-up visits were
thereafter scheduled only every four months. And claimant
testified at the hearing that the medication reduced
(although did not eliminate) her pain.
12. For example, Dr. Lee's diagnosis of rheumatoid arthritis
appears to have been faulty.
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"inordinate lengths to develop a claimant's case," Thompson
________
v. Califano, 556 F.2d 616, 618 (1st Cir. 1977)--must "make an
________
investigation that is not wholly inadequate under the
circumstances," Miranda, 514 F.2d at 998; accord Santiago,
_______ ______ ________
944 F.2d at 5-6 (at step four, "an ALJ may not simply rely
upon 'the failure of the claimant to demonstrate [that] the
physical and mental demands of her past relevant work' can no
longer be met, but, 'once alerted by the record to the
presence of an issue,' must develop the record further")
(citation and emphasis omitted). Here, given the ALJ's
failure to explore the physical and mental implications of
claimant's fibrositis, and given the other shortcomings in
his decision, we do not believe that an adequate
investigation was conducted. We are unable to conclude, in
other words, that "a reasonable mind, reviewing the record as
a whole, could accept it as adequate to support [the ALJ's]
conclusion." Lizotte v. Secretary of HHS, 654 F.2d 127, 128
_______ ________________
(1st Cir. 1981).13 We emphasize that, in remanding, we do
____________________
13. On remand, the ALJ should obtain "an expert's RFC
evaluation"--as to claimant's physical as well as mental
restrictions--"unless the extent of functional loss, and its
effect on job performance, would be apparent even to a lay
person." Santiago, 944 F.2d at 7; see also Gordils v.
________ ________ _______
Secretary of HHS, 921 F.2d 327, 329 (1st Cir. 1990) (per
_________________
curiam) (Secretary entitled to render "common-sense judgments
about functional capacity based on medical findings"). The
present record contains only two physical RFC's prepared by
physicians--those of Dr. Lee and an agency doctor, see note 3
___
supra. Both indicated that claimant was unable to perform
_____
her past work.
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not mean to indicate that a disability finding is necessarily
warranted--only that additional medical evaluation relevant
to the mentioned issues, and a fresh determination in light
thereof, are called for.
The judgment of the district court is vacated and the
________________________________________________________
case is remanded to the district court with instructions to
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remand to the Secretary for further proceedings consistent
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with this opinion.
__________________
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