
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1622                                    MEGAN BARKER,                                Plaintiff, Appellant,                                          v.                           COMMISSIONER OF SOCIAL SECURITY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            David A. Chase and Macdonald & Chase on brief for appellant.            ______________     _________________            Jay McCloskey, United  States Attorney, James M. Moore,  Assistant            _____________                           ______________        United  States  Attorney, and  Thomas  D.  Ramsey, Assistant  Regional                                       __________________        Counsel,  Region  I,  Social  Security Administration,  on  brief  for        appellee.                                 ____________________                                   OCTOBER 09, 1996                                   OCTOBER 09, 1996                                 ____________________                 Per  Curiam.  Claimant-appellant Megan Barker challenges                 ___________            the denial  of disability benefits under  the Social Security            Disability   Insurance   and  Supplemental   Security  Income            programs.  We affirm.                 In 1982, claimant  tripped on a concrete  stair and fell            on her left knee while running with her company in the United            States Army.  She suffered a contusion or laceration, and she            was removed from  regular duty  for a short  period of  time.            Barker  finished her  term  in the  military  and received  a            regular discharge in 1984.  Thereafter, she worked at various            jobs (mainly cashiering) until August 1992.                 In 1993, claimant applied for disability benefits due to            patellofemoral pain syndrome.  She complained of swelling and            pain in  her left knee, especially  if she walks or  stands a            lot.   She also complained that  her knee occasionally "locks            up" or "gives out."   She stated that she has had pain in her            knee since her injury  in 1982, but that the pain  has gotten            worse.  She described  the pain as constant and  claimed that            it is unrelieved by medication (Ibuprofen or Motrin).                   The Administrative  Law Judge (ALJ) found  that claimant            has  patellofemoral  pain  syndrome,  but that  it  does  not            significantly limit her ability to perform basic work-related            functions.   Having  concluded that  Barker does  not have  a            severe impairment,  the ALJ terminated the  review process at            Step 2, or  the severity stage,  of the five-step  sequential                                         -2-            inquiry.  See Bowen v. Yuckert, 482 U.S. 137 (1987); McDonald                      ___ _____    _______                       ________            v. Secretary of  Health &  Human Servs., 795  F.2d 1118  (1st               ____________________________________            Cir.  1986).    The decision  of  the  ALJ  became the  final            decision  of the  Secretary when  the Appeals  Council denied            review.    Claimant appealed  to  the  district court,  which            referred  the matter  to  a magistrate  judge for  report and            recommendation.  The  magistrate recommended affirmance,  and            the  district judge adopted  the magistrate's recommendation.            This appeal followed.                 The medical  records submitted by the  claimant are from            the Veterans Administration (VA).   These records reveal that            claimant's  left knee was examined  on two occasions  by a VA            physician  for  the purpose  of  determining  whether she  is            eligible for a  VA disability  rating.  In  addition, the  VA            Disability  Council  sent  claimant   to  see  Dr.  Pepe,  an            orthopedic  consultant.   Dr. Pepe  examined claimant  on one            occasion,   December  9,   1992.     Although   he  diagnosed            patellofemoral pain  syndrome, Dr. Pepe's  objective findings            are  almost entirely  negative.   On March  11, 1993,  the VA            assigned claimant  a 30%  disability rating.   At that  time,            objective  findings  were said  to  show  a small  amount  of            effusion in the left knee, as well as some warmth and diffuse            tenderness  in  the knee.    On  October 19,  1993,  claimant            arrived at Dr. Pepe's office without an appointment and spoke            to him briefly  in the hallway.  Following this conversation,                                         -3-            Dr.  Pepe wrote  a  short note  in  which he  stated:   "[The            claimant]  says  she has  pain  in  her  legs that  precludes            sitting or standing at  work.  Would recommend no  sitting or            standing in order to help the pain."                 As  an initial  matter, we  are persuaded  that the  ALJ            could properly reject Dr.  Pepe's October 19, 1993 assessment            essentially  for the reasons stated  by the magistrate in his            recommended  decision.1   We  add that  there is  conflicting                                  1            medical  evidence  in  the  record.    None  of  the  medical            consultants found any limitation in claimant's ability to sit            or stand.2    Moreover, Dr.  Pepe's  note is  conclusory  and                     2            devoid  of objective  medical  findings.   See  20 C.F.R.                                                           ___                                            ____________________               1The magistrate stated:               1                      Given that Dr. Pepe had last examined the                      plaintiff   nearly   ten  months   before                      writing the October [19], 1993 note, that                      he  had  no advance  notice of  her visit                      (and  thus no  opportunity to  review her                      file), and that he  wrote the note at the                      plaintiff's request and without examining                      her  anew,  the Administrative  Law Judge                      was entitled to disregard it . . .             Report and Recommended Decision at 5-6.               2Dr. Johnson,  a  State agency  consultant,  reviewed  the               2            medical evidence and concluded that claimant does not have an            impairment which  limits her  ability to perform  basic work-            related  functions.    Dr.  Goffin,  a  second  State  agency            consultant,   completed   a   Residual  Functional   Capacity            Assessment  which  indicates   no  limitation  in  claimant's            ability to sit  or stand.   Dr. Babcock,  a medical  advisor,            testified at the administrative hearing that he had "a lot of            trouble  placing much  credibility in  [Dr. Pepe's]  note" in            light  of the  fact that  Dr. Pepe  did not  examine claimant            before writing it.                                         -4-            404.1527(d)  (explaining how  the  Secretary  weighs  medical            opinions),  416.927(d)  (same);  Matney  ex  rel.  Matney  v.                                             ________________________            Sullivan,  981 F.2d 1016, 1019 (9th Cir. 1992) ("The ALJ need            ________            not  accept  an  opinion  of  a  physician--even  a  treating            physician--if it  is conclusory and brief  and is unsupported            by clinical findings.").                 We  also  think  the   ALJ  could  properly  reject  the            credibility of claimant's statements concerning  the limiting            effects of her pain and other symptoms.  See Irlando Ortiz v.                                                     ___ _____________            Secretary  of Health & Human  Servs., 955 F.2d  765, 769 (1st            ____________________________________            Cir.  1991)   (per  curiam)   (explaining  that  it   is  the            responsibility  of  the  Secretary  to  determine  issues  of            credibility).   The VA treatment record is  quite sparse, and            most  of   the  objective  medical  findings   are  negative.            Claimant's allegations that her pain significantly limits her            ability  to sit or stand is inconsistent with the opinions of            the medical consultants.  In addition, the ALJ properly could            find  that claimant's  allegations are inconsistent  with her            reported activities.3  See  20 C.F.R.    404.1529 (explaining                                3  ___            how the Secretary evaluates pain), 416.929 (same).                                             ____________________               3Claimant  is  able to  do  housework (including  dusting,               3            vacuuming, laundry, and washing dishes) and, according to one            of her reports, she is able to do grocery shopping.  She also            drives  her  car, visits  friends, and  has taken  a computer            training course.   Each of these  activities involves sitting            or standing.                                            -5-                 For  the foregoing  reasons, we  are persuaded  that the            Secretary's  severity  finding  is  supported  by substantial            evidence.  Accordingly, the judgment below is affirmed.                                                          ________                                         -6-
