
USCA1 Opinion

	




          June 9, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2173                                                BARBARA SHAW,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ___________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ___________________               David Waldfogel,  J. Patterson Rae, and  Western Mass. Legal               _______________   ________________       ___________________          Services, Inc., on brief for appellant.          ______________               Donald K.  Stern, United States Attorney,  Karen L. Goodwin,               ________________                           ________________          Assistant United States Attorney,  and John Germanotta, Assistant                                                 _______________          Regional Counsel, Department of Health & Human Services, on brief          for appellee.                                  __________________                                  __________________                      Per Curiam.   Plaintiff  appeals the denial  of her                      __________            second  application for SSDI and SSI benefits for a period of            alleged disability beginning November  15, 1988, due to back,            neck  and  shoulder  problems.   The  procedural  history  of            plaintiff's claim, and the medical evidence in the record are            thoroughly  detailed in  the  district court's  opinion.   We            reiterate here  only to  the extent  necessary to orient  our            discussion.                        Plaintiff had a history  of back, neck and shoulder            complaints dating back  to October,  1979.  She  worked as  a            self-employed  housekeeper  for  approximately   seven  years            immediately prior to her  initial application for  disability            benefits at  age 47.  The alleged onset of her disability was            not  triggered by  any  sudden event,  but  its date  roughly            coincides with  the date upon  which her  physician, who  had            diagnosed  cervical arthritis, referred  her to an orthopedic            surgeon, Dr. Kanner. (T.187).                       Dr.  Kanner diagnosed  plaintiff as  suffering from            advanced  degenerative  disc  disease of  the  cervical spine            affecting   four   discs,   with   kyphotic   deformity,  and            significant osteophytic formation  at two of the  discs.1  In                                            ____________________            1.  Kyphosis is defined as "abnormally increased convexity in            the  curvature of the thoracic spine as viewed from the side;            hunchback."   Dorland's  Illustrated Medical  Dictionary  705                          __________________________________________            (26th  ed.  1985).     Osteophyte  is  defined  as   "a  bony            excrescence or osseous outgrowth."  Id. at 943.                                                ___                                          2            plaintiff's first two office visits, Dr. Kanner also observed            decreased sensitivity in plaintiff's hands and paresthesia in            all fingers.2 (T.199, 200).   Plaintiff's range of motion was            initially  restricted in  all planes by  50 percent,  she was            unable to do  any lifting or bending,  and unable to  use her            hands  at  great length.  (T.195-96,  199-200).   Dr.  Kanner            recommended cervical traction  and exercise therapy.  (T.199-            200).  Later he  also recommended a soft cervical  collar and            lower back support. (T.226-27).                        Within  a few  months  of starting  treatment,  Dr.            Kanner noted  that plaintiff's  neck  condition was  "greatly            improved."  (T.199).  By February, 1990, he recorded that her            upper  extremity  symptoms had  "completely  resolved," there            were  no radicular  symptoms in  her lower  back, only  "mild            restricted motion, but  otherwise no neurological deficit  or            spasm." (T.226).  Her disc spaces were well maintained.                        Nevertheless, Dr. Kanner simultaneously reported on            a   Welfare  Department  form  that  plaintiff  was  "totally            disabled," and predicted that  her disability would last from            10  to 12 months.  (T.224).  On  three earlier  forms, he had            predicted shorter  durations of  3 months,  4-6 months  and 2            months respectively.  (T.190, 193, 196).   During the shorter            time periods,  he said  that plaintiff would  have difficulty                                            ____________________            2.  Paresthesia is defined as an "abnormal sensation, such as            burning,  prickling, formication,  etc."   The Sloane-Dorland                                                       __________________            Annotated Medical-Legal Dictionary 533 (1987).            __________________________________                                          3            with prolonged standing,  walking, sitting, bending or  heavy            lifting.  (T.190, 193, 196).  On the last form (10-12 months)            no functional limits were noted.3                        In  December,  1989,   a  consultative   orthopedic            surgeon, Dr.  Silver, concurred in Dr.  Kanner's diagnoses of            significant degenerative disc disease,  osteophyte formation,            and   "moderate  kyphosis   which   can   only  be   measured            radiologically."   (T.202).    He   observed,  however,  that            plaintiff  walked  with  a  normal  gait,  maintained  normal            posture,  and  got on  and  off the  examining  table without            hesitation. (T.201).  The range of motion for her lumbosacral            spine was sufficient to enable her to reach within an inch of            the floor with her knees straight.  As to the cervical spine,            she was  able to touch her chin to her chest and rotate forty            five degrees to the right and left.  There was "no tenderness            throughout the  spinous process  of the cervical  spine," and            "no pain on palpation to the shoulder  musculature," no spasm            or  neurological deficit,  and no  indication of  weakness of            grasp.  (T.202-03).    Dr.  Silver  opined  that  plaintiff's            kyphosis was the main cause of her difficulties. (T.203).                                            ____________________            3.  In answer to a written question from appellant's attorney            in  May,  1990,  Dr.  Kanner  checked  "no"  when  asked "has            [appellant] achieved  pain relief to  such a degree  that you            would no longer  judge her to have  difficulty with prolonged            [activities]  as  you had  in your  [earlier] reports  to the            Welfare Department?" (T.205)  He did not further  explain his            answer,  however, despite  a request  for an  explanation (T.            205).                                          4                      There  were also three residual functional capacity            assessments  ("RFCs")  by  State  agency  doctors   based  on            plaintiff's medical records.   All three found that plaintiff            had  a residual  functional  capacity to  frequently lift  or            carry  up to 25 pounds, and to sit,  stand and walk for up to            six hours  a day with  normal breaks. (T.79-80,  139-46, 165-            72).   The facts  detailed by two  of the  agency doctors  in            support  of  their  assessments  include  the  medical  signs            recited   by  the  two   examining  orthopedists   that  seem            inconsistent with  a high  degree of pain,  i.e., plaintiff's            normal  gait,  the  absence  of muscle  spasm,  radicular  or            neurological  deficits, and  a  mild limitation  on range  of            motion.                        After a  hearing at  which plaintiff  testified at            length about her pain, the ALJ found plaintiff "not disabled"            at  step four of the  regulatory sequential analysis, in that            she was able to return  to her past relevant work as  a house            cleaner.  See 20 C.F.R.   404.1520.                        ___                      There   seems   little  question   that   there  is            substantial  evidence  in the  record  to  support the  ALJ's            decision.  Plaintiff's claim  to  a  disability of  statutory            severity  was  based  on  impairments which,  by  definition,            include a  degree of pain.   The question  before the  ALJ at            step  four  was  whether  plaintiff's pain  was  so  intense,            persistent or  functionally limiting  as to prevent  her from                                          5            returning  to  her   past  relevant  work.     20  C.F.R.                404.1529(b).   Both  examining orthopedists  reported medical            signs  and symptoms  inconsistent  with the  unremitting pain            which plaintiff alleged.  In conformance with the regulations            and caselaw,  the ALJ considered detailed  testimony from the            plaintiff and her son about her symptoms, her  intolerance of            pain medication, her home  traction and exercise regimen, her            other daily  activities,  and the  extent to  which her  pain            allegedly  impeded her  functioning.   Avery v.  Secretary of                                                   _____     ____________            HHS,   797  F.2d  19,  23  (1st  Cir.  1986);  20  C.F.R.                ___            404.1529(c),  416.929(c) (1991).  Although the ALJ's findings            are more abbreviated than  we might prefer, it is  clear that            he found plaintiff's testimony about the limiting severity of            her pain  not credible,  inconsistent with the  medical signs            reported, and inconsistent with the daily activities and work            history which  she described.   In these  circumstances, "the            credibility  determination  by  the  ALJ,  who  observed  the            claimant, evaluated [her]  demeanor, and considered  how that            testimony fit in with  the rest of the evidence,  is entitled            to  deference . .  . "   Frustaglia v. Secretary  of HHS, 829                                     __________    _________________            F.2d 192, 195 (1st Cir. 1987).                        Plaintiff  bore  the  burden  of proving  that  her            impairments prevented her from  performing her former type of            work.   Gray v. Heckler, 760  F.2d 369, 371  (1st Cir. 1985);                    ____    _______            see also Dudley  v. Secretary of HHS, 816 F.2d  792, 795 (1st            ________ ______     ________________                                          6            Cir.   1987)   (plaintiff's  burden   includes   proving  the            particular demands of her past work that she cannot perform).            She  described her  work  as requiring  frequent bending  and            reaching,  and the  lifting of 10  to 20  pounds,4 capacities            which the  nontreating doctors  concluded that she  retained.            Although plaintiff produced three  reports from Dr. Kanner to            the Welfare Department stating that her functional capacities            were  then more limited,  each report predicted  a very short            disability period, together totalling less than the statutory            minimum  for  disability.   See 42  U.S.C.    423(d)(1)(A) (a                                        ___            qualifying impairment is one which "can be expected to result            in death or which has lasted or can be expected to last for a            continuous period of not less than 12 months").  Dr. Kanner's            fourth report  carried the  prediction of  "total disability"            into the statutory period, but did not specify any functional            limitation.   Viewed as a mixed  legal-medical conclusion, it            was  not  binding on  the ALJ.    20 C.F.R.    404.1527(d)(2)            (1991).                       Plaintiff  argues, however,  that the  ALJ  and the            district  court erred  in applying  the recently  promulgated            regulation relating to the weight  to be assigned to treating                                            ____________________            4.  Plaintiff    gave    several    somewhat    contradictory            descriptions of the demands of her past work (T.84, 98, 131).            The ALJ was entitled to rely on the description he found most            credible.  See  Santiago v. Secretary  of HHS, 944 F.2d  1, 5                       ___  ________    _________________            (1st  Cir. 1991) (ALJ is  entitled to rely  on claimant's own            description).                                              7            doctor reports, 20 C.F.R.  S 404.1527 (1991).5   She contends            that  the  regulation  required   that  the  ALJ  assign  (1)            "controlling weight"  to Dr. Kanner's  evaluation, and/or (2)            "substantially greater  weight" to his opinion  than to those            of the  non-treating physicians.   A  part of  the regulation            provides:                  Generally we give more weight to opinions from your                 treating sources ....   If we find  that a treating                 source's opinion on the  issue(s) of the nature and                 severity of your impairments  is well supported  by                 medically   acceptable   clinical  and   laboratory                 diagnostic techniques and is not  inconsistent with                 other substantial evidence in your case record,  we                 will give  it controlling weight.   When we  do not                 give ... controlling  weight, we will  apply [other                 factors] in  determining [its] weight ...   We will                 always give  good reasons  in our ...  decision for                 the weight we give your treating source's opinion.            20 C.F.R.   404.1527(d)(2).   While the  district court seems            to  have overlooked this regulation, we do not think a remand            is required.                        Controlling weight  may be  accorded to  a treating            doctor's  opinion  as to  the  "nature" and  "severity"  of a            claimant's impairments where, among other qualifications, the            opinion  is "not inconsistent"  with substantial  evidence in            the case.  By this measure, Dr. Kanner's diagnosis, confirmed            by the consulting orthopedist and accepted by  the three non-            examining doctors,  qualified for "controlling weight."    We                                            ____________________            5.  The Secretary  has not  objected to the  applicability of            this regulation,  which became final shortly  after the ALJ's            decision was issued.                                          8            find  no fault with the decisions  below on this score.  Both            the  ALJ and  the  district court  accepted  as a  given  Dr.            Kanner's diagnosis of plaintiff's condition.                      On the  other hand, Dr. Kanner's opinion  as to the            "severity"   of   claimant's   impairments   is   not  easily            characterized,  making inexact  any  attempt  at bottom  line            contrasts with the other doctors' opinions.  While Dr. Kanner            three times reported to the Welfare Department that appellant            was  unable  to  engage  in  prolonged  bending,  sitting  or            standing,  on each  occasion he  indicated that  the expected            duration  of  appellant's disability  would  be quite  short,            suggesting  only an  episodic  impairment.   During the  same            period, moreover,  his office  notes indicate  that appellant            was  showing marked  improvement, some  of her  symptoms were            "completely  resolved,"  and  she  had  achieved  significant            relief  through  a  regimen  of home  traction  and  exercise            therapy.    His  fourth  report,  extending  the   conclusion            "totally  disabled"  for  another 10  to  12  months,  is not            explained.                      Appellant's line of argument presumably  would have            us disregard the time  limits and internal inconsistencies in            Dr.  Kanner's  reports  and  interpret   his  statement  that            appellant was "totally disabled" as a shorthand expression of            his medical opinion that appellant's impairments were of such                                          9            "severity"   as  to  cause  lasting  functional  incapacity.6            Appellant points  to  the doctor's  recommended treatment  as            further   proof  that   his   actual  opinion   supports  her            interpretation.  Even so, however, Dr. Kanner's opinion would            not  automatically qualify  for "controlling  weight" because            the consulting physician and  the three non-examining doctors            reached a divergent result.  When a treating doctor's opinion            is  inconsistent  with  other  substantial  evidence  in  the            record, the  requirement  of "controlling  weight"  does  not            apply.  All things being equal,  however, a treating doctor's            report  may   be  entitled   to  "greater"  weight   than  an            inconsistent non-treating source.7                      We do not agree, however, that the ALJ was required            to construe Dr. Kanner's time limited welfare form statements            in  the   manner  most   advantageous  to  appellant.     The            regulations do not require a particular view of the evidence,            but leave  ambiguities and  inconsistencies to be  sifted and                                            ____________________            6.  The decision whether a  claimant is "disabled" within the            meaning of the statute and regulations is reserved solely for            the  Secretary.  20 C.F.R.   404.1526(e).  To the extent that            Dr.  Kanner's opinion is urged as reflecting an answer to the            statutory question, it was not binding on the ALJ.  20 C.F.R.              404.1526(e)(1); see supra text at 7.                                    ___ _____            7.  The Secretary's comments accompanying promulgation of the            final regulation observe that  if a treating and non-treating            source  conflict,  and the  two  opinions  are equally  well-            supported, the  Secretary will  give "greater weight"  to the            treating source  opinion, at least where  the treating doctor            is  shown to have superior familiarity with the patient and a            variety  of  other qualifications  are  met.    20 Fed.  Reg.            36,951.                                            10            weighed  by the  ALJ, who  may, as  here, use  a consultative            examination  to  help resolve  uncertainties.    20 C.F.R.               404.1527(c)(3)(4).    The  ALJ  must  evaluate  all   medical            opinions from all sources in light of a non-exclusive list of            possibly  relevant   factors.    20  C.F.R.      404.1527(f),            416.927(f).  While generic deference is reserved for treating            source  opinions,  the   regulations  also  presuppose   that            nontreating,  nonexamining  sources  may   override  treating            doctor opinions,  provided there is support for the result in            the record.  See  Standards for Consultative Examinations and                         ___            Existing Medical  Evidence; Final Rule, 56  Fed. Reg. 36,931,            36,936 (1991); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.                           ________    ________            1993)  (observing that  the  new regulation  differs in  this            regard from  the Second Circuit's former  rule, and affirming            the Secretary's authority to promulgate the new regulation).                        Appellant  would have us  reweigh the  evidence in            light  of   the  multitude  of  factors   identified  in  the            regulations.  Our standard  of review on appeal, however,  is            whether   the   Secretary's   findings   are   supported   by            "substantial evidence."  Although the record may support more            than  one conclusion,  we  must uphold  the  Secretary "if  a            reasonable mind, reviewing  the evidence in  the record as  a            whole,   could  accept   it  as   adequate  to   support  his            conclusion."   Ortiz v. Secretary  of HHS, 955  F.2d 765, 769                           _____    _________________            (1st  Cir. 1991) (quoting Rodriguez  v. Secretary of HHS, 647                                      _________     ________________                                          11            F.2d  218,  222  (1st Cir.  1981));  see  also Richardson  v.                                                 _________ __________            Perales,  402 U.S. 389, 401 (1971).  Resolutions of conflicts            _______            in the evidence and credibility issues are for the Secretary,            not  the  courts.   Ortiz, 955  F.2d  at 769;  Evangelista v.                                _____                      ___________            Secretary of HHS, 826 F.2d 136,  141 (1st Cir. 1987).   Where            ________________            the  facts  permit diverse  inferences,  we  will affirm  the            Secretary  even if we might  have reached a different result.            Rodriguez Pagan v. Secretary  of HHS, 819 F.2d 1, 3 (1st Cir.            _______________    _________________            1987),  cert.  denied,  484  U.S.  1012  (1988);  Lizotte  v.                    _____________                             _______            Secretary of HHS, 654 F.2d 127, 128 (1st Cir. 1981).               ________________                      As we  have  said, on  the  one hand  Dr.  Kanner's            reports might be  fairly viewed as consistent  with the other            medical  evidence  in  reflecting  only  episodic  functional            limitations.   On  the other  hand, they  might be  viewed as            internally inconsistent or inconsistent  with the record as a            whole, factors which weigh  against excessive reliance on the            treating    doctor's     opinion.         20     C.F.R.                  404.1527(d)(ii)(3)(4).    The ALJ  was  required to  consider            these  ambiguities in  light of  the other  medical evidence,            plaintiff's testimony about her  pain, and his own assessment            of plaintiff's  credibility.  20 C.F.R.    404.1529(c)(1) (in            evaluating  intensity  and   persistence  of  pain,   medical            opinions are to be considered in light of factors stated in              404.1527).  We hold only that the ALJ's reconciliation of the            evidence as  revealing an impairment "severe"  enough to pass                                          12            muster at  step two of the  process, but not so  severe as to            prevent  plaintiff  from  returning  to  her  past  work,  is            supported by substantial evidence in the record.                       We  also  find   appellant's  remaining   arguments            wanting.  We agree with the district court that while the ALJ            did not expressly cite the agency doctors' reports  (only the            agency findings) he implicitly took them into account.  While            we  would  prefer  more   explanatory  detail,  and  the  new            regulation contemplates  greater detail, we see  no reason to            return this case for  the purely formulaic purpose  of having            the ALJ write out what seems plain on a review of the record.                      We also  reject appellant's  argument that  the ALJ            erred by failing to obtain  more information from Dr. Kanner.            Where the evidence is  inconsistent or insufficient to enable            the ALJ  make  a  decision, the  ALJ  may  recontact  medical            sources,  request that  the  claimant undergo  a consultative            examination or produce additional  information.  20 C.F.R.               1519p,  1527(c)(3).    There was  a  consultative examination            here,  and the ALJ  apparently did not see  the need for more            evidence from Dr. Kanner.  Appellant, too, had an obligation.            She was required to produce all information supportive of her            claim.  20 C.F.R.   404.1512(a).  She was well represented by            a paralegal  under the  supervision of an  attorney, afforded            ample  opportunity to present her  case, and did not indicate                                          13            any  desire  to offer  further evidence.  (T.72).   After the            ALJ's  decision, she  was afforded  a further  opportunity to            present  additional or  clarifying  evidence to  the  appeals            council,  but  chose  not  to.  (T.73,  232).    Under  these            circumstances, we  see no prejudice  in the ALJ's  failure to            recontact the doctors.                      Accordingly, the judgment below is affirmed.                                                         ________                                          14
