Ormon v. Astrue

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 11-2107

WILLIAM E. ORMON,

Plaintiff, Appellant,

v.

MICHAEL J. ASTRUE,
Commissioner, Social Security Administration,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Torruella, Boudin and Lipez,
Circuit Judges.

Ronald B. Eskin on brief for appellant.
Anita Johnson, Assistant U.S. Attorney, and Carmen M. Ortiz,
United States Attorney, on brief for appellee.

September 7, 2012
 Per Curiam. Claimant William E. Ormon appeals from the

denial of Social Security disability benefits and raises two

issues: (1) whether the administrative law judge (ALJ) had

reopened the time period covered by claimant’s first application

for benefits; and (2) whether substantial evidence supports the

ALJ’s determination that because claimant could perform his past

work, he was not disabled. As for the first issue, we agree with

the district court, essentially for the reasons given by that

court, that claimant's first application had not been reopened.

Ormon v. Astrue, 793 F. Supp. 2d 465, 471-72 (D. Mass. 2011). The

relevant time period under consideration, then, runs from February

8, 2006, the day after the denial of the first application, to

September 30, 2008, the date claimant's insured status expired.

Whether claimant was disabled during this period, however, is

complicated, and we think that a remand is required.

I. Background

Claimant was in an automobile accident in January 2004,

and eventually a spinal MRI showed the displacement of the S1 nerve

root as the result of a moderate to large disc extrusion at the L5-

S1 vertebrae. Transcript, at 345-46. Although claimant underwent

spinal fusion in September 2005, his back pain continued. In

particular, Dr. Bruce Cook, claimant’s surgeon, noted in January

2006 that claimant's ability to bend forward was limited to 60 or

70 degrees. Id. at 372. Then, when a June 2006 MRI revealed no

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evidence of a residual or recurrent disc herniation, Dr. Cook

referred claimant to a pain medicine specialist for a facet block

injection. Id. at 364, 369.

This physician, Dr. Gopala Dwarakanath, examined claimant

in July 2006 and reported that claimant could walk the length of a

corridor “briskly without any difficulty” and that straight leg

raising was negative; however, it was observed that extension was

positive bilaterally and that there was positive "facet loading" at

L4-L5 and L5-S1 (the term "facet loading" was not explained). Id.

at 367-68. Dr. Dwarakanath’s impression was that claimant’s

symptoms likely were arising from the facets, rather than from the

joints, and he scheduled a facet block injection. Id. Claimant

then sought a second opinion from Dr. Eugenio Martinez, a physician

at New England Baptist Hospital.

Dr. Martinez, who also saw claimant in July 2006,

reported marked straightening of the normal lumbar lordosis of

claimant’s spine and noted that the range of motion of claimant’s

spine was limited in all directions – i.e., forward flexion was 75

degrees, extension was 15 degrees, bilateral side flexion was 15

degrees, and bilateral straight leg raising was limited to 75

degrees.1 Id. at 676. Nonetheless, claimant's muscle strength was

5/5, and there was no obvious atrophy. Id. Dr. Martinez then

1
Flexion is the forward bending of the spine, and extension is
the straightening of the spine. 2 J. E. Schmidt, M.D., Attorneys'
Dictionary of Medicine, at F-113, E-251 (2011).

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explained that "it can be difficult if not impossible to determine

the specific cause of pain in these situations" and noted, without

explanation, that "[t]he presence of medical-legal involvement, as

well as current, pending application for Social Security Disability

could be considered negative prognostic indicators, according to

the literature." Id. at 677. Dr. Martinez recommended aggressive

physical therapy. Id.

Claimant eventually began treatment with Dr. Edgar Ross

at the Pain Management Center at Brigham & Women's Hospital. On

claimant's initial exam, which occurred in early August 2006,

Claimant’s neurological functioning was intact to sensation,

overall strength was 4/5 or 5/5, and straight leg raising was

negative. Id. at 527, 529. However, claimant’s range of motion in

his lumbar spine was limited in all directions – i.e., 70 degrees

flexion, 10 degrees extension, and 20 degrees side to side flexion

bilaterally. Id. at 529. A bone scan performed in late August was

normal. Id. at 525.

In October 2006, claimant consulted with Dr. Troy

Schmidt, an orthopedic surgeon at Brigham & Women's Hospital. At

this time, as at others, claimant’s motor strength was 5/5, and

sitting straight leg raising was negative. Id. at 578. Flat

straight leg raising, however, was positive bilaterally, with

elevation limited to 30 degrees; again, claimant’s range of motion

in his spine also was limited – i.e., claimant could forward flex

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only to the point where his fingers came to the level of his knees,

he could not extend at all, and sideways bending was limited to 10

degrees bilaterally. Id. Dr. Schmidt also noted, without

explanation, that claimant had a “positive Waddell sign including

cervical compression, which seems to exacerbate his low back

symptoms.” Id. Dr. Schmidt diagnosed painful spine, status post

lumbar spine fusion, and opined that claimant might benefit from

“revision fusion to his lumbar back given his radiographic findings

of a possible lucency around the screws”; such lucency, according

to Dr. Schmidt, was suspicious for a possibly incomplete fusion.

Id.

The rest of claimant’s treatment can be described

briefly. Upon the recommendation of Dr. Ross, claimant received

three lumbar facet joint injections in 2006, two in 2007, and two

in 2008. Id. at 580, 630, 643, 627, 706, 745, 741. During this

time, claimant considered having either a revision of the spinal

fusion or the removal of the hardware in his spine, but there is no

record of such procedures having occurred. Id. at 633, 698, 715.

Last, an MRI of claimant’s spine in December 2008 showed the

development of a central shallow protrusion at L4-L5, and, in

February 2009, EMG testing essentially was normal. Id. at 729,

734-35.

Dr. Ross also completed two RFC assessments. In August

2006, he opined that claimant was disabled due to low back pain and

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that this condition was chronic with no improvement expected. Id.

at 608. As for claimant’s physical abilities, Dr. Ross reported

that claimant (1) could stand and walk for a maximum of one hour

each, (2) could sit for 30 to 60 minutes at a time, (3) could not

lift or carry more than 10 pounds, and (4) could not stoop or bend.

Id. at 611. Last, in April 2009 (about seven months after the

expiration of claimant’s insured status), Dr. Ross stated that

claimant could sit for only one hour, could not lift more than five

pounds, and was unable to bend or stoop; as a result, Dr. Ross

concluded, claimant was “functionally and completely disabled.”

Id. at 753.

A nonexamining physician, Dr. M. A. Gopal, completed an

RFC assessment in March 2007. Id. at 616-23. In this report, Dr.

Gopal opined that, in an eight-hour workday, claimant was capable

of sitting for six hours at a time, standing and/or walking for six

hours, and frequently lifting and/or carrying 10 pounds. Id. at

617. Claimant also was rated as being able to occasionally stoop,

kneel, crouch, and crawl. Id. at 618.

II. Discussion

The ALJ concluded, based on Dr. Gopal’s RFC assessment,

that claimant was capable of engaging in light work and thus could

perform his prior job as a cashier. Id. at 58-59. In so

concluding, the ALJ also rejected the opinions of Dr. Ross and

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found claimant’s complaints of disabling symptoms not credible. We

find the ALJ’s reasoning flawed in all three respects.

A. Dr. Gopal

As the Commissioner correctly points out, an ALJ may

reach the conclusion that a claimant can perform a particular level

of work, even though such conclusion is based solely on the opinion

of a non-examining physician. See Berrios Lopez v. Secretary of

Health and Human Services, 951 F.2d 427, 431 (1st Cir. 1991) (per

curiam). Of course, such evidence must be “substantial,” and,

under the regulations, the weight given to a nonexamining opinion

“will depend on the degree to which [it] provide[s] supporting

explanations.” 20 C.F.R. § 404.1527(d)(3). Here, the explanation

given by Dr. Gopal is lacking.

In this respect, Dr. Gopal gave four reasons for his RFC

assessment: (1) claimant had no sensory or motor deficits, (2)

straight leg raising was positive bilaterally; (3) claimant had

painful and decreased range of motion in his back; and (4) despite

spinal fusion, claimant still had back pain. Transcript at 617.

Dr. Gopal also opined that "[a]llegations are credible," and we

assume that this refers to claimant’s allegations. Id.

The difficulty is that only one of these observations can

be said to provide an explanation for Dr. Gopal’s RFC assessment --

i.e., that claimant had no sensory or motor problems -- and this

conclusory statement, standing alone, is hardly sufficient. See

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Berrios Lopez, 951 F.2d at 431 (where reports from nonexamining

sources “contain little more than brief conclusory statements . .

[such reports] are entitled to relatively little weight”). The

other three reasons, in contrast, represent deficits in claimant's

functioning and, as such, simply say nothing about claimant's

ability to perform the demands of light work. Moreover, since Dr.

Gopal apparently credited claimant’s allegations of disabling pain,

his conclusion that claimant nonetheless could work is internally

inconsistent.

Given the foregoing, such assessment cannot provide

substantial support for the ALJ’s conclusion that claimant is

capable of performing light work. Moreover, since this is not a

case involving a claimant with “relatively little physical

impairment,” the ALJ could not make an RFC assessment based on the

bare medical record. Manso-Pizarro v. Secretary of Health and

Human Services, 76 F.3d 15, 17 (1st Cir. 1996) (per curiam).

Although a remand, on this ground alone, is required, we go on to

discuss, so that matters will be clear on remand, the ALJ’s

treatment of Dr. Ross’s opinion and of claimant’s subjective

complaints of disabling pain.

B. Dr. Ross

As explained in the relevant regulation, a treating

source's opinion on the question of the severity of an impairment

will be given controlling weight so long as it "is well-supported

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by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2). Here, the

ALJ gave three reasons for rejecting Dr. Ross's RFC assessment: (1)

Dr. Ross had not described any objective clinical signs to support

his RFC assessment and instead had relied solely on claimant’s

subjective complaints; (2) Dr. Ross’s opinions were inconsistent

with the other significant evidence in the record -- i.e., (a)

claimant had been consistently described as having normal motor

strength and sensation, stable gait, no muscle atrophy, and

negative straight leg raising, and (b) MRI and other tests showed

no significant abnormalities; and (3) Dr. Ross had not accounted

for what the ALJ believed was evidence that claimant was

malingering. Transcript, at 61.

The first problem with the ALJ's decision is that,

although he is correct that claimant consistently had been

described as having normal strength and sensation, stable gait, and

a lack of muscle atrophy, his straight leg raising was negative

only half of the time. Moreover, Dr. Ross, like the other doctors

who examined claimant, noted a limited range of motion in

claimant’s spine. Like gait and straight leg raising, which the

ALJ plainly viewed as "objective" medical evidence, we assume that

a limited range of motion also qualifies as such evidence.

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 Further, claimant’s physicians had identified two

possible physical causes for his pain: (1) problems with the

facets in his lumbar spine; and/or (2) an incomplete spinal fusion.

The second possible cause, in turn, was supported by “radiographic”

findings. Finally, there is no evidence in the record indicating

that either of these two possible causes have yet been ruled out.

Thus, the record is not devoid of objective medical findings

supporting Dr. Ross’s RFC assessment nor did Dr. Ross rely solely

on claimant’s subjective complaints.

The second difficulty concerns the ALJ’s determination

that Dr. Ross’s RFC assessment was inconsistent with the record

evidence. In this respect, Dr. Ross plainly was aware of the

evidence that allegedly is inconsistent with the limits he placed

on claimant’s functioning; after all, Dr. Ross himself had made

some of the findings to which the ALJ cited – negative straight leg

raising, normal strength, and intact neurological functioning – and

the record shows that Dr. Ross had received the essentially normal

test results cited by the ALJ. Given this, it is plain that,

despite these findings and test results, Dr. Ross believed that

claimant’s back condition was real and placed real limitations on

claimant’s ability to function. As a result, we think that, in a

case involving complex back pain, such inconsistencies, standing

alone, are not a sufficient basis upon which to reject a treating

physician’s opinion. In any event, the primary evidence

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inconsistent with Dr. Ross’s RFC assessment is the assessment of

Dr. Gopal, and, as explained supra, this opinion is not well-

explained and thus cannot be said to constitute substantial

inconsistent evidence.

Last, The ALJ's decision to reject Dr. Ross's opinion

because he had neglected to address the evidence of malingering

post-surgery is similarly flawed. As evidence that claimant was

faking it, the ALJ relied on the comments made by Dr. Dwarakanath,

Dr. Martinez, and Dr. Schmidt. Transcript, at 60-61. The

difficulty is that none of these physicians ever indicated that

they believed that claimant was malingering or exaggerating his

pain.

As for Dr. Dwarakanath, he made no comment regarding his

observation that claimant could walk briskly down a corridor, much

less a suggestion that such an ability rendered claimant's

complaints of pain less credible. Similarly, Dr. Martinez, in

stating that the literature indicates that medical-legal

involvement "could" be a negative prognostic indicator, did not

specifically say that, in claimant's case, such involvement was

such an indicator; rather, Dr. Martinez seemed to be making an

observation about recovery in the general population and mentioning

such a prognosis as a possibility to keep in mind in claimant’s

case. Moreover, that both doctors did not believe that claimant

was faking his back pain is clear as Dr. Dwarakanath scheduled a

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facet block injection, and Dr. Martinez recommended physical

therapy. See Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.

2004) (observing that it was improbable that claimant’s physicians

would have prescribed drugs and other treatment for her if they had

believed that she was faking her pain and noting that “[s]uch an

inference would amount to an accusation that the medical workers

who treated [the claimant] were behaving unprofessionally”).

This leaves Dr. Schmidt's unexplained statement that his

examination had revealed a “positive Waddell sign.” Waddell signs

are behavioral responses to physical examination that indicate the

presence of nonorganic – e.g., psychological, social or behavioral

– involvement in lower back pain, and such signs “are not on their

own a test of credibility or faking.” Chris J. Main & Gordon

Waddell, Behavioral Responses to Examination: A Reappraisal of the

Interpretation of "Nonorganic Signs", 23 Spine 2367 (November

1998), reproduced in the Appendix, at 763-67. As the authors of

the above article explain, since Waddell signs occur in patients

who also have clear organic findings, isolated signs should not be

considered clinically significant. Id. at 763. Indeed, the

authors specifically state that “[i]t is safer to assume that all

patients complaining of back pain have a physical source of pain in

their back[s].” Id. (emphasis added). Given the foregoing, then,

and given that Dr. Schmidt did not offer any interpretation of the

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Waddell sign that he had observed, we can see nothing to support a

finding that he believed that claimant was malingering.

C. Claimant's Subjective Complaints

The ALJ found that, although claimant's back condition

could be expected to produce pain, the intensity, persistence, and

limiting effects of the pain were not credible to the extent

alleged. Transcript, at 59. As support for this finding, the ALJ

relied on the same reasons that he had used in rejecting Dr. Ross's

RFC assessment: (1) the lack of objective medical findings to

account for such pain; and (2) the evidence that claimant was

malingering. Id. at 59-60. Neither of the reasons, however,

provides a sufficient basis upon which to discredit claimant's

complaints.

As just discussed, no doctor determined that claimant was

malingering, and the ALJ, as a lay person, was not qualified to

make such a determination on his own in the circumstances of this

case. See Manso-Pizarro, 76 F.3d at 17. Further, that claimant's

pain may have a psychological component does not make the pain any

less real. "Medical science confirms that pain can be severe and

disabling even in the absence of 'objective' medical findings, that

is, test results that demonstrate a physical condition that

normally causes pain of the severity claimed by the applicant.”

Carradine, 360 F.3d at 753 (citations omitted). Carradine is on

point.

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 In that case, the claimant applied for disability

benefits after injuring her back, and her diagnoses included

degenerative disc disease, scoliosis, depression, and psychosomatic

illness. The ALJ, as here, discredited the claimant's allegations

concerning the severity of her pain on the ground, in part, that

psychological testing had shown that she was exaggerating the pain.

The Seventh Circuit held that the ALJ's reasoning in this regard

was flawed.

First, the court explained that “[t]he question whether

the [subjective] experience [of pain] is more acute because of a

psychiatric condition is different from the question whether the

applicant is pretending to experience pain, or more pain than she

actually feels. The pain is genuine in the first, the psychiatric

case, though fabricated in the second." Id. at 754. Second, the

court emphasized that the claimant’s extensive treatment history

was inconsistent with a finding that she was exaggerating her pain:

What is significant is the
improbability that [the claimant]
would have undergone the
pain-treatment procedures that she
did, which included not only heavy
doses of strong drugs . . . but also
the surgical implantation in her
spine of a catheter and a
spinal-cord stimulator, merely in
order to strengthen the credibility
of her complaints of pain and so
increase her chances of obtaining
disability benefits; likewise the
improbability that she is a good
enough actress to fool a host of

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 doctors . . . into thinking she
suffers extreme pain.

Id. at 755 (citation omitted). Here, too, claimant sought

treatment from many doctors, underwent back surgery and spinal

injections, and was on pain drugs, some of which made him feel like

a “zombie.” Transcript, at 675. Similarly, and while not out of

the question, we too think that it is improbable that claimant

would have had an easy time fooling the various doctors who treated

him, especially Dr. Ross, a pain medicine specialist.

Last, although the ALJ did not mention the extent of

claimant’s daily activities in discrediting his complaints of

disabling pain, the Commissioner argues on appeal that these

activities support the ALJ’s decision in this regard. As the

Commissioner notes, claimant reported, in June 2007, that he goes

grocery shopping, does laundry and the dishes, and takes out light

trash.2 Id. at 200-07. However, claimant clarified that due to

his back pain, he needs help bending when doing the laundry and the

dishes, and he cannot handle heavy trash or yard work. Id. In any

event, and as the court observed in Carradine, there is a

“difference between a person's being able to engage in sporadic

physical activities and her being able to work eight hours a day

five consecutive days of the week.” 360 F.3d at 755.

2
The Commissioner also relies on claimant’s testimony at the
hearing that he drives his daughter to and from school and that
this takes a total of about four and a half hours per day. Id. at
24-27. It is clear, however, that such driving occurred in 2009,
which is after clamant’s insured status had expired. Id.

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 We therefore vacate the district court's judgment and

direct that court to remand the matter for further proceedings

consistent with this opinion. No costs are awarded.

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