Nadeau v . SSA CV-07-203-PB 04/02/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bryan B . Nadeau

v. Case N o . 07-cv-203-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Robert Nadeau moves to reverse the Commissioner of Social

Security’s determination that he is not eligible for disability

insurance benefits (“DIB”). Nadeau argues that the

Administrative Law Judge (“ALJ”) erred at steps two and four of

the five-step evaluation process set forth in

. For the reasons set forth below, I conclude that

reversal is not justified.

I. BACKGROUND1

A. Administrative Proceedings and Nadeau’s Prior Work History

Nadeau filed an application for disability insurance

1 The background information is drawn from the Joint Statement of Material Facts (Doc. N o . 10) submitted by the parties. Citations to the Administrative Record Transcript are indicated by “Tr.” benefits (“DIB”) on February 3 , 2004, alleging disabilities based

on fibromyalgia and depression beginning October 2 , 2001. T r . at

59-62. After Nadeau’s claim was denied, he timely requested a

hearing, which was held before Administrative Law Judge (“ALJ”)

James J. D’Alessandro on August 1 6 , 2006. At the hearing, Nadeau

was represented by counsel and testified on his own behalf. Tr.

at 514-35. On December 2 8 , 2006, the ALJ denied Nadeau’s claim.

Subsequently, the Appeals Council denied Nadeau’s request for

review, making the ALJ’s decision the final decision of the

Commissioner. T r . at 7-10.

B. Nadeau’s Physical Impairments

I describe Nadeau’s physical impairments only briefly

because the Commissioner agrees that Nadeau was indeed suffering

from fibromyalgia. The administrative transcript contains

records of diagnoses by various doctors of Nadeau’s physical

impairments from 2001 to 2004. Throughout this period, D r . Gary

M . Shapiro treated Nadeau for chronic pain, but he remained

uncertain as to the root cause of the pain. T r . at 107-08, 1 3 4 ,

138, 183, 236, 255. D r . Richard Levy diagnosed Nadeau as

suffering from fibromyalgia. T r . at 169-70. D r . Greg Rothman

attributed Nadeau’s weakness to low blood pressure. T r . at 179-

-2- 80. D r . Theodore Ruel concluded that there were no apparent

neurological underpinnings to his pain. T r . at 181-82. D r . Clay

Block evaluated Nadeau for possible hypokalemia (low potassium

concentration in the blood) and found that, although Nadeau’s

symptoms were disabling, it was not clear that hypokalemia was

the cause. T r . at 147-51. D r . Bryan Stone ruled out the

possibility that Nadeau’s symptoms were due to an allergic

reaction. T r . at 225.

C. Nadeau’s Mental Impairments

The administrative transcript contains records of D r . Thomas

Stearns’s diagnoses of Nadeau’s mental impairments from 1999 to

2006. In a consultation note dated September 3 0 , 1999, D r .

Stearns diagnosed Nadeau with dysthymia, but noted a prior

diagnosis of major depression by another doctor. T r . at 480. In

subsequent consultation notes from September 1 2 , 2000, to October

1 7 , 2001, D r . Stearns often noted “an element of” or

“undercurrent” of depression, but also noted periods in which

Nadeau was “a little bit more upbeat and mobilized.” T r . at 1 2 4 ,

128, 1 3 1 , 135, 492. In these consultation notes, D r . Stearns

drew no conclusions regarding how these elements or undercurrents

of depression may have affected Nadeau’s ability to work.

-3- Dr. Stearns performed a psychological assessment of Nadeau

in December 2004, six months after his date last insured, which

Dr. Stearns memorialized in a letter the following October. Tr.

at 312-13, 385-86. In the letter, D r . Stearns noted that

although the assessment was not a “comprehensive psychological

evaluation,” Nadeau’s Minnesota Multiphasic Personality Inventory

(“MMPI”) responses were consistent with a somatoform disorder,

and he has “at least episodically experienced depression for some

time.” T r . at 386.

In a medical source statement dated August 1 4 , 2006, D r .

Stearns opined that Nadeau’s psychological state either markedly

limited or effectively precluded his ability to attend and

concentrate, perform activities within a schedule, and complete a

normal workday/week without interruption. T r . at 387-88. This

is the first point in the record at which D r . Stearns linked

Nadeau’s psychological state to a significant degree of

limitation in his work activities.

The administrative transcript contains records of a one-time

psychological evaluation by D r . Richard Toye on September 2 0 ,

2004. After testing and examination, D r . Toye opined that Nadeau

was able to understand, remember, and follow complex

-4- instructions; communicate effectively; concentrate on and

complete tasks, subject to limits imposed by his pain symptoms;

attend work and follow a routine at work within the limits of his

physical condition; make work-related decisions; and work with

the general public. T r . at 272-74.

The administrative transcript also contains records of a

medical record review by D r . Nicholas Kalfas, a state agency

medical consultant. Although D r . Kalfas neglected to include any

discussion or analysis on the form, he concluded that the

evidence did not support the finding of any medically

determinable mental impairment during the relevant time period.

Tr. at 275-86.

D. ALJ’s Decision

In his decision of December 2 8 , 2006, the ALJ conducted the

five-step evaluation process set forth in

.

Tr. at 17-22. 2 The ALJ found that Nadeau’s date last insured for

2 When determining whether a claimant is disabled, the ALJ is required to make the following five inquiries: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work.

.

-5- DIB purposes was June 3 0 , 2003. T r . at 2 1 . Under the first

step, the ALJ found that Nadeau had not engaged in substantial

gainful activity (“SGA”) since October 2 , 2001. T r . at 1 8 .

Under the second step, the ALJ found that although Nadeau’s

depression was not a “severe” impairment standing alone, Nadeau’s

fibromyalgia was severe within the meaning of the Act. T r . at

19. Under the third step, the ALJ found that Nadeau’s

fibromyalgia did not meet or equal the severity of any listed

impairment. T r . at 1 9 . Under the fourth step, the ALJ found

that Nadeau retained the residual functional capacity (“RFC”) t o :

occasionally lift 20 pounds, frequently lift 10 pounds, to stand and walk for 6 hours out of an 8 hour workday, and to sit for about 6 hours out of an 8 hour workday. The claimant also has postural limitations and may only occasionally balance, climb, stoop, crouch and crawl. Tr. at 2 0 .

Thus, the ALJ concluded, Nadeau’s impairments did not prevent him

from returning to his past relevant work as an employment

specialist. T r . at 2 1 . Accordingly, the ALJ determined that

Nadeau did not suffer from a “disability” prior to June 3 0 , 2003,

or at any time through the date of the decision. T r . at 2 2 .

-6- II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the transcript of the

administrative record and enter a judgment affirming, modifying,

or reversing the decision of the ALJ. My review is limited to

determining whether the ALJ used the proper legal standards and

found facts based upon the proper quantum of evidence. Ward v .

Comm’r of Soc. Sec.,

5 2 , 655 (1st Cir. 2000); Nguyen v .

Chater,

1 , 35 (1st Cir. 1999).

The ALJ’s findings of fact are accorded deference as long as

they are supported by substantial evidence. Ward,

. Substantial evidence to support the ALJ’s factual findings

exist “if a reasonable mind, reviewing the evidence in the record

as a whole, could accept it as adequate to support his

conclusion.” Ortiz v . Sec’y of Health & Human Servs.,

(1st Cir. 1991) (quoting Rodriguez v . Sec’y of Health &

Human Servs.,

1 8 , 222 (1st Cir. 1981)). If the

substantial evidence standard is met, the ALJ’s factual findings

are conclusive even if the record “arguably could support a

different conclusion.” Id. at 770. The ALJ’s findings are not

conclusive, however, if they are derived by “ignoring evidence,

-7- misapplying the law, or judging matters entrusted to experts.”

Nguyen, 172 F.3d at 3 5 .

The ALJ is responsible for determining issues of credibility

and for drawing inferences from evidence in the record. Ortiz,

. It is the role of the ALJ, not the role of this

court, to resolve conflicts in the evidence.

III. ANALYSIS

A. ALJ’s Step Two Discussion of Depression

Nadeau first alleges that the ALJ’s step two finding that

Nadeau’s depression was not a severe impairment was erroneous

because this finding is not supported by substantial evidence.

He makes two related arguments regarding this point.

Nadeau first argues that the ALJ relied too heavily on the

analyses of Drs. Toye and Kalfas, and not enough on the analyses

of D r . Stearns.3 It is true that the ALJ appeared to attach

3 Nadeau argues that the ALJ inappropriately “made no reference whatsoever to D r . Stearns’s assessment.” In fact, although the ALJ did not describe D r . Stearns’s entire course of treatment, he did reference D r . Stearns’s October 2001 exam as part of the step two analysis. T r . at 1 9 . The ALJ made no reference to D r . Stearns’s August 2006 medical source statement, but that decision was reasonable because D r . Stearns’s August 2006 statement was drafted well after Nadeau’s date last insured

-8- greater weight to the analyses of Drs. Toye and Kalfas than that

of D r . Stearns. However, it is the ALJ, not this court, who

makes credibility judgments and resolves conflicts in the

evidence. Ortiz,

. As long as the ALJ’s ultimate

conclusions are supported by substantial evidence, it is not my

role to second-guess his decision. Ward,

. In

this case, D r . Toye examined Nadeau and drew a reasoned

conclusion that Nadeau’s mental impairments were not disabling.

Tr. at 272-74. D r . Kalfas’s medical record review, though

conclusory, reached the same result. T r . at 275. D r . Stearns’s

diagnoses all suggested some signs of depression, but he

characterized this depression as episodic, often appearing as an

“undercurrent” or “element” of depression rather than overt

depression. T r . at 1 2 4 , 1 2 8 , 1 3 1 , 135, 385-86, 492. Indeed,

with the lone exception of his August 2006 statement, D r . Stearns

did not opine that Nadeau’s depression had any tangible effects.

and did not clearly link its findings to the relevant time period, see

(a)(1)(A), and even if it did refer to the relevant time period, D r . Stearns’s August 2006 statement was not entitled to controlling weight. See Arroyo v . Sec’y of Health & Human Servs.,

2 , 89 (1st Cir. 1991) (“The ALJ was not required to accept the conclusions of claimant’s treating physicians on the ultimate issue of disability.”).

-9- Thus, the ALJ had a substantial basis for concluding that

Nadeau’s depression did not constitute a severe impairment, and I

must defer to his determination.

Nadeau also argues that because the ALJ did not explicitly

make findings on the five-point degree of limitations scale

described in

.1520a (none, mild, moderate, marked,

or extreme) during his step two analysis, this court must remand

the case to the ALJ for further proceedings. This argument is

without merit. The relevant language from the ALJ’s decision

recites the various diagnoses tending to show that the depression

was not a severe impairment -- including D r . Toye’s

characterization of Nadeau’s depression as “mild” -- and then

states, “I therefore find that this impairment did not

significantly limit his physical or mental ability to perform

basic work related activities prior to his date of last insured

and was therefore not ‘severe.’” Thus, even though the ALJ did

not explicitly make findings on the five-point scale, he

implicitly found, based on sufficient evidence in the record,

that any limitations imposed by Nadeau’s depression were mild.

Moreover, as discussed further below, even if both his mental and

physical impairments were severe, Nadeau would nevertheless have

-10- been denied benefits under the step four analysis. For both of

these reasons, then, remand is not justified because it would

“amount to no more than an empty exercise” that would not change

the final result. See Ward,

.

B. ALJ’s Step Four Discussion of Nadeau’s Employment Specialist Position

Nadeau next alleges that the ALJ’s step four analysis was

erroneous because there were insufficient facts to support the

ALJ conclusion that Nadeau’s employment specialist position was

performed at a level consistent with substantial gainful activity

(“SGA”).

Nadeau first argues that the ALJ’s decision was not

adequately justified because the ALJ never determined whether

Nadeau earned enough in the employment specialist position for it

to qualify as SGA. This doubt arose because Nadeau, who was

represented by counsel at the hearing, provided the ALJ with

contradictory information regarding the salary and duration of

the employment specialist job. In one form, he stated that the

job was performed from 1992 to 1993, at a rate of $360/week. Tr.

at 7 7 . In another form, he stated that the job was performed

from November 1994 to April 1995, at a rate of $11/hour. T r . at

-11- 8 6 , 8 9 . Meanwhile, his lifetime earnings summary is consistent

with neither form. T r . at 63-64. Nadeau never raised these

discrepancies as an issue before the ALJ, and the ALJ did not

inquire into them. Nadeau argues that his case should be

remanded back to the ALJ to resolve the self-created

discrepancies between Nadeau’s various factual allegations. For

the reasons I explain below, this argument has no merit.

As the plaintiff, Nadeau bears the burden of establishing

that his impairments prevented him from returning to his past

relevant work (“PRW”). See Ortiz, 890 F.2d at 524. Accordingly,

he bears the burden of producing facts sufficient to show that

his past work responsibilities were not SGA o r , alternatively,

that his subsequent impairments prevented him from carrying out

those duties. See Santiago v . Sec’y of Health & Human Servs.,

, 5 (1st Cir. 1991) (“the claimant has the burden of

making some reasonable threshold showing that she cannot return

to her former employment because of her alleged disability”); see

also Barnes v . Sullivan,

(11th Cir. 1991).

Based on the employment descriptions Nadeau produced to the ALJ,

however, the employment specialist position provided Nadeau with

enough earnings to qualify as SGA. It may well be that neither

-12- of the forms Nadeau provided is correct. If this is s o , however,

then it was Nadeau’s responsibility to provide an accurate

characterization of his past work to the ALJ. See Santiago,

. Despite being represented by counsel, Nadeau did

nothing to call the ALJ’s attention to this issue. C f . May v .

Bowen,

8 8 , 393 (D. M e . 1987) (granting remand where

claimant raised the issue of whether she could perform her PRW,

but the ALJ nevertheless failed to make specific findings

regarding the physical and mental demands of her P R W ) .

Accordingly, there is no reason to let Nadeau benefit from the

combination of his self-created inconsistency and his self-

induced failure to address the issue at the appropriate time by

now ordering a remand.

Nadeau also argues that the facts were insufficient because

the ALJ never determined whether the employment specialist

position was an unsuccessful work attempt (“UWA”) that should not

be counted as SGA. See 20 CFR 404.15749(a)(1); SSR 05-02; SSR

84-25. This argument has no merit. The UWA concept is an

equitable means of ensuring that impaired workers who attempt to

engage in SGA, but are forced to stop because of their

impairments, are not penalized for making such attempts. See SSR

-13- 05-02. Nadeau has nowhere alleged that his employment specialist

position was cut short by his impairment; indeed, his impairment

did not begin until October 2 , 2001, long after he stopped

working as an employment specialist. Nadeau has offered no

reason to justify expanding the UWA concept to brief periods of

work that precede the onset of the impairment, and the facts of

this case provide no equitable reason to do s o .

IV. CONCLUSION

For the foregoing reasons, Nadeau’s motion to reverse (Doc.

N o . 8 ) is denied, and the Commissioner’s motion to affirm (Doc.

N o . 9 ) is granted. The clerk is directed to enter judgment

accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 2 , 2008

cc: Francis M . Jackson, Esq. Karen B . Fitzmaurice, Esq. T . David Plourde, Esq.

-14-