O’Dell v. SSA CV-05-40-PB 09/08/10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

George W . O’Dell and Donna M . O’Dell

v. Case N o . 05-cv-40-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

George W . O’Dell moves to reverse the Commissioner of Social

Security’s determination that he is not eligible for disability

insurance benefits (“DIB”). O’Dell bases his claim on a back

injury he suffered in 1990. He focuses his appeal on the

Commissioner’s determination that he is not entitled to DIB

because he was capable of performing sedentary work without

restriction while he was still insured. For the reasons set

forth below, I affirm the Commissioner’s decision.

I. BACKGROUND1

O’Dell was born January 2 5 , 1947, and grew up in

Massachusetts. George O’Dell was forty-three years old when he

1 The background information is drawn from the Joint Statement of Material Facts submitted by the parties (Doc. N o . 10) and the Administrative Record. Citations to the Administrative Record are indicated by “Tr.”

-1- allegedly became disabled. Following a brief stint in the

military at the age of twenty-one, O’Dell returned to

Massachusetts and worked as a store clerk, a restaurant worker, a

cab driver, and a distributor for a lawn chemical company. (Tr.

at 16.) In 1988, O’Dell became a car salesman and worked in that

capacity for several years. (Tr. at 254.)

At the time of his injury, O’Dell was working as a salesman

at Quirk Chevrolet in Braintree, MA. (Tr. at 157.) On March 2 3 ,

1990, O’Dell slipped on some sand and fell while at work. (Tr.

at 157.) He alleges that this fall resulted in a disabling “disc

problem” and a hairline fracture in his ankle. (Tr. at 29.)

A. Mental and Physical Impairments

Prior to his injury, O’Dell suffered from a number of health

issues. In 1968 he began his working life by entering the Marine

Corps. Approximately one month into basic training, he

experienced a “schizophrenic reaction of a catatonic type.” (Tr.

at 118-25.) He was then hospitalized and diagnosed with a pre-

existing personality disorder. Because of this disorder, O’Dell

was discharged from the service. (Tr. at 118-25.)

Following his discharge, O’Dell’s personality disorder did

not appear to affect him for another twenty years. O’Dell worked

various jobs and maintained relationships with his wife and

children. However, in March 1986, O’Dell was hospitalized due to

-2- stress and ultimately diagnosed with a personality disorder with

antisocial and borderline features.2 (Tr. at 134.) O’Dell was

also diagnosed with anxiety on two separate occasions in 1987 and

1988, both times following trips to the emergency room for chest

pain. (Tr. at 1 3 7 , 141-42.)

O’Dell did not seek medical treatment of any kind again

until his back injury in 1990. O’Dell sought immediate medical

attention after his fall at work and was diagnosed as having a

“lower back sprain/strain and a question of a herniated disc” by

medical professionals at the Harvard Community Health Plan. (Tr.

at 157.) O’Dell neither sought nor received further medical

treatment for this injury until he filed a Worker’s Compensation

claim and was required to be evaluated in connection with that

2 Antisocial Personality Disorder is characterized by “continuous and chronic antisocial behavior in which the rights of others or generally accepted social norms are violated; associated personality traits include impulsiveness, egocentricity, inability to tolerate boredom or frustration, irritability and aggressiveness, recklessness, disregard for truth, and inability to maintain consistent, responsible functioning at work, at school, or as a parent.” Dorland’s Illustrated Med. Dictionary 555 (31st ed. 2007). Borderline Personality Disorder is “marked by a pervasive instability of mood, self-image or sense of self, and interpersonal relationships; impulsive and self-damaging acts are common, as are uncontrolled anger, fears of abandonment, chronic feelings of emptiness, recurrent self-mutilating behavior and suicide threats, and transient, stress-induced periods of paranoia and dissociation.” Id. at 556.

-3- claim. (Tr. at 23.)

On June 1 0 , 1991, over a year after his initial injury, the

insurance company processing O’Dell’s Worker’s Compensation claim

sent him to D r . Arnold Miller. (Tr. at 7 , 153.) D r . Miller, an

orthopedic surgeon at the Laconia Clinic in Laconia, N H ,

diagnosed O’Dell with “lower back strain.” (Tr. at 153.) Dr.

Miller went on to note, however, that he found no “hard objective

evidence of nerve root impingement to suggest that there’s a

problem.” (Tr. at 153.) D r . Miller opined that O’Dell could not

“do any kind of heavy work” and suggested some kind of work-

hardening program to improve O’Dell’s ability to sit so that he

could do “light duty work at a sitting position.” (Tr. at 153.)

Dr. Miller suggested that O’Dell might be able to perform a

sitting job for a maximum of three or four hours per day, and

only if he were allowed to change positions frequently. (Tr. at

154.) D r . Miller declared O’Dell “partially disabled,” but

concluded that he “certainly [did] not feel an end result ha[d]

been achieved at th[e] time nor ha[d] [O’Dell] reached maximum

medical improvement.” (Tr. at 154.) Specifically, D r . Miller

noted that O’Dell had been unable to undergo further diagnostic

testing because his claustrophobia prevented him from getting a

-4- CT scan, and O’Dell had refused a myelogram.3 (Tr. at 153.) Dr.

Miller made no mention of O’Dell’s obesity or underlying mental

health issues as they pertained to O’Dell’s ability to return to

work. (Tr. at 153.) Six months after his evaluation by D r .

Miller, O’Dell settled his Worker’s Compensation claim for

$45,000. (Tr. at 157.) At the time, O’Dell stated that he had

resolved his claim so that he could “pursue another business

opportunity.” (Tr. at 157.)

Over eight years passed before O’Dell again sought medical

treatment. There is no other evidence from the period in

question regarding O’Dell’s functional limitations. When given

the opportunity to testify, O’Dell offered no information about

the persistence of his back problems throughout the 1990s, nor

did he explain how his physical limitations prevented him from

working. (Tr. at 28-40.) In testimony dated November 2 , 2006,

O’Dell stated that he had spent the last three months (roughly

3 A myelogram uses a special dye and x-rays to highlight the space between the bones in the spine. This technique is often used to diagnose a herniated disc. Stedman’s Medical Dictionary 1013, 1369 (25th ed. 1990). It is unclear whether O’Dell simply refused further diagnostic testing or whether he could not receive it due to a pre-existing heart condition. While D r . Miller’s note certainly seems to suggest that O’Dell played a part in refusing testing (Tr. at 1 5 3 ) , the settlement document prepared in connection with O’Dell’s Worker’s Compensation claim indicates that O’Dell was physically unable to undergo further testing due to a heart condition. (Tr. at 157.)

-5- August 2006 - October 2006) in bed due to severe pain but made no

mention of such limitations during the relevant period. (Tr. at

37.) O’Dell did state when asked, however, that there had been

no period of time since 1991 that he had been healthy enough to

go back to work. (Tr. at 37-38.)

On October 1 , 1999, O’Dell saw D r . Shadan Mansoor of

Ammonoosuc Community Health Services in Littleton, NH. Dr.

Mansoor documented that O’Dell had had a “popped disc since

1990,” and later prescribed fifty Darvocet pills to O’Dell for

“chronic back pain,” with the expectation that O’Dell would make

the pills last for four months.4 (Tr. at 183-84, 193.) In June

2001, D r . Mansoor noted that O’Dell had been swimming two hours

every day and mowing his lawn. (Tr. at 201.)

Several months later, O’Dell suffered an episode of

depression. In September 2001, O’Dell told D r . Mansoor that he

planned to leave his wife because he felt that he was a burden to

her. (Tr. at 213.) O’Dell complained that he was depressed and

could not sleep. (Tr. at 213.) He reported feeling tired and

foggy, and said that he was having difficulty concentrating and

felt too negative to talk to a counselor. (Tr. at 213.) Dr.

4 Darvocet is a prescription drug indicated for the relief of mild to moderate pain. Physician’s Desk Reference at 402 (59th ed. 2005).

-6- Mansoor formally diagnosed O’Dell’s depression and prescribed Remeron.5 (Tr. at 213.)

In a one-paragraph doctor’s note dated March 2002, D r .

Genevieve Kelley of the White River Junction Veteran’s Clinic

stated that O’Dell was “completely disabled” and unable to do

work of any kind due to his multiple medical problems, including

morbid obesity. (Tr. at 155.) The note did not explain how or

why O’Dell’s medical problems prevented him from working. (Tr.

at 155.)

In September 2003, O’Dell sought the help of mental health

counselor Kevin Cole of the White River Junction veterans’

clinic. Notes from this visit indicate that O’Dell thought his

long history of depression was a direct result of his guilt and

disappointment over not having served in Vietnam. (Tr. at 226.)

O’Dell told Cole that he felt that he suffered from post-

traumatic stress disorder (“PTSD”) from being beaten while in the

Marine Corps and from not being able to help fallen comrades.

(Tr. at 226.) O’Dell admitted, however, that he had lied in the

past about being a combat veteran. (Tr. at 226.) Later that

month, Cole reported that O’Dell felt his depression was

5 Remeron is a prescription drug indicated for the treatment of major depressive disorder. Physician’s Desk Reference 2924 (63d ed. 2009).

-7- improving. (Tr. at 229.)

In October 2005, fourteen years after the alleged onset date

of his disability, D r . Frank Graf evaluated O’Dell’s residual

functional capacity (“RFC”). (Tr. at 254-261.) D r . Graf, an

orthopedist, concluded that O’Dell’s morbid obesity and back

condition rendered him “substantially impaired in all basic

functional movement patterns of sitting, standing, walking,

bending, stooping, lifting, pushing and pulling.” (Tr. at 256.)

Dr. Graf reported that O’Dell should be “considered disabled for

all employment,” and that “[h]is condition [was] expected to last

consecutively month after month for a minimum of 12 months.”

(Tr. at 256.) D r . Graf also indicated that O’Dell was suffering

from PTSD and multi-organ failure as a result of his exposure to

Agent Orange in Vietnam. (Tr. at 255, 261.) Six months after

rendering this opinion, D r . Graf also opined that O’Dell was

disabled as of December 3 0 , 1991, his date last insured (“DLI”).

(Tr. at 257.)

O’Dell’s attorney requested that Marvin Kendall, M.D., of

the Littleton, NH veterans’ clinic review D r . Graf’s assessment

of O’Dell. (Tr. at 180.) D r . Kendall declared that, while

disability determination was outside the scope of his practice,

he agreed with D r . Graf’s conclusion that O’Dell was unable to do

“any useful work.” (Tr. at 180.) D r . Kendall also stated that

-8- he could not make a determination as to O’Dell’s disability prior

to 1993. (Tr. at 180.)

II. PROCEDURAL HISTORY

O’Dell first filed an application for DIB relating to this

injury in 1996. (Tr. at 15 n.1.) That claim was denied, and

O’Dell never appealed the decision, rendering it final. (Tr. at

15 n.1.) O’Dell filed a second application for DIB on May 3 0 ,

2002, alleging that he suffered from constant pain, had trouble

breathing, and felt weak constantly. (Tr. at 43-52.) The Social

Security Administration denied his application based on res

judicata, stating that O’Dell’s 2002 claim presented the same

facts and issues as his 1996 claim, which had already been

denied. (Tr. at 63-65, 78-79.) O’Dell requested an

administrative hearing. On July 2 1 , 2004, an ALJ dismissed

O’Dell’s request on res judicata grounds. (Tr. at 78.) O’Dell

appealed, and the Appeals Council denied O’Dell’s request for

review.

O’Dell then filed a civil action in this Court. On August

9, 2005, the Commissioner filed an assented motion to remand

pursuant to sentence six of

(g), which states that

the Court may remand the case if the Commissioner can show good

cause. The Commissioner explained that the ALJ and Appeals

-9- Council had improperly applied the doctrine of res judicata to

O’Dell’s application because the standard for evaluating both

musculoskeletal listings and mental impairments had changed since

1996. (Tr. at 16.) On August 1 1 , 2005, this Court granted the

Commissioner’s motion.

On November 2 , 2006, an ALJ held a hearing on remand to

determine the merits of O’Dell’s DIB application. Pursuant to

, the ALJ conducted a five-step evaluation to

determine whether O’Dell was disabled within the meaning of the

Social Security Act (“the Act”). The ALJ considered (1) whether

O’Dell was engaged in substantial gainful activity; (2) whether

O’Dell had a severe impairment; (3) whether the impairment met or

equaled a specific listing of impairment in the SSA regulations

and met the duration requirement; (4) whether, given the current

state of O’Dell’s impairments, O’Dell could still do past

relevant work; and (5) whether O’Dell could make an adjustment to

other work given his RFC, age, education, and prior work

experience.

.

On March 1 5 , 2007, the ALJ issued a decision finding that

O’Dell was not disabled during the period in question -- June 1 0 ,

1991, the alleged onset date, through December 3 1 , 1993, O’Dell’s

DLI. Specifically, the ALJ found at step 5 that O’Dell’s RFC was

consistent with the skills needed to perform the full range of

-10- sedentary work.6 Because the ALJ also found that O’Dell was 44

years old when he first claimed to be disabled and had a high

school education, the ALJ determined that he was required to find

that O’Dell was not disabled. (Tr. at 2 1 , citing Rules 201.27-

2 9 , 201.21 and 201.22). The ALJ based his conclusion that O’Dell

was capable of performing the full range of sedentary work

primarily on D r . Miller’s 1991 evaluation and the absence of

other contemporaneous evidence suggesting that O’Dell was

incapable of performing sedentary work.

The ALJ refused to credit D r . Graf’s opinion regarding

O’Dell’s RFC because it was not substantiated by “any clinical

signs or other objective medical evidence of record during the

period in question.” (Tr. at 19.) The ALJ reported that, even

though D r . Graf referenced O’Dell’s medical condition prior to

his D L I , his failure to cite objective medical evidence rendered

it useless in determining O’Dell’s limitations during the period

in question. (Tr. at 19.)

6 Sedentary work is defined as a job in which one is mostly sitting, but may be required to walk or stand occasionally. Additionally, a person in a sedentary job will not be required to lift more than ten pounds at a time and will only occasionally be required to lift and carry small items such as files and docket ledgers.

(a). “Occasionally” is defined as ranging from very little up to one-third of the time, or approximately two hours in an eight-hour work day. S.S.R. 83-10 at 5 (West 1993).

-11- Finally, the ALJ considered both O’Dell’s obesity and mental

impairments in the evidence, even finding his obesity to be

severe. (Tr. at 21.) Regarding his mental impairments, the ALJ

found that O’Dell “no longer had severe signs and symptoms” of

depression during the relevant period, and noted that O’Dell

presented no evidence indicating that his ability to work during

the period in question was limited by underlying mental

conditions. (Tr. at 20.) Ultimately, the ALJ found that neither

O’Dell’s obesity nor his mental impairments prevented him from

performing the full range of sedentary work. (Tr. at 21.)

O’Dell filed an exception to the ALJ’s decision based on the

fact that the ALJ had improperly considered D r . Graf’s RFC

assessment and ignored D r . Miller’s projected limitations

regarding O’Dell’s ability to work. (Tr. at 266.) On August 2 7 ,

2009, the Appeals Council notified O’Dell that it was assuming

jurisdiction of the case.

The Appeals Council issued its final decision on September

2 4 , 2009, concluding that O’Dell was not disabled at any time

during the relevant period. (Tr. at 4-11.) The Appeals Council

specifically addressed the ALJ’s failure to adopt D r . Miller’s

opinion that O’Dell could only perform a sitting job for a

limited period of time. (Tr. at 7.) The Appeals Council

ultimately discredited that portion of D r . Miller’s opinion

-12- because D r . Miller provided no clinical findings or objective

medical evidence to substantiate his opinion. (Tr. at 9.)

Lacking objective medical evidence, the Appeals Council found

that there was no reason to believe that O’Dell’s injury was as

severe as that portion of D r . Miller’s opinion suggested. (Tr.

at 9.) The Appeals Council further declared that O’Dell’s lack

of treatment between 1991 and 1999 was “inconsistent with the

alleged severity of his back complaints,” and that the record

reflected “no evidence to indicate that [O’Dell] was treated for

mental or cardiac impairments during the applicable period.”

(Tr. at 9.)

The Appeals Council also concluded that the ALJ was correct

in refusing to credit D r . Graf’s retrospective RFC evaluation.

(Tr. at 9.) The Council noted that D r . Graf’s report was further

discredited because Graf identified specific limitations that

were based solely on O’Dell’s false claims about the extent of

his military service. (Tr. at 9.) Because the Council found

that the ALJ was correct in concluding that O’Dell could perform

the full range of sedentary work, it upheld the ALJ’s decision

that O’Dell was not disabled at any time during the relevant

period. (Tr. at 9.) O’Dell timely appealed and the action again

came before this Court.

-13- O’Dell died on February 1 4 , 2010. His wife, Donna O’Dell,

continues this action on his behalf.

III. 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 “final decision” of the Commissioner of Social

Security. Because in this case the Appeals Council reviewed and

supplemented the decision of the ALJ, my review is of the appeals

Council decision and the portions of the ALJ decision that it

adopted. Sims v . Apfel,

(2000) (“SSA

regulations provide that, if the Appeals Council grants review of

a claim, then the decision that the Council issues is the

Commissioner's final decision”); see also Lopez-Cardona v . Sec’y

of Health and Human Servs.,

(1st Cir. 1984)

(per curiam) (noting that the Appeals Council finding “became the

final decision of the Secretary”). Review is limited to

determining whether the Appeals Council 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)

(per curiam).

-14- The findings of fact of the Appeals Council are accorded

deference as long as they are supported by substantial evidence.

Ward,

. Substantial evidence to support factual

findings exists “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) (per curiam) (quoting Rodriguez v . Sec’y

of Health & Human Servs.,

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

the substantial evidence standard is met, factual findings are

conclusive even if the record “arguably could support a different

conclusion.” Ortiz,

. Findings are not

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

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

Nguyen, 172 F.3d at 3 5 .

The Appeals Council is responsible for determining issues of

credibility and for drawing inferences from evidence on the

record. Ortiz,

. It is the role of the Appeals

Council, not the role of this Court, to resolve conflicts in the

evidence.

IV. ANALYSIS

O’Dell challenges the Appeals Council’s step 5 determination

because he contends that it is based on the mistaken premise that

-15- his RFC allowed him to perform the full range of sedentary work

without restriction as of his DLI. 7 In particular, he complains

that the Council lacked medical evidence to support its RFC

determination and improperly discounted both D r . Miller’s 1991

opinion that O’Dell could perform a sitting job for no more than

three or four hours per day, and D r . Graf’s 2005 opinion that

O’Dell was disabled as of his DLI. O’Dell also complains that

the RFC determination fails to account for his obesity and

impaired mental condition. I address each argument in turn.

A. The Appeals Council’s RFC Determination Is Supported by Substantial Evidence

O’Dell’s arguments relating to the medical opinions are best

dealt with in two parts - first, whether the Appeals Council

impermissibly rejected the opinions outright and in doing so

invaded the province of medical experts, and second, whether the

Appeals Council was justified in the RFC it determined for O’Dell

in light of the medical opinions and the overall record.

7 A claimant’s RFC can affect his eligibility for DIB at several different steps in the sequential analysis. Here, O’Dell challenges the Appeals Council’s use of the RFC determination at step 5 . Although the burden of proof shifts to the Commissioner at this final step in the process, the burden shift does not affect the RFC determination, which ordinarily is made at steps 1 though 4 . Young v . Apfel,

, 1069 n.5 (8th Cir. 2000); Her v . Comm’r of Soc. Sec.,

8 8 , 392 (6th Cir. 1999).

-16- 1 . The Appeals Council did not determine O’Dell’s RFC without the benefit of medical evidence

O’Dell first contends that the Appeals Council determined

his RFC without the benefit of medical evidence. The short

answer to this contention is that it is based on a

mischaracterization of the record. Although the Council declined

to credit a portion of D r . Miller’s report, it did rely on the

remainder of his evaluation in determining O’Dell’s RFC. Thus,

the real issue the case presents is whether the Council erred in

making selective use of the medical evidence.

2. The Appeals Council properly considered medical evidence in determining’s O’Dell’s RFC

O’Dell complains that the Appeals Council improperly

discounted D r . Miller’s opinion that he could perform sitting

work for no more than three or four hours per day and D r . Graf’s

opinion that he was disabled as of his DLI. 8 Several factors

determine the weight that a medical opinion is due, including (a)

the nature, length, and specialty of the examining relationship,

(b) the amount of objective medical signs and laboratory findings

supporting the opinion, and (c) consistency of the opinion with

8 The record also includes a conclusory opinion from D r . Kelley that O’Dell was completely disabled in 2002, and a similar opinion from D r . Kendall in 2005. (Tr. at 155, 180.) Neither physician, however, expressed an opinion as to whether O’Dell was disabled as of his DLI.

-17- the record as a whole.

. I will analyze

these factors in turn.

a. Nature, length, and specialty of the examining relationship

Medical opinions that are rendered by treating physicians,

particularly when based on a large number of examinations, may be

given greater weight because such opinions often provide “a

detailed, longitudinal picture of [the claimant’s] medical

impairment. . . .” 20 C.F.R. 404.1527(d)(2). In the present

case, however, O’Dell was only examined by D r . Graf once (and

only then at his attorney’s behest). (Tr. at 8.) O’Dell was

examined twice by D r . Miller as a requirement of his Worker’s

Compensation claim. (Tr. at 7 , 153.) Because neither doctor was

able to base his opinion on ongoing, detailed treatment of

O’Dell, the Commissioner was entitled to give them less weight.

Medical examinations conducted after the relevant injury

period are also of limited relevance in disability

determinations. See Gonzalez-Rodriguez v . Barnhart,

3 , 25 (1st Cir. 2004) (per curiam) (holding that a

consultive examination and treatment were of “limited value”

where both occurred “after [claimant’s] insured status had

expired”); see also Evangalista v . Sec’y of Health and Human

Servs.,

, 140 n.3 (1st Cir. 1987) (noting that where

-18- a doctor did not examine the claimant until over four years after

the claimant’s last insured date, the doctor’s ability to shed

light on whether the claimant was incapacitated was “seriously

curtailed”). Here, the retroactive findings of D r . Graf were of

severely diminished value to the ALJ and Appeals Council because

they were based on examinations that took place twelve years

after claimant’s insured status had expired. (Tr. at 1 8 0 , 254.)

Opinions rendered by physicians retained by claimant’s

counsel (“advocacy opinions”) may also be given less weight. See

Evangelista,

; see also Coggon v . Barnhart,

0 , 53 (D. Mass. 2005) (holding that the ALJ reasonably

gave less weight to an “advocacy” opinion because it indicated a

“potential bias . . . to advocate on [claimant’s] behalf”). In

discussing the credibility of the medical opinion offered, the

court in Evangelista noted that the inference was “inescapable”

that the physician was retained by the claimant’s counsel to

evaluate his case. Evangelista,

. Here, O’Dell

was evaluated by D r . Graf only at the express request of his

attorney. (Tr. at 8.) In this case, too, the inference is

“inescapable” that his opinions were obtained specifically for

the purpose of bolstering O’Dell’s case, and the Appeals Council

was correct to give them less weight.

-19- Opinions rendered by specialists related to that doctor’s

area of speciality are generally given more weight.

. Here, D r . Graf and D r . Miller, both orthopedists, were

working within their specialty when they rendered opinions

regarding O’Dell. (Tr. at 256.) While this factor does support

giving more weight to D r . Graf and D r . Miller, it is not

determinative in light of the other aspects of the examining

relationship discussed above, all of which made the medical

opinions less probative.

Considering the first factor overall, the Appeals Council

was entitled to give those opinions significantly less weight in

determining whether O’Dell was disabled because the medical

opinions at issue were offered by non-treating doctors after

minimal examination of O’Dell. This is particularly true of D r .

Graf, whose retrospective advocacy opinions could reasonably have

been given even less weight.

b. Existence of objective medical signs and laboratory findings

A lack of objective medical support for an injury may be

considered as evidence that a claimant is not disabled. 20

C.F.R. 404.1527(d)(3); Gordils v . Sec’y of Health and Human

Servs.,

2 7 , 329 (1st Cir. 1990) (per curiam) (holding

that where the only examining doctor found “no objective evidence

-20- of a disabling back impairment,” the Secretary was justified in

treating that opinion as evidence of an RFC for sedentary work);

Dupuis v . Sec’y of Health and Human Servs.,

2 2 , 623

(1st Cir. 1989) (per curiam) (upholding Appeals Council’s denial

of disability where there was “no medical evidence in the record

contemporaneous with [the time period at issue] to support [the

claimant]”).

In this case, as in Dupuis and Gordils, there was

insufficient contemporaneous, objective evidence in the medical

opinions to support O’Dell’s claims that he was unable to work

during the relevant period. The only contemporaneous report was

from D r . Miller, who explicitly stated he “[did not] find any

hard objective evidence of nerve root impingement to suggest that

there’s a problem.” (Tr. at 153.) D r . Miller was also unable to

substantiate his diagnosis with a CT scan, M R I , or myelogram

because O’Dell was either unwilling or unable to undergo the

procedures. (Tr. at 153.) The Appeals Council could reasonably

have treated this as positive evidence that O’Dell was not

disabled prior to his DLI.

Finally, the Appeals Council was also entitled to give less

weight to the medical opinion of D r . Graf because his opinion was

based in part on false information, specifically statements by

O’Dell that he suffered from post-traumatic stress disorder and

-21- multi-organ failure as a result of exposure to Agent Orange while

serving in Vietnam. (Tr. at 255, 261.) This false information

affected D r . Graf’s eventual diagnosis and bears on plaintiff’s

general credibility in reporting his symptoms to his doctors.

The general lack of objective medical information to substantiate

the opinions of D r . Graf and D r . Miller justified the Appeals

Council in giving less weight to those medical opinions.

c. Consistency of the opinions with the record as a whole

Substantial evidence existed in this case that contradicted

parts of the medical opinions at issue. In particular, gaps in

treatment can be taken as evidence that a claimant was not

disabled during the relevant time period. See Irlanda Ortiz v .

Sec’y of Health and Human Servs.,

(1st Cir.

1991) (per curiam) (holding that gaps in claimant’s medical

record may be considered as evidence that an injury is not as

severe as alleged). In this case, the fact that O’Dell

apparently did not seek any treatment for his back between June

of 1993 and October of 1999, a time period during which he later

alleged he was completely incapacitated by pain, could have been

considered by the Appeals Council as evidence O’Dell was not

disabled.

-22- O’Dell’s testimony that he settled his Worker’s Compensation

claim in 1991 to “pursue another business opportunity” also

suggests that he did not consider himself to be in such pain that

he could not work. (Tr. at 1 5 7 ) ; See Dupuis v . Sec’y of Health

and Human Servs.,

2 2 , 624 (1st Cir. 1989) (per curiam)

(upholding denial of disability in part because claimant was able

to work during the period at issue). It defies common sense that

someone who, by his own allegation, was incapable of working in

December 1991 would be actively pursuing a separate employment

opportunity at the same time. The Appeals Council could have

considered this as evidence that O’Dell was not disabled during

the relevant period.

Additionally, some of the medical evidence presented weighed

against disability. The contemporaneous medical examination of

Dr. Miller indicated that O’Dell was suffering from a “lower back

strain” and that he could perform some sedentary work, though for

only a few hours at a time. (Tr. at 154.) D r . Miller also

stated that a “work hardening program” could eventually allow

O’Dell to do light work at a sitting position. (Tr. at 154.)

This part of D r . Miller’s medical opinion could have been taken

by the Appeals Council to be inconsistent with the opinion that

O’Dell was disabled for the necessary twelve-month period during

the relevant time period.

-23- Finally, to the extent that O’Dell ever received treatment,

the evidence indicated that he only took medication for mild to

moderate pain and was able to perform relatively vigorous daily

activities such as swimming and mowing the lawn. (Tr. at 193,

201.) This further supports the decision of the Appeals Council.

See Albors v . Sec'y of Health and Human Servs.,

(1st Cir. 1986) (per curiam) (noting that “[the medical

evidence], together with the fact that claimant apparently takes

nothing stronger than aspirin, supports the ALJ's rejection of

claimant's assertions of disabling pain”); Avery v . Sec’y of

Health and Human Servs.,

9 , 29 (1st Cir. 1986) (“[i]n

developing evidence of pain or other symptoms,” the ALJ must

investigate, among other things, “[t]he claimant’s daily

activities”).

Looking at all of the above factors, neither the ALJ nor the

Appeals Council erred in choosing not to credit either D r . Graf’s

retroactive opinion or the portion of D r . Miller’s opinion that

O’Dell could only work three or four hours per day. The opinions

were unsupported by clinical and laboratory diagnostics and

inconsistent with other evidence. The retroactive opinion of D r .

Graf was also based on limited visits with O’Dell that took place

more than a decade after the relevant insured time period. The

Commissioner fully considered these opinions, and after viewing

-24- all of the evidence presented made a permissible, commonsense

determination that O’Dell was capable of sedentary work.

Particularly when combined with the positive evidence that O’Dell

was not disabled, such as the lack of treatment, this RFC

determination was supported by substantial evidence.

B. The Appeals Council Properly Considered O’Dell’s

Other Health Complications in Determining His RFC

The Commissioner is required to consider all impairments

when making an RFC evaluation, regardless of whether or not those

impairments are determined to be severe. See

(e). In O’Dell’s case, the Appeals Council determined

that O’Dell’s obesity was severe but did not give such a

designation to his mental impairment. Nevertheless, the Appeals

Council properly considered O’Dell’s obesity and mental

impairment in making its RFC determination.

1. Obesity

O’Dell alleges that the ALJ erred in failing to consider his

obesity in combination with his back impairment. At O’Dell’s

initial hearing, the ALJ found that his obesity was a severe

impairment under step 2 of the five-part test. (Tr. at 21.) The

ALJ concluded, however, that even in combination with O’Dell’s

lower back strain, the two impairments did not disable him from

all employment. (Tr. at 21.) Information in the case record

-25- substantiates this finding.

Records of O’Dell’s obesity date back to at least 1986.

(Tr. at 132.) O’Dell was able to work even with his obesity

until his injury in 1990, and neither complained that his obesity

limited his functional capacity, nor speculated that his back

disorder was exacerbated by his obesity during the relevant

period. In his disability application filed in 2002, O’Dell

asserted that he could not stand for long periods, breathe well,

lift, or sit long in one place. (Tr. at 52.) However, O’Dell

never suggested that these conditions stemmed from his obesity

and did not specify how these limitations affected his ability to

work. See

(c) (“[claimant] must provide

evidence . . . showing how your impairment(s) affects your

functioning during the time you say that you were disabled, and

any other information we need to decide your claim”); see also

Skarbek v . Barnhart,

0 0 , 504 (7th Cir. 2004) (per

curiam) (holding that where the claimant failed to specify how

his obesity affected his ability to work, the ALJ could have

concluded that it was not disabling). It was up to O’Dell to

specifically allege how his obesity affected his ability to work

during the period in question, and he failed to meet that burden.

Additionally, it is worth noting again that during the

period in question, O’Dell settled his Worker’s Compensation

-26- claim because he wanted to “pursue another business opportunity.”

(Tr. at 157.) This piece of evidence suggests that O’Dell

himself knew that he was capable of employment during the very

period that he was allegedly disabled.

Despite O’Dell’s failure to present evidence showing that

his obesity was disabling, the ALJ and Appeals Council still

considered O’Dell’s obesity and simply concluded that it was

generally insufficient, either by itself or in combination with

other impairments, to constitute a disability. (Tr. at 21.)

This factual finding is entitled to deference, and given the lack

of evidence of its effect on disability put forward by O’Dell,

that decision was supported by substantial evidence. Indeed,

even if the ALJ had failed to consider O’Dell’s obesity at all,

this case would still not warrant a remand. See Rutherford v .

Barnhart,

(3d Cir. 2005) (ALJ’s failure to

mention obesity did not require remand where claimant did not

specify how her obesity should affect her case).

Because O’Dell failed to prove that his obesity affected his

ability to work, and because O’Dell’s obesity was adequately

addressed in the ALJ’s consideration of the medical source

opinions, the ALJ did not err in failing to specifically assess

the effects of O’Dell’s obesity.

-27- 2. Mental Impairments

Finally, O’Dell alleges that the Appeals Council erred in

failing to make findings using the special technique for mental

impairments outlined in

.1520a. O’Dell did not

meet his burden of establishing that mental issues prevented him

from working. In fact, he never even alleged this. Thus, the ALJ

was not required to use the SSA’s special technique.

Failure to seek medical treatment can be construed as

evidence that an impairment is not as severe as the claimant

suggests. See Ortiz,

(holding that gaps in the

medical record are “evidence” for the court). O’Dell never sought

medical treatment during the period in question for his mental

impairment.9 Furthermore, O’Dell never alleged, either in his

DIB application or in his testimony in front of the ALJ, that his

mental impairments prevented him from working. (Tr. at 25-40,

52). Where a claimant fails to specifically allege how mental

impairments contributed to disability, the ALJ is not required to

consider those mental impairments.

; see

also Gray v . Heckler,

(1st Cir. 1985)

9 In fact, O’Dell’s long medical history of mental health problems never before precluded him from working. Counseling services and hospitalization due to mental instability were sought on an inconsistent basis and it appears from the evidence on the record that O’Dell was able to hold a number of jobs prior to his injury despite his impairment.

-28- (holding that where claimant failed to present evidence that

mental impairment affected her level of disability, ALJ was not

required to address that impairment); Alvarado v . Weinberger,

(1st Cir. 1975) (“[t]he mere existence of a

psychoneurosis or an anxiety reaction does not constitute a

disability”); Barrett v . Barnhart,

, at *5 (D.

N.H. Mar. 2 8 , 2003) (“[t]he claimant is responsible for providing

specific medical evidence of his alleged mental impairment and

its effect upon his functional capacity for work”).

All of these facts demonstrate that O’Dell did not meet his

burden of establishing that his mental impairment affected his

ability to work; therefore, the ALJ was not required to evaluate

O’Dell’s impairment using the special technique set forth in

.1520a.

V. CONCLUSION

The ALJ did not err at any step in the five-step process,

nor did the Appeals Council in adopting and supplementing the

ALJ’s conclusions. Because I do not find that any error

occurred, there is no reason to address the parties’ final

argument of whether reversal versus remand would have been

appropriate had error been found. For the foregoing reasons, I

grant the Commissioner’s motion to affirm (Doc. N o . 20) and deny

-29- O’Dell’s motion to reverse (Doc. N o . 1 8 ) . The clerk is directed

to enter judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

September 8 , 2010

cc: Francis M . Jackson, Esq. Karen B . Fitzmaurice, Esq. Robert J. Rabuck, Esq.

-30-