USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1622
MEGAN BARKER,
Plaintiff, Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Stahl, Circuit Judges.
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David A. Chase and Macdonald & Chase on brief for appellant.
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Jay McCloskey, United States Attorney, James M. Moore, Assistant
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United States Attorney, and Thomas D. Ramsey, Assistant Regional
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Counsel, Region I, Social Security Administration, on brief for
appellee.
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OCTOBER 09, 1996
OCTOBER 09, 1996
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Per Curiam. Claimant-appellant Megan Barker challenges
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the denial of disability benefits under the Social Security
Disability Insurance and Supplemental Security Income
programs. We affirm.
In 1982, claimant tripped on a concrete stair and fell
on her left knee while running with her company in the United
States Army. She suffered a contusion or laceration, and she
was removed from regular duty for a short period of time.
Barker finished her term in the military and received a
regular discharge in 1984. Thereafter, she worked at various
jobs (mainly cashiering) until August 1992.
In 1993, claimant applied for disability benefits due to
patellofemoral pain syndrome. She complained of swelling and
pain in her left knee, especially if she walks or stands a
lot. She also complained that her knee occasionally "locks
up" or "gives out." She stated that she has had pain in her
knee since her injury in 1982, but that the pain has gotten
worse. She described the pain as constant and claimed that
it is unrelieved by medication (Ibuprofen or Motrin).
The Administrative Law Judge (ALJ) found that claimant
has patellofemoral pain syndrome, but that it does not
significantly limit her ability to perform basic work-related
functions. Having concluded that Barker does not have a
severe impairment, the ALJ terminated the review process at
Step 2, or the severity stage, of the five-step sequential
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inquiry. See Bowen v. Yuckert, 482 U.S. 137 (1987); McDonald
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v. Secretary of Health & Human Servs., 795 F.2d 1118 (1st
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Cir. 1986). The decision of the ALJ became the final
decision of the Secretary when the Appeals Council denied
review. Claimant appealed to the district court, which
referred the matter to a magistrate judge for report and
recommendation. The magistrate recommended affirmance, and
the district judge adopted the magistrate's recommendation.
This appeal followed.
The medical records submitted by the claimant are from
the Veterans Administration (VA). These records reveal that
claimant's left knee was examined on two occasions by a VA
physician for the purpose of determining whether she is
eligible for a VA disability rating. In addition, the VA
Disability Council sent claimant to see Dr. Pepe, an
orthopedic consultant. Dr. Pepe examined claimant on one
occasion, December 9, 1992. Although he diagnosed
patellofemoral pain syndrome, Dr. Pepe's objective findings
are almost entirely negative. On March 11, 1993, the VA
assigned claimant a 30% disability rating. At that time,
objective findings were said to show a small amount of
effusion in the left knee, as well as some warmth and diffuse
tenderness in the knee. On October 19, 1993, claimant
arrived at Dr. Pepe's office without an appointment and spoke
to him briefly in the hallway. Following this conversation,
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Dr. Pepe wrote a short note in which he stated: "[The
claimant] says she has pain in her legs that precludes
sitting or standing at work. Would recommend no sitting or
standing in order to help the pain."
As an initial matter, we are persuaded that the ALJ
could properly reject Dr. Pepe's October 19, 1993 assessment
essentially for the reasons stated by the magistrate in his
recommended decision.1 We add that there is conflicting
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medical evidence in the record. None of the medical
consultants found any limitation in claimant's ability to sit
or stand.2 Moreover, Dr. Pepe's note is conclusory and
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devoid of objective medical findings. See 20 C.F.R.
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1The magistrate stated:
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Given that Dr. Pepe had last examined the
plaintiff nearly ten months before
writing the October [19], 1993 note, that
he had no advance notice of her visit
(and thus no opportunity to review her
file), and that he wrote the note at the
plaintiff's request and without examining
her anew, the Administrative Law Judge
was entitled to disregard it . . .
Report and Recommended Decision at 5-6.
2Dr. Johnson, a State agency consultant, reviewed the
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medical evidence and concluded that claimant does not have an
impairment which limits her ability to perform basic work-
related functions. Dr. Goffin, a second State agency
consultant, completed a Residual Functional Capacity
Assessment which indicates no limitation in claimant's
ability to sit or stand. Dr. Babcock, a medical advisor,
testified at the administrative hearing that he had "a lot of
trouble placing much credibility in [Dr. Pepe's] note" in
light of the fact that Dr. Pepe did not examine claimant
before writing it.
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404.1527(d) (explaining how the Secretary weighs medical
opinions), 416.927(d) (same); Matney ex rel. Matney v.
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Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) ("The ALJ need
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not accept an opinion of a physician--even a treating
physician--if it is conclusory and brief and is unsupported
by clinical findings.").
We also think the ALJ could properly reject the
credibility of claimant's statements concerning the limiting
effects of her pain and other symptoms. See Irlando Ortiz v.
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Secretary of Health & Human Servs., 955 F.2d 765, 769 (1st
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Cir. 1991) (per curiam) (explaining that it is the
responsibility of the Secretary to determine issues of
credibility). The VA treatment record is quite sparse, and
most of the objective medical findings are negative.
Claimant's allegations that her pain significantly limits her
ability to sit or stand is inconsistent with the opinions of
the medical consultants. In addition, the ALJ properly could
find that claimant's allegations are inconsistent with her
reported activities.3 See 20 C.F.R. 404.1529 (explaining
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how the Secretary evaluates pain), 416.929 (same).
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3Claimant is able to do housework (including dusting,
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vacuuming, laundry, and washing dishes) and, according to one
of her reports, she is able to do grocery shopping. She also
drives her car, visits friends, and has taken a computer
training course. Each of these activities involves sitting
or standing.
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For the foregoing reasons, we are persuaded that the
Secretary's severity finding is supported by substantial
evidence. Accordingly, the judgment below is affirmed.
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