Troisa v. Apfel ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-2205
CHRISTINA TROISI,
Plaintiff, Appellant,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Nancy Lorenz, Taramattie Doucette and Greater Boston Legal
Services on brief for appellant.
Donald K. Stern, United States Attorney, and Michael J.
Pineault, Assistant U.S. Attorney, on brief for appellee.
AUGUST 23, 2000
Per Curiam. Appellant Christina Troisi appeals
from a judgment of the district court upholding the
Commissioner's denial of social security disability benefits
("SSDI") and supplemental security benefits ("SSI"). Troisi
alleged an inability to engage in any "substantial gainful
activity" beginning in 1990 due to headaches, a depressive
disorder and a gender identity disorder. She stated in her
application that she had worked full-time as a hairdresser
until 1990, and had continued to work at that trade, but on
a part-time basis, earning $90 per week, until shortly
before she filed her application for benefits on April 26,
1995. Her last insured date was September 30, 1996.
At the hearing before an ALJ in August, 1996,
Troisi acknowledged that by March or May, 1996, she had
resumed her part-time work as a hairdresser and was still so
employed for approximately three days per week, now earning
$18 per day. The ALJ found that this work "probably" was
not at a substantial "gainful" level, so her application was
not disqualified at Step One of the familiar sequential
process. See 20 C.F.R. §§ 404.1574(b), 416.974(b) (1997)
(defining "gainful" earnings); see also 20 C.F.R. § 1572(providing that part-time work which involves significant
physical or mental activity is "substantial" work).
At the hearing, the ALJ heard testimony from
Troisi, a vocational expert, and a medical expert. The
record was held open for additional medical evidence. Based
on the entire record, the ALJ determined that despite her
mental impairments, Troisi retained a residual functional
capacity to work at a "substantial gainful" level as a
hairdresser and to make an adjustment to other work which
exists in significant numbers in the national economy. The
Appeals Council denied review.
Upon a careful review of the record, we agree with
the district court that the ALJ's determination is supported
by substantial evidence. Accordingly, we affirm adding only
the following in light of the arguments here.
(1) The ALJ did not "ignore" the second opinion
letter from Troisi's treating psychologist dated August 26,
1996, but fully summarized it in his report. The ALJ was
not required to chose between the psychologist's second
diagnosis of "major depression in partial remission" and the
examining psychiatrist's diagnosis of "dysthymia" since
neither doctor described an impairment which "meets or
equals" the severity required for a finding of disability
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at Step Three. The psychologist's opinion, that Troisi was
not ready to return to "full-time" work without risk to her
mental health, was not entitled to "controlling" weight
since it was inconsistent with other substantial evidence in
the record including evidence from the other treating
sources. See 20 C.F.R. § 404.1527(d)(2). Anyway, the
question before the ALJ was whether, as defined in the
regulations, Troisi's impairments precluded "substantial
gainful work activity" for a continuous twelve-month period
and that question is reserved to the Commissioner. See 20
C.F.R. § 404.1527(e).
(2) The ALJ's finding that Troisi's "statements
about her impairments and their impact on her ability to
work are not entirely credible," is sufficiently explained
by the ensuing discussion of the medical evidence in his
report and his comments at the hearing. A credibility
finding is entitled to deference especially where, as here,
it is consistent with substantial medical evidence.
(3) The ALJ's findings as to Troisi's non-
exertional limitations were specific and individualized and
did fall below the regulatory standard explained in
Lancellotta v. Secretary of HHS, 806 F.2d 284, 285 (1st Cir.
1986). The hypothetical which the ALJ posed to the VE fairly
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summarized the limitations which were found to be credible
and supported by the medical evidence.
(4) The parties disagree about whether the
psychologist's third opinion letter, dated March 26, 1997,
is a part of the record for purposes of judicial review.
The letter was offered to the Appeals Council as "new"
evidence, but the Appeals Council denied review.
Troisi seeks a remand to the Commissioner for
further "evaluation," but we are not sure whether she means
to argue (1) that under 42 U.S.C. § 405(g), the letter is
"new" and "material" evidence and there was "good cause" for
the failure to incorporate it into the record "in a prior
proceeding," or (2) that the Appeals Council erred as a
matter of law by denying review under 20 C.F.R. §§ 404.976,
416.1476, because the letter was "new" and "material" to the
period "on or before" the ALJ's decision date, and/or (3)
that we should include the letter in our judicial review of
the entire record for "substantial evidence." As to the
last of the possible arguments, the circuits are split over
whether such "new evidence" is considered a part of the
administrative record for purposes of judicial review.
However, here we need not reach the issue which has
divided the circuits. Under any of Troisi's possible
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arguments, we find that the psychologist's third opinion
letter cannot reasonably change the result. The letter is
dated six months after Troisi's insurance expired and two
months after the ALJ's decision. It "updates" Troisi's
"mental status and current functioning," in light of
intervening events and adds new diagnoses. It was too
remote to be "material" to the SSDI issue of whether Troisi
had acquired a defined disability prior to the expiration of
her insurance. Any retrospective inferences, even to the
date of the ALJ's decision, are too attenuated to add weight
to Troisi's claims or to change the result of our
"substantial evidence" review.1
Affirmed.
1
In addition to the time line issue, we note that the
doctor's new diagnosis of "apparent" attention deficits and
"possible learning disabilities," would carry little or no
weight, especially since the doctor had "not been able to test
Ms. Troisi to determine the nature and/or level of her cognitive
deficits." Other "new" diagnoses, or bases for the opinion
include, "lacking in job interview skills" and "lack of adequate
[employment] training," matters which are not entitled to weight
as "medical" opinion.
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