Hamel v. Astrue (620 F. Supp. 2d 1002, 2009)

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

This is the second appeal filed by the plaintiff, Raymond N. Hamel, Sr., from the Commissioner’s denial of his application for disability insurance benefits under Title II of the Social Security Act. Hamel has been diagnosed with degenerative disc disease and depression. In the first appeal, Case No. 4:03CV3196, this court reversed the Commissioner’s decision and remanded for further proceedings after finding that the Administrative Law Judge (ALJ) had not properly assessed Hamel’s complaints of back pain and leg numbness, and had failed to give any consideration to the opinion of a clinical social worker that Hamel’s depression often interferes with his attention and concentration, which a vocational expert testified would preclude all employment. The court specifically instructed that “[o]n remand, if the ALJ again chooses to discredit Hamel’s testimony, or to disregard [the clinical social worker’s] opinion, he should detail his reasons for doing so.” (Case No. 4:03CV3196, filing 19 at 10.) The ALJ on remand made a somewhat more detailed assessment of Hamel’s credibility, but made no mention whatsoever of the clinical social worker’s opinion, even though a second vocational expert again testified that a person with Hamel’s other impairments could not work if he often had trouble concentrating. Reversal is therefore required. The court will not order the payment of disability benefits, but will again remand the case to the Commissioner with the request that administrative proceedings on remand be expedited as much as possible.

I. BACKGROUND

Hamel, who is now 50 years old, applied for Title II benefits on July 28, 2000, alleging that he became disabled on August 15, 1998, because of “spinal disk condition, limited motion cervical spine, unemployability.” (Tr. 119, 141) His application was denied initially on September 28, 2000, and on reconsideration on January 4, 2001. (Tr. 95,101)

Hamel requested a hearing, which was held on August 10, 2001. Testimony was provided by Hamel and by a vocational expert called by the ALJ. (Tr. 41-87) On February 5, 2002, the ALJ issued a decision finding that Hamel is not entitled to a period of disability or to the payment of benefits under Title II. (Tr. 16-34) In reaching this decision, the ALJ evaluated Hamel’s claim according to the five-step sequential analysis prescribed by Social Security regulations, 20, C.F.R § 404.1520.

First, the ALJ found no evidence that Hamel had engaged in any substantial gainful activity since the alleged onset of disability. Second, the ALJ found that Hamel has severe medically determinable impairments, namely, “degenerative disc disease with radiculopathy and depression.” Third, the ALJ found that such impairments do not meet or equal those listed in 20 C.F.R, Part 404, Subpart P, Appendix 1 (the “listings”). Fourth, the ALJ found that Hamel is unable to perform his past relevant work as a gas station attendant, an automobile mechanic helper, a maintenance service dispatcher (as he performed the job), and a service installation technician. Fifth, and finally, the ALJ found that Hamel has the residual functional capacity (“RFC”) to work as a dispatcher, as that job is performed in the national economy, and for other work that exists in the regional and national economies in significant numbers, including work as a phone solicitor and cashier.

As part of step four of the analysis, the ALJ was required to assess Hamel’s credibility. That assessment was as follows:

At the hearing, the Claimant testified that he feels that he has been unable to work since August 15, 1998, which is the date of the Veterans Administration’s decision in which he was “given 100% disability” and when he closed his business. He hasn’t worked since that time and has been receiving Veterans Administration disability benefits. He testified that he is disabled by continued chronic back and neck pain with radiculopathy into his left leg and fatigue. In addition, he has been treated for depression and sees a mental health counselor “regularly.”

With regard to medications, he indicated that he is on medications for pain and depression and he uses self-hypnosis. Periodically, he wears a brace on his left leg because he sometimes experiences numbness and a feeling like he is on “pins and needles.” Oftentimes, he will have to lie down. On a scale of 1-10 (10 being the highest level of pain), the Claimant indicates that he experiences “constant” back pain and that at the lowest, his pain is at the 5 to 7 level. In fact, because he has had to deal with this pain for years, he feels that he has developed a higher tolerance for pain. With regard to his emotional difficulties, the Claimant testified that he experiences depression, is moody and short tempered. He testified that he has gotten to be “a lone wolf’ and because he has been “very restrictive” with his children, they don’t talk to him very much any more. The medication for depression does give him some relief and that [sic] it puts thoughts of suicide “to the back of the mind.”

With regard to his abilities and limitations, the Claimant indicated that he is able to stand between 5-10 minutes before needing to sit, recline, or “just move around the room for 30 minutes” before he is able to stand again. He is able to set in a straight chair for between 15-20 minutes. His walking is very limited. Noting that his doctors have limited his lifting to 40 pounds, he indicated that he could probably lift that amount but it would be for a short period and he could not do it for a whole day. Occasionally, the Claimant uses a cane although he indicated that he doesn’t feel comfortable using it, because he doesn’t want to depend on it too much.

With regard to his activities of daily living, the Claimant indicated that he tries to teach himself “light” woodworking and he tries to maintain his vehicles “on a hobby level.” These activities can be done at approximately one and a half hour intervals. As an example, he indicated that it has taken him one and a half years to tear down an engine on a pickup. Another hobby includes collecting coins.

❖ * *

The chronological review of the progress notes from the Veterans Administration indicates that the Claimant’s son was, eventually, successfully placed outside of the home. Further, the Claimant and his wife successfully dealt with some minor issues involving their marriage and the changes in family dynamics with the three sons gradually leaving the home. When he became involved in treatment, results of the Beck inventory indicated that his depression was moderate and in a recent report dated March 9, 2001 his treating psychologist, Ms. Crandall [sic], indicated that his depression was now “mild.” Further, she noted, “The depression likely does not overtly limit him from working.” There are several notes in the file referring to the Claimant working on repairing a vehicle and another note indicating “Currently works part-time repairing juice machines.” At one point, the Claimant was getting more equipment for his shop and, at another point, he was transporting his family back and forth to Grand Island (a 3-hour trip). Further, he has gone on trips to Texas and on a 24-hour trip to Minot. It was noted in a progress note at Exhibit 13F, page 17, that he was in a bind because he was making more money in VA disability benefits than he would be-able to make in most jobs.

There are varying reports as to the Claimant’s Veterans Administration’s rating of disability. Nonetheless, the Social Security Administration is not bound by the findings of the Veterans Administration regarding disability and the Social Security Administration and the Veterans Administration define disability differently. Fortunately, it appears that the Claimant responded well to medication and therapy with regard to his depression and anxiety.

With regard to his physical condition, a recent MRI of the lumbar spine revealed only degenerative disc disease. EMG testing indicates radiculopathy, however, the Claimant has only received medication for his chronic back and leg pain. He has not gone through any physical therapy or a work hardening program and none has been recommended. Likewise, no surgical intervention has been recommended. In fact, the only recommendation has been a 40 pound weight restriction.

In view of the preceding discussion, the undersigned Administrative Law Judge finds that the Claimant’s testimony, insofar as it pertained to the inability to perform any type of work activity on a sustained basis, was not credible.

(Tr. 28-30)

Hamel’s request for a review of the ALJ’s decision was denied by the Appeals Council on July 5, 2002. (Tr. 11) His complaint in Case No. 4:03CV3196 was filed in this court on May 28, 2003, within the extended filing period granted by the Appeals Council. The court’s judgment reversing the ALJ’s decision and remanding the case for reconsideration of Hamel’s credibility and reevaluation of his RFC was entered on April 7, 2004. On July 29, 2004, the Appeals Council entered an order directing an ALJ to provide Hamel with an opportunity to appear at a hearing, develop the record pursuant to 20 C.F.R. §§ lpOlp. 1512-JpOJp. 1518, and issue a new decision. (Tr. 1168-69)

The same ALJ was assigned to the case on remand, and a supplemental hearing was held on May 25, 2005. Additional exhibits were received in evidence and testimony was provided by Hamel, his wife, and another vocational expert. (Tr. 1177, 1611-1666) After the hearing, the ALJ requested Hamel to submit to consultative examinations by a state agency psychologist and physician. (Tr. 1196-97, 1537-56, 1665) The ALJ’s adverse decision was issued on October 20, 2005. (Tr. 1138-56) Hamel requested administrative review of the ALJ’s decision, but the Appeals Council declined jurisdiction 27 months later, on February 5, 2008. (Tr. 1126-29)

Hamel’s complaint in the present court action was timely filed on April 2, 2008. The Commissioner answered and filed a certified copy of the administrative transcript on September 19, 2008. Briefing was completed on March 5, 2009.

A. Hamel’s Medical History

As identified by the parties in their briefs, Hamel’s relevant medical history includes the following entries, listed in chronological order:

March 26, 1997: A CT scan of the lumbar spine showed “[a]t the L5/S1 level, there is a broad diffuse disc bulge. This effaces the anterior aspect of the thecal sac. Furthermore, there is focal disc herniation in the left lateral recess at this level which impinges upon the exiting nerve root.” (Tr. 285)

August 18, 1997: Hamel requested a knee brace that would fit over his clothes. He reported doing well with his current brace. (Tr. 523)

September 10, 1997: Jackson J. Bence, M.D. stated in progress notes: “In summary, he has degenerative disk disease at L2/3, L3/4 and L5/S1. He has moderate arthritis involving his lower lumbar spine. He has disk bulging at L2/3 and % It is my opinion that his back care in the future should be conservative. It is my opinion that he should restrict his lifting to a 40 pound limit. Treatment in the future should be conservative by nonsteroidal anti-inflammatory medications and pain medications as necessary.” (Tr. 518)

January 28, 1998: The Department of Veteran’s Affairs increased Hamel’s disability rating from 20 percent to 60 percent. The VA’s rating decision stated: “The evaluation of the low back condition, to include neuropathy of the left lower extremity, is increased to 60 percent disabling effective March 20, 1997. An evaluation of 60 percent is granted whenever there is pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy, characteristic pain and demonstrable muscle spasm absent ankle jerk or other neurological findings appropriate to site of diseased disc and little intermittent relief.... The veteran was referred by the Neurology Clinic on 03-20-97 for a left knee brace to prevent the knee from giving way. Treatment note dated 04-25-97 reports that the veteran received his knee brace to prevent buckling secondary to neuropathy.” (Tr. 289)

May 29, 1998: Hamel had a psychiatry consultation with Rey de los Angeles, M.D., whose assessment was adjustment disorder with mixed anxiety; personality disorder, not otherwise specified; no PTSD; and Global Assessment of Functioning (GAF) of 70/70. The doctor continued Hamel’s prescription for Wellbutrin. (Tr. 512)

July 2k, 1998: Hamel saw his therapist. He reported feeling useless, a depressed mood, decreased motivation, disturbed sleep, and past suicidal ideation. He stated that Wellbutrin, an antidepressant, was helpful and he was not experiencing side effects. The therapist noted that Hamel was pleasant and cooperative with neutral mood and a fairly bright affect. He made good eye contact and his thoughts were organized and clear. The therapist opined that Hamel had a “fair” response to the medication, but noted that he had situational factors which impacted his mood. (Tr. 502)

August 3, 1998: The Department of Veteran’s Affairs issued another rating decision, concluding that Hamel was entitled to individual unemployability effective March 20, 1997. This decision stated: “Entitlement to individual unemployability is granted because the claimant is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” (Tr. 288)

August 10, 1998: Hamel and his two sons saw a different therapist, Merrill Crandall, ACSW/LCSW. Hamel was tearful while he discussed his 19-year-old disabled son, who required significant care. (Tr. 500) August 31, 1998: Hamel saw Mr. Crandall again, and was described as “quite talkative and loud.” Mr. Crandall noted that Hamel’s affect was manic, yet he continued to claim that he felt down. Hamel expressed that his major stressor was the issue of his disabled son. He also discussed other extended family conflict. (Tr. 498) September 15, 1998: Mr. Crandall assessed Hamel’s GAF at 45 (serious). (Tr. 497) September 29, 1998: Mr. Crandall found Hamel to be talkative and laughing. The Beck Depression Inventory indicated that his depression was only moderate. Mr. Crandall opined that Hamel’s affect and behavior were not congruent with his feeling statements. (Tr. 496) October 15, 1998: Mr. Crandall opined that Hamel’s affect did not indicate much of a mood issue, but still assessed his GAF at 45 (serious). (Tr. 494)

November 2k, 1998: Hamel saw Charles P. Sprague, M.D., a psychiatrist. Mental status evaluation revealed a dysphoric mood. Hamel reported that he still had “suicidal ideation,” but resisted them because he believed suicide was cowardly. Dr. Sprague diagnosed depression not otherwise specified with anxiety, and indicated a GAF of 45 (serious). Hamel and Dr. Sprague discussed that the ongoing stress surrounding his eldest disabled son was detrimental to Hamel and his entire family, causing his younger children to act out. Hamel was no longer able to deal with his eldest son’s violent behavior. Dr. Sprague opined that Hamel was benefitting from his ongoing therapy. (Tr. 488)

December 10, 1998: Hamel saw his doctor for follow up on complaints of left leg weakness. Examination revealed tenderness at L5-S1, but straight leg raising was negative. No new treatment was recommended. (Tr. 486)

December 22, 1998: Hamel told Dr. Sprague that he felt fidgety, but had stopped smoking. He reported his mood as “pretty good,” but that holiday stress was weighing on him. (Tr. 484)

December 28, 1998: Hamel saw Mr. Crandall for individual therapy. Mr. Crandall observed that Hamel’s mood was positive, and Hamel reported that he felt his despair had lessened. Hamel told Mr. Crandall that he had written several hundred dollars in “no fund” checks to give his family a good Christmas. He reported fatigue and difficulty sleeping. Mr. Crandall recommended that Hamel seek a sleep study as his depression issues did not seem that severe. (Tr. 483) January 13, 1999: Hamel’s mood was stable and he continued to feel stressed about managing his disabled son. (Tr. 482) January 25, 1999: Hamel’s mood was within normal limits, but he stated that he had been feeling down. Mr. Crandall believed that Hamel was a bit more stable. (Tr. 481) February 5, 1999: Mr. Crandall assessed Plaintiffs GAF at 60 (moderate). (Tr. 479) February 18, 1999: Hamel reported that his mood was improving, but that he had experienced some fleeting thoughts of wanting to be dead. GAF was assessed at 45 (serious). (Tr. 478) March 8, 1999: Mr. Crandall noted that Hamel presented with a more depressed mood than he had for several sessions. Hamel blamed his mood on the weather, not being able to work out in his garage, and conflict at home with his wife and sons. (Tr. 475) March 22, 1999: Hamel was still a bit down on, but reported that he had been doing some car repairs. (Tr. 471)

April 8, 1999: Hamel was seen by physical therapy to discuss his knee brace. He reported that his rubber brace was too hot and requested a canvas brace. (Tr. 466)

April 12, 1999: Despite continued issues regarding care and placement of his disabled son, Hamel’s GAF had increased to 51 (moderate). (Tr. 465) April 21, 1999: Hamel’s GAF was 52 (moderate). (Tr. 464)

April 23, 1999: Hamel told Dr. Sprague that he was less mean, less irritable, and probably more energetic with his medications. He did report, however, that he was having difficulty sleeping. Dr. Sprague prescribed a sleep aid. Mental status evaluation showed that Hamel appeared more relaxed, his mood was pretty good and more positive, and he had experienced only one episode of death wish since adding a new medication. Dr. Sprague opined that Hamel was doing much better on double antidepressant therapy. (Tr. 462)

May 11, 1999: At a therapy session with Mr. Crandall, Hamel was initially silly and not focused, but then began discussing his part-time job finding placements for foreign exchange students. His disabled son was participating and doing well in a day program, and would be spending his first weekend away from home. (Tr. 459)

May 12, 1999: Hamel told his physician that he was walking for exercise and had decreased his smoking. (Tr. 458)

June 2, 1999: Hamel’s therapy session with Mr. Crandall focused almost solely on Hamel’s frustrations surrounding his disabled son. (Tr. 455) June U, 1999: Hamel’s concerns again mostly surrounded his disabled son, but Hamel reported that the supportive services he was receiving from Mr. Crandall and the clinic were helping him to have fewer anger episodes. He also reported that his depression was minimal “much of the time.” GAF was assessed at 45 (serious). (Tr. 453)

June 17, 1999: A neurology clinic note stated that Hamel had left neuralgia or L3-L4 radiculopathy, and intermittent nerve impingement. (Tr. 451, 1075)

June 23, 1999: Hamel continued to express emotional difficulty surrounding the placement of his disabled son. Mr. Crandall-assessed his GAF at 51 (moderate). (Tr. 449) July 15, 1999: Hamel’s youngest son returned to counseling with him. Progress was made regarding Hamel’s communication style with his child. (Tr. 442)

July 22, 1999: Balachandran Wariyar, M.D., discussed with Hamel the results of a magnetic resonance imaging (MRI) scan performed two weeks earlier. The MRI scan showed “[l]eft lateral disc bulge reaching into the L5-S1 neural foramen and possibly compressing the left exiting L5 nerve root.” The doctor told Hamel it was nonsurgical. The impingement was due to a small lateral bulging disc. Hamel was instructed to continue wearing his knee brace and lose weight. (Tr. 281, 439, 1069)

July 26, 1999: Dr. Sprague described Hamel as pleasant, jocular, and intrusive “as usual.” He noted that Hamel’s biggest problem at that time was his sleep disturbance, and increased his sleep aid medication. (Tr. 438)

July 27, 1999: Hamel and his youngest son again met with Mr. Crandall. Hamel reported that his mood was “about as stable as has been for several weeks.” Mr. Crandall noted that Hamel had a wide range affect and was very verbal. Hamel discussed continued issues with the placement of his disabled son. (Tr. 436) September 8, 1999: Hamel told Mr. Crandall that his disabled son was placed the day before. Hamel expressed that this was emotionally more difficult than he had expected. His GAF was 51 (moderate). (Tr. 431)

September 2k, 1999: Hamel saw Dr. Sprague for follow-up. Hamel reported that he stopped taking the prescribed sleep aid due to side effects. He reported that he had been sleeping better and that his mood was “real good” since his disabled son was placed outside the home. Mental status evaluation was unremarkable. Dr. Sprague opined that Plaintiff was doing well on his current medications and working hard in therapy. (Tr. 421-422)

October 22, 1999: Mr. Crandall noted that Hamel and his family were continuing to adjust to the outside placement of his disabled son. Overall, Hamel’s depression was less and his marital relationship was stronger. (Tr. 411) November k, 1999: Mr. Crandall described Hamel as fairly stable. (Tr. 409) November 29, 1999: Mr. Crandall noted the Plaintiff had “many financial stressors, and the money will son be less as two sons will likely leave the home by January 2000. Thus his VA check will shrink.” (Tr. 406) January k, 2000: After feeling down through the holidays, Hamel commented that he was feeling less down and was taking responsibility to modify his feelings and behaviors to accomplish his goals. Hamel reported doing many auto repairs, and that the cold and strain had caused him pain in his hips and back. Hamel and his wife were throwing a graduation party for their son, and Mr. Crandall noted that one of Hamel’s family’s strengths was the way that they honored their children and celebrated their accomplishments. GAF was 55 (moderate). (Tr. 399)

January 12, 2000: Hamel saw Gordon Hrnicek, M.D., for a physical exam. The examination was largely unremarkable. Hamel was able to lie down and sit up on the examination table with minimal difficulty. He was not wearing any braces or using any assistive devices. Neurologically, Hamel’s reflexes and sensation were “perfectly okay” and he moved about very well. Dr. Hrnicek opined that there was a minimum of objective evidence of disability. He did comment that Hamel’s MRI suggested fairly significant disc disease and opined that Hamel should not lift more than 40 or 50 pounds. Dr. Hrnicek noted that Hamel “seemed very down to me, and I suspect that the majority of his disability involves mental capacities, and I won’t comment about that further at this time.” (Tr. 293-294)

January 18, 2000: Mr. Crandall noted that Hamel’s self-esteem was increasing. He looked better, and Hamel stated that he felt better. Hamel was finally able to express that he felt more comfortable now that his disabled son was out of the home. (Tr. 397)

January 21, 2000: Hamel underwent a consultative psychological evaluation with Barbara C. Schuett, M.A. The examination was unremarkable, including a specific notation that Hamel’s mood was not depressed. Adaptive functioning included Hamel’s report that he helped his wife watch the day care children, did yard work and work around the house, and worked on cars depending on how he was feeling. Hamel reported that in the evening he might watch television, work on the computer, or go to the garage and do something there. He stated that he had recently purchased a bicycle and was going to see if he could ride it. No difficulty with social functioning was noted. Hamel reported that his psychiatric medications were controlling his symptoms. He was able to concentrate and attend to tasks to completion. He was able to understand and remember short and simple instructions. He could relate appropriately to coworkers and supervisors, but in a boisterous and immature manner. He was able to adapt to changes in his life. Ms. Schuett assessed Hamel’s GAF at 55 (moderate) to 65 (mild). (Tr. 297-302)

January 27, 2000: Hamel reported during a neurology examination that his back problems were getting better. Review of an MRI revealed only mild L3-L4 involvement with no stenosis, and Hamel was asymptomatic at that time. Examination showed mild left-sided tenderness. Heel and tandem toe walking were well executed, and reflexes were equal and symmetric. (Tr. 394)

March 1,2000: Mr. Crandall described Hamel’s mood as euthymic and noted that the session began positively. Hamel expressed some good insights, and in a controlled manner was continuing to seek information about physical injuries his disabled son recently suffered at the state home. Mr. Crandall noted that Plaintiffs mood was stable overall and assessed a GAF of 55 (moderate). (Tr. 389) March 14, 2000: Hamel reported that he was in a very good mood, and Mr. Crandall noted that Plaintiff was joking and positive. Hamel reported that he was doing more odd jobs around the home which was good for his mood. (Tr. 388)

March 17, 2000: Hamel told his doctor that he was exercising by walking one-half to one mile, three to four times a week. (Tr. 387)

March 21 to July 6, 2000: Hamel continued to see Mr. Crandall, sometimes alone and sometimes with his wife. His GAF score went back and forth from 51 to 55 (moderate). (Tr. 381-86) July IS, 2000: Hamel reported that he had fewer and fewer negative thoughts, and never had thoughts of suicide anymore. Hamel discussed that he was in a “double bind” since he had been rated unemployable, because retraining would be at his own expense. Also, Hamel acknowledged that he made far more money collecting VA disability than he would make at most jobs. (Tr. 380) July 20, 2000: Hamel presented for therapy in a positive mood, and reported that he had no specific new stressors. (Tr. 379) August 7, 2000: Hamel came for therapy with his wife. He appeared relaxed and focused on her needs. (Tr. 378)

August SI, 2000: Hamel underwent a consultative psychological examination with A. James Fix, Ph.D. Mental status examination revealed that Hamel was boisterous and enthusiastic, and he cooperated entirely with the interview, but was dominant at times. Regarding affect and mood, Dr. Fix described Hamel as “emotionally brittle” and “rapidly changeable”. Speech was rapid and sometimes far too loud, and thought content often very superficial. Hamel was oriented in all spheres. Dr. Fix opined that Hamel functioned at least in the average range, and possibly significantly above the average range intellectually. He diagnosed depression secondary to medical condition, rule out bipolar disorder with irritability, alcohol dependence in long-term remission. He assessed a current GAF of 50 (serious), and a highest GAF of 70 (mild). Hamel described his daily activities. Dr. Fix stated that there did not seem to be severe restrictions of Hamel’s activities of daily living, although Hamel did not currently do much during the day. Hamel was able to sustain concentration and attention, and was able to remember and understand instructions. He had the ability to relate to others and could adapt to changes in his environment. (Tr. 331-36)

September 12, 2000: Hamel and his wife again saw Mr. Crandall for counseling, and Mr. Crandall noted that the tension level between them was very low. GAF was assessed at 55 (moderate). (Tr. 374)

September IS, 2000: Hamel saw Jane McDonald, M.D., for a consultative evaluation. Physical examination revealed no evidence of muscle spasm. Neurological examination evidenced that Hamel was able to get on and off of the examination table without a great deal of difficulty. He participated in range of motion testing with “good enthusiasm,” and had “increased two-point” discrimination in the lower bilateral extremities. Lower extremity reflexes were assessed at 2-I-/4+ and were symmetric. There was no evidence of peripheral edema. There was no gross impairment of Hamel’s gait and station, but he was unable to tandem walk and was either unable or refused to walk on his heels and toes. Dr. McDonald noted that there was no evidence of obvious mental illness or retardation. Dr. McDonald reviewed Hamel’s July 1999 MRI. She assessed Hamel as a person “who has a history of a back injury in 1979 and who has evidence of decreased sensation and radiculopathy of his lower extremities bilaterally, as well as a history of chronic pain and discomfort secondary to these symptoms.” Dr. McDonald opined that Hamel was disabled secondary to chronic depression and chronic low back pain with decreased mobility, decreased ability to perform work-related activities, inability to sit for long periods of time, and was unable to lift greater than 50 pounds. (Tr. 349-354)

September 15, 2000: Hamel saw Dr. Sprague. His mental status evaluation was unremarkable, and Dr. Sprague commented that Hamel was doing fairly well managing his depressive disorder. GAF was assessed at 55 (moderate). (Tr. 372-373)

September 21 to October 16, 2000: Hamel continued to see Mr. Crandall for individual and marital therapy, and GAF scores were routinely assessed from 51 to 55 (moderate). (Tr. 368-371) October SO, 2000: Hamel’s middle son attended the session and had just recently graduated from boot camp in Texas. Hamel had driven to Texas for the graduation, driven his son home from Texas for a visit, and was planning to drive him to his base in North Dakota after the visit. Mr. Crandall noted that Hamel was doing a good job parenting. (Tr. 367) November 9, 2000: Hamel presented for therapy exhausted from a 24 hour round trip to take his son to North Dakota. Mr. Crandall described Plaintiffs mood as “fairly stable” and assessed GAF at 51 (moderate). (Tr. 366) November 17, 2000: Hamel reported that he had been busy transporting his family to and from Grand Island as they only had one car and his wife did not like to drive on winter roads. He expressed concern over not working, but stated that he would lose his VA benefits if he did. Depression was noted to be mild and GAF was 55 (moderate). (Tr. 365) December 11, 2000: Hamel reported that his depression was mild and not present all the time anymore. He was considering reducing therapy frequency. (Tr. 1050)

December 20, 2000: Hamel saw his doctor. Examination was within normal limits. Despite Hamel’s reports of loud popping, examination of the neck showed good range of motion, no nodes or masses, and no significant crepitus. (Tr. 1122-1123)

January 18, 2001: Mr. Crandall described Hamel’s affect as bland, and noted he was not as open on that day. His GAF was assessed at 60 (moderate). (Tr. 1048)

January 25, 2001: Hamel was seen in the VA neurology clinic for lower back complaints. Examination was unremarkable. (Tr. 1056) January 31, 2001: Findings from a bilateral EMG were consistent with L4-5 radiculopathy. Hamel’s doctor recommended that he try to lose 15 pounds by the end of the year. (Tr. 1055)

February 2, 2001: Hamel’s youngest son attended his counseling session with Mr. Crandall. Hamel stated that he was feeling quite well with regard to mood. GAF was 61 (mild). (Tr. 1047) February 13, 2001: GAF continued at 61 (mild). Hamel expressed stress over financial issues. (Tr. 1046) February 27, 2001: Hamel’s mood was a bit down, describing disappointment over how his son’s wedding went and feelings of inadequacy at not being able to help his mother financially. (Tr. 1045)

February 12, 2001: A lumbar spine MRI showed slight anterolisthesis of L5 on SI with the suggestion of bilateral spondylolysis, stable degenerative disc disease at L5-S1 with suspected L5 nerve root impingement in the lateral neural foramen which was stable as compared to a prior study, interval progression of degenerative disc disease at L2-3 with stable disc dehydration at L3-4 and no evidence of neural compromise. (Tr. 1053)

March 5, 2001: Hamel saw Dr. Sprague. Mental status examination was unremarkable. No treatment changes were made or recommended. (Tr. 1044)

March 9, 2001: Mr. Crandall completed a “mental impairment evaluation” form. He indicated that Hamel suffers from mild depression which tends to promote isolating and negative thinking. He noted that Hamel’s prognosis was “good” and stated that Hamel had improved with medication and counseling treatment. He stated that no “overt psychological testing” had been completed in the clinic. In response to the question, “Does the conditions(s) or impairments) described above cause the claimant to be unable to perform his/her previous job or some other similar work?”, Mr. Crandall answered, “The Depression likely does not overtly limit him from working — The physical limitations do— & as a result promote some of the despair.” In response to the question, “Could performance of the claimant’s former job or other similar work have an adverse effect on his/her impairments)?”, he answered, “Is suspected that if he attempted physical type employment — he would enhance pain which then provokes the emotional aspect of his functioning. This is a complex cycle.” In response to the question, “Are there any specific activities which might aggravate the claimant’s condition(s) or impairments)? If so, how?”, he answered, “Not enough information to respond to this — It is known when faced with many stressors — he moves into negative thinking seeing no way to problem solve solutions— which leads to serious despair — He contends that continuous physical demand— leads to immobility. If he was working— got the back pain — which forced inactivity — likely he would again move into the helplessness state & despair.” In response to the question, “How often does claimant’s condition interfere with attention and concentration?”, Mr. Crandall put an “X” in the space beside the response of “Often” and added the word “Depression”. (Tr. 958-961,993-995)

March 13 to March 28, 2001: Hamel’s discussions with Mr. Crandall continued to surround family issues and coping strategies. GAF was 60 (moderate). (Tr. 1442-1443) April 23, 2001: Hamel was doing fairly well, but stressed over financial problems and communication issues with his spouse. GAF was assessed at 61 (mild). (Tr. 1034) May 10, 2001: GAF score was lowered to 60 (moderate). (Tr. 1441) May 30, 2001: Hamel presented in a serious manner and reported that he and his spouse had a serious disagreement a few days earlier. He had felt more depression since. (Tr. 1033)

June k, 2001: Hamel was seen in the VA primary care clinic with complaints of disturbed sleep due to back pain, bilateral leg pain, and left arm discomfort. He also reported some chest pain the previous day, and sometimes experience shortness of breath. Examination was unremarkable. (Tr. 1020-1021)

June 5, 2001: A neurosurgery consultation by Arun-Angelo Patil, M.D., showed that Hamel’s straight leg raising was limited to 80 degrees bilaterally. Some weakness of dorsiflexion was noted bilaterally, but Dr. Patil noted this could have been due to pain. Pinprick sensation was decreased at the outer aspect of the left leg An MRI showed mild anterolisthesis at S/l with possible spondylolysis at S/l, but these findings did not indicate significant change from a 1997 scan. The doctor recommended back exercises and would consider surgical intervention only if the exercises did not help and Hamel’s pain became unbearable. (Tr. 1018)

August 2, 2001: Hamel’s therapy appointment yielded a GAF score of 57 (moderate). Mr. Crandall noted that Hamel had a more negative attitude which Hamel attributed to family issues. Hamel reported feeling some despair, but did not feel it was serious and believed it would be short-term. (Tr. 1114)

September k, 2001: Hamel saw a nurse practitioner and complained of bilateral foot discomfort. He reported that he was on full disability, but that he watched his granddaughter, and did his own yard work and mechanical work. His examination was unremarkable. (Tr. 1103-1104)

September Ik, 2001: Hamel saw psychiatrist Navdeep Sood, M.D. His affect was of normal range and intensity, and his mood was euthymie. His insight and judgment were good, and memory was intact. Dr. Sood assessed a GAF score of 55 (moderate) and continued Hamel’s medications. (Tr. 1099)

October 2, 2001: Mr. Crandall noted that Hamel presented with a more bland affect, seemed irritable, and admitted that his mood was down. He assessed Hamel’s GAF at 52 (moderate). (Tr. 1097) October 2k, 2001: Hamel presented with a flat affect, and commented that he was really frustrated and discouraged, and that he feared moving back into a more severe depression. Mr. Crandall indicated he would see Hamel on a more regular basis and again gave a GAF score of 52 (moderate). (Tr. 1093) November 19, 2001. Hamel presented with less attention toward his personal appearance, and continued to state that he felt stress over the management of the son and due to financial pressures. GAF was 53 (moderate). (Tr. 1091) December 5, 2001: Hamel’s GAF dropped to 42 (serious) after reporting that he had experienced suicidal thoughts and had a plan to use a gun. Mr. Crandall noted that Hamel’s affect was bland, but his motor activity was normal. Hamel was future oriented during his session, and reported no overt suicide plan at that time. (Tr. 1079)

December 13, 2001: Hamel followed up with his psychiatrist and reported that he was having problems with his son. Mental status examination revealed a depressed mood, but no other abnormalities. Dr. Sood diagnosed depressive disorder with a GAF of 50 (serious). (Tr. 1434)

December 19, 2001: Hamel’s therapy session showed a GAF of 51 (moderate) due to continued stress surrounding financial demands made by his son. Hamel reacted by writing $400 in bad checks to provide a good Christmas for the family. Mr. Crandall noted that while Hamel’s depression was more severe, it had reduced a bit at this visit. (Tr. 1432) January 8, 2002: Hamel reported continued stress with his son. Mr. Crandall noted that Hamel’s depression was increased and gave a GAF of 45 (serious). (Tr. 1429) January 29, 2002: Hamel saw Mr. Crandall together with his wife and younger son. His depression was better and his GAF was 55 (moderate). (Tr. 1428) February 8, 2002: Mr. Crandall noted that Hamel had received his decision from the ALJ denying his disability and was upset. His GAF was 42 (serious). In discussing the ALJ’s decision, Mr. Crandall explained to Plaintiff that his mental functioning had improved gradually over the course of time. (Tr. 1427)

February 13, 2002: Hamel met with Dr. Sood and was noted to be frustrated and upset over the denial by the ALJ. Dr. Sood rated Hamel’s GAF at 50 (serious). (Tr. 1425)

May 15, 2002: Mr. Crandall noted that Hamel’s depression was more pronounced. Hamel scored 24 on the Beck Depression Scale, which placed him in the moderate range. (Tr. 1408) July 11, 2002: Hamel told Mr. Crandall that he was doing “fair” and continued to discuss financial worries. GAF was 57 (moderate). (Tr. 1387) August 22, 2002: Mr. Crandall noted that Hamel was confused because the VA approved his disability, but Social Security turned him down. Hamel stated he felt like his country was not recognizing the loss he suffered while serving his country. He had a GAF of 53 (moderate). (Tr. 1383) September 5, 2002: Hamel again discussed the Social Security application with Mr. Crandall. GAF remained at 53 (moderate). (Tr. 1376)

September 19, 2002: Hamel saw Dr. Sood, and stated that he had gone to North Dakota and had a run in with his middle son, but that things had since settled down. Hamel denied any hopelessness or helplessness, and denied any problems with his sleep, appetite, or energy level. Dr. Sood assessed his GAF at 60 (moderate). (Tr. 1375) Hamel also saw Mr. Crandall, who assessed his GAF at 58 (moderate). (Tr. 1374)

October 3, 2002 to April 22, 2001: Hamel continued biweekly counseling sessions with Mr. Crandall. GAF scores fluctuated between 51 (moderate) and 61 (mild), and his issues continued to surround family and finances. (Tr. 1369-1373, 1357-1360, 1353-1354, 1333-1346, 1315-1320, 1305-1312, 1291-1296, 1286, 1279-1281, 1272-1276)

May 6, 2001: Hamel was seen by a nurse practitioner for evaluation and management of back pain. The assessment included: spondylolysis, congenital, lumbosacral region; pain in joint involving pelvic region and thigh; and neuralgia, neuritis, and radiculitis. (Tr. 1267-1269)

May 10, 2001: Mr. Crandall noted that Hamel was very upset after he and his son had an angry exchange of letters. GAF was 57 (moderate). (Tr. 1264) June 2 to July 28, 2001: Mr. Crandall assessed Hamel’s GAF at 54 and 55 (moderate). (Tr. 1252-1253,1256,1259-1260,1263)

August 1, 2001: Hamel saw Dr. Sood and reported on the favorable result in his Social Security appeal. Dr. Sood assessed his GAF at 60 (moderate). (Tr. 1243)

August 5, 2001: A physical examination indicated that Hamel could walk at least two miles daily with no anginal symptoms. The examination was essentially unremarkable. (Tr. 1239)

August 10 to September 22, 200k: Mr. Crandall assessed Hamel’s GAF at 55 (moderate) for three counseling sessions. (Tr. 1536,1235,1526)

September 28, 200k: Hamel underwent a left bunionectomy with a distal soft tissue procedure and proximal metatarsal osteotomy of his first metatarsal to correct a left hallux valgus deformity. (Tr. 1524)

October 6, 200k: Mr. Crandall noted that Hamel’s wife commented that she feels Hamel has bouts of despair, she feels frightened of him at those time and often wants to call the therapist to report on him. She further stated that Hamel becomes agitated, will pace, and appears over alert/tense or on the defensive. (Tr. 1523) October 20, 200k to December 2, 200k: Mr. Crandall assessed Hamel’s GAF at between 55 and 60 (moderate) during this period. (Tr. 1519-21, 1523, 1516-1518, 1501-1506)

December 8, 200k: Hamel saw Dr. Sood and reported that he had been doing better and had just gotten off crutches following surgery to left foot, which had improved lots of things for him physically. GAF was 60 (moderate). (Tr. 1499-1500)

December 15, 200k, to March 30, 2005: Mr. Crandall assessed Hamel’s GAF at between 54 and 59 (moderate). (Tr. 1490-1498,1467-1484)

April 8, 2005: Hamel saw Dr. Sood and reported that he was “doing pretty much the same” as his last visit. Dr. Sood again assessed GAF at 60 (moderate). (Tr. 1466)

April 13, 2005: Mr. Crandall noted that Hamel had a more pronounced limp. (Tr. 1463) April 27, 2005: Mr. Crandall assessed Hamel’s GAF at 59 (moderate). (Tr. 1460-1462) May 18 to July 27, 2005: Hamel continued to see Mr. Crandall on a regular basis. GAF ranged between 57 and 60 (moderate). (Tr. 1596-1610)

August 10,2005: Hamel saw Dr. Sood. GAF was 60 (moderate). (Tr. 1589)

August 10 to November 2, 2005: Hamel’s GAF ranged from 53 to 60 (moderate) while seeing Mr. Crandall for therapy. (Tr. 1586,1566-1580)

B. Supplemental Hearing Testimony

Hamel appeared and testified at an administrative hearing held on May 25, 2005. (Tr. 1611-1666) He believed that his most serious impairment was his low back impairment. He stated: “My lower back is gone. And as far as you know, the strength is there, you know, for you know the muscle strength is there. But the skeletal structuring and disc that serve the vertebra just, if I overdo it, even just walking, you know, my leg will go out due to neuropathy. And I’ll fall at times ... I’ve had the constant discomfort, pain, in my lower back, my neck.” (Tr. 1625, 1629-1630) Hamel testified that he has pain from the mid point of his back down into his tailbone and hips. To relieve the pain he uses “meditation” and lies down for relief, on almost a daily basis, anywhere from an hour to three hours. (Tr. 1632-1633) He also complained of neck pain that caused severe headaches. (Tr. 1625) Hamel described neuropathy that sometimes caused him to fall. He testified that his leg would go out on him and he would fall two to three times a week, from 1997 until six to eight months prior to the May 2005 hearing. (Tr. 1630) Hamel was given a brace for his knee, but testified that it was uncomfortable and so he did not wear it as often as recommended. (Tr. 1631) He only wore it once or twice a month. (Tr. 1631) Hamel testified that he had seen a neurologist and an orthopedic surgeon and they both said surgery on his back was not recommended because it would have no long term benefit. (Tr. 1633) Hamel testified that he could be up on his feet about two to two and one-half hours out of any eight hour workday, and could sit for three hours out of an eight hour workday. (Tr. 1640)

Hamel also discussed his therapy with Mr. Crandall. (Tr. 1626) Hamel stated that he started therapy because he was tired of being angry and in pain. (Tr. 1634) There are times he did not want to get out of bed. (Tr. 1634) He stated that his depression is really bad maybe two or three times a month, and mild daily. (Tr. 1634) He had self-esteem issues because he could no longer work. (Tr. 1634) He had considered suicide more than once. (Tr. 1634) Hamel reported that therapy had helped how he defined himself. (Tr. 1635) He said that he had gotten somewhat reclusive and didn’t want to be out in crowds. (Tr. 1635) He stated that he did not handle stress well, and that the things that caused him stress included money matters and his children. (Tr. 1636) He is worried about his oldest son who is handicapped with severe mental retardation and has intermittent explosive disorder. (Tr. 1637-1638) Hamel testified that the medications he took for his mental impairment were 85 percent effective. (Tr. 1639)

Hamel’s wife also testified at the hearing. (Tr. 1644) She stated that Hamel falls down at least once a week, sometimes more, due to his back; and he complains of pain at least once a day. (Tr. 1646) She said that Hamel took medicine and would lie down to ease his pain. (Tr. 1647) Hamel’s wife stated that his impairments had affected his ability to do things around the house. (Tr. 1647-1648) He had trouble sleeping and had become anti-social. (Tr. 1648) She testified: “Well, sometimes he can’t go to sleep. And sometimes he sleeps like it seems like forever. Like he doesn’t want to get up that day. He doesn’t have a reason or whatever.” (Tr. 1648) She said this happens once or twice a week. (Tr. 1648)

A vocational expert (VE) appeared and testified at the hearing. (Tr. 1659) The ALJ described an individual such as Hamel, “someone the same age, education and past work history, both as to exertional as well as skill level. Any transferable skills that may come by virtue of that. And then with these further limitations and qualifications, that such a person could lift up to 20 pounds on a occasion, and 10 pounds on a frequent basis. Would be allowed to alternate pretty much at will with sitting and standing. But could probably sit up to 30 minutes at least at one time, and stand from 10 to 30 minutes as well. That such person should avoid cold and hazards such as heights and open machinery. That such a person could occasionally stoop and bend. I think he testified that he could stoop and pick things up off the floor. So that, to that degree. Certainly should not be climbing any kind of, of ladders, scaffolds or anything like that. Would have then also moderate limitations in the ability to perform within a schedule. To interact with the public. To accept instructions and respond appropriately to supervisors. To get along with peers and coworkers. And would have mild degree of problem in doing activities of daily living as well as social functions. And a mild limitation in the area of concentration, persistence and pace.” (Tr. 1661-1662) The VE testified that such an individual could not perform Hamel’s past relevant work, but could perform other work existing in significant numbers in the national economy, including light hand packager, sedentary hand packager, sorter, and assembler. (Tr. 1662)

The ALJ then asked a second hypothetical which was identical to the first, except that he changed the limitation on attention and concentration from “mild” to “often”. The VE testified that with this change it would change her response, that Hamel would not be able to sustain work with this limitation, as a person could not meet the demands of production work. (Tr. 1663) Hamel’s attorney asked the VE if there were one to two times a week Hamel would not get out of bed, whether he would be able to do any of the jobs identified. The VE responded: “If he weren’t able to attend work one to two times a week, he would not be able to sustain work, and being acceptable.” (Tr. 1664)

C. Consultative Examinations

At the close of the hearing, the ALJ indicated that since Hamel had not been examined by any Social Security examiners for an extended period of time, he would have him examined both physically and mentally. (Tr. 1665)

Mr. Hamel was examined by A. James Fix, PhD., on July 7, 2005. (Tr. 1537-1543)Hamel told Dr. Fix that he was “supposed to tell him I’m insane,” and that he was there due to “some more bureaucratic bullshit.” (Tr. 1537) Hamel stated that he had “mild-to-moderate” depression. (Tr. 1538) On the mental status examination, Dr. Fix noted that Hamel seemed a bit bored and mildly distractive. He never directed anger at Dr. Fix, but, outside of the interview room, he said some very angry statements. (Tr. 1540) Hamel related that his daily schedule started when he arose around noon. (Tr. 1541) He did yard work, attended appointments, worked on model ears and airplanes, and sometimes did housework or repairs around the house. (Tr. 1541) He watched television and played video games. (Tr. 1541)

Dr. Fix administered the Minnesota Multiphasic Personality Inventory-II (MMPI-II), which yielded a “wildly abnormal” validity pattern and was invalid. (Tr. 1541) The test did, however, indicate, that Hamel was “attempting to describe all sorts of psychiatric disturbance and impairment, some of the contradictory, as a whole, virtually never seen altogether in one clinical disorder.” (Tr. 1541) Dr. Fix noted: “It is possible that he is exaggerating symptoms in order to gain attention or services. Sometimes an individual involved in litigation will produce this exaggerated clinical scale profile in order to win his case.” (Tr. 1542) Based on interview and testing, Dr. Fix opined that Hamel’s main issue was a personality disorder rather than a primary psychiatric disorder. (Tr. 1542) His diagnosis was depression secondary to medical condition; possible unknown substance abuse; personality disorder, not otherwise specified, without any social features. On Axis V, he reported a GAF score of current 45 (serious), highest in last year 55 (moderate). (Tr. 1542-1543)

Dr. Fix completed a “Medical Source Statement of Ability to Do Work-Related Activities (Mental)” form on July 7, 2009. (Tr. 1544-1546) He opined that Hamel’s ability to understand, remember and carry out instructions was not affected by his mental impairment, and also noted that Hamel exhibited normal to above average cognitive abilities. (Tr. 1544) His ability to interact appropriately with the public, coworkers, and respond appropriately to work pressures was only slightly affected, but there was a marked restriction in Hamel’s ability to interact appropriately with supervisors. (Tr. 1545) “Marked” was defined as: “There is serious limitation in this area. The ability to function is severely limited but not precluded.” (Tr. 1544) Dr. Fix opined that Hamel would have no difficulty responding appropriately to changes in a routine work setting. (Tr. 1545) Dr. Fix noted that Hamel reported apathy which could reduce his effort on a job. (Tr. 1545) The Medical Source Statement form did not ask the psychologist for an opinion regarding Hamel’s ability to concentrate.

On July 11, 2005, Hamel underwent a physical consultative examination with Jennifer Lynn King, M.D. After examination and review of x-rays and an MRI, Dr. King assessed neck and back pain with some MRI findings and physical findings supportive of Hamel’s claim. She noted: “He has slight decreased range of motion with cervical extension. He has significant crepitus with movement of his cervical spine. He denied any pain to palpitation along the trapezius and complaints of mild pain to palpitation along the cervical vertebra. He also complains of some pain to percussion along the lower lumbar vertebrae and on the paraspinus muscles bilaterally. He has a positive straight leg raise bilaterally in the supine position and with testing and range of motion of the hips. Actually with evaluation of the left hip, he complained of excruciating pain and then was minimally able to cooperate with the remainder of the examination including range of motion of the lumbar spine.... Two views of the lumbosacral spine were obtained. He has mild spondylolisthesis. He has significant degenerative changes present. There is no evidence of compression fracture. Prior MRI was reviewed with last record being August 2003. At that time, he had slight anterolisthesis of L5-S1 with bilateral spondylosis and he had a suspected L5 nerve root impingement.” Dr. King also assessed hypertension, palpitations, and hyperlipidemia, all of which were controlled with treatment. Hamel told Dr. King that he felt his depression was “fairly adequately” controlled. Dr. King declined to complete the “Medical Source Statement of Ability to do Work-Related Activities (Physical)” form, stating that she was not qualified or certified to perform this examination. (Tr. 1547-1552)

D. The ALJ’s Decision

On October 20, 2005, the ALJ issued a decision finding that Hamel (1) has not performed substantial and gainful work activity since August 15, 1998; (2) has a depressive disorder, not otherwise specified, and discogenic and degenerative disorders of the spine; (3) does not have impairments that meet or equal any of the listings; (4) is unable to perform his past relevant work; and (5) has the residual functional capacity for other work that exists in significant numbers in the regional and national economies. (Tr. 1155-1156) Accordingly, the ALJ once again found that Hamel is not disabled, and “is not entitled to a period of disability or to the payment of disability insurance benefits under Title II of the Social Security Act, as amended.” (Tr. 1156)

The ALJ also made a specific finding that Hamel’s testimony, “insofar as it attempted to establish total disability, was not credible in view of the criteria set forth under 20 CFR 404.1529, Social Security Ruling 96-7p, and Polaski v. Heckler, supra.” (Tr. 1156) In analyzing Hamel’s credibility, the ALJ stated:

At the hearing the claimant testified he is unable to work due to lower back problems, explaining that if he “over does it” when walking, his leg will go out from neuropathy and he will fall. In addition, he suffers from “neck problems” and experiences “calcification” of the cervical vertebrae which causes pressure and severe headaches. He stated he used to see a physician’s assistant (PA) at the VAMC every 6 months, but is now seen once a year, due to the busy appointment schedules at the VA. He stated he sees Merrill Crandall for “counseling” and sees him about every other Wednesday. He first sought therapy with Mr. Crandall in 1998. Mr. Hamel explained he has had back problems since August 1998 and experiences “constant discomfort” and pain in the low back and neck. He reported he has a knee brace but he does not wear it all the time as it “overheats” his leg. He stated he is unable to stand at the sink and wash dishes very long without needing to sit down. He has difficulty getting comfortable when sitting as he experiences sensations of numbness, tingling, and sitting on nails. He explained his pain is exacerbated with over activity, climbing stairs, or walking. Mr. Hamel reported he takes medication for pain and needs to lie down (anywhere from 1 to 3 hours) and tries to nap to make it work. He reported his pain level affects his ability to maintain concentration and attention and that he always feels fatigued and will experience intermittent splitting headaches and burning in his eyes. He stated he has sought consultation with a neurologist and orthopedist regarding his back problems, and both specialists did not recommend surgery as they did not believe it would provide him with a “long term” benefit. Mr. Hamel declared he decided to seek counseling through the VA because he had contemplated suicide in the past because he was tired of hurting and being angry. He stated that since August 1998 he had experienced times when he does not want to get out of bed (i.e., approximately 2 to 3 times a month), but that since he started counseling with Mr. Crandall he does not experience as many thoughts of suicide. He also reported being stressed and angry over financial and family matters and that his depression interferes with his sleep, contending he has not had a “restful sleep” in years due to pain. He stated he has trouble completing things and that he gets distracted and forgets things. Mr. Hamel stated he utilizes medication for his mental conditions and that he feels they are about 85% effective, adding he feels the effectiveness has increased lately.

Also testifying on behalf of the claimant was his wife, Ramona. Mrs. Hamel testified that if the claimant stands or sits very long he will have pain. She also stated he falls on a weekly basis. Mrs. Hamel reported the claimant takes pain medication and lies down and will “meditate” to ease his symptoms. He also finds walking around helps a bit. She stated the claimant will try to wash dishes but it hurts his back. He also will mow the grass, but it takes him a long time to complete. He uses a riding lawn mower to complete this task and usually mows for about 10 to 20 minutes and then will sit on the porch and have a cigarette and walk around before continuing. Mrs. Hamel stated the claimant is not very social and tries to avoid people. She reported he continues to have anger problems and will scream and throw things. She stated Mr. Hamel has problems with concentration and attention and will forget what he is talking about and that he often starts something and then becomes distracted and forgets what he was doing. She reported the claimant’s relationships with his sons are strained. Mrs. Hamel explained the claimant gets angry about “every day” things, whether it’s a bill they don’t have money for, or if their puppy has an accident. She stated the claimant watches television occasionally and that he will get up to stand or walk around during programs. Mrs. Hamel declared the claimant underwent toe surgery last year and was required to wear a “boot” and use crutches. Due to falling with the crutches, he was provided a wheelchair by the VA. She explained that the claimant’s legs go numb and he needs help getting off the toilet or out of the tub approximately 1 to 2 times a month. She stated the claimant continues to pursue hobbies but not as much as he used to. They occasionally go to counseling together to discuss family and marital issues.

In the instant case, the record shows that the claimant’s medically determinable impairments could reasonably be expected to produce the type of symptoms described during the course of his testimony. Therefore, in accordance with 20 CFR 404.1529 and SSR 96-7p, it must now be determined whether the claimant experiences such symptoms in such intensity, and of such frequency and duration, as would preclude all types of substantial and gainful work activity. As noted previously, inherent in such analysis is an assessment of the claimant’s credibility. The claimant has testified he is unable to work due to chronic back pain. He also experiences problems with depression. Although the claimant does have medically determinable impairments, there is nothing in fi