Ball v . Shalala, Secretary CV-94-350-L 04/24/95 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Albert L . Ball

v. #C-94-350-L Donna E . Shalala, Secretary of Health & Human Services

ORDER

Plaintiff, Albert Ball, seeks review, pursuant to

(g), of a final determination of the Secretary of Health and

Human Services (HHS) denying his application for Social Security

benefits. Now for the court's consideration is plaintiff's

motion for order reversing the decision of the Secretary. For

the reasons set forth below, plaintiff's motion is granted.

BACKGROUND On February 1 2 , 1987 plaintiff, Albert L . Ball, sustained an

injury to his lower back in the course of his employment as a

truck driver for Allen-Rogers Corporation. The injury occurred

while M r . Ball was using a two-by-four to assist in moving a fork

lift which had become hung up between the lip of the loading dock

and M r . Ball's truck. When the two-by-four slipped, M r . Ball

fell in a twisting motion into a cement block wall and immediately felt the onset of a burning pain in his left lower back. Mr. Ball received treatment for his injury at the Mary Hitchcock Memorial Hospital in Hanover, New Hampshire on February 1 2 , 1987. The initial diagnosis was "low back pain secondary to muscular strain." The treatment that was provided for the injury included bracing, bed rest, pain medications and anti-inflam- matory medications. However, when M r . Ball's condition did not significantly improve after several weeks, he began treatment with Christopher Walton, M.D., an orthopedist at Mary Hitchcock Memorial Hospital. In addition to the bracing and anti- inflammatory medications, D r . Walton treated M r . Ball with physical therapy and miscellaneous injections into the lower spine. Treatment with D r . Walton continued through April, 1987 without providing significant improvement.

On July 2 0 , 1987 M r . Ball began treatment with Arthur J. Pistey, D.C. Ultimately, in late September, 1987, M r . Ball was able to return to work as a truck driver for Allen-Rogers Corporation.

In June, 1988, M r . Ball sustained another injury to his lower back/hip when he fell off a truck. Along with causing a large bruise to his hip area, this accident significantly exacerbated M r . Ball's previous condition. Treatments for this

2 second injury were provided at Lakes Region Hospital and, on an ongoing basis with D r . Pistey. Efforts to return to work in the fall of 1988 were unsuccessful and ultimately M r . Ball was forced to leave his job in early November, 1988. Since that date Mr. Ball has continued to be unemployed due to his ongoing back/hip problems. M r . Ball had been employed by Allen-Rogers as a truck driver for approximately 25 years.

In an attempt to overcome the limitations imposed by the second injury, during the spring of 1989 M r . Ball became actively involved in a vocational rehabilitation program offered through Liberty Mutual Insurance Company. These efforts included a twelve month in-patient program at Liberty's facility in Boston, Massachusetts. The purpose of this rehabilitation effort was to increase M r . Ball's ability to sit so as to enable him to return to work driving a vehicle. At the conclusion of the program the maximum period of time that M r . Ball could comfortably drive a vehicle continued to be extremely limited. The physician at the rehabilitation center, Alan Weiner, M.D., concluded that further efforts were futile. Additionally, D r . Weiner concluded that the injury of June, 1988 had significantly increased the extent of disability as compared to the original injury of February, 1987.

Mr. Ball filed for disability insurance benefits under Title II of the Social Security Act on January 1 9 , 1993. After

3 receiving an initial denial and a denial of his Request for

Reconsideration, a hearing was held on August 1 9 , 1993 before

Administrative Law Judge (ALJ) William J. Wilkin. By decision

dated November 9, 1993, the ALJ ruled that M r . Ball was not

disabled as defined under the Social Security Act. A timely

request for review was filed by the claimant with the Office of

Hearings and Appeals on January 1 1 , 1994, and this request was

denied on May 6, 1994.

Plaintiff now alleges that the decision of the Secretary,

through the ALJ, represents an abuse of discretion and an error

as a matter of law.

DISCUSSION

An individual seeking social security disability benefits

will be considered disabled if he is unable "to engage in any

substantial gainful activity by reason of any medically deter-

minable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a

continuous period of not less that 12 months."

(i)(1)(A)(Supp. V 1981); 42 U.S.C. § 1382c(a)(3)(A) (1976); See

Faford v . Shalala,

(D.Mass. 1994). The Secretary

of Health and Human Services will find a claimant disabled only

if the claimant's

4 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, edu- cation, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d)(2)(A) (1994).

The Secretary utilizes a five-step sequential evaluation,

set forth in

and 416.920, in considering

disability claims. This five-step procedure is summarized as

follows: First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impair- ment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant can perform.

Berry v . Schweiker,

6 4 , 467 (2d Cir. 1982).

5 The scheme of the Act places a very heavy initial burden on

the claimant to establish the existence of a disabling impair-

ment. Bowen v . Yuckert,

3 7 , 146-47 (1987); Santiago v .

Secretary of HHS,

, 5 (1st Cir. 1991). To meet this

burden, the claimant must prove that his impairment prevents him

from performing his former type of work. Gray v . Heckler,

(1st Cir. 1985) (citing Goodermote v . Secretary,

, 7 (1st Cir. 1975)). The claimant is not required to

establish a doubt-free claim; the initial burden is satisfied by

the usual civil standard, a "preponderance of the evidence." See

Paone v . Schweiker,

0 8 , 810-11 (D.Mass 1982); see

also 1 Unemployment Insurance Reporter (CCH) 1 2 , 679 (April 1 5 ,

1985). Further, the claimant must show a "medically determin-

able" impairment, and only in a rare case can this be shown

without medical evidence. Thompson v . Califano,

(1st Cir. 1977) (citing 42 U.S.C § 423(d)(1)(A)); Ramirez v .

Secretary of Health, Education and Welfare,

0 2 , 903

(1st Cir. 1976).

Once a plaintiff has shown an inability to perform his

previous work, the burden shifts to the Secretary to show that

there are other jobs in the national economy which the claimant

can perform. Vazquez v . Secretary of Health and Human Services,

(1st Cir. 1982). In assessing a claim for disability,

6 the Secretary shall consider objective and subjective factors,

including the following; (1) objective medical facts; (2) claim-

ant's subjective evidence of pain and disability as testified to

by the claimant or other witness; and (3) the claimant's educa-

tional background, age and work experience. See e.g., Avery v .

Secretary of Health and Human Services,

(1st Cir.

1986); Goodermote,

. If the Secretary shows the

existence of such jobs, then the overall burden remains with the

claimant. Hernandez v . Weinberger,

(1st Cir.

1974); Benko v . Schweiker,

9 8 , 701 (D.N.H. 1982).

A finding by the Secretary that a claimant has not shown

disability is conclusive if supported by substantial evidence.

42 U.S.C §§ 405(g), 1383(c)(3); Ortiz v . Secretary of HHS,

(1st Cir. 1991). Substantial evidence i s : "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol- idated Edison C o . v . NLRB,

9 7 , 229 (1938). "[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." NLRB v . Columbian Enameling & Stamping Co.,

9 2 , 300 (1939). This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusion from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.

Consolo v . Federal Maritime Com.,

0 7 , 620 (1966) (citations omitted).

Although it is for the Secretary to weigh and resolve

7 conflicts in the evidence, Burgos Lopez v . Secretary of Health & Human Services,

7 , 40 (1st Cir. 1984)(citing Sitar v . Schweiker,

9 , 22 (1st Cir. 1982)), the court is em- powered to scrutinize the record as a whole and determine the reasonableness of the decision. Ortiz,

. Upon review, a court must be content that the claimant has had a "full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act." Gold v . Secretary of Health, Education and Welfare,

8 , 43 (2d Cir. 1972); Hankerson v . Harris,

(2d Cir. 1980).

With the above principles in mind, the court reviews plaintiff's motion to reverse the decision of the Secretary.

In considering the five-step sequential evaluation set forth in

and 416.920, it is clearly evident that at the time of the administrative hearing M r . Ball was not currently engaged in substantial gainful activity. Also apparent at the time of the administrative hearing, M r . Ball met the special earnings requirements of the Act. Finally, from the reports and evaluations performed by the various medical specialist, it is evident that M r . Ball's conditions was not of the caliber resembling an "automatically disabling" condition under the Act. Therefore, reviewing the evidence and arguments presented, the court opines the ALJ's conclusion that "the

8 medical evidence establishes that the claimant has a severe

impairment of chronic sacroiliitis but does not have an

impairment or combination of impairments listed in or medically

equivalent to one listed in Appendix N o . 1 , Subpart P,

regulations N o . 4 (20 CFR 404.1525 and 1526)" is supported by

substantial evidence.

In continuing with his evaluation, the ALJ next considered

Mr. Ball's residual functional capacity (RFC) and whether this

RFC enabled M r . Ball to perform jobs in the regional and national

economies. Pertinent to the ALJ's consideration of M r . Ball's

RFC (step 4 of the sequential evaluation), the ALJ concluded that

Mr. Ball, has the residual functional capacity to perform the exertional and nonexertional requirements of light work except for lifting and/or carrying more than 25 pounds; sitting, standing and/or walking for more than one hour at a time; performing frequent pushing, pulling, bend- ing, squatting, crawling, climbing and reaching over the shoulder and performing extensive driving of auto- mobile equipment.

Based on this RFC determination, the ALJ then concluded,

based on step 5 of the sequential evaluation, that although M r .

Ball's limitations do not allow him to perform the full range of light work, . . . there is a significant number of jobs in the national economy which he could perform. Examples of such jobs are as a delivery driver and a chauffeur; these jobs exist in the national economy in numbers of over 375,000.

9 It is the step 4 and step 5 conclusions, by the ALJ, which

plaintiff maintains is an abuse of discretion or error as a

matter of law. As stated by the plaintiff, "it is clear that the

weight of the evidence is contradictory to the findings laid out

in the [ALJ's] decision." Particularly, "[t]he evidence

introduced indicates pain associated with a severe medical

impairment." "Because the ALJ gave no explanation as to why some

evidence was not found to be credible and failed to evaluate

plaintiff's subjective pain with due consideration of all

factors", the decision of the ALJ denying Social Security

benefits is the product of an abuse of discretion and an error of

law. Thus, the plaintiff contends, not only did the ALJ err in

discounting subjective complaints of pain at step 4 of the

sequential evaluation, but the ALJ also erred in discounting the

complaints at step 5 of the evaluation.

It is beyond peradventure that a claimant's subjective

complaints of pain are to be considered if the claimant has "a

clinically determinable medical impairment that can reasonably be

expected to produce the pain alleged." Da Rosa v . Secretary of

Health and Human Services,

4 , 25 (1st Cir. 1986)

(citing Avery v . Secretary,

9 , 21 (1st Cir. 1986)); see

(d)(5)(A);

. Further, upon

the recognition of a medical impairment, the effects of a

10 claimant's pain must be considered at each step of the sequential

evaluation process.

(d). "While medical

history and objective medical evidence are usually reliable

indicators from which to draw reasonable conclusions about the

intensity and persistence of pain and its effect on work

capacity, it is recognized that situations do exist in which an

individual's reported symptoms of pain suggest functional

restrictions of a greater degree than can be demonstrated by

objective medical evidence alone." Morin v . Secretary of Health

and Human Servs.,

(D.N.H. 1992);

3 ;

(c)(3). "A claimant's

symptoms, including pain, will be determined to diminish capacity

for basic work activities to the extent that the alleged func-

tional limitations and restrictions due to those symptoms can

reasonably be accepted as consistent with the objective medical

evidence and other evidence." Morin,

;

(c)(4);

(d). In determining the

appropriate weight to be given allegations of pain, the First

Circuit has stated that "complaints of pain need not be precisely

corroborated by objective findings, but they must be consistent

with medical findings." Dupuis v . Secretary of Health and Human

Services,

2 2 , 623 (1st Cir. 1989).

Against the aforementioned legal backdrop, in the instant

11 case the ALJ states that the "claimant's testimony and alleg- ations regarding subjective complaints, including pain, are not fully credible . . . ." T r . 3 6 . Presumably, the ALJ draws this conclusion through assessing M r . Ball's activities of daily life, including M r . Ball's ability to drive a 35-mile distance, ability to walk for one-half mile at a time, and ability to watch television, play cards, and visit with friends. Consequential to the credibility determination, the ALJ then proceeded to characterize M r . Ball's RFC in terms of "light work", with limitations involving lifting, sitting, standing or walking for more than one hour at a time, and frequent pushing, pulling, bending, squatting, crawling, climbing, etc. T r . 37

However, an actual review of the administrative transcript reveals M r . Ball's physical ability and daily activities are far more limited than that portrayed by the ALJ. On questioning by his lawyer and the ALJ, M r . Ball testified that his pain sharply increases with even small degrees of physical movement or exertion. T r . 63-64. Further, due to the severity of his pain, Mr. Ball testified he makes use of a TENS Unit, but even with such use he is forced to lie down two or three times a day, for anywhere between one-half to an entire hour at a time. T r . 63- 6 4 , 7 8 . M r . Ball further testified, without any form of ambi- guity, that he is unable to drive long distances without the

12 onset of severe pain (Tr. 6 6 ) , cannot do yard work or enjoy long- time hobbies like hunting and fishing (Tr. 67-68), has to have repeated help from his wife to tie shoe laces (Tr. 7 8 , 8 2 ) , and is limited in his ability to do other chores (shopping (Tr. 65- 66) and cooking (Tr. 6 5 ) ) . In fact, during the course of the administrative hearing, M r . Ball had to stand-up due to back pain experienced by sitting for a time. T r . 6 9 . Finally, as indicia of the severity of his condition, M r . Ball testified that when the pain becomes so unbearable during the course of the night when he attempts to sleep, he is obligated to wake up his wife to roll him over because he is unable to change positions on his own. Tr. 7 8 .

In addition to claimant's testimony, medical records and evaluations support M r . Ball's complaints of pain and the severe limitations associated with the pain. A report, prepared by Arthur J. Pistey, D.C. on December 1 2 , 1990, states that

[a]t this time we must assume that M r . Ball suffers from chronic severe sacroiliitis which is non-remit- ting. Attempts to drive only exacerbate his condition. The passive therapies that I provide him at this time are only palliative. . . . Doctors of several speci- alties have examined him, all related diagnostic proce- dures have been performed and no one has been able to alleviate M r . Ball's condition.

Tr. 268.

Further, a Preliminary Vocation Assessment Report compiled

13 on July 7 , 1992 by Rehabilitation Services Associates, provides the following information:

In the course of a 24-hour day, M r . Ball spends approximately 15 hours lying down, four hours sitting, and five hours standing or walking. He tries to take a one-hour walk every day. He usually drives a little each day and cooks a little each day. Activities around the house which he did but no longer does in- clude vacuuming, mopping, gardening, yard work, snow shoveling, and (stacking) cord wood.

None of the treating or consulting Physicians has recommended surgery, physical therapy, or other medical treatment. It is the consensus of these Physicians that the primary method to control M r . Ball's pain is to limit physical activities such as stooping, bending, and lifting which exacerbate his pain symptoms.

The combination of M r . Ball's vocational handicaps and his age virtually preclude the possibility of his obtaining and maintaining competitive employment at the present time or at any time in the future.

Tr. 2 8 0 , 2 8 1 , 283.

While the ALJ's conclusions are entitled to deference, his

decision here, reflecting M r . Ball's RFC for light work, is not

supported by substantial evidence. Rather, the evidence supports

the conclusion that M r . Ball experiences very severe pain, and as

a result of such severity, he is significantly dependent upon

others in order to perform even the most rudimentary tasks.

In addition to failing to factor in complaints of pain

14 during the RFC determination, the ALJ also failed to characterize or properly reflect the subjective pain complaint into his various hypotheticals posed to the VE during step 5 of the sequential evaluation. Principally, in the first two hypotheticals posed to the V E , the ALJ assumed a light work function (Tr. 8 6 ) , light lifting, and a limitation whereby an individual would not have to stand, stoop, or bend over the work for more than a few minutes and sitting would be limited to one hour or less. T r . 86-89. No mention was made in these first two hypotheticals of a limitation deriving from pain. Based on these hypotheticals, the VE concluded an individual with such limit- ations would be able to work as a delivery driver or chauffeur.

In the third, fourth and fifth hypotheticals, the ALJ included a variety of limitations reflective of M r . Ball's condition, but here again failed to incorporate any restrictions deriving from pain. T r . 90-94.

In the last hypothetical posed to the V E , the ALJ for the first time, and only briefly, posited questions reflecting the necessities of rest, reclining or lying down as a result of pain. Tr. 9 4 . Interestingly, in response to this hypothetical in which pain was presented as a limitation, the VE testified that there would be no jobs available or able to be performed by an indiv- idual who had to rest, recline or lie down after a period of two

15 hours at a time. T r . 9 4 . Perplexing enough, in his ultimate findings, the ALJ nonetheless determined that,

[a]lthough the claimant's limitations do not allow him to perform the full range of light work, using the above-cited rules as a framework for decision-making there are a significant number of jobs in the national economy which he could perform. Examples of such jobs are as a delivery driver and chauffeur . . . .

Tr. 3 6 , 3 7 .

To recapitulate, the court finds extremely puzzling that portion of the ALJ's decision finding M r . Ball capable of working as a delivery driver or chauffeur, when, in a prior stroke of the word processor keys, the ALJ determined M r . Ball was not able to perform "extensive driving of automobile equipment." Tr. 3 7 .

Even more baffling to the court is the ALJ's complete disregard for M r . Ball's subjective complaints of pain, when during the course of the administrative hearing, the claimant, his wife, as well as various doctors, made repeated reference to pain and the effects deriving therefrom. In light of this consequential misstep by the ALJ, it follows that the ALJ's decision finding M r . Ball "not disabled" is not supported by substantial evidence.

Having determined that the ALJ's decision is not supported by substantial evidence, the next consideration is whether a remand for further consideration is warranted or whether a

16 complete reversal is appropriate.

The fourth sentence of

(g) empowers a court

to enter a judgment reversing the Secretary's decision, with or

without remanding the cause for a rehearing. Melkonyan v .

Sullivan,

9 , 9 8 ,

,

(1991). While this court concludes that the Secretary's denial

of benefits to M r . Ball is not supported by substantial evidence,

the court is also cognizant that no practical purpose would be

served by remanding the cause for further proceedings. Fowler v .

Bowen,

(8th Cir. 1989) ("When the record is

overwhelmingly in support of a finding of disability, there is no

need to remand to the Secretary for further consideration");

Morin,

(quoting Brown v . Bowen,

(W.D.Va. 1988) ("Nor, in the court's view, would remand

be in keeping with the `benevolent purpose of the Social Security

Disability Reform Act of 1984 . . . which is to pay benefits to

qualifying disabled persons and not just enable them to file

claims, appeal adverse decision and litigate perpetually in

court.'")

In addition to the well-recognized benevolent purpose of the

Act, see

this court is mindful that the testimony

of the V E , in essence, provides the final brush-stroke to the

painting delineating reversal. Succinctly, the VE's testimony

17 expressed that a person experiencing pain, to such a severe

degree the he is required to make frequent stops while driving in

order to walk and alleviate such pain, would not be able to

successfully perform the jobs of chauffeur and delivery driver.

Tr. 9 4 , 96-97. As the VE's testimony reflects the limitations or

physical ability retained by M r . Ball, the Secretary's decision

finding M r . Ball not disabled and capable of driving automotive

equipment must be reversed.

CONCLUSION For the reasons stated previously, plaintiff's motion is granted. The Secretary's decision is reversed, and the case is remanded, pursuant to sentence four of 42 U.S.C § 405(g), to the Secretary for the limited purpose of awarding benefits to M r . Ball in the appropriate amount based on his 1993 application for the same. The court will enter judgment accordingly. April 2 4 , 1995

Martin F. Loughlin Senior Judge

Frederick E . Upshall, Jr., Esq. David L . Broderick, Esq.

18