McCoy v. HHS CV-93-557-B 03/08/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sandra McCoy

v. No. 93-557-B

Secretary of Health and Human Services

O R D E R

An Administrative Law Judge ("ALJ") awarded Susan McCoy

supplemental security income ("SSI") and disability benefits for

a period of disability running from February 13, 1991 until March

17, 1992. However, the ALJ refused McCoy's reguest for

additional benefits because she concluded that McCoy's condition

had improved to the point that she ceased to be disabled after

March 17. McCoy challenges the ALJ's decision to terminate her

benefits.

I. BACKGROUND

McCoy injured her back at work on February 12, 1991, while

lifting a patient in her job as a teacher's assistant at a school

for developmentally disabled students. The next day she was

treated by Dr. Jean Smith, whose office notes state that McCoy's

spine was "without tenderness or spasm or swelling," that her range of motion had decreased due to "left paralumbar muscle

pain," and that she had a mild left lumbar strain. Dr. Smith

concluded that McCoy had a "musculoskeletal strain in the left

lumbar region," prescribed bed rest with medication, and referred

her to physical therapy. Because McCoy's back pain appeared to

be improving. Dr. Smith authorized her to return to work in mid-

March. However, McCoy's attempt to return to work proved

unsuccessful because working caused her symptoms to recur.

McCoy was referred to a neurologist, who found no

neurological problem, and an orthopedist, who concluded that she

had suffered a muscle sprain. Her doctors' notes for March and

April generally show that she continued to complain of lower back

pain which was treated with medication, rest, and physical

therapy. Examination generally showed that she had full range of

motion and x-rays did not indicate injury to her spine. The

doctors diagnosed muscle sprain in her back and then in her

shoulder. They recommended that she stay out of work

temporarily, anticipating that she would return by May. However,

by April, McCoy was experiencing more problems, including back

spasms, and her physical therapy treatments ended when she lost

insurance coverage.

2 McCoy testified at her November 5, 1992, hearing before the

ALJ that she had been injured in a minor car accident in May 1991

and treated in the emergency room the next day. She contended

that the accident caused her to suffer headaches, numbness in her

face, and neck pain which reguired her to wear a soft collar.

She also stated that the accident set back her progress in

resolving her lower back injury.

McCoy was examined in November 1991 by Dr. Howard Taylor, an

orthopedic surgeon, for a state disability determination. Dr.

Taylor noted that McCoy reported intermittent pain in her back

radiating down her left arm that caused her difficulty in

sitting, walking, and carrying. Based on his examination. Dr.

Taylor found no objective evidence to support McCoy's claimed

limitations and concluded that she could engage in work-related

activities of sitting, standing, walking, lifting, carrying, and

bending. A residual functional capacity assessment ("RFC")

prepared by Dr. Burton Nault on November 22, 1991, also noted no

limitations on McCoy's exertional abilities and concluded that

"[t]he claimant is considered currently capable of full work."

During this period, McCoy took classes three times a week at

Notre Dame College. She attended the fifty-minute classes with

accommodations that allowed her to stand, move around, or leave

3 to relieve back pain.

McCoy was next examined by Dr. Harry Morehead, a

neurologist, on January 8, 1992. He noted her account of pain in

the left side of her back that radiated down her left arm, pain

in her left knee, which was relieved by a knee brace, and

improvement in her neck pain. Dr. Morehead found in his

examination that McCoy had "no focal neurological deficit" and

that her history indicated that she had improved. He prescribed

medications and also planned to have her restart physical

therapy. He wrote, "I advised her regarding a change of

vocation. She is totally disabled at this time but the prognosis

is still good."

Dr. Morehead saw McCoy again on February 6, 1992, for her

continuing back and leg pain. He noted, "The patient's low back

findings are a bit better but she still has daily pain and is

totally disabled. ... I have advised her to consider employment

that does not reguire heavy lifting or prolonged sitting. She

is, however, totally disabled at this time and will return in

three months." He referred her to physical therapy for treatment

of her low back pain and scheduled an "MRI" test. The MRI showed

minor disc degenerative changes in her lower thoracic spine and

in the left L5 - SI facet joint, but no lumbar disc herniation.

4 McCoy began physical therapy with Gregory Silva on February

18, 1992. In his progress note to Dr. Morehead, Silva reported

that McCoy's low back pain responded well to extension treatment,

but that she was worse with flexion, particularly sitting for

prolonged periods. On March 17, 1992, Silva stated that McCoy

had made good progress and was "now at the point where she is

guite in control of her symptoms. If she stretches often and

watches her posture, she can keep herself feeling guite good."

He indicated that McCoy would begin a period of self-treatment.

McCoy testified at the November 5, 1992, hearing that she

was treated in a hospital emergency room in April 1992 because

she could not move when she woke up one morning. After that

episode, she claimed that she resumed wearing her soft collar

until the heat of the summer made it uncomfortable. McCoy also

claimed that she again experienced immobility upon waking in

August 1992, and was treated at the emergency room. She

testified that she resumed wearing her soft collar at that time.

Dr. Thomas Marks examined McCoy in September 1992 and

prepared a "Report of Medical Findings" for the town of Derry for

McCoy's application for town benefits. In the report. Dr. Marks

stated his diagnosis as a cervical strain, and he gave September

8, 1992, as the date of her initial disability. He also

5 estimated that McCoy would be able to do selected work by

December 1992 but could not give a date when she would be able to

return to all types of work.

Penny Blanchard, a physical therapist, evaluated McCoy on

September 24, 1992. She reported that McCoy's symptoms were

constant neck pain, dizziness, headaches, and constant

lightheadedness. She noted McCoy's poor posture, slightly

limited range of motion, decreased flexibility, and decreased

strength. She also wrote that McCoy said she could do all

activities necessary for daily living but avoided strenuous

household tasks. She recommended that McCoy use hot packs and

ice for pain, follow a home exercise program for her neck, and

continue physical therapy. Blanchard's treatment notes through

October and early November 1992 indicate that McCoy's headaches

became less freguent and that she was generally improving

although lifting activities aggravated her neck condition and

pushing her car caused a temporary recurrence of her back pain.

McCoy testified at the November 5, 1992, hearing that she

continued to attend physical therapy three times a week and that

the treatment helped her. She claimed that her headaches and

dizzy spells had decreased significantly although both occurred

occasionally, and her flexibility and range of motion in her neck

6 had increased. Although her back continued to cause pain

requiring her to lie down intermittently during the day, McCoy

noted some improvement because she could sit through forty-five

minutes of a church service which she had been unable to do

previously. She stated that she had some problems with stiffness

and limited motion of her neck which was improving with physical

therapy, that lifting a gallon of milk caused back pain, that she

could sit comfortably for fifteen minutes and could stand

comfortably for about a half an hour, and that she could

occasionally walk a couple of blocks. She also testified that

she used a lumbar roll for her back, a wedge-shaped pillow when

lying down to relieve her back, and an indented pillow for her

neck while sleeping.

McCoy was twenty-seven years old when she was injured in

1991. She is a high school graduate, holds an associate's degree

in special education, and has further training and college

courses. Before working as a teacher's assistant with

developmentally disabled students for seven years, McCoy worked

as a child care attendant and as teacher's aid.

McCoy applied for supplemental security income and

disability insurance benefits on May 10, 1991. Her application

and request for reconsideration were denied. A de novo hearing

7 was held on November 5, 1992, before an ALJ. The evidentiary

record was later reopened to receive additional medical records.

The ALJ decided that McCoy was disabled from February 13,

1991, until March 17, 1992, and that she was entitled to

disability insurance benefits for a closed period beginning on

February 13, 1991, and ending in May 1992, after the statutory

period following resolution of her disability. She referred

McCoy to the administrator responsible for social security income

benefits for the period of disability. McCoy filed an appeal

with the Appeals Council, which declined to review the ALJ's

decision. She then appealed to this court.

II. STANDARD OF REVIEW

After a final determination by the Secretary and upon

reguest by a party, this court is authorized to review the

pleadings and the transcript of the record of the proceeding, and

enter a judgment affirming, modifying, or reversing the

Secretary's decision.

(g). The court's review

is limited in scope, however, as the Secretary's factual findings

are conclusive if they are supported by substantial evidence.

Id.; Ortiz v. Secretary of Health & Human Servs.,

(1st Cir. 1991). The Secretary is responsible for settling

credibility issues, drawing inferences from the record evidence,

and resolving conflicting evidence.

Therefore, the court

must "'uphold the Secretary's findings . . . if a reasonable

mind, reviewing the evidence in the record as a whole, could

accept it as adeguate to support [the Secretary's] conclusion.'"

(guoting Rodriquez v. Secretary of Health & Human Serv., 647

F .2d 218, 222 (1st Cir. 1981).

McCoy also seeks review of the Appeals Council decision not

to review her case and submits additional evidence that was not

before the ALJ, but was presented to the Appeals Council. When

the Appeals Council exercised its discretion not to review

McCoy's case, the decision rendered by the ALJ on March 26, 1992,

became the final decision of the Secretary.

(g);

, 416.1476. Compare Grace v.

Sullivan,

(8th Cir. 1990) (holding that Appeals

Council's substantive decision, which modified ALJ's decision,

was the final decision of the Secretary and was the only decision

subject to judicial review). Because this court has authority to

review only final decisions of the Secretary, I lack jurisdiction

to review the Appeals Council's discretionary administrative

decision not to review McCoy's case. See Browning v. Sullivan,

(8th Cir. 1992). In addition, because the

Appeals Council declined to review the ALJ's decision, only the

administrative record presented to the ALJ, not additional

evidence submitted to the Appeals Council, is reviewable here.

See Eads v. Secretary of DHHS,

(7th Cir.

1993) .1 Accordingly, I review the administrative record before

the ALJ to determine whether substantial evidence supports the

Secretary's decision to terminate McCoy's disability benefits.

III. DISCUSSION

The Secretary's regulations reguire her to follow an eight-

step seguential analysis in making a determination to terminate a

recipient's benefits.

(a), 416.994(b).2

Although the ALJ's decision in the present case does not

1 I note that McCoy does not contend that this evidence gualifies as "new evidence" which would entitle her to have the ALJ consider the evidence on remand. See Evangelista v. Secretary of Health and Human Servs.,

(1st Cir. 1987) .

2 The applicable regulations pertaining to disability benefits, 20 C.F.R. Part 404 are identical, or substantively identical, to those pertaining to supplemental security income, 20 C.F.R. Part 416. See Reagan v. Secretary of Heath and Human Servs.,

(1st Cir. 1989). All regulations cited are from the 1992 edition of the Code of Federal Regulations that applied at the time of the hearing and the ALJ's decision.

10 reference the eight-step analysis, her findings generally track

the steps, and provide a factual basis for review.

McCoy focuses her challenge on the ALJ's determination at

steps three and four of the analysis that McCoy experienced

"medical improvement"3 after March 17, 1992, and that her medical

improvement was related to her "ability to work."4

(F)(3)-(4). In seeking to terminate a recipient's

benefits, the Secretary bears the burden of proving both issues.

See Glenn v. Shalala,

(10th Cir. 1994); Griego

v. Sullivan,

, 944 n.l (5th Cir. 1991) .

Nevertheless, I must sustain the ALJ's decision to terminate

McCoy's benefits if there is "substantial evidence" to support

her determination.

(F) (1) .

3 "Medical improvement is any decrease in the medical severity of your impairments which was present at the time of the most recent favorable medical decision that you were disabled or continue to be disabled."

(b)(1), 416.994 (b) (1) (i) .

4 "Medical improvement is related to your ability to work if there has been a decrease in the severity as defined by (b) (1) of this section of the impairment(s) present at the time of the most recent favorable medical decision and an increase in your functional capacity to do basic work activities as described in paragraph (b)(4) of this section."

(b)(3).

11 A. Medical Improvement

In determining that McCoy was entitled to benefits from

February 13, 1991 until March 17, 1992, the ALJ chose to

disregard evidence suggesting that McCoy was never disabled.

Most prominently, the ALJ failed to credit a November 1991 report

by Dr. Taylor and an RFC prepared by Dr. Nault during the same

period which declared that McCoy was not disabled. Instead, she

relied on subseguent reports from Dr. Morehead and other evidence

to support her determination that McCoy was disabled prior to

March 17, 1992.

It is the ALJ's responsibility to resolve conflicts in the

evidence such as inconsistent reports from physicians who

examined a recipient at around the same time. However, having

concluded that the evidence warrants a finding of disability, the

ALJ is not free to terminate those benefits unless there is

substantial evidence in the record of medical improvement related

to the claimant's ability to work.5 In the present case, the

5 The eight-step analysis allows an ALJ to terminate benefits in certain cases even if there has been no medical improvement in the recipient's condition. See, e.g., 20 F.C.R. §404.1594 (F)(5). For example, benefits may be terminated if there is substantial evidence to support an ALJ's decision that the original disability determination was made in error.

(d)(4). This section is inapplicable here.

12 only evidence supporting the ALJ's finding of medical improvement

is a report from McCoy's physical therapist on March 17, 1992,

that McCoy was "now at the point where she is guite in control of

her symptoms. If she stretches often and watches her posture,

she can keep herself feeling guite good." Counterbalancing this

statement is overwhelming evidence in the record that McCoy's

condition did not materially change after March 17, 1992. Dr.

Marks, the only physician who examined McCoy after March 17,

concluded that she would not be able to do even selected work for

several months after his examination. Further, McCoy's own

description of her condition lends little support to the ALJ's

conclusion that McCoy's condition had improved significantly.

Instead, the records and McCoy's own testimony describe a patient

whose impairment fluctuates from day to day but does not improve

significantly for any extended period of time. Thus, while the

ALJ might reasonably have concluded from the evidence that McCoy

was never disabled, the record does not contain substantial

evidence that McCoy experienced medical improvement after March

however, because the ALJ determined that McCoy was entitled to benefits for the prior period in the same decision in which she terminated benefits for the period after March 17, 1991. Moreover, I have no authority to re-examine the portion of the ALJ's decision that favored McCoy.

13 17 .

B. Medical Improvement Related to Ability to Work

The Secretary's procedure for determining whether medical

improvement is related to a recipient's ability to work requires

her to assess the recipient's RFC and to compare that to

recipient's RFC when the ALJ found her disabled.

(c)(2), 416.994(b)(2). In making this assessment, the

ALJ must evaluate a recipient's ability to do basic work

activities, including the exertional activities of walking,

standing, pushing, pulling, and carrying, and non-exertional

sensory and cognitive abilities.

(b)(4),

416.994 (b) (1) (10) .

The ALJ determined that between February 13, 1991, and March

17, 1992, McCoy's RFC limited her to "the physical exertion and

nonexertional requirements of a range of work defined as light

which would allow the claimant the option to sit or stand,

require no bending, twisting, and require no fast movement of the

head or neck." By March 17, however, the ALJ found that

"claimant had the residual functional capacity to perform the

physical exertion and nonexertional requirements of a full range

of work defined as light" without limitations. After carefully

reviewing the administrative record, I cannot find any

14 significant evidence to support this claimed improvement in

McCoy's RFC. Thus, even if McCoy had experienced medical

improvement after March 17, 1992, there is insufficient evidence

in the record to support the ALJ's determination that her medical

improvement was related to her ability to work. Accordingly, I

cannot allow the ALJ's decision to terminate McCoy's benefits to

stand.

IV. CONCLUSION

For the foregoing reasons, claimant's motion to reverse the

Secretary's decision terminating benefits (document no. 12) is

granted and the Secretary's motion to affirm the decision

(document no. 11) is denied. The Secretary's decision is

reversed, in part, reinstating benefits from March 17, 1992.

SO ORDERED.

Paul Barbadoro United States District Judge

March 8, 1995

cc: Raymond J. Kelly, Esg. David L. Broderick, Esg., AUSA

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