Tardnugo v. SSA CV-95-144-B 02/27/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark A. Tardugno

v. Civil No. 95-144-B

Shirley S. Chater, Commissioner of the Social Security Administration

O R D E R

Mark Tardugno challenges the decision of the Commissioner of

the Social Security Administration denying him disability

insurance benefits. He contends that the Administrative Law

Judge ("ALJ") failed to adeguately consider the severity of his

pain and the extent of his impairment and erroneously concluded

that he was not disabled. Because I find substantial evidence in

the record to support the ALJ's decision, I affirm.

I. BACKGROUND1

Tardugno was injured at work on March 26, 1992, when he fell

down concrete stairs while delivering a dolly loaded with milk to

1 The facts are taken from the parties' joint stipulation of facts. Neither party has filed disputed facts. a restaurant. At the time of the accident, he was thirty-seven

years old and had an eighth grade education. He has not returned

to work since the accident.

He was treated for back and rib pain on the day of the

accident at Concord Hospital where he was diagnosed with

abrasions and contusions to his back and chest but his x-rays of

the ribs and spine were normal. The next day he began treatment

with Dr. David M. McCarthy, a chiropractor, who treated him three

or four times a week with massage and pool therapy for the next

two years. Dr. McCarthy provided certificates indicating total

incapacitation on March 30, 1992, April 2, 1992, June 8, 1993,

and May 12, 1994. He noted in July 1992 that Tardugno might be

able to return to some form of part time work.

On April 1, 1992, Tardugno was examined by Dr. John Thomas,

a doctor of physical medicine and rehabilitation, on the

recommendation of Dr. McCarthy. Dr. Thomas noted that Tardugno

suffered two injuries at work, first on August 30, 1991, when he

felt a pull and pain in his right shoulder, neck, and upper back,

but was able to return to work, and the second injury in March.

His examination showed that Tardugno had some limitation in the

range of motion in his right shoulder and hips, and substantial

limitation in the lower back, but that the remainder of the tests

2 showed ranges of motion within acceptable limits. His sensation,

reflexes, strength, balance, coordination, and ambulation were

all intact. He was able to perform straight leg raises in the

sitting position to ninety degrees, and when lying down, to forty

degrees on the left and to fifty degrees on the right sides. Dr.

Thomas noted that Tardugno had tenderness and specific sore spots

in his back but no signs of disease. He diagnosed skeletal

malalignment on the left side with discrepancy in the left leg

rotation and length. He also found a muscle injury pattern on

the right side of his back and shoulder. He found the injury to

be greater on the left side of the buttocks than the right. Dr.

Thomas concluded that Tardugno would be out of work for at least

four to six weeks. He recommended muscle relaxants and physical

therapy.

Dr. Thomas examined Tardugno again in August 1992 and

reviewed the results of an MRI test done on April 9, 1992, that

showed a small central and right sided L5-S1 intervertebral disc

herniation. Dr. Thomas noted that Tardugno remained acutely

stiff and tense and again recommended muscle relaxant medication.

He reported his progress as positive although slow. He also

noted that Tardugno's employer offered light duty sedentary work

that would allow him to change position as needed and suggested

3 that he consider beginning on a part time basis and work toward

full time.

At the reguest of his insurance company, Tardugno was

examined on October 20, 1992, by Dr. Daniel Sullivan, an

orthopedic chiropractor. Dr. Sullivan found that he had

tenderness and severely restricted range of motion in his

dorsolumbar back. At that time, Tardugno was able to toe walk

but not heel walk. His gait and ability to seat himself were

slow but unremarkable, and his reflexes were normal. Dr.

Sullivan diagnosed extensive and chronic signs of paraspinal

fibromyalgia syndrome, a group of common rheumatic disorders

characterized by achy pain, and tenderness and stiffness of

muscles. He also concluded that Tardugno had developed

progressive neurological deficits. His opinion was that Tardugno

could not return to his previous work and had no present work

capacity even on a part-time basis.

Tardugno was next examined on November 4, 1992, by Dr.

Anthony A. Salerni, a surgical neurologist. Dr. Sullivan also

found a very limited range of motion in his back due to pain, and

found that his reflexes and motor power were normal. Dr. Salerni

determined that Tardugno did not have neurological deficits or

myelopathy--disturbances or functional changes in the spinal

4 cord. He did note an odd sensory deficit that he could not

explain. He diagnosed Tardugno's pain as the result of a soft

tissue injury.

On November 11, 1992, Tardugno was examined by Dr. John

Grobman, an orthopedist, and on November 18 and December 15, by

Dr. Levy, an orthopedic back specialist. Both Dr. Grobman and

Dr. Levy found that Tardugno's neurological signs were relatively

normal, that he was experiencing significant back pain, and a

limited range of motion. Dr. Levy concluded that the pain was

due to a ligament injury rather than the disc problem indicated

on the M R I .

Tardugno visited Concord Hospital's emergency room on

December 17 complaining of back pain, urinary and bowel

incontinence and blood in his stool. The examining doctors found

some lower back tenderness and normal motor and neurological

results. The myelogram was negative, and Tardugno was diagnosed

with back pain with a possible nerve root syndrome.

An independent examination by another chiropractor, James P.

Geary, in March 1993 reported that his gait was guarded, his

range of motion in his back was severely restricted and painful.

Geary found that Tardugno's reflexes were somewhat decreased and

that he could heel and toe walk with pain. In his opinion,

5 Tardugno's pain was caused by myofascial pain syndrome.

Tardugno was next treated by Dr. Ralph Beasley on March 31

on the recommendation of Dr. McCarthy for pain management. The

physical examination provided similar results as were found

previously with straight leg testing to thirty degrees. Dr.

Beasley diagnosed a bulging L5-S1 disc with back pain in the

lumbar region and sciatica. He could not determine the cause of

the pain but suggested that the causes could include back

problems, myofascial pain, and pelvis problems. He recommended

some further diagnostic testing, and prescribed a pain treatment

program with medication. In May, Tardugno returned to Dr.

Beasley to begin his regimen for pain treatment including

medications and injections.

On May 6, 1993, Dr. Green examined Tardugno for episodes of

bladder incontinence. An entire urodynmaic evaluation was

performed. After reviewing the test results. Dr. Green decided

that Tardugno had muscle motor and sensory instabilities in the

bladder. In his opinion, the bladder condition was not related

to Tardugno's back injury. Dr. Green prescribed medication for

relief of his bladder instability. Dr. Alan Sheinbaum also

examined Tardugno in May for complaints of rectal bleeding that

was determined to be caused by hemorrhoids.

6 A state agency doctor made an assessment of Tardugno's

residual functional capacity ("RFC") on May 19 , 1993, based on

the medical record but not a physical examination. The doctor

determined that Tardugno could lift up to ten pounds, sit for six

hours, and stand and walk for two hours in a day. No other

limitations were noted. The doctor found that Tardugno had a

sedentary work capacity and advised vocational rehabilitation.

The RFC was affirmed in August.

Tardugno began a course of several treatments and diagnostic

tests on June 2 when he underwent electro-neurodiagnostic testing

of his legs. The test results indicated radiculopathy, a

disorder of the spinal nerves and nerve roots at L5 and SI. On

June 3, Dr. Beasley administered a lumbar epidural steroid

injection and noted that Tardugno's physical findings were

unchanged. An MRI of Tardugno's entire back was scheduled for

June 17, but he could only tolerate the portion of the procedure

for his lumbar spine because of back pain. The MRI showed no

change from April 1992 and Tardugno's small disc herniation was

found to be stable. He received a second injection on June 22.

An MRI of Tardugno's thoracic spine was done on July 1, with

unremarkable results, but he could not tolerate the portion for

the cervical spine.

7 Dr. Salerni saw Tardugno again in August with essentially

unchanged clinical findings, and he referred him to Dr. Davis

Clark, an orthopedic surgeon. Dr. Clark made similar clinical

findings and diagnosed chronic low back and radicular pain

without being able to identify the cause. He recommended further

diagnostic testing, and if negative, he advised a functional

restoration program with vocational rehabilitation counselling.

Dr. Thomas Kleeman conducted an independent evaluation of

Tardugno on October 27, 1993. His physical findings were similar

to previous examinations but finding a more limited degree of leg

raising and slightly decreased sensation in his right leg. Upon

review of x-rays of the lumbosacral spine and the previous MRI

results. Dr. Kleeman noted a narrowing at L5-S1 with degeneration

and mild degeneration at L2-L3, and a very slight disc protrusion

that did not appear to affect the nerve roots at L5-S1. Dr.

Kleeman diagnosed "disc degeneration with symptoms out of

proportion to objective findings" and assessed Tardugno's

permanent impairment to be fourteen percent of the whole person.

He noted that Tardugno's impairment would be thirty-one percent

including his motion limitation, but his range of motion failed

the validity test. Dr. Kleeman noted Tardugno's large weight

gain since his injury, lack of progress in resolving his pain. and that previous examiners had recommended psychosocial

evaluation or counselling, which had not been done.

Tardugno was also evaluated by a physical therapist on the

same day at Dr. Kleeman's reguest. She noted that Tardugno did

not give a good effort at the testing so that the results

indicated only his minimal work ability. She estimated that he

would be capable of light duty work. She also "strongly

recommended" that Tardugno begin an exercise program along with

pain management.

Tardugno was examined by another orthopedist. Dr. Fulton

Kornack, in December 1993, and again in March 1994. His findings

were essentially the same as those of previous examinations. His

opinion was that Tardugno's pain resulted from a soft tissue

injury, not from a disc problem. He recommended rehabilitation

and pain management.

On March 8, 1994, Dr. McCarthy, Tardugno's chiropractor,

completed a general medical report on him. He concluded that

Tardugno could lift as much as ten to fifteen pounds, could

occasionally climb, but could not balance, stoop, crouch, kneel,

crawl, reach, or push and pull. He recommended avoiding moving

machinery, temperature extremes, humidity, and vibration. He did

not determine his ability to sit or stand. Tardugno applied for disability insurance benefits on March

18, 1993. He alleged an inability to work since March 28, 1992,

due to a back condition and bowel and bladder incontinence. He

appeared, represented by counsel, and testified at the hearing

held on June 14, 1994. He testified that he had worked driving a

delivery truck, repairing cars, as a meat cutter, and he had

owned his own restaurant. At the time of the hearing, he was

thirty-nine years old, married, and had two children.

As to his current abilities, Tardugno testified that he

could sit for about one-half hour, could walk one-half mile, had

difficulty standing for any length of time, and had to lie down

on his side for twenty to thirty minutes at least a couple of

times each day. He also claimed difficulty performing activities

at or above shoulder level with his right arm. Tardugno also

testified that he was able to drive for short distances, to shop

with his wife, and that his concentration and memory were not

affected by pain.

The vocational expert, John Bopp, gave his opinion that

based on the hearing testimony Tardugno was not able to return to

any of his prior work. The ALJ described a hypothetical

individual without a high school education, but able to read,

write, add and subtract, and who has performed jobs in the

10 semiskilled area, but whose exertional requirements were limited

to lifting not more than twenty pounds, no climbing, no bending

at the waist, and no repetitive overhead reaching. He also

required a job which allowed a change of position so that the

worker would not sit or stand without a change of position for

more than a half and hour to an hour. Mr. Bopp testified that

positions that would fill the ALJ's described criteria would be

cashiers, bookkeeping and auditing clerks, stock and inventory

control clerks, assembler jobs, production inspectors, checkers,

and examiners.

In his decision issued on August 2, 1994, the ALJ determined

that Tardugno was not able to return to his prior work, but that

his testimony as to his pain was not entirely credible. He found

that Tardugno was able to do the full range of light work reduced

by his pain limitation. He also found that Tardugno was not

disabled because he was able to perform jobs that existed in

significant numbers in the national economy. Thus, he denied

Tardugno's application for benefits. The Appeals Council denied

his request for review2 on January 17, 1995, and Tardugno filed

2 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

11 his appeal with this court.

II. STANDARD OF REVIEW

After a final determination by the Commissioner and upon

request 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 decision.

(g) (West Supp. 1995). The court's review is

limited in scope, however, as the Commissioner's factual findings

are conclusive if they are supported by substantial evidence.

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

(1st Cir. 1991). The Commissioner is responsible for

settling credibility issues, drawing inferences from the record

evidence, and resolving conflicting evidence.

Therefore,

the court must "'uphold the [Commissioner's] findings ... if a

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

could accept it as adequate to support [the Commissioner's]

reviewable here. See Eads v. Secretary of DHHS,

(7th Cir. 1993). In addition, I note that Tardugno does not contend that the evidence presented only to the Appeals Council qualifies as "new evidence" that would entitle him to have the ALJ consider the evidence on remand. See Evangelista v. Secretary of Health and Human Servs.,

(1st Cir. 1987) .

12 conclusion.'" I d . (quoting Rodriquez v. Secretary of Health &

Human Servs.,

(1st Cir. 1981). However, if the

Commissioner has misapplied the law or has failed to provide a

fair hearing, deference to the Commissioner's decision is not

appropriate, and remand for further development of the record may

be necessary. Carroll v. Secretary of Health & Human Servs.,

(2d Cir. 1983). See also Slessinqer v. Secretary

of Health & Human Servs.,

(1st Cir. 1987). I

review Tardugno's appeal in light of the applicable standard.

III. DISCUSSION

On appeal, Tardugno challenges the ALJ's determination at

the fifth step3 of the sequential analysis that he was capable of

3 The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. See

(1994);

(1994).

13 performing light duty work and, therefore, was not disabled. In

particular, he disputes the ALJ's conclusion that his subjective

complaints of disabling pain were not credible, and he argues

that the evidence in the record does not support the ALJ's

findings.

At step five, the Commissioner has the burden of showing

that despite the severity of the claimant's impairment and

inability to return to past relevant work, he retains the RFC to

perform other occupations that exist in significant numbers in

the national economy and in the region where he lives.

(f); Keating v. Secretary of Health & Human Servs., 84

, 276 (1st Cir. 1988). A claimant's residual functional

capacity is "what he can still do despite his limitations."

.1545 (a) .

Tardugno claims that his back pain is so severe that he must

lie down for twenty to thirty minutes several times a day to

relieve pain, but only his subjective complaints of pain support

his need to lie down. The vocational expert testified that with

that limitation there would not be jobs available that he could

do. Tardugno argues that therefore disabled and disputes the

ALJ's evaluation of his complaints of pain.

Subjective complaints of pain are evaluated in light of all

14 of the evidence and must be supported by medical signs and

findings.

(d)(5)(A) (West Supp. 1995);

(c); Avery v. Secretary of Health & Human

Servs.,

(1st Cir. 1986) . In determining the

weight to be given to a claimant's allegations of pain,

"complaints of pain need not be precisely corroborated by

objective findings, but they must be consistent with medical

findings." Dupuis v. Secretary of Health & Human Servs.,

(1st Cir. 1989). When the claimant's reported

symptoms of pain are significantly greater than the objective

medical findings suggest, the ALJ must consider other relevant

information to evaluate the claims including the claimant's daily

activities, the specific manifestations of pain, precipitating

and aggravating factors, and the availability of effective means

of relieving pain through medications or treatments.

(c)(3); Avery,

. If the ALJ has considered

all of the relevant evidence of the claimant's pain, "[t]he

credibility determination by the ALJ, who observed the claimant,

evaluated his demeanor, and considered how that testimony fit in

with the rest of the evidence, is entitled to deference,

especially when supported by specific findings." Frustaqlia v.

Secretary of Health & Human Servs.,

(1st Cir.

15 1987) .

In his written decision, the ALJ reviewed Tardugno's

extensive medical records and determined that his allegations of

pain were in excess of what would be reasonably expected from the

objective medical evidence. The medical records of Tardugno's

treating doctors support the ALJ's determination. The records

show that Tardugno had injury to his back including a small disc

herniation at L5-S1 and disc degeneration there and in some other

areas. Upon examination, the doctors repeatedly found that

Tardugno's complaints of pain were unrelated to his disc

condition and were more likely the result of an undetermined soft

tissue or a ligament injury. Dr. Green decided that Tardugno's

bladder incontinence, which was controlled by medication, was

unrelated to his back condition. Although Dr. Sullivan, a

chiropractor, found that Tardugno was disabled from all work in

October 1992, an evaluation of Tardugno's RFC in May 1993 shows

that he was capable of light duty work with some restrictions.

By October 1993 Dr. Kleeman, an orthopedist, and a physical

therapist determined that Tardugno's pain complaints and other

symptoms were out of proportion to his objective medical findings

and that he was capable of light or sedentary work and that his

impairment limited his activity by only fourteen percent.

16 Although Tardugno's treating chiropractor. Dr. McCarthy,

gave his opinion in June 1993 and May 1994 that Tardugno was

totally disabled due to a "disc syndrome," his opinion merits

controlling weight only if it "is well-supported by medically

acceptable clinical and laboratory diagnostic technigues and is

not inconsistent with the other substantial evidence in [the]

case."

(d)(2) (1994). The opinions of other

doctors who examined and tested Tardugno contradict Dr.

McCarthy's opinion. Other examining doctors ruled out Tardugno's

disc condition as the cause of his pain complaints and found that

the medical evidence of physical condition did not explain his

pain. While Dr. Kleeman stated in February 1994 that

manipulation treatment was not justified for his condition and

chiropractic treatment had proved to be of no benefit, in June

1994 Dr. McCarthy was continuing to treat Tardugno up to three

times per week and recommended "manipulation under anesthesia."

Based on the record. Dr. McCarthy's treatment is not well-

supported and his opinion of total disability is contradicted by

other examining physicians. Because Dr. McCarthy's opinion is

not entitled to controlling weight, and "the resolution of

conflicts in the evidence is for the Secretary, not the courts."

17 Ortiz,

. Therefore, the ALJ was entitled to give

more weight to opinions other than that of Dr. McCarthy.

Next, following the Avery reguirements, having determined

that Tardugno's complaints of pain exceeded normal expectations

based on the objective medical evidence, the ALJ was obligated to

consider any other evidence in the record concerning the effect

of pain on Tardugno's daily activities. Tardugno testified, and

the ALJ noted in his decision, that he was limited by pain in his

daily activities but was able to drive his children to and from

school and to his own doctors' appointments, take care of

himself, visit with friends, and help his wife around the house.

Tardugno also testified that the only medication he was

using then to control his pain was Tylenol with Codeine taken

occasionally. He explained that he did not take Tylenol every

day because it causes constipation. The medical record shows

that he had previously taken prescribed medications and Tylenol

with Codeine beginning in June 1993 and initially received some

relief for sleeping. Because medications and treatment were

prescribed to control pain, his failure to use those medications

to alleviate pain, or to explain why he does not follow the

18 prescribed treatment, contradicts his allegations of disabling

pain. See Tsarelka v. Secretary of Health and Human Servs.,

(1st Cir. 1988) ("If a claimant does not follow

prescribed treatment 'without a good reason, ' he or she will not

be found to be disabled." (guoting

)).

The ALJ properly considered the Avery criteria in partially

discounting Tardugno's subjective pain complaints. Based on the

record evidence, the ALJ's determination that Tardugno suffered

back pain but that his pain was not "of disabling proportions" is

supported by substantial evidence. Thus, the ALJ did not

erroneously discount Tardugno's impairment due to pain in

describing his hypothetical to the vocational expert, and

substantial evidence supports the determination that Tardugno is

not disabled from work. I affirm the Commissioner's decision

denying benefits.

IV. CONCLUSION

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

(document no. 6) is denied and defendant's motion to affirm

19 (document no. 8) is granted.

SO ORDERED.

Paul Barbadoro United States District Judge

February 27, 1996

cc: James Lafrance, Esg. David Broderick, Esg.

20