Ranlet v. HHS CV-95-155-M 03/19/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David Ranlet, Plaintiff,

v. Civil No. 95-155-M

Secretary of Health and Human Services, Defendant.

O R D E R

Pursuant to § 205(g) of the Social Security Act,

(g), plaintiff, David Ranlet, moves the court to reverse the

final decision of the defendant. Secretary of Health and Human

Services, denying his application for supplemental security

income benefits. The Secretary objects, and moves the court to

affirm that order. For the reasons set forth below, the

Secretary's decision is vacated and the case remanded for further

proceedings.

Procedural Background.

On June 24, 1993, plaintiff applied for supplemental

security income benefits, claiming that he had been unable to

work since June 22, 1993. The Social Security Administration

denied plaintiff's application initially and again after reconsideration and examination of plaintiff by a physician and a

disability expert. Plaintiff, his attorney, and a vocational

expert then appeared before an Administrative Law Judge ("ALJ"),

who considered plaintiff's application de novo and, by order

dated October 5, 1994, determined that plaintiff was not

disabled. The Appeals Council denied plaintiff's request for

review of the ALJ's decision, thereby rendering it the final

decision of the Secretary, subject only to judicial review.

Factual Background.

Plaintiff is a forty-six year old man, with an eighth grade

education. His prior work experience includes jobs as an

assembler of electronic components, a security guard, a punch

press operator, and a laborer in a shoe shop. He claims that he

is unable to work primarily due to a painful back condition

(secondarily, he also complains of cataracts and a gallstone).

Plaintiff says that he suffers pain in his lower lumbar area

whenever he stands or sits. He also claims that the pain is so

severe and frequent that he has difficulty sleeping. Before the

ALJ, he testified that even when standing at the sink, washing

dishes, he experiences back pain. Not surprisingly, he also

2 noted that he experiences pain when moving his wife's motorized

wheelchair up and down the stairs of their apartment.1

In August of 1992, plaintiff was referred for physical

therapy for his back condition. In November, he was seen for

diagnostic imaging, which revealed hyperlordosis (increased

curvature of the lumbar and cervical spine), but showed that

there was no fracture, swelling, subluxation, or spondylolysis

(dissolution of a vertebra). It also revealed a small round

calcification, which was possibly a gallstone. Transcript of

Administrative Hearing ("Tr.") at 150. In December, plaintiff

was examined at Neurology Associates of Southern New Hampshire,

where he was given electromyography and nerve conduction studies,

which revealed nothing out of the ordinary (i.e., no evidence of

lumbosacral radiculopathy or peripheral neuropathy). (Tr. 153)

A physical examination of plaintiff revealed that his reflexes

were normal and symmetrical and that he had "no definite weakness

or sensory loss." (Tr. 154)

1 Plaintiff's wife is disabled. She suffers from myotonic dystrophy and is periodically confined to a wheelchair.

3 On December 8, 1992, plaintiff underwent an MRI examination,

which revealed the following:

(a) small focal disc herniation, L3-4, without evidence of significant impingement of the thecal sac or nerve roots, but with progression compared to the patient's previous examination.

(b) Degeneration of the disc at L4-5 and L5S1 levels as well. (Tr. 159)

Approximately 10 weeks later, a second MRI confirmed that

plaintiff suffers from degenerative and bulging discs at L3-4,

L4-5, and 5-1. (Tr. 160)

In January of 1993, plaintiff was again referred to a

physical therapist. Although he attended several sessions, his

progress was limited because he overexerted himself when

performing household duties, such as shoveling snow (to the point

of pain) and repeatedly lifting his wife's wheelchair, despite

having been advised not to lift anything weighing more than 40

pounds. (Tr. 140-43) Because he failed to perform the

recommended exercises properly, plaintiff was considered a poor

candidate for physical therapy and, on February 22, 1993, he was

discharged from physical therapy. (Tr. 149)

4 In May, 1993, Dr. John Thomas, a physiatrist, examined

plaintiff. Dr. Thomas observed that he had adequate range of

motion in his lower extremities, but did complain of some end-of-

range pain in his low back. While Dr. Thomas concluded that

there were "no hard signs on my examination of radiculopathy," he

observed that plaintiff's degenerative disks might be causing

some dull, achy pain. (Tr. 163) On July 19, 1993, Dr. Wesley

Wasdyke, of the Elliot Hospital Pain Clinic examined plaintiff.

Dr. Wasdyke observed:

PHYSICAL EXAMINATION: He has a normal walk. He exhibits good strength in his lower extremities by standing on his toes, heels, getting up from a squatting position. He has normal sensation to sharp scratching in his lower extremities bilaterally. He has normal position sense of the toes as well as normal plantar reflexes. Reflexes at the knee and at the achilles tendon are 2+ bilaterally. There is no tenderness in his lower thoracic, lumbosacral spine, or paraspinous areas. He has normal mobility at the waist. His lumbar paraspinous muscles do seem taught but non-tender.

ASSESSMENT: This gentleman has a long history of low back pain with onset after taking a fall in 1991. There is no evidence of disc impingement although it is possible that the pain could be related to bulging discs. I have discussed the situation with him. I have offered him epidural steroid injection with the possibility that there might be a 50% chance of this helping him symptomatically. He realizes that it might take a series of three injections. This was discussed in detail and he does not wis[h] to pursue this course of therapy at the present time. He is willing to begin a trial of Amitriptyline to see if this will help with

5 his symptoms and I have given his a prescription of Amitriptyline 25 mg. 30 tablets with one refill to be taken one tablet by mouth at bedtime. (Tr. 169)

At a follow-up visit with Dr. Wasdyke on August 23, 1993,

plaintiff complained of increased back pain, despite having

faithfully taken his prescription medication. Again, however, he

declined epidural steroid therapy, so Dr. Wasdyke increased his

prescription of Amitriptyline to 75 mg. (Tr. 171)

Most recently, on April 5, 1994, plaintiff was examined by

Dr. Maurice Brunelle, a chiropractor.2 Dr. Brunelle noted that

plaintiff had been treated with massage, ultra sound, electrical

muscle stimulation, and spinal adjustment, all of which provided

only temporary relief. Dr. Brunelle concluded that plaintiff

could occasionally lift up to 25 pounds and, during an eight-hour

day, could sit, stand, or walk for up to 30 minutes each. He

also concluded that plaintiff should avoid stooping and

2 Under the pertinent regulations, chiropractors are not considered an acceptable source of medical evidence regarding the claimant's impairment.

(a). Accordingly, the ALJ is entitled to give less weight to their opinions. Diaz v. Secretary of Health & Human Servs.,

(2d Cir. 1995); Cronkhite v. Secretary of Health & Human Servs.,

(8th Cir. 1991) . See also

(e) .

6 crouching, but was able to climb and kneel occasionally. (Tr.

174-86)

Finally, with regard to plaintiff's visual acuity. Dr. David

Corbit, of Eye Physicians & Surgeons of Manchester, examined

plaintiff on June 22, 1993. Dr. Corbit concluded that his vision

could be corrected to 20/30 in each eye and that he was not

experiencing any visual difficulty. (Tr. 166)

Standard of Review.

Pursuant to

(g), the court is empowered "to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Secretary, with or without remanding the cause for a rehearing."

Factual findings of the Secretary are conclusive if supported by

substantial evidence.

(g), 1383(c) (3); Irlanda

Ortiz v. Secretary of Health and Human Servs.,

(1st Cir. 1991) .3

3 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB,

(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.,

(1939) . This is

7 In making those findings, the Secretary must weigh and

resolve conflicts in the evidence. Burgos Lopez v. Secretary of

Health & Human Servs.,

(1st Cir. 1984) (citing

Sitar v. Schweiker,

(1st Cir. 1982)). It is "the

responsibility of the Secretary to determine issues of

credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

Secretary, not the courts." Ortiz,

(citing

Rodriguez, 647 F.2d at 222). And, the court will give deference

to the ALJ's credibility determinations, particularly where those

determinations are supported by specific findings. Frustaglia v.

Secretary of Health & Human Servs.,

(1st Cir.

1987) (citing Da Rosa v. Secretary of Health and Human Servs.,

803 F .2d 24, 26 (1st Cir. 1986)).

However, the ALJ must weigh that evidence in accordance with

the applicable statutes and regulations. Thompson v. Sullivan,

987 F .2d 1482, 1487 (10th Cir. 1993) ("[I]f the ALJ failed to

apply the correct legal test, there is ground for reversal apart

something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n.,

(1966). from a lack of substantial evidence."); Santagate v. Gardner,

(D. Mass. 1968) ("If the hearing examiner may

have applied the law incorrectly, failing to make the necessary

findings, district courts have remanded the case to the Secretary

. . . .") .

Discussion.

Plaintiff asserts among other things, that the ALJ did not

adeguately credit his claims of severe and disabling pain and

disputes the ALJ's finding that his "allegations of inability to

work because of pain are not entirely credible." (Tr. 16) He

claims that the ALJ committed reversible error by basing his

credibility determination, at least in part, upon plaintiff's

having performed certain functions which were undertaken only in

response to "extraordinary circumstances," most notably, the

freguent lifting of his wife's motorized wheelchair.

The ALJ is reguired to consider the subjective complaints of

pain or other symptoms by a claimant who presents a "clinically

determinable medical impairment that can reasonably be expected

to produce the pain alleged."

(d)(5)(A); Avery v.

Secretary of Health and Human Servs.,

(1st Cir. 1986);

. "[C ]omplaints 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 Servs.,

(1st Cir. 1989); see Bianchi

v. Secretary of Health and Human Servs.,

(1st

Cir. 1985) ("The Secretary is not reguired to take the claimant's

assertions of pain at face value.") (guoting Burgos Lopez v.

Secretary of Health and Human Servs.,

(1st Cir.

1984)). Once a medically determinable impairment is documented,

the effects of pain must be considered at each step of the

seguential evaluation process.

(d). A

claimant's medical history and the objective medical evidence are

considered reliable indicators from which the ALJ may draw

reasonable conclusions regarding the intensity and persistence of

the claimant's pain. Avery,

;

(c)(3). However, situations exist in which the reported

symptoms of pain suggest greater functional restrictions than can

be demonstrated by the medical evidence alone.

The ALJ

recognized that this is such a case. (Tr. 13, 15)

When a claimant complains that pain or other subjective

symptoms are a significant factor limiting his or her ability to

10 work, and those complaints are not fully supported by medical

evidence contained in the record, the ALJ must consider

additional evidence, such as the claimant's prior work record;

daily activities; location, duration, frequency, and intensity of

pain; precipitating and aggravating factors; type, dosage,

effectiveness, and side effects of any medication taken to

alleviate pain or other symptoms, past or present; treatment,

other than medication, received for relief of pain or other

symptoms, past or present; any measures used, past or present, to

relieve pain or other symptoms; and other factors concerning

functional limitations and restrictions due to pain.

(c)(3); Avery,

. If the complaints of

pain are found to be credible under the criteria, the pain will

be determined to diminish the claimant's capacity to work.

(d);

(c)(4).

Here, the ALJ considered such evidence and made specific

findings in support of his conclusion that the plaintiff's

"allegations of inability to work because of pain are not

entirely credible." (Tr. 16) For example, the ALJ properly

considered plaintiff's refusal to pursue epidural steroid

injections, his inconsistent statements regarding the side-

11 effects of his medication, his ability to accomplish daily

activities independently and to walk without assistive devices,

his apparent failure to participate in a recommended pain

management program, and his ability to perform household chores,

visit friends, watch television, read, play with his son, and,

generally, lead a fairly active life. See, e.g., Avery,

(When evaluating subjective claims of pain it is proper

and, indeed, reguired that the ALJ consider the claimant's daily

activities.); St. Pierre v. Secretary of Health & Human Servs.,

No. 94-232-JD, slip op. at 9-10 (D.N.H. May 25, 1995)

(consideration of daily activities allows the Secretary to

juxtapose the claimant's subjective allegations of pain with the

relative intensity of his or her daily regimen).

However, implicit in the inguiry into a claimant's daily

regimen is the notion that the daily activities used in the

credibility calculus are ones which reasonably reflect the

claimant's condition. Accordingly, activities necessarily

undertaken in response to extraordinary circumstances --

particularly when performed inadeguately or with extreme pain --

cannot be considered reliable indicators of an individual's

12 ability to function with pain under the Avery analysis.4 St.

Pierre, slip op. at 9-10. The Second Circuit addressed this

issue in Nelson v. Bowen,

(1989), holding that a

claimant's ability to withstand extreme discomfort while sitting

on a four-hour bus trip to attend college is an impermissible

basis upon which to negate his subjective allegations of pain.

The Second Circuit reasoned that:

[w]hen a disabled person gamely chooses to endure pain in order to pursue important goals, it would be a shame to hold this endurance against him in determining benefits unless his conduct truly showed that he is capable of working.

(emphasis supplied). The case was remanded.

Similarly, in St. Pierre, supra, this court (DiClerico, J.) ruled

that, in assessing the credibility of a claimant's allegations of

pain, it was inappropriate for an ALJ to consider the claimant's

ability to drive for 40 minutes to visit his terminally ill wife

in the hospital. St. Pierre, slip op. at 10-11.

4 Here, for example, plaintiff argues that he has to lift his wife's wheelchair and he testified that he had difficulty getting the wheelchair in and out of the house (Tr. 34), reguires the assistance of his young son, and occasionally has to disassemble the unit in order to move it. (Tr. 35).

13 In this case, the ALJ erroneously relied upon the

plaintiff's ability to repeatedly lift his wife's motorized

wheelchair as a basis for the discounting of his subjective

allegations of pain. As noted in St. Pierre, supra, "the

reliance on this evidence is incompatible with the purpose of

Avery . . . because the evidence does not assist the Secretary in

understanding the relationship between the medically determinable

impairment, the alleged pain, and the plaintiff's ability to

work." Jd. at 10. Plaintiff's repeated lifting of his wife's

wheelchair is activity that can be fairly characterized as

responsive to a unigue circumstance of personal hardship. It

does not necessarily follow, then, that because plaintiff is able

to muster the strength (and perhaps gamely endure the

accompanying pain) necessary to move his wife's wheelchair, that

his doing so evidences an absence of pain consistent with an

ability to engage in light-duty employment. That is to say,

entirely volitional daily activities certainly provide reliable

bases for gauging pain-related disability, especially when those

activities are inconsistent with the claimed degree of pain. But

activities gamely undertaken in response to unigue or extreme

circumstances out of necessity are not necessarily reliable bases

upon which to gauge pain-related disability. Plaintiff's moving

14 his wife's wheelchair is a matter of necessity and qualifies as

an activity undertaken in response to a unique circumstance of

personal hardship. For that reason, it provides little insiqht

into the credibility of Ranlet's complaints of pain and should

not have been considered in weiqhinq that credibility. See

Bowen,

.

Because the ALJ's decision does not describe the relative

weiqht accorded to each of the factual findinqs upon which he

based his overall assessment of plaintiff's credibility relevant

to the deqree of pain he experiences, this court cannot fairly

determine whether the ALJ still would have concluded that the

plaintiff's alleqations were not entirely credible absent

reliance on the evidence reqardinq plaintiff's repeatedly liftinq

his wife's wheelchair. Accordinqly, this matter must be remanded

for reconsideration and a determination of plaintiff's disability

(if any) without reference to his ability to lift and move his

wife's wheelchair. While the ALJ may very well reaffirm his

earlier conclusion that plaintiff is not disabled, that is a

decision which he must make, at least in the first instance.

Because the case is remanded for reconsideration, the court need

15 not address the remaining issues raised by plaintiff, which

appear to be largely without merit.

Conclusion.

For the foregoing reasons, defendant's motion for an order

affirming the decision of the Secretary (document no. 7) is

denied and plaintiff's motion for an order reversing the decision

of the Secretary (document no. 5) is granted. Pursuant to

sentence four of

(g), this matter is remanded to

the ALJ for reconsideration, clarification of his original order,

and, if he deems necessary, further hearing(s).

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 19, 1996

cc: Vincent A. Wenners, Jr., Esg. David L. Broderick, Esg.

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