Lee v. SSA CV-96-188-JD 02/06/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Geary Lee

v. Civil No. 96-188-JD

Commissioner, Social Security Administration

O R D E R

The plaintiff, Geary Lee, brings this action pursuant to

section 205(g) of the Social Security Act,

(g),

seeking review of a final decision of the defendant. Commissioner

of the Social Security Administration ("Commissioner"), denying

his claim for benefits under the Act. Before the court are the

plaintiff's motion for an order reversing the decision of the

Commissioner (document no. 5), and the defendant's motion for an

order affirming the Commissioner's decision (document no. 7).

Background

Pursuant to Local Rule 9.1, the parties have filed a joint

statement of material facts, which the court incorporates

verbatim:

Plaintiff filed concurrent applications for Disability Insurance Benefits and Supplemental Security Income benefits on June 21, 1994. (Tr. 68-71, 123-140). He alleged disability since April 1, 1993 (Tr. 68, 123) on grounds of chronic obstructive pulmonary disease, coronary artery disease, diabetes mellitus, degenerative arthritic changes in his lower back and a weakened left knee. (Tr. 93, 98). Plaintiff has a GED and a past work history as a machine operator, youth counselor, tree worker, maintenance man and wool mill worker. (Tr. 97).

Medical Evidence Prior To Alleged Onset Date

Mr. Lee has had two surgeries on his knee performed by Dr. John Ayres in 1984-1985. (Tr. 58, 98) According to Dr. Ayres, Mr. Lee had an anterior cruciate deficient knee which gave out easily.1 (Tr. 169). Dr. Ayres gave Mr. Lee a 15% disability based on the knee and precluded any occupation that involved prolonged standing, turning, twisting, heavy lifting and work on rough ground. (Tr. 169).

On June 1, 1992, Mr. Lee first saw his treating physician. Dr. William Palmer. Dr. Palmer diagnosed diabetes mellitus. (Tr. 151). Dr. Palmer saw Mr. Lee several more times in June 1992 and again in August 1993. (Tr. 152-154).

Mr. Lee had slipped on ice and fell directly on his lower back on November 21, 1992. (Tr. 174). At the Valley Regional Hospital ER, he complained of severe low back pain. The diagnosis of the ER doctor was acute low back strain. (Tr. 174). A lumbar spine x-ray taken on November 22, 1992 found degenerative arthritic changes particularly at L3-4, L4-5, and L5-S1. (Tr. 175) .

Medical Evidence Following Alleged Onset Date

The earliest evidence of record following the plaintiff's alleged onset date is from August 1993 (Tr. 154). At this time. Plaintiff was seen by Dr. Palmer who noted that the plaintiff was not having any significant symptoms related to his diabetes. The rest of Plaintiff's exam was essentially normal (Tr. 154). Blood tests, taken at this time, revealed that the plaintiff's cholesterol level was normal and his glycated hemoglobin was high (Tr. 155-156).

On April 5, 1994, Mr. Lee returned to see Dr. Palmer because he had trouble breathing. Dr. Palmer diagnosed chronic

'Anterior cruciate deficient knee refers to a problem in the front ligaments of the knee. Taber's Cyclopedic Medical Dictionary, 16th Edition.

2 obstructive pulmonary disease (COPD). (Tr. 157). Mr. Lee also complained about occasional chest pain upon exertion. (Tr. 157). Dr. Palmer ordered a thallium stress test. (Tr. 158) He also arranged for Mr. Lee to see a cardiologist. Dr. Jon Wahrenberger.

The stress test on April 18 found a small to moderate size area of ischemia2 in the inferior wall at the base of the heart. (Tr. 180). Mr. Lee had to stop his treadmill test because of shortness of breath and chest pain, however during the test, the plaintiff's blood pressure was only slightly elevated and there were no obvious EKG changes (Tr. 181). He continued to complain of chest pain of moderate severity as well as shortness of breath both during exercise and while at rest. (Tr. 177). At his follow up appointment on April 24, Dr. Palmer started Mr. Lee on Procardia XL. (Tr. 158).

Mr. Lee saw Dr. Wahrenberger for the first time on April 28. Dr. Wahrenberger expressed concern about Mr. Lee's progressively worsening exertional dyspnea. (Tr. 185-186). He thought it was likely Mr. Lee had coronary disease. He noted a fairly extensive reversible cardiac defect although Dr. Wahrenberger found Mr. Lee's chest pain "atypical". (Tr. 185-186) . Because of Mr. Lee's multiple cardiac risk factors. Dr. Wahrenberger recommended weight reduction, stopping smoking completely and diet control.

Dr. Wahrenberger found Mr. Lee's past medical history significant for 1) hypertension; 2) Type II diabetes mellitus; 3) peripheral neuropathy secondary to diabetes; and 4) arthroscopic surgery on the left knee. (Tr. 185).

Mr. Lee underwent heart catheterization and angiography in May 1994. The angiogram showed a 60% lesion in the left main artery and a 75% stenosis in the right coronary artery. (Tr. 188). On May 7, Dr. Wahrenberger stated he was extremely concerned about the lower anterior descending lesion but he did not believe the angiogram demonstrated significant disease. He felt Mr. Lee's thallium test was a false positive.3 (Tr. 188) .

2Ischemia refers to insufficient blood supply to the heart muscle. Taber's Cyclopedic Medical Dictionary, 16th Edition.

3A Thallium stress test is a way of evaluating cardiovascular fitness. Because these tests can be difficult to read, they

3 He did not have an explanation for Mr. Lee's exertional dyspnea. (Tr. 189). He felt it might be related to COPD or asthma. (Tr. 189). Dr. Wahrenberger arranged for pulmonary function testing.

On May 20, 1994, Mr. Lee's pulmonary function test showed a significant restrictive defect. (Tr. 190-191). His FVC was 2.62 (54%), FEVI 2.31 (62%) and his FEVI/FVC ratio was 984 (Tr. 190).

When Mr. Lee returned to see Dr. Wahrenberger on June 1, Dr. Wahrenberger again stated that he did not believe Mr. Lee had significant coronary disease, save for the 75% lesion in his non­ dominant right coronary artery. He remained concerned about the exertional dyspnea, especially in light of the pulmonary function test. (Tr. 191).

Mr. Lee continued to have episodes of angina and he was also very limited in his breathing. (Tr. 192). Dr. Wahrenberger started Mr. Lee on a trial of Albuterol inhaler, a bronchodilator. Mr. Lee's breathing did not improve. (Tr. 192- 193). He was unable even to walk his dog. (Tr. 192). By June, Dr. Wahrenberger decided that further treatment of Mr. Lee's lung problem should be left to Dr. Palmer.

In September 1994, Dr. Palmer wrote that Mr. Lee had significant COPD, coronary artery disease and diabetes with exertional dyspnea that makes employment he had experience with impossible. He urged reconsideration of his disability recommendation and at the very least, help with job retraining. (Tr. 163) .

Dr. Palmer answered medical interrogatories in December 1994 and he then diagnosed Mr. Lee with coronary artery disease.

sometimes generate "false positive" results which may not be accurate. Taber's Cyclopedic Medical Dictionary, 16th Edition.

4FVC is forced vital capacity. It is the total volume of air that a person can blow out of their lungs in one breath. FEVI means forced expiratory volume at one second, the volume of air that a person can blow out in one second. The values achieved in FVC and FEVI are measures of the degree of chronic obstructive pulmonary disease. Social Security Disability Practice (1996 Ed.), by Charles T. Hall, West Handbook Series p. 393.

4 reactive airway disease, diabetes mellitus, hyperlipidemia5 and peripheral neuropathy secondary to diabetes.6 Dr. Palmer limited Mr. Lee to 6 hours sitting per day; 1 hour standing per day (15 minutes at one time); 5-10 pounds maximum occasional lifting; and no carrying. (Tr. 166). He restricted Mr. Lee from working in an environment with gases and fumes, dust, extreme heat or cold, moisture, humidity or vibration. (Tr. 166). Dr. Palmer found Mr. Lee's impairments limited his ability to grasp, reach, lift up to and above shoulder level and carry objects. He also wrote that his ability to perform fine manipulation was limited to some degree because of neuropathy. (Tr. 167).

Dr. Palmer felt Mr. Lee could only w[alk] 400-500 feet on a flat surface without having to rest because of shortness of breath. (Tr. 165) He felt Mr. Lee would be unable to walk on an inclined surface due to significant dyspnea. (Tr. 165). Dr. Palmer categorized Mr. Lee's pain as "moderate". He wrote his impairments would be likely to cause pain and shortness of breath upon exertion. (Tr. 165-166)

On January 17, 1995, Mr. Lee saw a pulmonary specialist. Dr. H. Worth Parker. Dr. Parker felt Mr. Lee was doing "baseline poorly" now. (Tr. 195). He thought Mr. Lee might have emphysema but he wanted Mr. Lee to undergo a thin cut CT Scan, a helpful test for difficult dyspnea cases. (Tr. 195) He felt Mr. Lee's pulmonary function test was suggestive of a restrictive ventilatory defect.

Dr. Parker wrote a further letter about Mr. Lee in October 1995. The thin cut CT Scan did not demonstrate emphysema but there was thickening in the bronchial walls. (Tr. 201). Dr. Parker stated that the positive findings on pulmonary function tests and the paucity of findings on CT scans and chest x-rays was confusing. Dr. Parker stated that Mr. Lee does have pulmonary function abnormalities that would make him breathless

5Hyperlipidemia is excessive guantity of fat in the blood. Taber's Cyclopedic Medical Dictionary, 16th Edition.

6Peripheral neuropathy refers to functional disturbance and/or pathological changes in the peripheral nervous system. May be associated with numbness, tingling, or a burning sensation in extremities. Merck Manual, 16th Edition.

5 with moderate exertion. (Tr. 200). He found Mr. Lee's case "frustrating." (Tr. 200).

Mr. Lee had also had problems with diabetes for the last ten years. (Tr. 50). Glucose test results from April and May 1994 demonstrated poor control of diabetes as did a hemoglobin test. (Tr. 52, 183-184). He testified that he napped for an hour or so everyday in the afternoon because of fatigue. (Tr. 49). He also complained of numbness in his hands and feet. (Tr. 48) . He testified that both his hands and feet freguently crack wide open. (Tr. 48). He gets infreguent diabetic attacks which cause cold sweats and shakes. (Tr. 49). Mr. Lee takes Diabeta, a pill to help control diabetes.

Based on this factual record and subseguent to a hearing,

the ALJ concluded that the plaintiff's complaints of pain were

exaggerated, and that the plaintiff has the exertional capacity

to perform sedentary work (Tr. 21) .7 Although the ALJ found that

the plaintiff is unable to perform his past relevant work as a

machine operator, youth counselor, tree worker, maintenance

worker, or wool mill worker and that his RFC for a full range of

sedentary work is reduced by pain and shortness of breath (Tr.

23), the ALJ nonetheless concluded that, in light of the

plaintiff's age, education, and work experience and the degree to

which his RFC was compromised by his limitations, he is not

disabled (Tr. 23). The plaintiff seeks review of the ALJ's

findings.

7In a separate section of the decision, the ALJ found that the claimant has the RFC "to perform the physical exertion and nonexertional reguirements of work except for lifting and carrying more than 10 pounds" (Tr. 22).

6 Discussion

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."

In reviewing a Social Security disability decision, the factual

findings of the Secretary "shall be conclusive if supported by

'substantial evidence.'" Irlanda Ortiz v. Secretary of Health

and Human Servs.,

(1st Cir. 1991) (guoting

(g)). 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 and Human Servs.,

(1st Cir

1981)); accord Richardson v. Perales,

(1971).

Moreover, "[i]t 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." Irlanda Ortiz,

(citing Rodriquez,

); see also

Burgos Lopez v. Secretary of Health and Human Servs.,

(1st Cir. 1984) .

7 Substantial evidence is "'such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.'" Richardson,

(quoting Consolidated

Edison Co. v. NLRB,

(1938)). "This is

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); accord Benko v.

Schweiker,

(D.N.H. 1982).

A. The ALU's Conclusions Concerning Lee's RFC

The plaintiff raises two arguments bearing on his claim that

the ALJ erred in concluding that he has the RFC to perform

sedentary work.

First, he contends that the ALJ failed to accept the

conclusions of Dr. William Palmer, the plaintiff's treating

physician, in concluding that the plaintiff has the RFC to

perform the exertional requirements of sedentary work. However,

the argument rests on a misinterpretation of Palmer's

conclusions, which are consistent with a finding that the

plaintiff has the capacity to perform these exertional

8 requirements. See

(a), 404.1572(a)(1996)8;

S.S.R. 83-11 (claimant possesses exertional requirements of a

specific RFC if he possesses essentially all of the minimum

exertional capabilities that the RFC requires). Indeed, Palmer

concluded that, even in light of the plaintiff's shortness of

breath and "moderate" pain, the plaintiff can sit for as much as

two hours at a time and for six hours in an eight-hour day; can

stand or walk for as much as fifteen minutes at a time and for

one hour in an eight-hour day; and can walk 400-500 feet on a

flat surface and could lift five to ten pounds occasionally (Tr.

169). Moreover, the ALJ's conclusion is supported by RFC

assessments performed in July 1994 and December 1994 by two non-

(a) provides:

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

(a) provides:

Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before.

9 examining Disability Determination Services physicians. See

Berrios Lopez v. Secretary of Health & Human Servs.,

(1st Cir. 1991). Based on a review of the plaintiff's

records, these physicians concluded that the plaintiff can

occasionally lift or carry twenty pounds, stand about six hours

in an eight-hour workday, and sit about six hours in an eight-

hour workday (Tr. 74-83). Thus, there is substantial objective

evidence in the record to support the ALJ's findings as to the

plaintiff's capacity to perform the exertional reguirements of

sedentary work.

However, the plaintiff also argues that the ALJ's assessment

of his RFC fails to account properly for his subjective

complaints of pain. Although the ALJ determined that the

plaintiff's RFC to perform a full range of sedentary work is

limited by his pain, the plaintiff contends that the ALJ failed

to place enough weight on the plaintiff's complaints of pain

because he erroneously concluded that they are "somewhat

exaggerated" and "not fully credible" (Tr. 21).

The ALJ is reguired to consider the subjective complaints of

pain or other symptoms by a claimant who presents "medical signs

and findings, established by medically acceptable clinical or

laboratory diagnostic technigues, which show the existence of a

medical impairment that results from anatomical, physiological,

10 or psychological abnormalities which could reasonably be expected

to produce the pain or other symptoms alleged."

(d)(5)(A) (West Supp. 1996); see also Avery v. Secretary of

Health & Human Servs., 797 F.2d at 19, 20-21 (1st Cir. 1986);

(1996); S.S.R. 96-7p. "[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 & Human Servs.,

(1st Cir.

1989); see Blanch! v. Secretary of Health & 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 & Human Servs.,

(1st Cir. 1984) ) .

Upon a finding that an impairment could reasonably be

expected to produce the claimant's pain or other symptoms, the

ALJ "must evaluate the intensity, persistence, and limiting

effects of the individual's symptoms to determine the extent to

which the symptoms limit the individual's ability to do basic

work activities." S.S.R. 96-7p; see also

(c). Where the individual's statements about the effects

of pain are inconsistent with objective medical evidence, the ALJ

must determine whether the claimant's complaints are credible,

and may consider, inter alia, the individual's daily activities;

11 the location, duration, frequency and intensity of the

individual's pain or other symptoms; factors that precipitate and

aggravate the symptoms; the type, dosage, effectiveness and side

effects of any medication the individual takes or has taken to

alleviate pain or other symptoms; treatment, other than

medication, the individual receives or has received for relief of

pain or other symptoms; and any measures other than treatment the

individual uses or has used to relieve pain or other symptoms.

Id.; see also Avery, 797 F.2d at 23. Finally, the court gives

deference to credibility determinations made by the ALJ,

particularly where the determinations are supported by specific

findings. Frustaqlia v. Secretary of Health & Human Servs.,

(1st Cir. 1987) (citing DaRosa v. Secretary of

Health & Human Servs.,

(1st Cir. 1985)).

In the instant case, the ALJ found the claimant's assertion

that he is unable to work due to pain is inconsistent with the

plaintiff's impairments (Tr. 20). Accordingly, he considered

evidence of the plaintiff's daily activities, which include

cooking, shopping, driving, going on short walks, and swimming

(Tr. 21). The ALJ also noted that the plaintiff suffers no

significant side effects from his medication and, after making

reference to the objective evidence and the restrictions

12 described by the plaintiff's physicians, concluded that the

plaintiff's complaints are not fully credible (Tr. 21).

The court finds the ALJ's inquiry into the plaintiff's

allegations of pain to be insufficient. Beyond his mention of

the plaintiff's daily activities and the lack of side effects

from medication, it is not apparent which, if any, of the factors

articulated in Avery the ALJ considered. Significantly, the

ALJ's decision contains no mention of either the intensity or

duration of the plaintiff's pain or the effectiveness of the his

medication, and the transcript of the plaintiff's hearing does

not reveal any substantial inquiry into these or any related

matters. Moreover, the ALJ's conclusion fails to account for

Palmer's inability to diagnose the source of the plaintiff's

chest pain (Tr. 164) or the plaintiff's cardiologist's repeated

characterization of the plaintiff's chest pain as "atypical."

(Tr. 186, 187, 191). Although it is not for a reviewing court to

second-guess the determinations of the ALJ concerning a

claimant's subjective complaints of pain, deference is not

appropriate where, as here, the record does not evince a full

consideration of the nature and effects of the claimant's

complaints.

Accordingly, the court finds that the ALJ's conclusion

concerning the plaintiff's RFC, although supported by substantial

13 objective evidence, is not based on a sufficient consideration of

the plaintiff's subjective complaints of pain. On remand, the

Commissioner will consider these complaints in light of the

objective medical and other evidence and the Avery factors.

B. The ALJ's Reliance on Grid Rule 201.28

The plaintiff also contends that the ALJ erred in relying on

20 C.F.R. P t . 404, Subpt. P, Ap p . 2 ("the grid"), rather than

eliciting testimony from a vocational expert, to determine, based

on the plaintiff's RFC, age, education, and work experience, that

significant numbers of jobs exist in the national economy that

the plaintiff can perform (Tr. 22). Specifically, the plaintiff

claims that reliance on the grid is inappropriate where, as here,

a claimant's exertional and nonexertional limitations signifi­

cantly affect his ability to perform the full range of jobs at a

particular exertional level.

Where a claimant's capacity to do a full range of sedentary

work is reduced by an exertional or nonexertional limitation, the

ALJ must consider the extent to which the claimant's limitation

erodes the sedentary "occupational base." S.S.R. 96-9p; see also

Ortiz v. Secretary of Health & Human Servs.,

(1st Cir. 1989). In the event an impairment places a significant

restriction on any activity necessary for the performance of

14 sedentary employment, consultation with a vocational expert may

be appropriate. S.S.R. 96-9p.

The plaintiff has identified three abilities that he claims

are both necessary to the performance of sedentary employment and

are restricted by his impairments and his pain and shortness of

breath: his ability to stand or walk; his ability to use his

hands and fingers; and his ability to work around dust and

fumes.9 S.S.R. 96-9b provides that consultation with a

vocational resource concerning the erosion of the occupational

base is appropriate if the claimant is unable to stand or walk

for "slightly less" than two hours during an eight-hour day, if

the claimant suffers significant manipulative limitations, or if

the claimant must avoid significant exposure to dust and odors.

Here, the ALJ made no specific findings concerning the

limitations on the plaintiff's ability to stand or walk, perform

fine manipulation, or the extent to which the plaintiff's ability

to work is limited by exposure to dust and odors. However, the

plaintiff's treating physician opined that the plaintiff (1) can

stand or walk for only one hour in an eight-hour day (an amount

9The ALJ found that there was no objective evidence in the record to support the plaintiff's claim that his peripheral neuropathy limited his ability to reach, grasp, and lift objects up and above shoulder level (Tr. 7). The plaintiff has not pointed to any evidence that undermines this conclusion.

15 that cannot fairly be characterized as "slightly less" than two

hours); (2) is "somewhat" limited in his ability to perform fine

manipulation; and (3) should avoid exposure to dust and fumes

(Tr. 166-67). Depending on the weight assigned to these medical

opinions, any of these limitations, whether considered individ­

ually or in combination, may be sufficiently significant to

reguire consultation with a vocational expert to determine the

extent to which they erode the sedentary occupational base. See

S.S.R. 96-9b.

In the absence of specific findings by the ALJ concerning

the effect of these limitations on the plaintiff's ability to

work, the court is unable to determine whether the ALJ should

have consulted with a vocational expert to determine the extent

of the erosion of the plaintiff's occupational base. Accord­

ingly, on remand, after reviewing the plaintiff's subjective

assertions of pain in light of the medical evidence and the Avery

factors, the Commissioner shall determine the extent of the

limitations on the plaintiff's abilities to stand or walk and

perform fine manipulation and the extent of his environmental

limitations. If any of these limitations are deemed significant,

the Commissioner shall, consistent with S.S.R. 96-7p, consult

with a vocational expert to determine the erosion of the

sedentary occupational base.

16 Conclusion

The plaintiff's motion for an order reversing the decision

of the defendant (document no. 5) is granted. The defendant's

motion for an order affirming the Commissioner's decision

(document no. 7) is denied. The case is remanded to the

Commissioner for further proceedings consistent with this

opinion. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

February 6, 1997

cc: Jonathan P. Baird, Esguire David L. Broderick, Esguire

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