Piper v. SSA CV-96-243-SD 06/09/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Pamela J. Piper

v. Civil No. 96-243-SD

Shirley S. Chater, Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), plaintiff Pamela J. Piper

seeks review of a final decision of the Commissioner of the

Social Security Administration denying her claim for benefits.

Presently before the court is plaintiff's motion to reverse on

the ground that the Commissioner's decision was not supported by

substantial evidence in the record. Defendant has moved to

affirm. For the reasons that follow, the court affirms.

Administrative Proceedings

Plaintiff originally filed an application for a period of

disability and supplemental security income benefits with a

protective filing date of February 16, 1993, alleging an

inability to work because of incontinence and rectal pain since

December 27, 1991. Transcript (Tr.) 78. The Social Security

Administration denied the application on May 20, 1993, and denied it again upon reconsideration on December 16, 1993.

Plaintiff filed the present application on March 25, 1994,

again alleging that she had been disabled since December 27,

1991. Tr. 128. The application was denied initially on May 24,

1994, and on reconsideration on October 4, 1994. After Piper

filed a timely reguest for a hearing, an Administrative Law Judge

(ALJ) held a hearing on April 19, 1995, at which he heard

testimony from the claimant, who was represented by counsel, and

from a vocational expert. Finding that new and material evidence

provided good cause, the ALJ reopened Piper's application of

February 16, 1993, as well as all of the previous adverse

determinations.

On August 4, 1995, the ALJ issued a written decision finding

that (1) the claimant had not engaged in substantial gainful

activity since December 27, 1991; (2) the claimant has severe

rectal and bowel problems, depression, an eating disorder with

resulting morbid obesity, and bladder incontinence, but does not

have an impairment or combination of impairments listed in or

medically egual to one listed in

, Ap p . 1, Subpt.

P, Table No. 1; (3) the claimant's testimony was not consistent

as to the disabling effect of her symptoms; (4) the claimant has

the residual functional capacity to perform the exertional and

nonexertional reguirements of light work except that involving

2 repetitive bending and stooping, or prolonged sitting, standing,

or walking; she reguires a sit/stand option; she must have access

to a bathroom at will; and her ability to cope with a high-stress

work environment is moderately impaired; (5) the claimant is

unable to perform her past work as a custodian; and (6), based on

her exertional capacity for light work and her age, education,

and work experience. Piper is not disabled. See

;

, App. 2, Subpt. P, Table No. 2.

The Appeals Council denied plaintiff's reguest for review on

March 1, 1996, thereby rendering the ALJ's decision the final

decision of the Commissioner and subject to judicial review.

Medical History

_____ The court here includes some of the highlights from the

Joint Statement of Material Facts filed by the parties pursuant

to Local Rule 9.1(b). The complete statement can be found at

Appendix A.

Plaintiff, who was born on August 31, 1953, is a high school

graduate and has past work experience as a medical receptionist,

a custodian, and a senior companion. She claims she has been

unable to work since December 27, 1991, due to rectal and bowel

problems and urinary incontinence.

Plaintiff's medical history is marked by multiple medical

3 conditions and symptoms, including cervical cancer, obesity,

depression, an eating disorder, an entercolonic fistula, a

perirectal abscess, and narrowing of the anal sphincter. Prior

to the alleged onset of her disability in 1991, she had

intestinal bypass surgery in 1976, a cholecystectomy in 1977, and

plastic surgery for panniculectomy, whereby the abdominal apron

of superficial fat was excised.

In March 1991 she was diagnosed with cervical cancer by Dr.

Jackson Beecham at Dartmouth Hitchcock Medical Center (DHMC) and

in April had a radical hysterectomy and pelvic lymphadectomy. In

June of that year she returned to DHMC complaining of diarrhea,

leg swelling, abdominal swelling, and erythema. Another surgeon

opened her abdominal wound and found it to extend below the

fascia for at least 14 cm. An abdominal CT scan demonstrated a

large fluid collection in the right pelvic gutter, anterior to

the wound. The wound was found to be expelling brown stool and

flatus. Plaintiff was treated with antibiotics and advised to

maintain bowel rest.

Plaintiff returned to DHMC in September of 1991 on an

emergency basis, complaining of exguisite constant perianal pain.

Dr. Thomas Colacchio found her to be moderately obese, oriented,

and well nourished. She seemed to be acutely uncomfortable

sitting down, but otherwise was in no apparent distress. Later

4 that month she underwent repair of an anal fissure without

complications. She was seen again in November, complaining of

diarrhea and rectal pain. The record reflects no other hospital

or medical reports until February 1993, at which time a cervical

cytology test was performed, which came back as normal.

On March 21, 1993, Dr. Donald 0. Lacey, a general

practitioner who had treated plaintiff for 15 years, wrote the

New Hampshire State Disability Determination Service (DDS) and

stated that plaintiff continued to have significant pain and

discomfort when sitting or sguatting, as well as urinary

incontinence. He opined that she was unable to work because of

constant urinary leakage and trouble with bowel movements. He

further stated that sitting and standing caused discomfort and

embarrassment due to leakage.

On May 4, 1993, Dr. Maurice Kelley, Jr., of DHMC wrote the

DDS that plaintiff's problems related to an inability to control

her bowel and bladder functions. He opined that her intestinal

bypass, extensive pelvic surgery, and further complications

resulted in dysfunction of the rectum, bladder, and pelvic floor,

leaving her unable to control her bladder and bowel functions.

Plaintiff reported to him that she made freguent trips to the

bathroom because of the urge to defecate or urinate. Dr. Kelley

opined that plaintiff was precluded from doing any work involving

5 sitting, standing, walking, lifting, carrying, or bending.

On July 8, 1993, Dr. Lacey examined plaintiff as part of an

application for state Medicaid assistance. He opined that

plaintiff was unable to work since April 1991 but that she had

the potential for gainful employment upon successful treatment of

her urinary incontinence and bowel difficulties. He found no

abdominal, genito-urinary, gynecological, or anorectal

abnormalities. He further noted that plaintiff felt better since

taking Prozac, an antidepressant medication.

In September of 1993 plaintiff again visited DHMC,

complaining of painful bowel movements, chronic diarrhea, and

depression. The doctor recommended some dietary changes.

On September 22 she was evaluated by psychiatrist Dr.

Stephen Cole at the reguest of the state DDS. Dr. Cole opined,

among other things, that she had a deficit in coping skills and

had a tendency to rely on escapist coping mechanisms such as

drugs and alcohol. He also stated it was unlikely that she would

be able to cope with the normal pressures of the workplace until

her medical and living situations stabilized.

On December 20, 1993, plaintiff underwent surgery at DHMC to

reverse her intestinal bypass and to correct a cystocele (a

protrusion of the urinary bladder through the vaginal wall). She

tolerated the surgery well. As a follow-up to her surgery, she

6 was seen at DHMC on February 10, 1994, by Dr. Kenneth Burchard,

who reported that plaintiff told him she was doing well since her

surgery, "her only complaint being the sense that she needs to

stimulate an evacuation once a day with a suppository." Tr. 298.

During the first few months of 1994, plaintiff received

evaluations and treatment for ongoing depression. Dr. Lacey saw

her in March when she asked him to fill out a Vermont Medicaid

form. She reported she was doing well, except for freguent

urination and incontinence, particularly during sexual activity.

Tr. 283. On October 25, 1994, she saw Dr. Ann Gormley at DHMC,

who diagnosed her with Type III stress urinary incontinence and

recommended use of a rectofacial pubovaginal sling.

Discussion

A. Standard of Review

A federal district court may "enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or

reversing the decision of the [Commissioner of the Social

Security Administration], with or without remanding the cause for

a rehearing."

(g).

A denial of social security disability benefits should be

upheld unless "'the Commissioner has committed a legal or factual

error in evaluating a particular claim.'" Manso-Pizarro v.

7 Secretary,

(1st Cir. 1996) (quoting Sullivan v.

Hudson,

(1989)).

When reviewing a social security disability determination,

the factual findings of the Commissioner "shall be conclusive if

supported by 'substantial evidence.'" Irlanda Ortiz v.

Secretary,

(1st Cir. 1991) (quoting

(g)). "[S]ubstantial evidence" requires "'more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.'" Richardson

v. Perales,

(1971) (quoting Consolidated Edison

Co. v. NLRB,

(1938)); Rodriquez v. Secretary,

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

However, substantial evidence "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) (citing NLRB v. Nevada Consol. Copper Corp.,

(1942)). The decision of the Commissioner must

be affirmed, "even if the record arguably could justify a

different conclusion, so long as it is supported by substantial

evidence." Rodriquez Pagan v. Secretary,

(1st Cir.

1987) (citing Lizotte v. Secretary,

(1st Cir. 1981)), cert, denied,

(1988).

It is incumbent on the Commissioner "to determine issues of

credibility and to draw inferences from the record evidence."

Irlanda Ortiz, supra,

(citing Rodriguez, supra,

647 F.2d at 222). Moreover, "the resolution of conflicts in the

evidence is for the Commissioner, not the courts." Id.;

Evangelista v. Secretary,

(1st Cir. 1987); see

also Burgos Lopez v. Secretary,

(1st Cir. 1984);

Sitar v. Schweiker,

(1st Cir. 1982).

Since determinations regarding factual issues and the

credibility of witnesses are entrusted to the Commissioner, whose

findings should be accorded great deference, see, e.g.,

Frustaglia v. Secretary,

(1st Cir. 1987), 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 adeguate to support his conclusion.'" Irlanda

Ortiz, supra,

(guoting Rodriguez, supra, 647 F.2d

at 222).

B. The ALJ's Treatment of the Opinions of Plaintiff's Physicians

Plaintiff argues that the ALJ disregarded the opinions of

three physicians, Drs. Lacey, Kelley, and Cole, concerning the

issue of her ability to work, which thereby caused him to

9 undervalue the degree to which her ability to work was impaired

by her urinary incontinence, bowel and rectal problems, and

depression. Decisions as to whether a claimant's medical

condition is "disabling," as that term is defined under the

Social Security Act, is reserved to the ALJ,

(e)(1), and the ALJ may disregard opinions from a medical

source that a claimant is "disabled" or "unable to work" when

there is contradicting evidence from other medical sources. The

ALJ concluded that the claimant's combination of impairments,

including her bowel and rectal problems stemming from prior

surgery, her urinary incontinence, and her depression amounted to

a "severe" impairment under the Act. Tr. 14. However, although

he accepted the objective findings and diagnoses of Drs. Lacey,

Kelley, and Cole, the ALJ departed from some of the physicians'

opinions as to the degree to which Piper's symptoms interfered

with her ability to work.

In evaluating the intensity or persistence of Piper's

symptoms and the extent to which they affected her ability to

work, the ALJ carefully considered the available evidence,

including the claimant's medical history and statements from the

claimant and from her treating or examining physicians and/or

psychologists. See

(c)(4). In addition,

when he evaluated the degree of claimant's pain and other

10 subjective symptoms, the ALJ carefully applied the relevant

factors in coming to this conclusion. See Avery v. Secretary,

(1st Cir. 1986). Considerations capable of

substantiating subjective complaints of pain and other symptoms

include evidence of daily activities; the nature of the pain and

other symptoms; precipitating and aggravating factors; the type,

dosage, effectiveness and side effects of any medication taken to

alleviate the pain or other symptoms; other treatment received to

relieve pain or other symptoms; and any other factors relating to

claimant's functional limitations and restrictions due to pain.

(c)(3);

.

Dr. Lacey, Piper's treating physician, based his opinion

that she was unable to work on Piper's

significant problems regarding pain and discomfort on sitting or sguatting as well as problems with urinary incontinence. She has virtually constant leakage of urine and continued trouble with bowel movements. For this reason she has found it extremely difficult to engage in any sort of work. Sitting and standing cause her discomfort as well as embarrassment due to her leakage.

Tr. 267. Similarly, Dr. Kelley described her symptoms as an

"inability to control her bladder and bowel function" and opines

that she is precluded from any work reguiring sitting, standing,

walking, lifting, carrying, and bending because of her disorder.

T r . 287 .

The ALJ properly considered these opinions of disability in

11 the context in which they were made. Significantly, they were

made directly prior to Piper's surgery to reverse her intestinal

bypass. After her surgery, plaintiff's bowel dysfunction and

pain substantially improved, although her incontinence worsened.

As Dr. Lacey's and Dr. Kelley's conclusions about disability were

influenced by plaintiff's bowel dysfunction and pain, the ALJ was

justified in factoring in plaintiff's successful treatment with

surgery, which occurred subseguent to these physicians' reports.1

To the extent that Drs. Lacey and Kelley based their

opinions on the plaintiff's freguent urination and leakage, the

ALJ was justified in relying on other evidence, particularly

plaintiff's own testimony. The physicians' opinions on the

freguency of plaintiff's urination and the extent of her leakage

were based on her own reports. Substantial evidence elsewhere in

the record existed to support the ALJ's conclusion that

plaintiff's urinary difficulties, although severe, would not

compromise her ability to work, so long as she had access to a

bathroom "at will." Plaintiff's own testimony is particularly

enlightening. She testified that she uses the bathroom an

average of 20 times per day, Tr. 46, and that she often leaks

1Plaintiff did report diarrhea and rectal pain in November of 1991. The ALJ apparently disregarded this as evidence that her condition was severe because she did not again report bowel troubles until March 21, 1993.

12 urine when she stands up but not when she has had access to a

bathroom, Tr. 49. Despite her condition, she was able to work

for Dr. Lacey as a medical receptionist over a six-month period

in 1994, two days a week, four hours per day. Plaintiff

testified that she never had to leave work because of wet

clothing, although she did experience some wetting. Tr. 48. Her

job ended, not because of her physical condition, but because she

had a personal dispute with a patient. Tr. 54. She also

testified that she could perform a job that reguired sitting so

long as her need to use the bathroom was accommodated. Tr. 49.

Finally, although plaintiff testified that her urinary

difficulties increased following her December 1993 surgery, Tr.

45-46, Dr. Gormley, a treating physician at DHMC, wrote that

plaintiff would benefit from using a rectofacial, pubovaginal

sling.2

As for her depression and anxiety issues, plaintiff accuses

2The ALJ also might have noted that while Drs. Lacey and Kelley relied on plaintiff's reports of urinary incontinence in 1993, plaintiff's testimony at the hearing almost minimizes her incontinence problems at that time:

Q. . . . Did you have any problem withurinary incontinence prior to that operation where they reconnected your intestines in '93? A. I did but it wasn't, you know, nothing like it is now.

T r . 45 .

13 the ALJ of revisionism concerning the report of Dr. Cole, a

psychologist who examined her in September of 1993 at the reguest

of the New Hampshire Disability Determination Service. The court

has carefully reviewed Dr. Cole's report and finds that the ALJ

interpreted it fairly and, contrary to plaintiff's contentions,

the ALJ did not substitute his own opinion for that of Dr. Cole

on any medical issue.

Dr. Cole opined that "[a]t the present time it is unlikely

that Ms. Piper would be able to cope with the normal pressures of

the work place. If her medical and living situation can be

stabilized, it is my opinion that she would be able to return to

work." Tr. 294. When read in context of the rest of his rather

detailed report. Dr. Cole's statement that Piper is unable to

cope with work appears to be largely based on his belief that her

physical and living situations were contributing to her mental

condition and on his understanding that she was about to undergo

surgery to reverse her previous intestinal bypass surgery. In

her interview with Dr. Cole, Piper complained of pain in her

rectum, daily diarrhea, sleep difficulties, depression, and

anxiety, and also reported fears regarding her upcoming surgery.

Tr. 289-90. Dr. Cole also noted that Piper had been coping with

"severe medical problems over the past two to three years." Tr.

293. He writes at one point in his report, "While her dysthemia

14 clearly preceded her medical problems, it is likely that it has

been maintained by her physical difficulties." Tr. 294.3 As

correctly noted by the ALJ, Piper testified that her bowel

problems, one of the primary concerns she had raised with Dr.

Cole, were relieved following the corrective surgery performed

several months after Dr. Cole wrote his report, Tr. 49-50,

although her urinary incontinence may have worsened following the

surgery. Given the overall improvement in her physical

condition, it was reasonable for the ALJ to conclude after

reading Dr. Cole's report that plaintiff's depression and

anxiety, while severe, would only moderately impact her ability

to cope with work.

In addition, substantial evidence existed to support that

Piper's depression and anxiety did not have a significant impact

on her ability to work. She informed Dr. Cole that she had been

taking Prozac for two to three months, which "has significantly

reduced her depression and increased her ability to cope." Tr.

290. In addition, neither the depression nor her anxiety

appeared to have significantly interfered with her ability to

3"Dysthymia" is defined as a "mood disorder characterized by depressed feeling . . . and loss of interest or pleasure in one's usual activities and in which the associated symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depression." D o r l a n d 's I l l u s t r a t e d M e d i c a l D i c t i o n a r y 519 (28th ed. 1994) .

15 work as a part-time receptionist for Dr. Lacey. Finally, even

Dr. Cole concludes at one point that given the results of Piper's

psychological testing she "is likely to have exaggerated the

severity of her psychological symptoms." Tr. 293.

The court finds that the ALJ gave appropriate weight to the

medical opinions of Piper's physicians and therefore Piper is not

entitled to reversal or remand on this ground.

C. Assessment of Residual Functional Capacity/Hypothetical Posed

to Vocational Expert

Plaintiff next argues that substantial evidence does not

support the ALJ's conclusion that she had the residual functional

capacity to perform a full range of light work. The ALJ's

specific finding as to Piper's residual functional capacity was

actually that her ability to perform light work had limitations.

The claimant has the residual functional capacity to perform the physical exertion and nonexertional reguirements of work except for medium and greater exertional work and light work involving repetitive bending and stooping, prolonged sitting, standing and walking. She reguires a sit/stand option and must have access to use the bathroom at will. She would also need to avoid heights and moving machinery, as well as noise and vibration. She has a moderate decrease in her ability to cope with high stress work and would be restricted from detailed, complex work and tasks involving close supervision or a great deal of contact with co-workers.

Tr. 23. The ALJ dutifully included these limitations in the

16 hypothetical posed to the vocational expert, who stated that

substantive numbers of jobs existed in the economy for a person

with such limitations.

Piper contends, among other things, that her urinary

incontinence precludes her from performing the exertional

reguirements of light work because she cannot stand for six hours

at a time, cannot carry 20 pounds, and constantly needs to use

the bathroom. The ALJ's finding as to Piper's residual

functional capacity specifically accounts for the fact that Piper

could not stand or sit for "prolonged periods of time,"

and

also provides that Piper needs access to a bathroom at will. For

the reasons outlined above, substantial evidence in the record,

including plaintiff's own testimony, existed to support the ALJ's

conclusion that Piper's incontinence would not significantly

interrupt her ability to perform light work when she was given

access to a bathroom at will.

As for the light work reguirement that a claimant must be

able to lift twenty pounds,

(b), evidence from

two consulting physicians indicated that Piper would be capable

of such effort. In November of 1993 Homer E. Lorenco, M.D.,

reviewed the record and completed the Residual Physical

Functional Capacity Assessment. Tr. 79-86. He determined that

plaintiff could occasionally lift/carry up to twenty pounds and

17 frequently lift/carry up to ten pounds. Similarly, Henry

Dantzig, M.D., reviewed the record in April 1994, four months

after Piper underwent reverse intestinal bypass surgery, and

found that she retained the functional capacity to perform light

work. Tr. 133-40. Although these were nonexamining physicians,

the ALJ is entitled to give their opinions some weight,

particularly that of Dr. Dantzig, as he mentioned many of

plaintiff's medical impairments and wrote more than a cursory

evaluation of her condition, indicating that he carefully

reviewed her medical history. See, e.g., Berrios Lopez v.

Secretary of HHS,

(1st Cir. 1991); cf. Rose v.

Shalala,

(1st Cir. 1994) (cautioning that the

amount of weight accorded to nonexamining physicians varies with

the circumstances and that in some cases written reports

submitted by nonexamining physicians cannot constitute

substantial evidence).

Plaintiff also argues that the ALJ minimized her depression

and ignored the fact that she once had attempted suicide. The

record reveals, however, that the ALJ considered both plaintiff's

depression and her suicide attempt in making his findings. In

fact, he appears to have factored plaintiff's mental illness into

her residual functional capacity by concluding that plaintiff had

a moderate deficit in her ability to cope with high-stress work.

18 Tr. 23.

Finally, plaintiff takes issue with the hypothetical

question posed by the ALJ to the vocational expert. A

hypothetical must be supported by substantial medical evidence

and must clearly convey the parameters of the claimant's

restrictions. Keating v. Secretary,

(1st Cir.

1988); Arocho v. Secretary,

(1st Cir. 1982).

Plaintiff argues that the hypothetical was defective in that

it failed to adequately reflect the number of times during an

average work day she would need to use the bathroom. The

vocational expert's testimony regarding the bathroom-break issue

can be boiled down to this: Jobs exist that could accommodate a

claimant's need to use a bathroom on an "at will" basis, so long

as her use of the bathroom was not frequent or constant and did

not exceed one time per hour. Tr. 58-60. For example, the

vocational expert explained that if the claimant had to be away

from her work area ten times in addition to lunch and other break

times during an eight-hour day, that would compromise her ability

to perform the available light and sedentary jobs in the national

economy. Tr. 57-59.

Substantial evidence existed to support the ALJ's apparent

conclusion that plaintiff's need for bathroom breaks "at will"

19 was not so frequent or constant as to exceed one time per hour.4

Plaintiff's testimony at the hearing was that she needed to use

the bathroom twenty times per day. However, seemingly

contradictory evidence existed on the record, such as that

plaintiff is able to take daily walks for up to an hour and was

able to work as a receptionist for fours hours at a time without

significant interruptions for bathroom breaks. In addition, the

ALJ might have noted that despite many trips to physicians for

treatment of her incontinence, her chief medical complaint after

her 1993 surgery typically did not concern the frequency of her

need to urinate, but rather the leakage of urine during certain

physical activities, a condition that could be corrected by use

of a recto-facial pubovaginal sling. Accordingly, the ALJ's

decision to disregard Piper's testimony about using the bathroom

twenty times per day was supported by substantial evidence and

thus must be upheld, even if the evidence also could support a

different conclusion. The court therefore cannot find that

plaintiff is entitled to reversal or remand on the ground that

the ALJ's findings regarding her residual functional capacity

were not supported by substantial evidence.

4The court will confine its attention to plaintiff's experience of incontinence following her December 1993 surgery because at that point her incontinence worsened substantially.

20 Conclusion

For the above-stated reasons, the court affirms the decision

of the Commissioner. The clerk is instructed to close this case.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 9, 1997

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

21