Henk v. SSA CV-97-100-M 03/06/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Brenda Henk, Plaintiff,

v. Civil No. 97-100-M

Kenneth S. Apfel, Commissioner Social Security Administration, Defendant.

O R D E R

Pursuant to

(g), plaintiff, Brenda L. Henk,

moves to reverse the Commissioner's decision denying her

application for Social Security Disability Insurance Benefits

provided under Title II of the Social Security Act,

. Defendant objects and moves for an order affirming the

decision of the Commissioner.

I. Procedural History

Plaintiff initially filed an application for disability

insurance benefits on August 24, 1990, alleging disability due

primarily to chondromalacia patella1 of both knees. Plaintiff

and a vocational expert testified before an administrative law

judge ("ALU") on November 13, 1991. On December 26, 1991, the

ALU issued an order denying plaintiff's application for benefits.

The Appeals Council denied plaintiff's reguest for review on

1 A degeneration of the cartilage of the patella (kneecap), in which the margins of the patella become tender, and there is pain when the patella is pressed against the femur (thighbone). Dorland's Illustrated Medical Dictionary (27th ed. 1988). November 17, 1992. She appealed to this court, which denied her

motion to reverse the decision of the Commissioner. Henk v.

Commissioner, No. 93-11-M, slip op. (D.N.H. March 25, 1994). The

court did, however, note that " [p]laintiff is of course entitled

to, and probably will, reapply for benefits based on a further

degeneration of her condition which may result in a disability

arising during a period of insured status subseguent to that

reviewed here."

.

In light of the disposition of plaintiff's earlier

application, the parties agree that "the time period adjudicated

by these prior proceedings, up through and including December 26,

1991, is res judicata." Joint Statement of Material Facts, at 2.

And, because plaintiff's insured status expired on March 31,

1993, the relevant period of inguiry is between those two dates.

Nevertheless, in order to gain a longitudinal view of

plaintiff's condition, a brief discussion of her medical history

is appropriate. The record from plaintiff's prior application

reveals that she underwent six surgical procedures on her right

knee due to chondromalacia, a spur, and arthritis (as of her most

recent hearing, she had undergone three additional operations).

Plaintiff's surgeon. Dr. Hodge, also diagnosed her with reflex

sympathetic dystrophy of the right knee. Dr. Hodge recommended

extended physical therapy for up to five years and opined that

plaintiff suffered from a 65% impairment of the whole body.

2 Subsequently, Dr. Hodge referred plaintiff to Dr. Kleeman, who

opined that she suffered from a 20% impairment of the whole body.

In addition to arthritis and chondromalacia, plaintiff also

experiences allergic reactions (some of which are quite severe)

to many of the pain medications which have been prescribed for

her. Accordingly, she has sought relief from her pain through

physical therapy, ultrasound, heat message, a knee immobilizer, a

special cane, and a Tedd's stocking.

On May 19, 1994, plaintiff filed a second application for

disability insurance benefits. ALJ Robert Klingebiel conducted a

hearing on February 15, 1995, at which plaintiff appeared and was

represented by counsel. Both plaintiff and her husband

testified. On July 28, 1995, the ALJ issued an order denying

plaintiff's application for benefits. The Appeals Council

subsequently denied plaintiff's request for review and plaintiff

filed the instant appeal.

Stipulated Facts

Pursuant to this court's local rule 9.1(d), the parties have

submitted a statement of stipulated facts. Because of

plaintiff's substantial medical history and the sizeable number

of facts the parties deem relevant to this proceeding, the court

has incorporated the parties' stipulation as an appendix to this

opinion. Where appropriate, the court has included reference to

3 factual allegations set forth in plaintiff's supplemental counter

statement of material facts (document no. 12), provided those

allegations are supported in the record.

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 [now, the "Commissioner"], with or without remanding

the cause for a rehearing." Factual findings of the Commissioner

are conclusive if supported by substantial evidence.

(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health and

Human Services,

(1st Cir. 1991).2

In making factual findings, the Commissioner must weigh and

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

Health & Human Services,

(1st Cir. 1984) (citing

Sitar v. Schweiker,

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

responsibility of the [Commissioner] to determine issues of

credibility and to draw inferences from the record evidence.

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

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

(1938). It 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).

4 [Commissioner] not the courts." Ortiz,

.

Accordingly, the court will give deference to the ALJ's

credibility determinations, particularly where those

determinations are supported by specific findings. Frustaqlia v.

Secretary of Health & Human Services,

(1st Cir.

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

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

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable "to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months."

(1)(1)(A). The Act places a heavy initial burden on the

plaintiff to establish the existence of a disabling impairment.

Bowen v. Yuckert,

(1987); Santiago v.

Secretary of Health and Human Services,

(1st Cir.

1991) . To satisfy that burden, the plaintiff must prove that her

impairment prevents her from performing her former type of work.

Gray v. Heckler,

(1st Cir. 1985) (citing

Goodermote v. Secretary of Health and Human Services,

(1st Cir. 1982)). Nevertheless, the plaintiff is not reguired

to establish a doubt-free claim. The initial burden is satisfied

by the usual civil standard: a "preponderance of the evidence."

See Paone v. Schweiker,

(D. Mass. 1982).

5 In assessing a disability claim, the Commissioner considers

objective and subjective factors, including: (1) objective

medical facts; (2) the plaintiff's subjective claims of pain and

disability as supported by the testimony of the plaintiff or

other witnesses; and (3) the plaintiff's educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health and Human Services,

(1st Cir. 1986);

Goodermote,

.

Once the plaintiff has shown an inability to perform her

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that she can

perform. Vazquez v. Secretary of Health and Human Services,

(1st Cir. 1982). If the Commissioner shows the

existence of other jobs which the plaintiff can perform, then the

overall burden remains with the plaintiff. Hernandez v.

Weinberger,

(1st Cir. 1974); Benko v.

Schweiker,

(D.N.H. 1982).

When determining whether a plaintiff is disabled, the ALJ is

reguired to make the following five inguiries:

(1) whether the plaintiff is engaged in substantial gainful activity;

(2) whether the plaintiff has a severe impairment;

(3) whether the impairment meets or eguals a listed impairment;

6 (4) whether the impairment prevents the plaintiff from performing past relevant work; and

(5) whether the impairment prevents the plaintiff from doing any other work.

. Ultimately, a plaintiff is disabled only

if her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .

(d) (2) (A) .

With those principles in mind, the court reviews plaintiff's

motion to reverse the decision of the Commissioner.

DISCUSSION

A. Background.

In concluding that Ms. Henk was not disabled within the

meaning of the Act, the ALJ employed the mandatory five-step

seguential evaluation process set forth in

.

Step 4 of the evaluation process reguires the ALJ to determine

whether, despite the plaintiff's impairment, she retains the

residual functional capacity ("RFC") to perform her past relevant

work. At step 4, the ALJ determined that plaintiff's RFC

permitted her to perform, at a minimum, "the exertional and

nonexertional reguirements of light work, except for standing

7 more than 45 minutes, walking more than one-half mile at a time

and performing extensive climbing, bending and stooping."3 (Tr.

20) In light of that finding, the ALJ concluded that plaintiff

could perform her past relevant work as a receptionist and held

that she was not disabled within the meaning of the Social

Security Act. (Tr. 20-21) Plaintiff claims that the ALJ erred

in assessing the credibility of her claim that her pain was

sufficiently extreme to be disabling. She also argues that the

ALJ failed to explain the basis for his decision with sufficient

particularity.

B. Assessing Plaintiff's Complaints of Pain.

The ALJ is reguired to consider subjective complaints of

pain or other symptoms by a plaintiff 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 Services,

(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 Services,

(1st Cir. 1989); see

Bianchi v. Secretary of Health and Human Services,

,

3 The ALJ's order is somewhat unclear insofar as it repeatedly references plaintiff's ability to perform sedentary work, see, e.g., Tr. 17-19, yet in the end concludes that she is capable of performing light work. It is also unclear whether the ALJ concluded that plaintiff's prior employment as a receptionist reguired work at a light or sedentary level. 45 (1st Cir. 1985) ("The [Commissioner] is not required to take

the plaintiff's assertions of pain at face value.") (quoting

Burgos Lopez v. Secretary of Health and Human Services,

(1st Cir. 1984)). Once a medically determinable

impairment is documented, the effects of pain must be considered

at each step of the sequential evaluation process.

(d).

A plaintiff'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 plaintiff'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.

When, as here, a plaintiff complains that pain or other

subjective symptoms are a significant factor limiting her ability

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

evidence contained in the record, the ALJ must consider

additional evidence, such as the plaintiff'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 plaintiff's capacity to work.

(d);

04.1529(c)(4).

Here, the ALJ concluded that "[t]he record shows no

objective basis for limitations in sitting and [plaintiff's]

complaints in this regard have been found wanting." (TR. 19)

Ultimately, the ALJ concluded that plaintiff's "testimony and

allegations regarding subjective complaints, including pain, are

not generally credible." (Tr. 20) In support of that

conclusion, the ALJ noted that: (1) despite plaintiff's claim

that she could not sit for prolonged periods, her physicians did

not recommend any specific limitations with regard to sitting;

(2) neither Dr. Hodge nor Dr. Kleeman affirmatively stated that

plaintiff was unable to work as a result of her condition; and

(3) her daily activities suggested that her functional

limitations due to pain were exaggerated. (Tr. 17) With regard

to the latter factor, the ALJ observed that plaintiff was able to

drive her daughter to and from school each day, sit for a couple

of hours in the library of her daughter's school one morning each

week, act as the president of a social club, and conduct

10 educational programs roughly once each month for the Animal

Rescue League. (TR. 17)

While the ALJ's credibility determination is entitled to

deference, it must be supported by specific factual findings

which are, in turn, supported by the record. Here, however, the

ALJ's credibility determination is not adeguately grounded in the

record insofar as it appears that the ALJ failed to give

sufficient consideration to the factors outlined in

(c)(3) and Avery (e.g., effectiveness, side effects,

and dosage of pain medications; any measures used to relieve

pain; duration, freguency, and intensity of pain; etc.).

The parties agree that plaintiff's medical condition is one

that can, and in fact does, cause her pain. They disagree with

regard to the extent of that pain and whether it is disabling.

Plainly, the ALJ concluded that plaintiff's complaints of pain

were exaggerated and did not preclude her from performing her

past relevant work. However, for this court to sustain that

conclusion, the ALJ must properly document those factors in the

record upon which he relies in reaching that conclusion. See,

e.g., Kepler v. Chater,

(10th Cir. 1995)

("Credibility determinations are peculiarly the province of the

finder of fact, and we will not upset such determinations when

supported by substantial evidence. However, findings as to

credibility should be closely and affirmatively linked to

11 substantial evidence and not just a conclusion in the guise of

findings.") (citations and internal guotation marks omitted).

After carefully reviewing the record and, in particular, the

ALJ's stated bases for his resolution of this matter, the court

concludes that his findings are not supported by substantial

evidence. The ALJ did not address the following issues, or

evidence that seems particularly relevant:

1. Despite plaintiff's apparent willingness to work (there being nothing to the contrary in the record), she was unable to perform any work on a sustained basis.

2. Plaintiff's daily activities (although modest to begin with), declined toward the latter stages of her period of insured status (she says because her pain became more disabling).

3. With regard to activities such as driving her daughter to school, the ALJ's order does not address whether plaintiff performed those activities as a matter of necessity or in response to "extraordinary circumstances." See, e.g., Ranlet v. Secretary, No. 95-155-M, slip op. at 13 (D.N.H. March 19, 1996) ("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 ability to function with pain under the Avery analysis."); see also Nelson v. Bowen,

(2d Cir. 1989) .

4. The ALJ's order also does not address the fact that both Dr. Finn (plaintiff's treating psychologist) and Dr. Beasley (one of the many physicians who treated plaintiff) advised plaintiff that she should, to the extent she was physically able, attempt to maintain her limited activities in the community to help alleviate psychological feelings of helplessness and low self­ esteem which flowed from her disability.

12 5. Plaintiff's husband testified that following her surgery in 1990, she dramatically reduced her activities both outside the home and at home. See, e.g.. Transcript at 38 ("[W]e couldn't do as many things as a family, vacations, activities. We had to do more things to help her because she couldn't go up the stairs or shopping. We do more shopping, more cooking, more laundry, more things that she couldn't guite d o . . ..") .

6. Plaintiff has undergone nine separate surgical procedures, repeatedly describing her pain to treating physicians as "severe" (Tr. 168), "burning" and "sharp" (Tr. 321), "intense" (Tr. 353), and "excruciating" (Tr. 425). She also testified that her pain was sufficiently great to interfere with her sleep pattern, which testimony was supported by her husband, who testified that as early as 1991, he and plaintiff began sleeping on a downstairs couch on those occasions when plaintiff's pain was particularly debilitating, so she would not have to negotiate the stairs to their second- floor bedroom. (TR. 41-42)

7. Because plaintiff suffers from numerous allergies (including allergies to opiates and most anti-arthritic medications) she has been unable to maintain any effective medical pain-killing regimen. The record establishes that her allergies are so severe that, on occasion, she reguired local emergency room treatment because she was coughing up blood. Plaintiff's reaction to some of her pain medications also apparently caused her to sustain liver and/or pancreatic dysfunction. Nevertheless, the record shows that she continued to search for some medication (or combination of medications) which would alleviate her pain without causing additional discomfort or organ damage. In the end, it appears that the record establishes that plaintiff has been unable, despite repeated and sustained efforts, to arrive at an effective medical treatment for her pain.

While the ALJ likely considered those and other factors in

reaching his conclusions, the administrative order fails to

address them (in a way that would permit the court to identify

what substantial evidence of record supports the finding of no

disability). Conseguently, the court is constrained to hold that

13 the ALJ's conclusion that plaintiff is not disabled is not

supported by substantial evidence, since absent references to

evidence the court might be overlooking, the record appears to

support the contention that plaintiff is disabled.

For example, although the ALJ cited plaintiff's

participation in the Junior Women's Club as evidence of her

residual functional capacity, he makes no reference to a letter

from one of plaintiff's friends who represented that plaintiff's

position as president of that club reguired little, if any,

physical activity or exertion; that the club's projects "nearly

ran themselves;" and that club meetings were sometimes held in

plaintiff's home if she was not feeling well or was unable to

leave the house. (Tr. 478) No other evidence of record appears

to be contrary, so participation in the Junior Women's Club on an

occasional basis does not seem to be particularly probative of

anything. Nor does the ALJ reference plaintiff's statement that

her participation in that organization had "completely ceased" by

May of 1992 at the latest. (Tr. 36, 43)

Similarly, there is a letter in the record from plaintiff's

dentist. Dr. Ronald Szopa, who stated that, beginning in 1991,

plaintiff experienced severe dental problems, which were probably

the result of prolonged clenching of her teeth in response to

pain in her knees. (Tr. 476-77) That evidence might be seen as

corroborating claimant's assertion that her pain was both long-

14 lasting and, at least at times, intense. See

(c)(3)(ii). The letter is not discussed in the

administrative order, though it could not have been overlooked.

In the end, the factors mentioned above and the absence of

discussion of their import in the ALJ's order, and a pervasive

sense from the record that something is amiss, all counsel in

favor of remanding this case.

To carry her burden, and establish that she is disabled,

plaintiff need not demonstrate that she is an invalid or that she

has been reduced to a completely sedentary lifestyle. Murdaugh

v. Secretary,

(2d Cir. 1988). In a recent

opinion, the Court of Appeals for the Eight Circuit emphasized

this point, noting that:

In discrediting [claimant's] pain, the ALJ also pointed to her daily activities: making her bed, preparing food, performing light housecleaning, grocery shopping, knitting, crocheting, and visiting friends. The ALJ asserts that these activities "demonstrate an ability to meet the physical demands of work which does not involve prolonged sitting or standing." We have repeatedly held, however, that "the ability to do activities such as light housework and visiting with friends provides little or no support for the finding that a claimant can perform full-time competitive work." To establish disability, [claimant] need not prove that her pain precludes all productive activity and confines her to life in front of the television.

Baumgarten v. Chater,

(8th Cir. 1996) (citations

omitted). See also

(c) (suggesting that

taking care of oneself, performing household tasks or hobbies,

15 attending school, and participating in club activities or social

programs are generally not, without more, evidence of a

claimant's ability to engage in substantial gainful activity).

On this record, it appears that the ALJ rested his ultimate

conclusion largely upon such factors; perhaps not, but the

analysis provided and review of the record leave the court

persuaded that the administrative decision is not supported by

substantial evidence.

Conclusion

The ALJ's conclusion that Ms. Henk is not disabled within

the meaning of the Act is not supported by substantial evidence.

Specifically, the ALJ's conclusion that plaintiff's subjective

complaints of pain are not credible is tainted because the ALJ's

order fails to address particularly relevant evidence and factual

issues in the record in reaching that conclusion, which

conclusion seems to be against the weight of the record evidence.

See, e.g., Avery,

. See also

(c)(3) (outlining the factors an ALJ should consider when

assessing whether a claimant's pain is a significant factor

limiting his or her ability to work).

Absent discussion of those factors, the ALJ's order cannot

stand. To be sure, in cases where evidence of a plaintiff's pain

is minimal, detailed discussion of such factors may not be

necessary to justify the conclusion that the plaintiff's

16 complaints of pain are exaggerated. However, in cases such as

this, where the record contains substantial evidence of

plaintiff's pain, the ALJ should support his judgment that she is

overstating the magnitude of her pain and is capable of

performing her past relevant work with specific reference to

evidence or relevant factors leading to that conclusion. This

court must have a relatively firm foundation upon which to rest

its deference to the finder of fact. While perhaps a close case,

the court is constrained to conclude that it cannot, based upon

the record as it presently stands, defer to the ALJ's factual

conclusion that plaintiff is not disabled.

Plaintiff's motion to reverse the decision of the

Commissioner (document no. 6) is granted. The Commissioner's

motion to affirm the decision of the Commissioner (document no.

11) is denied. Pursuant to sentence four of

(g),

this matter is remanded to the ALJ for further proceedings.

SO ORDERED.

Steven J. McAuliffe United States District Judge March 6, 1998

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

17 Appendix

The Parties' Joint Statement of Material Facts

A. Work Background And Medical History

The plaintiff, Brenda Henk, was born on January 1, 1955, and

was 40 years old on the date of her hearing (Tr. 272). She had a

high school eguivalency degree (Tr. 236) and a work history

covering most of the years between 1972 and 1989 (Tr. 309-310) .

Her past relevant work included jobs as a receptionist, a

bartender, a restaurant hostess, and an administrative secretary

(Tr. 255-256, 458) .

Plaintiff alleges disability based on bilateral knee

conditions and sympathetic reflex dystrophy beginning May 1989

(Tr. 301). The evidence of record confirms that the plaintiff

has not performed gainful activity after that time. However, the

plaintiff did file a previous application in this case, based on

essentially the same conditions and the same onset date (Tr. 88-

90, 123) . This application was denied initially, on

reconsideration, by an Administrative Law Judge following a

hearing, and by the District Court for the District of New

Hampshire on appeal (Tr. 103-104, 116-118, 222-229). Thus the

time period adjudicated by these prior proceedings, up through

and including December 26, 1991, in res judicata.4 Another date

4 The medical evidence and testimony dated from this period may be viewed in an abbreviated fashion for purposes of establishing a longitudinal view of the plaintiff's conditions. Social Security Ruling 96-7p. In this case, the medical evidence from the prior application shows that the plaintiff underwent six

18 pertinent to the current application is the expiration of the

plaintiff's insured status. Here the plaintiff is insured up

through March 31, 1993, but not thereafter. Thus, the relevant

period in this case is from December 27, 1991 to March 31, 1993.

Evidence During the Relevant Period Presented At the Second ALJ Hearing on February 15, 1995

The earliest evidence following the beginning of the

relevant period is dated August 1992, at which time Dr. Kleeman

surgical procedures on her right knee due to chondomalacia, a spur, and arthritis (Tr. 143, 150, 157-159, 162-176, 186-198). These were performed by Dr. Kleeman, an orthopedic surgeon. Plaintiff was also diagnosed with reflex sympathetic dystrophy of the right knee by Dr. Hodge, a surgeon (Tr. 320, 322). Dr. Hodge recommended extended physical therapy of up to 5 years and rated the plaintiff with a 65% impairment of the whole body (Tr. 220). Dr. Kleeman rated the plaintiff with a 20% impairment of the whole body (Tr. 313).

Also during this period, the plaintiff did attend and testify at a hearing before an ALJ (Tr. 235-263) . Plaintiff's testimony indicated that she had experienced knee pain since 1984 and had undergone many surgeries for this condition (Tr. 237-238, 240-241). Plaintiff alleged that her limitations from her knee condition included pain and swelling (Tr. 242). According to the plaintiff, her swelling and pain became more severe if she was not able to elevate her legs (Tr. 253). Plaintiff estimated that she could perform 3-4 hours of activity a day. This included standing for ^ hour increments, up to 4 hours total. The plaintiff did not believe that she could perform prolonged sitting (Tr. 242, 247, 252). Plaintiff further testified that she would fall unexpectedly while standing in one position (Tr. 247) .

Moreover, plaintiff stated that she had been prescribed many pain medications, but that she had suffered allergies to most of these medications, in the form of gastrointestinal difficulties and rashes (Tr. 243). She also noted that she had employed other methods to reduce the pain and swelling in her knees, including physical therapy, ultrasound, heat massage, a TENS unit, knee immobilizer, special cane and Tedd's stocking. Plaintiff testified that these methods had provided little, if any, relief.

19 again saw the plaintiff after she started experiencing back pain

(Tr. 316). She complained of the pain radiating slightly to the

right side (Tr. 316). She also reported she tried to perform

some temporary work but had to go back to physical therapy for

her knee (Tr. 316). Plaintiff stated that her functional ability

was limited to sitting or standing for 45 minutes and walking

about a half mile (Tr. 316). She was not taking any pain

medication because of her physical intolerance to non-steroidals

(Tr. 316) .

Dr. Kleeman's examination found that the plaintiff's

strength, reflexes, and sensation were all normal (Tr. 316).

Additionally, the plaintiff was able to heel/toe walk and had a

negative straight leg raising test. Dr. Kleeman diagnosed early

disc degeneration secondary to hyperextension or overuse or

posturing due to her knee problems (Tr. 316). He recommended

physical therapy and the avoidance of excessive bending, stooping

and lifting (Tr. 316) .

In September 1992, Dr. Kleeman saw Ms. Henk on two occasions

for swelling in the knee (Tr. 317-318). Her explained to her

that her physical therapy could not be open-ended and that he

would have to establish a termination date (Tr. 318).

However, the plaintiff continued to attend physical therapy

through the rest of the relevant period and beyond (Tr. 329-368).

Progress notes from these sources show that in August 1992 the

plaintiff felt that her legs were agile if she did not overdo

(Tr. 329). Her physical therapist reported in November 1992 that

20 the plaintiff continued to have pain in both knees with tightness

and weakness (Tr. 340). Although she was able to do daily

activities, she needed much rest for her knees and was unable to

stand or sit for long periods (Tr. 340-341). On December 4, 1992

she complained to her physical therapist that her "knees really

hurt" (Tr. 339) and one week later she said, "I have been in so

much pain today. My knees have really been acting up." (Tr.

339, 343). In January 1993 the therapist noted the plaintiff

continued to have pain in her lower extremities and permission

was sought and received from Dr. Hodge to continue physical

therapy treatment (Tr. 333, 344-345).

In March 1992 the plaintiff was referred to Alan Sheinbaum,

M.D. due to a one year history of abdominal pain (Tr. 387-392).

At this time the plaintiff described having attacks of stabbing

pain radiating into her back and the shakes and sweats with

soreness following for several days (Tr. 387, 390). Her multiple

allergies to many medications was noted to include Zantac, Axid,

Prilosec, penicillin, many pain killers including Demoral, as

well as Ancef (Tr. 388). Laboratory testing was performed on the

plaintiff but Dr. Sheinbaum could not ascertain the cause of her

pain (Tr. 371-378, 389-391, 393). The most specific diagnosis

that he could provide was spasm (Tr. 391).

In August 1992, x-rays were taken of the plaintiff's lumbar

spine and her right knee (Tr. 394-395). The plaintiff's lumbar

spine was normal and the plaintiff's right knee showed evidence

only of the bone graft.

21 Judson Belmont, M.D., an ear, nose and throat specialist,

examined the plaintiff in October 1992 for allergies (Tr. 396).

He stated in a report that she was a classic multiple chemical

sensitivity individual in many ways. He also noted that her

overall improvement was hampered by her numerous pets and the

dirt floor basement (Tr. 401). After completing a series of

tests he determined she had a severe sensitivity to cats, dogs,

mold, wheat, corn and chocolate (Tr. 407).

Evidence Following The Relevant Period

Following the expiration of the plaintiff's insured status

in March 1993, the medical evidence of record shows that she

continued to undergo physical therapy for her knees. Therapists'

comments in May 1993 reported plaintiff's complaint of painful

knees with muscle tightness; in June 1993 swelling in the knees

with muscle tightness; in July 1993 her knees were described as

very painful, and in August 1993 she continued to have sore knees

with muscle tightness (Tr. 346-347, 350).

In September 1993, Christopher Lunch, M.D., a rheumatologist

and specialist in treating arthritis, began treating plaintiff

for arthritis in her knees (Tr. 409). He reported she had

developed early degenerative arthritis in both knees and either

degenerative arthritis or degenerative disc disease in her spine

(Tr. 409-412). He increased her dosage of Lodine5 to deal with

5 Lodine - A non-steroidal anti-inflammatory drug indicated for acute and long term use in the management of signs and symptoms of osteoarthritis. It is also indicated for the

22 her pain but this caused gastrointestinal side effects thus he

switched her to Relafen6 (Tr. 410) .

In January 1994, a limited psychological evaluation was

prepared by Paul Finn, Ph.D. (Tr. 417-420) . He reviewed

plaintiff's long history of treatment of the condition in her

knee and other physical problems. In his report he noted that

the plaintiff did some volunteer work in the morning for the

Animal Rescue League although she stated that the pain caused her

problems in the afternoon (Tr. 418). Dr. Finn encouraged the

plaintiff, for her psychological well being, to continue her

volunteer work within medical limits and try to have a structured

day with activities out of the home (Tr. 418-419) .

In March 1994, Mark Lewy, M.D., plaintiff's family

physician, wrote a letter in which he stated he had been treating

her since March 1991 and that she had experienced constant pain

in her knee (Tr. 415-416). He notes her treatment for her knee

had been complicated by multiple drug allergies and intolerances

as well as gastrointestinal intolerance associated with most non­

narcotic pain medicines (Tr. 415). She had a documented allergy

to penicillin, cephalosporin, sulfa antibiotics, ciprofloxacin,

Zantac, Pepcid, Axid, Cytotec, all opiates, most NSAIDS

(antiarthritic medications) Hismanal and Seldane (Tr. 416). She

management of pain. The recommended dosage for acute pain and the management of osteoarthritis is 600 to 1200 mgs per day. Physician's Desk Reference, p. 2743-2748, 50th Ed. (1996) .

6 Relafen - Indicated for acute and chronic treatment of signs and symptoms of osteoarthritis and rheumatoid arthritis. Physician's Desk Reference, p. 2511, 50th Ed. (1996) .

23 could only tolerate Lodine 300 mg. twice per day which was less

than the recommended dosage (Tr. 416). (See, footnote 2 supra) .

Mary Derepentigny, a physical therapist, stated in a March

1994 note that she had been providing physical therapy treatment

to plaintiff for the past year and one half (back to October

1992) (Tr. 319). She reported she observed plaintiff come in for

treatments in extreme bilateral pain with body fatigue and

obvious patella swelling as well as cervical tightness (Tr. 319).

However, she did note that the plaintiff responded well to

massage. Ms. Derepentigny opined that because of the intense

pain and stress Ms. Henk tended to compensate for her bilateral

leg weakness with overuse to her upper extremities thus

explaining her cervical tightness (Tr. 319).

Plaintiff was next examined by Hoke Shirley, M.D., a pain

specialist, in October 1994 (Tr. 422-425). Dr. Shirley reported

her medical problem to be osteoarthrosis7 of the right knee with

substantial patellofemoral pain and with evidence of diffuse soft

tissue pain without evidence of an inflammatory arthropathy (Tr.

424). Physical examination showed some mild point phenomenon

with bilateral crepitus, but a full range of motion and normal

pulses. X-rays of the right knee revealed the residual of the

Maguet8 procedure, some mild degenerative changes and mild to

7 Osteoarthrosis - The same medical condition as osteoarthritis which is defined as degenerative joint disease. Stedman's Medical Dictionary, p. 1002, 24th Ed. (1982).

8 Maguet - Defined as anterior tibial tubercle plasty for chondromalacia. Coding Procedures & Terminology, #27418, Coding Reference Book (St. Anthony Publishing Co., 1993).

24 moderate patello-femoral degenerative changes (Tr. 424). He went

on to state she did have soft tissue pain syndrome probably a

secondary phenomena to all her other stressors, particularly her

right knee (Tr. 424) .

In October 1994, John J. O'Connor III, M.D., also examined

the plaintiff (Tr. 425). He noted Ms. Henk had seven

arthroscopic procedures on her right knee, a Maguet procedure and

then a revision of the Maguet because of loud snapping (Tr. 425).

Since these nine procedures, she continued to complain of

persistent snapping in the knee with diffuse excruciating pain

(Tr. 425). The entire knee was described as very sensitive. At

night when she slept, the plaintiff stated that she had to lie

with her leg over the side of the bed so that nothing came in

contact with the anterior surface of her knee (Tr. 425). Dr.

O'Connor thought plaintiff's pain appeared to be out of

proportion to the physical findings and x-rays (Tr. 425). Thus,

he opined she had a soft tissue problem, most likely RSD9, given

the hypersensitivity in the knee (Tt. 425) .

In September 1994, Michael Mittelman, M.D., diagnosed

plaintiff with psoriasis related to her arthritis (Tr. 426-431).

Ralph Beasley, M.D., examined plaintiff in November 1994 and

prepared a comprehensive consultative report (Tr. 383-386). His

9 Reflex Sympathetic Dystrophy - Diffuse superficial and deep burning pain in an extremity associated with vasomotive disturbances, trophic changes and limitation or immobilization of joints as the result of some local injury. Stedman's Medical Dictionary, p. 437, 24th Ed. (1982). Trophic changes is defined as relating to or dependent upon nutrition and as resulting from interruption of nerve supply. Id. at p. 1490.

25 examination revealed multiple trigger points and tender points

throughout her body (Tr. 385). Further physical evaluation

showed adeguate sensation, good pulses and only slightly

decreased strength in the right ankle. His assessment was that

she had a complex pain situation with multiple etiologies (Tr.

385-386). He opined there was a reasonable possibility she had

RSD and he decided to move forward with treatment of this medical

condition in order to address her pain (Tr. 386). He also opined

a diagnosis of probable fibromyalgia, probable apparent psoriatic

arthritis and guestion of lupus (Tr. 386). In a pain management

progress note from January 1995, Dr. Beasley indicated that while

the presence of RSD was raised prior to 1992, treatment for this

condition had been limited to physical therapy and massage (Tr.

450). Plaintiff's subjective complaints included throbbing,

pulsating pain in the right knee, as well as burning pain in the

knee which had spread to involve the left knee, and some burning

in her hands and wrists, with swelling in her hands and legs (Tr.

450). She had periodic leg spasms, feet that were cool and at

times numb and periodically gray in color (Tr. 450). He also

mentioned that her examination in November 1994 was consistent

with fobromyalgia (Tr. 450). Plaintiff was discharged from the

pain management program without being given any medications or

undergoing any procedures (Tr. 450) .

Acknowledging that he had only seen the plaintiff on one

occasion (November 1994) for an examination. Dr. Beasley offered

an opinion as to her residual functional capacity ("RFC") for the

26 prior couple years in an assessment dated February 11, 1995 (Tr.

459-468). This opinion was based on that examination and review

of limited medical records of Dr. Shirley, Dr. Hodge, Dr.

O'Connor and Dr. Finn (Tr. 463). He stated:

My history and exam would confirm RSD as one of her components of her chronic intractable pain syndrome. This is based upon autonomic sympathetic nervous system changes of color, changes (of) swelling, burning pain, allodymia. RSD can involve muscles and may spread to involve the whole body. As of yet I cannot determine (and I may not be able to determine) if all of her pain can be explained by RSD or if there are multiple factors, diagnoses responsible for her chronic intractable pain. Clearly by history RSD has existed since 1991 and pain has spread to involve her back in 1992 and extremities in 1993. I feel she is disabled from work and has been for some years. I agree volunteer work is helpful as does Dr. Finn without the physical time demands a regular job would reguire. (Tr. 463).

Dr. Beasley also stated that the plaintiff's ability to lift,

carry, walk, sit, stand, reach, handle, push and pull were all

affected by her impairment (Tr. 459-461) . However he did not

specify to what degree these activities were impaired.

Also on February 11, 1995, Dr. Beasley also completed an RFC

guestionnaire for fibromyalgia for the period January 1992 to

March 1993 (Tr. 464-468) . He noted Ms. Henk had a number of

symptoms of fibromyalgia including multiple tender points, non­

restorative sleep, chronic fatigue, subjective swelling and

freguent, severe headaches (Tr. 464). He further indicated Ms.

Henk's ability to maintain attention and concentrate, deal with

work stress, walk, sit and stand was markedly limited by this

condition (Tr. 465-466, 468).

27 Ronald Szopa, D.M.D., Ms. Henk's dentist, stated he had

treated her since October 1991 (Tr. 476). He reported she had

experienced a variety of dental problems that could easily be the

result of her clenching her jaw while she was in pain (Tr. 476) .

B. Brenda Henk's Testimony (Second Hearing - February 15, 1995)

The plaintiff testified regarding her physical condition

during the period January 1992 to March 1993 (Tr. 51-52) . She

complained of continuing severe pain in her right knee along with

pain in her left knee, lower back, hands, right hip and shoulder

(Tr. 52). Her day began by taking her Lodine 45 minutes before

she got out of bed to bring her daughter to school (Tr. 52). She

explained how she had tried other stronger medication (Voltaren,

Naprosyn, Motrin) but she ended up ill or in the emergency room

of Concord Hospital10 because of an allergic reaction (Tr. 53).

Plaintiff related how her treating physician for her

condition changed from Dr. Kleeman to Dr. Hodge to Dr. McCarthy

and Dr. Lynch (Tr. 53-55). A referral was made by her family

physician. Dr. Lewy, to Dr. Lynch, a rheumatologist, in August

1992 because she was incapacitated at times with pain and

swelling (Tr. 55). Some days she wouldn't get out of bed because

of the pain and she didn't want to go down the stairs (Tr. 55).

On other days when she felt better she would go grocery shopping

but then sit in her car 20 minutes trying to get the courage to

10 Plaintiff was treated at the hospital several times during the relevant period for allergic reactions to medication. (Tr. 197, 370, 371, 381).

28 go up the stairs to go back into her house (Tr. 55). Dr. Lynch

prescribed 500 milligrams Relafen for her pain and discomfort but

after a day and a half she could no longer tolerate the pain in

her stomach caused by this mediation (Tr. 60). Dr. Lewy advised

her to return to taking Lodine which she was still taking on the

day of her hearing (Tr. 60).

Plaintiff described the pain back in 1992 to be excruciating

in her right leg when she put weight on it (Tr. 56). She further

described it as a throbbing, pulsating ache (Tr. 56). She also

mentioned the snapping in her knee that occurred three or four

times a week which caused her to lose her balance and on some

occasions to fall (Tr. 56-57). To protect herself from falling

outside on ice in the winter she used a cane with a grabber at

the bottom (Tr. 58-59). This was prescribed by Dr. Kleeman in

1990 (Tr. 58) .

Plaintiff also explained that she reguired treatment for her

teeth (repair of bridgework and removal of one eye tooth) because

of the affects of severe teeth clenching caused by the chronic

pain in her knee (Tr. 60-61). She explained that she apparently

was doing this in 1992 and 1993 but didn't realize it until her

teeth reguired treatment by her dentist (Tr. 61). Because she

had a history of sinus infections, she attributed the dental pain

to the sinus infections, like those that Dr. Lewy had treated her

for in 1991 and 1992 (Tr. 62).

Plaintiff testified that Dr. Sheinbaum treated her in 1993

for abdominal pain (Tr. 63). After having an endoscopy without

29 the aid of any type of anesthesia (because of allergies to

opiates) and after having other tests performed. Dr. Sheinbaum

discovered she could not tolerate more than 600 milligrams per

day of Lodine (Tr. 64-65). If she took more, it would affect her

liver (Tr. 65). Plaintiff also testified that she had had

pancreatitis in 1992 and 1993, and through the date of the

hearing, which caused intense pain in the stomach area (Tr. 65).

Plaintiff explained her involvement in some activities

outside her home and the fact that they ceased around the end of

1992 (Tr. 66). She tried to be involved in these activities

because she felt kind of useless doing nothing (Tr. 66).

She had participated in the Animal Rescue League and, when

she felt up to it, she would go to a classroom and speak to

students about cats or dogs (Tr. 66). This activity lasted a

total of two hours from the time she brought the animal to school

until the time she returned the animal and occurred not more than

once a month (Tr. 66-67). After performing this activity she

needed to recuperate at her home on her couch for two or three

days with her leg elevated (Tr. 67). This type of activity was

encouraged by her treating doctors for her self esteem (Tr. 67).

Dr. Finn told her it was important that she do things to stop her

from feeling worthless (Tr. 68-69) .

Plaintiff testified that her involvement with activities at

her daughter's school had steadily declined over the years (Tr.

74). She was rarely at the school any more and just provided

assistance on a consulting basis (Tr. 74-75). In 1992 and 1993

30 she was still bringing her daughter to school, unless she wasn't

physically up to it, but it was at that point she began putting

programs in place because she realized she could not stay there

on a daily basis (Tr. 75, 83).She had a mailbox at the school

and she would respond to any guestions that were in the box

related to the volunteer program (Tr. 75). As to involvement

with the Junior Women's Club, that had ceased in May 1992 after

her term as president expired (Tr. 76, 83) .

Plaintiff testified she had a problem sleeping at night

going back to when she had her bone graft in 1990 (Tr. 69-70).

She experienced spasms in her legs at night that prevented her

from sleeping (Tr. 70). She opined these spasms were caused by

her changed method of walking to avoid stress and pain on her

knee (Tr. 70). To alleviate the pain she would get up and soak

in a hot bath tub (Tr. 70).

Michael Henk, her husband, also testified at this hearing

(Tr. 78-81). He stated that after her major surgery in 1990 life

slowed down dramatically for the family (Tr. 78). They couldn't

do as many things as a family, e.g., vacations, and he and his

daughter had to do more to help out, i.e., shopping, cooking, and

laundry (Tr. 78). He indicated that he did not know if her

involvement in 1991 and 1992 with the Junior Women's Club was

terribly physical and that she would participate in organizing a

function if she felt well enough but she, for the most part, was

not actually involved in the activity or event (Tr. 7 9).

Finally, Mr. Henk testified that going back to 1991 there were

31 times when his wife would not be able to negotiate the stairs to

the bedroom because of muscle spasms and thus would sleep on the

couch (Tr. 80-81) .

32