Cheryl Hill v. SSA CV-97-321-B 08/20/98

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cheryl Hill

v. C-97-321-B

Kenneth S. Apfel, Commissioner of the Social Security Administration1

MEMORANDUM AND ORDER

Cheryl Hill challenges the decision of the Social Security

Administration ("SSA") to reject her applications for Title II

Social Security Disability Insurance benefits and for Title XVI

Supplemental Security Income benefits. Hill has been treated for

complaints related to lower-back pain since 1992. She contends

that the Administrative Law Judge ("ALJ") who reviewed her case

wrongly concluded that, despite a severe back impairment, she

could perform her prior past work as a fragrance model and a

general office clerk. Because I conclude that the Commissioner

failed to properly evaluate Hill's subjective pain complaints, I

remand the case to the Commissioner for further review.

1 Pursuant to Fed. R. Civ. P. 43(c), Kenneth S. Apfel is substituted for John J. Callahan, former Acting Commissioner of Social Security, as the defendant in this action. I. BACKGROUND2

A. Hill's Medical History

1. Medial Evidence Presented to the ALJ

Hill was thirty-two years old at the time of her hearings

before the ALJ. She has a tenth-grade education and has received

a graduate eguivalency diploma. Hill has held a variety of

positions, working as a copy clerk, office/house cleaner, grocery

stocker, cashier, fragrance model and sales clerk, waitress,

bartender, and campground manager.

On May 24, 1992, Hill fell from a stool on which she was

sitting and subseguently began to complain of lower-back, hip,

and leg pain. She has not worked since that date.3 After a June

17, 1992 consultation. Dr. Garrett G. Gillespie noted that her

MRI "doesn't show any marked herniation," although the MRI did

show "mild degenerative changes." Due to complaints of pain.

Hill began a regime of physical therapy in July 1992 and trigger-

point injections in September 1992.

Continuing to complain of pain in her lower back, left

2 Unless otherwise indicated, the facts are either undisputed or taken form the Joint Statement of Material Facts submitted by the parties.

3 The record shows that throughout the summer of 1992, Hill was employed as a campground manager. She testified at the first ALJ hearing, however, that she spent most of that summer in bed while her nephew assumed nearly all of her duties.

2 buttock, and left leg. Hill visited Dr. B.V. Popovich in October

1992. Later that month. Dr. Popovich noted that Hill's condition

had improved in that headaches from which she had been suffering

ceased and that she had no pain in her upper back, legs, or

calves. Dr. Popovich recommended that Hill continue with her

trigger-point injection treatments.

In January 1993, Hill visited Dr. John T. Lynn and continued

to complain of lower-back and leg pain. Dr. Lynn noted that an

electromyography of her spine showed mild bulging with no sign of

nerve-root impingement at L4-5 and sacralization4 at L 5 . Dr.

Lynn thought it unlikely that the sacralization could cause the

level of pain she described. Unable to reconcile her condition

with her symptoms. Dr. Lynn referred Hill to Dr. Price, whom she

visited in February 1993.

Hill complained to Dr. Price of lower-back pain and pain and

numbness in her buttocks and legs. Upon examination. Hill

exhibited limited forward bending and tenderness in her lower

back. Sacroiliac joint compression signs were predominantly

negative, as were straight-leg raising and motor reflexes. Dr.

Price noted that he did not believe that either the L5

sacralization or the possible L4-5 herniation were responsible

4 " [A]nomalous fusion of the fifth lumbar vertebra to the first segment of the sacrum . . . ." Dorland's Illustrated Med. Dictionary, at 1478 (28th ed. 1994).

3 for Hill's pain complaints and, therefore, recommended against

surgery. Because physical therapy had been unavailing. Dr. Price

recommended a short course of bracing instead.

In May 1993, Hill visited Dr. John A. Savoy, who reviewed

her MRI and CT scan results and concluded that they were normal.

Dr. Savoy diagnosed chronic lumbosacral strain with a possible

nerve root contusion and recommended a seven-day steroid-

injection program.

In November 1993, plaintiff visited Dr. William E. Kois, a

physiatrist.5 Upon examination. Dr. Kois noted his belief that

Hill's pain was most likely mechanical in nature, though possibly

stemming from a degenerative disc or rheumatoid arthritis. In

addition to ordering further testing. Dr. Kois referred Hill to

Dr. John W. Knesevich for psychiatric evaluation and to Dr.

Margaret Caudill for enrollment in a pain-control program. Dr.

Knesevich diagnosed "features of major depression, single

episode", but found no other disorders. In December 1993, Dr.

Knesevich noted that Hill felt well after taking Prozac. Dr.

Kois also noted later that month that Hill was making progress in

physical therapy but was still in a fair amount of pain. As a

result. Dr. Kois recommended that Hill start a swimming program.

5 The specialization in physical or rehabilitation medicine.

4 On Dr. Kois' referral. Hill visited Dr. Caudill in February

1994 for pain management. Hill began participating in Dr.

Caudill's pain-management program, but soon dropped out because

certain elements of the program, specifically, transcendental

meditation, conflicted with her beliefs as a Jehovah's Witness.

In April 1994, the range of motion in her back was still limited,

although somewhat improved. Dr. Kois recommended that Hill begin

to explore vocational options but indicated his belief that she

was not yet ready to return even to part-time work.

In February 1995, Hill visited Dr. Martin A. Samuels upon

Dr. Knesevich's referral. During the course of examination. Hill

winced, displayed discomfort, and exhibited tenderness all over

her back. Dr. Samuels noted no sign of spasm and noted that she

displayed a full range of motion in her lower back. No reflex,

sensory, or other motor abnormalities were found and her muscle

strength appeared largely undiminished. Dr. Samuels did not feel

that prior MRI and CT scan studies showed any neurological basis

for the degree of her claimed disability. Additionally, Dr.

Samuels noted his belief that no course of treatment would help

Hill until the conclusion of all pending litigation arising from

Hill's back problems.

2. Medical Evidence Presented to the Appeals Council

In May 1995, after Hill's hearing before the ALJ, she

5 visited Dr. Gillespie, who concluded that, based on her reported

symptoms she, she likely had a ruptured lumbar disc. In October

1995, Dr. Gillespie reiterated his opinion that Hill remained

unemployable due to a herniated disc at L4-5. A CT scan

conducted in November 1995 showed mild bulging at L4-5 and

possible spondylosis at L 4 . A myelogram revealed no definite

abnormalities. Dr. Gillespie concluded that these studies showed

no evidence of disc herniation or nerve root compression, though

he felt that the possible spondylosis could have been caused by

her fall in 1992. Dr. Gillespie recommended treatment by mild

exercise, anti-inflammatory medication, weight reduction, and

facet joint injection.

Additionally, in January 1996, Hill visited Dr. Colleen

Guiry for treatment of possible urinary problems. In her report.

Dr. Guiry noted Hill's long history of chronic lower-back pain

and concluded that her pain was more likely due to her back

problems than her urinary problems.

B. Procedural History

Hill initially applied for disability insurance benefits and

Supplemental Security Income benefits in April 1993, alleging

disability since 1992. After these applications were denied at

the initial stage of review, she reapplied for disability

6 insurance benefits on March 23, 1994.6 This application was

denied initially and upon reconsideration. Hill then requested a

hearing before an ALJ. Hearings were held on March 3, 1995, and

April 18, 1995. At these hearings, the ALJ heard testimony from

Hill, her husband, and a vocational expert.

By decision dated July 29, 1995, the ALJ denied Hill's

applications for benefits at step four of the five-step

sequential analysis. Although he found she suffered from a

severe impairment that imposed significant limitations on her

ability to work, he concluded, upon consultation with the

vocational expert, that Hill remained able to perform her past

relevant work as a fragrance model and an office clerk. Hill

then requested that the Appeals Council review the ALJ's decision

and submitted additional medical evidence in support of her

request. On April 27, 1997, the Appeals Council denied Hill's

request for review, making the ALJ's decision the final decision

of the Commissioner of Social Security and subject to this

appeal. In that denial, the Appeals Council concluded that

Hill's additional evidence did not provide a basis for

questioning the ALJ's decision.

6 Hill filed a new protective application for Supplemental Security Income benefits in December 1994.

7 II. STANDARD OF REVIEW

After a final determination by the Commissioner denying a

claimant's application for benefits and upon a timely request by

the claimant, this court is authorized to: (1) review the

pleadings submitted by the parties and the transcript of the

administrative record; and (2) enter a judgment affirming,

modifying, or reversing the Commissioner's decision. See

(g) (West Supp. 1998). The court's review is

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

are conclusive if they are supported by substantial evidence.

See Irlanda Ortiz v. Secretary of Health and Human Servs., 955

F .2d 765, 769 (1st Cir. 1991);

(g). The

Commissioner is responsible for settling credibility issues,

drawing inferences from the record evidence, and resolving

conflicting evidence. See Irlanda Ortiz, 955 F.2d at 769.

Therefore, the court must "'uphold the [Commissioner's] findings

. . . if a reasonable mind, reviewing the evidence in the record

as a whole, could accept it as adequate to support [the

Commissioner's] conclusion.'" Id. (quoting Rodriquez v.

Secretary of Health and Human Servs.,

(1st Cir.

1981)) .

If the Commissioner has misapplied the law or has failed to

provide a fair hearing, however, deference to the Commissioner's

8 decision is not appropriate, and remand for further development

of the record may be necessary. See Carroll v. Secretary of

Health and Human Servs.,

(2d Cir. 1983); see

also Slessinqer v. Secretary of Health and Human Servs.,

(1st Cir. 1987) ("The [Commissioner's] conclusions of

law are reviewable by this court.") I apply these standards in

reviewing the issues plaintiff raises on appeal.

III. DISCUSSION

The ALJ concluded at the fourth step of the five-step

sequential analysis7 that Hill was not disabled because she

retained the ability to perform a limited range of light

exertional tasks, including those necessary to perform two of her

previous jobs, namely, fragrance model and office clerk. Hill's

primary challenge to this conclusion is that the ALJ failed to

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

, 416.920 (1997).

9 properly credit Hill's complaints of disabling pain.8

In determining whether a claimant has the residual

functional capacity to perform her past relevant work, the ALJ

must review the medical evidence regarding the claimant's

physical limitations as well as her own descriptions of her

physical limitations, including her subjective pain complaints.

See Manso-Pizarro v. Secretary of Health & Human Servs.,

(1st Cir. 1996). Where the claimant has shown that she

suffers from an impairment that could reasonably be expected to

produce the pain she alleges, the ALJ must take into

consideration the claimant's subjective evaluation of her pain

and the limitations that her pain imposes on her ability to work.

See Avery v. Secretary of Health and Human Servs.,

(1st Cir. 1986). However, the ALJ is not reguired to give

credit to the claimant's subjective evaluations of pain if they

are inconsistent with the medical findings that exist regarding

her condition. See Dupuis v. Secretary of Health and Human

Servs.,

(1st Cir. 1989). Rather, after making

specific findings detailing the inconsistencies between the

8 Hill also argues that the ALJ failed to give controlling weight to the opinion of Dr. Gillespie, Hill's treating physician. As I conclude that a remand is warranted on other grounds, I do not address the merits of this argument. On remand, the ALJ should consider this evidence, affording it whatever degree of weight the regulations mandate.

10 claimant's allegations of pain and the objective medical

findings, the ALJ may discount the allegations in determining the

claimant's RFC. See Avery,

.

Although the ALJ found that Hill suffers from the severe

impairments of fibromyaglia and chronic lumbosacral strain, he

rejected her contention that the pain produced by these

conditions was so severe as to be disabling. Instead, he

concluded that while Hill "can perform only limited sitting and

standing because of her chronic back pain -- about 30 minutes at

a time --and cannot perform repetitive bending," her condition

permitted her to engage in a range of light-duty work, including

her past work as a fragrance model and office clerk. The ALJ

based his decision on two findings. First, he found that the

objective medical evidence did not substantiate the level of pain

Hill alleged. Second, he found that Hill's description of her

activities of daily living directly contradicted the severity of

her pain complaints.

An ALJ is not free to disregard a claiming's subjective pain

complaints merely because they cannot be corroborated by

objective medical evidence. SSR 96-7p;

(c)(2), 416.929(c)(2). Rather, because "symptoms

sometimes suggest a greater severity of impairment than can be

shown by objective medical evidence alone," the ALJ must consider

11 other evidence before determining whether the claimant's

subjective complaints of pain are credible.

(c) (3), 416.929(c) (3) . Specifically, the ALJ must

consider: (1) the claimant's daily activities; (2) the nature,

location, onset, duration, frequency, radiation, and intensity of

the pain; (3) the precipitating and aggravating factors; (4) the

type, dosage, effectiveness, and adverse side-effects of any pain

medications; (5) non-medication forms of treatment for relief of

pain; (6) any functional restrictions; and (7) any other relevant

factors. Id.; see also Avery,

.

In this case, the ALJ looked only at evidence of Hill's

daily activities, to the virtual exclusion of all other factors.

The ALJ found that her pain complaints were "contradicted to a

substantial degree" by Hill's daily activity report, which he

found to include "going to medical appointments four to five days

per week, cooking once per week, going shopping with her husband

for groceries, watching television and reading." In his

evaluation, however, the ALJ completely misconstrued the evidence

regarding Hill's daily activities.

First, the ALJ neglects to note that Hill testified that her

husband has to drive her to her medical appointments. Also, it

is counter-intuitive to conclude, as the ALJ did in this case,

that having to attend frequent doctors' appointments negates

12 rather than substantiates a claimant's allegations of pain.

Second, although Hill states that she can still cook despite her

impairment, she only does so once per week and testified that the

effort usually renders her incapacitated. Third, while Hill

admits that she occasionally grocery shops with her husband, she

also states that he must drive her to the store, that she

freguently uses a wheel chair or electric cart to get around the

store, and that when she does walk, she is exhausted after thirty

minutes. Finally, that Hill is capable of watching television

and reading does not contradict her statement that her pain is so

severe that she must freguently lie down. Rather, a person may

stand, sit, or lie down while reading or watching television.

Additionally, the ALJ overlooked evidence potentially

relevant to several other factors. With respect to medication,

for example, the record is replete with references of different

medications prescribed to alleviate Hill's pain, such as Dolobid,

Cyclobenzaprene, Lodine, Tylenol with Codeine, Relafin, Xanax,

and Amithriptyline, that were all unsuccessful. See

(c)(3)(iv), 416.929(c)(3)(iv) (In making credibility

determination, ALJ should consider the "type, dosage,

effectiveness, and side effects of any medication" claimant has

taken.). With respect to non-medication treatment, the record

reflects that Hill has been treated with physical therapy.

13 trigger point injections, steroids, bracing, and various forms of

exercise, all without avail. See

§§ 404.1529(c)(3)(v),

416.929(c)(3)(v) (In making credibility determination, ALJ should

consider " [t]reatment, other than medication" that the claimant

has received for pain relief.). Because the ALJ ignored most of

the factors he was charged with applying, and clearly misapplied

the one factor that he did consider, I find that his decision to

discredit Hill's allegations of pain is not supported by

substantial evidence. See DaRosa v. Secretary of Health and

Human Servs.,

(1st Cir. 1986) (remand appropriate

where ALJ's credibility determination not supported by

substantial evidence because ALJ failed to consider reguisite

factors). Accordingly, the case must be remanded to permit the

ALJ to properly evaluate the significance of Hill's pain

complaints.

IV. CONCLUSION

For the foregoing reasons. Hill's motion to reverse the

Commissioner's decision is granted in part and defendant's motion

to affirm the Commissioner's decision is denied. The case is

remanded pursuant to sentence four of

(g) for

further consideration in a manner consistent with this order.

SO ORDERED.

14 Paul Barbadoro Chief Judge August 20, 1998 cc: Elizabeth Bailey, Esq. David Broderick, Esq.

15