Deborah Sullivan v. SSA CV-98-309-B 06/21/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Deborah A. Sullivan

v. Civil No. 98-309-B

Kenneth S. Apfel, Commissioner Social Security Administration

MEMORANDUM AND ORDER

_____ Plaintiff Deborah Sullivan applied for Social Security Title

II disability benefits and Title XVI Supplemental Security Income

(SSI) benefits on October 4, 1995. The SSI application was

assigned a protective filing date of September 21, 1995.

Sullivan's applications were denied initially and on

reconsideration by the Social Security Administration (SSA). An

Administrative Law Judge (ALJ) considered the case de novo and,

on August 16, 1996, determined that Sullivan was not disabled.

The Appeals Council denied Sullivan's reguest for review on

April 23, 1998. Sullivan filed her motion in this court on May

12, 1998. Because I find the ALJ's factual findings supported by

substantial evidence, I affirm. I. BACKGROUND1

_____ Sullivan was born on September 21, 1948. She has a high

school education, and past relevant work as a cashier, sales

associate, waitress, and assistant manager of a convenience

store. She alleges a closed period of disability, due to hearing

loss and a number of associated conditions, from September 1,

1993, until June 1996, when she resumed performing substantial

gainful activity.

In 1976, Sullivan was treated at the Massachusetts Eye and

Ear Infirmary for chronic eustachian tube dysfunction with

serious otitis.2 An audiogram taken at the time showed bilateral

symmetrical conductive hearing loss of 40 decibels. A large

attic perforation in her right ear was draining purulent

material,3 while a smaller attic perforation in her left ear had

produced obvious cholesteatoma4 in the epitympanum.5 Plaintiff

1 Unless otherwise noted, facts are taken from the "Joint Statement of Material Facts" (Doc. 10) prepared by the parties.

2 Otitis is an inflammation of the ear, which may be marked by pain, fever, abnormalities of hearing, hearing loss, tinnitus, and vertigo. See Dorland's Illustrated Medical Dictionary, 1204 (28th Ed. 1994).

3 "Purulent material" is composed of, or contains pus. See Dorland's Illustrated Medical Dictionary, 1098 (26th Ed. 1981).

4 Cholesteatoma is a cyst-like mass or benign tumor with a lining of stratified sguamous epithelium, usually of keratinizing

-2- underwent right ear surgery in April 197 6 which included a

radical mastoidectomy,6 canaloplasty,7 and tympanoplasty.8 The

procedures were repeated on her left ear in November 1977.

An audiological examination performed at the Massachusetts

Eye and Ear Infirmary in October 1994 revealed that Sullivan

"passed"9 a word recognition test on the left ear, and achieved

88 percent recognition in her right ear. The degree of her

hearing loss was measured at 42 decibels in her right ear, and 50

decibels in her left ear.

In May 1995, Sullivan presented with heavy vaginal bleeding.

type, filled with desguamating debris freguently including cholesterol. See Dorland's Medical Dictionary, 318 (28th Ed. 1994) .

5 The epitympanum is the recess in the upper part of the tympanic cavity of the ear. See Steadman's Medical Dictionary 588 (26th Ed. 1995) .

6 Excision of the mastoid cells or the mastoid process of the temporal bone. See Dorland's Medical Dictionary 993 (28th Ed. 1994) .

7 Plastic reconstruction of a passage, as of the external auditory meatus. See id. at 224.

8 Surgical reconstruction of the hearing mechanism of the middle ear, with restoration of the drum membrane to protect the round window from sound pressure, and establishment of ossicular continuity between the tympanic membrane and the oval window. See id. at 1767.

9 "Pass" is defined as achieving greater than 92 percent word recognition. See Tr. at 144.

-3- Her examining physician. Dr. Suzanne Coble, attributed the

bleeding to menopause. In June 1995, Dr. Coble noted that

Sullivan was at risk for coronary artery disease due to

hypertension, cigarette use and family history. Sullivan was

advised to reduce her smoking and evening alcohol consumption.

Dr. Coble ordered an echocardiogram, which was normal. She began

Sullivan on a course of Capoten,10 and Proventil11 and Aerobid12

inhalers for presumed chronic obstructive pulmonary disease

(COPD) and bronchitis.

In July 1995, Dr. Coble measured Sullivan's blood pressure

at 176/100 on the right, and 170/100 on the left, increased

Sullivan's Capoten dosage, and once again discussed Sullivan's

cigarette use. Dr. Coble noted that she would refer plaintiff to

an ear, nose and throat specialist and try to assist her in

locating funding for hearing aids. By August 1995, Sullivan's

blood pressure had dropped to 148/90. She was treated at Ear,

10 Capoten is indicated for treatment of hypertension or heart failure. See Physician's Desk Reference 784 (52nd Ed. 1998) .

11 Proventil is indicated for the relief of bronchospasm in patients with reversible obstructive airway disease and acute attacks of bronchospasm. See id. at 2658.

12 Aerobid is indicated as a prophylactic therapy in the maintenance treatment of asthma. See id. at 941.

-4- Nose & Throat (ENT) Specialists of Southern New Hampshire, and it

was noted that at the time of treatment, Sullivan was wearing a

hearing aid that she interchanged between ears. Upon a review of

her records, the ENT specialists noted that further surgery was

an option to restore her hearing. Sullivan noted her inability

to pay for such treatment, and she was advised to call Vocational

Rehabilitation for assistance.

In September 1995, Dr. Coble noted that Sullivan's blood

pressure had been successfully controlled on Capoten, and

Sullivan reported that she was using a Ventolin inhaler as needed

for her asthma. In October 1995, Dr. Coble changed Sullivan's

blood pressure prescription to Norvasc,13 and prescribed Folate

for Sullivan's anemia.

Sullivan underwent pulmonary function testing in November

1995, which revealed normal airflow in her large airways without

bronchodilator response, and mild small airway obstruction with

bronchoreactivity.

In January 1996, Sullivan's blood pressure had rebounded to

180/80 and was reported as no longer well-controlled. She was

13 Norvasc is indicated for the treatment of hypertension. See id. at 2195.

-5- started on Cardura.14 The dosage was increased in February 1996.

On March 22, 1996, clinical neuropsychologist Dr. Donna Z.

Kelland conducted a psychological evaluation of Sullivan, and

reported that "Ms. Sullivan's major presenting problem was

reported as being poor health, which she [Sullivan] described as

being severe in degree of psychological disturbance. The

presenting problem has occurred over the past several years and

reportedly has had a deleterious effect on the client's work

performance and personal relationships." Tr. at 215. Sullivan

told Dr. Kelland, "I tend not to want to be around people because

I can't hear them." Id. Dr. Kelland noted that Sullivan

reguired a hearing aid to complete the interview. See id.

In her interview with Dr. Kelland, Sullivan reported

freguent episodes of depression and anxiety during the previous

six months. She also reported drinking approximately half a

fifth of liguor per day, and that she had a five- to 10-year

history of alcohol abuse which increased concurrently with her

level of stress. During the interview, Sullivan reported a

recent change in her sleep pattern, marked by restlessness, and

14 Cardura is indicated for the treatment of hypertension. See id. at 2166.

-6- using Xanax15 to aid in sleep. She noted that the Xanax was

ineffective, and that therefore, she increased her alcohol

consumption to help her sleep. It appears that her significant

stress level was, at least in part, related to caring for her ill

and elderly mother.

In commenting on Sullivan's level of adaptive functioning.

Dr. Kelland noted, "[i]n particular, her difficulty in adjusting

to her hearing impairment and other social stressors (i.e. family

conflict) appears related to increased anxiety, social withdrawal

and increased alcohol consumption." Dr. Kelland noted, however,

that Sullivan was capable of carrying out written and oral

instructions if those instructions were within sensory range.

Dr. Kelland diagnosed alcohol dependence and adjustment disorder

with chronic anxiety, and recommended individual therapy,

relaxation training, and substance abuse treatment.

In March 1996, Sullivan stopped taking Cardura because it

made her feel ill. Dr. Coble noted that Sullivan's hypertension

was uncontrolled, and she prescribed hydrochlorothiazide to

replace the Cardura. This dosage was increased in April 1996.

15 Xanax is indicated for the management of anxiety disorder or the short-term relief of symptoms of anxiety. See id. at 2294.

-7- Sullivan finally received her new hearing aids in May 1996,

after Vocational Rehabilitation authorized the payment. She did

not get the hearing aids sooner because she could not afford

them. Sullivan reported that prior to receiving the hearing

aids, she had difficulty socially and on the phone, and that she

withdrew from some of her normal life activities because she

could not hear anyone. After receiving her new hearing aids in

May 1996, however, Sullivan promptly began working for Easter

Seals, and in the mailroom in the V.A. Hospital, reattaining a

level of substantial, gainful activity in July 1996.

Sullivan reported that between September 1993 and October

1995, she worked 15 hours a week as a sales clerk. She pretended

to hear people, but because of the background noise, she had

trouble comprehending what people were saying to her. She had

one hearing aid during this period, which did not sufficiently

improve her hearing. Sullivan's work during this period,

however, did not rise to the level of "substantial gainful

activity," and she noted that she was able to keep this position

because the owner was "tolerant" of her condition. She had no

problems with concentration or following oral or written

directions, however, and maintained a full range of daily

activities during this period, including grocery shopping. cooking and all other household chores, visiting relatives, and

caring for her elderly mother.

II. STANDARD OF REVIEW

_____ After a final determination by the Commissioner denying a

claimant's application for benefits, and upon a timely reguest by

the claimant, I am 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 ALJ's decision. See

(g). My

review is limited in scope, however, as the ALJ's factual

findings are conclusive if they are supported by substantial

evidence. See Irlanda Ortiz v. Secretary of Health and Human

Servs.,

(1st Cir. 1991);

(g).

The ALJ is responsible for settling credibility issues, drawing

inferences from the record evidence, and resolving conflicting

evidence. See Irlanda Ortiz,

. Therefore, I must

"'uphold the [ALJ's] findings . . . if a reasonable mind,

reviewing the evidence in the record as a whole, could accept it

as adeguate to support [the ALJ's] conclusion.'"

(guoting

Rodriquez v. Secretary of Health and Human Servs.,

(1st Cir. 1981)).

-9- If the ALJ has misapplied the law or has failed to provide a

fair hearing, however, deference to the ALJ's 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 [ALJ's] conclusions of law are reviewable by this

court.") I apply these standards in reviewing the issues

Sullivan raises on appeal.

III. DISCUSSION

To establish entitlement to benefits under Title XVI of the

Act, a plaintiff has the burden to establish that she is disabled

within the meaning of the Act. See Bowen v. Yuckert,

(1987); Deblois v. Secretary of Health and Human Servs.,

(1st Cir. 1982). To be considered "disabled," a

plaintiff must not only prove that she is unable to return to her

past work, but also that she is unable to perform any substantial

gainful work in the national economy as the result of a medical

condition which can be expected to last for a continuous period

of 12 months or more. See

(1)(1), 423(d)(1).

This determination must consider the plaintiff's age, education.

-10- training and work experience - the mere existence of a medical

impairment is not enough. See

(d)(2)(A). The

impairment must be so severe, in combination with her vocational

factors, to preclude any type of gainful activity. See McDonald

v. Secretary of Health and Human Servs.,

(1st

Cir. 1986); Thomas v. Secretary of Health and Human Servs.,

(1st Cir. 1981). If a plaintiff is partially but not

totally disabled by her impairments, she is not disabled within

the meaning of the Act. See Rodriquez v. Celebrezze,

(1st Cir. 1965).

In evaluating a claim for disability benefits, the ALJ's

analysis is governed by a five-step seguential evaluation

process.16 See

(1998). In the case at bar,

the ALJ began his analysis by concluding, at Step Two, that

Sullivan did have a "severe impairment" as defined by

and

- specifically, "severe

bilateral hearing loss" which significantly interfered with her

16 In applying this five-step seguential analysis, the Secretary is reguired to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; (5) whether the impairment prevents the claimant from doing any other work. See

(1998).

-11- ability to perform basic work activities. See ALJ Decision at 2-

3 (Tr. at 13-14). At Step Three, the ALJ concluded that the

plaintiff "does not have an impairment or combination of

impairments which meets or equals the severity of any impairment

listed in Appendix 1 to Subpart P."

(Tr. at 14) .

Accordingly, Sullivan's bilateral hearing loss was not

significant enough that she could be found presumptively disabled

at Step Three.

At Step Four, the ALJ evaluated Sullivan's "residual

functional capacity to return to her past relevant work or any

other work which exists in significant numbers in the national

economy."

After reviewing the medical evidence, the ALJ

concluded that Sullivan "has a moderate bilateral hearing loss

that would affect her ability to work. . . [in that] [s]he could

not be expected to perform work that required fine hearing or

that was performed in noisy environments."

He further noted

that Sullivan's bronchitis "is mild in nature and only minimally

impacts her ability to work."

(Tr. at 15). Accordingly,

the ALJ concluded that Sullivan would be limited to positions

that did not require lifting and carrying more than 50 pounds

occasionally, or 25 pounds frequently.

-12- After reviewing all the evidence, the ALJ concluded that

Sullivan's past relevant work as a cashier "is not normally

performed in a noisy environment . . . does not require fine

hearing . . . [and] does not require more than medium exertional

activity."

(Tr. at 16). Accordingly, the ALJ concluded

that the claimant's past activity as a cashier "is not precluded

by the claimant's current residual functional capacity.

Therefore, the claimant is not disabled within the meaning of the

Social Security Act."

I agree.

A. The ALJ properly considered all relevant evidence in reaching his decision

Sullivan alleges that the ALJ ignored and misconstrued

evidence in the record concerning her hearing loss and

psychosocial problems. Specifically, she argues that the ALJ

"failed to discuss . . . [her] social isolation, her inability to

sleep and her psychological impairments. . . her reliance on

alcohol to medicate herself. . . [and her] psychosocial problems,

including the death of her brother from substance abuse; the

deaths of an aunt, uncle and grandmother; and her attempt to care

for her ill and aged mother." Pi. Mot. to Reverse and Remand at

11. There is no evidence in the record, however, that Sullivan

-13- was diagnosed with any psychological, psychiatric, or other

mental impairment, and Congress has explicitly barred a finding

of disability premised on drug or alcohol abuse.17 Accordingly,

the ALJ properly concluded that Sullivan's stress stemming from

the deaths of close family members and the burden of caring for

her ill and elderly mother did not rise to the level of a

disabling mental impairment under the Act.

The Commissioner's Listing of Impairments makes clear that

hearing loss for purposes of establishing disability is evaluated

in terms of hearing loss which is not restorable by a hearing

aid. See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 2.08. In

order for a claimant to meet her burden to demonstrate that she

is unable to perform her past relevant work, therefore, she must

establish that her impairment is not remediable. See Tsarelka v.

Secretary of Health and Human Servs.,

(1st Cir.

17 Congress amended the Social Security Act on March 29, 1996, to preclude a finding of disability "if drug abuse or alcoholism would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." P.L. No. 104-121 §§ 105(a) (1) and (b)(1),

, 852-53 (1996). The "key factor" in determining whether drug addiction or alcoholism is material is whether the individual would still be found disabled if alcohol or drug use were to stop. See

(1997). Congress noted that this provision was to apply to any case which had not yet been decided when the changes were enacted. See P.L. No. 104-21 §§ 105(a)(5)(A) and (b)(5)(A) as amended by P.L. 105-33 §§ 5525, 5528.

-14- 198 8); Torres Gutierrez v. Secretary of Health, Educ. and

Welfare,

(1st Cir. 1978) (poor vision correctable by

eyeglasses not a basis for disability). The fact that Sullivan

returned to substantial, gainful activity after getting new

hearing aids confirms the ALJ's finding that she was not

irrestorably disabled.

Sullivan also alleges that the ALJ was mistaken in using a

hearing loss of 90 decibels or greater as a benchmark. The

record shows, however, that the ALJ made this reference in

discussing whether Sullivan could be found presumptively disabled

at Step Two. A hearing threshold of 90 decibels or greater would

make Sullivan presumptively disabled, and would reguire no

further inguiry. See 20 C.F.R. Part 404, Subpart P, Appendix 1,

§ 2.08. Accordingly, the ALJ's use of this standard was proper.

Finally, Sullivan argues that the ALJ internally contradicts

himself by at times referring to Sullivan's hearing loss as

"severe," while at other times calling it "moderate." The

distinction, however, arises because the term "severe" is a term

of art in the lexicon of Social Security law denoting a de

minimus threshold for continued inguiry after Step Two of the

five-step seguential evaluation process. See

(1998); Gonzales-Avala v. Secretary of Health and Human

-15- Serv.,

(1st Cir. 1986). The ALJ's use of the term

"severe" at Step Two of the sequential evaluation process simply

denoted that he considered Sullivan's impairment to be more than

minimal, and requiring continued inquiry at Step Three. There

is, thus, no inconsistency between this assessment and his later

substantive evaluation of Sullivan's hearing loss as "moderate."

B. The ALJ properly concluded that Sullivan could perform her past relevant work during the closed period of her disability

Sullivan argues that the ALJ's analysis of her impairments

failed to consider their combined deleterious effect on her

ability to perform her former work as a cashier during her

alleged closed period of disability. She notes that "[e]ven if

no one impairment is severe enough, a combination of several may

render a claimant disabled and unable to work." Smolen v.

Chater,

(9th Cir. 1996); Johnson v. Sullivan,

(7th Cir. 1990); Walker v. Bowen,

(4th Cir. 1989). Sullivan's testimony, however, suggests

that her on-the-job difficulties were solely related to her

hearing loss. See generally Tr. of ALJ Hr'g at 1-9 (Tr. at 24-

33). She also testified that she was able to work two days a

week during the closed-period of her disability, before she

received her new hearing aids, see Tr. at 31, and noted in a

-16- questionnaire that her reduced working hours are due to the

"frustration of not hearing properly." See Tr. at 7 9 (emphasis

added). Her treating physician notes, in a report submitted

subsequent to the hearing before the ALJ, that "client's social

interactions are mildly affected by current psychological

difficulties. . . [and that] [t]he client is not likely to have

significant difficulty in accomplishing basic activities related

to work due to psychological issues." Tr. at 218. Further,

Sullivan's physician notes, "[s]he appears capable of

understanding, remembering, and carrying out written and oral

instructions, if the latter are within sensory range."

Sullivan was performing her past relevant work even during

the closed period of disability (just not for enough hours to

constitute substantial, gainful activity). Given that fact, the

reports by her treating physician, and the fact that Sullivan's

hearing was restored with hearing aids to the point that she now

engages in substantial, gainful employment, I find that the ALJ's

conclusion that Sullivan was capable of performing her past

relevant work during the alleged closed period of disability was

supported by substantial evidence. See Tsarelka,

(a remedial impairment cannot form the basis for disability).

-17- C. The ALJ properly evaluated Sullivan's subjective complaints

In evaluating Sullivan's residual functional capacity, the

ALJ weighed Sullivan's subjective complaints and considered the

degree of incapacity asserted by Sullivan. A plaintiff's

subjective assertions, however, must be evaluated against the

objective evidence, and not simply accepted blindly. See

Thompson v. Califano,

(1st Cir. 1977) .

Subjective allegations are properly rejected where the objective

medical evidence does not substantiate the alleged subjective

limitations. See Bianchi v. Secretary of Health and Human

Servs.,

(1st Cir. 1985). An ALJ, however, is not

free to simply accept or reject a claimant's subjective

complaints on the basis of an "intangible or intuitive notion

about an individual's credibility." Instead,

The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently scientific to make clear to the individual and to any subseguent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision. . . .

S.S.R. 96-7p.

-18- Accordingly, in addition to evaluating the medical evidence,

the ALJ heard and evaluated testimony from the plaintiff about

her daily activities, the freguency and duration of her

functional restrictions, medications, and prior work record. See

Avery v. Secretary of Health and Human Services,

(1st Cir. 1986). The ALJ noted that Sullivan reported, in an

October 1995 guestionnaire, that she was able to grocery shop,

cook meals, do household chores, visit with relatives, and help

her mother with shopping and housecleaning, all with no

difficulty concentrating, or following written or oral

instructions. See Tr. At 77-79. The ALJ also noted that

Sullivan was actually performing her job for two days a week

before she got her new hearing aids, suggesting that her

limitations were not as complete as she alleges.

The ALJ is charged with the duty to weigh this evidence, to

resolve material conflicts in testimony, and to resolve the case

accordingly. See Richardson v. Perales,

(1971); Tremblav v. Secretary of Health and Human Serv.,

(1st Cir. 1982). The ALJ's findings must be upheld if

they are supported by substantial evidence, even if the reviewing

court, in a de novo hearing, might have found otherwise. See

Lizotte v. Secretary of Health and Human Serv.,

, 128

-19- (1st Cir. 1981). After a complete review of the evidence in the

record, including Sullivan's subjective complaints, I find

substantial evidence to support the ALJ's conclusion that

Sullivan's activities during the alleged closed period of her

disability, including her successful social interactions and her

part-time work as a cashier in a noisy environment, do not

substantiate a totally disabling impairment.

IV. CONCLUSION

Because I have determined that the Commissioner's

conclusion that Sullivan was "not disabled" during the alleged

closed period of disability from September 1, 1993, until June

1996, is supported by substantial evidence, I affirm.

Accordingly, Sullivan's motion to reverse and remand (Doc. 7) is

denied, and defendant's motion for an order affirming the

commissioner (Doc. 9) is granted. The clerk shall enter judgment

accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge June 21, 1999

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

-20-