Patricia Amato v. Apfel CV-98-010-PB 03/22/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

PATRICIA A. AMATO

v. Civil No. 98-010-B

KENNETH S. APFEL. Commissioner. Social Security Administration

MEMORANDUM AND ORDER

Patricia Amato suffers from back spasms and chronic pain in

her back, neck, chest and hip stemming from a work-related

accident in February 1992 where she was pushed into a conveyer by

a forklift. She continued working after the accident, but

aggravated the injury in the summer of 1993, was put on light

duty, and was eventually terminated by her employer. She has not

engaged in substantial gainful activity, as defined by the Social

Security Administration ("SSA") regulations, since January 10,

1994 .

Amato applied for Supplemental Security Income ("SSI")

benefits on October 20, 1995. After the SSA denied her

application, Amato reguested a hearing before an Administrative

Law Judge ("ALJ"). ALJ Ruth Kleinfeld held a hearing on Amato's

claim on July 2, 1996, and denied Amato's claim on September 27,

1996. The Appeals Council denied plaintiff's reguest for review on December 4, 1997, making the ALJ's decision the "final"

decision of the Commissioner and opening the door to judicial

review.

Amato brings this action pursuant to

(g) of

the Social Security Act (the "Act"), seeking review of the SSA's

decision denying her claim for benefits. For the following

reasons, I vacate the ALJ's decision.

I. FACTS1

At the time of her hearing, Amato was 40 years old. See Tr.

at 43. She has a ninth-grade education. See

. Prior

to her alleged disability, Amato held jobs as a meat cutter, a

housekeeper/maid in a hotel, a milker in a dairy, and a machine

operator. Amato has not worked since her discharge from the Jac

Pac meat cutting plant on January 10, 1994.

Amato's troubles began in February 1992, when she was pushed

into a conveyor by a forklift. She did not report the incident

or her resulting injuries to her employer, however, because she

was told that she would be fired if she did. See

. She

aggravated the injury in the summer of 1993 while pushing buckets

1 Unless otherwise noted, the following facts are culled from the "Joint Statement of Material Facts" submitted by the parties.

- 2 - of meat down a conveyor belt. After a subsequent unsuccessful

attempt to return to her job as a meat cutter, Amato sought out

and accepted a less strenuous position within the company. On

the day of her discharge, Amato was working in an office at the

plant printing labels from a computer, a job which she stated she

didn't have a problem doing because she was allowed to take

breaks when necessary. See

. Her employer moved her to

this light duty position from the meat trimming line in late

1993. According to Amato, there were no complaints about the

volume of work she was producing, but she was terminated because

her employer "wanted [her] back on the production floor . . .

doing what [she] was hired for (trimming meat)."

.

In July 1992, several months after the initial forklift

accident, Amato was examined by Dr. Belinda Castor, M.D., for

pain and discomfort in her left hip and back. She was treated

for paraspinal tenderness and prescribed the anti-inflammatory

drug Ansaid. See

. During the next two years,

plaintiff sought treatment from Dr. Castor for a variety of

transient or resolving conditions, including a mild umbilical

hernia, a chronic musculoskeletal strain, and diffuse back and

neck pain. See

.

From July to September 1993, after reinjuring her lower back

while pushing a heavy bucket of meat along a conveyer, Amato was

- 3 - treated at the Elliot Hospital for chronic neck and back pain.

She also consulted a chiropractor, Robbin Bruck, during this

period. Dr. Bruck diagnosed scoliosis with cervical neuritis,

and placed Amato on total disability from September 12, 1993, to

October 11, 1993, to stabilize her spine and allow her back

injury to heal. Bruck expected Amato to eventually return to

full-time restricted light duty work.

Dr. David Lewis, an osteopath, examined Amato on October 19,

1993, diagnosing chronic lumbar, cervical and thoracic strain

with probable facet syndrome, but found no evidence of

neurological deficit or radiculopathy. He prescribed Voltaren

and Flexeril and a course of physical therapy, but noted that she

should continue working on her present work schedule. According

to Dr. Lewis, Amato's pain would be chronic, and the purpose of

treatment would be to improve flexibility, strength and function.

Dr. Richard Hockman, an orthopedic surgeon, treated Amato

from November 1993 until January 1994. Dr. Hockman found no

objective change in Amato consistent with the degree of pain she

was experiencing. In January 1994, Dr. Hockman reported that an

X-ray of Amato's lumbosacral spine revealed a small scoliosis,

minimal degenerative changes and an extra lordosis in Amato's

lumbar spine, but noted that surgery was not reguired. He

discharged Amato back into Dr. Castor's care.

- 4 - Dr. William Kilgus treated Amato for chronic pain in her

upper lumbar and lower thoracic spine from March 1994 to May

1996. His clinical examination revealed that Amato had a good

range of motion in the cervical, thoracic and lumbosacral spine,

with mild pain and spasm on extremes of motion. Dr. Kilgus found

no neurological damage, and referred Amato to physical therapy.

His notes indicate that Amato was doing fairly well, but

experienced aggravated symptoms during periods of physical stress

or extreme bad weather. He concluded that Amato suffered from a

chronic thoracolumbar strain, and reguired no other treatment.

In April 1994, Amato experienced a recurrence of pain in her

back and neck. Clinical examination revealed a limited range of

motion in the cervical and thoracolumbar spine, with pain and

spasm on motion. Dr. Kilgus referred Amato to Dr. Keith

Zimmerman, a chiropractor, for further treatments.

Dr. Zimmerman's initial examination revealed decreased

cervical lordosis, decreased cervical range of motion, decreased

thoracolumbar range of motion, pain, tenderness and spasm. Amato

complained that lifting, bending, and sitting aggravated her

condition. By August 1994, Dr. Zimmerman reported that Amato was

responding to therapy and had good range of motion in the upper

thoracic and lower cervical spine, but still experienced mild

pain and spasms.

- 5 - In September 1994, Dr. Kilgus prescribed Soma-compound, a

narcotic pain medication, to help Amato with her chronic and

persistent pain, but the pain continued in November and December

1994. Dr. Kilgus reported that Amato's December clinical

examination demonstrated pain radiating away from the thoracic

spine into the paravertebral musculature, limited range of

motion, and spasm. An MRI, conducted at Dr. Kilgus' reguest on

December 16, 1994, was unremarkable.

At the reguest of the Social Security Administration, Amato

was evaluated by Dr. Diana Collins, a psychologist, on November

30, 1995. Dr. Collins found Amato's mental status unremarkable.

According to Dr. Collins, Amato's ability to relate to peers and

co-workers, and ability to handle funds was acceptable. Amato

gave no indication that emotional issues played any part in her

inability to return to work.

Drs. Robert Rainie, Burton Nault, Udo Rauter, and an

individual whose name is illegible, see Tr. at 79, all non­

examining state agency medical and psychiatric consultants,

evaluated Amato's exertional and non-exertional impairments in

November and December 1995. After assessing the record. Dr.

Rainie concluded that Amato had a "good RFC" - including the

capacity to occasionally lift and carry up to 20 pounds, to

freguently lift and carry up to 10 pounds, to stand, walk or sit

- 6 - upright for six hours per day with normal breaks, and an

unlimited capacity to push and pull. Although Dr. Rainie found

that Amato had occasional postural limitations in all of the

areas assessed, he found that she had no visual, communicative,

or environmental limitations. Dr. Nault reviewed the record and

affirmed Dr. Rainie's conclusions.

On December 5, 1995, a psychiatrist assessed Amato's non-

exertional impairment and found no medically determinably

psychiatric impairment. Dr. Rauter reviewed the record and

affirmed the psychiatrist's evaluation.

On May 2, 1996, Dr. Kilgus completed a Medical Assessment of

Ability to do Work-Related Activities (Physical) form for Amato.

In that assessment. Dr. Kilgus found Amato able to lift 10-15

pounds. He also noted that her condition did not implicate her

ability to stand, walk, or sit, and that she could perform all

postural activities listed with no restriction on the physical

functions assessed. Dr. Kilgus' only assessed restriction

related to vibration, which he reported could affect Amato's

activity due to the weakness in her lower back.

More than a year later, however, on June 23, 1997, Dr.

Kilgus completed a Lumbar Spine Residual Functional Capacity

Questionnaire for Amato. In that report. Dr. Kilgus stated that

Amato suffered from chronic thoracic lumbar strain characterized

- 7 - by pain and spasm. He observed a significantly reduced range of

motion, tenderness, swelling, spasm, muscle weakness, weight

change, and sleep impairment. Dr. Kilgus reported that Amato's

pain would often interfere with her ability to maintain attention

and concentration. He concluded that Amato could continuously

sit or stand for only 45 minutes at a time, and could perform

these activities for less than 2 hours in an 8-hour day. Dr.

Kilgus reported that Amato had to change positions at will from

sitting to standing to walking, and reguired two unscheduled 15

minute breaks in an 8-hour workday. She could not do any bending

or twisting at the waist. Dr. Kilgus noted, however, that Amato

could still lift 10 pounds freguently and 20 pounds occasionally.

Amato appeared pro se and testified at the hearing before

ALJ Kleinfeld on July 2, 1996. Despite repeated offers by the

ALJ, Amato refused the assistance of counsel. At the hearing,

vocational expert Christopher Wood testified that Amato's past

work as a meat cutter constituted heavy skilled labor; her past

position as a hotel maid was unskilled light work; her job as a

milker in a dairy was unskilled medium exertion employment; and

finally, her position as a machine operator constituted semi­

skilled medium exertion employment.

During the hearing, the ALJ asked Wood a series of

hypothetical guestions. In response to the ALJ's first

- 8 - hypothetical question. Wood concluded that an individual with

Amato's vocational profile who was restricted to sedentary and

light work, able to lift no more than 10-15 pounds and further

limited to no repetitive bending, twisting, or vibration would

still be able to do work readily available in the national

economy. Examples of such positions would include cashiering,

with 15,000 positions in New Hampshire and 3 million nationwide;

video rental counter staffing, with 1,128 positions in New

Hampshire and 341,000 nationally; fast food service, with 3,547

positions in New Hampshire and 1.6 million nationwide; and

amusement and recreation attendant jobs, with 1,384 slots in New

Hampshire and 267,000 across the country.

In response to a follow-up hypothetical that assumed that

this individual also had to avoid prolonged standing. Wood noted

that none of the jobs just discussed would remain appropriate.

Wood likewise concluded that if this hypothetical individual had

the need to shift positions every 20-30 minutes, this would also

disqualify the jobs just identified. He noted, however, that

this individual could still do work in the national economy.

Among these jobs. Wood noted, are service station cashiering jobs

which allow a sit/stand option, of which there are 663 positions

in New Hampshire and 3 million nationally; parking lot attendant

positions, of which there 97 in New Hampshire and 64,000 in the

- 9 - national economy; and transportation ticket agent positions which

allow a sit/stand option, of which there are 465 in New Hampshire

and 139,000 nationally.

On September 27, 1996, ALJ Kleinfeld found Amato not

disabled and consequently ineligible for supplemental security

income under sections 1602 and 1614(a)(3)(A) of the Act. Amato

appealed the ALJ's adverse ruling to the Appeals Council on

November 13, 1996. While the Appeals Council was considering her

case, Amato submitted new evidence in support of her appeal,

including, most significantly, the Lumbar-Spine Residual

Functional Capacity Questionnaire completed by Dr. Kilgus on June

23, 1997, nearly a year after Amato's hearing before the ALJ.

The Social Security Administration regulations provide that

the Appeals Council must grant a request for review where: (1)

there appears to be an abuse of discretion by the Administrative

Law Judge; (2) the Administrative Law Judge made an error of law;

(3) the Administrative Law Judge's action, findings, or

conclusions are not supported by substantial evidence; or (4) the

case concerns a broad policy or procedural issue which may affect

the public interest. The regulations also provide that where new

and material evidence is submitted with a request for review, the

entire record will be evaluated and review will be granted where

the Appeals Council finds that the Administrative Law Judge's

- 10 - actions, findings, or conclusion is contrary to the weight of the

evidence currently of record. See 20 C.F.R. 416.1470. On

September 5, 1997, the Appeals Council denied Amato's reguest for

review, rendering the ALJ's decision the "final" decision of the

Commissioner.

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

- 11 - Rodriquez v. Secretary of Health and Human Servs.,

(1st Cir. 1981) ) .

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 Amato

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).

- 12 - This determination must consider the plaintiff's age, education,

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.2 See

(1998). In the case at bar,

the ALJ concluded that Amato was "not disabled" at step five of

the seguential evaluation process because she retained the

ability to perform light work. At step five, the Commissioner

has the burden to show that, despite the severity of the

2 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).

- 13 - claimant's impairments and inability to return to past relevant

work, she retains the residual functional capacity ("RFC") to do

alternative work in one or more occupations that exist in

significant numbers in the region where the claimant lives, or in

the national economy. See Heggartv v. Sullivan,

(1st Cir. 1991). The Commissioner must show that the

claimant's limitations do not prevent her from engaging in

substantial gainful work, but need not show that the claimant

could actually find a job. See Keating v. Secretary of Health &

Human Servs.,

(1st Cir. 1988) ("[t]he standard

is not employability, but capacity to do the job"). Amato

alleges that the Commissioner (1) improperly evaluated Amato's

subjective pain complaints, and (2) failed to properly weigh the

opinions of Amato's treating physician. I address each of these

arguments in turn.

A. The Commissioner failed to properly evaluate plaintiff's subjective pain complaints

Subjective pain complaints are properly evaluated after

considering the totality of the evidence. See

(d)(5)(A)(Supp. 1997);

(C)(4)(1998); Averv

v. Secretary of Health & Human Servs.,

(1st Cir.

1986). In determining the weight to be given to allegations of

- 14 - pain, "complaints 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 Servs.,

(1st Cir. 1989). Where objective evidence does not

substantiate the degree of limitation due to pain and a further

review of the medical evidence fails to show any objective

findings typically associated with the limiting pain alleged, the

inguiry into pain is not terminated. See Averv,

.

In such cases, the ALJ:

must be aware that symptoms, such as pain, can result in greater severity of impairment than may be clearly demonstrated by the objective physical manifestations of a disorder. Thus, before a complete evaluation of this individual's RFC can be made, a full description of the individual's prior work record, daily activities and any additional statements from the claimant, his or her treating physician or third-party relative to the alleged pain must be considered. Only then is it possible to fully assess whether the pain is reasonably consistent with the objective medical findings and to determine RFC.

Avery,

. Specifically, the ALJ must consider: (1)

the claimant's daily activities; (2) the location, onset,

duration, freguency, radiation, and intensity of pain and other

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

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

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

relief employed by the claimant; (6) any functional restrictions;

- 15 - and (7) any other relevant factors. See

(c)(3)(1998), 416.929(c)(3)(1998); see also Averv, 797

F .2d at 2 9.

If the ALJ has properly addressed all relevant evidence of

claimant's pain, including both objective medical findings and

detailed descriptions of the effect of pain on claimant's daily

activities, "[t]he credibility determination by the ALJ who

observed the claimant, evaluated [her] demeanor, and considered

how that testimony fit in with the rest of the evidence, is

entitled to deference, especially when supported by specific

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

(1st Cir. 1981). The ALJ, however, may not simply

"set up a straw man, knock it down, and then be judged to have

appropriately discussed the claimant's credibility." Callison v.

Callahan,

(D.Neb. 1997). Unless an ALJ

explains her views on credibility in relation to each of the

aforementioned factors "with sufficient detail that a reviewing

court can understand the logic of the ultimate credibility

conclusion," there can be no meaningful review, and reversal is

reguired.

(citing Cline v. Sullivan,

(8th

Cir. 1991)).

In this case, the ALJ acknowledged the relevant criteria in

her written decision, but did not properly apply these criteria

- 16 - to Amato's case in a manner sufficient to subject her logic to

meaningful review. The ALJ's entire treatment of Amato's

subjective pain complaint appears below:

When examined in the light of the criteria set forth above, I find that the claimant's allegations of disabling symptoms are not entirely credible. The claimant's chronic thoracolumbar pain may cause some limitation to her functioning, but not to a greater extent than has already been accounted for in the residual functional capacity assessed above. Ms. Amato's activities of daily living do not reflect totally disabling symptoms. She is able to do all but major household chores, and is limited in her ability to perform daily living activities in which lifting and carrying more than 10 pounds is involved (Exhibit 9). The claimant's chronic pain does impose limitations upon her ability to perform work, but not to an extent that would further limit her functional capacity. I find that the claimant does not credibly experience pain at a level that would further limit her functional capacity. . . .

Tr. at 25. As evidenced by the passage above, the ALJ made only

an insufficient conclusory remark about Amato's daily activities,

and a vague and passing allusion to Amato's pain symptoms and

functional restrictions. None of the other Avery factors are

even addressed in the ALJ's decision despite a record replete

with relevant facts. I highlight these facts below.

1. Amato's daily activities

The ability to engage in "substantial gainful activity"

means the ability to work, day in and day out, in the conditions

in which real people work in a real world. See Allred v.

Heckler,

(8th Cir. 1984) . It reguires the

- 17 - ability to do sustained work-related physical and/or mental

activity in a work setting on a regular and continuing basis for

8 hours a day, 5 days a week. See Social Security Ruling 96-8p.

A disability claimant need not show that she is completely

incapacitated before she can gualify for benefits. See

Baumqarten v. Chater,

(8th Cir. 1996)(claimant

"need not prove her pain precludes all productive activity and

confines her to a life in front of the television"); Hatfield v.

Apfe1 ,

(D. Kan.) ("claimant's ability to engage in

limited daily activities is not inconsistent with the inability

to perform substantial gainful activity").

Amato states that her pain wakes her an average of six to

seven times a night, that she cannot sit or stand for prolonged

periods of time, that she cannot twist from side to side or bend

over, and that she can no longer lift anything heavier than 10

pounds. See Tr. at 109-111. She reports that extreme

temperatures (hot or cold) and dampness worsen her pain, and

often render her completely incapacitated. She is heavily

dependent on her daughter to assist her with most daily life

activities that she is still able to perform. For example, she

grocery shops only once a month and reguires the assistance of

her daughter or the cab driver to carry the groceries to her

apartment and put them away. See

. She reports that

- 18 - her pain medicines help her to perform simple household tasks

like doing dishes and the laundry, although there are some days

when she is unable to complete even these basic household tasks.

She has trouble with vacuuming, making her bed, and other more

strenuous chores. See

. Further, Amato reports that

there are some days when she "can shower and dress up" but "other

days [she can't] because of pain."

She leaves her home

"only when [she] has to" to go to the drug store, or to doctor's

or welfare appointments, and typically either walks, rides the

bus, or takes a cab, depending on how she feels.

The record

indicates that other than watching television and listening to

the radio, she engages in no other hobbies or social activities.

2. Location, onset, duration, frequency, and intensity of pain

Amato reports that she wakes six to seven times a night from

the pain, and "cannot roll over without waking up."

.

She reports that she suffers from pain "every day," and that

there are some days that she "just can't do anything," including

attending to her sanitary needs, because of the pain and her

inability to turn. See

. Typically, the pain radiates

from her lower back down into her groin area and then into her

leg. See

. She also experiences headache and neck

pain, and frequently experiences fatigue, exhaustion, and

- 19 - numbness in her legs when trying to work through her backaches.

See

.

3. Precipitating and aggravating factors

Amato notes that temperature extremes (heat or cold) and

dampness tends to exacerbate her pain. See

.

Rolling over during sleep triggers pain sufficient to wake her.

See

. Sitting or standing for long periods of time,

twisting or bending, attempting to lift heavy objects, and

attempting to "straighten out" also trigger her symptoms. See

.

4. Medications

Doctors have prescribed Ansaid,3 Voltaren,4 Flexeril,

Soma,5 Darvocet,6 and Vicodin7 to treat Amato's symptoms. At the

3 Ansaid is an anti-inflammatory drug. See Tr. at 121.

4 Voltaren is a nonsteroidal anti-inflammatory drug prescribed to relieve pain related to inflammation. See Physicians' Desk Reference, 52nd Ed. (1998) at 1830.

5 Soma, a narcotic pain medication, is prescribed for the relief of pain, muscle spasm, and limited mobility associated with acute, painful, musculoskeletal conditions. SeePhysicians' Desk Reference, 47th Ed. (1993) at 2504.

6 Darvocet is prescribed for the relief of mild to moderate pain. See Physicians' Desk Reference, 47th Ed. (1993) at 1288.

7 Vicodin is indicated for the relief of moderate to moderately severe pain. See Physicians' Desk Reference, 47th Ed. (1993) at 1214.

- 20 - time of her hearing, she was taking Soma (two to three times

daily) and Darvocet (two to four times daily) in excess of the

dosages prescribed. She testified that the Darvocet "doesn't

really help a whole lot." See

. See

(c)(3)(iv)(1998); 416.929(c)(3)(iv)(1998) (in making

credibility determination, the ALJ should consider the "type,

dosage, effectiveness, and side effects of any medication"

claimant has taken).

5. Non-medication treatment for pain

Amato has sought chiropractic treatment and physical therapy

to alleviate her pain - treatments which have only afforded her

temporary relief. See

. She has

been told that she is not a candidate for surgical intervention.

See

. See

(c)(3)(v)(1998);

416.929(c)(3)(v)(1998)(in making credibility determination, the

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

claimant has received for pain relief").

6. Other relevant factors

Prior to her injury, Amato worked as a meat cutter, a

milker, a housekeeper, and a machine operator. Two of these jobs

reguired Amato to work six or seven days per week. See

. At her last job as a meat cutter at Jac Pac foods, Amato

was working up to 60 hours per week without complaint. See

- 21 - at 258-59. In fact, when she was first injured on the job at

Jac-Pac in the forklift accident, Amato did not report her injury

to her employer because she was concerned about getting fired if

she did. See

. After being injured on the job a second

time, Amato tried to return to her job as a meat cutter, and,

when unable to resume that job, sought out and accepted less

strenuous work within the company that accommodated her physical

limitations. See

.

In early 1994, however, Amato was told that she would be

forced to leave the company unless her doctor lifted all of her

light duty restrictions. Amato then tried to talk her doctor

into doing so, but he refused. Instead, he lifted the

restrictions on a trial basis for one week, allowing Amato to

work for 6 hours per day - a condition which her employer did not

accept. Amato was then terminated, and has been unemployed ever

since. See

.

Because the ALJ failed to analyze most of the factors she

was charged with applying, and fails to identify "substantial

evidence" supporting her conclusion on the one factor she did

consider, the ALJ's decision is vacated, and this case is

remanded for further factual findings by the ALJ pursuant to

sentence four of

(g). See DaRosa v. Secretary

of Health & Human Servs.,

(1st Cir. 1986)(remand

- 22 - appropriate where ALJ's credibility determination not supported

by substantial evidence because ALJ failed to consider requisite

factors) .

B. Evaluation of the Opinion of Amato's Treating Physician

Because I have decided this case on other grounds, I note

only in passing, that there is considerable doubt whether the

Commissioner properly considered the June 23, 1997, opinion of

Amato's treating physician. Because the law in this area is

currently in flux,8 and because I have already ruled that the ALJ

has failed to make a proper determination about Amato's

subjective pain complaints, however, I need not resolve the

merits of this claim. In vacating the decision of the ALJ,

however, I remand this case with instructions that, in reaching a

new decision, the ALJ properly consider Dr. William J. Kilgus'

June 23, 1997, report filed with the Appeals Council.9 Such

8 The circuits have split as to whether evidence submitted only to the Appeals Council, and not to the ALJ, should be considered on appeal to a district court after the Appeals Council has denied review. C f . Falge v. Apfel,

(11th Cir. 1998)(holding that new evidence submitted only to the Appeals Council is not part of the administrative record for judicial review), cert, denied,

(1999), with Perez v. Chater,

(2d Cir. 1996)(holding that new evidence is properly considered as part of the administrative record on judicial review).

9 I am granted this authority by

(g), which allows the court to, "at any time order additional evidence be taken before the Secretary, but only upon a showing that there is

- 23 - consideration should include, if necessary, inquiring into and

resolving any seemingly contradictory conclusions reached by Dr,

Kilgus in his two reports. The clerk is instructed to enter

judgment accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge

March 22, 1999

cc: David Broderick, Esq. Raymond Kelly, Esq.

new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." See also Evangelista v. Secretary,

(1st Cir. 1987).

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