Paul Blake v. SSA CV-99-126-B 01/28/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul F. Blake

v. Civil N o . 99-126-B Opinion N o .

Kenneth S. Apfel, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

On October 1 5 , 1993, Paul F. Blake (“Blake) filed an

application for disability insurance benefits under Title II of

the Social Security Act. After having his application denied

both at the administrative level and by an administrative law

judge, Blake sought judicial review of the Commissioner’s final

decision denying his application for benefits. On May 2 2 , 1997,

the district court remanded the matter for further proceedings.

On remand, the administrative law judge again denied Blake’s

application for benefits. In the present action, Blake, pursuant

to

(g) (1994), seeks judicial review of the

Commissioner’s second decision to deny his application. For the reasons set forth below, I conclude that the Commissioner’s

decision is not supported by substantial evidence. As result, I

grant Blake’s motion to reverse and remand the Commissioner’s

decision.

I. BACKGROUND1

A. Procedural History

Blake filed his current application for Disability Insurance

Benefits (“DIB”) on October 1 5 , 1993. He alleged disability

since November 3 0 , 1987 due to a herniated disc, degenerative

joint disease, and sciatic pain radiating from his hip to toe,

bilaterally.

After his application was denied both initially and upon

reconsideration, Blake requested a hearing before an

Administrative Law Judge (“ALJ”). On February 1 6 , 1995, ALJ

Klingebiel held a hearing at which Blake and his wife testified.

ALJ Klingebiel found Blake not disabled. The Appeals Council

1 Unless otherwise noted, the following facts are taken from the parties’ Joint Statement of Material Facts (doc. n o . 8 ) .

-2- denied Blake’s request for review. Blake sought judicial review

and on May 2 2 , 1997 the district court granted the Commissioner’s

assented-to motion for an order reversing and remanding the

matter for further proceedings. The Appeals Council remanded the

matter to the ALJ with direction to evaluate more thoroughly

Blake’s complaints of pain and determine the weight to be

assigned to the opinion of Blake’s treating physician, Dr.

Brassard, as outlined in his June 1 , 1995 letter.

On April 1 6 , 1998, ALJ Klingebiel held a second hearing at

which Blake, his wife, and a vocational expert testified. In his

order dated July 2 , 1998, ALJ Klingebiel determined that Blake

had the residual functional capacity (“RFC”) to perform a limited

range of light work. Based upon the testimony of the vocational

expert, the ALJ concluded that Blake could not return to his

prior work but that there were a significant number of jobs in

the national economy Blake could perform. Accordingly, ALJ

Klingebiel found Blake not disabled through June 3 0 , 1993, the

date he last met the insured status requirements of the Social

-3- Security Act. The Appeals Council denied Blake’s request for

review on February 8 , 1999, thereby rending ALJ Klingebiel’s July

2 , 1998 order the final decision of the Commissioner.

B. Medical Evidence

Blake was born January 3 , 1948. As of the date he last met

the insured status requirements, he was 45 years old. Blake has

a tenth grade education and his past relevant work includes work

as a laborer, plastic injection mold machine operator and

maintenance man, and finishing room worker.

In 1987, Blake, while putting up a chimney at his house,

injured his back when he twisted to put down a cement block he

had carried up a ladder. Shortly thereafter, Blake sought

treatment from D r . Brassard, a general practitioner, who gave him

a shot which provided temporary local relief. Blake tried to

return to work but stopped due to steady pain in his lower back.

On December 2 1 , 1987, Dr. Kathleen Robinson ordered x-rays

of Blake’s lumbar spine. These x-rays showed only a minimal

narrowing of the L5-S1 intervertebral disc, which might have been

-4- a normal variant or due to minimal degenerative disc disease.

The x-rays also showed minimal anterior bony outgrowths on L3

through S 1 . A spinal CT scan performed on January 1 2 , 1988

showed degenerative disc disease at S 1 , but that the other levels

were normal. No true disc herniation was identified.

In July 1988, Dr. Ramos, a physiatrist, examined Blake. On

neurological evaluation, Blake reported decreased sensory

appreciation over the left L4-5 dermatome level in response to

light touch, deep touch, vibratory, and pinprick stimuli. Upper

deep tendon reflexes were normal, but lower extremity reflexes

were hypoactive. Muscle strength in the upper and lower

extremities was normal, but trunk mobility was markedly

restricted, secondary to complaints of acute pain and tightness.

Detailed palpation over the lumbar paraspinous muscles and the

gluteal region elicited acute spasms, tenderness, and complaints

of impaired sensation extending into the left leg. Deep constant

pressure over the left sciatic notch elicited marked discomfort.

Dr. Ramos diagnosed acute bilateral sacrospinalis and left

-5- quadrant lumbar muscle inflamation. Dr. Ramos also wanted to

rule out the possibility of left L4-5, S1 radiculopathy. See Tr.

at 186. He recommend localized nerve block, anti-inflammatory

medication, and conservative physical rehabilitation treatment.

In August 1988, an EMG was performed which showed evidence of

chronic nerve root irritation at the left L5-S1 level.

From July 2 2 , 1988 to October 7 , 1988, Blake attended

physical therapy. By October, there were minimal findings and

Blake’s muscles were described as minimally tender. During the

fall of 1988, Blake also had been building his endurance by

walking on a daily basis.

In December 1988, Blake saw Dr. Porter, an orthopedic

surgeon, because of his complaints of persistent thoracic and

lower back pain. D r . Porter observed that Blake had decreased

flexion, extension, and lateral flexion in his lower back and

some subjective sensory loss in the lateral aspect of his left

foot. Blake’s reflexes were equal and normal.

At Dr. Porter’s recommendation, Blake underwent a MRI

-6- (magnetic resonance imaging) of his back in January 1989. The

MRI showed a herniated disc at L5-S1, more to the left than to

the right, which D r . Porter noted could have caused the pain down

Blake’s left leg and some numbness in the left foot. The

herniation indented the epidural fat but there was no distortion

of the thecal sac. D r . Porter noted that there was no imminent

nerve loss and that surgery would be indicated if pain returned

as Blake increased his activities.

In December 1989, Dr. Brassard diagnosed a herniated lumbar

disc, degenerative arthritis, and obesity. He prescribed several

medications including Motrin and Darvocet. Dr. Brassard’s March

1991 treatment notes indicated Blake still reported subjective

complaints of pain with respect to his lower back, left chest

radiating into his neck, and right leg. On January 1 6 , 1992, D r .

Brassard reduced Blake’s Motrin dose because he had developed

gastritis due to Motrin overuse. At the end of the month, D r .

Brassard prescribed phenobarbital but Blake stopped taking it in

February because it made him “ugly.”

-7- On February 2 1 , 1992, D r . Martino conducted a neurological

evaluation of Blake. Dr. Martino found that Blake had 4/5

strength in his lower extremities with give away weakness and

discomfort, while his upper extremities were unimpaired. There

was decreased pin prick sensation in a circumferential fashion in

his entire left leg and in a patchy fashion in his right leg not

corresponding to any singular nerve or dermatome. Blake’s gait

was significant for left-sided limb favoring. It was Dr.

Martino’s impression that Blake had protracted lumbar

radiculopathy and recommended a right S1 nerve root block.

Dr. Porter again examined Blake in January 1994. Dr. Porter

found that Blake’s gait was reasonably normal, but slow; straight

leg raising was negative to 80 degrees; motor strength was

normal; and sensation seemed intact. See id. at 183. Dr. Porter

diagnosed chronic low back pain secondary to degenerative disc

disease without any evidence of nerve root impingement or

foraminal encroachment. D r . Porter opined that there was no

indication that surgery would be beneficial in Blake’s case. See

-8- id.

In his June 1 , 1995 letter, Dr. Brassard opined that

throughout the time he treated Blake, Blake experienced chronic

pain which would be expected to limit his capacity to attend

regularly and consistency to any occupation or activity.

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, I am authorized t o : 1 ) review the pleadings

submitted by the parties and the transcript of the administrative

record; and 2 ) enter judgment affirming, modifying, or reversing

the Commissioner’s decision. See

(g) (1994). My

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.,

(1st Cir. 1991)(per curiam);

(g). The Commissioner is responsible for settling

-9- 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 adequate to support [the ALJ’s]

conclusion.’”

(quoting Rodriguez v . Secretary of Health and

Human Servs.,

(1st Cir. 1981)) (alteration in

original).

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

fair hearing, deference to the ALJ’s decision is not appropriate;

remand for further development of the record may be necessary.

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

(2d Cir. 1983); see also Slessinger v . Secretary of

Health and Human Servs.,

(1st Cir. 1987)(per

curiam) (“The [ALJ’s] conclusions of law are reviewable by this

court.”). I apply these standards in reviewing the issues Blake

raises on appeal.

-10- III. DISCUSSION

An ALJ is required to apply a five-step sequential analysis

to determine whether a claimant is disabled within the meaning of

the Act.2 At step four, the ALJ must determine whether the

claimant’s impairment prevents him from performing his past work.

See

(e) (1999). The ALJ must assess both the

claimant’s residual functional capacity (“RFC”), that i s , what

the claimant can do despite his impairments, and the claimant’s

past work experience. See Santiago v . Secretary of Health and

Human Servs.,

, 5 (1st Cir. 1991)(per curiam). At step

five, the burden shifts to the Commissioner to show that there

2 In applying this five-step sequential analysis, the ALJ is required to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment that 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

(1999).

-11- “are jobs in the national economy that [the] claimant can

perform.” Heggarty v . Sullivan,

(1st Cir.

1991) (per curiam); see also Keating v . Secretary of Health and

Human Servs.,

(1st Cir. 1988)(per curiam). The

Commissioner must show that the claimant’s limitations do not

prevent him from engaging in substantial gainful work, but need

not show that the claimant could actually find a job. See

Keating,

(“The standard is not employability, but

capacity to do the job.”).

In the present case, the ALJ found Blake not disabled at

step five. The ALJ determined that Blake has the residual

functional capacity to perform a limited range of light work.

Based upon the testimony of a vocational expert, the ALJ

determined that Blake cannot return to his past work but that

there are jobs in the national and local economy which Blake is

capable of performing.

Blake makes three principal arguments in support of his

motion to reverse the ALJ’s decision. First, Blake argues that

-12- the ALJ erred by not giving controlling weight to the opinion

expressed by his treating physician, Dr. Brassard, in his June 1 ,

1995 letter. Second, Blake asserts that the ALJ was not entitled

to rely upon the testimony of the vocational expert because the

hypothetical posed to the VE did not reflect Blake’s functional

limitations as outlined by Dr. Brassard in his June 1 , 1995

letter. Third, Blake argues that the ALJ improperly assessed his

subjective complaints of pain. I agree that the ALJ did not

perform a proper analysis of Blake’s pain complaints. As a

result, I address only this error and express no opinion on the

remaining issues raised by Blake’s motion.3

3 The ALJ addressed the issue of whether Dr. Brassard’s June 1 , 1995 assessment of Blake’s functional limitations was entitled to controlling weight in his discussion of Blake’s credibility. The ALJ discounted Dr. Brassard’s opinion because it was not sufficiently supported by objective medical evidence and relied too heavily upon Blake’s subjective complaints of pain. See Tr. at 248 (discounting Dr. Brassard’s opinion because of D r . Brassard’s “apparent disproportional reliance on the claimant’s own subjective complaints relative to the paucity of objective medical evidence throughout the record”). Although I find that the ALJ must reassess Blake’s credibility, I express no opinion on whether, after such reassessment, the ALJ still may discount Dr. Brassard’s opinion.

-13- A. Standards Governing ALJ’s Pain Determination

The regulations require that a claimant’s symptoms, such as

pain, be considered when determining whether a claimant is

disabled. A two-step process is used to evaluate a claimant’s

subjective complaints of pain. First, the claimant must suffer

from a medically determinable impairment which can reasonably be

expected to produce the pain alleged. See 20 C.F.R. 404. §

1529(b) (1999); see also Da Rosa v . Secretary of Health and Human

Servs.,

4 , 25 (1st Cir. 1986)(per curiam). Second, if

this showing is made, the ALJ evaluates “the intensity and

persistence of [the claimant’s] symptoms so that [the ALJ] can

determine how [the claimant’s] symptoms limit [his or her]

capacity for work.”

(c)(1). At this step,

the ALJ considers “all of the available evidence, including [the

claimant’s] medical history, the medical signs and laboratory

findings, and statements from [the claimant], [the claimant’s]

treating or examining physician or psychologist, or other persons

about how [the claimant’s] symptoms affect [the claimant].”

-14- A claimant’s subjective complaints of pain will be deemed

credible only if they are consistent with the objective medical

evidence and the other evidence in the record. See

§

1529(a).

Although objective medical evidence is important, it does

not have to corroborate precisely the claimant’s pain complaints;

rather, it only needs to be consistent with the claimant’s

complaints. See Dupuis v . Secretary of Health and Human Servs.,

2 2 , 623 (1 st Cir. 1989)(per curiam). As a result, an

ALJ must not overemphasize the importance of objective medical

findings when assessing the credibility of the claimant’s

complaints regarding the intensity and persistence of his pain.

An ALJ must not disregard a claimant’s complaints “solely because

they are not substantiated by objective medical evidence.”

Social Security Ruling 96-7p,

, at *6 (Jul. 2 ,

1996) [hereinafter SSR 96-7p] (noting that objective medical

evidence is just one factor to be considered in assessing

credibility); see also Hatfield v . Apfel, N o . Civ. A . 94-1295-

-15- JTM,

, at *7 (D. Kan. Mar. 3, 1998) (“[T]he

claimant need not produce objective medical evidence of the level

and persistence of her pain.”).

Because the regulations recognize that symptoms, such as

pain, may suggest a more severe impairment “than can be shown by

objective medical evidence,”4

(c)(3), they

direct the ALJ to consider several factors relevant to a

claimant’s complaints of pain. These factors include: 1 ) the

claimant’s daily activities; 2 ) the location, duration,

frequency, and intensity of the claimant’s pain; 3 ) precipitating

and aggravating factors; 4 ) the type, dosage, effectiveness, and

side effects of any medication the claimant takes or has taken to

alleviate his pain; 5 ) treatment, other than medication, the

claimant receives or has received for relief of his pain; 6 ) any

measures the claimant uses or has used to relieve pain; and 7 )

4 While symptoms cannot be objectively measured, their effects often can be clinically observed. For example, findings of reduced joint motion, muscle spasm, sensory deficit, or motor disruption may be the product o f , or associated with, symptoms of pain. SSR 96-7p,

, at * 6 .

-16- any other factors concerning the claimant’s limitations and

restrictions due to pain. Id.; Avery v . Secretary of Health and

Human Servs.,

9 , 29 (1st Cir. 1986). In addition to

considering these factors, the ALJ is entitled to observe the

claimant, evaluate his demeanor, and consider how the claimant’s

testimony fits with the rest of the evidence. See Frustaglia v .

Secretary of Health and Human Servs.,

(1st Cir.

1987)(per curiam) (holding that ALJ’s credibility finding is

entitled to deference, especially when it is supported by

specific findings).

B. ALJ’s Assessment of Blake’s Subjective Complaints of Pain

In the present case, the ALJ determined that the objective

medical evidence revealed an underlying disc pathology which

reasonably could be expected to produce Blake’s pain complaints.

See Tr. at 249. Because the ALJ did not credit Blake’s

complaints regarding the severity of his pain, he concluded that

Blake’s lower back and leg symptoms do not further erode his

-17- ability to perform the range of light work the ALJ had defined.5

See

(“[A]lthough I do not question that the claimant

experienced chronic pain throughout his period of treatment with

Dr. Brassard, the lack of objective medical measures and regular

treatment undermine the conclusion that the claimant was unable

to perform the range of light work enumerated above.”). In

particular, the ALJ determined that Blake’s subjective complaints

of pain were not credible in light of (1) discrepancies between

Blake’s assertions and the objective medical findings; (2) the

frequency and degree of medical treatment Blake required; and

(3) Blake’s daily activities.6 I find that the ALJ’s adverse

5 The ALJ determined that Blake has the residual functional capacity to perform a limited range of light work. According to the ALJ, Blake is incapable of performing the full range of light work because he cannot bend repeatedly and must have an opportunity to change position as needed. See Tr. at 247. In his enumerated findings, the ALJ stated a similar conclusion. See

at 251 finding #5 (identifying inability to walk repetitively as another functional limitation).

6 The ALJ offered the following explanation in support of his adverse credibility determination: While I am mindful of the claimant’s difficulties maintaining insurance, I should

-18- credibility determination was improper because it overstated the

importance of corroborating objective medical evidence and

misconstrued and/or ignored non-medical evidence supporting

Blake’s subjective complaints of pain.

1. Objective Medical Evidence

The ALJ discredited Blake’s subjective complaints at the

second step of the pain analysis. At that point, the ALJ was

once again also note that the claimant’s limited use of medication and other treatment modalities runs counter to Dr. Brassard’s general comments with regard to the severity of the claimant’s pain. If in fact the claimant’s pain were intolerable, it is reasonable to expect to see recurrent emergency room visits, or at least more frequent and involved discussion of pain management in treatment notes. Yet, more often than not, Dr. Brassard’s treatment notes contain no mention whatsoever of strategies to address the claimant’s pain. . . . More generally, I must point to the claimant’s good response to even a short period of physical therapy in July 1988 (Exhibit B 2 1 ) , I should also mention the claimant’s self-reports that he would walk almost every day and could walk up to one mile (Exhibit B 1 3 ) . He also reportedly took care of some household tasks (Exhibit B 8 ) . Tr. at 248-49.

-19- entitled to consider the objective medical evidence but he was

not entitled to reject Blake’s complaints about the severity of

his pain simply because they were not substantiated by objective

medical evidence. The ALJ erred by attaching too much weight to

the absence of objective medical findings.

The MRI and other x-rays of Blake’s back did not reveal any

“nerve root impingement or loss of function,”

at 1 7 2 , or

other abnormalities, see id. at 174. Nonetheless, the medical

evidence included several references to Blake’s complaints of

pain and doctors’ observations of his pain. See, e.g., id. at

167 (Dr. Porter’s December 2 2 , 1988 out-patient visit notes

observing that Blake appeared to be in “chronic distress”).

Although Dr. Porter indicated that he found it difficult to “sort

out the complaints with objective evidence of any positive

findings,” he indicated that he believed Blake’s pain complaints

were genuine. Id.

In addition, the ALJ failed to consider in his analysis of

Blake’s credibility clinical findings measuring the effects of

-20- Blake’s pain symptoms. For example, he made no mention of Dr.

Ramos’ findings that Blake experienced “acute spasms,”

tenderness, and tightness in certain areas. See id. at 186. Nor

is it apparent that the ALJ accounted for D r . Porter’s 1988

observation of Blake’s decreased motion in his back, “to

flexion/extension and lateral flexion,” id. at 1 6 7 , or Dr.

Martino’s 1992 finding that Blake showed “4/5 power in the lower

extremities with give away weakness and discomfort,” id. at 175. 7

Closely related to the ALJ’s concern about the lack of

objective medical finding, was his concern about Blake’s failure

to seek more frequent treatment for his pain. According to the

ALJ, the absence of regular treatment suggested that Blake’s pain

was not as severe as he alleged.

An ALJ is entitled to treat frequency of treatment as a

factor in his credibility determination. See Irlanda Ortiz,

(“The ALJ also relied on the fact that for long

7 In his recitation of the medical evidence, the ALJ mentioned these findings of Dr. Ramos and Dr. Martino, but not those of Dr. Porter. See Tr. at 244-47.

-21- periods of time claimant was not in any treatment for his back

problems. The ALJ inferred that had claimant’s pain been as

severe as alleged, claimant would have sought treatment.”). An

inconsistency between the frequency of treatment and the severity

of pain alleged generally erodes the credibility of a claimant’s

complaints of pain. See SSR 96-7p,

, at * 7 . An

ALJ, however, may draw a negative inference only after he first

considers evidence explaining a claimant’s “infrequent or

irregular medical visits or failure to seek medical treatment.”

at *7-8 (citing inability to afford treatment as example of

an explanation for claimant’s failure to seek treatment).

Consideration of such explanations is necessary to gain insight

into a claimant’s credibility. See

at * 7 .

In the present case, the ALJ inadequately discharged his

obligation to consider Blake’s explanation for failing to seek

more regular medical treatment before drawing a negative

credibility inference from this evidence. Blake claimed that

financial hardship – arising out of his inability to work, his

-22- loss of health insurance, his wife’s inability to get health

insurance through her employers, and his wife’s medical bills –

precluded him from seeking more regular treatment for his pain.

See, e.g., Tr. at 87 (Blake’s testimony that even though he

wanted to return to Dr. Martino he did not because of his

concerns about medical bills). Instead of examining the effect

of Blake’s limited resources on his ability to seek treatment,

see, e.g.,

(Dr. Martino’s February 1992 report stating

that he discussed with Blake “further diagnostic and therapeutic

options. He [Blake] is concerned about the expense of these

situations and wishes to pursue a [nerve root] block before any

further tests are performed”), the ALJ only made a passing remark

that he was “mindful of the claimant’s difficulties maintaining

insurance,” id. at 248. Requiring the ALJ to give fuller

consideration to the effect of Blake’s financial hardship on his

treatment options is particularly appropriate given that “the

purpose of the Social Security Act is to ameliorate some of the

rigors of life for those who are disabled or impoverished.”

-23- Jones v . Sullivan,

(D. Kan. 1992) (citing

Dvorak v . Celebrezze,

(10th Cir. 1965)).

2. Non-Medical Evidence and the Avery Factors

In addition, I conclude that the ALJ’s credibility

determination was deficient because it only addressed a few of

the pertinent Avery factors. Furthermore, with respect to those

factors he did consider, the ALJ either misconstrued or ignored

evidence in the record. See, e.g., id. at 1406 (“In this case,

the ALJ improperly abstracted the evidence to support a denial of

benefits. The decision mischaracterizes or ignores evidence

favorable to the plaintiff and overemphasizes evidence favorable

to the [Commissioner].”) (internal citation omitted).

a. Blake’s Daily Activities

To be found disabled, a claimant must show that he cannot

perform “‘substantial gainful activity,’” not that he is

“‘totally incapacitated.’” Id. at 1405; see also Baumgarten v .

Chater,

(8th Cir. 1996) (“To establish

disability, [a claimant] need not prove that her pain precludes

-24- all productive activity and confines her to life in front of the

television.”); Thomas v . Sullivan,

(8th Cir.

1989)(“[W]e note that a claimant need not prove she is bedridden

or completely helpless to be found disabled.”). To be capable of

substantial gainful activity, a claimant must be able to perform

“substantial services with reasonable regularity either in

competitive or self-employment.” Thomas,

(citation omitted). That i s , a claimant must be able to perform

the required acts “day in and day out, in the sometimes

competitive and stressful conditions in which real people work in

the real world.”

(citation omitted); Allred v . Heckler,

(8 th Cir. 1984) (citing McCoy v . Schweiker,

(8 th Cir. 1982) (en banc)).

Accordingly, a claimant’s ability to engage in limited daily

activities, including light housework, is not necessarily

inconsistent with “the inability to perform substantial gainful

activity.” See Hatfield,

, at *7 (finding that

claimant’s activities did not “speak to her ability to alternate

-25- sitting and standing throughout the day”); see also Ghant v .

Bowen,

(8th Cir. 1991) (holding that claimant’s

ability to do light housework, fish, and play dominos did not

necessarily indicate that he could perform full-time light work).

In the present case, the ALJ gave the evidence of Blake’s

daily activities cursory consideration, noting only that Blake

walked several times a week and performed some household chores.

See Tr. at 249. Because the ALJ apparently ignored the evidence

of Blake’s limitations, he must be deemed to have “improperly

abstracted evidence” to conclude that Blake was “‘fairly

active.’” See Jones,

(observing that ALJ

ignored claimant’s limitations including her inability to perform

yard work and vacuum and her need for assistance when grocery

shopping).

To determine whether Blake’s daily activities evinced his

ability to perform substantial gainful activity on a daily basis,

the ALJ needed to examine more precisely the evidence of Blake’s

routine and limitations. For example, D r . Brassard’s treatment

-26- notes show that, as of March 1991, Blake was walking three to

five days a week. See Tr. at 159. Blake testified, however,

that he could walk, at a slow pace only, for approximately

fifteen to twenty minutes before he had to stop. See

at 6 4 .

Similarly, the evidence showed that Blake performs only a limited

range of household chores. For example, Blake occasionally

prepares breakfast – pouring a bowl of cereal or making toast –

for his autistic son. Most days, his wife lays out breakfast for

their son. See

at 8 0 . Blake’s other household chores

include vacuuming his family’s small mobile home. Blake

testified, however, that he was able to do so only with his son’s

assistance and that he can push, but not pull, the vacuum. See

id. at 81-82. According to Blake, he sometimes washes dishes but

not for more than ten minutes because of his inability to stand

in one place for any period.8 See id. at 8 2 .

In addition to superficially treating the evidence of

8 This testimony is consistent with other parts of Blake’s testimony in which he stated that he can stand for about fifteen minutes and that his pain is triggered by standing in one place for too long. See, e.g., Tr. at 6 4 , 7 3 .

-27- Blake’s ability to walk and perform household chores, the ALJ

ignored all together other evidence of Blake’s limitations which

might suggest Blake’s inability to perform substantial gainful

activity. For example, both Blake and his wife testified that he

has difficulty sleeping. According to Blake, he is able to

sleep, at most, for two to two and one-half hours each night;

prior to his injury, he was able to sleep for eight hours. See

id. at 74-75, 9 3 . Blake’s wife also testified that she sometimes

– approximately two to three times per week – has to give Blake

his pain medication during the middle of the night. See id. at

93-94. In addition, the ALJ made no mention of: (1) Blake’s

difficulty dressing himself, including occasionally requiring his

wife’s assistance, see id. at 78-79; (2) his inability to lie

down during the day because of the difficulty he has getting u p ,

see id. at 7 4 ; (3) his lack of hobbies and limited social

interaction, see id. at 134 ; and (4) the impact of his injury,

and resulting pain, on his family relations, including his

intimate relationship with his wife, see id. at 7 0 , 9 5 .

-28- b. Duration, Frequency, and Intensity of Pain

Although the ALJ acknowledged that Blake is in chronic pain,

see id. at 249, he concluded that this pain does not further

erode Blake’s functional ability to perform a limited range of

light work. Blake testified, however, that he suffers not only

from a constant pressure on his lower back, but also suffers from

short, intense peaks in his pain. See id. at 6 3 . On a scale of

one (minor irritation) to ten (injection at hospital), Blake

rated his average pain level at a six or seven. See id. at 289.

c. Precipitating and Aggravating Factors

According to Blake, sitting or standing in one position for

an extended period triggers the intense peaks in his pain. See

id. at 6 4 . Sitting back in a chair exacerbates the pressure he

feels in his lower back. See id. at 7 6 . Blake also testified

that he can sit in a chair like the one in the hearing room for

about fifteen minutes before he needs to stand up. See id. at

73. Although the ALJ was entitled to factor into his credibility

determination his own observations of Blake at the hearing,

-29- see Ortiz v . Secretary of Health and Human Servs.,

(1 st Cir. 1989) (per curiam), he made no mention of Blake’s

need to change position frequently during the hearing. See,

e.g., Tr. at 6 3 , 73 (comments of Blake’s representative noting

Blake’s need to change position).

d. Type, Effectiveness, and Side Effects of Medication

According to the ALJ, Blake has made only a limited use of

medication to manage his pain. See id. at 248. The evidence

shows, however, that ALJ’s characterization of Blake’s use of

medication is inaccurate.

Since at least 1989, Dr. Brassard prescribed both Motrin and

Darvocet to treat Blake’s pain. See id. at 153 (Dr. Brassard’s

December 1 , 1989 treatment notes). In response to Blake’s

complaint that the Motrin and Darvocet were ineffective, Dr.

Brassard prescribed Tylenol Three (i.e., Tylenol with codeine) in

December 1992. See id. at 163. In addition, there is evidence

in the record that Blake also has been prescribed Medrol

-30- Dosepak,9 Flexeril,10 and Naprosyn.11 See id. at 191-95.

Furthermore, the ALJ failed to consider the evidence

regarding the side-effects of Blake’s medications. For example,

Dr. Brassard’s February 1992 treatment notes indicate that Blake

discontinued his use of phenobarbital and expressed his

preference for no sedation because the medicine had made him

“ugly.” See id. at 163. Similarly, Blake discontinued his use

of Motrin after he experienced rectal bleeding. In place of

Motrin, Blake began to take twenty aspirin per day. See id. at

64-65. Blake testified, however, that excessive aspirin use

9 Medrol is the trademark for preparations of methylprednisolone. Dorland’s Medical Dictionary 1000 (28th ed. 1994). Methylprednisolone is used as an anti-inflammatory. Id. 1032. 10 Flexeril is prescribed, in conjunction with rest and physical therapy, “for relief of muscle spasm associated with acute, painful musculoskeletal conditions.” Physicians’ Desk Reference 1656 (52nd ed. 1998) 11 Naprosyn is prescribed for the treatment of “rheumatoid arthritis, osteoarthritis, ankylosing spondylitis, and juvenile arthritis. . . . [It also is prescribed] for treatment of tendinitis, bursitis, acute gout, and for the management of pain and primary dysmenorrhea.” Physicians’ Desk Reference 2458-59 (52nd ed. 1998).

-31- upsets his stomach. See id. at 290. Blake also stated that when

he takes Darvocet he feels like things move from side to side and

if he tries to fixate on something he becomes nauseous. See id.

at 287.

e. Treatment, Other than Medication

The ALJ reasoned that if Blake’s pain were as severe as he

claimed, treatment notes would have included “more frequent and

involved discussion of pain management . . . Yet, more often than

not, D r . Brassard’s treatment notes contain no mention whatsoever

of strategies to address the claimant’s pain.” Id. at 248-49.

Again, the ALJ overstated the importance of the absence of

certain evidence.

First, Dr. Brassard is Blake’s treating physician for his

general health; he is concerned about all of Blake’s health

problems, including degenerative arthritis, obesity, and

hypertension, see id. at 1 5 7 , not only Blake’s back pain. As a

result, it is not surprising that Dr. Brassard’s treatment notes

from each of Blake’s visits do not include comments on or

-32- observations of Blake’s back condition and pain. See Taylor v .

Chater,

(8th Cir. 1997) (holding that there

were no inconsistencies in record to justify finding claimant not

credible because the “lack of information contained in any of the

reports completed by [the claimant’s] doctors does not qualify as

an inconsistency in the evidence as a whole. The medical reports

certainly made no attempt to catalog [the claimant’s] every pain

and her behavior resulting from the pain”).

Second, the record includes evidence indicating that Blake

did seek forms of treatment other than medication. For example,

in July 1988, Dr. Ramos administered nerve block shots, ultra-

sound, and heat packs. He also sent Blake to physical therapy.

See Tr. at 166 (Dr. Porter’s December 1988 treatment notes). Dr.

Brassard also treated Blake with a nerve block injection. See

Id. at 132 (December 1993 disability report).

Moreover, the ALJ’s analysis of the evidence of alternative

treatment he did mention was inadequate. The ALJ, in part, based

his adverse credibility finding upon what he characterized as

-33- Blake’s “good response to even a short period of physical therapy

in July 1988.” Id. at 249. The only support for this conclusion

appears to be two comments: (1) a comment, “[o]ngoing

improvement,” in a physical therapist’s September 6, 1988

progress notes, see id. at 193; and (2) Blake’s comment to Dr.

Porter in 1988 that he experienced slight improvement due to the

physical therapy, see id. at 166. The ALJ never asked Blake why

he discontinued physical therapy in October 1988. It is unclear

whether Blake unilaterally decided to discontinue physical

therapy or whether his doctor recommended that he stop. The

physical therapist’s final set of progress notes, dated October

7 , 1988, only indicates, after the “Treatment” heading,

“[d]iscontinue physical therapy.” See id. at 195. Before he

could make an adverse credibility determination on this basis,

the ALJ should have developed evidence of whether and how

physical therapy improved Blake’s condition and the reason for

its discontinuation.

-34- IV. CONCLUSION

Because the ALJ overstated the importance of corroborating

objective medical evidence and improperly applied the Avery

factors, I conclude that his decision to discredit Blake’s

complaints of pain is not supported by substantial evidence. See

Da Rosa, 803 F.2d at 26 (holding that remand appropriate where

ALJ’s credibility determination is not supported by substantial

evidence because ALJ failed to consider requisite factors).

Accordingly, I reverse the Commissioner’s decision. On remand,

the ALJ should reassess Blake’s credibility in light of all of

the Avery factors. The ALJ’s adverse credibility determination

also influenced his decision to discount the opinion expressed by

Dr. Brassard in his June 1 , 1995 letter. As a result, the ALJ

should reassess the weight to which Dr. Brassard’s opinion is

entitled in light of a proper credibility analysis.

Plaintiff’s Motion to Reverse and Remand (doc. n o . 6 ) is

granted. Because I act pursuant to sentence four of

(g), the Clerk is instructed to enter judgment in accordance

-35- with this order. See Shalala v . Schaefer,

(1993).

SO ORDERED.

Paul Barbadoro Chief Judge January 2 8 , 2000

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

-36-