Machos v. SSA CV-99-129-M 06/15/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Carol Machos, Claimant

v. Civil No. 99-129-M Opinion No.

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

O R D E R

Pursuant to

(g), claimant, Carol Machos

(formerly, Carol Montminy), moves to reverse the Commissioner's

decision denying her application for Social Security Disability

Insurance Benefits under Title II of the Social Security Act,

(the "Act"). She says the Administrative Law Judge

improperly discounted her subjective complaints of pain,

disregarded her treating physician's residual functional capacity

assessment and, instead, erroneously relied upon the opinion of

non-examining physicians in reaching the conclusion that she was

not disabled. Defendant objects and moves for an order affirming

the decision of the Commissioner. Factual Background

I. Procedural History.

On June 10, 1997, claimant filed an application for

disability insurance benefits under Title II of the Act, alleging

that she had been unable to work since June 6, 1995, due to

carpal tunnel syndrome in both hands. Her application was denied

initially and on reconsideration.

On February 11, 1998, claimant, her attorney, and a

vocational expert appeared before an Administrative Law Judge,

who considered her application de novo. On May 22, 1998, the ALJ

issued his order, concluding that " [a]Ithough claimant is unable

to perform the full range of light work, she is capable of making

an adjustment to work which exists in significant numbers in the

national economy." Transcript at 26. Accordingly, the ALJ

concluded that claimant was not disabled, as that term is defined

in the Act, at any time through the date of his decision. I d .,

at 27 .

2 Claimant then sought review of the ALJ's decision by the

Appeals Council. On March 3, 1999, however, the Appeals Council

denied her request, thereby rendering the ALJ's decision a final

decision of the Commissioner, subject to judicial review.

Subsequently, claimant filed an action in this court, asserting

that the ALJ's decision was not supported by substantial evidence

and seeking a judicial determination that she is disabled within

the meaning of the Act. Claimant then filed a "Motion to Reverse

and Remand Commissioner's Denial of Benefits" (document no. 8).

The Commissioner objected and countered with his own "Motion for

Order Affirming the Decision of the Commissioner" (document no.

11). Those motions are pending.

II. Stipulated Facts.

Pursuant to this court's Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court's record (document no. 10), need not be

recounted here.

3 Standard of Review

I. Properly Supported Findings by the ALJ are Entitled to Deference.

Pursuant to

(g), the court is empowered "to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

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

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

are conclusive if supported by substantial evidence. See

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

Health and Human Services,

(1st Cir. 1991) b

Moreover, provided the ALJ's findings are supported by

substantial evidence, the court must sustain those findings even

when there may also be substantial evidence supporting the

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

(1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n.,

(1966) .

4 claimant's position. See Gwathnev v. Chater,

, 1045

(8th Cir. 1997) (The court "must consider both evidence that

supports and evidence that detracts from the [Commissioner's]

decision, but [the court] may not reverse merely because

substantial evidence exists for the opposite decision."). See

also Andrews v. Shalala,

(9th Cir. 1995)

(The court "must uphold the ALJ's decision where the evidence is

susceptible to more than one rational interpretation."); Tsarelka

v. Secretary of Health & Human Services,

(1st

Cir. 1988) ("[W]e must uphold the [Commissioner's] conclusion,

even if the record arguably could justify a different conclusion,

so long as it is supported by substantial evidence.").

In making factual findings, the Commissioner must weigh and

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

of Health & Human Services,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(1st Cir. 1982)) . It

is "the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

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

[Commissioner] not the courts." Irlanda Ortiz,

.

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

credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaqlia v. Secretary of Health & Human Services,

(1st Cir. 1987) (citing Da Rosa v. Secretary of Health and

Human Services,

(1st Cir. 1986)) .

II. The Parties' Respective Burdens.

An individual seeking Social Security disability benefits is

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

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

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

continuous period of not less than 12 months."

(i)( 1 ) (A). See also 42 U.S.C. § 1382c(a)(3). The Act

places a heavy initial burden on the claimant to establish the

existence of a disabling impairment. See Bowen v. Yuckert, 482

, 146-47 (1987); Santiago v. Secretary of Health and

Human Services,

(1st Cir. 1991). To satisfy that

burden, the claimant must prove that her impairment prevents her

from performing her former type of work. See Gray v. Heckler,

(1st Cir. 1985) (citing Goodermote v. Secretary

of Health and Human Services,

(1st Cir. 1982)).

Nevertheless, the claimant is not required to establish a doubt-

free claim. The initial burden is satisfied by the usual civil

standard: a "preponderance of the evidence." See Paone v.

Schweiker,

(D. Mass. 1982).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

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

disability, as supported by the testimony of the claimant or

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

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

Health and Human Services,

(1st Cir. 1986);

Goodermote,

. Provided the claimant has shown an

7 inability to perform her previous work, the burden shifts to the

Commissioner to show that there are other jobs in the national

economy that she can perform. See Vazquez v. Secretary of Health

and Human Services,

(1st Cir. 1982) . If the

Commissioner shows the existence of other jobs that the claimant

can perform, then the overall burden to demonstrate disability

remains with the claimant. See Hernandez v. Weinberger,

(1st Cir. 1974); Benko v. Schweiker,

(D.N.H. 1982).

When determining whether a claimant is disabled, the ALJ is

required to make the following five inquiries:

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

(2) whether the claimant has a severe impairment;

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

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

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

. See also

. Ultimately,

a claimant is disabled only if her:

physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.

(d) (2) (A) . See also 42 U.S.C. § 1382c(a) (3) (B) .

Discussion

I. Background - The ALU's Findings.

In concluding that Ms. Machos was not disabled within the

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

step sequential evaluation process described in

. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since June 6,

1995. Transcript at 25. Next, he concluded that claimant has

bilateral carpal tunnel syndrome and status post bilateral carpal

9 tunnel release. I d ., at 26. Although he acknowledged that those

impairments are severe, the ALJ concluded that they do not meet

or equal the criteria of any impairments listed in Appendix 1,

Subpart P of the Regulations.

The ALJ next concluded that claimant retained the residual

functional capacity ("RFC") to perform the exertional demands of

light work.2 He noted, however, that claimant's RFC was limited

by her inability to perform repetitive activities involving her

fingers and hands and her lack of fine finger dexterity. In

light of those restrictions, the ALJ determined that claimant was

2 "RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis." Social Security Ruling ("SSR"), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2, 1996) (citation omitted).

10 not capable of returning to her prior job as a solderer in

electronics. Transcript at 26.

Next, the ALJ considered whether there were any jobs in the

national economy that claimant might perform. Relying upon the

testimony of a vocational expert as well as his own review of the

medical record, the ALJ concluded that, notwithstanding

claimant's exertional and non-exertional limitations, which

prevented her from performing the full range of light work, she

"is capable of making an adjustment to work which exists in

significant numbers in the national economy."

Among other

things, the ALJ concluded that claimant could act as a security

or surveillance guard and information clerk or receptionist.

Consequently, the ALJ determined that claimant was not disabled,

as that term is defined in the Act, as of May 22, 1998.

In challenging the ALJ's decision, claimant raises three

issues: (1) that the ALJ failed to properly evaluate her

subjective complaints of pain and improperly discounted her

11 treating physician's opinion that she was totally disabled; (2)

that the ALJ erred by relying upon the vocational expert's

response to an inadequate hypothetical question; and (3) that the

ALJ erred at step three of the sequential analysis by failing to

conclude that claimant's condition met a listed disability.

Because the court concludes that the ALJ's determination

that claimant is capable of performing a limited range of light

work is not supported by substantial evidence, it will focus on

claimant's arguments on that issue.3

3 Parenthetically, the court notes that, notwithstanding claimant's assertion to the contrary, it appears that her condition fails to meet the requirements of the listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.13. First, she did not undergo a series of "staged surgical procedures." Instead, she had two distinct operations, first on her right wrist, and later on her left wrist. Second, listing 1.13 is directed at situations "where restoration of function will require repeated staged surgical procedures over a lengthy period, thus making an individual who would otherwise be capable of substantial gainful employment unavailable for work because of these repeated surgical procedures." Waite v. Bowen,

(7th Cir. 1987) (emphasis supplied). See also Knepp v . Apfe1 ,

(3rd Cir. 2000); Lapinskv v. Secretary of Health & Human Services,

(6th Cir. 1988) . Here, claimant was not rendered unavailable for employment due to any "staged surgical procedures." Instead, she claims that she

12 II. Claimant's Subjective Complaints of Pain.

The ALJ is required to consider subjective complaints of

pain or other symptoms by a claimant who presents a "clinically

determinable medical impairment that can reasonably be expected

to produce the pain alleged."

(d)(5)(A); Avery v.

Secretary of Health and Human Services,

(1st Cir.

1986);

. "[C ]omplaints of pain need not be

precisely corroborated by objective findings, but they must be

consistent with medical findings." Dupuis v. Secretary of Health

and Human Services,

(1st Cir. 1989); see

Bianchi v. Secretary of Health and Human Services,

(1st Cir. 1985) ("The [Commissioner] is not required to take

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

Burgos Lopez v. Secretary of Health and Human Services,

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

impairment is documented, the effects of pain must be considered

is precluded from working because of constant, debilitating pain. Consequently, it would appear that the ALJ correctly concluded that Listing 1.13 is simply inapplicable.

13 at each step of the sequential evaluation process. See

(d) .

A claimant's medical history and the objective medical

evidence are considered reliable indicators from which the ALJ

may draw reasonable conclusions regarding the intensity and

persistence of the claimant's pain. See Avery,

;

(c) (3). However, situations exist in which

the reported symptoms of pain suggest greater functional

restrictions than can be demonstrated by the medical evidence

alone.

When, as here, a claimant complains that pain or

other subjective symptoms are a significant factor limiting her

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

medical evidence contained in the record, the ALJ must consider

additional evidence, such as the claimant's prior work record;

daily activities; location, duration, frequency, and intensity of

pain; precipitating and aggravating factors; type, dosage,

effectiveness, and side effects of any medication taken to

alleviate pain or other symptoms, past or present; treatment,

14 other than medication, received for relief of pain or other

symptoms, past or present; any measures used, past or present, to

relieve pain or other symptoms; and other factors concerning

functional limitations and restrictions due to pain. See

(c)(3); Avery,

. If the

complaints of pain are found to be credible under the criteria,

the pain will be determined to diminish the claimant's capacity

to work. See

(d);

(c) (4).

Here, the ALJ concluded that "[t]he claimant's statement

concerning her impairments and their impact on her ability to

work are not entirely credible." Transcript at 22. In support

of that conclusion, the ALJ observed:

When she was still working she stated she tolerated light duty well, but did not expect the light duty to last. The claimant had reported that she had a 75% decrease in her pain since her treatments began and she was doing a lot of work in her garden. She was doing well and had met the goals of therapy. The claimant is still able to buy groceries, go shopping for clothes, do her banking and go to the post office. She is able to drive and take public transportation. She continues to cook, visit friends, watch television and listen to the radio.

15 Transcript at 22 (citations omitted). Ultimately, the ALJ

concluded that " [although the claimant has some limitations she

would not be precluded from all work activities as supported by

her wide range of activities of daily living." I d .

While the ALJ's credibility determination is entitled to

deference, it must be supported by specific factual findings

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

ALJ's credibility determination is not adequately grounded in the

record insofar as it appears that the ALJ failed to give

sufficient consideration to the factors outlined in

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

and dosage of pain medications; any measures used to relieve

pain; duration, frequency, and intensity of pain; precipitating

and aggravating factors, etc.).

The parties agree that claimant's medical condition is one

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

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

16 Plainly, the ALJ concluded that claimant's complaints of pain

were exaggerated and did not preclude her from performing a

limited range of light work. However, for this court to sustain

that conclusion, the ALJ must identify those factors in the

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

e.g., Kepler v. Chater,

(10th Cir. 1995)

("Credibility determinations are peculiarly the province of the

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

supported by substantial evidence. However, findings as to

credibility should be closely and affirmatively linked to

substantial evidence and not just a conclusion in the guise of

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

See also Social Security Ruling 96-7p (July 2, 1996) ("It is not

sufficient for the adjudicator to make a single, conclusory

statement that 'the individual's allegations have been

considered' or that 'the allegations are (or are not) credible.'

It is also not enough for the adjudicator simply to recite the

factors that are described in the regulations for evaluating

symptoms. The determination or decision must contain specific

17 reasons for the finding on credibility, supported by the evidence

in the case record, and must be sufficiently specific to make

clear to the individual and to any subsequent reviewers the

weight the adjudicator gave to the individual's statements and

the reasons for that weight.").

After carefully reviewing the record and, in particular, the

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

necessarily concludes that his findings are not supported by

substantial evidence. First, although the ALJ noted that

"claimant is still able to buy groceries, go shopping for

clothes, do her banking and go to the post office" and "continues

to cook, visit friends, watch television and listen to the

radio," (transcript at 22), he neglected to address any of

claimant's complaints that suggested her pain was, in fact,

disabling or her assertion that her condition had worsened

substantially since her wrist surgeries. See Transcript at 49.

For example, the ALJ's written decision fails to address

claimant's reported inability to perform a number of routine

18 households tasks (e.g., wash windows, clean the floor, style her

hair, open food jars), or her inability to perform gardening or

hobby/craft activities. See Transcript at 154. And, while

claimant acknowledged that she retained the ability to cook for

herself, she also stated that the pain in her wrists affected how

long that process takes as well as her decisions regarding what

types of food she might prepare. I d ., at 153.

Nor does the ALJ's written decision address claimant's

testimony concerning the need to stagger household chores, so

that she could perform only one major chore each day, or her

claim that severe pain precludes her from writing for more than

an hour, or her claim that she has difficulty lifting grocery

bags (even when they are loaded in such a way as to make them

fairly light). See Transcript at 40. Claimant's testimony, her

daily routine, and her medical records appear to present a fairly

consistent picture of a person who suffers from substantial,

debilitating pain and who is unable to perform relatively routine

daily tasks without assistance or severe and long-lasting

19 discomfort. To the extent that the ALJ concluded that her

testimony was exaggerated or inconsistent (either internally or

with her medical record ) , he failed to discuss that point in his

written order.

As for the ALJ's observation that claimant retains the

ability to use public transportation (she does not have a car ) ,

visit friends, watch television, and listen to the radio, none of

those activities necessarily undermines her claim that she

suffers from disabling wrist pain. She does not, for example,

assert that she is precluded from sitting or standing for

prolonged periods of time, a claim that might arguably be

undermined by the fact that she engages in activities such as

using public transportation or watching television.

The ALJ also did not address claimant's inability to use

most pain medications (due to potential adverse interactions with

other medications she is taking as a result of her heart surgery)

or her hesitancy to undergo any additional surgical procedures

20 due to risks associated with having to stop her Coumadin therapy

for three days in advance of any such surgery. See Transcript at

42. Nor did he address her claim that despite taking between one

and four daily doses of Tylenol for pain (apparently the only

pain medication she is permitted to us e ) , she claimed to have

realized only modest pain relief. Finally, the ALJ's written

order does not discuss any possible "precipitating or aggravating

factors" which might contribute to claimant's pain. See

(c)(3)(iii). Here, claimant's medical records

suggest that her condition may be aggravated by her depression

(stemming from her then relatively recent divorce). That

depression might also be coloring her willingness to undergo

additional testing and/or surgery.

The medical testing that claimant has undergone

unambiguously confirms that she suffers from bilateral carpel

tunnel syndrome. However, that testing cannot confirm or deny

claimant's assertions of disabling pain. Consequently, an

assessment of her credibility is particularly important. By

21 discounting claimant's description of her pain, and by rejecting

the opinion of her treating physician in favor of the opinion of

the non-examining Disability Determination Services physicians

who reviewed claimant's medical records, the ALJ concluded that

claimant was capable of performing a range of light work

(involving the frequent lifting of up to 10 pounds, and

infrequent lifting of up to 20 pounds). However, the basis for

the ALJ's decision to discount claimant's testimony is not

entirely clear from his written order. The ALJ may not have

considered all of the relevant factors bearing on claimant's

credibility, because his written order fails to discuss them.

Where the objective medical evidence of the extent of

claimant's pain is sparse, an ALJ must provide thorough written

discussion of the Avery factors in support of his or her

credibility determination, otherwise meaningful review is simply

not possible. Here, such a discussion is lacking and, based upon

the record before it, the court cannot conclude that the ALJ's

credibility determination was based upon substantial evidence.

22 Because that credibility determination was a substantial factor

in the ALJ's conclusion that claimant can perform a range of

light work, a remand to the ALJ for further discussion of the

factors outlined in Avery and

is necessary.

Conclusion

For the foregoing reasons, the court concludes that the

ALJ's written order discussing his assessment of claimant's

credibility is not adequately supported in record. And, because

that credibility determination (along with the decision to reject

the disability opinion of claimant's treating physician) played a

substantial role in the ALJ's determination that claimant was not

disabled, remand to the ALJ for further elaboration on that point

is appropriate. Therefore, pursuant to sentence four of

(g), this matter is remanded to the ALJ for

reconsideration, clarification of his original order, and, if he

deems necessary, further hearing(s).

SO ORDERED.

23 Steven J. McAuliffe United States District Judge

June 15, 2000

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