Lovely v. SSA CV-00-196-JD 10/20/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Raymond Lovely

v. Civil No. 0 0-19 6-JD Opinion

Kenneth S. Apfel, Commissioner, Social Security Administration

O R D E R

The plaintiff, Raymond Lovely, brings this action pursuant

to

(g) seeking review of the decision of the

Commissioner to deny his claim for Title II social security

benefits. Lovely challenges the Commissioner's decision on the

grounds that the Administrative Law Judge ("ALJ") failed to

properly assess his subjective complaints of pain and the

severity of his impairment due to depression, and failed to

consider the combined effects of his physical and mental

impairments. Lovely moves to reverse the decision of the

Commissioner, and the Commissioner moves to affirm.

Background1

Raymond Lovely applied for disability benefits in November

of 1996, alleging a disability since October of 1995 after

1The background facts are taken from the parties' joint statement of material facts. surgery on his right shoulder. His application was denied on

initial consideration and on reconsideration. He requested an

administrative hearing, which was held in July of 1997, and the

ALJ denied his application on June 20, 1998. The Appeals Council

denied his request for review. Therefore, the ALJ's decision is

the final decision of the Commissioner.

Lovely has included in the record here two evaluation forms

that were completed by his treating doctors in 1999, after the

ALJ rendered his decision on Lovely's application. The forms

were submitted to the Appeals Council, but the Council denied

review. Lovely argues that the forms should be considered here

as part of the administrative record. The Commissioner objects,

arguing that the new evidence may only be considered for purposes

of remand, not reversal, of the Commissioner's decision.

The circuits are split as to whether and to what extent the

court may consider new evidence that was submitted only to the

Appeals Council, and the First Circuit has not decided the

question. See Ward v. Commissioner of Social Security,

, 657 n.2 (1st Cir. 2000) . Those circuits that deem new

evidence, submitted only to the Appeals Council, to be part of

the administrative record rely on the Commissioner's regulation,

(b), that permits new evidence to be submitted

to the Appeals Council. See, e.g., Berqmann v. Apfel,

2 1065, 1069 (8th Cir. 2000); Schaal v. Apfel,

, 505

n.8 (2d Cir. 1998). In order to be considered by the Appeals

Council, however, new evidence must relate to the period on or

before the date of the ALJ's decision. See § 404.970(b).

In this case, the two forms submitted to the Appeals Council

were completed after the ALJ rendered his decision on June 20,

1998. Nothing in the forms suggests that they pertain to

Lovely's condition prior to June of 1998. Therefore, the new

evidence should not have been considered by the Appeals Council

and is not properly part of the record here. See, e.g., Webb v.

Apfel.

at *3 (W.D.N.Y. Aug. 24, 2000) .

Raymond Lovely is a high school graduate, and he was fifty-

three years old in June of 1998 when the ALJ denied his

application for benefits. He worked as a cable television

installer and repairman until October of 1995. He will remain

insured for purposes of Title II benefits through the end of

2001.

After experiencing pain in his shoulder for several months.

Lovely underwent arthroscopic surgery on his right shoulder in

October of 1995. Dr. Stanley Makman, Lovely's orthopedic

surgeon, reported that although he had healed well in November of

1995, he continued to experience some pain in the shoulder and

then in his neck, particularly with overhead activities, through

3 July of 1996. Dr. Makman initially stated that Lovely could do

at least light to medium work that did not involve lifting more

than ten pounds overhead with his right arm, and could otherwise

easily lift fifty pounds. In June of 1996, in response to

Lovely's job requirements. Dr. Makman decided to release him to

return to work on an unrestricted basis for a trial period.

Lovely nevertheless lost his job. A functional capacity

evaluation in December of 1996 showed that Lovely was able to do

work at a medium exertional level, but not continuous or

repetitive overhead reaching with his right arm.

In March of 1997, Lovely reported to Dr. Robert Englund, his

primary care physician, that he continued to have pain and

disability in his right shoulder and arm, primarily diffuse

aching. Dr. Englund noted that his shoulder rotation was only

minimally impaired. Dr. Englund set up an appointment with Dr.

Roger Hansen, an orthopedic surgeon, to evaluate his shoulder.

Dr. Hansen examined Lovely in April of 1997 with complaints

of pain in his shoulder radiating into his neck and arm.

Lovely's only medication was ibuprofen. On examination. Lovely

showed a full range of neck and shoulder motion. A few minutes

after the testing Lovely complained of a recurrence of neck and

arm pain. X-rays of his neck and right shoulder were

"unremarkable." A neurological examination in May of 1997 showed

4 normal strength, reflexes, and sensation in both arms. An

electromyographic examination also showed normal results. Dr.

Hansen did not advise surgery, but recommended continued

management of Lovely's symptoms.

The state agency physicians who reviewed Lovely's medical

records in December of 1996 and March of 1997 concluded that he

was able to perform work at a medium exertional level.

Lovely had been treated for depression by Randall O'Brien, a

psychiatric social worker, sporadically since 1984. In March of

1997, O'Brien noted that Lovely said that he was feeling "down"

and lacking motivation. Lovely acknowledged that he was drinking

three to four large beers each night and sometimes more on

weekends. O'Brien noted that his efforts to emphasize to Lovely

the need to curtail his drinking had little effect.

In June of 1997, Lovely told Dr. Englund that he was

discouraged, but Dr. Englund did not see signs that Lovely was

significantly depressed. When Lovely told Dr. Englund that he

did not want to return to work because he would lose his

disability benefits. Dr. Englund pushed him to do volunteer work

as an alternative.

In July of 1997, O'Brien reported that Lovely had suffered

from depression for many years but had never been seriously

suicidal or required hospitalization. O'Brien had recommended

5 anti-depressants many times over the years of counseling, but

Lovely steadfastly refused that form of treatment. Lovely also

was not interested in substance abuse therapy. O'Brien stated

that he believed that Lovely's depression had interfered with his

ability to function over the course of many years.

Lovely, who was represented by counsel, testified at his

administrative hearing held on July 8, 1997. He said that he had

constant pain from his right shoulder blade up through his neck

and ear to his eye. He testified that ordinary household work,

holding a newspaper, and driving were painful. He said that

ibuprofen provided only partial and temporary relief.

He also testified that he had seen Randall O'Brien for

counseling for depression and increased drinking. He said that

he did not take anti-depressants, recommended by O'Brien, because

he did not feel that he needed medication and he felt he should

be able to deal with his problems on his own. He said that his

mood fluctuated and that when he was most depressed, he did not

feel like doing anything.

After the hearing, the ALJ sent interrogatories to a

vocational expert. The ALJ asked the vocational expert to assume

that the claimant was "limited from overhead lifting and

reaching, repetitive right upper extremity movements, and use of

vibratory tools with the right upper extremity." J t . Statement

6 at 9. In response, the vocational expert provided a list of

nineteen unskilled light and sedentary jobs that a claimant with

the described limitations could do. Counsel for Lovely did not

submit interrogatories to the vocational expert.

The ALJ found that Lovely's shoulder condition was a severe

impairment that prevented him from returning to his previous work

as a cable television technician. The ALJ concluded that

Lovely's depression was not a mental illness that constituted a

severe impairment. The ALJ also did not fully credit Lovely's

statements concerning his shoulder impairment and its effect on

his ability to work. The ALJ decided that Lovely was capable of

performing light work that did not require overhead reaching or

lifting, repetitive motion with his right arm, or use of

vibratory tools. Based on the vocational expert's interrogatory

answers, the ALJ determined that jobs existed that Lovely could

do and that he was not disabled.

Standard of Review

The court must uphold a final decision of the Commissioner

denying benefits unless the decision is based on legal or factual

error. Manso-Pizarro v. Secretary of Health and Human Servs.,

(1st Cir. 1996) (citing Sullivan v. Hudson,

(1989)). The Commissioner's factual findings are

7 conclusive if based on substantial evidence in the record.

(g). Substantial evidence is "such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion." Richardson v. Perales,

(1971)

(quotation omitted). The Commissioner's findings are not

conclusive "when derived by ignoring evidence, misapplying the

law, or judging matters entrusted to experts." Nguyen v. Chater,

(1st Cir. 1999). In making the disability

determination, "[i]t is the responsibility of the [Commissioner]

to determine issues of credibility and to draw inferences from

the record evidence." Irlanda Ortiz v. Secretary of Health and

Human Servs.,

(1st Cir. 1991) .

______________________________ Discussion

Lovely's application was denied at step five of the

sequential evaluation process set forth in

2 The ALJ is required to make the following five inquiries when determining if a claimant is disabled:

(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 At the fifth step, the Commissioner has the burden to show that

despite the claimant's severe impairment, he retained the

residual functional capacity to do work other than his prior work

during the covered period and that work the claimant can do

exists in significant numbers in the relevant economies. See

Heggartv v. Sullivan,

(1st Cir. 1991) . Lovely

contends that the Commissioner's decision should be reversed

because the ALJ did not properly assess the credibility of his

complaints of pain, the severity of his mental impairment due to

depression, and the effect of the combination of his mental and

physical impairments. As a result. Lovely argues, the

hypothetical posed to the vocational expert did not accurately

reflect his functional limitations and, therefore, the vocational

expert's opinion does not constitute substantial evidence in

support of the ALJ's decision.

A. Pain

When a claimant alleges disability due to pain, in assessing

the claimant's residual functional capacity, the ALJ must first

determine whether the claimant has a medically determinable

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

See

.

9 impairment that is reasonably likely to produce the pain claimed.

See

(a) and (b); Nquven,

. If

so, the ALJ must assess the severity of the pain and the extent

to which pain impedes the claimant's ability to work by

considering all of the pertinent evidence of record including

"claimant's statements, opinions of treating physicians, reports

of claimant's activities and claimant's course of treatment."

I d ., see also DaRosa v. Secretary of Heath and Human Servs.,

(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 Servs.,

(1st Cir. 1989) .

The ALJ in this case provided very little analysis in

support of his finding that Lovely's statements concerning his

impairment were not entirely credible. After reciting the

applicable standard for assessing a claimant's subjective

complaints and finding that Lovely "does in fact have a disabling

impairment," the ALJ largely ignored the factors necessary for

assessing the severity of any impairment caused by pain. The ALJ

found that Lovely was released by Dr. Makman, his orthopedic

surgeon, for full duty work and that a neurological evaluation

revealed right shoulder arthalgia (which means pain), but no

evidence of the cause. The ALJ concluded that there was "no

10 neurological explanation for the level of pain alleged," which is

apparently the sole basis for the ALJ's determination that

Lovely's subjective complaints were not credible.

Having found that Lovely had a severe impairment capable of

causing pain, the ALJ was obligated to determine the extent of

the pain in light of the applicable factors and make specific

findings in support of his determination. See DaRosa,

. Dr. Makman's decision to release Lovely to full work says

little about Lovely's level of pain since the effort was

unsuccessful and other capacity assessments were more

restrictive. The results of testing by Dr. Ruel do support the

ALJ's finding that there is no direct neurological explanation

for the level of pain alleged.

The social security regulations, however, recognize that

pain may indicate a more severe impairment than can be documented

by medical evidence. See § 404.1529(c)(3). The ALJ did not

address the other factors that are necessary for assessing a

claimant's subjective complaints of pain. See id.; Avery v.

Secretary of Health and Human Servs.,

(1st Cir.

1986). In response to questions by his attorney. Lovely

testified at the hearing about the frequency, extent, and

duration of the pain in his shoulder, neck, and face; about his

treatment and medication; and about his functional restrictions

11 and daily activities. The ALJ did not inquire as to any of those

factors, nor did the ALJ address those factors in his findings.

The ALJ also did not make findings based on his own observations

of Lovely at the hearing. In sum, the ALJ failed to properly

assess Lovely's subjective complaints of pain in this case. See

Frustaqlia v. Secretary of Health and Human Servs.,

(1st Cir. 1987); Bazile v. Apfel,

(D. Mass.

Sept. 20, 2000); Aguiar v. Apfel,

(D.

Mass. 2000); Blake v. Apfel.

(D.N.H. Jan. 28,

2000).

Because the ALJ failed to apply the appropriate standard in

assessing the credibility of Lovely's statements about the extent

of his impairment, his finding is not conclusive. See Nquven.

. The Commissioner's decision that Lovely was not

disabled depends heavily on the ALJ's credibility finding.

Therefore, the decision must be vacated and the case remanded for

further proceedings. See DaRosa,

.

B. Depression

Lovely also contends that the ALJ erred in not finding that

his depression was a severe impairment, or that even if it were

not severe, depression in combination with his physical

impairment caused him to be disabled. Lovely sought counseling

12 with a clinical social worker, Randall O'Brien, over a period of

years. In March of 1997, O'Brien noted that Lovely reported

depression and alcohol consumption. In July, O'Brien stated that

Lovely had suffered from depression for many years which did not

require hospitalization, but interfered with his ability to

function. O'Brien also said that Lovely steadfastly refused

treatment with anti-depressants and refused substance abuse

therapy. The ALJ found that Lovely did not have a severe

impairment due to depression and did not further consider

depression in his analysis.

The ALJ properly determined that as a social worker,

O'Brien's opinion about Lovely's mental health was not entitled

to deference, and the ALJ was entitled to reject the opinion.

See

(a). The ALJ found that the record of a

lack of a need for treatment demonstrated that Lovely did not

have a severe mental impairment. In addition, since Lovely

rejected the treatment alternatives suggested by O'Brien, without

providing a good reason, he cannot rely on depression as an

impairment.3 See

(b); Tsarelka v. Secretary

of Health and Human Servs.,

(1st Cir. 1988) .

3Although the Commissioner also argues that Lovely's alcohol use bars his claim for mental impairment, the ALJ made no findings as to the materiality of alcohol use on Lovely's mental status. See 20 C.F.R. 404.1535(b) (1) .

13 Based on the evidence in the present record. Lovely has not

shown that the ALJ erred in finding that his depression was a

severe impairment. Since the record lacks evidence that

depression, even if not a severe impairment, significantly

affected Lovely's ability to work when combined with his shoulder

impairment, the ALJ also did not err in failing to consider the

combined effect. Since Lovely's insured status has not yet

expired, on remand, he may present new evidence if such exists,

of any of his claimed impairments.

Conclusion

For the foregoing reasons, the claimant's motion to reverse

the decision of the Commissioner (document no. 6) is granted in

part, in that the decision is vacated and the case is remanded

for further proceedings. The Commissioner's motion to affirm

(document no. 8) is denied. As this is a "sentence four" remand,

the clerk of court shall enter judgment accordingly and close the

case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

October 20, 2000

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

14