Rallis v. SSA CV-01-303-JD 03/29/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ekaterini F. Rallis

v. Civil No. 01-303-JD Opinion No.

Jo Anne B. Barnhart, Commissioner, Social Security Administration

O R D E R

The plaintiff, Ekaterini Rallis, brings this action pursuant

to

(g), seeking judicial review of the decision

by the Commissioner of the Social Security Administration,

denying her application for social security benefits under Title

II of the Social Security Act. Rallis contends that the

Administrative Law Judge ("ALJ") failed to properly assess her

subjective complaints of pain so that the determination that she

is not disabled is not supported by substantial evidence. The

Commissioner moves to affirm the decision.

Background

Ekaterini Rallis claims disability due to injuries she

sustained in an automobile accident on July 31, 1993. In

particular, she claims a back injury that has limited her

functional capacity. Rallis's eligible status expired on

December 31, 1998. Rallis is a native of Greece and came to the United States

in 1980. She speaks and reads very little English, although she

had a tenth grade education in Greece. She previously worked in

a shoe factory cementing soles onto shoes. She was forty-three

years old in December of 1998.

Following the accident on July 31, 1993, Rallis was taken to

Wentworth Douglass hospital where an x-ray showed a slight

narrowing of the C5-6 disc space in her neck. She saw Dr.

Lampesis for back pain on August 2, 1993. On examination, he

found Rallis's range of motion was limited and diagnosed cervical

and lumbar sprains. An x-ray on August 18, 1993, showed a mild

lumbar scoliosis convexed to the right and a transitional left L5

transverse process.

Rallis saw Dr. Mitchell Keltey for a consultation on August

24, 1993. Dr. Keltey noted a full range of motion in the

cervical spine but severely limited forward flexion and pain with

lateral bend. He noted that neurologically her arms were within

normal limits and that the deep tendon reflexes in her legs were

also normal. The x-rays showed mild right dextroscoliosis, spur

formation at multiple levels of her spine, significant plate

collapse, and some decrease in bone mass. Dr. Keltey diagnosed

cervical and lumbar muscle inflammation and degenerative disease

on those regions. He prescribed very active physical therapy and

2 a ten day course of a pain medication.

From January 25, 1994, to September 26, 1996, Rallis treated

with Dr. Harilaos Sakellarides on a monthly basis. Her symptoms

were reported to be pain and stiffness in her lumbosacral and

cervical spine with radiation to her legs, arms, and thighs. Dr.

Sakellarides prescribed a variety of pain medications during the

period and advised Rallis to wear a corset. He also advised her

to avoid strenuous activities such as lifting, bending, pushing,

and pulling.

A cervical spine x-ray done on February 11, 1994, showed

minimal degenerative changes at C5-6. An MRI of her lumbosacral

spine on February 1, 1994, showed disc narrowing and mild spinal

stenosis at Ll-2, a posterior bulge into the vertebral canal and

a mild bulging at L4-5. An electromyography/nerve conduction

study done on April 20, 1994, showed lumbar radiculopathy at L4

bilaterally, root irritation on the left at L5 and cervical

radiculopathy with nerve root irritation at C6. A second MRI of

her lumbosacral spine in September of 1994 showed a moderate to

marked posterior bulge at Ll-2 and slight bulge at L4-5.

Rallis met with Dr. Mats Agren on January 20, 1997, for a

second surgical opinion. Dr. Agren found Rallis had an eighty

percent range of motion in her neck, thirty percent flexion in

her lower back, and seventy percent extension, bend, and

3 rotation. Dr. Agren also noted other neurological signs. He

diagnosed neck and lower back pain with lumbar radiculitis. He

encouraged Rallis to walk and do conditioning, to moderate her

medication, and to have injections.

Dr. Agren noted that an injection of Lidocaine at L5 gave

Rallis two weeks of good pain relief which allowed her to be

quite active. On May 8, 1997, Rallis told Dr. Agren that she was

sleeping better but that overall her pain was unchanged. Her

pain medication was beneficial allowing her to walk on her toes

and heels and to do deep knee bends. By June, Rallis reported

that her pain was back to the pre-injection level and that she

continued to use pain medication which provided good relief.

A CT scan of her lumbosacral spine in August of 1997 showed

a herniated central portion of the disc at L4-5 with fragments

having migrated down the spine and subtle under-filling of the L5

nerve root. A myelogram done the same day also showed subtle

decreased filling of the left L5 nerve root. Dr. Agren stated in

October of 1997 that Rallis had significant back pain with some

referral down her leg and that her pain had not changed since

1993.

Rallis had a consultation with neurosurgeon Dr. Clinton F.

Miller on December 19, 1997. Dr. Miller noted that Rallis had

full motion in her neck. He observed moderate pain in the left

4 sciatic and lumbosacral spine junction with palpation. She was

able to stand and walk on her heels and tiptoes without

difficulty, and her gait was normal although cautious and

protective to avoid pain. She had fifty percent forward flexion

and fairly full extension and lateral bending at the waist. Her

reverse straight leg raising was normal but her forward straight

leg raising was positive at forty-five degrees bilaterally. Dr.

Miller diagnosed chronic left L5 radiculopathy, left L5 lateral

recess stenosis, chronic Ll-2 diffuse central and right-sided

disc protrusion, chronic cervical musculoskeletal strain injury

with degenerative disc disease at C5-6, C6-7, C7-T1, and reactive

s pondylo s i s .

Rallis saw Dr. Miller next in February of 1999. He noted

that her walk had improved and that straight leg raising was

normal. Her range of motion on forward flexion was fifty

percent, forty percent on extension, and full lateral bending.

He diagnosed chronic left lumbosacral radiculopathy with L5

distri b u t i o n .

On July 24, 1999, Dr. Saro Palmeri, a Disability

Determination Services non-examining consultant, completed a

physical residual capacity assessment on the plaintiff finding

that she could frequently lift ten pounds, occasionally lift

twenty pounds and had an unlimited ability to push and pull. She

5 could sit, stand, and walk for at least six hours out of an eight

hour day. She could only occasionally climb, stoop, and crawl,

and was to avoid exposure to extreme cold.

Rallis's third MRI of the lumbar spine on August 10, 1999,

showed a right posterior disc protrusion at Ll-2, causing some

deformity at the thecal sac, a minimal posterior disc bulge at

L2-3, and some loss of signal at Ll-2, L3-4, and L4-5, with

degenerative changes. Dr. Miller noted that the previous disc

bulge at L4-5 was no longer present and that Rallis's complaints

of radiculopathy did not correlate with her disc abnormality at

Ll-2. He recommended physiatry and an aggressive course of

physical therapy.

A vocational evaluation, focusing on Rallis's academic

abilities, was done in October of 1999 by David Camlin. The

tests were given in English, and due to Rallis's language

difficulty, her attorney translated for her. Her achievement

test scores were very low, and her Career Ability Placement

Survey scores were also low. Camlin concluded that Rallis was

not competitively employable.

A second physical residual capacity assessment was completed

by a non-examining consultant on December 21, 1999. The

consultant found the same abilities and limitations as the

assessment done in July of 1999. Dr. Frank Graf completed a

6 medical report for the Social Security Administration in

September of 2000. Dr. Graf diagnosed Ll-2 intervertebral disc

herniation, L4-5 intervertebral disc herniation with left

lateralization, chronic cervical pain with bilateral arm numbness

and tingling and radiculopathy into the left leg. He concluded

that Rallis could lift ten pounds, sit for two to four hours in

an eight hour day and for one hour without interruption, and

stand and/or walk for one hour in an eight hour day, and for ten

to fifteen minutes without interruption. She could not stoop,

crouch, kneel, or crawl.

A hearing was held on October 30, 2000. Rallis was

represented by counsel and testified at the hearing. Rallis's

husband and two vocational experts, David Camlin and James

Parker, also testified.

Rallis testified that she had trouble sleeping because of

pain, and Rallis and her husband described her daily activities

as being limited by her pain. Rallis testified that she could

lift a gallon of water and could sit or stand for less than one

hour at a time. Mr. Rallis testified that his wife was not able

to ride in the car for very long and could do very little cooking

or housework. Rallis said that she took Ibuprofen for pain.

Parker testified that a person of Rallis's age, education,

past relevant work, and capacity for sedentary work could work as

7 a preparer. When Rallis's counsel added a requirement that she

be permitted frequent breaks of ten or fifteen minutes every

hour, Parker said that would preclude all work. The ALJ posed a

hypothetical assuming Rallis's age, education, past work, and a

residual functional capacity for light and sedentary work with a

sit/stand option and restrictions on climbing, balancing,

stopping kneeling, crouching, crawling, and exposure to extreme

cold, heights, or machinery. Park testified that such a person

could work as a hand packer, photograph finisher, and a preparer.

Adding restrictions that she could only sit or stand for under an

hour, lift under ten pounds, requires fifteen minute breaks every

hour, and may have to lie in bed for up to two weeks at a time

could preclude all work. The ALJ's last hypothetical included

limitations of occasionally lifting up to ten pounds, standing or

walking for one hour during the day, and for ten to fifteen

minutes without interruption, sitting for two to four hours per

day and for one hour without interruption, and with the other

postural limitations. Parker testified that those limitations

would preclude all work. Camlin testified about the results of

the tests he gave Rallis.

The ALJ found that Rallis's back condition constituted a

severe impairment, but that it did not meet or equal the criteria

of the listed impairments. He determined that she had a residual functional capacity to lift and carry up to twenty pounds

occasionally and up to ten pounds frequently. She needed the

freedom to alternate sitting and standing at will. She should

avoid working at heights or around machinery; tasks requiring

stooping, crawling, or more than occasional climbing or

balancing, kneeling, or crouching; and exposure to extreme cold.

The ALJ found that Rallis could not return to her former work but

that work existed in the relevant economies that she could do,

based on the vocational expert's testimony.

The ALJ determined that Rallis was not disabled. The

Appeals Council denied review in June of 2001. Denial of review

made the ALJ's decision the decision of the Commissioner.

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 S e r v s .,

(1st Cir. 1996) (citing Sullivan v. H u d s o n ,

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

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)

9 (quotation o m i t t e d ) . 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

S e r v s .,

(1st Cir. 1991).

Discussion

Rallis's application was denied at step five of the

sequential evaluation process set forth in

At step five, the Commissioner has the burden to show that

despite the applicant's severe impairment, she retained the

residual functional capacity to do work other than her prior work

and that work the claimant can do exists in significant numbers

in the relevant economies. See Seavev v. B a r n h a r t .

, 5

1The 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 (5) whether the impairment prevents the claimant from doing any other work.

See

.

10 (1st Cir. 2001); Heqqarty v. Sullivan,

(1st

Cir. 1991). Rallis contends that the ALJ did not properly

evaluate her subjective complaints of pain, and, as a result, did

not credit her description of the severity of her pain and its

disablinq effects on her activities.2

An ALJ is required to consider a claimant's complaints of

pain in makinq a disability determination. See

04.1529 ( a ) . The ALJ must first determine whether the claimant

has a "medically determinable impairment that could reasonably be

expected to produce the claimant's symptoms, such as pain." §

4 04.1529 ( b ) . If such an impairment is found, the ALJ must then

evaluate the intensity, persistence, and limitinq effects of the

symptoms, considerinq the claimant's objective medical evidence

alonq other evidence, to determine whether the symptoms limit the

claimant's capacity for work. See § 404.1529(c).

The Commissioner recoqnizes that symptoms such as pain may

show impairments of qreater severity than is demonstrated by the

objective medical evidence. See § 4 0 4 . 1 5 2 9 ( c ) (3); see also Avery

2Rallis asserts in a footnote that the ALJ erred, as a matter of law, in determininq that her impairments did not meet or equal a listed impairment because he did not provide an explanation about which listed impairments he considered and why Rallis's impairment did not meet or equal those. Since that arqument is not developed as a basis for reversinq the decision of the Commissioner, it is not considered here.

11 v. Sec'v of Health & Human S e r v s . ,

(1st Cir.

1986). A claimant's "complaints of pain need not be precisely

corroborated by objective findings, but they must be consistent

with medical findings." Dupuis v. Sec'v of Health & Human

S e r v s .,

(1st Cir. 1989). The ALJ must consider

the following factors, sometimes referred to as Avery factors, in

addition to the medical evidence, in evaluating a claimant's

symptoms of pain:

(l)the claimant's daily activities; (2) the location, duration, frequency, and intensity of the claimant's symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication that the claimant takes or has taken to alleviate his symptoms; (5) treatment, other than medication, the claimant receives or has received for relief of his symptoms; (6) any measures the clamant uses or has used to relieve symptoms; and (7) other factors concerning the claimant's limitations and restrictions due to pain or other symptoms.

Ranfos v. M assanari.

, at *8 (D.N.H. Jan. 24, 2002)

(citing § 404.1529(c)(3)).

"The credibility determination by the ALJ, who observed the

claimant, evaluated the demeanor, and considered how that

testimony fit in with the rest of the evidence, is entitled to

deference, especially when supported by specific findings."

Frustaglia v. Sec'v of Health & Human Servs.,

(1st Cir. 1987). Ordinarily, the ALJ's findings are conclusive

when supported with substantial evidence. See Nquven v. C h a t e r ,

12

(1st Cir. 1999) . The ALJ's findings are not

conclusive "when derived by ignoring evidence, misapplying the

law, or judging matters entrusted to experts."

The ALJ found that Rallis's complaints of functionally

limiting pain were only partially credible. He concluded that

she retained the residual functional capacity to do light and

sedentary work, with some additional restrictions, and that work

existed in the relevant economies that she could do. Rallis

contends that the ALJ failed to consider all of the evidence

pertinent to her pain symptoms and concluded that she was not

disabled based on the legally erroneous standard that her

limitations due to pain did not prevent her from all daily

activities.

The ALJ's consideration of Rallis's objective medical

evidence selectively highlights evidence of a lack of physical

impairments while ignoring the vast bulk of the medical evidence

which thoroughly documents Rallis's chronic back condition. In

addition, the ALJ misconstrued some of the evidence, stating that

all of her doctors recommended aggressive physical therapy, when

only Dr. Miller made that recommendation, and suggesting that her

straight leg tests were well within normal, when the reported

test results indicate limitations. The ALJ noted that the bulge

at L4-5 was no longer evidence in the MRI done in 1999, six

13 months after her eligible status expired, which does not rule out

the earlier MRI results showing a bulge of moderate size at L4-5,

along with other spinal abnormalities that are documented

throughout the record.

The ALJ also noted that Rallis testified that steroid

injections were not effective in relieving her pain, despite the

fact that one injection gave her two weeks of relief. The ALJ

failed to note or distinguish Dr. Miller's report in August of

1999 that Rallis had undergone multiple injections without any

enduring relief. The ALJ appeared to put particular emphasis on

Dr. Miller's report in August of 1999 that Rallis had repeatedly

solicited a disability letter from him, without explaining the

significance of that information. To the extent the ALJ found

that Rallis was not disabled based on his findings concerning the

medical evidence, his findings are not entitled to deference as

they in part selectively ignored and misconstrued the evidence.

See N q u v e n ,

.

The ALJ concluded that "[w]hile the record reflects that

[Rallis] may have some difficulty performing her daily

activities, her back and neck pain do not limit all such

activities." Record at 24-25. The ALJ found that despite her

pain Rallis was able to visit with family, take trips to local

greenhouses, although she could no longer garden herself, do

14 laundry with assistance from her family, and accompany her

husband to do shopping. The ALJ further found that Rallis spent

her days reading and watching television. The ALJ did not

consider Rallis's and her husband's testimony about the change in

her activities since the accident or her inability to do

housework or cook anything but simple meals.

Even if the ALJ's limited findings as to Rallis's daily

activities were properly supported, his conclusion that she was

not disabled cannot stand if he applied an erroneous legal

standard. See N q u v e n ,

. A social security

claimant need not be completely disabled from all activities to

be disabled for purposes of social security benefits. See, e.g.,

Balsamo v. C h a t e r .

(2d Cir. 1998); Baumaarten

v. C h a t e r .

(8th Cir. 1996); Smith v. C a l i f a no,

(3d Cir. 1981). A claimant need not be an

invalid to be disabled for purposes of social security benefits,

and activities in pursuit of important goals such as household

tasks, done while enduring pain, do not necessarily undermine a

finding of disability. See Balsamo,

.

Because it appears that the ALJ concluded that Rallis was

not disabled based in part on findings that ignored or

misconstrued the record and because her back and neck pain did

not limit all of her activities, the decision is based upon legal

15 and factual error. Therefore, the decision is remanded for

further proceedings. See S e a v e v ,

.

Conclusion

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

(document no. 6) is granted only to the extent that the case is

remanded for further proceedings. The Commissioner's motion to

affirm (document no. 7) is denied.

As this is a sentence six remand, the clerk of court shall

enter judgment and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

March 29, 2002

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

16