Audette v. SSA CV-04-178-JD 11/17/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary D. Audette

v. Civil No. 04-178-JD Opinion No.

Jo Anne B. Barnhart, Commissioner, Social Security Administration

O R D E R

Mary D. Audette seeks judicial review, pursuant to

(g) and 1383(c)(3), of the Commissioner's decision denying

her application for Social Security Disability Benefits and

Supplemental Security Income. The Commissioner denied her

application in 2000. On judicial review in 2002, that decision

was reversed and remanded for further administration proceedings,

whereupon the Commissioner again denied Audette's application.

Audette contends that the Administrative Law Judge ("ALJ") failed

to comply with the remand order and that the decision is again

legally and factually deficient. The Commissioner moves to

affirm the decision.

Background

Mary D. Audette worked as a child care provider until she

developed back pain and was unable to work after May 31, 1997.

She was forty years old at that time. She is a high school

graduate and has a certificate in early childhood education. A. Medical Background

From 1997 through 2003, Audette was treated by Dr. Lon

Howard, an orthopedist. After evaluating her test results in

February of 1997, Dr. Howard diagnosed herniated discs at L4-5,

L5-S1, and possibly L3-4. He prescribed treatment of bed rest,

no sitting, lifting or bending, and medications of Darvocet,

Relafen, Naprosyn, Keflex, and Prednisone.

Audette underwent a laminectomy and discectomy at L4-5 and

L5-S1. Dr. Howard continued her medication regimen and then

added Medrol, Elavil, Parafon Forte, and Ultram. She used a

walker and was instructed to begin physical therapy. She felt

better after six weeks and began walking again. In September

1997, however, she returned to Dr. Howard because of significant

back pain radiating into her left leg. Dr. Howard prescribed

medication, a lumbrosacral corset, and pool therapy. Audette

continued to report pain at subseguent appointments, and Dr.

Howard continued to treat her symptoms with medication and

physical therapy. Dr. Howard also prescribed use of a home TENS

unit, which provided some pain relief. In May of 1998, Audette

reported that she could sit for two hours at a time and walk half

a mile and that her other pain symptoms had decreased.

In June of 1998, Audette was seen by Dr. Elijah W. Stommel,

a neurologist. He noted that she was still having muscle spasms

2 in her left leg and buttocks, that she was taking Naprosyn,

Chlorozazone, and Elavil, and that she was attending physical

therapy. On examination. Dr. Stommel found tenderness to

palpitation in her lower spine, and moderately diminished

reflexes in her left ankle, but otherwise normal results. He

recommended that Audette lose weight and continue physical

therapy.

At the end of June 1998, Audette saw Dr. Andrew Forrest, of

Littleton Orthopedics, who found that she had a diminished range

of motion in her lumbar spine but no muscle spasms or reduced

strength. He diagnosed spinal stenosis, a narrowing of the

vertebral canal, post surgery, with evidence of radiculopathy at

L4 and SI. He recommended that she continue physical therapy and

use a cane to walk. At her follow-up appointment in September,

Dr. Forrest diagnosed chronic lumbar pain syndrome with spinal

stenosis and L4 and SI radiculopathies. Dr. Forrest found the

same symptoms in July of 1999.

Audette continued to see Dr. Howard who found that her left

leg was weaker than her right and that she continued to have pain

in her back and left leg. She could no longer use the TENS unit

because it was not covered by Medicaid. In March of 1999, Dr.

Howard wrote that he did not think Audette was able to work.

In January and August of 1999, two non-examining state

3 agency physicians completed physical residual functional capacity

assessments of Audette based on her records. They both concluded

that she could lift less than ten pounds frequently, could

occasionally lift ten pounds, and had an unlimited ability to

push and pull. They found that she could stand for at least two

hours and could sit for at least six hours in an eight hour work

day. They also found that she had occasional limitations in her

ability to climb, balance, stoop, kneel, crouch, and crawl.

In November of 2000, Audette again saw Dr. Howard because of

pain in her back and leg. She described pain radiating from her

back to her left leg and that she had weakness and numbness in

her leg. Dr. Howard noted disc degeneration and sciatica. After

visits in January and February of 2001, Dr. Howard decided that

Audette definitely needed a TENS unit at home. She was

continuing physical therapy, using an ankle brace, and taking

Celebrex, Ultram, Flexeril, and Parafon Forte. In March, Dr.

Howard diagnosed disc degeneration and sciatica and chronic

sprain of the left ankle. She continued to report pain and

continued treatment with physical therapy and medication. In

May, Dr. Howard recommended that she use crutches again.

In July of 2001, Audette saw Dr. Howard because her left leg

gave out and she fell down eight stairs. X-rays showed disc

space narrowing at L4-5 and L5-S1. He continued to recommend

4 medication and physical therapy. Audette saw Dr. Howard in

August because of back pain and her left knee giving way. Dr.

Howard continued to recommend use of the TENS unit, but Audette

reported difficulty getting the cost covered by Medicaid.

Audette saw Dr. Howard again in April of 2002 with continued

complaints of back pain and also neck pain after falling off of a

powered scooter in her back yard. He prescribed a cervical

collar. Examination showed tenderness and spasm in the

paraspinal muscles, decreased range of motion in the cervical

spine, tenderness and spasm in the lumbar region, and positive

results on straight leg raising, indicating pain. In June of

2002, Audette reported that her neck and back were better and

that the symptoms in her left leg had subsided. Her motor

examination still showed positive signs for pain in the left back

and leg but also that she was stronger. Her symptoms continued

to improve in August. In October, Audette reported pain in her

back and leg that was relieved with medication and physical

therapy. Dr. Howard recommended that Audette have a functional

capacity evaluation.

An occupational therapist and physical therapist conducted a

functional capacity evaluation on November 7, 2002. They

concluded that Audette could perform work at the sedentary level.

They found that she could lift ten pounds or less, sit for one

5 hour intervals with a change of position, stand for thirty-five

minute intervals with a change in position, and walk for seven

minute intervals with a change in position. They found that she

had a lower than average finger dexterity, less than average

lifting ability, poor posture, decreased lumbar range of motion,

decreased cervical spine range of motion, decreased left arm

strength and range of motion, decreased trunk mobility and pain,

difficulty sguatting, and was seventy percent above her ideal

body weight. They recommended referral to a pain clinic,

vocational rehabilitation, a weight loss program, and a physical

examination. In November and December of 2002, Dr. Howard noted

that Audette lacked a capacity to work at that time.

At her appointment in February of 2003, Audette reported a

fair amount of pain. Dr. Howard noted that she had been to

physical therapy once since the last appointment. He recommended

that she resume physical therapy and resume taking her

medications. In March, she was advanced to a home physical

therapy program. She continued to take Flexeril, Celebrex,

Elavil, and OsCal. In April of 2003, x-rays showed disc

degeneration at L4-5, L5-6, and L6-7 with osteophyte formation at

L5-6. Dr. Howard found no instability or loss of motion.

6 B. First Decision

A hearing was held on January 2 8 , 2000, before ALJ Ruth

Kleinfeld. Audette was represented by Dona Larsen, a paralegal

from New Hampshire Legal Assistance. A vocational expert, Howard

Steinberg, also testified.

Audette testified that she was then taking Elavil, Bactrim,

and Carafate, which caused no side effects, and that she had

taken Prednisone, which caused weight gain. She described

constant pain in her spine extending into her left leg with

varied intensity from shooting pain to a dull ache. On the three

days out of the week when the pain was worse, she could only stay

still and lie down because standing made the pain worse. She

testified that she watched television, used the computer,

crocheted a little, and read. She sat in a reclining position

while doing those activities but also needed to walk every ten or

fifteen minutes to change position.

She testified that she needed help with household chores but

that she could cook for herself. She said that she had trouble

climbing stairs and that she did not carry things. She also

testified that she did not drive or have a driver's license.

Family members helped her get around and do grocery shopping.

The vocational expert testified that if Audette were limited

to light work with a sit/stand option, she would not be able to

7 do her past work in child care. In response to the ALJ's

hypothetical example, the vocational expert testified that jobs

as a companion and a security guard would be available.

Audette's representative proposed a hypothetical that would

require her to be absent up to three days a week, which the ALJ

said would preclude all work, without allowing a response from

the vocational expert.

In her decision, the ALJ found that Audette had the residual

functional capacity to do a full range of light and sedentary

work except that she could not lift more than ten pounds

occasionally and five pounds frequently, would need to sit or

stand at will, and would need to rest her legs on a chair or

couch. The ALJ also found that Audette was not fully credible as

to her complaints of pain, based primarily on certain findings as

to Audette's daily activities. The ALJ concluded that the

vocational guidelines, along with the vocational expert's

testimony, directed a conclusion that Audette was not disabled.

After Audette sought judicial review of the decision, the

parties filed a joint motion to reverse and remand the decision.

The court granted the motion, ordering the ALJ to consider Dr.

Howard's opinion as to Audette's ability to work, to re-evaluate

her credibility assessment, addressing the Avery factors, and to re-evaluate her residual functional capacity assessment.1 On

remand, the Appeals Council vacated the decision and directed

that the case be assigned to an ALJ to hold a hearing. The

Appeals Council also pointed out factual errors and significant

omissions. The Appeals Council directed the ALJ to consider Dr.

Howard's opinion about Audette's ability to work, to re-evaluate

her credibility using the Avery factors, to support the

assessment with evidence from the record in accord with

and 416.929 and Social Security Ruling 96-7p, and to

evaluate her residual functional capacity with an appropriate

rationale and specific references to the record evidence.

C. Second Decision

On remand, the case was assigned to ALJ Edward G. Hoban. A

hearing was held on April 18, 2003. Audette was again

represented by Dona Larsen. Howard Steinberg again testified as

the vocational expert.

Audette testified that her back was the same as it was at

the last hearing. She described pain in her lower back, left

1The record includes only the first page of the motion with the court's margin order at the bottom, indicating that four issues were to be considered by the ALJ. The fourth issue was on the second page which was not provided in the record in this case and is not available through court records. leg, and the top of her neck. She said that she had been

diagnosed with osteoporosis and arthritis in her neck and

shoulders since the last hearing. She said that she had not done

much walking since May of 2001 and that walking then brought on

pain. She also said that her left leg was weak so that she

needed to sit after five or ten minutes of standing and that she

used a cane.

In terms of daily activities, Audette testified that she

used the computer and watched television and that she could sit

for an hour to an hour and a half. She also crocheted but would

have to stop after fifteen to thirty minutes because of pain in

her hand. She could cook and do some housework except that two

or three days each week, she would not be able to do anything

because of pain. She was taking Flexeril, Ultram, Elavil, and

Darvocet for pain, although no medication completely took the

pain away. She testified that she had tried Percocet and Vicodin

for pain but did not like the way they made her feel. She said

that the TENS unit helped her pain. Audette testified that she

did not drive.

The ALJ described Audette's limitations and residual

functional capacity as the ability to lift ten pounds

occasionally and five pounds freguently, stand or walk for two

hours in an eight-hour day, sit for six hours in an eight-hour

10 day, push and pull without limitations, and do postural

activities occasionally. The vocational expert testified that

such a person could not do Audette's previous work as a child

care provider, but that she could work in assembly jobs, as a

security monitor, as a cashier, and as a charge account clerk.

The ALJ then added the residual functional capacity provided

through the evaluation done on Dr. Howard's referral, which found

a work capacity at the sedentary level, an ability to sit for one

hour intervals, to stand for thirty-five minute intervals, to

walk for seven minutes, and certain range of motion, dexterity,

and grip limitations in the left hand. The vocational expert

responded that Audette could still work as a cashier, charge

account clerk, and security monitor. When asked if Audette would

be able to work with the added limitations of a need to lie down

twice a day or to sit with her feet elevated, the vocational

expert responded that no jobs would fit that description.

In his decision issued on October 16, 2003, the ALJ found

that Audette's claim of disabling pain was not credible for the

same reasons that the previous ALJ found. The ALJ considered Dr.

Howard's opinion but concluded that it was not entitled to

controlling weight because it was based on Audette's subjective

complaints and was inconsistent with other functional capacity

assessments. He found that Audette retained the residual

11 functional capacity for a full range of sedentary work except

that she could only occasionally use her left hand to grasp or

manipulate objects. Relying on the vocational guidelines and the

vocational expert's testimony, the ALJ concluded that Audette was

not disabled. The Appeals Council denied Audette's reguest for

review.

Discussion

Audette contends that the ALJ failed to properly evaluate

her credibility in violation of the court's remand order and the

direction from the Appeals Council. She also contends that the

ALJ erred in giving controlling weight to the opinion of the

state agency physician and in relying on the vocational expert's

testimony in response to a hypothetical that did not incorporate

all of her limitations. The Commissioner argues that substantial

evidence exists in the record to support the ALJ's decision.

The court must uphold a final decision of the Commissioner

denying benefits unless the decision is based on legal or factual

error. Seavey v. Barnhart,

(1st Cir. 2001); Manso-

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

(1st

Cir. 1996) (citing Sullivan v. Hudson,

(1989)).

The Commissioner's factual findings are conclusive if based on

substantial evidence in the record.

(g); Nguyen

12 v. Chater,

(1st Cir. 1999). Substantial evidence

is "such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Richardson v. Perales,

(1971) (internal quotation marks omitted). 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.

Sec'v of Health & Human Servs.,

(1st Cir.

1991) .

Because a claimant's impairments may be greater due to pain

than the objective medical evidence would otherwise suggest, an

ALJ must also consider a claimant's subjective complaints of

pain.

(c)(1) & 416.929(c)(1); Avery v.

Sec'v of Health & Human Servs.,

(1st Cir. 1986).

The ALJ is required to consider the claimant's descriptions of

her daily activities; the location, duration, frequency, and

intensity of her pain; the type and amount of any medications she

is taking or has taken for pain or other symptoms; other

treatments she has received or is receiving for pain or other

symptoms; any measures she is using or has used to relieve pain,

and other information about her limitations and restrictions due

to pain or other symptoms. §§ 404.1529(c) (3) & 416.929(c) (3) .

In the ALJ's decision, he must provide specific reasons for the

13 credibility findings as to each of the required factors,

supported by references to the evidence of record. S.S.R. 96-7p,

, at *4 (July 2, 1996). The ALJ's credibility

finding "cannot be based on an intangible or intuitive notion

about an individual's credibility . . . [and] [i]t is not

sufficient to make a conclusory statement . . . [or] simply to

recite the factors that are described in the regulations for

evaluating symptoms."

ALJ Kleinfeld's credibility assessment did not meet those

requirements. She wrote only the following evaluation:

The undersigned has considered the claimant's subjective assertions of disabling pain, but she cannot be accepted as fully credible. The claimant is able to work on her computer, crochet, read and watch television as well as do some shopping and driving by her own description. She does not take strong pain medication and she has not presented evidence of recent treatment. Considering the nature of the claimant's treatment, precipitating and aggravating factors, treatment including medication, the undersigned concludes that the claimant retains the residual functional capacity to perform light and sedentary work as set forth above.

AR at 24. On remand, the Appeals Council pointed out the factual

errors in ALJ Kleinfeld's findings: Audette could not drive; she

did not shop on her own but instead had help, and she was taking

Darvocet, Flexeril, Naprosyn, Parafon, and Elavil for her pain

and other symptoms. Because of the ALJ's errors in assessing

Audette's credibility, the Appeals Council directed that

14 Audette's credibility be re-evaluated, "addressing all of the

factors set out in Avery v. Secretary of Health and Human

Services,

(1st Cir. 1986) and in Social Security

Ruling 96-7p." AR at 286.

In response to the remand, ALJ Hoban heard evidence from

Audette about her pain at a second hearing. Despite that

testimony and the clear directions from the Appeals Council and

this court, ALJ Hoban made the following "re-evaluation" of

Audette's credibility:

The undersigned has considered the claimant's subjective assertions of disabling pain, but she cannot be accepted as fully credible. The claimant is able to work on her computer, crochet, read and watch television as well as do some shopping and driving by her own description (Exhibit 11F). Activities, such as extensive walking, performed after her date last insured do not support her complaints. As noted, her treatment history does not fully support her complaints. To the contrary, she has a history of a positive response to treatment and acknowledged this to treating sources. She does not take strong pain medication. She has not presented evidence of recent treatment. Considering the nature of the claimant's treatment, precipitating and aggravating factors, treatment including medication, the claimant's functional restrictions and her daily activities, the undersigned concludes that the claimant retained the residual functional capacity to perform a range of sedentary work as set forth above.

AR at 243.

As the Appeals Council pointed out, Audette could not and

did not drive; she could not and did not do shopping by herself.

15 and she was taking strong medication at the time of the first

hearing, which she testified she was still taking at the time of

the second hearing. Exhibit 11F, cited by ALJ Hoban, does not

support his findings. The medical records show that Audette was

treated by Dr. Howard continuously throughout the period with her

last appointment just a month before the second hearing, contrary

to ALJ Hoban's finding that she did not present evidence of

recent treatment. Without explanation, it is not apparent what

relevance the finding that Audette responded positively to

treatment would have to her complaints of pain. Further, other

than the apparently incorrect reference to Exhibit 11F, ALJ Hoban

failed to provide citations to the record to support his findings

and merely recited several of the factors in a conclusory manner

without articulating specific reasons for his findings.

Unfortunately, ALJ Hoban ignored the direction of this court

and the Appeals Council and recited the erroneous findings made

by ALJ Kleinfeld, along with a few additional findings of dubious

value. The credibility finding is essential to ALJ Hoban's

decision because whether Audette retains a functional capacity

for work, as described by the assessments in the record, or

cannot work, as she contends, depends on her credibility as to

her complaints of pain. Given the insufficient and factually

erroneous evaluation provided by ALJ Hoban, the case again must

16 be remanded for further administrative proceedings.

Audette asks that the court simply reverse the

Commissioner's decision and award her benefits. The claimant's

credibility is within the province of the Commissioner, is fact-

based, and has not yet been properly assessed, which precludes a

final resolution of the claim here. See Seavey, 279 F.3d at 11.

Because remand is necessary to address the credibility issue and

the other issues Audette raises may also be re-evaluated on

remand, those issues are not reviewed here.

It is unfortunate that this matter must be remanded for a

second time because of errors made in the administrative process.

This has resulted in delaying final resolution of the matter for

the claimant and has unnecessarily consumed the resources of the

claimant and the court. On remand, the court expects this matter

to be handled promptly and competently.

Conclusion

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

(document no. 6) is granted to the extent that the Commissioner's

decision is reversed and the case is remanded for further

administrative proceedings. The Commissioner's motion to affirm

(document no. 7) is denied.

17 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. United States District Judge

November 17, 2 0 04

cc: Jonathan P. Baird, Esguire David L. Broderick, Esguire

18