Arsenault v. SSA CV-03-108-B 05/04/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary Arsenault

v. Civil No. 03-108-B Opinion No.

Jo Anne B. Barnhart, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Mary Arsenault applied for Title II Social Security

Disability Insurance Benefits ("DIB") on September 7, 2001,

alleging an inability to work due to injuries to her right

shoulder and cervical disc syndrome. The Social Security

Administration ("SSA") denied her application as did an

Administrative Law Judge ("ALJ"). He found that although her

impairments were severe, they did not meet the reguirements of

any listed disability. Further, he found that she had a residual

functional capacity enabling her to perform various jobs that

were available in the national and local economy.

Arsenault brings this action pursuant to § 405(g) of the

Social Security Act seeking review of the denial of her

application for benefits. She argues that the ALJ did not properly analyze whether she met the requirements for Listing

1.08 (soft tissue injury), that he did not properly evaluate her

pain, nor did he sufficiently explain why he discredited her

testimony regarding her ability to work. For the reasons set

forth below, I conclude that the ALJ did not properly analyze the

requirements for Listing 1.08. Therefore, I remand this case to

the Commissioner.

I. BACKGROUND1

A. Factual Background

Arsenault is a 32-year-old woman with an eighth grade

education. She worked as a cashier and manager at a gasoline

station and convenience store until August 10, 2000, when she

stopped due to injuries to her right shoulder and back. (Tr.

86). She restarted work in December, but again had to stop due

to pain in February 2001. (Tr. 25).

Arsenault has been treated numerous times for shoulder,

back, and neck injuries since January 2000. On January 28, 2000,

Richard Hacker, M.D., treated Arsenault for pain between her

1 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts (Doc. No. 9) submitted by the parties.

- 2 - shoulder blades. Dr. Hacker noted that the discomfort

accompanied movement and straining but was not associated with

any paresthesia2 or weakness. Dr. Hacker also noted that

Arsenault's symptoms were not relieved by Flexeril or Anaprox,3

so he prescribed Celebrex4 and Tylenol #3. (Tr. 130).

A few weeks later, Arsenault went to the Monadnock Community

Hospital complaining of sudden onset of neck pain and spasms.

Arsenault was unable to move her neck without pain, but denied

paresthesia of her upper extremities. She also denied a previous

history of cervical trauma or diving accidents. (Tr. 150). The

examining doctor, Christopher Krupp, M.D., noted that Arsenault's

neck was tender to palpation, but that she had full range of

motion and strength. His impression was that Arsenault suffered

2 Paresthesia is an abnormal sensation such as tingling or burning. Stedman's Medical Dictionary 1316 (27th ed. 2000) . Hereinafter, Stedman's.

3 Flexeril relieves skeletal muscular spasm of local origin. Physician's Desk Reference 1929 (55th ed. 2001). Hereinafter, PDR. Anaprox, also called Naprosyn, is a non-steriodal, anti­ inflammatory agent. PDR at 2744.

4 Celebrex is a non-steroidal anti-inflammatory agent. PDR at 2482.

- 3 - from cervical strain with spasm. He prescribed Darvocet5 and

gave her a soft collar for her neck.

On August 18, 2000, Arsenault reported to Dr. Hacker that

she had felt lower back and knee pain since starting a new job

that reguired her to stand for prolonged periods. (Tr. 137).

Dr. Hacker noted that she had a history of back pain following a

car accident several years earlier, but had never been examined

for spinal problems. He noted that she had normal gait,

strength, balance, and coordination. Arsenault visited Dr.

Hacker again on September 5, 2000 and complained of generalized

aches, lack of energy, and fatigue. (Tr. 138). Dr. Hacker's

physical examination was unremarkable. His assessment was

fibromyalgia6 and he prescribed Elavil.7 Arsenault's symptoms of

fatigue and pain continued through September 11, 2000. At Dr.

Hacker's suggestion, she underwent a bone scan and pelvic

5 Darvocet is a mild narcotic analgesic. PDR at 1567.

6 Fibromyalgia is a syndrome of chronic pain of musculoskeletal origin but uncertain cause. Diagnostic criteria includes pain on both sides of the body above and below the waist. There must be point tenderness in a least 11 of 18 specified sites.

7 Elavil is indicated for relief of the symptoms of depression. Physician's Desk Reference 626 (53rd ed. 1999) .

- 4 - ultrasound at Monadnock Community Hospital on September 14, 2000.

The procedures did not reveal any problems. During a follow-up

visit on September 20, 2000, Arsenault reported to Dr. Hacker

that she was feeling better, but that her symptoms tended to

worsen in cold weather.

At Dr. Hacker's reguest, Arsenault saw Gerald DeBonis, M.D.,

for neck and shoulder pain. Arsenault reported that she had

suffered shoulder pain after prolonged use of her right arm

since her car accident years earlier. Arsenault stated that the

shoulder pain did not extend beyond her elbow, nor did it occur

while at rest, but she complained of nearly constant neck pain.

Dr. DeBonis noted that Arsenault's gait and station were normal

and that she demonstrated complete range of motion of her

cervical spine without pain. Dr. DeBonis did find localized

tenderness in the right shoulder, but her range of motion was

nearly complete. (Tr. 212). Films of her cervical spine and

right shoulder were normal. Dr. DeBonis concluded that Arsenault

appeared to have chronic rotator cuff tendinitis8 of the

8 Tendinitis is inflammation of a tendon. Stedman's at 1794 .

- 5 - supraspinatus.9

Arsenault saw Dr. DeBonis again on March 28, 2001 for right

shoulder pain. At that time, Arsenault had pain with passive

motion as well as instability with abduction and external

rotation. His assessment was anterior right shoulder instability

with symptoms of secondary impingement and he recommended

diagnostic arthroscopy.10 On April 24, 2001, Dr. DeBonis

performed an arthroscopic debridement11 and subacromial12

decompression on Arsenault's shoulder. During the procedure. Dr.

DeBonis also carried out a thermal capsulorrhaphy13 and removed

bursal14 tissue. (Tr. 178-79). He noted that the cartilage was

9 The supraspinitis is a muscle in the shoulder joint. Stedman's at 1157.

10 Arthroscopy is an endoscopic examination of a joint. Stedman's at 151.

11 Debridement is an excision of devitalized tissue from an area. Stedman's at 460.

12 The subacromial area is beneath the lateral end of the shoulder blade. Stedman's at 18, 1714.

13 Capsulorrhaphy is the suturing of a tear or surgical incision in any capsule; specifically, suture of a joint capsule to prevent recurring dislocation. Stedman's at 282.

14 Bursal tissue is formed by closed sacs filled with fluid usually found in areas subject to friction, e.g., where a tendon

- 6 - torn, thin, and in some areas, gone. At the six-week

postoperative follow-up visit. Dr. DeBonis found Arsenault to be

doing very well with no pain at all and range of motion of the

shoulder nearly fully restored. (Tr. 220) .

Arsenault was next seen by Dr. DeBonis on August 2, 2001

when she reported a new injury to her right shoulder that

occurred in June when someone grabbed her right arm and yanked it

upward and behind her. (.Id) . Dr. DeBonis's examination showed

severe limitation of cervical range of motion. Pain limited her

ability to move her right shoulder. Dr. DeBonis also suspected

that Arsenault had carpal tunnel syndrome as well as a cervical

disk problem.

On August 22, 2001, Arsenault saw Dr. Hacker, who observed

that she had no effusion, redness, or instability of her

shoulder. Her rotator cuff was stable and her cervical spine was

not tender. Dr. Hacker did find spasms and tenderness throughout

her upper back and shoulder and assessed shoulder and back

strain. He gave Arsenault a prescription for Flexeril and

passes over a bone. Stedman's at 259. The bursa removed from Arsenault's shoulder had become inflamed (Tr. 179) which is a condition known as bursitis. Stedman's at 262.

- 7 - Anaprox.

Dr. DeBonis treated Arsenault several times for shoulder

pain throughout the remainder of 2001. During a visit on January

7, 2002, he observed no swelling and noted that Arsenault had

full passive range of motion of her shoulder. Dr. DeBonis's

diagnosis was right shoulder pain syndrome.

On March 14, 2002, Arsenault began treatment with W. Bradley

White, M.D. for shoulder pain. Dr. White found tenderness at her

glenohumeral15 joint, but not in the area where most of her pain

radiated. He found Arsenault's range of motion to be guite

restricted and diagnosed her with adhesive capsulitis, and

recommended surgery to address it.16 Dr. White did not believe

that there was a significant psychological component to her

condition. (Tr. 231). Arsenault agreed to surgery and Dr. White

performed arthroscopy and debridement of her shoulder on March

25, 2002. During the procedure. Dr. White discovered

15 The glenohumeral joint is the ball and socket joint between the humerus and the shoulder blade. Stedman's at 935.

16 Capsulitis is a condition in which there is limitation of motion in a joint due to inflammatory thickening of the capsule. It is a common cause of stiffness in the shoulder. Stedman's at 282. degenerative tearing of the anterior and superior labrum.17 (Tr.

233). At a follow-up visit on April 2, 2002, Arsenault reported

performing gentle range of motion exercises occasionally and she

reported stiffness in her shoulder and elbow. (Tr. 234).

Dr. White referred Arsenault to Jon Warner, M.D. at

Massachusetts General Hospital. On April 22, 2002, Arsenault

reported to Dr. Warner that since her last surgery, she continued

to have severe pain and difficulty sleeping at night. (Tr. 287).

Dr. Warner could passively flex her shoulder to an arc of 140

degrees, with Arsenault expressing pain. His review of an MRI

examination revealed a normal rotator cuff. Dr. Warner found it

difficult to ascribe all of Arsenault's complaints of pain to the

tearing discovered by White and had the impression that Arsenault

had biceps tendinitis. (Tr. 288). Dr. Warner suggested another

debridement of her shoulder with a biceps tendon tenotomy.18

Dr. Hacker treated Arsenault again on May 28, 2002 for

shoulder pain. Arsenault reported that she had re-injured her

17 The labrum is a cartilage "lip" around the margin of the concave portion of some joints. Stedman's at 957.

18 Tenotomy is a surgical division of a tendon for relief of a deformity. Stedman's at 1795. shoulder during an altercation with her 11-year-old daughter.

(Tr. 284). Dr. Hacker's assessment was chronic shoulder pain and

he prescribed Oxy-Contin.19

On July 10, 2002, Dr. Warner performed a third shoulder

surgery on Arsenault. During the procedure. Dr. Warner removed

loose cartilage and the residual bursa. (Tr. 266-67). Soon

thereafter, on July 14, 2002, Arsenault went to the emergency

room of Monadnock Regional Hospital complaining of severe,

burning right shoulder pain at the site of the surgery. She was

administered Demerol20 and discharged in the care of her husband.

Arsenault returned to Monadnock Community Hospital emergency room

for the same symptoms on August 17, 2002.

In addition to shoulder pain, the record also shows that Dr.

Hacker treated Arsenault several times for anxiety, depression,

panic attacks, and smoking cessation. During each of these

visits, which took place between April 2000 and June 2002,

Arsenault ascribed her emotional distress primarily to family

19 Oxy-Contin is an opioid analgesic. PDR at 2697.

20 Demerol is indicated for the treatment of moderate to severe pain. PDR at 2851.

- 10 - matters. At various times. Dr. Hacker prescribed Ativan,21

Atenolol,22 Zoloft,23 and Paxil to treat Arsenault's emotional

distress.

B. Procedural History

On September 7, 2001, after her second surgery but before

her third, Arsenault filed an application with the SSA for Title

II DIB. Arsenault claimed that she had been unable to work since

August 10, 2000, due to injuries to her right shoulder. Her file

was referred to Joseph Cataldo, M.D., for Disability

Determination Services on September 12, 2001. Dr. Cataldo opined

that Arsenault had a reduced functional capacity that limited her

to occasionally lifting 20 pounds and freguently lifting 10

pounds. (Tr. 245). He also felt that Arsenault could sit and

stand for six hours out of an eight-hour work day, and could

occasionally bend, lift, climb, and crouch. (.Id) . He noted that

she should avoid freguent use of her right arm. (.Id) . Dr.

21 Ativan, also called Lorzepam, is an anti-anxiety agent. PDR at 3348.

22 Atenolol is indicated for the treatment of hypertension. PDR at 647.

23 Zoloft is an antidepressant. PDR at 2553.

- 11 - Cataldo concluded that Arsenault's allegations of symptoms were

credible, but that they were not credible for her claimed

inability to function. (.Id) .

The SSA denied Arsenault's application for benefits and she

filed a timely request for a hearing. ALJ Frederick Harap held

the hearing on October 9, 2002 .24 When asked about the cause of

her shoulder and back pain, Arsenault stated that it may have

been originally triggered by a car accident in June 1999. (Tr.

27). Arsenault stated that her three shoulder operations did not

reduce the pain in her shoulder. (.Id) . She described her pain

as a "throbbing, aching, hurting pain" for which she takes extra

strength Vicodin which makes her drowsy. (Tr. 28). When asked

about her daily routine, Arsenault stated that she was up most of

the night because of pain and started her day by 6:00 a.m. In

the morning she made sure her two children, aged 11 and 15, got

to school. (Tr. 29). She stated that she could do nothing for

the rest of the day except watch television for short spans of

time and pace to relieve pain. (Tr. 30). She said that her

24 Because Arsenault's claim was determined using a pilot procedure, she was able to request a hearing before an ALJ without seeking reconsideration.

- 12 - attention span was limited by pain. (Tr. 32). She asserted that

most days she was unable to lift a can of soda with her right

arm. She could go grocery shopping when accompanied. (Tr. 30).

Her children and husband did the dishes, cleaning, and laundry.

(Tr. 30-31) . She could not visit family and friends. (.Id) .

When asked what treatment she expected to receive for her

shoulder in the future, she testified that she would have

cartilage replacement potentially followed by a shoulder

replacement, with arthroscopy every two years to "have it cleaned

o u t ( T r . 2 6-28).

At the end of the hearing, Arsenault's representative stated

that she fit into Listing 1.08, because her disability involved

an upper extremity, she was under continuing surgical management

which was directed toward salvation and restoration of the major

function of her arm, and the restoration was not expected to be

complete within twelve months. (Tr. 47).

The ALJ issued an opinion dated December 3, 2002 denying

Arsenault's application. He found that she met the nondisability

reguirements for a period of disability and was insured through

the date of his decision. Further, he found that she has not

engaged in substantial gainful activity since her alleged onset

- 13 - date, finding her work after that date to be an unsuccessful work

attempt since she quit due to her medical impairment.

Recognizing that she did have severe disabilities, the ALJ

nevertheless found that none of them met any of the listed

impairments in the regulations. (Tr. at 15). He found that she

had a residual functional capacity enabling her to perform light

work, based on her activities and lifestyle, and that her

statements concerning her own impairment were not entirely

credible. He stated that she had "failed to present objective

evidence of disabling exertional or nonexertional impairments

which have lasted or will last, for the 12 month duration

requirement of the Act." (Tr. 16). He did not address, however,

whether further surgery and follow-up care would alter that

determination.

The ALJ determined that Arsenault "retain[ed] the following

residual capacity: light work, which required the ability to

lift and/or carry tern pounds frequently and twenty pounds

occasionally. [She] cannot work at unprotected heights, around

moving machinery or vibrating equipment, and can only

occasionally climb balance, stoop, kneel, crouch or crawl. She

can only lift with the left hand, and had no independent function

- 14 - of the right upper extremity for fine or gross manipulation or

lifting." (Tr. 17). Based on testimony of an impartial

vocational expert, the ALJ determined that she could perform jobs

available in both the local and national economy, such as being a

greeter or reception attendant, a companion for the elderly, a

messenger, or a surveillance systems monitor.

Arsenault appealed to the Appeals Council, which denied her

reguest for review of the ALJ's decision. At that point, the

ALJ's decision became the final decision of the Commissioner of

Social Security ("Commissioner"). She subseguently appealed to

this court.

II. STANDARD OF REVIEW

After a final determination by the Commissioner denying a

claimant's application for benefits, and upon a timely reguest by

the claimant, I am authorized to review the pleadings submitted

by the parties and the transcript of the administrative record

and enter a judgment affirming, modifying, or reversing the ALJ's

decision.

(g) (2003). My review is limited in

scope, however, as the ALJ's factual findings are conclusive if

they are supported by substantial evidence. Id.; see Ortiz v.

- 15 - Sec'y of Health & Human Servs.,

(1st Cir. 1991)

(per curiam). The ALJ is responsible for settling credibility

issues, drawing inferences from the record evidence, and

resolving conflicting evidence. See 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 adeguate to support [the ALJ's] conclusion.'"

(guoting Rodriguez v. Sec'y of Health & Human Servs.,

(1st Cir. 1981)). I apply these standards in

reviewing Arsenault's case on appeal.

III. DISCUSSION

The Social Security Act defines "disability" for the

purposes of Title II as the "inability 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 which has lasted or can be expected to last

for a continuous period of not less than 12 months."

(d)(1)(A) (2003). When evaluating whether a claimant is

disabled due to a physical or mental impairment, an ALJ's

analysis is governed by a five-step seguential evaluation

- 16 - process. See

(2003). The ALJ is required

to consider the following issues 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 or prevented the

claimant from performing past relevant work; and (5) whether the

impairment prevents or prevented the claimant from doing any

other work.

(2003). An affirmative answer

at one step leads to the next step in the analysis.

If the

answer to questions (3) or (5) is affirmative, the claimant is

disabled.

If the answer to any question other than (3) is

negative, the claimant is not disabled.

The claimant bears

the burden on the first four steps. At step five, the burden

shifts to the Commissioner to show "that there are jobs in the

national economy that [the] claimant can perform."

(f) (2003); Heggarty v. Sullivan,

(1st

Cir. 1991) (per curiam); see also Keating v. Sec'y of Health &

Human Servs.,

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

The Commissioner must show that the claimant's limitations do not

prevent her from engaging in substantial gainful work, but need

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

Keating,

.

Arsenault argues that the ALJ did not properly consider step

three, when he found that her impairment did not meet, nor was

medically equivalent to, a listed impairment. She also argues

that he did not properly consider the effect of pain on her

ability to work, and that the evidence does not support his

finding regarding her credibility. Because I agree with

Arsenault's first argument, I need not address the others.

The ALJ found that Arsenault had "biceps tendinitis and

adhesive capsulitis, impairments that are severe within the

meaning of the Regulations, but not severe enough to meet or

medically equal one of the impairments listed in Appendix 1,

Subpart. P., Regulation No. 4." (Tr. 15). Arsenault asserts

that she meets the impairment listed as 1.08, which states

Soft tissue injury (e.g., burns) of an upper or lower extremity, trunk, or face and head, under continuing surgical management, as defined in 1.00M, directed toward the salvage or restoration of major function, and such major function was not restored or expected to be restored within 12 months of onset . . .

20 C.F.R. 404.1525, subpt. P, app. 1. Continuing surgical

management is defined at 1.00M as

- 18 - Under continuing surgical management . . . refers to surgical procedures and any other associated treatments related to the efforts directed toward the salvage or restoration of functional use of the affected part. It may include such factors as post-surgical procedures, surgical complications, infections, or other medical complications, related illnesses, or related treatments that delay the individual's attainment of maximum benefit from therapy.

The ALJ did not mention Listing 1.08, or any other listing,

in his decision. He stated only that found that she did not meet

any of the listings in the SSA regulations, and that in making

that decision, he "considered the opinions of the State agency

medical consultants who evaluated this issue at the initial and

reconsideration levels." (Tr. 15).

Because the ALJ did not explain why Listing 1.08 was not

met, I cannot determine whether his decision on this point is

supported by substantial evidence. Accordingly, I remand the

case to the ALJ for further consideration. See Burnett v.

Comm'r,

(3d Cir. 2000)(remand reguired where

ALJ "'merely stated a summary conclusion that appellant's

impairments did not meet or egual any Listed impairments' without

identifying the relevant listed impairments, discussing the

evidence, or explaining his reasoning").

- 19 - IV. CONCLUSION

Because the ALJ did not properly consider and analyze

whether Arsenault's disability fits into Listing 1.08, I remand

to the commissioner for further consideration consistent with

this opinion.

SO ORDERED.

Paul Barbadoro Chief Judge

May 5, 2 004

cc: David Bander, Esq. David L. Broderick, AUSA Roger D. Turgeon, Esq.

- 20 -