Rallis v . Social Security Admin. CV-03-223-JD 01/20/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ekaterini Rallis

v. Civil N o . 03-223-JD Opinion N o .

Jo Anne B . Barnhart, Commissioner, Social Security Administration

O R D E R

Ekaterini Rallis again seeks judicial review, pursuant to

0 5 ( g ) , of a decision by the Commissioner of the

Social Security Administration, denying her application for

social security benefits under Title II of the Social Security

Act. On March 2 9 , 2002, the court reversed and remanded the

Commissioner’s decision denying Rallis’s application for

benefits due to factual and legal errors in the decision of

Administrative Law Judge (“ALJ”) Frederick Harap. Following

remand, ALJ Harap held a second hearing on Rallis’s claim for

benefits and issued a second decision denying her claim.

The second decision became the final agency

determination, apparently without review by the Appeals

Council. Rallis contends that the decision should be reversed

because the ALJ’s credibility and residual functional capacity

(“RFC”) assessments again were not supported by substantial

evidence. She also contends the ALJ failed to adequately

explain the bases for the decision. The Commissioner moves to affirm the decision.

Background

The medical evidence pertaining to Rallis’s claim was

summarized in the court’s order of March 2 9 , 2002. No

additional evidence was submitted on remand. The joint

statement of material facts submitted by the parties in this

case does not appear to be materially different from the

factual summary previously submitted, except for information

concerning the subsequent hearing and disposition. Therefore,

the entire factual summary will not be repeated in this order.

Rallis injured her back in an automobile accident in

1993. She claims that she has been unable to work since July

3 1 , 1993, because of limitations due to pain caused by her

back condition. Rallis has received treatment for her back

condition, beginning after the accident in 1993 and continuing to the present, from physicians including D r . Sakellarides,

D r . Mitchell Keltey, D r . Mats Agren, and D r . Clinton Miller.

D r . Frank Graf, an orthopaedic surgeon, and David Camlin, a

vocational consultant, provided vocational and RFC

assessments. D r . Melvin Rodman, a state agency doctor, also

provided a functional capacity assessment. Rallis’s insured

status expired on December 3 1 , 1998.

2 In the first decision, issued on November 2 1 , 2000, the

ALJ found that Rallis’s allegations as to her limitations were

not totally credible. He found that Rallis “is unable to lift

and carry more than 20 pounds occasionally or 10 pounds

frequently. She would need the freedom to sit or stand at

will and she should avoid working at heights or around machinery. Additionally, she should avoid performing tasks

that require frequent balancing, kneeling, crouching, or

occasional climbing of ladders or scaffolding or tasks that

require stooping or crawling. She should also avoid exposure

to extreme cold.” Rec. at 2 7 . The ALJ found that Rallis was

unable to return to her former work as a hand cementer in a

shoe factory because that job required her to sit for extended

periods of time, which she could no longer d o . The vocational

expert testified that someone with Rallis’s limitations could perform the occupations of a classifier, a hand packer, a

photographic finisher, and a preparer. Based on her RFC and

the testimony of the vocational expert, the ALJ found that

Rallis was not disabled.

Rallis sought judicial review pursuant to § 405(g). This

court reversed the decision after determining that the ALJ had

selectively highlighted parts of the medical record, had

misconstrued some of the evidence, and had applied the wrong

3 legal standard for determining disability. The court remanded

the case to the Commissioner for further proceedings.

Following remand, that decision was vacated by the Appeals

Council.

On the direction of the Appeals Council, the ALJ held a

second hearing on January 2 7 , 2003. 1 Rallis was represented by counsel, and she testified at the hearing. In addition,

Rallis’s son, Peter Rallis, testified about his mother’s

limitations, and a vocational expert testified. In his

decision issued on April 1 4 , 2003, the ALJ again found that

Rallis’s allegations regarding her limitations were not

totally credible. He found that she retained a RFC for a

range of light work in that she could “lift and carry no more

than 20 pounds occasionally and 10 pounds frequently. Further

the claimant could only occasionally perform postural activities, could not work at heights or around moving

machinery and she had to avoid concentrated exposure to

extreme cold.” Based on the new findings and the vocational

expert’s testimony, the ALJ concluded that Rallis could return

to her former work as a hand cementer in the shoe industry.

1 Although the hearing was first held on November 1 4 , 2002, because of difficulties with the translator, a new hearing was required.

4 He concluded that she was not disabled and denied her claim

for benefits.

Discussion

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,

, 9

(1st Cir. 2 0 0 1 ) ; Manso-Pizarro v . Sec’y of Health & Human

Servs.,

5 , 16 (1st Cir. 1996) (citing Sullivan v .

Hudson,

7 7 , 885 (1989)). The Commissioner’s factual

findings are conclusive if based on substantial evidence in

the record. § 405(g); Nguyen v . Chater,

1 , 35 (1st

Cir. 1 9 9 9 ) . Substantial evidence is “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v . Perales,

8 9 , 401 (1971)

(internal quotation 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’y

of Health & Human Servs.,

6 5 , 769 (1st Cir. 1 9 9 1 ) .

To be eligible for social security benefits, the claimant

must show that she was disabled, meaning that she had a

5 medically determinable physical impairment that lasted for at

least twelve months, beginning before the expiration of her

insured status, and that the impairment made her unable to

engage in any substantial gainful activity.

(a)(1)(D); Henrie v . U.S. Dep=t of Health & Human Servs.,

5 9 , 360 (10th Cir. 1 9 9 3 ) . Rallis’s application was

denied at step four of the sequential evaluation process set

forth in

. 2 When an application is denied

at step four, the claimant bears the initial burden of showing

that she is no longer able to perform her previous work

because of her impairments. See Freeman v . Barnhart,

(1st Cir. 2 0 0 1 ) ; Manso-Pizarro,

7 .

To meet her burden, the claimant must “lay the foundation

as to what activities her former work entailed, [and] . . .

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

See § 404.1520

6 point out (unless obvious)-- so as to put in issue--how her

functional incapacity renders her unable to perform her former

usual work." Santiago v . Sec’y of Health & Human Servs.,

, 5 (1st Cir. 1 9 9 1 ) . If the claimant meets her burden

of putting her prior work at issue, “the ALJ must compare the

physical and mental demands of [the claimant’s] past work with current functional capability." Manso-Pizarro,

7 .

The ALJ may rely on the claimant’s own description of her

former job duties and demands in assessing her ability to do

that work. See

The ALJ must determine whether the

claimant’s impairments, as presented in the record, prevent

her from performing her past work based on her RFC and the

demands of her past work. See

(e) & §

404.1545(a); see also Santiago,

.

In making an RFC determination on behalf of the Commissioner, the ALJ must consider all relevant medical

evidence in the record along with the claimant’s own

description of her limitations, including her subjective

complaints of pain. See Manso-Pizarro,

7 ; Wells

v . Barnhart,

3 8 , 144 ( D . Mass. 2 0 0 3 ) . To

decide whether a claimant’s subjective complaints of pain are

credible, an ALJ must evaluate the medical signs and

laboratory findings, any diagnosis, prognosis or other medical

7 opinions, and any statements or reports from the plaintiff or

treating or examining physicians or psychologists about the

patient’s medical history. SSR 96-7p,

, at *2

(July 2 , 1 9 9 6 ) . Because an individual’s pain can sometimes

result in a greater severity of impairment than can be shown

by the objective medical evidence, an ALJ must also consider: 1 . The nature, location, onset, duration, frequency, radiation, and intensity of any pain; 2 . Precipitating and aggravating factors (e.g., movement, activity, environmental conditions); 3 . Type, dosage, effectiveness, and adverse side-effects of any pain medication; 4 . Treatment, other than medication, for relief of pain; 5 . Functional restrictions; and 6. The claimant’s daily activities.

Avery v . Sec’y of Health & Human Servs.,

9 , 29 (1st

Cir. 1 9 8 6 ) ; see also

(c)(3); SSR 96-7p.

Rallis concedes that the ALJ identified the appropriate

governing standard for assessing her credibility as to the

disabling effects of her pain. She argues, however, that he

did not properly apply the criteria to the factual record in

the case. As such, Rallis contends, substantial evidence does

not support the ALJ’s findings.

The ALJ noted the testimony at the hearing that Rallis

had difficulty performing the activities of daily living and

stated that the record confirmed that she had difficulty

performing those activities. As in his previous decision,

8 however, the ALJ again found that “it appears that gardening

was the only activity that she complained was totally

precluded by her back and neck symptoms.” Rec. at 3 2 6 . This

court held in the first decision that “[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 . Chater,

5 , 81-82 (2d Cir. 1 9 9 8 ) ;

Baumgarten v . Chater,

6 6 , 369 (8th Cir. 1 9 9 6 ) ; Smith

v . Califano,

6 8 , 971 (3d Cir. 1981).” Rallis v .

Barnhart,

7 4 , at *15 (D.N.H. Mar. 2 9 , 2 0 0 2 ) . To the

extent that finding influenced the ALJ’s disability

determination, it was error.

The ALJ again selectively reviewed the medical evidence

noting only evidence that the ALJ interpreted as “negative

findings from objective measures of pain.” Rec. at 3 2 6 . Although the treatment record one month after her accident in

1993 reports that she had a full range of motion of the

cervical spine, as the ALJ notes, the same record also reports

that her forward flexion was limited to twenty to thirty

degrees with a list to the right and that her symptoms were

lumbar. An X-ray showed significant end plate collapse and

evidence of degenerative disc disease. While D r . Miller

reported in February of 1999 that straight leg raising tests

9 were normal, earlier examination results showed limitations in

the range of motion and pain. The medical records document

her complaints of radiating pain, and tests and examinations

showed limited ranges of motion and lumbar radiculopathy as

well as bulging discs at L1-2 and

L4-5. As noted in the previous order in this case, that a later MRI no longer showed a bulging disc at L4-5 does not

rule out the earlier results and findings.

In the first decision, the ALJ found “the claimant

testified that steroid injection were [sic] not effective in

relieving her pain; however, her treating physician noted that

the claimant experienced up to two weeks worth of pain relief

and that during that time she was able to remain quite

active.” Rec. at 2 5 . On review, the court noted that the ALJ

failed to discuss D r . Miller’s treatment “report in August of 1999 that Rallis had undergone multiple injections without any

enduring relief.” Rallis,

7 4 , at * 1 4 . As part of

the current decision, the ALJ found “the claimant testified

that conservative treatment with steroid injection were [sic]

not effective in relieving her pain; however, her treating

physician noted that the claimant experienced up to two weeks

worth of pain relief and that during that time she was able to

remain quite active.” Rec. at 3 2 7 . Again, despite the

10 court’s previous ruling, the ALJ failed to consider D r .

Miller’s report to the contrary. Similarly, the ALJ again

found that Rallis was advised to use medication in moderation

and that she was being treated with over-the-counter

medication when the record demonstrates that many medications

had been prescribed for Rallis. The ALJ again noted D r . Miller’s report that Rallis had

repeatedly solicited an opinion letter from him that she was

permanently disabled due to her back condition and that he was

unable to comply with her request. In the first decision, the

ALJ did not explain the significance of that report for his

disability determination. In the current decision, the ALJ

stated that D r . Miller’s report suggested “treating source

reluctance to give the claimant’s subjective complaints any

credence.” Rec. at 3 2 6 . It appears that the ALJ is exaggerating the significance of D r . Miller’s report, which

merely states he could not give her a letter that she was

permanently disabled, not that he was reluctant to give her

complaints of pain any credence, and carefully reviews

Rallis’s symptoms and the medical findings. D r . Miller also

notes the communication problems caused by Rallis’s difficulty

with English.

The ALJ corrected his finding that “all treating

11 physicians advised [Rallis] to engage in aggressive physical

therapy programs and all noted that [she] was reluctant to do

so,” Rec. at 2 5 , to reflect that only one treating physician,

D r . Miller, made that recommendation, Rec. at 3 2 6 . He also

explained that D r . Miller’s recommendation suggested “an

ability to engage in a level of activity greater that [sic] which the claimant had alleged.” Rec. at 3 2 6 . D r . Miller

explained in his report, however, that Rallis was resistant to

his recommendation of aggressive physical therapy because “it

failed previously.” Rec. at 2 7 6 .

Although the ALJ corrected some of the deficiencies in

his first decision, the second decision is nevertheless

insufficient due to the ALJ’s continued mistakes in analyzing

the record. The ALJ again misconstrued some of the evidence. 3

Most importantly, it appears that the ALJ again applied the erroneous standard that because Rallis’s pain did not totally

preclude all of her activities, she did not show that she was

3 Oddly, in the present decision, the ALJ made a different RFC assessment than he had previously, based on essentially the same record, without any explanation. He then found that Rallis was able to return to her former work, again without mentioning his different previous finding that she was unable to do her former work. Although the ALJ made a new determination and was not bound by his previous findings, the discrepancies without any explanation are puzzling.

12 disabled. As the court clearly held in the prior order: “A

social security claimant need not be completely disabled from

all activities to be disabled for purposes of social security

benefits. S e e , e.g., Balsamo v . Chater,

5 , 81-82

(2d Cir. 1 9 9 8 ) ; Baumgarten v . Chater,

6 6 , 369 (8th

Cir. 1 9 9 6 ) ; Smith v . Califano,

6 8 , 971 (3d Cir. 1981).” Rallis,

7 4 , at * 1 5 . In addition, in

making the RFC assessment, the ALJ relied on the RFC

assessments provided by the state agency medical consultants

in 1999. He did not rely on D r . Frank Graf’s assessment, done

following an examination on September 1 5 , 2000, and a review

of Rallis’s medical records, because his findings were based

on only one examination a year and a half after the expiration

of her insured status. See

(d)(1)

(generally opinions of examining physicians given more weight). The ALJ failed to note, however, that D r . Graf, like

the state agency consultants, based his RFC assessment in part

on Rallis’s medical records, and that D r . Graf is an

orthopaedic surgeon, a specialist in the relevant medical

field. See § 404.1527(d)(5) (generally opinions of

specialists given more weight). The ALJ ignored the

assessment of Rallis completed by David R. Camlin, a

vocational consultant. Therefore, the ALJ failed to consider

13 or properly distinguish material record evidence in making his

RFC assessment.

Because of the legal and factual errors in the ALJ’s

decision, the case again must be reversed and remanded for

further proceedings consistent with this order. The court

recommends that this case be assigned to a different ALJ.

Conclusion

For the foregoing reasons, the plaintiff’s motion to

reverse the decision of the Commissioner (document n o . 6 ) is

granted. The Commissioner’s motion to affirm (document n o . 8 )

is denied.

The case is remanded for further proceedings that are

consistent with this order.

As this is a “sentence four” remand, the clerk of court

shall enter judgment and close the case.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge January 2 0 , 2004

cc: Raymond J. Kelly, Esquire

14 David L . Broderick, Esquire

15