Burrows v. SSA CV-04-145-PB 04/25/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Debra A . Burrows

v. Civil No. 04-CV-145-PB Opinion No.

Jo Anne Barnhart, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

On May 31, 2002, Debra Burrows filed applications with the

Social Security Administration ("SSA") for disability insurance

benefits ("DIB") and supplemental security income ("SSI").

Burrows alleged that she had been unable to work since April 30,

1999. The SSA denied her applications and granted her reguest

for a hearing by an Administrative Law Judge ("ALJ"). On May 6,

2003, ALJ Ruth Kleinfeld held a hearing and, in an opinion dated

January 30, 2004, denied Burrows' applications.

Burrows brings this action pursuant to

(g) of

the Social Security Act (the "Act") seeking review of the denial of her applications for benefits. Burrows first argues that the

ALJ failed to adequately support her determination that Burrows'

allegations of disability were not credible. She next argues

that the ALJ erred by not fully developing the record. For the

reasons set forth below, I disagree with both assertions.

I. BACKGROUND1

A. Education and Work History

Debra Burrows was 44 years old when her social security

applications were denied by the ALJ in January 2004. Transcript

of Record ("Tr.") 16, 21. Burrows, a high schoolgraduate,

worked as a certified nurse's aide("CNA") for eight years. Tr.

16, 78. She left her last job as a caretaker and house cleaner

for elderly individuals on April 30, 1999. Tr. 29-30, 77-78.

B. Medical History

Burrows began feeling feverish after her last day of work.

Still suffering from a fever, she went to Frisbie Memorial

Hospital on May 5, 1999. Tr. 131. The examiningphysician noted

1 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts submitted by the parties. (Doc. No. 6).

- 2 - that Burrows had a history of recurrent cellulitis.2 Tr. 131.

Burrows was treated with antibiotics until her fever abated.

Burrows returned to the hospital approximately a month

later, after developing pain in her right hip that worsened when

she moved. She was diagnosed with osteomyelitis of the right

proximal femur and mild chronic inflammation of the soft tissue.3

Tr. 126. She later underwent physical therapy, during which her

internal and external hip rotation and weight bearing capacity

were found to be limited. Burrows nevertheless reported that her

right hip pain improved dramatically during her hospital stay and

she was discharged on August 3, 1999.

On four follow-up visits between August 12 and December 21,

1999, Dr. Kalter noted that Burrows was increasingly mobile. At

her second follow-up visit. Burrows reported that she could walk

2 Cellulitis is an acute, diffuse, spreading, edamatous, suppurative inflammation of the deep subcutaneous tissues and sometimes muscle, which may be associated with abscess formation. It is usually caused by infection of an operative or traumatic wound, burn, or other cutaneous lesion by various bacteria, but Group A Streptococci and Staphylococcus aureus are the most common etiologic agents. Borland's Illustrated Medical Dictionary ("Dorland's") 295 (28th ed. 1994).

3 Osteomyelitis is an inflammation of the bone marrow and adjacent bone. Stedman's Medical Dictionary ("Stedman's") 1284 (27th ed. 2000) .

- 3 - up stairs on her own and enter, exit, and ride in a car. Two

weeks later. Burrows was able to walk with a cane. At Burrows'

fourth follow-up. Dr. Kalter noted that she had surprisingly good

range of motion in her hip and was able to bear full weight with

only moderate pain.

Burrows was admitted to the hospital again on May 25, 2000

with a high fever, leukocytosis, and redness and swelling of the

left leg. Her left lower extremity evolved into edema4,

erythema5, tenderness, ulcers, and eventually bullous6 lesions of

the cutaneous tissue. Dr. Hodge ruled out a diagnosis of deep

venous thrombosis and noted probable venous stasis disease. Tr.

151. Although Burrows' condition improved during her six-day

hospital stay. Dr. Hodge nevertheless noted that Burrows was at

continued risk for recurrent cellulitis given her obesity. Tr.

144 .

Burrows was hospitalized again on June 6, 2000 for swelling,

tenderness, and warmth in her left foot and ankle. She remained

4 An accumulation of watery fluid in cells or tissue. Stedman's at 566-567.

5 Redness due to capillary dilation. Stedman's at 615.

6 Like a blister or vesicle. Stedman's at 257.

- 4 - hospitalized for just over two weeks for unresolved cellulitis.

Tests revealed mild venous reflux in her left leg, as well as

post-traumatic arthritis of the left ankle. During a follow-up

visit on December 19, 2000, Dr. Kalter noted that Burrows had a

loss of internal rotation, but that she was able to walk with a

mild Trendelenburg gait without the use of a cane.7

Burrows was hospitalized yet again on June 23, 2001 when

swelling, pain, and redness returned in her right leg. She was

discharged five days later after treatment with intravenous

antibiotics.

Burrows entered the hospital for a fifth time on November

25, 2001. This time she remained for more than a month. An x-

ray revealed osteoarthritis of the right hip with spurring,

narrowing, and sclerosis. She was also treated for cellulitis

and increased pain and swelling in the left lower extremity.

During follow-up visits in January and February 2002, Dr. Hodge

and Dr. Hayter noted that Burrows was capable of moving about and

walked well without a cane. Dr. Hodge also noted that Burrows

reported that she was doing well and had no pain in her leg.

7 A side lurching of the trunk over the stance leg due to weakness in the gluteus medius muscle. Stedman's at 1640.

- 5 - Burrows was hospitalized again for twelve days on July 14,

2002 with cellulitis in her left leg. Tr. 253. Her cellulitis

again initially resolved with the use of intravenous antibiotics.

On September 8, 2002, however. Burrows was hospitalized for three

days with recurrent cellulitis, and on November 26, 2002, she

returned for four days after developing soreness in her right

leg. During the November hospitalization. Dr. Edwards noted that

the cellulitis in her right leg was related to venous

insufficiency, obesity, prediabetes, and psoriasis. In a section

of his report labeled "social history," Dr. Edwards stated that

Burrows was "totally disabled" and could only ambulate short

distances in the home.

On September 5, 2002, Dr. Cataldo, an agency program

physician, reviewed Burrows' medical records and completed a

residual functional capacity ("RFC") assessment. Tr. 224, 232.

Dr. Cataldo stressed that Burrows' primary care physician. Dr.

Stacey, had noted that Burrows' most recent bout of cellulitis

was "well-healed." Tr. 230. Dr. Cataldo explained that Burrows'

conditions of recurrent cellulitis and chronic venous stasis

supported a reduced functional capacity, but that the limitations

Burrows complained of were not supported by the objective medical

- 6 - evidence. Tr. 230.

Burrows began physical therapy on December 30, 2002, as

recommended by Dr. Hayter. During a month of physical therapy.

Burrows was educated about appropriate skin care for cellulitis

and edema and was taught how to use bandages and compression

stockings. Tr. 240.

Burrows initially took narcotics to manage her pain after

her surgery in June 1999. She switched her medication to Ultram

on September 2, 1999. Tr. 133. By December 21, 1999, however.

Burrows was taking only Motrin for pain. Tr. 137. Medical

records and Burrows' testimony indicate that by May 2000, she was

taking Tylenol or Ibuprofen for pain. Tr. 150, 33.

C. Burrows' Tes timony

At the May 6, 2003 hearing. Burrows answered her attorney's

guestions and testified that she could not work as a caretaker

because she could only stand for fifteen minutes at a time. Tr.

30. Burrows also testified that she had very little mobility

from August until December 1999, and that she therefore used

either a wheelchair or a walker during that period. Tr. 32.

Burrows additionally reported that she could not climb stairs and

that she did not do any household chores during that time period.

- 7 - T r . 35 .

Burrows attended the hearing in a wheelchair and testified

that she used a wheelchair or a rider cart every time she went

out of the house to travel a walking distance. Tr. 30. Burrows

testified that she felt good in between bouts of cellulitis and

that she helped with household chores when she could use her

wheelchair while doing those chores. Tr. 37.

Burrows testified that her daily activities included

knitting or crocheting for two to three hours while sitting. Tr.

38. She also testified that she was able to sit and work at a

computer. Tr. 39. Burrows testified that she was stiff when she

stood up after sitting for any length of time. Tr. 36.

D. Vocational Expert's Testimony

Vocational expert ("VE"), Ralph Richardson, classified

Burrows' past work as a CNA as medium, semi-skilled, and her work

as a caretaker as medium, unskilled work. Tr. 40-41. Richardson

testified that Burrows' RFC permitted only light or sedentary

work and thus she could not perform her past relevant work. Tr.

41. He also identified a number of light or sedentary jobs with

a sit/stand option that would allow Burrows to elevate her leg.

- 8 - Richardson found that even with her limitations. Burrows could

nevertheless work as an assembler (885,500 national positions),

cashier (1,600,300 national positions), order clerk (268,000

national positions), or sorter (655,000 national positions). Tr.

41-43.

E. The ALJ's Decision

The ALJ denied Burrows' disability applications because she

found that although Burrows suffered from a medical impairment,

she could perform a substantial number of jobs in the national

economy. Tr. 19. The ALJ followed the five-step sequential

analysis to reach her decision. See

(2005).

The ALJ determined that Burrows: (1) had not engaged in

substantial gainful activity since April 30, 1999; (2) had severe

medical impairments including post-osteomyelitis, venous

insufficiency, hypertension, diabetes, and obesity; but that (3)

her impairments did not meet or equal a listed impairment; and

(4) although her impairments prevented Burrows from performing

her past relevant work as a CNA or a caretaker; (5) her

impairments did not prevent Burrows from doing other gainful

work. T r . 19-2 0.

- 9 - The ALJ thoroughly reviewed Burrows' medical records to

determine that her impairments did not meet or equal any listed

impairments. Tr. 17-18. The ALJ also found that Burrows'

impairments did not meet the 12-month continuous standard

required for a finding of a disability. Tr. 16. The ALJ further

found that Burrows' physicians' descriptions did not support the

conclusion that Burrows was unable to work. Tr. 17. In so

holding, the ALJ referred briefly to Dr. Edwards' report, which

the ALJ claimed described Burrows' medical history in a manner

similar to the way it was described in the ALJ's opinion. The ALJ

then found that the medical record was consistent with the agency

program physician's RFC assessment, which concluded that Burrows

could perform a full range of sedentary work and a limited range

of light work. Tr. 18.

Based on the RFC assessment, the VE stated that although

Burrows could not return to her past work, she could perform

other occupations, even given the additional limitation of

needing to elevate her legs. Tr. 18-19. The ALJ concluded that

this testimony was consistent with the medical record, and thus

found that Burrows' assertions of disability lacked credibility.

Tr. 18-19.

- 10 - II. STANDARD OF REVIEW

Under the Act, the factual findings of the ALJ are

conclusive if supported by "substantial evidence." See

(g); Ortiz v. Sec'y of Health & Human Servs.,

(1st Cir. 1991). I therefore 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." Rodriguez v. Sec'y of Health & Human Servs.,

(1st Cir. 1981). The ALJ's decision is supported

by substantial evidence if, given all the evidence, it is

reasonable. Additionally, it is the function of the ALJ, and not

the courts, to determine issues of credibility, to draw

inferences from the record evidence, and to resolve conflicts in

the evidence. Ortiz,

.

The ALJ's findings of fact are not conclusive, however,

"when derived by ignoring evidence, misapplying the law, or

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

(1st Cir. 1999). If the Commissioner, through the

ALJ, has misapplied the law or failed to provide a fair hearing,

deference to the Commissioner's decision is not appropriate, and

remand for further development of the record may be necessary.

- 11 - See Seavey v. Barnhart,

(1st Cir. 2001). I apply

these standards to the arguments Burrows raises in her appeal.

III. ANALYSIS

Burrows argues that the ALJ failed to base her conclusion

regarding Burrows' credibility on substantial evidence and that

she failed to explain her decision in sufficient detail. She

also argues that the ALJ failed to properly consider relevant

medical evidence and that she should have reguested additional

evidence in order to reach an adeguately informed decision. For

the reasons set forth below, I reject Burrows' claims and affirm

the ALJ's decision.

A. ALJ's Assessment of Burrows' Credibility

In determining the credibility of a person's statements, an

adjudicator must consider the entire record, which includes the

objective medical evidence, the individual's subjective

statements about symptoms, information provided by medical

specialists, and any other relevant evidence in the record. See

Social Security Ruling ("SSR") 96-7p,

, at *1

(19 96); Avery v. Sec'y of Health & Human Servs.

, 21

- 12 - (1st Cir. 1986). So long as a credibility determination is

supported by the evidence, the ALJ's determination is entitled to

deference since she observed the claimant, evaluated the

claimant's demeanor, and considered how the claimant's testimony

corresponded with the rest of the evidence. Frustaglia v. Sec'y

of Health & Human Servs.,

(1st Cir. 1987) (per

curiam).

In addition to being based upon substantial evidence, an

ALJ's evaluation of a claimant's credibility must be supported by

specific findings. See Machos v. Apfel, 2000 D.N.H 139, 2000

U.S. List. LEXIS 9105, at *16-17 (D.N.H. 2000); Rohrberg v.

Apfel,

(D. Mass. 1998). “It is not

sufficient for the adjudicator to make a single, conclusory

statement that ‘the individual’s allegations have been considered’

or that ‘the allegations are (or are not) credible.’ . . . [the

decision] must be sufficiently specific to make clear . . . the

weight given to the individual's statements and the reasons for

that weight.” SSR 96-7p,

, at *2.

In concluding that Burrows' allegations of her disability

were not credible, the ALJ cited the evidence that she relied on

in making her determination. Though Burrows testified that she

- 13 - had problems walking any distance, that she therefore needed to

use a wheelchair, and that she could not climb stairs after her

hip surgery in June 1999, her medical records reveal that Burrows

was walking up stairs on her own in September of that year. Tr.

133. Additionally, notes from a four-month follow-up to her hip

surgery indicate that Burrows was walking then without a cane.

Tr. 138. Doctors continued to note that Burrows was able to walk

without a cane in June 2000, December 2000, and February 2002.

Tr. 139, 141, 207. Doctors also noted during follow-up visits

that Burrows still had good range of hip and ankle motion (the

specific areas affected by osteomyelitis and cellulitis). Tr.

137, 150, 173. The ALJ concluded on the basis of this evidence

that Burrows was not credible because her testimony regarding her

limitations conflicted with the medical record and with the RFC

assessments that were based upon those medical records. Tr. 19.

The ALJ specifically stated in her opinion that Burrows'

subjective complaints were not credible because Burrows was not

significantly limited in her daily living activities. Tr. 18-19.

This credibility determination was also supported by internal

inconsistencies in Burrows' testimony. For instance, at her

hearing Burrows testified that she could not sit for any length

- 14 - of time without getting stiff. Burrows also testified, however,

that she could sit for two to three hours while knitting or

crocheting, and her medical records indicate that she was able to

take a long car trip about three months after her surgery. Tr.

133. This evidence further suggests that it was reasonable for

the ALJ to determine that Burrows' testimony was not credible and

that Burrows was in fact capable of sitting and performing

sedentary work. The record therefore contains sufficient

evidence to support the ALJ's credibility determination.

B. ALJ's Consideration of Relevant Medical Evidence

Burrows also claims that the ALJ erred in failing to solicit

additional evidence from her treating physicians concerning her

residual functional capacity. Burrows' strongest argument on

this point is that additional evidence was needed because Dr.

Edwards stated in his report that Burrows was "totally disabled,"

and none of her other treating physicians performed a formal

assessment of her residual functional capacity.

I am not persuaded that the ALJ erred in failing to further

develop the record. First, Burrows was represented by counsel at

the hearing before the ALJ. Accordingly, the ALJ's duty to seek

- 15 - out supplemental evidence was not the same as it would have been

in a case where the claimant was unrepresented. Second, Dr.

Edwards' statement that Burrows was totally disabled is a report

of her social history rather than an opinion concerning her

medical condition. As such, it is cumulative of Burrows'

testimony at the hearing concerning her functional limitations.

Third, although none of Burrows' treating physicians made a

formal assessment of her functional capacity, they did produce

detailed records concerning her medical condition and these

records were used initially by Dr. Cataldo and ultimately by the

ALJ in assessing her functional capacity. Under these

circumstances, the ALJ did not err in failing to seek additional

medical evidence from Burrows' treating physicians.

IV. CONCLUSION

Since I have determined that the ALJ's denial of Burrows'

benefits was supported by substantial evidence, I affirm the

Commissioner's decision. Accordingly, Burrows' Motion to Reverse

(Doc. No. 4) is denied, and Defendant's Motion for an Order

Affirming the Decision of the Commissioner (Doc. No. 5) is

- 16 - granted. The clerk shall enter judgment accordingly.

SO ORDERED.

Paul Barbadoro United States District Judge

April 25, 2005

cc: Vickie S. Roundy, Esg. David L. Broderick, Esg.

- 17 -