Opinion
Civil Action No. 06-30143-KPN.
July 10, 2007
This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration ("Commissioner") regarding an individual's entitlement to Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") pursuant to 42 U.S.C. §§ 405(g) and 1381(c)(3). Patricia Avery ("Plaintiff") asserts that the Commissioner's decision denying her such benefits — memorialized in a February 10, 2006 decision of an administrative law judge — is in error. She has filed a motion to reverse and the Commissioner, in turn, has moved to affirm.
With the parties' consent, this matter has been assigned to the undersigned for all purposes, including entry of judgment. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b). For the reasons that follow, the Commissioner's motion to affirm will be denied and Plaintiff's motion will be allowed to the extent it can be said to seek remand as an alternative to reversal.
Although Plaintiff's motion specifically seeks reversal, she styled it a motion to remand in her Electronic Case File entry.
I. STANDARD OF REVIEW
A court may not disturb the Commissioner's decision if it is grounded in substantial evidence. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Substantial evidence is such relevant evidence as a reasonable mind accepts as adequate to support a conclusion. Rodriguez v. Sec'y of Health Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The Supreme Court has defined substantial evidence as "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971). Thus, even if the administrative record could support multiple conclusions, a court must uphold the Commissioner's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion." Ortiz v. Sec'y of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citation and internal quotation marks omitted).The resolution of conflicts in evidence and the determination of credibility are for the Commissioner, not for doctors or the courts. Rodriguez, 647 F.2d at 222; Evangelista v. Sec'y of Health Human Servs., 826 F.2d 136, 141 (1st Cir. 1987). A denial of benefits, however, will not be upheld if there has been an error of law in the evaluation of a particular claim. See Manso-Pizzarro v. Sec'y of Health Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In the end, the court maintains the power, in appropriate circumstances, "to enter . . . a judgment affirming, modifying, or reversing the [Commissioner's] decision" or to "remand the cause for a rehearing." 42 U.S.C. § 405(g).
II. BACKGROUND
Plaintiff, born on September 27, 1957, received a high school education and a certificate in clerical business from Holyoke Community College. (Administrative Record ("A.R.") at 63, 396.) Her work experience includes jobs as a bank teller, counter clerk and tax preparer. (A.R. at 384, 386-89, 394, 404.) She currently resides in Westfield, Massachusetts. (A.R. at 13.)
A. Medical History
Plaintiff claims that her disability began on September 23, 1997, following a slip and fall accident in her shower. (A.R. at 63, 382.) The main impairments which she claims to be disabling are neck, back and leg pain, with pain being worse in her right leg. (A.R. at 375.) For the most part, her pain is constant. (A.R. at 375-77.) Plaintiff claims her legs give out a few times a month and that her pain increases by standing or sitting too long. (A.R. at 376, 377.)
Shortly after her accident, Plaintiff began medical treatment for neck pain at Medical West Associates. (A.R. at 162.) On October 2, 1997, the record indicates that Plaintiff had slightly limited range of neck motion. (A.R. at 162.) The physician at that time, Dr. Thomas Hewitt, diagnosed a simple contusion with muscle spasm. ( Id.) He referred Plaintiff for a cervical spine x-ray which showed minimal chronic discogenic disease at C5-C6 and minimal narrowing of the right fifth cervical foramen with no fracture or other acute abnormality. (A.R. at 171.) Thereafter, through February of 1999, Plaintiff was seen primarily by Dr. Mark Kassis. (See A.R. 149-67.)
On January 26, 1998, Plaintiff reported ongoing shoulder and occasional lower back pain, for which Dr. Kassis prescribed Ibuprofen and Soma. (A.R. at 160.) Soon thereafter, on March 9, 1998, Plaintiff experienced severe muscle spasms and pain, extending from her mid to upper back. (A.R. at 158.) Dr. Kassis prescribed Naprosyn and recommended physical therapy. (A.R. at 157-59.) Over the next year, Plaintiff was treated for chronic neck and shoulder pain. (A.R. at 138, 147-54.) During those months, she was variously prescribed Voltaren, Soma, and Imipramine and physical therapy. ( Id.)
On February 15, 1999, Dr. Dennis Gordan, also of Medical West Associates, examined Plaintiff. (A.R. at 139.) Upon examination, Plaintiff was intact to pin sensation in her upper and lower extremities. (A.R. at 140.) Strength testing in the upper extremities was 4+ out of 5, although Dr. Gordan noted that her effort seemed poor and her reactions exaggerated. ( Id.) He advised Plaintiff to continue with her medications and expressed hope that anti-depressants would help her tolerate physical therapy. (A.R. at 139-41, 144.)
On November 19, 1999, Plaintiff saw Gloria Stewart, a nurse practitioner at Family Medicine Associates, for moderate lumbar discomfort radiating into her legs. (A.R. at 243, 271.) X-rays of Plaintiff's cervical and lumbar spine showed no significant abnormality. Ms. Stewart advised Plaintiff to exercise, apply moist heat to her back, and use muscle relaxants for back spasms. (A.R. at 240.) On May 19, 2000, a magnetic resonance imaging ("MRI") examination showed bilateral mild narrowing of the neural foramina as well as mild diffuse bulge and posterior spurring at C5-C6. (A.R. at 264-67.)
On June 7, 2000, Dr. Savvas Papazoglou, a neurosurgeon, found no evidence of acute radiculopathy in Plaintiff's cervical or lumbar areas. (A.R. at 271-72.) He noted, however, that Plaintiff had an element of cervical spondylosis, mild degenerative changes at the L5-S1 levels, and some left sacroiliac joint inflammation. He also advised physical therapy. ( Id.)
Also in June, Plaintiff was referred for further evaluation and physical therapy to Pioneer Spine and Sports Physicians. (A.R. at 274-75.) There, Dr. Brett Hynninen recommended a course of physical therapy, which was eventually terminated in March of 2001 after Plaintiff attended four visits, cancelled one, and "no-showed" two times. (A.R. at 276.)
By January of 2001, Ms. Stewart noted that Plaintiff displayed moderate discomfort upon palpitation in addition to some pain with flexion of the left leg. (A.R. at 233.) Ms. Stewart's impression was that Plaintiff had sciatic discomfort for which she prescribed Darvon. ( Id.) Two weeks later, when Plaintiff reported that Darvon made her lethargic, her medication was changed to Tylenol. (A.R. at 232.) At this time, Ms. Stewart cleared Plaintiff to return to work. ( Id.) Plaintiff continued treatment with Ms. Stewart through April of 2005, for neck, back and leg pain and was consistently prescribed pain medication. (A.R. at 180-231, 309-18.) Although Plaintiff's Vicodin was subsequently changed to Percocet, she still complained of pain in her arms, wrist, knees and hips. (A.R. at 182, 309-18.)
On June 17, 2004, Dr. Romany Girgis, a state agency physician, reviewed Plaintiff's medical records and conducted a Physical Residual Functional Capacity Assessment. (A.R. at 286-93.) Dr. Girgis found that Plaintiff could lift and carry up to twenty pounds occasionally and ten pounds frequently. ( Id.) He also indicated that she could stand or walk for at least six hours out of an eight hour day, could perform postural activities such as stopping or bending on an occasional basis, and was restricted to occasional overhead reaching. ( Id.)
On October 8, 2004, Dr. Upadhyay Ram, another state agency physician, conducted a second Physical Residual Functional Capacity Assessment. (A.R. at 295-302.) Dr. Ram essentially concurred with Dr. Girgis' findings. ( Id.) Dr. Ram noted that Plaintiff's MRI results showed degenerative joint disease with mild narrowing at C5-6 and a bulging disc at L4-5. (A.R. at 296.) Dr. Ram opined that Plaintiff should avoid concentrated exposure to extreme cold and hazards such as unprotected heights and machinery. (A.R. at 298-99.)
On December 18, 2005, Dr. George Reynolds, Plaintiff's treating physician, assessed Plaintiff's physical capacities for the Department of Transitional Assistance. (A.R. at 344.) He limited Plaintiff to lifting less than forty pounds. (A.R. at 346.) In addition, Dr. Reynolds indicated that Plaintiff experiences pain in both hips when sitting for more than thirty minutes, and is unable to walk and stand for over ten to fifteen minutes without pain in her extremities. (A.R. at 347.) He noted that, while Plaintiff was able to stoop and bend, she could do so only with pain in her back and legs, and that she had some trouble reaching objects. ( Id.)
B. Procedural History
On April 1, 2004, in the midst of those medical benchmarks, Plaintiff applied for both SSDI and SSI benefits due to neck, back and leg pain. (A.R. at 63-65, 100-11, 350-53.) Her applications were denied initially and on reconsideration. (A.R. at 25-32, 358-63.)
Plaintiff then requested a hearing before an administrative law judge ("ALJ"), which was held on February 7, 2006, at which both Plaintiff and a vocational expert testified. (A.R. at 371-405.) In his decision dated February 10, 2006, the ALJ found that Plaintiff was not disabled. (A.R. at 17-22.) On July 3, 2006, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision final for present purposes. (A.R. at 8-11.)
III. DISCUSSION
An individual is entitled to SSDI benefits if, among other things, she has an insured status and, prior to the expiration of the status, was under a disability. See 42 U.S.C. § 423(a)(1)(A) and (D). Entitlement to SSI, on the other hand, requires a showing of both disability and financial need. See 42 U.S.C. § 1381a. Plaintiff's need, for purposes of SSI, and her insured status, for purposes of SSDI, are not challenged.
A. Disability Standard and the ALJ's Decision
The Social Security Act (the "Act") defines disability, in part, 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 last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3)(A) (similar). An individual is considered disabled under the Act
only if [her] physical and mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49 (1987).
In determining disability, the Commissioner follows the five-step protocol described by the First Circuit as follows:
First, is the claimant currently employed? If [s]he is, the claimant is automatically considered not disabled.
Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits the claimant's physical or mental capacity to perform basic work-related functions." If [s]he does not have an impairment of at least this degree of severity, [s]he is automatically not disabled.
Third, does the claimant have an impairment equivalent to a specific list of impairments in the regulations' Appendix 1? If the claimant has an impairment of so serious a degree of severity, the claimant is automatically found disabled.
. . . .
Fourth . . . does the claimant's impairment prevent [her] from performing work of the sort [s]he has done in the past? If not, [s]he is not disabled. If so, the agency asks the fifth question.
Fifth, does the claimant's impairment prevent [her] from performing other work of the sort found in the economy? If so [s]he is disabled; if not [s]he is not disabled.Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
In the instant case, the ALJ found as follows with respect to these questions: Plaintiff had not engaged in substantial gainful activity since the alleged onset of her disability (question one); Plaintiff has impairments that are "severe," but which do not meet or medically equal one of the listed impairments in Appendix 1 (questions two and three); Plaintiff is prevented from performing her past relevant work (question four); but Plaintiff is able to perform a significant number of jobs in the national economy, including work as a general office worker, information clerk, or surveillance system monitor (question five). (A.R. at 21-22.) As a result, the ALJ concluded that Plaintiff does not suffer from a disability. ( Id.)
B. Plaintiff's Challenge to the ALJ's Decision
Plaintiff makes two arguments in support of her motion. First, Plaintiff contends that the ALJ did not properly consider her subjective complaints of pain when making his credibility determination; in particular, she contends that the ALJ did not follow the instructions set forth in the Program Operations Manual System DI T00401.570 ("POMS") which were issued by the former Secretary of Health and Human Services on August 1, 1985 and appended to the First Circuit's decision in Avery v. Sec'y of Health Human Servs., 797 F.2d 19 (1st Cir. 1986). Second, Plaintiff argues that the testimony of the vocational expert should have been disregarded by the ALJ because the hypothetical question posed by him did not correspond to the medical record. For his part, the Commissioner argues that the ALJ's decision is based on substantial evidence in the record and not predicated on errors of law.
1. The ALJ's Credibility Determination
Plaintiff contends that the ALJ failed to fully and properly consider her subjective complaints of pain and the evidence contained in her medical records which supported the limitations that pain places on her daily functions. Plaintiff further finds fault with the ALJ's statement that her "allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision." (A.R. at 21.) In particular, Plaintiff argues, the ALJ's failure to give specific reasons for his findings is an error of law. Given the unique circumstances of this case, the court agrees.
The court begins with some basics on credibility:
The First Circuit has long acknowledged that an administrative law judge is not required to take a claimant's subjective allegations at face value. See Bianchi v. Sec'y of Health Human Servs., 764 F.2d 44, 45 (1st Cir. 1985) (citation omitted). Moreover, it is well established that a court must generally defer to credibility determinations made by an administrative law judge. See Frustaglia v. Sec'y of Health Human Servs., 829 F.2d 192, 195 (1st Cir. 1987); Brown v. Sec'y of Health Human Servs., 740 F. Supp. 28, 36 (D. Mass. 1990). Nonetheless, a court must review an administrative law judge's determination to see if it comports with the law. In essence, the court must ensure that an administrative law judge made specific findings to the "relevant evidence" when deciding to disbelieve a claimant. See Da Rosa v. Sec'y of Health Human Servs., 803 F.2d 24, 26 (1st Cir. 1986). See also Social Security Ruling (SSR) 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 61 Fed. Regs. 34, 483, 34, 485-86 (1996) (requiring that "[w]hen evaluating the credibility of an individual's statements, the adjudicator must . . . give specific reasons for the weight given to the individual's statements"; and "the reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision").Arroyo v. Barnhart, 295 F. Supp. 2d 214, 223 (D. Mass. 2003).
The First Circuit has explained as well that, "in assessing [a claimant]'s subjective complaints and determining [her] residual functional capacity," an administrative law judge's analysis must be "consistent with the interpretive guidelines set forth in the POMS instructions." Da Rosa, 803 F.2d at 26. Quoting the POMS instructions, the First Circuit in Avery was careful to note just how important the pain assessment is: the administrative law judge "must be aware that symptoms, such as pain, can result in greater severity of impairment than may be clearly demonstrated by the objective physical manifestations of a disorder." Id., 797 F.2d at 23.
The POMS instructions speak directly to Plaintiff's situation here, i.e., "[w]hen the claimant indicates that pain is a significant factor of his/her alleged inability to work, and the allegation is not supported by objective findings in the file." Id. at 28 (appendix). Faced with such a situation, an administrative law judge " shall obtain detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant." Id. (emphasis added). It is "essential," the instructions continue, for the administrative law judge "to investigate all avenues presented that relate to subjective complaints, including the claimant's prior work record and information and observations by treating and examining physicians and third parties." Id. (emphasis added). Such information includes the following factors, typically referred to in this circuit as the Avery factors:
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.Id. at 28-29. See also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2007) (further describing process for evaluating pain and other symptoms). "[I]n all cases in which pain is alleged," the instructions continue, "the determination rationale is to contain a thorough discussion and analysis of the objective medical and nonmedical evidence, including the individual's subjective complaints and the adjudicator's personal observations." Avery, 797 F.2d at 29 (appendix).
Here, the ALJ's credibility determination did not comport with the POMS instructions in general or the Avery factors in particular. To be sure, the ALJ stated in his decision that he had "considered" Plaintiff's testimony "to the effect that her pain is severe, constant, and unremitting to the point that prevents her from working full-time, and her further testimony that she has side effects from her medications that prevents [sic] her from meeting the mental demands of work." (A.R. at 20.) But the only analysis provided by the ALJ was his conclusion that Plaintiff's limitations, to the extent described, were "not reflected in the record." ( Id.) This hardly provides the required "thorough discussion and analysis." Avery, 797 F.2d at 29. See also Phillips v. Barnhart, 421 F. Supp. 2d 272, 279 (D. Mass. 2006) (credibility determination does not comport with Avery or POMS instructions absent specific analysis). Compare Tiso v. Barnhart, 2007 WL 107749, at *8 (D. Mass. Jan. 9, 2007) (credibility determination was sufficiently supported by specific findings addressing each Avery factor). Granted, the ALJ also stated that Plaintiff's "doctors" have, at times, observed "that the claimant's description of her pain and limitations is out of proportion to the objective findings and the record does not show that the claimant has complained of unwanted side effects from her current medications." (A.R. at 20.) But this finding is not reflected in the record. Rather, in contrast to the extensive documentation provided by her other physicians, only one "doctor" indicated that Plaintiff's reactions seemed exaggerated. (See A.R. at 140.)
The ALJ also failed to discuss the weight he gave (or decided not to give) to Plaintiff's testimony with regard to all six Avery factors. See Bazile v. Apfel, 113 F. Supp. 2d 181, 188 (D. Mass. 2000) ("All six [factors] must be given consideration."). See also Torres v. Barnhart, 235 F. Supp. 2d 33, 43 (D. Mass. 2002) ("passing reference to Avery" insufficient). This failure is particularly problematic here because the record is replete with references to Plaintiff's daily activities, degree of pain, medications (including side effects), and functional limitations. For example, Plaintiff provided extensive testimony that her pain severely restricted her ability to grocery shop, cook, and do housework. (See e.g., A.R. at 380, 392-94.) Nowhere, however, does the ALJ adequately explain his decision to disregard such testimony. See Phillips, 421 F. Supp. 2d at 279 (hearing officer must give specific reasons for weight given claimant's testimony). To be sure, the ALJ was free to disbelieve Plaintiff's subjective testimony, but he "must make specific findings as to the relevant evidence he considered in determining to disbelieve [her]." DaRosa, 803 F.2d at 26. The ALJ having failed to do so, remand is appropriate.
2. Vocational Expert Testimony
The ALJ's failure to abide by the requirements of Avery appears to have contaminated his treatment of the vocational expert's testimony as well. In particular, Plaintiff contends, the hypothetical question posed by the ALJ was not based on facts which corresponded to the medical record, i.e., that Plaintiff was only able to bend and stoop with pain. In addition, Plaintiff asserts, the ALJ failed to include in the hypothetical the fact that Plaintiff's pain medication had adverse side effects which affected her ability to work. See Arocho v. Sec'y of Health Human Servs., 670 F.2d 374, 375 (1st Cir. 1982) (vocational expert's testimony is relevant only to the extent it responds to hypotheticals reflecting the medical record); Coggon v. Barnhart, 354 F. Supp. 2d 40, 61 (D. Mass. 2005) (administrative law judge must base hypothetical on substantially supported assessment of claimant's functional limitations) (citing Rose v. Shalalah, 24 F.3d 13, 19 (1st Cir. 1994)). Accordingly, Plaintiff argues, the vocational expert's testimony should be disregarded in its entirety.
The court's review of the record reveals that the ALJ's hypothetical did indeed omit any mention that bending and stooping would cause Plaintiff pain, despite evidence to that effect in the medical record. Dr. Reynolds, for example, had noted that Plaintiff was able to stoop and bend, but only "with pain in her back and legs." (A.R. at 347.) The record also reveals that, when eliciting testimony, the ALJ failed to mention Plaintiff's pain medication. Although the evidence was not overwhelming in this regard, Plaintiff had called her physician to report that Darvon was making her "jumpy" (A.R. at 232) and testified that the Percocet she was taking impaired her ability to concentrate (A.R. at 378-80). If the ALJ believed that Plaintiff's myriad statements with respect to the side effects did not deserve credit, he should have clarified the basis for that decision. See Wells v. Barnhart, 267 F. Supp. 2d 138, 148 (D. Mass. 2003) (remanding case because administrative law judge provided no basis for his instructions to vocational expert to assume side effects of claimant's medication were minor to moderate). These failures run parallel to the ALJ's failure to fully analyze Plaintiff's complaints of pain in accord with Avery.
IV. CONCLUSION
For the foregoing reasons, the Commissioner's motion to affirm will be DENIED and Plaintiff's motion to reverse will be ALLOWED to the extent it can fairly be read to request a remand. On remand, the administrative law judge shall undertake the analyses discussed above.IT IS SO ORDERED.