Opinion
Civil Action Number 01-11206-RGS
August 20, 2002
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Sharon Levesque appeals the decision of the Secretary of Health and Human Services denying her application for Social Security disability benefits. Levesque maintains that the Administrative Law Judge (ALJ) neglected to follow the prescribed standards for evaluating subjective complaints of pain, overlooked significant portions of the medical record, and ignored expert medical testimony that he himself elicited.
BACKGROUND
Levesque, who is forty-one years old, graduated from high school and completed one year of college. She has worked variously as a retail sales associate, clerical assistant, picture framer, and manager of a residential home for the mentally handicapped. She alleges that she lost the ability to work in November of 1993 because of excruciating pain in her non-dominant left hand, fingers, wrist, arm, and neck. Her last attempt at employment was from August of 1997 through December of 1997, when she worked as a part-time sales person. She quit that job because of stress that she attributes to her pain-induced lack of sleep and the responsibilities of caring for three young children.
Levesque's insured status expired on September 30, 1995. Her first visit to a physician concerning the pain in her left hand occurred on October 2, 1995, when she saw Dr. Harvey Reback, an internist, with whom she had previously treated for neck strain. According to Dr. Reback's notes, Levesque claimed to have been experiencing pain in her hand for eighteen months. Dr. Reback was of the opinion that the pain was caused by traumatic neuritis of the inter-costal nerve of the left #4 finger. He ruled out carpal tunnel syndrome. Dr. Reback prescribed a finger splint.
Levesque notes that the ALJ mistakenly stated in his decision that Levesque's first medically documented complaint concerning her hand was on December 7, 1995.
Levesque sought a second opinion from Dr. Kathleen Kroessler, a neurologist, on March 7, 1996. Levesque told Dr. Kroessler that the pain in her left hand had manifested itself eighteen months earlier and had "remained quite severe." Dr. Kroessler's diagnosis was reflex sympathetic dystrophy. Dr. Kroessler recommended acupuncture, as Levesque expressed reservations about the effect medication might have on her ability to conceive another child.
Reflex sympathetic dystrophy is characterized by pain and limited motion of the shoulder and ipsilateral involvement of the hand.
Levesque returned to see Dr. Kroessler on March 14, 1996, for a follow-up examination. X-rays of Levesque's left hand revealed some bony changes. Both a cervical MRI and a nerve conduction study showed normal results. Dr. Kroessler again recommended acupuncture because Levesque was "very adverse to using medication."
Levesque complained of pain in her left hand to her primary care physician, Dr. Jerald Kupperberg, on March 22, 1996. Based on a diagnosis of radicular neuropathy (a nerve fiber disorder), Dr. Kupperberg opined that Levesque was no longer capable of full-time employment.
This visit is the first to Dr. Kupperberg in which a complaint of hand pain is documented.
Levesque began physical therapy in December of 1995. She exhibited parathesias and increased tension in her left hand and forearm. She complained of pain in her left hand with numbness, a burning sensation, sensitivity to cold, and an "ache" after carrying objects. Levesque attended bi-weekly physical therapy sessions through early February of 1996. She resumed physical therapy in August of 1996, after complaining of back and neck strain. These sessions continued to October of 1996, and then resumed in January of 1997 and continued until June of 1999. Levesque told her physical therapist that she felt "better," that she had "a lot of relief," felt a big improvement, and, on some days, had no complaints of pain.
Dr. Oscar Cartaya, a state agency physician, performed a residual functional capacity assessment of Levesque in May of 1997. Dr. Cartaya observed atrophic changes and diminished gripping and fingering abilities in Levesque's left hand. Dr. Cartaya concluded that Levesque retained the capacity to perform light work with limited use of her left hand, so long as she was not exposed to temperature extremes or vibrations.
A second physical residual functional capacity assessment was performed in August of 1997 by Dr. Mark Colb, also a state agency physician. Dr. Colb found Levesque fit for medium work with restrictions on the use of her left hand. He also recommended avoidance of exposure to extreme heat or cold. Dr. Colb's examination found "minimal, if any, weakness in the left hand." He also noted that "all specific medical information" was dated after March of 1996, six months after Levesque's last insured date, and nearly two and one-half years after she alleged to have begun feeling pain.
Dr. Colb apparently did not have access to Dr. Reback's notes.
At the administrative hearing, Levesque described the pain in her hand as follows.
Sometimes it's like somebody has got a knife like stabbing through my hand and twisting it. Sometimes it feels like my hand is in a brace and it's being squeezed. Sometimes the pain subsides and it's tolerable like toothache. It just varies. Sometimes it's just like a searing pain like my hand is on fire. And day to day The pain can change. A lot of times the weather has a lot to do with it. I find that damp days and days when there's low pressures coming through I have my worse pain. It's unbearable and sometimes it can last for days.
She further testified that she experiences severe pain on an average five of seven days a week and that the pain lasts a few hours, or sometimes for as long as three or four days. While Levesque refuses to take prescription medicine because it "knocks her out," she does take homeopathic curatives and Ibuprofen.
At the time of the hearing, Levesque's older children were ages seven and nine and largely able to fend for themselves. However, Levesque testified that she has difficulty attending to her (then) four-month old baby, and relies on her husband, mother, and mother-in-law for assistance. Levesque testified that she pushes the baby around the house in a stroller, lifting her only to change her diaper, and then keeping the baby's weight on her right side. According to Levesque, her husband does "90% of the housework," including laundry and grocery shopping, but that she shares the cooking duties, although she is unable to lift heavy pots or open jars.
The ALJ on his own initiative summoned a medical expert witness, Dr. Henry Essex, an orthopedic surgeon. Dr. Essex testified that Levesque suffers from "severe intractable pain of the left hand which has been diagnosed as reflex sympathetic dystrophy." Dr. Essex stated that while the condition is "unusual," Levesque exhibited objective symptoms, including "bony changes . . . [and] atrophy of the muscles of the hand, which appear latent in this condition. [Her] history of cold, sensitivity and sensitivity against minor trauma is typical of this condition." Louis Testa, a vocational expert also testified. Testa opined that if Levesque's complaints were true, "[b]ecause of the pain she experiences in the left arm and hand and how limited her daily living and her work-related activities [are]", she was unable to work.
In an opinion dated July 7, 1999, the ALJ found that Levesque had suffered no verifiable impairment prior to September 30, 1995, the last date on which she was eligible for disability insurance. Despite the dispositive nature of this finding, the ALJ also found that Levesque was capable of working as a house manager, sales clerk, or office assistant throughout the period when she was insured, and, therefore, was not disabled. Specifically, the ALJ found as follows:
1. The claimant met the disability insured status requirements of the Act on November 15, 1993, the date the claimant stated that she became unable to work, and she continued to meet them through September 30, 1995, but not thereafter.
2. The claimant has not engaged in substantial gainful activity since November 15, 1993.
3. The medical evidence establishes that the claimant had no medically determinable severe impairment prior to September 30, 1995, and that she did not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's complaints are inconsistent with the weight of the medical evidence of record. There is no documentation of any musculoskeletal problem prior to December 7, 1995. Dr. Kupperberg's earliest office note was for October 1995 and it did not mention any pain and only referred to sinusitis and a stuffy nose.
5. Prior to September 30, 1995, the claimant had the residual functional capacity to perform work related activities except for work involving heavy lifting over 20-30 pounds with some limitations in fingering, feeling and handling with the non-dominant left hand and limitations on concentrated exposure to extremes of heat and cold, vibration, climbing ladders, or being exposed to hazards. ( 20 C.F.R. § 404.1545).
6. The claimant's past relevant work as house manager, sales clerk or an office clerk did not require the performance of work related activities precluded by the above limitation(s) ( 20 C.F.R. § 404.1565).
7. The claimant's impairments did not prevent the claimant from performing her past relevant work prior to September 30, 1995.
8. The claimant was not under a "disability" as defined in the Social Security Act, at any time through September 30, 1995, the date the claimant last met the disability insured status requirement of the Social Security, as amended ( 20 C.F.R. § 404.1520(e)).
DISCUSSION
The Social Security Act defines a "disability" as a condition which results in the inability "to engage in any substantial gainful activity by reason of any medically determined physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The Act further provides that an individual is disabled only:
[i]f his physical and mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for work.
Id., at § 423(d)(2)(A).
The Commissioner has adopted a protocol denominated as a "sequential step analysis" to be used in determining whether a claimant is disabled for purposes of the Act. 20 C.F.R. § 404.1520. The analysis is in three or five steps, depending on the circumstances of the claimant's case. First, the ALJ must determine whether or not the claimant was employed prior to the onset of the disabling condition. Second, the ALJ must determine whether the claimant suffers from a severe impairment which limits her ability to work. If the impairment is the same as, or equal in effect to, an impairment (or combination of impairments) listed in Appendix 1 of the Regulations, the claimant is automatically deemed disabled. If the impairment is not covered by Appendix 1, the fourth step requires that the claimant prove that her disability is sufficiently serious to preclude her from returning to work at her former job. If she meets this burden, the ALJ, in the fifth step, is required to determine whether there are other jobs in the national economy that the claimant could nonetheless perform.
The task of the district court in reviewing a denial of benefits is to determine whether there is substantial evidence in the record supporting the decision of the ALJ. For purposes of this determination, "substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The court does not re-weigh the evidence or try the issues de novo. Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1st Cir. 1981). The resolution of any conflicts in the evidence is for the ALJ, Tremblay v. Secretary of Health and Human Services, 676 F.2d 11, 13 (1st Cir. 1982), as are determinations of credibility. Cutlip v. Secretary of Health and Human Services, 25 F.3d 284, 286 (6th Cir. 1994). The court is, however, obligated to conduct a thorough review of the record and to make an independent determination as to the sufficiency of the underlying factual findings. Geoffroy v. Secretary of Health and Human Services, 663 F.2d 315, 319 (1st Cir. 1981).
Levesque has the burden of establishing that she suffered a disabling impairment prior to September 30, 1995. DeBlois v. Secretary of Health and Human Services, 686 F.2d 76, 79 (1st Cir. 1982). An obvious impediment to meeting this burden is the fact that Levesque began treatment for pain in her left hand only after the insured period expired. The medical practitioners who examined and treated Levesque, while taking note of her historical complaints, were necessarily confined in their evaluations to Levesque's post-insured condition. Thus, the only evidence of a disabling condition prior to September 30, 1995, is Levesque's own testimony (which the ALJ found not to be credible), and her statements to the various physicians who treated her subsequent to September 30, 1995.
Levesque consistently told her doctors that she had begun to experience pain in her left hand "eighteen months" earlier. She so told Dr. Reback on October 2, 1995, Dr. Kroessler on March 23, 1996, and her physical therapist in December of 1996. While not remarked upon by the ALJ, the invariable nature of this complaint might reflect on its credibility.
Levesque nonetheless maintains that the ALJ failed to "consider and evaluate all evidence relative to [her] claim." Specifically, Levesque claims that the ALJ gave insufficient attention to her complaints of pain, and particularly to her complaint of pain-related sleep deprivation. In evaluating a plaintiff's subjective complaints of pain, an ALJ is directed to make specific findings as to their credibility (or lack thereof), considering among other factors:
(1) the nature, location, onset, duration, frequency, radiation and intensity of any pain; (2) precipitating and aggravating factors; (3) type, dosage, effectiveness and adverse side-effects on any pain medication; (4) treatment, other than medication, for relief of pain; (5) functional restrictions; and (6) the plaintiff's daily activities.
Avery v. Secretary of Health and Human Services, 797 F.2d 19, 29 (1st Cir. 1986).
It is difficult to fault the ALJ's findings in this regard, which (despite the omission of any reference to Dr. Reback's notes) carefully track the Avery directives.
While the claimant may experience some discomfort, there is no evidence to show that it adversely affected her ability to attend and concentrate to a task over a normal 8 hour workday prior to September 30, 1995. There is a lack of any specific treatment records from the November 13, 1993, the alleged onset date, until December of 1995. There is no evidence of any mental limitations in basic work related functions. There is no evidence that the claimant experienced any significant adverse effects from medication prior to September 30, 1995. To the contrary, it does not appear that the claimant was even taking prescribed pain medication prior to September 30, 1995. It is possible that the claimant's condition worsened in March of 1996 and that her symptoms worsened after January of 1997. However, those dates were after the date when the claimant last met the disability insured status requirement of the Social Security Act, as amended. The claimant's complaints are inconsistent with the weight of the evidence and with the treatment received prior to September 30, 1995. Therefore, the claimant's testimony is not considered to be credible to the degree alleged prior to September 30, 1995.
As is apparent from the findings, the ALJ's disbelief of Levesque's testimony was based principally on the lack of medical documentation of her condition prior to September 30, 1995. See Arsenault v. Apfel, No. 99-94-P-C, 1999 WL 33117126, at *3 (D.Me. Nov. 22, 1999), citing Basinger v. Heckler, 725 F.2d 1166, 1170 (8th Cir. 1984) (where proof of a disability depends largely on subjective evidence, a credibility determination is a critical factor in the Secretary's decision). See also Ortiz v. Secretary of Health and Human Services, 955 F.2d 765, 769 (1st Cir. 1991) (gaps in the medical record are evidence that the claimant "would have secured more treatment had his pain been as intense as alleged.").
Levesque, however, asserts that the ALJ did not consider the medical evidence supporting a pre-September 30, 1995 onset of her condition, specifically the expert testimony of Dr. Essex and Dr. Reback's treatment notes of October 2, 1995. While an ALJ is not required to address all of the evidence in the record, the "ALJ may not simply ignore relevant evidence, especially when that evidence supports a claimant's cause." Lord v. Apfel, 114 F. Supp.2d 3, 13 (D.N.H. 2000).
At oral argument, Levesque's counsel cited Mason v. Apfel, 2 F. Supp.2d 142 (D.Mass. 1998) and Social Security Ruling 83-20 to support her position that the ALJ erred in his determination that Levesque was not disabled during the insured period. Social Security Ruling 83-20 defines the "policy and . . . the relevant evidence to be considered when establishing the onset date of disability." In Mason, the ALJ rejected the onset of impairment date proffered by a diagnosing psychiatrist (who considered the claimant to be disabled by her depression well before the expiration of her insured status) and determined his own onset date. The district court found that the ALJ's conclusion had no "legitimate medical basis," while the psychiatrist's opinion was based upon "significant medical evidence." Id., at 147. Neither the regulation nor the Mason case seem particularly relevant here, as the ALJ did not substitute his judgment for that of a medical witness. He relied rather on the perceived lack of medical documentation of a preexisting condition.
To determine whether a claimant is disabled, an ALJ must consider and evaluate all evidence, whether objective or subjective, that is relevant to the claim. See Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981), reh'g denied, 650 F.2d 481 (3d Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). The SSA's regulations define "evidence" as "anything [the claimant] or anyone else submits to [SSA] or that [SSA] obtain[s] that relates to [the] claim." 20 C.F.R. § 404.1512(b) (1999). Relevant evidence may include, but is not limited to, the following types of information: objective medical evidence; other evidence from medical sources; statements about the claimant's impairment(s) made by the claimant or others, including testimony offered at administrative hearings; and information from other sources, such as public and private social welfare agencies, non-medical sources, and other practitioners. See id.; 20 C.F.R. § 404.1513(e) (1999). If any of the evidence in a case record is inconsistent, the ALJ must weigh the conflicting evidence and decide which evidence to credit. See 20 C.F.R. § 404.1527(c)(2) (1999). . . .
For a reviewing court to be satisfied that an ALJ's decision was supported by substantial evidence, that decision "`must take into account whatever in the record fairly detracts from its weight.'" Diaz, 791 F. Supp. at 912 (quoting Universal Camera, 340 U.S. at 488, 71 S.Ct. 456).
Id., at 14.
While little of Dr. Essex's testimony might be understood to relate to Levesque's condition during the insured period, he did state that Levesque's symptoms "appear[ed] latent." Similarly, Dr. Reback's treatment notes of October 2, 1995 (two days after Levesque's insured status ended) relate a diagnosis of "traumatic neuritis of the inter-costal nerve," which might fairly indicate a preexisting condition. Whatever may be the strength of this evidence, the ALJ was required to consider it, and in the absence of any indication in the record that he did so, I will remand the case solely for that purpose. If consideration of these two additional pieces of evidence should change the ALJ's mind (as to whether she was disabled during the insured period), he should award Levesque disability benefits. If they do not, he should say so and briefly explain why.
ORDER
For the foregoing reasons, the case is REMANDED to the ALJ for supplementary findings consistent with the direction of the court.
SO ORDERED.