Champney v. SSA CV-98-336-SD 02/10/99 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Pamela Champney
v. Civil No. 98-336-SD
Kenneth S. Apfel, Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), plaintiff Pamela Champney
moves to reverse the Commissioner's decision denying her
application for Social Security Disability Insurance Benefits
under Title II of the Social Security Act, 42 U.S.C. § 423 (the
Act) .1 Defendant objects and moves for an order affirming the
decision of the Commissioner.
1The court is compelled to address the inexcusable carelessness displayed by plaintiff's memorandum of law. Not only does the document violate Local Rule 5.1(a) and (b), it is so riddled with misspelled words and other grammatical errors that, at times, the court found it nearly incomprehensible. The court is disappointed to receive such a document written by a practicing member of the bar in behalf of a client. Background
Pursuant to Local Rule 9.1, the parties have filed a joint
statement of material facts (document no. 9), which the court
hereby incorporates.
Administrative Proceedings
Champney filed an application for social security disability
benefits on September 18, 1995, alleging an inability to work
since October 31, 1994. Transcript of Record (Tr.) at 88-91.
The Social Security Administration initially and upon
reconsideration denied her application. Tr. 92-101, 121-122. On
June 11, 1996, a de novo hearing was held before an
Administrative Law Judge (ALJ), who also denied plaintiff's
application. Tr. 9-20.
Applying the five-step, sequential evaluation process
prescribed by 20 C.F.R. § 404.1520,2 the ALJ found that (1)
Champney has not engaged in substantial gainful employment since
2The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. 20 C.F.R. § 404.1520 (1998).
2 October 31, 1994; (2) Champney suffers from severe chronic low
back pain secondary to left sciatic nerve injury and by
adjustment disorder with depressed mood secondary to chronic pain
syndrome; (3) Champney does not have an impairment listed in or
medically equal to the impairments listed in 20 C.F.R. pt. 404,
subpt. P, app.l (Appendix 1); and (4) Champney's impairments do
not prevent her from performing her past work.
The ALJ also found that Champney's subjective complaints of
pain were not credible and that application of Social Security
Regulation (S.S.R.) 96-7p and 20 C.F.R. § 404.1529 supported a
determination that the complainant has a sufficient residual
functional capacity (RFC) to return to her former position.
On March 24, 1997, the Appeals Council affirmed the ALJ's
decision, Tr. 4-5, thereby rendering the ALJ's decision the final
decision of the Commissioner and one subject to judicial review.
Discussion
1. Standard of Review
Following a final determination by the Commissioner, and
upon timely request by a party thereto, the reviewing court
"shall have the power to enter, upon the pleadings, and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security
with or without remanding the cause for a rehearing." 42 U.S.C.
3 § 405(g) (1998). Findings of fact by the Commissioner, if
supported by substantial evidence, shall be conclusive.3 Id. ;
see also Irlanda Ortiz v. Secretary of Health and Human Servs.,
955 F .2d 765, 769 (1st Cir. 1991).
Accordingly, the Commissioner's decision to deny benefits
will be affirmed unless "the [Commissioner] has committed a legal
or factual error in evaluating a particular claim." Manso-
Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16
(1st Cir. 1996) (cruoting Sullivan v. Hudson, 490 U.S. 877, 885
(1989)) .
2. Plaintiff's Motion
Plaintiff challenges the ALJ's conclusions at steps three
and four as erroneous. Specifically, at step three of the
sequential evaluation process prescribed by 20 C.F.R. § 404.1520,
the ALJ found that Champney did not have an impairment or
combination of impairments that meets or equals the criteria of
an impairment listed in Appendix 1 of the Commissioner's
regulations, Tr. 14, and at step four of the evaluation process,
the ALJ found that despite Champney's medically determinable
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) .
4 severe impairments, she retained the RFC to return to her past
relevant work. These issues will be treated in turn.
a. Step Three of the Secruential Evaluation Process
i. Vertebrogenic Disorders
At step three of the sequential evaluation process,the
burden of proof is on the claimant to prove the existence of a
disability. 42 U.S.C. § 423(d)(5)(A); see also Bowen v . Yuckert,
482 U.S. 137, 146 n.5 (1987) (citation omitted); Dudley v.
Secretary of Health and Human Services, 816 F.2d 792, 793 (1st
Cir. 1987). To be found disabled at step three, the claimant
must prove the existence of an impairment that meets or equals
the criteria of an impairment listed in Appendix 1 of the
Commissioner's regulations. "The listings describe impairments
which are considered severe enough to prevent a person from doing
any gainful activity, without considering vocational elements."
2 Social Security Disability Claims (Barbara Samuels) § 22:59, at
22-78. Thus, if the claimant meets a listing, the ALJ need not
consider the next two steps. If, on the other hand, the claimant
is found not to meet the criteria of an impairment listed in
Appendix 1, the ALJ must move on to steps four and five.
Determinations of whether an impairment meets or equals one
listed in Appendix 1 must be made on medical evidence only. 20
C.F.R. § 404.1525(d).
5 Here, Champney alleges the existence of an impairment that
satisfies section 1.05(C) of Appendix 1, which states in relevant
part:
1.05 Disorders of the Spine
C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus [sic], spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2: 1. Pain, muscle spasm, and significant limitation of motion in the spine; and 2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.05(C). To demonstrate a
spinal impairment listed in section 1.05(C), the claimant must
have a diagnosed vertebrogenic disorder and must satisfy the
conditions in subsections 1 and 2. Id.; 20 C.F.R. § 404.1525(d);
see also Martinez Nater v. Secretary of Health and Human
Services, 933 F.2d 76, 77 (1st Cir. 1991).
When the symptoms, signs, or laboratory findings of alleged
impairment(s) do not exactly match those of a listed impairment,
medical equivalence will be shown "if the medical findings are at
least equal in severity and duration to the listed findings." 20
C.F.R. § 1526(a). However, "[i]n no case are symptoms alone a
sufficient basis for establishing the presence of a physical
. . . impairment;" rather, the medical equivalence of an
impairment listed in Appendix 1 must be based on "medical
6 evidence demonstrated by medically acceptable clinical and
laboratory diagnostic techniques . . . S.S.R. 86-8, 1986 WL
68636, *4 (S.S.A.); see also 20 C.F.R. § 404.1526(b).
In finding that Champney's alleged impairments were not
sufficiently severe to rise to the level of a presumptive
disability contemplated by Appendix 1, the ALJ relied on the
November 1995 report of Dr. Roger Hansen, an orthopedic surgeon,
who reviewed Champney's records before examining her. Tr. 13.
Here, Dr. Hansen's report must be viewed through the lens of the
prescribed medical criteria of 20 C.F.R. pt. 404, subpt. P, app.
1, § 1.05(C). In this context. Dr. Hansen's report indicates
that Champney's lower back injury does not satisfy the severity
requirement necessary to establish medical equivalency to an
impairment listed in Appendix 1. 20 C.F.R. § 404.1525(d). Tr.
185-86.
Specifically, subsection 1 of section 1.05(c) requires
significant limitation of motion; yet Dr. Hansen's report states
that "[a]11 joints of the upper and lower extremities move
through a full range of motion with no particular pain." Tr.
186. In regard to the neurologic criteria prescribed by section
1.05(c), Dr. Hansen's report indicates that "[h]er neurologic
examination is entirely normal." Tr. 186. Therefore, neither
the motor loss nor the sensory and reflex loss required by
section 1.05(c)(2) of Appendix 1 has been met.
7 Accordingly, there is substantial evidence to support the
ALJ's decision that Champney does not have an impairment or a
combination of impairments listed in or medically equivalent to
one listed in Appendix 1. Moreover, nothing is exhibited in the
reports of the other treating or examining doctors, or elsewhere
in the record, to indicate a legal or factual error sufficient to
warrant reversal of the ALJ's decision on this issue. See Manso-
Pizarro, 76 F.3d 15, 16 (1st Cir. 1996).
ii. Affective Disorders
Champney also argues that the ALJ erred in not finding that
she suffers from an affective disorder listed in section 12.04 of
Appendix 1. To satisfy the predetermined criteria prescribed by
section 12.04, an individual alleging disability due to an
affective disorder must provide medical proof of at least two of
the following adaptive disruptions:4
1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or 4. Repeated episodes of deterioration or decompensation in work or work-like settings which
4The term "marked" is defined by the C.F.R. as "a standard for measuring the degree of limitation, it means more than moderate, but less than severe." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C). cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).
20 C.F.R. pt. 220, app. 1, § 12.04.
A report written by the psychologist who examined Champney,
Dr. Robert Mullaly, indicates that she does have "marked
curtailing of her activities of daily living," Tr. 191, but that
she exhibited no difficulties in maintaining social functioning,
id. In addition. Dr. Mullaly stated that Champney's
"concentration, focus and attention do not seem to be disrupted,
nor is there any cognitive impairment." Id. Finally, the doctor
found that "[t]here is no mental deterioration or
decompensation." Id.
As a result of Dr. Mullaly's report, it is clear that
Champney did not exhibit a mental impairment or a combination of
impairments listed in or medically equivalent to one listed in
Appendix 1. Thus the court finds that the findings of the ALJ
relative to this issue are supported by substantial evidence.
b. Step Four of the Secruential Evaluation Process
The final issue raised by Champney is that the ALJ lacked
substantial evidence sufficient to conclude that Champney
retained the RFC to return to her past relevant work, despite her
medically determinable severe impairments. Champney argues that
at step four of the sequential evaluation process, the burden is on the Commissioner to prove that the claimant is able to return
to her past relevant work. Here, Champney is wrong. It is
settled law that the claimant bears the burden of proof
throughout the first four steps of the sequential evaluation
process. See Goodermote v. Secretary of Health and Human
Services, 690 F.2d 5, 7 (1st Cir. 1982).
At step four of the process, the claimant must prove that
her disability is serious enough to prevent her from working at
her former job. Id. The ALJ determined that despite Champney's
medically determinable severe impairments, she retained the RFC
to return to her past relevant work. The ALJ's written decision
states,
Because the clinical findings and functional assessments of the claimant's treating physicians do not corroborate the claimant's allegations of pain which substantiate the presence of any credible limitations on the claimant's ability to perform a full range of light work, the undersigned concludes that the claimant's allegations of pain and subjective complaints are not entirely credible . . . .
Tr. 18.
In evaluating subjective complaints of pain, the ALJ is
first required to determine whether
[a]n individual's statement as to pain or other symptoms [is corroborated by] medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged . . . .
10 42 U.S.C. § 423(d)(5)(A). If the existence of a medically
determinable physical or mental impairment is established, the
ALJ must then evaluate the effect of the symptoms on the
individual's ability to perform basic work functions. S.S.R. 96-
7P, 1996 WL 374186 *2 (S.S.A.); see also 20 C.F.R. §
404.1529(c)(1). However, "[t]he finding that an individual's
impairment(s) could reasonably be expected to produce the
individual's pain or other symptoms [alone] does not involve a
determination as to the intensity, persistence, or functionally
limiting effects of the individual's symptoms." Id.
In addition, "whenever the individual's statements about the
intensity, persistence, or functionally limiting effects of pain
or other symptoms are not substantiated by objective medical
evidence, the adjudicator must make a finding on the credibility
of the individual's statements based on a consideration of the
entire case record." Id. at *2; see also Frustaglia v. Secretary
of Health and Human Services, 829 F.2d 192, 195 (1st Cir. 1987)
(per curiam).
In evaluating the credibility of an individual's statements.
Social Security regulations require the ALJ to consider the
following factors in addition to objective medical findings,
1. The individual's daily activities; 2. The location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms;
11 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
Id. at *3; see also 20 C.F.R. § 404.1529 (c)(4); Avery v.
Secretary of Health and Human Services, 797 F.2d 19, 23 (1st Cir.
1986).
In the instant case, the record indicates that the ALJ
proceeded through the proper steps in evaluating Champney's
subjective complaints of pain. The ALJ acknowledged the
existence of an objectively identifiable medical impairment,
severe chronic back pain secondary to left sciatic nerve injury,
which could reasonably be expected to produce pain. Tr. 18.
From there, the ALJ evaluated the extent to which Champney's
symptoms limit her ability to perform basic work activities. At
this step in his analysis, the ALJ concluded that Champney's
symptomatic complaints were not consistent with the objective
medical evidence. Tr. 17. Therefore, the ALJ properly
considered the seven factors prescribed by 20 C.F.R. §
404.1529(c)(4) that are to be considered in addition to the
12 objective medical evidence when determining the credibility of an
individual's statements about pain. Tr. 18.
Ultimately, the ALJ concluded that the clinical findings and
functional assessments of the claimant's treating physicians did
not support Champney's alleged limitations to her ability to
perform her past relevant work as a data entry operator or as an
inspector, both categorized as light work.5
The record indicates that there is substantial evidence to
support the ALJ's conclusion. Specifically, Dr. Daniel Perri, to
whom Champney was referred by her own physician, stated that
Champney "does not have any restrictions on her physical
activity." Tr. 181. Similarly, Dr. Theresa Little declared in
regard to Champney's condition that "[t]his is treatable." Tr.
168.
520 C.F.R. § 404.1567(b) provides:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
13 Finally, Dr. Ronald Resnick, to whom Champney was referred
in hopes of receiving a medical opinion more favorable to her
claim for disability, concluded that while Champney could not
return to her regular job (waitress), she could perform work that
allowed her to sit and stand as needed. Tr. 209. Thus Dr.
Resnick's report does support the conclusion that Champney could
perform the work required by her previous occupations as a data
entry operator or an inspector, which allowed her to alternate
positions.
After careful review, this court finds that the evidence
cited by the ALJ does constitute substantial evidence and that
the ALJ's decision therefore must stand. It is settled law
within the First Circuit that "[i]t is the responsibility of the
[Commissioner] to determine issues of credibility and to draw
inferences from the record evidence." Irlanda Ortiz v. Secretary
of Health and Human Services, 955 F.2d at 769 (1st Cir. 1991).
Moreover, "the resolution of conflicts in the evidence is for the
[Commissioner], not the courts." Id.
Conclusion
Because each of the findings of the ALJ, including his
ultimate conclusion that the plaintiff was not disabled, was
based on substantial evidence, this court is not entitled to
reverse those decisions. Therefore, plaintiff's motion for an
14 order reversing the decision of the Commissioner (document no. 7)
is denied, and defendant's motion for an order affirming said
decision (document no. 8) is granted. The clerk shall enter
judgment accordingly.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
February 10, 1999
cc: Michael C. Shklar, Esq. David L. Broderick, Esq.