Cheryl Hill v. SSA CV-97-321-B 08/20/98
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Cheryl Hill
v. C-97-321-B
Kenneth S. Apfel, Commissioner of the Social Security Administration1
MEMORANDUM AND ORDER
Cheryl Hill challenges the decision of the Social Security
Administration ("SSA") to reject her applications for Title II
Social Security Disability Insurance benefits and for Title XVI
Supplemental Security Income benefits. Hill has been treated for
complaints related to lower-back pain since 1992. She contends
that the Administrative Law Judge ("ALJ") who reviewed her case
wrongly concluded that, despite a severe back impairment, she
could perform her prior past work as a fragrance model and a
general office clerk. Because I conclude that the Commissioner
failed to properly evaluate Hill's subjective pain complaints, I
remand the case to the Commissioner for further review.
1 Pursuant to Fed. R. Civ. P. 43(c), Kenneth S. Apfel is substituted for John J. Callahan, former Acting Commissioner of Social Security, as the defendant in this action. I. BACKGROUND2
A. Hill's Medical History
1. Medial Evidence Presented to the ALJ
Hill was thirty-two years old at the time of her hearings
before the ALJ. She has a tenth-grade education and has received
a graduate eguivalency diploma. Hill has held a variety of
positions, working as a copy clerk, office/house cleaner, grocery
stocker, cashier, fragrance model and sales clerk, waitress,
bartender, and campground manager.
On May 24, 1992, Hill fell from a stool on which she was
sitting and subseguently began to complain of lower-back, hip,
and leg pain. She has not worked since that date.3 After a June
17, 1992 consultation. Dr. Garrett G. Gillespie noted that her
MRI "doesn't show any marked herniation," although the MRI did
show "mild degenerative changes." Due to complaints of pain.
Hill began a regime of physical therapy in July 1992 and trigger-
point injections in September 1992.
Continuing to complain of pain in her lower back, left
2 Unless otherwise indicated, the facts are either undisputed or taken form the Joint Statement of Material Facts submitted by the parties.
3 The record shows that throughout the summer of 1992, Hill was employed as a campground manager. She testified at the first ALJ hearing, however, that she spent most of that summer in bed while her nephew assumed nearly all of her duties.
2 buttock, and left leg. Hill visited Dr. B.V. Popovich in October
1992. Later that month. Dr. Popovich noted that Hill's condition
had improved in that headaches from which she had been suffering
ceased and that she had no pain in her upper back, legs, or
calves. Dr. Popovich recommended that Hill continue with her
trigger-point injection treatments.
In January 1993, Hill visited Dr. John T. Lynn and continued
to complain of lower-back and leg pain. Dr. Lynn noted that an
electromyography of her spine showed mild bulging with no sign of
nerve-root impingement at L4-5 and sacralization4 at L 5 . Dr.
Lynn thought it unlikely that the sacralization could cause the
level of pain she described. Unable to reconcile her condition
with her symptoms. Dr. Lynn referred Hill to Dr. Price, whom she
visited in February 1993.
Hill complained to Dr. Price of lower-back pain and pain and
numbness in her buttocks and legs. Upon examination. Hill
exhibited limited forward bending and tenderness in her lower
back. Sacroiliac joint compression signs were predominantly
negative, as were straight-leg raising and motor reflexes. Dr.
Price noted that he did not believe that either the L5
sacralization or the possible L4-5 herniation were responsible
4 " [A]nomalous fusion of the fifth lumbar vertebra to the first segment of the sacrum . . . ." Dorland's Illustrated Med. Dictionary, at 1478 (28th ed. 1994).
3 for Hill's pain complaints and, therefore, recommended against
surgery. Because physical therapy had been unavailing. Dr. Price
recommended a short course of bracing instead.
In May 1993, Hill visited Dr. John A. Savoy, who reviewed
her MRI and CT scan results and concluded that they were normal.
Dr. Savoy diagnosed chronic lumbosacral strain with a possible
nerve root contusion and recommended a seven-day steroid-
injection program.
In November 1993, plaintiff visited Dr. William E. Kois, a
physiatrist.5 Upon examination. Dr. Kois noted his belief that
Hill's pain was most likely mechanical in nature, though possibly
stemming from a degenerative disc or rheumatoid arthritis. In
addition to ordering further testing. Dr. Kois referred Hill to
Dr. John W. Knesevich for psychiatric evaluation and to Dr.
Margaret Caudill for enrollment in a pain-control program. Dr.
Knesevich diagnosed "features of major depression, single
episode", but found no other disorders. In December 1993, Dr.
Knesevich noted that Hill felt well after taking Prozac. Dr.
Kois also noted later that month that Hill was making progress in
physical therapy but was still in a fair amount of pain. As a
result. Dr. Kois recommended that Hill start a swimming program.
5 The specialization in physical or rehabilitation medicine.
4 On Dr. Kois' referral. Hill visited Dr. Caudill in February
1994 for pain management. Hill began participating in Dr.
Caudill's pain-management program, but soon dropped out because
certain elements of the program, specifically, transcendental
meditation, conflicted with her beliefs as a Jehovah's Witness.
In April 1994, the range of motion in her back was still limited,
although somewhat improved. Dr. Kois recommended that Hill begin
to explore vocational options but indicated his belief that she
was not yet ready to return even to part-time work.
In February 1995, Hill visited Dr. Martin A. Samuels upon
Dr. Knesevich's referral. During the course of examination. Hill
winced, displayed discomfort, and exhibited tenderness all over
her back. Dr. Samuels noted no sign of spasm and noted that she
displayed a full range of motion in her lower back. No reflex,
sensory, or other motor abnormalities were found and her muscle
strength appeared largely undiminished. Dr. Samuels did not feel
that prior MRI and CT scan studies showed any neurological basis
for the degree of her claimed disability. Additionally, Dr.
Samuels noted his belief that no course of treatment would help
Hill until the conclusion of all pending litigation arising from
Hill's back problems.
2. Medical Evidence Presented to the Appeals Council
In May 1995, after Hill's hearing before the ALJ, she
5 visited Dr. Gillespie, who concluded that, based on her reported
symptoms she, she likely had a ruptured lumbar disc. In October
1995, Dr. Gillespie reiterated his opinion that Hill remained
unemployable due to a herniated disc at L4-5. A CT scan
conducted in November 1995 showed mild bulging at L4-5 and
possible spondylosis at L 4 . A myelogram revealed no definite
abnormalities. Dr. Gillespie concluded that these studies showed
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Cheryl Hill v. SSA CV-97-321-B 08/20/98
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Cheryl Hill
v. C-97-321-B
Kenneth S. Apfel, Commissioner of the Social Security Administration1
MEMORANDUM AND ORDER
Cheryl Hill challenges the decision of the Social Security
Administration ("SSA") to reject her applications for Title II
Social Security Disability Insurance benefits and for Title XVI
Supplemental Security Income benefits. Hill has been treated for
complaints related to lower-back pain since 1992. She contends
that the Administrative Law Judge ("ALJ") who reviewed her case
wrongly concluded that, despite a severe back impairment, she
could perform her prior past work as a fragrance model and a
general office clerk. Because I conclude that the Commissioner
failed to properly evaluate Hill's subjective pain complaints, I
remand the case to the Commissioner for further review.
1 Pursuant to Fed. R. Civ. P. 43(c), Kenneth S. Apfel is substituted for John J. Callahan, former Acting Commissioner of Social Security, as the defendant in this action. I. BACKGROUND2
A. Hill's Medical History
1. Medial Evidence Presented to the ALJ
Hill was thirty-two years old at the time of her hearings
before the ALJ. She has a tenth-grade education and has received
a graduate eguivalency diploma. Hill has held a variety of
positions, working as a copy clerk, office/house cleaner, grocery
stocker, cashier, fragrance model and sales clerk, waitress,
bartender, and campground manager.
On May 24, 1992, Hill fell from a stool on which she was
sitting and subseguently began to complain of lower-back, hip,
and leg pain. She has not worked since that date.3 After a June
17, 1992 consultation. Dr. Garrett G. Gillespie noted that her
MRI "doesn't show any marked herniation," although the MRI did
show "mild degenerative changes." Due to complaints of pain.
Hill began a regime of physical therapy in July 1992 and trigger-
point injections in September 1992.
Continuing to complain of pain in her lower back, left
2 Unless otherwise indicated, the facts are either undisputed or taken form the Joint Statement of Material Facts submitted by the parties.
3 The record shows that throughout the summer of 1992, Hill was employed as a campground manager. She testified at the first ALJ hearing, however, that she spent most of that summer in bed while her nephew assumed nearly all of her duties.
2 buttock, and left leg. Hill visited Dr. B.V. Popovich in October
1992. Later that month. Dr. Popovich noted that Hill's condition
had improved in that headaches from which she had been suffering
ceased and that she had no pain in her upper back, legs, or
calves. Dr. Popovich recommended that Hill continue with her
trigger-point injection treatments.
In January 1993, Hill visited Dr. John T. Lynn and continued
to complain of lower-back and leg pain. Dr. Lynn noted that an
electromyography of her spine showed mild bulging with no sign of
nerve-root impingement at L4-5 and sacralization4 at L 5 . Dr.
Lynn thought it unlikely that the sacralization could cause the
level of pain she described. Unable to reconcile her condition
with her symptoms. Dr. Lynn referred Hill to Dr. Price, whom she
visited in February 1993.
Hill complained to Dr. Price of lower-back pain and pain and
numbness in her buttocks and legs. Upon examination. Hill
exhibited limited forward bending and tenderness in her lower
back. Sacroiliac joint compression signs were predominantly
negative, as were straight-leg raising and motor reflexes. Dr.
Price noted that he did not believe that either the L5
sacralization or the possible L4-5 herniation were responsible
4 " [A]nomalous fusion of the fifth lumbar vertebra to the first segment of the sacrum . . . ." Dorland's Illustrated Med. Dictionary, at 1478 (28th ed. 1994).
3 for Hill's pain complaints and, therefore, recommended against
surgery. Because physical therapy had been unavailing. Dr. Price
recommended a short course of bracing instead.
In May 1993, Hill visited Dr. John A. Savoy, who reviewed
her MRI and CT scan results and concluded that they were normal.
Dr. Savoy diagnosed chronic lumbosacral strain with a possible
nerve root contusion and recommended a seven-day steroid-
injection program.
In November 1993, plaintiff visited Dr. William E. Kois, a
physiatrist.5 Upon examination. Dr. Kois noted his belief that
Hill's pain was most likely mechanical in nature, though possibly
stemming from a degenerative disc or rheumatoid arthritis. In
addition to ordering further testing. Dr. Kois referred Hill to
Dr. John W. Knesevich for psychiatric evaluation and to Dr.
Margaret Caudill for enrollment in a pain-control program. Dr.
Knesevich diagnosed "features of major depression, single
episode", but found no other disorders. In December 1993, Dr.
Knesevich noted that Hill felt well after taking Prozac. Dr.
Kois also noted later that month that Hill was making progress in
physical therapy but was still in a fair amount of pain. As a
result. Dr. Kois recommended that Hill start a swimming program.
5 The specialization in physical or rehabilitation medicine.
4 On Dr. Kois' referral. Hill visited Dr. Caudill in February
1994 for pain management. Hill began participating in Dr.
Caudill's pain-management program, but soon dropped out because
certain elements of the program, specifically, transcendental
meditation, conflicted with her beliefs as a Jehovah's Witness.
In April 1994, the range of motion in her back was still limited,
although somewhat improved. Dr. Kois recommended that Hill begin
to explore vocational options but indicated his belief that she
was not yet ready to return even to part-time work.
In February 1995, Hill visited Dr. Martin A. Samuels upon
Dr. Knesevich's referral. During the course of examination. Hill
winced, displayed discomfort, and exhibited tenderness all over
her back. Dr. Samuels noted no sign of spasm and noted that she
displayed a full range of motion in her lower back. No reflex,
sensory, or other motor abnormalities were found and her muscle
strength appeared largely undiminished. Dr. Samuels did not feel
that prior MRI and CT scan studies showed any neurological basis
for the degree of her claimed disability. Additionally, Dr.
Samuels noted his belief that no course of treatment would help
Hill until the conclusion of all pending litigation arising from
Hill's back problems.
2. Medical Evidence Presented to the Appeals Council
In May 1995, after Hill's hearing before the ALJ, she
5 visited Dr. Gillespie, who concluded that, based on her reported
symptoms she, she likely had a ruptured lumbar disc. In October
1995, Dr. Gillespie reiterated his opinion that Hill remained
unemployable due to a herniated disc at L4-5. A CT scan
conducted in November 1995 showed mild bulging at L4-5 and
possible spondylosis at L 4 . A myelogram revealed no definite
abnormalities. Dr. Gillespie concluded that these studies showed
no evidence of disc herniation or nerve root compression, though
he felt that the possible spondylosis could have been caused by
her fall in 1992. Dr. Gillespie recommended treatment by mild
exercise, anti-inflammatory medication, weight reduction, and
facet joint injection.
Additionally, in January 1996, Hill visited Dr. Colleen
Guiry for treatment of possible urinary problems. In her report.
Dr. Guiry noted Hill's long history of chronic lower-back pain
and concluded that her pain was more likely due to her back
problems than her urinary problems.
B. Procedural History
Hill initially applied for disability insurance benefits and
Supplemental Security Income benefits in April 1993, alleging
disability since 1992. After these applications were denied at
the initial stage of review, she reapplied for disability
6 insurance benefits on March 23, 1994.6 This application was
denied initially and upon reconsideration. Hill then requested a
hearing before an ALJ. Hearings were held on March 3, 1995, and
April 18, 1995. At these hearings, the ALJ heard testimony from
Hill, her husband, and a vocational expert.
By decision dated July 29, 1995, the ALJ denied Hill's
applications for benefits at step four of the five-step
sequential analysis. Although he found she suffered from a
severe impairment that imposed significant limitations on her
ability to work, he concluded, upon consultation with the
vocational expert, that Hill remained able to perform her past
relevant work as a fragrance model and an office clerk. Hill
then requested that the Appeals Council review the ALJ's decision
and submitted additional medical evidence in support of her
request. On April 27, 1997, the Appeals Council denied Hill's
request for review, making the ALJ's decision the final decision
of the Commissioner of Social Security and subject to this
appeal. In that denial, the Appeals Council concluded that
Hill's additional evidence did not provide a basis for
questioning the ALJ's decision.
6 Hill filed a new protective application for Supplemental Security Income benefits in December 1994.
7 II. STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant's application for benefits and upon a timely request by
the claimant, this court is authorized to: (1) review the
pleadings submitted by the parties and the transcript of the
administrative record; and (2) enter a judgment affirming,
modifying, or reversing the Commissioner's decision. See 42
U.S.C.A. § 405(g) (West Supp. 1998). The court's review is
limited in scope, however, as the Commissioner's factual findings
are conclusive if they are supported by substantial evidence.
See Irlanda Ortiz v. Secretary of Health and Human Servs., 955
F .2d 765, 769 (1st Cir. 1991); 42 U.S.C.A. § 405(g). The
Commissioner is responsible for settling credibility issues,
drawing inferences from the record evidence, and resolving
conflicting evidence. See Irlanda Ortiz, 955 F.2d at 769.
Therefore, the 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 [the
Commissioner's] conclusion.'" Id. (quoting Rodriquez v.
Secretary of Health and Human Servs., 647 F.2d 218, 222 (1st Cir.
1981)) .
If the Commissioner has misapplied the law or has failed to
provide a fair hearing, however, deference to the Commissioner's
8 decision is not appropriate, and remand for further development
of the record may be necessary. See Carroll v. Secretary of
Health and Human Servs., 705 F.2d 638, 644 (2d Cir. 1983); see
also Slessinqer v. Secretary of Health and Human Servs., 835 F.2d
937, 939 (1st Cir. 1987) ("The [Commissioner's] conclusions of
law are reviewable by this court.") I apply these standards in
reviewing the issues plaintiff raises on appeal.
III. DISCUSSION
The ALJ concluded at the fourth step of the five-step
sequential analysis7 that Hill was not disabled because she
retained the ability to perform a limited range of light
exertional tasks, including those necessary to perform two of her
previous jobs, namely, fragrance model and office clerk. Hill's
primary challenge to this conclusion is that the ALJ failed to
7 The 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 employment; (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. See 20 C.F.R. §§ 404.1520, 416.920 (1997).
9 properly credit Hill's complaints of disabling pain.8
In determining whether a claimant has the residual
functional capacity to perform her past relevant work, the ALJ
must review the medical evidence regarding the claimant's
physical limitations as well as her own descriptions of her
physical limitations, including her subjective pain complaints.
See Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d
15, 17 (1st Cir. 1996). Where the claimant has shown that she
suffers from an impairment that could reasonably be expected to
produce the pain she alleges, the ALJ must take into
consideration the claimant's subjective evaluation of her pain
and the limitations that her pain imposes on her ability to work.
See Avery v. Secretary of Health and Human Servs., 797 F.2d 19,
21 (1st Cir. 1986). However, the ALJ is not reguired to give
credit to the claimant's subjective evaluations of pain if they
are inconsistent with the medical findings that exist regarding
her condition. See Dupuis v. Secretary of Health and Human
Servs., 869 F.2d 622, 623 (1st Cir. 1989). Rather, after making
specific findings detailing the inconsistencies between the
8 Hill also argues that the ALJ failed to give controlling weight to the opinion of Dr. Gillespie, Hill's treating physician. As I conclude that a remand is warranted on other grounds, I do not address the merits of this argument. On remand, the ALJ should consider this evidence, affording it whatever degree of weight the regulations mandate.
10 claimant's allegations of pain and the objective medical
findings, the ALJ may discount the allegations in determining the
claimant's RFC. See Avery, 797 F.2d at 21.
Although the ALJ found that Hill suffers from the severe
impairments of fibromyaglia and chronic lumbosacral strain, he
rejected her contention that the pain produced by these
conditions was so severe as to be disabling. Instead, he
concluded that while Hill "can perform only limited sitting and
standing because of her chronic back pain -- about 30 minutes at
a time --and cannot perform repetitive bending," her condition
permitted her to engage in a range of light-duty work, including
her past work as a fragrance model and office clerk. The ALJ
based his decision on two findings. First, he found that the
objective medical evidence did not substantiate the level of pain
Hill alleged. Second, he found that Hill's description of her
activities of daily living directly contradicted the severity of
her pain complaints.
An ALJ is not free to disregard a claiming's subjective pain
complaints merely because they cannot be corroborated by
objective medical evidence. SSR 96-7p; 20 C.F.R. §§
404.1529(c)(2), 416.929(c)(2). Rather, because "symptoms
sometimes suggest a greater severity of impairment than can be
shown by objective medical evidence alone," the ALJ must consider
11 other evidence before determining whether the claimant's
subjective complaints of pain are credible. 20 C.F.R. §§
404.1529(c) (3), 416.929(c) (3) . Specifically, the ALJ must
consider: (1) the claimant's daily activities; (2) the nature,
location, onset, duration, frequency, radiation, and intensity of
the pain; (3) the precipitating and aggravating factors; (4) the
type, dosage, effectiveness, and adverse side-effects of any pain
medications; (5) non-medication forms of treatment for relief of
pain; (6) any functional restrictions; and (7) any other relevant
factors. Id.; see also Avery, 797 F.2d at 29.
In this case, the ALJ looked only at evidence of Hill's
daily activities, to the virtual exclusion of all other factors.
The ALJ found that her pain complaints were "contradicted to a
substantial degree" by Hill's daily activity report, which he
found to include "going to medical appointments four to five days
per week, cooking once per week, going shopping with her husband
for groceries, watching television and reading." In his
evaluation, however, the ALJ completely misconstrued the evidence
regarding Hill's daily activities.
First, the ALJ neglects to note that Hill testified that her
husband has to drive her to her medical appointments. Also, it
is counter-intuitive to conclude, as the ALJ did in this case,
that having to attend frequent doctors' appointments negates
12 rather than substantiates a claimant's allegations of pain.
Second, although Hill states that she can still cook despite her
impairment, she only does so once per week and testified that the
effort usually renders her incapacitated. Third, while Hill
admits that she occasionally grocery shops with her husband, she
also states that he must drive her to the store, that she
freguently uses a wheel chair or electric cart to get around the
store, and that when she does walk, she is exhausted after thirty
minutes. Finally, that Hill is capable of watching television
and reading does not contradict her statement that her pain is so
severe that she must freguently lie down. Rather, a person may
stand, sit, or lie down while reading or watching television.
Additionally, the ALJ overlooked evidence potentially
relevant to several other factors. With respect to medication,
for example, the record is replete with references of different
medications prescribed to alleviate Hill's pain, such as Dolobid,
Cyclobenzaprene, Lodine, Tylenol with Codeine, Relafin, Xanax,
and Amithriptyline, that were all unsuccessful. See 20 C.F.R. §§
404.1529(c)(3)(iv), 416.929(c)(3)(iv) (In making credibility
determination, ALJ should consider the "type, dosage,
effectiveness, and side effects of any medication" claimant has
taken.). With respect to non-medication treatment, the record
reflects that Hill has been treated with physical therapy.
13 trigger point injections, steroids, bracing, and various forms of
exercise, all without avail. See id. §§ 404.1529(c)(3)(v),
416.929(c)(3)(v) (In making credibility determination, ALJ should
consider " [t]reatment, other than medication" that the claimant
has received for pain relief.). Because the ALJ ignored most of
the factors he was charged with applying, and clearly misapplied
the one factor that he did consider, I find that his decision to
discredit Hill's allegations of pain is not supported by
substantial evidence. See DaRosa v. Secretary of Health and
Human Servs., 803 F.2d 24, 26 (1st Cir. 1986) (remand appropriate
where ALJ's credibility determination not supported by
substantial evidence because ALJ failed to consider reguisite
factors). Accordingly, the case must be remanded to permit the
ALJ to properly evaluate the significance of Hill's pain
complaints.
IV. CONCLUSION
For the foregoing reasons. Hill's motion to reverse the
Commissioner's decision is granted in part and defendant's motion
to affirm the Commissioner's decision is denied. The case is
remanded pursuant to sentence four of 42 U.S.C.A. § 405(g) for
further consideration in a manner consistent with this order.
SO ORDERED.
14 Paul Barbadoro Chief Judge August 20, 1998 cc: Elizabeth Bailey, Esq. David Broderick, Esq.