Deborah Sullivan v. SSA CV-98-309-B 06/21/99
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Deborah A. Sullivan
v. Civil No. 98-309-B
Kenneth S. Apfel, Commissioner Social Security Administration
MEMORANDUM AND ORDER
_____ Plaintiff Deborah Sullivan applied for Social Security Title
II disability benefits and Title XVI Supplemental Security Income
(SSI) benefits on October 4, 1995. The SSI application was
assigned a protective filing date of September 21, 1995.
Sullivan's applications were denied initially and on
reconsideration by the Social Security Administration (SSA). An
Administrative Law Judge (ALJ) considered the case de novo and,
on August 16, 1996, determined that Sullivan was not disabled.
The Appeals Council denied Sullivan's reguest for review on
April 23, 1998. Sullivan filed her motion in this court on May
12, 1998. Because I find the ALJ's factual findings supported by
substantial evidence, I affirm. I. BACKGROUND1
_____ Sullivan was born on September 21, 1948. She has a high
school education, and past relevant work as a cashier, sales
associate, waitress, and assistant manager of a convenience
store. She alleges a closed period of disability, due to hearing
loss and a number of associated conditions, from September 1,
1993, until June 1996, when she resumed performing substantial
gainful activity.
In 1976, Sullivan was treated at the Massachusetts Eye and
Ear Infirmary for chronic eustachian tube dysfunction with
serious otitis.2 An audiogram taken at the time showed bilateral
symmetrical conductive hearing loss of 40 decibels. A large
attic perforation in her right ear was draining purulent
material,3 while a smaller attic perforation in her left ear had
produced obvious cholesteatoma4 in the epitympanum.5 Plaintiff
1 Unless otherwise noted, facts are taken from the "Joint Statement of Material Facts" (Doc. 10) prepared by the parties.
2 Otitis is an inflammation of the ear, which may be marked by pain, fever, abnormalities of hearing, hearing loss, tinnitus, and vertigo. See Dorland's Illustrated Medical Dictionary, 1204 (28th Ed. 1994).
3 "Purulent material" is composed of, or contains pus. See Dorland's Illustrated Medical Dictionary, 1098 (26th Ed. 1981).
4 Cholesteatoma is a cyst-like mass or benign tumor with a lining of stratified sguamous epithelium, usually of keratinizing
-2- underwent right ear surgery in April 197 6 which included a
radical mastoidectomy,6 canaloplasty,7 and tympanoplasty.8 The
procedures were repeated on her left ear in November 1977.
An audiological examination performed at the Massachusetts
Eye and Ear Infirmary in October 1994 revealed that Sullivan
"passed"9 a word recognition test on the left ear, and achieved
88 percent recognition in her right ear. The degree of her
hearing loss was measured at 42 decibels in her right ear, and 50
decibels in her left ear.
In May 1995, Sullivan presented with heavy vaginal bleeding.
type, filled with desguamating debris freguently including cholesterol. See Dorland's Medical Dictionary, 318 (28th Ed. 1994) .
5 The epitympanum is the recess in the upper part of the tympanic cavity of the ear. See Steadman's Medical Dictionary 588 (26th Ed. 1995) .
6 Excision of the mastoid cells or the mastoid process of the temporal bone. See Dorland's Medical Dictionary 993 (28th Ed. 1994) .
7 Plastic reconstruction of a passage, as of the external auditory meatus. See id. at 224.
8 Surgical reconstruction of the hearing mechanism of the middle ear, with restoration of the drum membrane to protect the round window from sound pressure, and establishment of ossicular continuity between the tympanic membrane and the oval window. See id. at 1767.
9 "Pass" is defined as achieving greater than 92 percent word recognition. See Tr. at 144.
-3- Her examining physician. Dr. Suzanne Coble, attributed the
bleeding to menopause. In June 1995, Dr. Coble noted that
Sullivan was at risk for coronary artery disease due to
hypertension, cigarette use and family history. Sullivan was
advised to reduce her smoking and evening alcohol consumption.
Dr. Coble ordered an echocardiogram, which was normal. She began
Sullivan on a course of Capoten,10 and Proventil11 and Aerobid12
inhalers for presumed chronic obstructive pulmonary disease
(COPD) and bronchitis.
In July 1995, Dr. Coble measured Sullivan's blood pressure
at 176/100 on the right, and 170/100 on the left, increased
Sullivan's Capoten dosage, and once again discussed Sullivan's
cigarette use. Dr. Coble noted that she would refer plaintiff to
an ear, nose and throat specialist and try to assist her in
locating funding for hearing aids. By August 1995, Sullivan's
blood pressure had dropped to 148/90. She was treated at Ear,
10 Capoten is indicated for treatment of hypertension or heart failure. See Physician's Desk Reference 784 (52nd Ed. 1998) .
11 Proventil is indicated for the relief of bronchospasm in patients with reversible obstructive airway disease and acute attacks of bronchospasm. See id. at 2658.
12 Aerobid is indicated as a prophylactic therapy in the maintenance treatment of asthma. See id. at 941.
-4- Nose & Throat (ENT) Specialists of Southern New Hampshire, and it
was noted that at the time of treatment, Sullivan was wearing a
hearing aid that she interchanged between ears. Upon a review of
her records, the ENT specialists noted that further surgery was
an option to restore her hearing. Sullivan noted her inability
to pay for such treatment, and she was advised to call Vocational
Rehabilitation for assistance.
In September 1995, Dr. Coble noted that Sullivan's blood
pressure had been successfully controlled on Capoten, and
Sullivan reported that she was using a Ventolin inhaler as needed
for her asthma. In October 1995, Dr. Coble changed Sullivan's
blood pressure prescription to Norvasc,13 and prescribed Folate
for Sullivan's anemia.
Sullivan underwent pulmonary function testing in November
1995, which revealed normal airflow in her large airways without
bronchodilator response, and mild small airway obstruction with
bronchoreactivity.
In January 1996, Sullivan's blood pressure had rebounded to
180/80 and was reported as no longer well-controlled. She was
13 Norvasc is indicated for the treatment of hypertension. See id. at 2195.
-5- started on Cardura.14 The dosage was increased in February 1996.
On March 22, 1996, clinical neuropsychologist Dr. Donna Z.
Kelland conducted a psychological evaluation of Sullivan, and
reported that "Ms. Sullivan's major presenting problem was
reported as being poor health, which she [Sullivan] described as
being severe in degree of psychological disturbance. The
presenting problem has occurred over the past several years and
reportedly has had a deleterious effect on the client's work
performance and personal relationships." Tr. at 215. Sullivan
told Dr. Kelland, "I tend not to want to be around people because
I can't hear them." Id. Dr. Kelland noted that Sullivan
reguired a hearing aid to complete the interview. See id.
In her interview with Dr. Kelland, Sullivan reported
freguent episodes of depression and anxiety during the previous
six months. She also reported drinking approximately half a
fifth of liguor per day, and that she had a five- to 10-year
history of alcohol abuse which increased concurrently with her
level of stress. During the interview, Sullivan reported a
recent change in her sleep pattern, marked by restlessness, and
14 Cardura is indicated for the treatment of hypertension. See id. at 2166.
-6- using Xanax15 to aid in sleep. She noted that the Xanax was
ineffective, and that therefore, she increased her alcohol
consumption to help her sleep. It appears that her significant
stress level was, at least in part, related to caring for her ill
and elderly mother.
In commenting on Sullivan's level of adaptive functioning.
Dr. Kelland noted, "[i]n particular, her difficulty in adjusting
to her hearing impairment and other social stressors (i.e. family
conflict) appears related to increased anxiety, social withdrawal
and increased alcohol consumption." Dr. Kelland noted, however,
that Sullivan was capable of carrying out written and oral
instructions if those instructions were within sensory range.
Dr. Kelland diagnosed alcohol dependence and adjustment disorder
with chronic anxiety, and recommended individual therapy,
relaxation training, and substance abuse treatment.
In March 1996, Sullivan stopped taking Cardura because it
made her feel ill. Dr. Coble noted that Sullivan's hypertension
was uncontrolled, and she prescribed hydrochlorothiazide to
replace the Cardura. This dosage was increased in April 1996.
15 Xanax is indicated for the management of anxiety disorder or the short-term relief of symptoms of anxiety. See id. at 2294.
-7- Sullivan finally received her new hearing aids in May 1996,
after Vocational Rehabilitation authorized the payment. She did
not get the hearing aids sooner because she could not afford
them. Sullivan reported that prior to receiving the hearing
aids, she had difficulty socially and on the phone, and that she
withdrew from some of her normal life activities because she
could not hear anyone. After receiving her new hearing aids in
May 1996, however, Sullivan promptly began working for Easter
Seals, and in the mailroom in the V.A. Hospital, reattaining a
level of substantial, gainful activity in July 1996.
Sullivan reported that between September 1993 and October
1995, she worked 15 hours a week as a sales clerk. She pretended
to hear people, but because of the background noise, she had
trouble comprehending what people were saying to her. She had
one hearing aid during this period, which did not sufficiently
improve her hearing. Sullivan's work during this period,
however, did not rise to the level of "substantial gainful
activity," and she noted that she was able to keep this position
because the owner was "tolerant" of her condition. She had no
problems with concentration or following oral or written
directions, however, and maintained a full range of daily
activities during this period, including grocery shopping. cooking and all other household chores, visiting relatives, and
caring for her elderly mother.
II. STANDARD OF REVIEW
_____ After a final determination by the Commissioner denying a
claimant's application for benefits, and upon a timely reguest by
the claimant, I am 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 ALJ's decision. See 42 U.S.C.A. § 405(g). My
review is limited in scope, however, as the ALJ'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 ALJ 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, I 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.'" Id. (guoting
Rodriquez v. Secretary of Health and Human Servs., 647 F.2d 218,
222 (1st Cir. 1981)).
-9- If the ALJ has misapplied the law or has failed to provide a
fair hearing, however, deference to the ALJ's 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 [ALJ's] conclusions of law are reviewable by this
court.") I apply these standards in reviewing the issues
Sullivan raises on appeal.
III. DISCUSSION
To establish entitlement to benefits under Title XVI of the
Act, a plaintiff has the burden to establish that she is disabled
within the meaning of the Act. See Bowen v. Yuckert, 482 U.S.
137, 146 (1987); Deblois v. Secretary of Health and Human Servs.,
686 F.2d 76, 79 (1st Cir. 1982). To be considered "disabled," a
plaintiff must not only prove that she is unable to return to her
past work, but also that she is unable to perform any substantial
gainful work in the national economy as the result of a medical
condition which can be expected to last for a continuous period
of 12 months or more. See 42 U.S.C. §§ 416(1)(1), 423(d)(1).
This determination must consider the plaintiff's age, education.
-10- training and work experience - the mere existence of a medical
impairment is not enough. See 42 U.S.C. § 423(d)(2)(A). The
impairment must be so severe, in combination with her vocational
factors, to preclude any type of gainful activity. See McDonald
v. Secretary of Health and Human Servs., 795 F.2d 1118, 1129 (1st
Cir. 1986); Thomas v. Secretary of Health and Human Servs., 659
F.2d 8, 9 (1st Cir. 1981). If a plaintiff is partially but not
totally disabled by her impairments, she is not disabled within
the meaning of the Act. See Rodriquez v. Celebrezze, 349 F.2d
494, 496 (1st Cir. 1965).
In evaluating a claim for disability benefits, the ALJ's
analysis is governed by a five-step seguential evaluation
process.16 See 20 C.F.R. § 404.1520 (1998). In the case at bar,
the ALJ began his analysis by concluding, at Step Two, that
Sullivan did have a "severe impairment" as defined by 20 C.F.R. §
404.1521 and 20 C.F.R. § 416.921 - specifically, "severe
bilateral hearing loss" which significantly interfered with her
16 In applying this five-step seguential analysis, the Secretary is reguired to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; (5) whether the impairment prevents the claimant from doing any other work. See 20 C.F.R. § 404.1520 (1998).
-11- ability to perform basic work activities. See ALJ Decision at 2-
3 (Tr. at 13-14). At Step Three, the ALJ concluded that the
plaintiff "does not have an impairment or combination of
impairments which meets or equals the severity of any impairment
listed in Appendix 1 to Subpart P." Id. at 3 (Tr. at 14) .
Accordingly, Sullivan's bilateral hearing loss was not
significant enough that she could be found presumptively disabled
at Step Three.
At Step Four, the ALJ evaluated Sullivan's "residual
functional capacity to return to her past relevant work or any
other work which exists in significant numbers in the national
economy." Id. After reviewing the medical evidence, the ALJ
concluded that Sullivan "has a moderate bilateral hearing loss
that would affect her ability to work. . . [in that] [s]he could
not be expected to perform work that required fine hearing or
that was performed in noisy environments." Id. He further noted
that Sullivan's bronchitis "is mild in nature and only minimally
impacts her ability to work." Id. at 4 (Tr. at 15). Accordingly,
the ALJ concluded that Sullivan would be limited to positions
that did not require lifting and carrying more than 50 pounds
occasionally, or 25 pounds frequently.
-12- After reviewing all the evidence, the ALJ concluded that
Sullivan's past relevant work as a cashier "is not normally
performed in a noisy environment . . . does not require fine
hearing . . . [and] does not require more than medium exertional
activity." Id. at 5 (Tr. at 16). Accordingly, the ALJ concluded
that the claimant's past activity as a cashier "is not precluded
by the claimant's current residual functional capacity.
Therefore, the claimant is not disabled within the meaning of the
Social Security Act." Id.
I agree.
A. The ALJ properly considered all relevant evidence in reaching his decision
Sullivan alleges that the ALJ ignored and misconstrued
evidence in the record concerning her hearing loss and
psychosocial problems. Specifically, she argues that the ALJ
"failed to discuss . . . [her] social isolation, her inability to
sleep and her psychological impairments. . . her reliance on
alcohol to medicate herself. . . [and her] psychosocial problems,
including the death of her brother from substance abuse; the
deaths of an aunt, uncle and grandmother; and her attempt to care
for her ill and aged mother." Pi. Mot. to Reverse and Remand at
11. There is no evidence in the record, however, that Sullivan
-13- was diagnosed with any psychological, psychiatric, or other
mental impairment, and Congress has explicitly barred a finding
of disability premised on drug or alcohol abuse.17 Accordingly,
the ALJ properly concluded that Sullivan's stress stemming from
the deaths of close family members and the burden of caring for
her ill and elderly mother did not rise to the level of a
disabling mental impairment under the Act.
The Commissioner's Listing of Impairments makes clear that
hearing loss for purposes of establishing disability is evaluated
in terms of hearing loss which is not restorable by a hearing
aid. See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 2.08. In
order for a claimant to meet her burden to demonstrate that she
is unable to perform her past relevant work, therefore, she must
establish that her impairment is not remediable. See Tsarelka v.
Secretary of Health and Human Servs., 842 F.2d 529, 534 (1st Cir.
17 Congress amended the Social Security Act on March 29, 1996, to preclude a finding of disability "if drug abuse or alcoholism would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." P.L. No. 104-121 §§ 105(a) (1) and (b)(1), 110 Stat. 847, 852-53 (1996). The "key factor" in determining whether drug addiction or alcoholism is material is whether the individual would still be found disabled if alcohol or drug use were to stop. See 20 C.F.R. § 404.1535 (1997). Congress noted that this provision was to apply to any case which had not yet been decided when the changes were enacted. See P.L. No. 104-21 §§ 105(a)(5)(A) and (b)(5)(A) as amended by P.L. 105-33 §§ 5525, 5528.
-14- 198 8); Torres Gutierrez v. Secretary of Health, Educ. and
Welfare, 572 F.2d 7, 8 (1st Cir. 1978) (poor vision correctable by
eyeglasses not a basis for disability). The fact that Sullivan
returned to substantial, gainful activity after getting new
hearing aids confirms the ALJ's finding that she was not
irrestorably disabled.
Sullivan also alleges that the ALJ was mistaken in using a
hearing loss of 90 decibels or greater as a benchmark. The
record shows, however, that the ALJ made this reference in
discussing whether Sullivan could be found presumptively disabled
at Step Two. A hearing threshold of 90 decibels or greater would
make Sullivan presumptively disabled, and would reguire no
further inguiry. See 20 C.F.R. Part 404, Subpart P, Appendix 1,
§ 2.08. Accordingly, the ALJ's use of this standard was proper.
Finally, Sullivan argues that the ALJ internally contradicts
himself by at times referring to Sullivan's hearing loss as
"severe," while at other times calling it "moderate." The
distinction, however, arises because the term "severe" is a term
of art in the lexicon of Social Security law denoting a de
minimus threshold for continued inguiry after Step Two of the
five-step seguential evaluation process. See 20 C.F.R. §
404.1520 (1998); Gonzales-Avala v. Secretary of Health and Human
-15- Serv., 807 F.2d 255 (1st Cir. 1986). The ALJ's use of the term
"severe" at Step Two of the sequential evaluation process simply
denoted that he considered Sullivan's impairment to be more than
minimal, and requiring continued inquiry at Step Three. There
is, thus, no inconsistency between this assessment and his later
substantive evaluation of Sullivan's hearing loss as "moderate."
B. The ALJ properly concluded that Sullivan could perform her past relevant work during the closed period of her disability
Sullivan argues that the ALJ's analysis of her impairments
failed to consider their combined deleterious effect on her
ability to perform her former work as a cashier during her
alleged closed period of disability. She notes that "[e]ven if
no one impairment is severe enough, a combination of several may
render a claimant disabled and unable to work." Smolen v.
Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); Johnson v. Sullivan,
922 F.2d 346, 351-52 (7th Cir. 1990); Walker v. Bowen, 889 F.2d
47, 50 (4th Cir. 1989). Sullivan's testimony, however, suggests
that her on-the-job difficulties were solely related to her
hearing loss. See generally Tr. of ALJ Hr'g at 1-9 (Tr. at 24-
33). She also testified that she was able to work two days a
week during the closed-period of her disability, before she
received her new hearing aids, see Tr. at 31, and noted in a
-16- questionnaire that her reduced working hours are due to the
"frustration of not hearing properly." See Tr. at 7 9 (emphasis
added). Her treating physician notes, in a report submitted
subsequent to the hearing before the ALJ, that "client's social
interactions are mildly affected by current psychological
difficulties. . . [and that] [t]he client is not likely to have
significant difficulty in accomplishing basic activities related
to work due to psychological issues." Tr. at 218. Further,
Sullivan's physician notes, "[s]he appears capable of
understanding, remembering, and carrying out written and oral
instructions, if the latter are within sensory range." Id.
Sullivan was performing her past relevant work even during
the closed period of disability (just not for enough hours to
constitute substantial, gainful activity). Given that fact, the
reports by her treating physician, and the fact that Sullivan's
hearing was restored with hearing aids to the point that she now
engages in substantial, gainful employment, I find that the ALJ's
conclusion that Sullivan was capable of performing her past
relevant work during the alleged closed period of disability was
supported by substantial evidence. See Tsarelka, 842 F.2d at 534
(a remedial impairment cannot form the basis for disability).
-17- C. The ALJ properly evaluated Sullivan's subjective complaints
In evaluating Sullivan's residual functional capacity, the
ALJ weighed Sullivan's subjective complaints and considered the
degree of incapacity asserted by Sullivan. A plaintiff's
subjective assertions, however, must be evaluated against the
objective evidence, and not simply accepted blindly. See
Thompson v. Califano, 556 F.2d 616, 617 (1st Cir. 1977) .
Subjective allegations are properly rejected where the objective
medical evidence does not substantiate the alleged subjective
limitations. See Bianchi v. Secretary of Health and Human
Servs., 764 F.2d 44, 45 (1st Cir. 1985). An ALJ, however, is not
free to simply accept or reject a claimant's subjective
complaints on the basis of an "intangible or intuitive notion
about an individual's credibility." Instead,
The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently scientific to make clear to the individual and to any subseguent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision. . . .
S.S.R. 96-7p.
-18- Accordingly, in addition to evaluating the medical evidence,
the ALJ heard and evaluated testimony from the plaintiff about
her daily activities, the freguency and duration of her
functional restrictions, medications, and prior work record. See
Avery v. Secretary of Health and Human Services, 797 F.2d 19, 22
(1st Cir. 1986). The ALJ noted that Sullivan reported, in an
October 1995 guestionnaire, that she was able to grocery shop,
cook meals, do household chores, visit with relatives, and help
her mother with shopping and housecleaning, all with no
difficulty concentrating, or following written or oral
instructions. See Tr. At 77-79. The ALJ also noted that
Sullivan was actually performing her job for two days a week
before she got her new hearing aids, suggesting that her
limitations were not as complete as she alleges.
The ALJ is charged with the duty to weigh this evidence, to
resolve material conflicts in testimony, and to resolve the case
accordingly. See Richardson v. Perales, 402 U.S. 389, 400
(1971); Tremblav v. Secretary of Health and Human Serv., 676 F.2d
11, 12 (1st Cir. 1982). The ALJ's findings must be upheld if
they are supported by substantial evidence, even if the reviewing
court, in a de novo hearing, might have found otherwise. See
Lizotte v. Secretary of Health and Human Serv., 654 F.2d 127, 128
-19- (1st Cir. 1981). After a complete review of the evidence in the
record, including Sullivan's subjective complaints, I find
substantial evidence to support the ALJ's conclusion that
Sullivan's activities during the alleged closed period of her
disability, including her successful social interactions and her
part-time work as a cashier in a noisy environment, do not
substantiate a totally disabling impairment.
IV. CONCLUSION
Because I have determined that the Commissioner's
conclusion that Sullivan was "not disabled" during the alleged
closed period of disability from September 1, 1993, until June
1996, is supported by substantial evidence, I affirm.
Accordingly, Sullivan's motion to reverse and remand (Doc. 7) is
denied, and defendant's motion for an order affirming the
commissioner (Doc. 9) is granted. The clerk shall enter judgment
accordingly.
SO ORDERED.
Paul Barbadoro Chief Judge June 21, 1999
cc: Raymond J. Kelly, Esg. David L. Broderick, Esg.
-20-