Paul Blake v. SSA CV-99-126-B 01/28/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Paul F. Blake
v. Civil N o . 99-126-B Opinion N o . 2000 DNH 029 Kenneth S. Apfel, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
On October 1 5 , 1993, Paul F. Blake (“Blake) filed an
application for disability insurance benefits under Title II of
the Social Security Act. After having his application denied
both at the administrative level and by an administrative law
judge, Blake sought judicial review of the Commissioner’s final
decision denying his application for benefits. On May 2 2 , 1997,
the district court remanded the matter for further proceedings.
On remand, the administrative law judge again denied Blake’s
application for benefits. In the present action, Blake, pursuant
to 42 U.S.C. § 405(g) (1994), seeks judicial review of the
Commissioner’s second decision to deny his application. For the reasons set forth below, I conclude that the Commissioner’s
decision is not supported by substantial evidence. As result, I
grant Blake’s motion to reverse and remand the Commissioner’s
decision.
I. BACKGROUND1
A. Procedural History
Blake filed his current application for Disability Insurance
Benefits (“DIB”) on October 1 5 , 1993. He alleged disability
since November 3 0 , 1987 due to a herniated disc, degenerative
joint disease, and sciatic pain radiating from his hip to toe,
bilaterally.
After his application was denied both initially and upon
reconsideration, Blake requested a hearing before an
Administrative Law Judge (“ALJ”). On February 1 6 , 1995, ALJ
Klingebiel held a hearing at which Blake and his wife testified.
ALJ Klingebiel found Blake not disabled. The Appeals Council
1 Unless otherwise noted, the following facts are taken from the parties’ Joint Statement of Material Facts (doc. n o . 8 ) .
-2- denied Blake’s request for review. Blake sought judicial review
and on May 2 2 , 1997 the district court granted the Commissioner’s
assented-to motion for an order reversing and remanding the
matter for further proceedings. The Appeals Council remanded the
matter to the ALJ with direction to evaluate more thoroughly
Blake’s complaints of pain and determine the weight to be
assigned to the opinion of Blake’s treating physician, Dr.
Brassard, as outlined in his June 1 , 1995 letter.
On April 1 6 , 1998, ALJ Klingebiel held a second hearing at
which Blake, his wife, and a vocational expert testified. In his
order dated July 2 , 1998, ALJ Klingebiel determined that Blake
had the residual functional capacity (“RFC”) to perform a limited
range of light work. Based upon the testimony of the vocational
expert, the ALJ concluded that Blake could not return to his
prior work but that there were a significant number of jobs in
the national economy Blake could perform. Accordingly, ALJ
Klingebiel found Blake not disabled through June 3 0 , 1993, the
date he last met the insured status requirements of the Social
-3- Security Act. The Appeals Council denied Blake’s request for
review on February 8 , 1999, thereby rending ALJ Klingebiel’s July
2 , 1998 order the final decision of the Commissioner.
B. Medical Evidence
Blake was born January 3 , 1948. As of the date he last met
the insured status requirements, he was 45 years old. Blake has
a tenth grade education and his past relevant work includes work
as a laborer, plastic injection mold machine operator and
maintenance man, and finishing room worker.
In 1987, Blake, while putting up a chimney at his house,
injured his back when he twisted to put down a cement block he
had carried up a ladder. Shortly thereafter, Blake sought
treatment from D r . Brassard, a general practitioner, who gave him
a shot which provided temporary local relief. Blake tried to
return to work but stopped due to steady pain in his lower back.
On December 2 1 , 1987, Dr. Kathleen Robinson ordered x-rays
of Blake’s lumbar spine. These x-rays showed only a minimal
narrowing of the L5-S1 intervertebral disc, which might have been
-4- a normal variant or due to minimal degenerative disc disease.
The x-rays also showed minimal anterior bony outgrowths on L3
through S 1 . A spinal CT scan performed on January 1 2 , 1988
showed degenerative disc disease at S 1 , but that the other levels
were normal. No true disc herniation was identified.
In July 1988, Dr. Ramos, a physiatrist, examined Blake. On
neurological evaluation, Blake reported decreased sensory
appreciation over the left L4-5 dermatome level in response to
light touch, deep touch, vibratory, and pinprick stimuli. Upper
deep tendon reflexes were normal, but lower extremity reflexes
were hypoactive. Muscle strength in the upper and lower
extremities was normal, but trunk mobility was markedly
restricted, secondary to complaints of acute pain and tightness.
Detailed palpation over the lumbar paraspinous muscles and the
gluteal region elicited acute spasms, tenderness, and complaints
of impaired sensation extending into the left leg. Deep constant
pressure over the left sciatic notch elicited marked discomfort.
Dr. Ramos diagnosed acute bilateral sacrospinalis and left
-5- quadrant lumbar muscle inflamation. Dr. Ramos also wanted to
rule out the possibility of left L4-5, S1 radiculopathy. See Tr.
at 186. He recommend localized nerve block, anti-inflammatory
medication, and conservative physical rehabilitation treatment.
In August 1988, an EMG was performed which showed evidence of
chronic nerve root irritation at the left L5-S1 level.
From July 2 2 , 1988 to October 7 , 1988, Blake attended
physical therapy. By October, there were minimal findings and
Blake’s muscles were described as minimally tender. During the
fall of 1988, Blake also had been building his endurance by
walking on a daily basis.
In December 1988, Blake saw Dr. Porter, an orthopedic
surgeon, because of his complaints of persistent thoracic and
lower back pain. D r . Porter observed that Blake had decreased
flexion, extension, and lateral flexion in his lower back and
some subjective sensory loss in the lateral aspect of his left
foot. Blake’s reflexes were equal and normal.
At Dr. Porter’s recommendation, Blake underwent a MRI
-6- (magnetic resonance imaging) of his back in January 1989. The
MRI showed a herniated disc at L5-S1, more to the left than to
the right, which D r . Porter noted could have caused the pain down
Blake’s left leg and some numbness in the left foot. The
herniation indented the epidural fat but there was no distortion
of the thecal sac. D r . Porter noted that there was no imminent
nerve loss and that surgery would be indicated if pain returned
as Blake increased his activities.
In December 1989, Dr. Brassard diagnosed a herniated lumbar
disc, degenerative arthritis, and obesity. He prescribed several
medications including Motrin and Darvocet. Dr. Brassard’s March
1991 treatment notes indicated Blake still reported subjective
complaints of pain with respect to his lower back, left chest
radiating into his neck, and right leg. On January 1 6 , 1992, D r .
Brassard reduced Blake’s Motrin dose because he had developed
gastritis due to Motrin overuse. At the end of the month, D r .
Brassard prescribed phenobarbital but Blake stopped taking it in
February because it made him “ugly.”
-7- On February 2 1 , 1992, D r . Martino conducted a neurological
evaluation of Blake. Dr. Martino found that Blake had 4/5
strength in his lower extremities with give away weakness and
discomfort, while his upper extremities were unimpaired. There
was decreased pin prick sensation in a circumferential fashion in
his entire left leg and in a patchy fashion in his right leg not
corresponding to any singular nerve or dermatome. Blake’s gait
was significant for left-sided limb favoring. It was Dr.
Martino’s impression that Blake had protracted lumbar
radiculopathy and recommended a right S1 nerve root block.
Dr. Porter again examined Blake in January 1994. Dr. Porter
found that Blake’s gait was reasonably normal, but slow; straight
leg raising was negative to 80 degrees; motor strength was
normal; and sensation seemed intact. See id. at 183. Dr. Porter
diagnosed chronic low back pain secondary to degenerative disc
disease without any evidence of nerve root impingement or
foraminal encroachment. D r . Porter opined that there was no
indication that surgery would be beneficial in Blake’s case. See
-8- id.
In his June 1 , 1995 letter, Dr. Brassard opined that
throughout the time he treated Blake, Blake experienced chronic
pain which would be expected to limit his capacity to attend
regularly and consistency to any occupation or activity.
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, I am authorized t o : 1 ) review the pleadings
submitted by the parties and the transcript of the administrative
record; and 2 ) enter judgment affirming, modifying, or reversing
the Commissioner’s decision. See 42 U.S.C. § 405(g) (1994). My
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)(per curiam);
42 U.S.C. § 405(g). The Commissioner is responsible for settling
-9- 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 adequate to support [the ALJ’s]
conclusion.’” Id. (quoting Rodriguez v . Secretary of Health and
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)) (alteration in
original).
If the ALJ has misapplied the law or has failed to provide a
fair hearing, deference to the ALJ’s decision is not appropriate;
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 Slessinger v . Secretary of
Health and Human Servs., 835 F.2d 937, 939 (1st Cir. 1987)(per
curiam) (“The [ALJ’s] conclusions of law are reviewable by this
court.”). I apply these standards in reviewing the issues Blake
raises on appeal.
-10- III. DISCUSSION
An ALJ is required to apply a five-step sequential analysis
to determine whether a claimant is disabled within the meaning of
the Act.2 At step four, the ALJ must determine whether the
claimant’s impairment prevents him from performing his past work.
See 20 C.F.R. § 404.1520(e) (1999). The ALJ must assess both the
claimant’s residual functional capacity (“RFC”), that i s , what
the claimant can do despite his impairments, and the claimant’s
past work experience. See Santiago v . Secretary of Health and
Human Servs., 944 F.2d 1 , 5 (1st Cir. 1991)(per curiam). At step
five, the burden shifts to the Commissioner to show that there
2 In applying this five-step sequential analysis, the ALJ is required to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment that 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 (1999).
-11- “are jobs in the national economy that [the] claimant can
perform.” Heggarty v . Sullivan, 947 F.2d 990, 995 (1st Cir.
1991) (per curiam); see also Keating v . Secretary of Health and
Human Servs., 848 F.2d 271, 276 (1st Cir. 1988)(per curiam). The
Commissioner must show that the claimant’s limitations do not
prevent him from engaging in substantial gainful work, but need
not show that the claimant could actually find a job. See
Keating, 848 F.2d at 276 (“The standard is not employability, but
capacity to do the job.”).
In the present case, the ALJ found Blake not disabled at
step five. The ALJ determined that Blake has the residual
functional capacity to perform a limited range of light work.
Based upon the testimony of a vocational expert, the ALJ
determined that Blake cannot return to his past work but that
there are jobs in the national and local economy which Blake is
capable of performing.
Blake makes three principal arguments in support of his
motion to reverse the ALJ’s decision. First, Blake argues that
-12- the ALJ erred by not giving controlling weight to the opinion
expressed by his treating physician, Dr. Brassard, in his June 1 ,
1995 letter. Second, Blake asserts that the ALJ was not entitled
to rely upon the testimony of the vocational expert because the
hypothetical posed to the VE did not reflect Blake’s functional
limitations as outlined by Dr. Brassard in his June 1 , 1995
letter. Third, Blake argues that the ALJ improperly assessed his
subjective complaints of pain. I agree that the ALJ did not
perform a proper analysis of Blake’s pain complaints. As a
result, I address only this error and express no opinion on the
remaining issues raised by Blake’s motion.3
3 The ALJ addressed the issue of whether Dr. Brassard’s June 1 , 1995 assessment of Blake’s functional limitations was entitled to controlling weight in his discussion of Blake’s credibility. The ALJ discounted Dr. Brassard’s opinion because it was not sufficiently supported by objective medical evidence and relied too heavily upon Blake’s subjective complaints of pain. See Tr. at 248 (discounting Dr. Brassard’s opinion because of D r . Brassard’s “apparent disproportional reliance on the claimant’s own subjective complaints relative to the paucity of objective medical evidence throughout the record”). Although I find that the ALJ must reassess Blake’s credibility, I express no opinion on whether, after such reassessment, the ALJ still may discount Dr. Brassard’s opinion.
-13- A. Standards Governing ALJ’s Pain Determination
The regulations require that a claimant’s symptoms, such as
pain, be considered when determining whether a claimant is
disabled. A two-step process is used to evaluate a claimant’s
subjective complaints of pain. First, the claimant must suffer
from a medically determinable impairment which can reasonably be
expected to produce the pain alleged. See 20 C.F.R. 404. §
1529(b) (1999); see also Da Rosa v . Secretary of Health and Human
Servs., 803 F.2d 2 4 , 25 (1st Cir. 1986)(per curiam). Second, if
this showing is made, the ALJ evaluates “the intensity and
persistence of [the claimant’s] symptoms so that [the ALJ] can
determine how [the claimant’s] symptoms limit [his or her]
capacity for work.” 20 C.F.R. § 404.1529(c)(1). At this step,
the ALJ considers “all of the available evidence, including [the
claimant’s] medical history, the medical signs and laboratory
findings, and statements from [the claimant], [the claimant’s]
treating or examining physician or psychologist, or other persons
about how [the claimant’s] symptoms affect [the claimant].” Id.
-14- A claimant’s subjective complaints of pain will be deemed
credible only if they are consistent with the objective medical
evidence and the other evidence in the record. See id. §
1529(a).
Although objective medical evidence is important, it does
not have to corroborate precisely the claimant’s pain complaints;
rather, it only needs to be consistent with the claimant’s
complaints. See Dupuis v . Secretary of Health and Human Servs.,
869 F.2d 6 2 2 , 623 (1 st Cir. 1989)(per curiam). As a result, an
ALJ must not overemphasize the importance of objective medical
findings when assessing the credibility of the claimant’s
complaints regarding the intensity and persistence of his pain.
An ALJ must not disregard a claimant’s complaints “solely because
they are not substantiated by objective medical evidence.”
Social Security Ruling 96-7p, 1996 WL 374186, at *6 (Jul. 2 ,
1996) [hereinafter SSR 96-7p] (noting that objective medical
evidence is just one factor to be considered in assessing
credibility); see also Hatfield v . Apfel, N o . Civ. A . 94-1295-
-15- JTM, 1998 WL 160995, at *7 (D. Kan. Mar. 3, 1998) (“[T]he
claimant need not produce objective medical evidence of the level
and persistence of her pain.”).
Because the regulations recognize that symptoms, such as
pain, may suggest a more severe impairment “than can be shown by
objective medical evidence,”4 20 C.F.R. § 404.1529(c)(3), they
direct the ALJ to consider several factors relevant to a
claimant’s complaints of pain. These factors include: 1 ) the
claimant’s daily activities; 2 ) the location, duration,
frequency, and intensity of the claimant’s pain; 3 ) precipitating
and aggravating factors; 4 ) the type, dosage, effectiveness, and
side effects of any medication the claimant takes or has taken to
alleviate his pain; 5 ) treatment, other than medication, the
claimant receives or has received for relief of his pain; 6 ) any
measures the claimant uses or has used to relieve pain; and 7 )
4 While symptoms cannot be objectively measured, their effects often can be clinically observed. For example, findings of reduced joint motion, muscle spasm, sensory deficit, or motor disruption may be the product o f , or associated with, symptoms of pain. SSR 96-7p, 1996 WL 374186, at * 6 .
-16- any other factors concerning the claimant’s limitations and
restrictions due to pain. Id.; Avery v . Secretary of Health and
Human Servs., 797 F.2d 1 9 , 29 (1st Cir. 1986). In addition to
considering these factors, the ALJ is entitled to observe the
claimant, evaluate his demeanor, and consider how the claimant’s
testimony fits with the rest of the evidence. See Frustaglia v .
Secretary of Health and Human Servs., 829 F.2d 192, 195 (1st Cir.
1987)(per curiam) (holding that ALJ’s credibility finding is
entitled to deference, especially when it is supported by
specific findings).
B. ALJ’s Assessment of Blake’s Subjective Complaints of Pain
In the present case, the ALJ determined that the objective
medical evidence revealed an underlying disc pathology which
reasonably could be expected to produce Blake’s pain complaints.
See Tr. at 249. Because the ALJ did not credit Blake’s
complaints regarding the severity of his pain, he concluded that
Blake’s lower back and leg symptoms do not further erode his
-17- ability to perform the range of light work the ALJ had defined.5
See id. (“[A]lthough I do not question that the claimant
experienced chronic pain throughout his period of treatment with
Dr. Brassard, the lack of objective medical measures and regular
treatment undermine the conclusion that the claimant was unable
to perform the range of light work enumerated above.”). In
particular, the ALJ determined that Blake’s subjective complaints
of pain were not credible in light of (1) discrepancies between
Blake’s assertions and the objective medical findings; (2) the
frequency and degree of medical treatment Blake required; and
(3) Blake’s daily activities.6 I find that the ALJ’s adverse
5 The ALJ determined that Blake has the residual functional capacity to perform a limited range of light work. According to the ALJ, Blake is incapable of performing the full range of light work because he cannot bend repeatedly and must have an opportunity to change position as needed. See Tr. at 247. In his enumerated findings, the ALJ stated a similar conclusion. See id. at 251 finding #5 (identifying inability to walk repetitively as another functional limitation).
6 The ALJ offered the following explanation in support of his adverse credibility determination: While I am mindful of the claimant’s difficulties maintaining insurance, I should
-18- credibility determination was improper because it overstated the
importance of corroborating objective medical evidence and
misconstrued and/or ignored non-medical evidence supporting
Blake’s subjective complaints of pain.
1. Objective Medical Evidence
The ALJ discredited Blake’s subjective complaints at the
second step of the pain analysis. At that point, the ALJ was
once again also note that the claimant’s limited use of medication and other treatment modalities runs counter to Dr. Brassard’s general comments with regard to the severity of the claimant’s pain. If in fact the claimant’s pain were intolerable, it is reasonable to expect to see recurrent emergency room visits, or at least more frequent and involved discussion of pain management in treatment notes. Yet, more often than not, Dr. Brassard’s treatment notes contain no mention whatsoever of strategies to address the claimant’s pain. . . . More generally, I must point to the claimant’s good response to even a short period of physical therapy in July 1988 (Exhibit B 2 1 ) , I should also mention the claimant’s self-reports that he would walk almost every day and could walk up to one mile (Exhibit B 1 3 ) . He also reportedly took care of some household tasks (Exhibit B 8 ) . Tr. at 248-49.
-19- entitled to consider the objective medical evidence but he was
not entitled to reject Blake’s complaints about the severity of
his pain simply because they were not substantiated by objective
medical evidence. The ALJ erred by attaching too much weight to
the absence of objective medical findings.
The MRI and other x-rays of Blake’s back did not reveal any
“nerve root impingement or loss of function,” id. at 1 7 2 , or
other abnormalities, see id. at 174. Nonetheless, the medical
evidence included several references to Blake’s complaints of
pain and doctors’ observations of his pain. See, e.g., id. at
167 (Dr. Porter’s December 2 2 , 1988 out-patient visit notes
observing that Blake appeared to be in “chronic distress”).
Although Dr. Porter indicated that he found it difficult to “sort
out the complaints with objective evidence of any positive
findings,” he indicated that he believed Blake’s pain complaints
were genuine. Id.
In addition, the ALJ failed to consider in his analysis of
Blake’s credibility clinical findings measuring the effects of
-20- Blake’s pain symptoms. For example, he made no mention of Dr.
Ramos’ findings that Blake experienced “acute spasms,”
tenderness, and tightness in certain areas. See id. at 186. Nor
is it apparent that the ALJ accounted for D r . Porter’s 1988
observation of Blake’s decreased motion in his back, “to
flexion/extension and lateral flexion,” id. at 1 6 7 , or Dr.
Martino’s 1992 finding that Blake showed “4/5 power in the lower
extremities with give away weakness and discomfort,” id. at 175. 7
Closely related to the ALJ’s concern about the lack of
objective medical finding, was his concern about Blake’s failure
to seek more frequent treatment for his pain. According to the
ALJ, the absence of regular treatment suggested that Blake’s pain
was not as severe as he alleged.
An ALJ is entitled to treat frequency of treatment as a
factor in his credibility determination. See Irlanda Ortiz, 955
F.2d at 766 (“The ALJ also relied on the fact that for long
7 In his recitation of the medical evidence, the ALJ mentioned these findings of Dr. Ramos and Dr. Martino, but not those of Dr. Porter. See Tr. at 244-47.
-21- periods of time claimant was not in any treatment for his back
problems. The ALJ inferred that had claimant’s pain been as
severe as alleged, claimant would have sought treatment.”). An
inconsistency between the frequency of treatment and the severity
of pain alleged generally erodes the credibility of a claimant’s
complaints of pain. See SSR 96-7p, 1996 WL 374186, at * 7 . An
ALJ, however, may draw a negative inference only after he first
considers evidence explaining a claimant’s “infrequent or
irregular medical visits or failure to seek medical treatment.”
Id. at *7-8 (citing inability to afford treatment as example of
an explanation for claimant’s failure to seek treatment).
Consideration of such explanations is necessary to gain insight
into a claimant’s credibility. See id. at * 7 .
In the present case, the ALJ inadequately discharged his
obligation to consider Blake’s explanation for failing to seek
more regular medical treatment before drawing a negative
credibility inference from this evidence. Blake claimed that
financial hardship – arising out of his inability to work, his
-22- loss of health insurance, his wife’s inability to get health
insurance through her employers, and his wife’s medical bills –
precluded him from seeking more regular treatment for his pain.
See, e.g., Tr. at 87 (Blake’s testimony that even though he
wanted to return to Dr. Martino he did not because of his
concerns about medical bills). Instead of examining the effect
of Blake’s limited resources on his ability to seek treatment,
see, e.g., id. at 175 (Dr. Martino’s February 1992 report stating
that he discussed with Blake “further diagnostic and therapeutic
options. He [Blake] is concerned about the expense of these
situations and wishes to pursue a [nerve root] block before any
further tests are performed”), the ALJ only made a passing remark
that he was “mindful of the claimant’s difficulties maintaining
insurance,” id. at 248. Requiring the ALJ to give fuller
consideration to the effect of Blake’s financial hardship on his
treatment options is particularly appropriate given that “the
purpose of the Social Security Act is to ameliorate some of the
rigors of life for those who are disabled or impoverished.”
-23- Jones v . Sullivan, 804 F. Supp. 1398, 1403 (D. Kan. 1992) (citing
Dvorak v . Celebrezze, 345 F.2d 894, 897 (10th Cir. 1965)).
2. Non-Medical Evidence and the Avery Factors
In addition, I conclude that the ALJ’s credibility
determination was deficient because it only addressed a few of
the pertinent Avery factors. Furthermore, with respect to those
factors he did consider, the ALJ either misconstrued or ignored
evidence in the record. See, e.g., id. at 1406 (“In this case,
the ALJ improperly abstracted the evidence to support a denial of
benefits. The decision mischaracterizes or ignores evidence
favorable to the plaintiff and overemphasizes evidence favorable
to the [Commissioner].”) (internal citation omitted).
a. Blake’s Daily Activities
To be found disabled, a claimant must show that he cannot
perform “‘substantial gainful activity,’” not that he is
“‘totally incapacitated.’” Id. at 1405; see also Baumgarten v .
Chater, 75 F.2d 366, 369 (8th Cir. 1996) (“To establish
disability, [a claimant] need not prove that her pain precludes
-24- all productive activity and confines her to life in front of the
television.”); Thomas v . Sullivan, 876 F.2d 666, 669 (8th Cir.
1989)(“[W]e note that a claimant need not prove she is bedridden
or completely helpless to be found disabled.”). To be capable of
substantial gainful activity, a claimant must be able to perform
“substantial services with reasonable regularity either in
competitive or self-employment.” Thomas, 876 F.2d at 669
(citation omitted). That i s , a claimant must be able to perform
the required acts “day in and day out, in the sometimes
competitive and stressful conditions in which real people work in
the real world.” Id. (citation omitted); Allred v . Heckler, 729
F.2d 529, 533 (8 th Cir. 1984) (citing McCoy v . Schweiker, 683
F.2d 1138, 1146 (8 th Cir. 1982) (en banc)).
Accordingly, a claimant’s ability to engage in limited daily
activities, including light housework, is not necessarily
inconsistent with “the inability to perform substantial gainful
activity.” See Hatfield, 1998 WL 160995, at *7 (finding that
claimant’s activities did not “speak to her ability to alternate
-25- sitting and standing throughout the day”); see also Ghant v .
Bowen, 930 F.2d 633, 638 (8th Cir. 1991) (holding that claimant’s
ability to do light housework, fish, and play dominos did not
necessarily indicate that he could perform full-time light work).
In the present case, the ALJ gave the evidence of Blake’s
daily activities cursory consideration, noting only that Blake
walked several times a week and performed some household chores.
See Tr. at 249. Because the ALJ apparently ignored the evidence
of Blake’s limitations, he must be deemed to have “improperly
abstracted evidence” to conclude that Blake was “‘fairly
active.’” See Jones, 804 F. Supp. at 1406 (observing that ALJ
ignored claimant’s limitations including her inability to perform
yard work and vacuum and her need for assistance when grocery
shopping).
To determine whether Blake’s daily activities evinced his
ability to perform substantial gainful activity on a daily basis,
the ALJ needed to examine more precisely the evidence of Blake’s
routine and limitations. For example, D r . Brassard’s treatment
-26- notes show that, as of March 1991, Blake was walking three to
five days a week. See Tr. at 159. Blake testified, however,
that he could walk, at a slow pace only, for approximately
fifteen to twenty minutes before he had to stop. See id. at 6 4 .
Similarly, the evidence showed that Blake performs only a limited
range of household chores. For example, Blake occasionally
prepares breakfast – pouring a bowl of cereal or making toast –
for his autistic son. Most days, his wife lays out breakfast for
their son. See id. at 8 0 . Blake’s other household chores
include vacuuming his family’s small mobile home. Blake
testified, however, that he was able to do so only with his son’s
assistance and that he can push, but not pull, the vacuum. See
id. at 81-82. According to Blake, he sometimes washes dishes but
not for more than ten minutes because of his inability to stand
in one place for any period.8 See id. at 8 2 .
In addition to superficially treating the evidence of
8 This testimony is consistent with other parts of Blake’s testimony in which he stated that he can stand for about fifteen minutes and that his pain is triggered by standing in one place for too long. See, e.g., Tr. at 6 4 , 7 3 .
-27- Blake’s ability to walk and perform household chores, the ALJ
ignored all together other evidence of Blake’s limitations which
might suggest Blake’s inability to perform substantial gainful
activity. For example, both Blake and his wife testified that he
has difficulty sleeping. According to Blake, he is able to
sleep, at most, for two to two and one-half hours each night;
prior to his injury, he was able to sleep for eight hours. See
id. at 74-75, 9 3 . Blake’s wife also testified that she sometimes
– approximately two to three times per week – has to give Blake
his pain medication during the middle of the night. See id. at
93-94. In addition, the ALJ made no mention of: (1) Blake’s
difficulty dressing himself, including occasionally requiring his
wife’s assistance, see id. at 78-79; (2) his inability to lie
down during the day because of the difficulty he has getting u p ,
see id. at 7 4 ; (3) his lack of hobbies and limited social
interaction, see id. at 134 ; and (4) the impact of his injury,
and resulting pain, on his family relations, including his
intimate relationship with his wife, see id. at 7 0 , 9 5 .
-28- b. Duration, Frequency, and Intensity of Pain
Although the ALJ acknowledged that Blake is in chronic pain,
see id. at 249, he concluded that this pain does not further
erode Blake’s functional ability to perform a limited range of
light work. Blake testified, however, that he suffers not only
from a constant pressure on his lower back, but also suffers from
short, intense peaks in his pain. See id. at 6 3 . On a scale of
one (minor irritation) to ten (injection at hospital), Blake
rated his average pain level at a six or seven. See id. at 289.
c. Precipitating and Aggravating Factors
According to Blake, sitting or standing in one position for
an extended period triggers the intense peaks in his pain. See
id. at 6 4 . Sitting back in a chair exacerbates the pressure he
feels in his lower back. See id. at 7 6 . Blake also testified
that he can sit in a chair like the one in the hearing room for
about fifteen minutes before he needs to stand up. See id. at
73. Although the ALJ was entitled to factor into his credibility
determination his own observations of Blake at the hearing,
-29- see Ortiz v . Secretary of Health and Human Servs., 890 F.2d 520,
523 (1 st Cir. 1989) (per curiam), he made no mention of Blake’s
need to change position frequently during the hearing. See,
e.g., Tr. at 6 3 , 73 (comments of Blake’s representative noting
Blake’s need to change position).
d. Type, Effectiveness, and Side Effects of Medication
According to the ALJ, Blake has made only a limited use of
medication to manage his pain. See id. at 248. The evidence
shows, however, that ALJ’s characterization of Blake’s use of
medication is inaccurate.
Since at least 1989, Dr. Brassard prescribed both Motrin and
Darvocet to treat Blake’s pain. See id. at 153 (Dr. Brassard’s
December 1 , 1989 treatment notes). In response to Blake’s
complaint that the Motrin and Darvocet were ineffective, Dr.
Brassard prescribed Tylenol Three (i.e., Tylenol with codeine) in
December 1992. See id. at 163. In addition, there is evidence
in the record that Blake also has been prescribed Medrol
-30- Dosepak,9 Flexeril,10 and Naprosyn.11 See id. at 191-95.
Furthermore, the ALJ failed to consider the evidence
regarding the side-effects of Blake’s medications. For example,
Dr. Brassard’s February 1992 treatment notes indicate that Blake
discontinued his use of phenobarbital and expressed his
preference for no sedation because the medicine had made him
“ugly.” See id. at 163. Similarly, Blake discontinued his use
of Motrin after he experienced rectal bleeding. In place of
Motrin, Blake began to take twenty aspirin per day. See id. at
64-65. Blake testified, however, that excessive aspirin use
9 Medrol is the trademark for preparations of methylprednisolone. Dorland’s Medical Dictionary 1000 (28th ed. 1994). Methylprednisolone is used as an anti-inflammatory. Id. 1032. 10 Flexeril is prescribed, in conjunction with rest and physical therapy, “for relief of muscle spasm associated with acute, painful musculoskeletal conditions.” Physicians’ Desk Reference 1656 (52nd ed. 1998) 11 Naprosyn is prescribed for the treatment of “rheumatoid arthritis, osteoarthritis, ankylosing spondylitis, and juvenile arthritis. . . . [It also is prescribed] for treatment of tendinitis, bursitis, acute gout, and for the management of pain and primary dysmenorrhea.” Physicians’ Desk Reference 2458-59 (52nd ed. 1998).
-31- upsets his stomach. See id. at 290. Blake also stated that when
he takes Darvocet he feels like things move from side to side and
if he tries to fixate on something he becomes nauseous. See id.
at 287.
e. Treatment, Other than Medication
The ALJ reasoned that if Blake’s pain were as severe as he
claimed, treatment notes would have included “more frequent and
involved discussion of pain management . . . Yet, more often than
not, D r . Brassard’s treatment notes contain no mention whatsoever
of strategies to address the claimant’s pain.” Id. at 248-49.
Again, the ALJ overstated the importance of the absence of
certain evidence.
First, Dr. Brassard is Blake’s treating physician for his
general health; he is concerned about all of Blake’s health
problems, including degenerative arthritis, obesity, and
hypertension, see id. at 1 5 7 , not only Blake’s back pain. As a
result, it is not surprising that Dr. Brassard’s treatment notes
from each of Blake’s visits do not include comments on or
-32- observations of Blake’s back condition and pain. See Taylor v .
Chater, 118 F.3d 1274, 1278 (8th Cir. 1997) (holding that there
were no inconsistencies in record to justify finding claimant not
credible because the “lack of information contained in any of the
reports completed by [the claimant’s] doctors does not qualify as
an inconsistency in the evidence as a whole. The medical reports
certainly made no attempt to catalog [the claimant’s] every pain
and her behavior resulting from the pain”).
Second, the record includes evidence indicating that Blake
did seek forms of treatment other than medication. For example,
in July 1988, Dr. Ramos administered nerve block shots, ultra-
sound, and heat packs. He also sent Blake to physical therapy.
See Tr. at 166 (Dr. Porter’s December 1988 treatment notes). Dr.
Brassard also treated Blake with a nerve block injection. See
Id. at 132 (December 1993 disability report).
Moreover, the ALJ’s analysis of the evidence of alternative
treatment he did mention was inadequate. The ALJ, in part, based
his adverse credibility finding upon what he characterized as
-33- Blake’s “good response to even a short period of physical therapy
in July 1988.” Id. at 249. The only support for this conclusion
appears to be two comments: (1) a comment, “[o]ngoing
improvement,” in a physical therapist’s September 6, 1988
progress notes, see id. at 193; and (2) Blake’s comment to Dr.
Porter in 1988 that he experienced slight improvement due to the
physical therapy, see id. at 166. The ALJ never asked Blake why
he discontinued physical therapy in October 1988. It is unclear
whether Blake unilaterally decided to discontinue physical
therapy or whether his doctor recommended that he stop. The
physical therapist’s final set of progress notes, dated October
7 , 1988, only indicates, after the “Treatment” heading,
“[d]iscontinue physical therapy.” See id. at 195. Before he
could make an adverse credibility determination on this basis,
the ALJ should have developed evidence of whether and how
physical therapy improved Blake’s condition and the reason for
its discontinuation.
-34- IV. CONCLUSION
Because the ALJ overstated the importance of corroborating
objective medical evidence and improperly applied the Avery
factors, I conclude that his decision to discredit Blake’s
complaints of pain is not supported by substantial evidence. See
Da Rosa, 803 F.2d at 26 (holding that remand appropriate where
ALJ’s credibility determination is not supported by substantial
evidence because ALJ failed to consider requisite factors).
Accordingly, I reverse the Commissioner’s decision. On remand,
the ALJ should reassess Blake’s credibility in light of all of
the Avery factors. The ALJ’s adverse credibility determination
also influenced his decision to discount the opinion expressed by
Dr. Brassard in his June 1 , 1995 letter. As a result, the ALJ
should reassess the weight to which Dr. Brassard’s opinion is
entitled in light of a proper credibility analysis.
Plaintiff’s Motion to Reverse and Remand (doc. n o . 6 ) is
granted. Because I act pursuant to sentence four of 42 U.S.C. §
405(g), the Clerk is instructed to enter judgment in accordance
-35- with this order. See Shalala v . Schaefer, 509 U.S. 292, 297, 298
(1993).
SO ORDERED.
Paul Barbadoro Chief Judge January 2 8 , 2000
cc: David Broderick, Esq. Raymond Kelly, Esq.
-36-