Piper v. SSA CV-96-243-SD 06/09/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Pamela J. Piper
v. Civil No. 96-243-SD
Shirley S. Chater, Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), plaintiff Pamela J. Piper
seeks review of a final decision of the Commissioner of the
Social Security Administration denying her claim for benefits.
Presently before the court is plaintiff's motion to reverse on
the ground that the Commissioner's decision was not supported by
substantial evidence in the record. Defendant has moved to
affirm. For the reasons that follow, the court affirms.
Administrative Proceedings
Plaintiff originally filed an application for a period of
disability and supplemental security income benefits with a
protective filing date of February 16, 1993, alleging an
inability to work because of incontinence and rectal pain since
December 27, 1991. Transcript (Tr.) 78. The Social Security
Administration denied the application on May 20, 1993, and denied it again upon reconsideration on December 16, 1993.
Plaintiff filed the present application on March 25, 1994,
again alleging that she had been disabled since December 27,
1991. Tr. 128. The application was denied initially on May 24,
1994, and on reconsideration on October 4, 1994. After Piper
filed a timely reguest for a hearing, an Administrative Law Judge
(ALJ) held a hearing on April 19, 1995, at which he heard
testimony from the claimant, who was represented by counsel, and
from a vocational expert. Finding that new and material evidence
provided good cause, the ALJ reopened Piper's application of
February 16, 1993, as well as all of the previous adverse
determinations.
On August 4, 1995, the ALJ issued a written decision finding
that (1) the claimant had not engaged in substantial gainful
activity since December 27, 1991; (2) the claimant has severe
rectal and bowel problems, depression, an eating disorder with
resulting morbid obesity, and bladder incontinence, but does not
have an impairment or combination of impairments listed in or
medically egual to one listed in 20 C.F.R. § 404, Ap p . 1, Subpt.
P, Table No. 1; (3) the claimant's testimony was not consistent
as to the disabling effect of her symptoms; (4) the claimant has
the residual functional capacity to perform the exertional and
nonexertional reguirements of light work except that involving
2 repetitive bending and stooping, or prolonged sitting, standing,
or walking; she reguires a sit/stand option; she must have access
to a bathroom at will; and her ability to cope with a high-stress
work environment is moderately impaired; (5) the claimant is
unable to perform her past work as a custodian; and (6), based on
her exertional capacity for light work and her age, education,
and work experience. Piper is not disabled. See 20 C.F.R. §
416.969; 20 C.F.R. § 404, App. 2, Subpt. P, Table No. 2.
The Appeals Council denied plaintiff's reguest for review on
March 1, 1996, thereby rendering the ALJ's decision the final
decision of the Commissioner and subject to judicial review.
Medical History
_____ The court here includes some of the highlights from the
Joint Statement of Material Facts filed by the parties pursuant
to Local Rule 9.1(b). The complete statement can be found at
Appendix A.
Plaintiff, who was born on August 31, 1953, is a high school
graduate and has past work experience as a medical receptionist,
a custodian, and a senior companion. She claims she has been
unable to work since December 27, 1991, due to rectal and bowel
problems and urinary incontinence.
Plaintiff's medical history is marked by multiple medical
3 conditions and symptoms, including cervical cancer, obesity,
depression, an eating disorder, an entercolonic fistula, a
perirectal abscess, and narrowing of the anal sphincter. Prior
to the alleged onset of her disability in 1991, she had
intestinal bypass surgery in 1976, a cholecystectomy in 1977, and
plastic surgery for panniculectomy, whereby the abdominal apron
of superficial fat was excised.
In March 1991 she was diagnosed with cervical cancer by Dr.
Jackson Beecham at Dartmouth Hitchcock Medical Center (DHMC) and
in April had a radical hysterectomy and pelvic lymphadectomy. In
June of that year she returned to DHMC complaining of diarrhea,
leg swelling, abdominal swelling, and erythema. Another surgeon
opened her abdominal wound and found it to extend below the
fascia for at least 14 cm. An abdominal CT scan demonstrated a
large fluid collection in the right pelvic gutter, anterior to
the wound. The wound was found to be expelling brown stool and
flatus. Plaintiff was treated with antibiotics and advised to
maintain bowel rest.
Plaintiff returned to DHMC in September of 1991 on an
emergency basis, complaining of exguisite constant perianal pain.
Dr. Thomas Colacchio found her to be moderately obese, oriented,
and well nourished. She seemed to be acutely uncomfortable
sitting down, but otherwise was in no apparent distress. Later
4 that month she underwent repair of an anal fissure without
complications. She was seen again in November, complaining of
diarrhea and rectal pain. The record reflects no other hospital
or medical reports until February 1993, at which time a cervical
cytology test was performed, which came back as normal.
On March 21, 1993, Dr. Donald 0. Lacey, a general
practitioner who had treated plaintiff for 15 years, wrote the
New Hampshire State Disability Determination Service (DDS) and
stated that plaintiff continued to have significant pain and
discomfort when sitting or sguatting, as well as urinary
incontinence. He opined that she was unable to work because of
constant urinary leakage and trouble with bowel movements. He
further stated that sitting and standing caused discomfort and
embarrassment due to leakage.
On May 4, 1993, Dr. Maurice Kelley, Jr., of DHMC wrote the
DDS that plaintiff's problems related to an inability to control
her bowel and bladder functions. He opined that her intestinal
bypass, extensive pelvic surgery, and further complications
resulted in dysfunction of the rectum, bladder, and pelvic floor,
leaving her unable to control her bladder and bowel functions.
Plaintiff reported to him that she made freguent trips to the
bathroom because of the urge to defecate or urinate. Dr. Kelley
opined that plaintiff was precluded from doing any work involving
5 sitting, standing, walking, lifting, carrying, or bending.
On July 8, 1993, Dr. Lacey examined plaintiff as part of an
application for state Medicaid assistance. He opined that
plaintiff was unable to work since April 1991 but that she had
the potential for gainful employment upon successful treatment of
her urinary incontinence and bowel difficulties. He found no
abdominal, genito-urinary, gynecological, or anorectal
abnormalities. He further noted that plaintiff felt better since
taking Prozac, an antidepressant medication.
In September of 1993 plaintiff again visited DHMC,
complaining of painful bowel movements, chronic diarrhea, and
depression. The doctor recommended some dietary changes.
On September 22 she was evaluated by psychiatrist Dr.
Stephen Cole at the reguest of the state DDS. Dr. Cole opined,
among other things, that she had a deficit in coping skills and
had a tendency to rely on escapist coping mechanisms such as
drugs and alcohol. He also stated it was unlikely that she would
be able to cope with the normal pressures of the workplace until
her medical and living situations stabilized.
On December 20, 1993, plaintiff underwent surgery at DHMC to
reverse her intestinal bypass and to correct a cystocele (a
protrusion of the urinary bladder through the vaginal wall). She
tolerated the surgery well. As a follow-up to her surgery, she
6 was seen at DHMC on February 10, 1994, by Dr. Kenneth Burchard,
who reported that plaintiff told him she was doing well since her
surgery, "her only complaint being the sense that she needs to
stimulate an evacuation once a day with a suppository." Tr. 298.
During the first few months of 1994, plaintiff received
evaluations and treatment for ongoing depression. Dr. Lacey saw
her in March when she asked him to fill out a Vermont Medicaid
form. She reported she was doing well, except for freguent
urination and incontinence, particularly during sexual activity.
Tr. 283. On October 25, 1994, she saw Dr. Ann Gormley at DHMC,
who diagnosed her with Type III stress urinary incontinence and
recommended use of a rectofacial pubovaginal sling.
Discussion
A. Standard of Review
A federal district court may "enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the [Commissioner of the Social
Security Administration], with or without remanding the cause for
a rehearing." 42 U.S.C. § 405(g).
A denial of social security disability benefits should be
upheld unless "'the Commissioner has committed a legal or factual
error in evaluating a particular claim.'" Manso-Pizarro v.
7 Secretary, 76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).
When reviewing a social security disability determination,
the factual findings of the Commissioner "shall be conclusive if
supported by 'substantial evidence.'" Irlanda Ortiz v.
Secretary, 955 F.2d 765, 769 (1st Cir. 1991) (quoting 42 U.S.C. §
405(g)). "[S]ubstantial evidence" requires "'more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)); Rodriquez v. Secretary,
647 F .2d 218, 222 (1st Cir. 1981).
However, substantial evidence "is something less than the
weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by
substantial evidence." Consolo v. Federal Maritime Comm'n, 383
U.S. 607, 620 (1966) (citing NLRB v. Nevada Consol. Copper Corp.,
316 U.S. 105, 106 (1942)). The decision of the Commissioner must
be affirmed, "even if the record arguably could justify a
different conclusion, so long as it is supported by substantial
evidence." Rodriquez Pagan v. Secretary, 819 F.2d 1, 3 (1st Cir.
1987) (citing Lizotte v. Secretary, 654 F.2d 127, 128 (1st Cir. 1981)), cert, denied, 484 U.S. 1012 (1988).
It is incumbent on the Commissioner "to determine issues of
credibility and to draw inferences from the record evidence."
Irlanda Ortiz, supra, 955 F.2d at 769 (citing Rodriguez, supra,
647 F.2d at 222). Moreover, "the resolution of conflicts in the
evidence is for the Commissioner, not the courts." Id.;
Evangelista v. Secretary, 826 F.2d 136, 141 (1st Cir. 1987); see
also Burgos Lopez v. Secretary, 747 F.2d 37, 40 (1st Cir. 1984);
Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982).
Since determinations regarding factual issues and the
credibility of witnesses are entrusted to the Commissioner, whose
findings should be accorded great deference, see, e.g.,
Frustaglia v. Secretary, 829 F.2d 192, 195 (1st Cir. 1987), 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 adeguate to support his conclusion.'" Irlanda
Ortiz, supra, 955 F.2d at 769 (guoting Rodriguez, supra, 647 F.2d
at 222).
B. The ALJ's Treatment of the Opinions of Plaintiff's Physicians
Plaintiff argues that the ALJ disregarded the opinions of
three physicians, Drs. Lacey, Kelley, and Cole, concerning the
issue of her ability to work, which thereby caused him to
9 undervalue the degree to which her ability to work was impaired
by her urinary incontinence, bowel and rectal problems, and
depression. Decisions as to whether a claimant's medical
condition is "disabling," as that term is defined under the
Social Security Act, is reserved to the ALJ, 20 C.F.R. §
404.1527(e)(1), and the ALJ may disregard opinions from a medical
source that a claimant is "disabled" or "unable to work" when
there is contradicting evidence from other medical sources. The
ALJ concluded that the claimant's combination of impairments,
including her bowel and rectal problems stemming from prior
surgery, her urinary incontinence, and her depression amounted to
a "severe" impairment under the Act. Tr. 14. However, although
he accepted the objective findings and diagnoses of Drs. Lacey,
Kelley, and Cole, the ALJ departed from some of the physicians'
opinions as to the degree to which Piper's symptoms interfered
with her ability to work.
In evaluating the intensity or persistence of Piper's
symptoms and the extent to which they affected her ability to
work, the ALJ carefully considered the available evidence,
including the claimant's medical history and statements from the
claimant and from her treating or examining physicians and/or
psychologists. See 20 C.F.R. § 404.1529(c)(4). In addition,
when he evaluated the degree of claimant's pain and other
10 subjective symptoms, the ALJ carefully applied the relevant
factors in coming to this conclusion. See Avery v. Secretary,
797 F.2d 19, 23 (1st Cir. 1986). Considerations capable of
substantiating subjective complaints of pain and other symptoms
include evidence of daily activities; the nature of the pain and
other symptoms; precipitating and aggravating factors; the type,
dosage, effectiveness and side effects of any medication taken to
alleviate the pain or other symptoms; other treatment received to
relieve pain or other symptoms; and any other factors relating to
claimant's functional limitations and restrictions due to pain.
20 C.F.R. § 404.1529(c)(3); Avery, supra, 797 F.2d at 23.
Dr. Lacey, Piper's treating physician, based his opinion
that she was unable to work on Piper's
significant problems regarding pain and discomfort on sitting or sguatting as well as problems with urinary incontinence. She has virtually constant leakage of urine and continued trouble with bowel movements. For this reason she has found it extremely difficult to engage in any sort of work. Sitting and standing cause her discomfort as well as embarrassment due to her leakage.
Tr. 267. Similarly, Dr. Kelley described her symptoms as an
"inability to control her bladder and bowel function" and opines
that she is precluded from any work reguiring sitting, standing,
walking, lifting, carrying, and bending because of her disorder.
T r . 287 .
The ALJ properly considered these opinions of disability in
11 the context in which they were made. Significantly, they were
made directly prior to Piper's surgery to reverse her intestinal
bypass. After her surgery, plaintiff's bowel dysfunction and
pain substantially improved, although her incontinence worsened.
As Dr. Lacey's and Dr. Kelley's conclusions about disability were
influenced by plaintiff's bowel dysfunction and pain, the ALJ was
justified in factoring in plaintiff's successful treatment with
surgery, which occurred subseguent to these physicians' reports.1
To the extent that Drs. Lacey and Kelley based their
opinions on the plaintiff's freguent urination and leakage, the
ALJ was justified in relying on other evidence, particularly
plaintiff's own testimony. The physicians' opinions on the
freguency of plaintiff's urination and the extent of her leakage
were based on her own reports. Substantial evidence elsewhere in
the record existed to support the ALJ's conclusion that
plaintiff's urinary difficulties, although severe, would not
compromise her ability to work, so long as she had access to a
bathroom "at will." Plaintiff's own testimony is particularly
enlightening. She testified that she uses the bathroom an
average of 20 times per day, Tr. 46, and that she often leaks
1Plaintiff did report diarrhea and rectal pain in November of 1991. The ALJ apparently disregarded this as evidence that her condition was severe because she did not again report bowel troubles until March 21, 1993.
12 urine when she stands up but not when she has had access to a
bathroom, Tr. 49. Despite her condition, she was able to work
for Dr. Lacey as a medical receptionist over a six-month period
in 1994, two days a week, four hours per day. Plaintiff
testified that she never had to leave work because of wet
clothing, although she did experience some wetting. Tr. 48. Her
job ended, not because of her physical condition, but because she
had a personal dispute with a patient. Tr. 54. She also
testified that she could perform a job that reguired sitting so
long as her need to use the bathroom was accommodated. Tr. 49.
Finally, although plaintiff testified that her urinary
difficulties increased following her December 1993 surgery, Tr.
45-46, Dr. Gormley, a treating physician at DHMC, wrote that
plaintiff would benefit from using a rectofacial, pubovaginal
sling.2
As for her depression and anxiety issues, plaintiff accuses
2The ALJ also might have noted that while Drs. Lacey and Kelley relied on plaintiff's reports of urinary incontinence in 1993, plaintiff's testimony at the hearing almost minimizes her incontinence problems at that time:
Q. . . . Did you have any problem withurinary incontinence prior to that operation where they reconnected your intestines in '93? A. I did but it wasn't, you know, nothing like it is now.
T r . 45 .
13 the ALJ of revisionism concerning the report of Dr. Cole, a
psychologist who examined her in September of 1993 at the reguest
of the New Hampshire Disability Determination Service. The court
has carefully reviewed Dr. Cole's report and finds that the ALJ
interpreted it fairly and, contrary to plaintiff's contentions,
the ALJ did not substitute his own opinion for that of Dr. Cole
on any medical issue.
Dr. Cole opined that "[a]t the present time it is unlikely
that Ms. Piper would be able to cope with the normal pressures of
the work place. If her medical and living situation can be
stabilized, it is my opinion that she would be able to return to
work." Tr. 294. When read in context of the rest of his rather
detailed report. Dr. Cole's statement that Piper is unable to
cope with work appears to be largely based on his belief that her
physical and living situations were contributing to her mental
condition and on his understanding that she was about to undergo
surgery to reverse her previous intestinal bypass surgery. In
her interview with Dr. Cole, Piper complained of pain in her
rectum, daily diarrhea, sleep difficulties, depression, and
anxiety, and also reported fears regarding her upcoming surgery.
Tr. 289-90. Dr. Cole also noted that Piper had been coping with
"severe medical problems over the past two to three years." Tr.
293. He writes at one point in his report, "While her dysthemia
14 clearly preceded her medical problems, it is likely that it has
been maintained by her physical difficulties." Tr. 294.3 As
correctly noted by the ALJ, Piper testified that her bowel
problems, one of the primary concerns she had raised with Dr.
Cole, were relieved following the corrective surgery performed
several months after Dr. Cole wrote his report, Tr. 49-50,
although her urinary incontinence may have worsened following the
surgery. Given the overall improvement in her physical
condition, it was reasonable for the ALJ to conclude after
reading Dr. Cole's report that plaintiff's depression and
anxiety, while severe, would only moderately impact her ability
to cope with work.
In addition, substantial evidence existed to support that
Piper's depression and anxiety did not have a significant impact
on her ability to work. She informed Dr. Cole that she had been
taking Prozac for two to three months, which "has significantly
reduced her depression and increased her ability to cope." Tr.
290. In addition, neither the depression nor her anxiety
appeared to have significantly interfered with her ability to
3"Dysthymia" is defined as a "mood disorder characterized by depressed feeling . . . and loss of interest or pleasure in one's usual activities and in which the associated symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depression." D o r l a n d 's I l l u s t r a t e d M e d i c a l D i c t i o n a r y 519 (28th ed. 1994) .
15 work as a part-time receptionist for Dr. Lacey. Finally, even
Dr. Cole concludes at one point that given the results of Piper's
psychological testing she "is likely to have exaggerated the
severity of her psychological symptoms." Tr. 293.
The court finds that the ALJ gave appropriate weight to the
medical opinions of Piper's physicians and therefore Piper is not
entitled to reversal or remand on this ground.
C. Assessment of Residual Functional Capacity/Hypothetical Posed
to Vocational Expert
Plaintiff next argues that substantial evidence does not
support the ALJ's conclusion that she had the residual functional
capacity to perform a full range of light work. The ALJ's
specific finding as to Piper's residual functional capacity was
actually that her ability to perform light work had limitations.
The claimant has the residual functional capacity to perform the physical exertion and nonexertional reguirements of work except for medium and greater exertional work and light work involving repetitive bending and stooping, prolonged sitting, standing and walking. She reguires a sit/stand option and must have access to use the bathroom at will. She would also need to avoid heights and moving machinery, as well as noise and vibration. She has a moderate decrease in her ability to cope with high stress work and would be restricted from detailed, complex work and tasks involving close supervision or a great deal of contact with co-workers.
Tr. 23. The ALJ dutifully included these limitations in the
16 hypothetical posed to the vocational expert, who stated that
substantive numbers of jobs existed in the economy for a person
with such limitations.
Piper contends, among other things, that her urinary
incontinence precludes her from performing the exertional
reguirements of light work because she cannot stand for six hours
at a time, cannot carry 20 pounds, and constantly needs to use
the bathroom. The ALJ's finding as to Piper's residual
functional capacity specifically accounts for the fact that Piper
could not stand or sit for "prolonged periods of time," id., and
also provides that Piper needs access to a bathroom at will. For
the reasons outlined above, substantial evidence in the record,
including plaintiff's own testimony, existed to support the ALJ's
conclusion that Piper's incontinence would not significantly
interrupt her ability to perform light work when she was given
access to a bathroom at will.
As for the light work reguirement that a claimant must be
able to lift twenty pounds, 20 C.F.R. § 416.967(b), evidence from
two consulting physicians indicated that Piper would be capable
of such effort. In November of 1993 Homer E. Lorenco, M.D.,
reviewed the record and completed the Residual Physical
Functional Capacity Assessment. Tr. 79-86. He determined that
plaintiff could occasionally lift/carry up to twenty pounds and
17 frequently lift/carry up to ten pounds. Similarly, Henry
Dantzig, M.D., reviewed the record in April 1994, four months
after Piper underwent reverse intestinal bypass surgery, and
found that she retained the functional capacity to perform light
work. Tr. 133-40. Although these were nonexamining physicians,
the ALJ is entitled to give their opinions some weight,
particularly that of Dr. Dantzig, as he mentioned many of
plaintiff's medical impairments and wrote more than a cursory
evaluation of her condition, indicating that he carefully
reviewed her medical history. See, e.g., Berrios Lopez v.
Secretary of HHS, 951 F.2d 427, 431 (1st Cir. 1991); cf. Rose v.
Shalala, 34 F.3d 13, 19 (1st Cir. 1994) (cautioning that the
amount of weight accorded to nonexamining physicians varies with
the circumstances and that in some cases written reports
submitted by nonexamining physicians cannot constitute
substantial evidence).
Plaintiff also argues that the ALJ minimized her depression
and ignored the fact that she once had attempted suicide. The
record reveals, however, that the ALJ considered both plaintiff's
depression and her suicide attempt in making his findings. In
fact, he appears to have factored plaintiff's mental illness into
her residual functional capacity by concluding that plaintiff had
a moderate deficit in her ability to cope with high-stress work.
18 Tr. 23.
Finally, plaintiff takes issue with the hypothetical
question posed by the ALJ to the vocational expert. A
hypothetical must be supported by substantial medical evidence
and must clearly convey the parameters of the claimant's
restrictions. Keating v. Secretary, 848 F.2d 271, 274 (1st Cir.
1988); Arocho v. Secretary, 670 F.2d 374, 375-76 (1st Cir. 1982).
Plaintiff argues that the hypothetical was defective in that
it failed to adequately reflect the number of times during an
average work day she would need to use the bathroom. The
vocational expert's testimony regarding the bathroom-break issue
can be boiled down to this: Jobs exist that could accommodate a
claimant's need to use a bathroom on an "at will" basis, so long
as her use of the bathroom was not frequent or constant and did
not exceed one time per hour. Tr. 58-60. For example, the
vocational expert explained that if the claimant had to be away
from her work area ten times in addition to lunch and other break
times during an eight-hour day, that would compromise her ability
to perform the available light and sedentary jobs in the national
economy. Tr. 57-59.
Substantial evidence existed to support the ALJ's apparent
conclusion that plaintiff's need for bathroom breaks "at will"
19 was not so frequent or constant as to exceed one time per hour.4
Plaintiff's testimony at the hearing was that she needed to use
the bathroom twenty times per day. However, seemingly
contradictory evidence existed on the record, such as that
plaintiff is able to take daily walks for up to an hour and was
able to work as a receptionist for fours hours at a time without
significant interruptions for bathroom breaks. In addition, the
ALJ might have noted that despite many trips to physicians for
treatment of her incontinence, her chief medical complaint after
her 1993 surgery typically did not concern the frequency of her
need to urinate, but rather the leakage of urine during certain
physical activities, a condition that could be corrected by use
of a recto-facial pubovaginal sling. Accordingly, the ALJ's
decision to disregard Piper's testimony about using the bathroom
twenty times per day was supported by substantial evidence and
thus must be upheld, even if the evidence also could support a
different conclusion. The court therefore cannot find that
plaintiff is entitled to reversal or remand on the ground that
the ALJ's findings regarding her residual functional capacity
were not supported by substantial evidence.
4The court will confine its attention to plaintiff's experience of incontinence following her December 1993 surgery because at that point her incontinence worsened substantially.
20 Conclusion
For the above-stated reasons, the court affirms the decision
of the Commissioner. The clerk is instructed to close this case.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
June 9, 1997
cc: Jonathan P. Baird, Esq. David L. Broderick, Esq.