Stanley v. SSA

2001 DNH 136

• Court: District Court, D. New Hampshire
• Decided: July 31, 2001
• Docket: CV-00-577-JD
• Status: Published

Opinion

Stanley v. SSA CV-00-577-JD 07/31/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cindy L. Stanley

v. Civil No. 00-577-JD Opinion No. 2001 DNH 136 Larry G. Massanari, Acting Commissioner of Social Security

O R D E R

The plaintiff, Cindy L. Stanley, brings this action pursuant

to 42 U.S.C.A. § 405(g) seeking judicial review of the decision

by the Acting Commissioner of the Social Security Administration

denying her application for social security benefits. Stanley,

who alleges a disability due to problems with her back and

depression, contends that the Administrative Law Judge ("ALJ")

failed to properly assess her subjective complaints of pain,

erred in failing to include her mental limitations and other

restrictions in the hypothetical question posed to the vocational

expert at the hearing, and erred in concluding that she was

capable of doing full-time work. The Acting Commissioner moves

to affirm the decision. Standard of Review

The court must uphold a final decision of the Commissioner

denying benefits unless the decision is based on legal or factual

error. See Manso-Pizarro v. Sec'v of Health and Human Servs., 76

F.3d 15, 16 (1st Cir. 1996) (citing Sullivan v. Hudson, 490 U.S.

877, 885 (1989)). The court's "review is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence." Nguyen v. Chafer,

172 F.3d 31, 35 (1st Cir. 1999). The Commissioner's factual

findings are conclusive if based on substantial evidence in the

record. See 42 U.S.C.A. § 405(g). Substantial evidence is "such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion." Richardson v. Perales. 402 U.S. 389,

401 (1971) (internal quotation omitted).

Background

Cindy L. Stanley filed her application for social security

benefits in August of 1997, alleging a disability since June 30,

1996, due to problems with her back. She later alleged

depression as an additional impairment. Stanley was thirty-two

years old when she applied for benefits and had an eleventh-grade

education. She had past relevant work as a nursing assistant, a

2 fast food worker, and an assembler.

A. Back Injuries and Pain

Stanley was treated for back injuries and pain, beginning in

1987. By March of 1996, Stanley was only working four hours a

day. Her treating orthopedic surgeon. Dr. Hoke Shirley ordered

an MRI scan that indicated a disc bulge at L4-5 without

herniation, impairment of neural elements, or evidence of spinal

stenosis. On Dr. Shirley's recommendation, Stanley continued

part-time light-duty work until July of 1996, when Dr. Shirley

indicated that she was unable to work at all.

Between July and October of 1996, Stanley also received

physical therapy at Concord Hospital. By the end of September of

1996, the physical therapist told her she was able to return to

part-time work. She was told to wear a sacroilic belt and to use

a corset and a cane as needed.

Stanley was examined by Dr. John Richey on August 1, 1996.

Dr. Richey found a good range of motion in her neck and arms and

normal reflexes and gait. Based on straight leg raising tests.

Dr. Richey thought Stanley showed symptoms of radicular pain on

the right, despite the unremarkable MRI, and he treated her with

an epidural injection of Depo-Medrol. The injection was repeated

on September 18, 1996. On September 30, while Stanley reported

no change in her condition. Dr. Richey found that she was able to

3 walk fairly well without her cane, with no obvious limp and with

normal flexion, although she remained depressed. A right

sacroiliac joint injection and a right L5-S1 facet injection on

October 3, 1996, provided almost complete relief from pain.

Stanley continued to take Flexeril and Ultram as needed for pain.

Dr. Shirley noted in his records on November 22, 1996, that

Shirley started working at Burger King. She told him that the

job might not work out because she was required to lift fifty

pounds on a regular basis. Dr. Shirley recommended vocational

counseling to help her find more suitable work and limited her to

working part time.

Stanley reported radiating pain in her right lower back

during an appointment with Dr. Richey on January 22, 1997. Dr.

Richey diagnosed a recurrence of right sacroiliac joint pain and

arranged for a right sacroiliac joint injection. The injection

was done on January 24, 1997, and Stanley reported a decrease in

her level of pain.

Stanley apparently moved to North Carolina during the spring

or summer of 1997. On September 8, 1997, Stanley was evaluated

by Dr. Frank Woriax for North Carolina Disability Determination

Services. A funduscopic examination showed flat discs with no

hemorrhage or exudate. Dr. Woriax noted that Stanley used a cane

for balance and that she had tinel, a tingling sensation, on her

4 right side. Her neurological examination and her gait were both

normal. He diagnosed chronic back pain.

On October 2 , 1997, a state medical consultant completed a residual functional capacity assessment form based on Stanley's

records. The doctor found that Stanley could lift fifty pounds

occasionally and twenty-five pounds frequently and that she could

stand, walk, and sit for about six hours in an eight hour day.

He found that she had limited push/pull capacity in her legs.

On June 22, 1998, Stanley began treating with Dr. Debora

Tallio in Lumberton, North Carolina. Stanley complained of pain

in her right lower back, buttocks, and thigh that ranged from a

level of four to nine and increased with activity. Dr. Tallio

noted that Stanley showed no acute distress and had exaggerated

pain responses to any movement including light palpation during

examination of her back. The pain response increased with

forward flexion and right lateral bending.

Dr. Tallio concluded that Stanley had chronic pain and that

it might be impossible to determine the source although her

history and examination were suspicious for chronic right L5

radiculitis. Dr. Tallio referred Stanley for a right L5-S1 facet

injection on July 10, 1998, which reduced her pain by four or

five levels for one to two weeks. Dr. Tallio noted that although

Stanley's physical therapist reported Stanley was making

5 progress, Stanley would not admit it.

B. Depression

By May of 1996, Dr. Hoke Shirley's medical notes indicate

that Stanley was taking the medications Zoloft and Klonopin to

help manage depression. On August 16, 1996, Stanley was seen by

Dr. Peter Kelly, a psychologist, who diagnosed dysthymia,

borderline personality disorder, neck and lower back injury,

chronic pain and financial distress, and a global assessment of

functioning level ("GAF") of forty. A GAF level of forty

indicates some impairment in reality testing or communication or

a major impairment in several areas such as work or school,

family relations, judgment, thinking, or mood. Stanley treated

with Dr. Kelly for five sessions and then discontinued therapy.

A Disability Determination Service psychological consultant

completed a Psychiatric Review Technique form on October 1, 1997.

On the form, the consultant indicated that Stanley suffered from

an affective disorder characterized by depression secondary to

pain. He said that the disorder caused a slight limitation in

her daily living activities and in maintaining social functioning

and that the disorder often caused deficiencies of concentration,

persistence, or pace, resulting in her failure to complete tasks

in a timely manner. The consultant also completed a Mental

6 Functional Capacity Assessment in which he stated that Stanley

was moderately limited in her ability to maintain attention and

concentration, perform activities within a schedule, and complete

a normal workday and work week due to lack of motivation and lack

of energy during times of depression. He further stated that

Stanley was able to handle household chores and that she would be

able to perform simple repetitive tasks in a non-production

oriented workplace. On January 21, 1998, another disability

determination service psychological consultant completed a

Psychiatric Review Technique form in which he indicated that he

found no current evidence of a mental impairment.

Stanley was evaluated by Dr. Eugene Lawlor, a psychiatrist,

on Feburary 12, 1998, who diagnosed dysthymia, past history of

substance abuse, bipolar features, and mixed passive dependent

and passive aggressive, noting that he must rule out borderline

personality disorder. Dr. Lawlor prescribed an antidepressant

medication. He saw Stanley again on March 24, 1998, when she

reported no difference and he added medication for the treatment

of manic episodes associated with bipolar disorder. On April 21,

1998, Stanley continued to report no difference and appeared to

be somewhat depressed. Dr. Lawlor discontinued the medication

for bipolar disorder and prescribed Lithium. By September 14,

1998, Dr. Lawlor reported that Stanley appeared to be stable.

7 that her affect was better, and that she appeared to be in

control.

C. Hearing

Stanley appeared and was represented by counsel at the

hearing before the ALJ held in Lumberton, North Carolina, on

December 10, 1998. Stanley testified about her educational level

and her ability to read, her past work, and her daily activities.

She said that she could take care of her own personal needs and

that she could cook, wash dishes, do laundry, and clean although

she had to work slowly and take frequent breaks. She also said

that she could drive and go grocery shopping with her husband

pushing the cart.

Stanley described her pain as a constant sharp pain in her

back that sometimes extended down her right leg, typically at a

level of seven on a ten point scale. She said that the pain

caused difficulty in sleeping, that she could sit, stand, or walk

for only ten to fifteen minutes at a time, that she was unable to

bend, squat, or lift more than ten pounds on a regular basis.

She testified that she was taking Flexeril, Norpam, Baclofen, and

eight Tylenol a day. She also said that she had used a cane

since 1995.

8 She described her depression as causing her to cry a lot and

to have outbursts of rage at her husband. She said that she had

trouble following television programs and remembering what she

had read. She testified that she took Nortriptyline and

Lithotabs.

A vocational expert also testified at the hearing. Assuming

a residual functional capacity for light and sedentary work not

involving climbing, repetitive bending, stooping, or twisting of

the upper body, with simple instructions and a sit/stand option,

the vocational expert testified that there were jobs in the

national and local economies that Stanley could do. If other

restrictions and limitations were added to allow her to lie down

for thirty minutes twice a day, the vocational expert testified

that the identified positions would not be appropriate if the

rests were for more than a few moments and could not be done

during regular work-shift breaks. If a GAF level of forty were

included in the description, the vocational expert testified that

the identified jobs would be inappropriate.

D. Decision

The ALJ issued his decision on March 5, 1999. He found that

Stanley last engaged in substantial gainful activity on December

31, 1996, and that her back problems and depression were severe

9 impairments. He found that despite being severe, the impairments

did not meet or equal a listed impairment. The ALJ also found

that Stanley could not return to any of her past relevant work.

On the Psychiatric Review Technique Form, which is appended to

his decision, the ALJ found that Stanley had affective disorders

due to situational depression which would often cause

deficiencies of concentration, persistence, or pace resulting in

her failure to complete tasks in a timely manner. Based on the

vocational expert's testimony and his own assessment of Stanley's

credibility, however, the ALJ determined that Stanley was not

disabled.

E. Additional Evidence

After the ALJ rejected her application, Stanley appealed to

the Appeals Council and submitted additional evidence that had

not been submitted to the ALJ. The First Circuit has recently

held that the ALJ's decision is to be reviewed based only on the

evidence presented to the ALJ. See Mills v. Apfel, 244 F.3d 1, 5

(1st Cir. 2001). Since Stanley seeks review of the ALJ's

decision, not the decision of the Appeals Council, the additional

evidence will not be considered here. See id.

Discussion

10 Stanley challenges the ALJ's determination that she is not

disabled. She argues that the ALJ improperly failed to fully

credit her subjective complaints of back pain, failed to consider

the effect of her GAF score, failed to include in the

hypothetical to the vocational expert certain exertional and

nonexertional limitations including that due to her depression

she would often experience deficiencies in concentration,

persistence, and pace, and erred in concluding that her residual

functional capacity permitted her to perform full-time work.

Because the ALJ's failure to include Stanley's mental limitation

in his hypothetical to the vocational expert requires that the

case be remanded, it is not necessary to review the other issues

raised for review.

Stanley's application was denied at step five of the

sequential evaluation process set forth in 20 C.F.R. § 404.1520.1

1 The ALJ is required to make the following five inquiries when determining if a claimant is disabled:

(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work.

11 At the fifth step, the Commissioner has the burden to show that

despite the claimant's severe impairment, she retained the

residual functional capacity to do work other than her prior work

during the covered period and that work the claimant can do

exists in significant numbers in the relevant economies. See

Heggartv v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). The

Commissioner can satisfy the burden of proof at the fifth step by

relying on the opinion of a vocational expert given in response

to a hypothetical question that encompasses the claimant's

functional limitations. See Rose v. Shalala, 34 F.3d 13, 19 (1st

Cir. 1994); Arocho v. Sec'v of Health & Human Servs., 670 F.2d

374, 375 (1st Cir. 1982) .

In Stanley's case, the ALJ did not include in the

hypothetical to the vocational expert the limitation, which the

ALJ found, that Stanley's depression would often cause her to

have deficiencies in concentration, persistence, and pace

resulting in her failure to complete tasks in a timely manner.

Instead, the hypothetical posed to the vocational expert included

a limitation that Stanley would need a job that had simple

instructions. When Stanley's counsel asked the vocational expert

what effect Stanley's GAF level of 40 would have on available

See 20 C.F.R. § 404.1520.

12 jobs, the expert answered that none of the jobs he had found

would be appropriate with a GAF level of 40.

This court and other courts have determined that when an ALJ

has found on a Psychiatric Technique Review Form that a claimant

"often" has deficiencies of concentration, persistence, or pace,

the hypothetical posed to the vocational expert must adequately

describe that limitation in order for the opinion to constitute

substantial evidence. See, e.g..Weaver v. Massanari, 2001 DNH

088, Civ. No. 00-347-JD (D.N.H. May 10, 2001); Brachtel v.

Apfe1 , 132 F.3d 417, 421 (8th Cir. 1997); Green v. Comm'r of Soc.

Sec., 2001 WL 364921, at *5 (E.D. La. Apr. 10, 2001); Elswick v.

Apfe1 , 109 F. Supp. 2d 476, 481 (S.D. W.Va. 2000); Macieiewski v.

Apfel, 2000 WL 1788437, at *9 (N.D. 111. Dec. 5, 2000). In this

case, the limitation included in the hypothetical, that Stanley

would need a job with simple instructions, did not adequately

describe that she would often have deficiencies in concentration,

persistence, or pace resulting in her failure to complete tasks

in a timely manner. C f . Hollins v. Apfel, 2001 WL 322629, at *5-

6 (S.D. Ohio Mar. 12, 2001) (finding extensive description of

limitation adequate).

Since the hypothetical to the vocational expert in this

case did not include the concentration limitation found by the

ALJ, the vocational expert's opinion as to available jobs that

13 Stanley could perform is not substantial evidence. Therefore,

the Commissioner has not carried his burden of showing that his

decision is based on substantial evidence in the record. The

decision of the Commissioner is reversed, and the case is

remanded for further proceedings that are not inconsistent with

this opinion.

Conclusion

For the foregoing reasons, the claimant's motion to reverse

(document no. 7) is granted to the extent that the Commissioner's

decision is reversed and the case is remanded for further

administrative proceedings. The Commissioner's motion to affirm

(document no. 8) is denied.

Since this is a "sentence four" remand, the clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

July 31, 2001

cc: Raymond J. Kelly, Esquire David L. Broderick, Esquire