St.Pierre v. HHS

Opinion

St.Pierre v. HHS CV-94-232-JD 05/25/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Normand St. Pierre

v. Civil No. 94-232-JD

Donna E. Shalala, Secretary of Health and Human Services

O R D E R

The plaintiff, Normand St. Pierre, brings this action

pursuant to § 205(g) of the Social Security Act ("Act")a 42

U.S.C.A. § 405(g), seeking review of a final decision of the

defendant. Secretary of Health and Human Services ("Secretary"),

denying his claim for a period of disability and disability

insurance benefits under the Act. Before the court are the

plaintiff's motion to reverse the Secretary's decision (document

no. 6) and the defendant's motion to affirm the Secretary's

decision (document no. 9).

Procedural Background1

The plaintiff filed the current application for benefits

under the Act on May 7, 1992, claiming an inability to work since

June 1, 1990. Transcript of Administrative Record ("Tr.") at

144-47. The application was denied initially, id. at 159-61, and

1The court's recitation of the procedural posture of this case is drawn largely from the stipulation of facts filed jointly by the parties. following reconsideration by the Social Security Administration.

Id. at 169-70. An administrative law judge ("ALJ"), before whom

the plaintiff, his attorney and a vocational expert ("VE")

appeared, considered the matter de novo and on April 21, 1993,

ruled that the plaintiff was not entitled to the reguested

benefits. Id. at 296-307 (decision of Wilkin, J.) On July 20,

1993, the Appeals Council vacated the ALJ's decision and remanded

the case. Id. at 320-21. A second hearing was conducted on

January 18, 1994, and, on January 27, 1994, the ALJ again ruled

that the plaintiff was not entitled to the reguested benefits.

Id. at 18-29 (decision of Wilkin, J.). The Appeals Council

denied the plaintiff's reguest for review on April 11, 1994,

rendering the ALJ's post-remand decision the final decision of

the Secretary. Id. at 5-6. The plaintiff filed this action on

May 4, 1994, seeking a reversal of the decision.

Discussion

In his motion, the plaintiff raises several arguments to

support his contention that the Secretary's denial of benefits

was improper. The defendant responds that its decision should be

affirmed as the record contains substantial evidence to support

the denial of benefits.

2 Pursuant to 42 U.S.C. § 405(g), the court is empowered "to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Secretary, with or without remanding the cause for a rehearing."

In reviewing a Social Security disability decision, the factual

findings of the Secretary "shall be conclusive if supported by

'substantial evidence.1" Irlanda Ortiz v. Secretary of Health

and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (guoting 42

U.S.C. § 405(g)).2 The court "'must uphold the Secretary's

findings . . . if a reasonable mind, reviewing the evidence in

the record as a whole, could accept it as adeguate to support

[the Secretary's] conclusion.'" Id. (guoting Rodriquez v.

Secretary of Health and Human Servs., 647 F.2d 218, 222 (1st Cir

1981)); accord Richardson, 402 U.S. at 401. The record must be

viewed as a whole to determine whether the decision is supported

by substantial evidence. Frustaqlia v. Secretary of Health and

Human Servs., 829 F.2d 192, 195 (1st Cir. 1987); Rodriquez, 647

Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion.1" Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "This 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); Benko v. Schweiker, 551 F. Supp. 698, 701 (D.N.H. 1982) .

3 F.2d at 222. Moreover, "[i]t is the responsibility of the

Secretary to determine issues of credibility and to draw

inferences from the record evidence. Indeed, the resolution of

conflicts in the evidence is for the Secretary, not the courts."

Irlanda Ortiz, 955 F.2d at 769 (citing Rodriguez, 647 F.2d at

222); see also Burgos Lopez v. Secretary of Health and Human

Servs., 747 F.2d 37, 40 (1st Cir. 1984). The ALJ must also

consider the plaintiff's subjective complaints of pain if he has

"a clinically determinable medical impairment that can reasonably

be expected to produce the pain alleged." 42 U.S.C. §

423(d)(5)(A); Avery v. Secretary of Health and Human Servs., 797

F .2d 19, 21 (1st Cir. 1986); 20 C.F.R. § 404.1529.

I. Subjective Allegations of Pain

The ALJ applied the seguential process applicable to a

claimant's disability application. 20 C.F.R. §§ 404.1520,

416.920 (1994) .3 In the context of his step four analysis the

3The ALJ is reguired to consider the following five steps 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 eguals 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.

4 ALJ considered the plaintiff's allegations of radiating back pain

of a disabling severity. Tr. 20-27. The ALJ considered these

subjective allegations under the criteria announced in Avery v.

Secretary of Health and Human Servs., 797 F.2d 19, and Social

Security Ruling ("SSR") 88-13 and concluded that the plaintiff's

"testimony is not entirely credible and that his pain would not

interfere with his ability to perform sedentary work." Id. at

20 .

The plaintiff asserts that the ALJ committed reversible

error by basing the credibility ruling in part on the fact that

the plaintiff was capable of sitting in a car for period of time

when forced to do so by extraordinary circumstances. The

plaintiff argues that sitting under these circumstances is

neither probative of his ability to perform work nor a proper

consideration in the Avery credibility analysis. The defendant

responds that credibility determinations are entitled to

deference and that the evidence of the plaintiff sitting in the

car, along with other facts, properly was found to undermine the

credibility of the plaintiff's subjective allegations of pain.

The ALJ is reguired to consider the subjective complaints of

pain or other symptoms by a claimant who presents a "clinically

determinable medical impairment that can reasonably be expected

20 C.F.R. § 404.1520.

5 to produce the pain alleged." 42 U.S.C. § 423(d)(5)(A); Avery,

797 F.2d at 21; 20 C.F.R. § 404.1529. "[C ]omplaints of pain need

not be precisely corroborated by objective findings, but they

must be consistent with medical findings." Dupuis v. Secretary

of Health and Human Servs., 869 F.2d 622, 623 (1st Cir. 1989);

see Bianchi v. Secretary of Health and Human Servs., 764 F.2d 44,

45 (1st Cir. 1985) ("The Secretary is not reguired to take the

claimant's assertions of pain at face value.") (guoting Burgos

Lopez v. Secretary of Health and Human Servs., 747 F.2d 37, 40

(1st Cir. 1984)). Once a medically determinable impairment is

documented, the effects of pain must be considered at each step

of the seguential evaluation process. 20 C.F.R. § 404.1529(d).

A claimant's medical history and the objective medical evidence

are considered reliable indicators from which the ALJ may draw

reasonable conclusions regarding the intensity and persistence of

the claimant's pain. Avery, 797 F.2d at 23; 20 C.F.R. §

404.1529(c) (3) . However, situations exist in which the reported

symptoms of pain suggest greater functional restrictions than can

be demonstrated by the medical evidence alone. Id.

When a claimant complains that pain or other subjective

symptoms are a significant factor limiting her ability to work,

and those complaints are not fully supported by medical evidence

contained in the record, the ALJ must undertake further

6 exploration of other information. Avery, 797 F.2d at 23. The

ALJ must consider the claimants's prior work record; daily

activities; location, duration, frequency and intensity of pain;

precipitating and aggravating factors; type, dosage,

effectiveness and side effects of any medication taken to

alleviate pain or other symptoms, past or present; treatment,

other than medication, received for relief of pain or other

symptoms, past or present; any measures used, past or present, to

relieve pain or other symptoms; and other factors concerning

functional limitations and restrictions due to pain. 20 C.F.R. §

404.1529(c)(3); Avery, 797 F.2d at 23; SSR 88-13. If the

complaints of pain are found to be credible under the criteria,

the pain will be determined to diminish the claimant's capacity

to work. 42 U.S.C. § 423(d); 20 C.F.R. § 404.152 9(c)(4).

Finally, the court gives deference to credibility determinations

made by the ALJ, particularly where the determinations are

supported by specific findings. Frustaqlia, 829 F.2d at 195

(citing DaRosa v. Secretary of Health and Human Servs., 803 F.2d

24, 26 (1st Cir. 1985) ) .

The ALJ articulated several specific findings in support of

his conclusion that the plaintiff's "allegations of pain are not

entirely credible when measured under the criteria of Avery and

Social Security Ruling 88-13." Tr. 27. In addition to specific

7 findings concerning the plaintiff's ongoing use of medication

without relief, attendance at church, and two unsuccessful

attempts to play golf, the ALJ commented that

[a]t the supplemental hearing held in January, 1994 the claimant testified that his condition has gotten worse and that he cannot bend over. The claimant testified that he drives from Portsmouth, New Hampshire to Dover, New Hampshire which is a distance of 10 to 12 miles which takes him to [sic] 30 to 40 minutes. Thus, the claimant must be sitting for those 30 to 40 minutes which is indicative of the ability to sit for a certain amount of time.

Id. at 2 6.

At the January 18, 1994, hearing the ALJ's and the plaintiff

engaged in the following colloguy:

ALJ: Have you had any change in your condition since that particular time? Have you gotten better, have you gotten worse or is it about the same?

ANS: It's gotten worse. . . .[F]or example, my wife is in the hospital right now and with cancer in her spine and doctors don't give her too much longer to live and plus I'm doing -- I'm trying to do for myself and I can't do it. . . . I've been going back and forth to the hospital. I can't -- when I'm driving the car I can't look all the way to the left and to the right. Just pain, it hurts me. •k -k -k -k

ALJ: What's the furthest would you say you've driven in the last month or two? You say you have to go to the hospital.

ANS: Running back and forth to the hospital. Of course, my wife is going to Boston Medical

8 for treatment and I didn't go with her because I just couldn't handle that trip. Her girlfriend would go up with her.

ALJ: How far did you, how far did you -- have you travelled though by, by car to --

ANS: Well now I go up to -- fromPortsmouth to Dover. I don't know how many miles that is, but it's --

ALJ: How long does it take you?

AN S: Ittakesme--

ALJ: What, is it less than 20 miles?

ANS: I really don't know what the mileage is.

ALJ: Counsel, any --

ATTY: It's -- the way he would be going to Dover would be approximately 10 to 12 miles.

ALJ: Oh, all right.

ANS: It takes me a half hour to 40 minutes. I, I just --

Id. at 109-111.

When evaluating the subjective claims of pain it is proper

and, indeed, reguired that the ALJ consider daily activities such

as driving, walking and household chores. E.g., Avery, 797 F.2d

at 23. This allows the Secretary to juxtapose the claimant's

subjective allegations of pain with the relative intensity of his

daily regimen. See Pope v. Shalala, 998 F.2d 473, 485 (7th Cir.

1993); Avery, 797 F.2d at 23. However, implicit in this inguiry

is that the daily activities used in the credibility calculus are activities which reasonably reflect the claimant's condition.

See id. Conversely, activities necessarily undertaken in

response to extraordinary circumstances -- particularly when

performed inadequately or with extreme pain -- cannot be

considered reliable barometers for the Avery analysis. The

Second Circuit addressed this issue in Nelson v. Bowen, 882 F.2d

45 (1989), and held that a claimant's ability to withstand

extreme discomfort while sitting on a four-hour long bus trip to

attend college is an impermissible basis upon which to negate

subjective allegations of pain. The Second Circuit reasoned that

[w]hen a disabled person gamely chooses to endure pain in order to pursue important goals, it would be a shame to hold this endurance against him in determining benefits unless his conduct truly showed that he is capable of working.

Id. at 49 (emphasis supplied). The case was remanded. Id.

The ALJ's reliance on the plaintiff's automobile trips as a

basis for the subjective pain assessment is in error. First, the

reliance on this evidence is incompatible with the purpose of

Avery and SSR 88-13 because the evidence does not assist the

Secretary in understanding the relationship between the medically

determinable impairment, the alleged pain, and the plaintiff's

ability to work. See, e.g.. Pope, 998 at 485. Specifically, the

trips to Dover were undertaken in response to most extreme

personal hardship and, in any event, the plaintiff's driving and

10 sitting abilities were marginal at best in that he suffered great

pain and could not turn his neck to the left or the right.4 The

court finds that the plaintiff's labored driving to visit a

hospitalized and terminally ill spouse neither demonstrates a

physical capacity for sitting nor is probative of the overall

guestion of whether the plaintiff is disabled under the statute.

See Bowen, 882 F.2d at 49.

Second, Bowen dictates that the plaintiff's endurance of

pain to visit an ill family member should not prejudice his

application for benefits. See 882 F.2d at 49. Indeed, the

plaintiff's compassionate conduct is at least as "important" as

that protected by the Bowen court, where the claimant endured

pain to take long bus trips to attend college courses. See id.

The memorandum decision does not indicate the respective

weight accorded to each factual finding upon which the ALJ based

the assessment of the plaintiff's subjective allegations. Thus,

41he ALJ reasons that because the plaintiff can drive to Dover he can also sit for a certain period of time. See Tr. 26 ("The claimant testified that he drives . . . a distance of 10 to 12 miles which takes him to [sic] 30 to 40 minutes . . . indicative of the ability to sit for a certain amount of time"). This conclusion is based on an inaccurate recitation of the evidence in that the memorandum decision plainly omits any reference to either the extreme circumstances reguiring the road trips to Dover or the pain and functional limitations encountered by the plaintiff while driving this relatively short distance. See Tr. 109 ("I've been going back and forth to the hospital. I can't -- when I'm driving the car I can't look all the way to the left and to the right. Just pain, it hurts me").

11 the court cannot determine whether the ALJ still would have

concluded that the plaintiff's allegations were not entirely

credible absent the erroneous reliance on the driving evidence.

The court reverses the Secretary's decision and remands the case.

Because the case is remanded for further consideration the

court need not consider the merits of the remaining errors

alleged by the plaintiff.

Conclusion

The plaintiff's motion to reverse the Secretary's decision

(document no. 6) is granted and the defendant's motion to affirm

the decision (document no. 9) is denied. This case is remanded

to the Secretary for a de novo determination consistent with this

opinion. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge May 25, 1995

cc: J. William Mason, Esguire David L. Broderick, Esguire