Tardnugo v. SSA CV-95-144-B 02/27/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mark A. Tardugno
v. Civil No. 95-144-B
Shirley S. Chater, Commissioner of the Social Security Administration
O R D E R
Mark Tardugno challenges the decision of the Commissioner of
the Social Security Administration denying him disability
insurance benefits. He contends that the Administrative Law
Judge ("ALJ") failed to adeguately consider the severity of his
pain and the extent of his impairment and erroneously concluded
that he was not disabled. Because I find substantial evidence in
the record to support the ALJ's decision, I affirm.
I. BACKGROUND1
Tardugno was injured at work on March 26, 1992, when he fell
down concrete stairs while delivering a dolly loaded with milk to
1 The facts are taken from the parties' joint stipulation of facts. Neither party has filed disputed facts. a restaurant. At the time of the accident, he was thirty-seven
years old and had an eighth grade education. He has not returned
to work since the accident.
He was treated for back and rib pain on the day of the
accident at Concord Hospital where he was diagnosed with
abrasions and contusions to his back and chest but his x-rays of
the ribs and spine were normal. The next day he began treatment
with Dr. David M. McCarthy, a chiropractor, who treated him three
or four times a week with massage and pool therapy for the next
two years. Dr. McCarthy provided certificates indicating total
incapacitation on March 30, 1992, April 2, 1992, June 8, 1993,
and May 12, 1994. He noted in July 1992 that Tardugno might be
able to return to some form of part time work.
On April 1, 1992, Tardugno was examined by Dr. John Thomas,
a doctor of physical medicine and rehabilitation, on the
recommendation of Dr. McCarthy. Dr. Thomas noted that Tardugno
suffered two injuries at work, first on August 30, 1991, when he
felt a pull and pain in his right shoulder, neck, and upper back,
but was able to return to work, and the second injury in March.
His examination showed that Tardugno had some limitation in the
range of motion in his right shoulder and hips, and substantial
limitation in the lower back, but that the remainder of the tests
2 showed ranges of motion within acceptable limits. His sensation,
reflexes, strength, balance, coordination, and ambulation were
all intact. He was able to perform straight leg raises in the
sitting position to ninety degrees, and when lying down, to forty
degrees on the left and to fifty degrees on the right sides. Dr.
Thomas noted that Tardugno had tenderness and specific sore spots
in his back but no signs of disease. He diagnosed skeletal
malalignment on the left side with discrepancy in the left leg
rotation and length. He also found a muscle injury pattern on
the right side of his back and shoulder. He found the injury to
be greater on the left side of the buttocks than the right. Dr.
Thomas concluded that Tardugno would be out of work for at least
four to six weeks. He recommended muscle relaxants and physical
therapy.
Dr. Thomas examined Tardugno again in August 1992 and
reviewed the results of an MRI test done on April 9, 1992, that
showed a small central and right sided L5-S1 intervertebral disc
herniation. Dr. Thomas noted that Tardugno remained acutely
stiff and tense and again recommended muscle relaxant medication.
He reported his progress as positive although slow. He also
noted that Tardugno's employer offered light duty sedentary work
that would allow him to change position as needed and suggested
3 that he consider beginning on a part time basis and work toward
full time.
At the reguest of his insurance company, Tardugno was
examined on October 20, 1992, by Dr. Daniel Sullivan, an
orthopedic chiropractor. Dr. Sullivan found that he had
tenderness and severely restricted range of motion in his
dorsolumbar back. At that time, Tardugno was able to toe walk
but not heel walk. His gait and ability to seat himself were
slow but unremarkable, and his reflexes were normal. Dr.
Sullivan diagnosed extensive and chronic signs of paraspinal
fibromyalgia syndrome, a group of common rheumatic disorders
characterized by achy pain, and tenderness and stiffness of
muscles. He also concluded that Tardugno had developed
progressive neurological deficits. His opinion was that Tardugno
could not return to his previous work and had no present work
capacity even on a part-time basis.
Tardugno was next examined on November 4, 1992, by Dr.
Anthony A. Salerni, a surgical neurologist. Dr. Sullivan also
found a very limited range of motion in his back due to pain, and
found that his reflexes and motor power were normal. Dr. Salerni
determined that Tardugno did not have neurological deficits or
myelopathy--disturbances or functional changes in the spinal
4 cord. He did note an odd sensory deficit that he could not
explain. He diagnosed Tardugno's pain as the result of a soft
tissue injury.
On November 11, 1992, Tardugno was examined by Dr. John
Grobman, an orthopedist, and on November 18 and December 15, by
Dr. Levy, an orthopedic back specialist. Both Dr. Grobman and
Dr. Levy found that Tardugno's neurological signs were relatively
normal, that he was experiencing significant back pain, and a
limited range of motion. Dr. Levy concluded that the pain was
due to a ligament injury rather than the disc problem indicated
on the M R I .
Tardugno visited Concord Hospital's emergency room on
December 17 complaining of back pain, urinary and bowel
incontinence and blood in his stool. The examining doctors found
some lower back tenderness and normal motor and neurological
results. The myelogram was negative, and Tardugno was diagnosed
with back pain with a possible nerve root syndrome.
An independent examination by another chiropractor, James P.
Geary, in March 1993 reported that his gait was guarded, his
range of motion in his back was severely restricted and painful.
Geary found that Tardugno's reflexes were somewhat decreased and
that he could heel and toe walk with pain. In his opinion,
5 Tardugno's pain was caused by myofascial pain syndrome.
Tardugno was next treated by Dr. Ralph Beasley on March 31
on the recommendation of Dr. McCarthy for pain management. The
physical examination provided similar results as were found
previously with straight leg testing to thirty degrees. Dr.
Beasley diagnosed a bulging L5-S1 disc with back pain in the
lumbar region and sciatica. He could not determine the cause of
the pain but suggested that the causes could include back
problems, myofascial pain, and pelvis problems. He recommended
some further diagnostic testing, and prescribed a pain treatment
program with medication. In May, Tardugno returned to Dr.
Beasley to begin his regimen for pain treatment including
medications and injections.
On May 6, 1993, Dr. Green examined Tardugno for episodes of
bladder incontinence. An entire urodynmaic evaluation was
performed. After reviewing the test results. Dr. Green decided
that Tardugno had muscle motor and sensory instabilities in the
bladder. In his opinion, the bladder condition was not related
to Tardugno's back injury. Dr. Green prescribed medication for
relief of his bladder instability. Dr. Alan Sheinbaum also
examined Tardugno in May for complaints of rectal bleeding that
was determined to be caused by hemorrhoids.
6 A state agency doctor made an assessment of Tardugno's
residual functional capacity ("RFC") on May 19 , 1993, based on
the medical record but not a physical examination. The doctor
determined that Tardugno could lift up to ten pounds, sit for six
hours, and stand and walk for two hours in a day. No other
limitations were noted. The doctor found that Tardugno had a
sedentary work capacity and advised vocational rehabilitation.
The RFC was affirmed in August.
Tardugno began a course of several treatments and diagnostic
tests on June 2 when he underwent electro-neurodiagnostic testing
of his legs. The test results indicated radiculopathy, a
disorder of the spinal nerves and nerve roots at L5 and SI. On
June 3, Dr. Beasley administered a lumbar epidural steroid
injection and noted that Tardugno's physical findings were
unchanged. An MRI of Tardugno's entire back was scheduled for
June 17, but he could only tolerate the portion of the procedure
for his lumbar spine because of back pain. The MRI showed no
change from April 1992 and Tardugno's small disc herniation was
found to be stable. He received a second injection on June 22.
An MRI of Tardugno's thoracic spine was done on July 1, with
unremarkable results, but he could not tolerate the portion for
the cervical spine.
7 Dr. Salerni saw Tardugno again in August with essentially
unchanged clinical findings, and he referred him to Dr. Davis
Clark, an orthopedic surgeon. Dr. Clark made similar clinical
findings and diagnosed chronic low back and radicular pain
without being able to identify the cause. He recommended further
diagnostic testing, and if negative, he advised a functional
restoration program with vocational rehabilitation counselling.
Dr. Thomas Kleeman conducted an independent evaluation of
Tardugno on October 27, 1993. His physical findings were similar
to previous examinations but finding a more limited degree of leg
raising and slightly decreased sensation in his right leg. Upon
review of x-rays of the lumbosacral spine and the previous MRI
results. Dr. Kleeman noted a narrowing at L5-S1 with degeneration
and mild degeneration at L2-L3, and a very slight disc protrusion
that did not appear to affect the nerve roots at L5-S1. Dr.
Kleeman diagnosed "disc degeneration with symptoms out of
proportion to objective findings" and assessed Tardugno's
permanent impairment to be fourteen percent of the whole person.
He noted that Tardugno's impairment would be thirty-one percent
including his motion limitation, but his range of motion failed
the validity test. Dr. Kleeman noted Tardugno's large weight
gain since his injury, lack of progress in resolving his pain. and that previous examiners had recommended psychosocial
evaluation or counselling, which had not been done.
Tardugno was also evaluated by a physical therapist on the
same day at Dr. Kleeman's reguest. She noted that Tardugno did
not give a good effort at the testing so that the results
indicated only his minimal work ability. She estimated that he
would be capable of light duty work. She also "strongly
recommended" that Tardugno begin an exercise program along with
pain management.
Tardugno was examined by another orthopedist. Dr. Fulton
Kornack, in December 1993, and again in March 1994. His findings
were essentially the same as those of previous examinations. His
opinion was that Tardugno's pain resulted from a soft tissue
injury, not from a disc problem. He recommended rehabilitation
and pain management.
On March 8, 1994, Dr. McCarthy, Tardugno's chiropractor,
completed a general medical report on him. He concluded that
Tardugno could lift as much as ten to fifteen pounds, could
occasionally climb, but could not balance, stoop, crouch, kneel,
crawl, reach, or push and pull. He recommended avoiding moving
machinery, temperature extremes, humidity, and vibration. He did
not determine his ability to sit or stand. Tardugno applied for disability insurance benefits on March
18, 1993. He alleged an inability to work since March 28, 1992,
due to a back condition and bowel and bladder incontinence. He
appeared, represented by counsel, and testified at the hearing
held on June 14, 1994. He testified that he had worked driving a
delivery truck, repairing cars, as a meat cutter, and he had
owned his own restaurant. At the time of the hearing, he was
thirty-nine years old, married, and had two children.
As to his current abilities, Tardugno testified that he
could sit for about one-half hour, could walk one-half mile, had
difficulty standing for any length of time, and had to lie down
on his side for twenty to thirty minutes at least a couple of
times each day. He also claimed difficulty performing activities
at or above shoulder level with his right arm. Tardugno also
testified that he was able to drive for short distances, to shop
with his wife, and that his concentration and memory were not
affected by pain.
The vocational expert, John Bopp, gave his opinion that
based on the hearing testimony Tardugno was not able to return to
any of his prior work. The ALJ described a hypothetical
individual without a high school education, but able to read,
write, add and subtract, and who has performed jobs in the
10 semiskilled area, but whose exertional requirements were limited
to lifting not more than twenty pounds, no climbing, no bending
at the waist, and no repetitive overhead reaching. He also
required a job which allowed a change of position so that the
worker would not sit or stand without a change of position for
more than a half and hour to an hour. Mr. Bopp testified that
positions that would fill the ALJ's described criteria would be
cashiers, bookkeeping and auditing clerks, stock and inventory
control clerks, assembler jobs, production inspectors, checkers,
and examiners.
In his decision issued on August 2, 1994, the ALJ determined
that Tardugno was not able to return to his prior work, but that
his testimony as to his pain was not entirely credible. He found
that Tardugno was able to do the full range of light work reduced
by his pain limitation. He also found that Tardugno was not
disabled because he was able to perform jobs that existed in
significant numbers in the national economy. Thus, he denied
Tardugno's application for benefits. The Appeals Council denied
his request for review2 on January 17, 1995, and Tardugno filed
2 Because the Appeals Council declined to review the ALJ's decision, only the administrative record presented to the ALJ, not additional evidence submitted to the Appeals Council, is
11 his appeal with this court.
II. STANDARD OF REVIEW
After a final determination by the Commissioner and upon
request by a party, this court is authorized to review the
pleadings and the transcript of the record of the proceeding, and
enter a judgment affirming, modifying, or reversing the decision.
42 U.S.C.A. § 405(g) (West Supp. 1995). The court's review is
limited in scope, however, as the Commissioner's factual findings
are conclusive if they are supported by substantial evidence.
Id.; Ortiz v. Secretary of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991). The Commissioner is responsible for
settling credibility issues, drawing inferences from the record
evidence, and resolving conflicting evidence. Id. Therefore,
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 adequate to support [the Commissioner's]
reviewable here. See Eads v. Secretary of DHHS, 983 F.2d 815, 816-17 (7th Cir. 1993). In addition, I note that Tardugno does not contend that the evidence presented only to the Appeals Council qualifies as "new evidence" that would entitle him to have the ALJ consider the evidence on remand. See Evangelista v. Secretary of Health and Human Servs., 826 F.2d 136, 139 (1st Cir. 1987) .
12 conclusion.'" I d . (quoting Rodriquez v. Secretary of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). However, if the
Commissioner has misapplied the law or has failed to provide a
fair hearing, deference to the Commissioner's decision is not
appropriate, and remand for further development of the record may
be necessary. Carroll v. Secretary of Health & Human Servs., 705
F.2d 638, 644 (2d Cir. 1983). See also Slessinqer v. Secretary
of Health & Human Servs., 835 F.2d 937, 939 (1st Cir. 1987). I
review Tardugno's appeal in light of the applicable standard.
III. DISCUSSION
On appeal, Tardugno challenges the ALJ's determination at
the fifth step3 of the sequential analysis that he was capable of
3 The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has 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 (1994); 20 C.F.R. § 404.1509 (1994).
13 performing light duty work and, therefore, was not disabled. In
particular, he disputes the ALJ's conclusion that his subjective
complaints of disabling pain were not credible, and he argues
that the evidence in the record does not support the ALJ's
findings.
At step five, the Commissioner has the burden of showing
that despite the severity of the claimant's impairment and
inability to return to past relevant work, he retains the RFC to
perform other occupations that exist in significant numbers in
the national economy and in the region where he lives. 20 C.F.R.
§ 404.1520(f); Keating v. Secretary of Health & Human Servs., 84 8
F.2d 271, 276 (1st Cir. 1988). A claimant's residual functional
capacity is "what he can still do despite his limitations." 20
C.F.R. § 404 .1545 (a) .
Tardugno claims that his back pain is so severe that he must
lie down for twenty to thirty minutes several times a day to
relieve pain, but only his subjective complaints of pain support
his need to lie down. The vocational expert testified that with
that limitation there would not be jobs available that he could
do. Tardugno argues that therefore disabled and disputes the
ALJ's evaluation of his complaints of pain.
Subjective complaints of pain are evaluated in light of all
14 of the evidence and must be supported by medical signs and
findings. 42 U.S.C.A. § 423(d)(5)(A) (West Supp. 1995); 20
C.F.R. §§ 404.1529(c); Avery v. Secretary of Health & Human
Servs., 797 F.2d 19, 23 (1st Cir. 1986) . In determining the
weight to be given to a claimant's allegations of pain,
"complaints of pain need not be precisely corroborated by
objective findings, but they must be consistent with medical
findings." Dupuis v. Secretary of Health & Human Servs., 869
F.2d 622, 623 (1st Cir. 1989). When the claimant's reported
symptoms of pain are significantly greater than the objective
medical findings suggest, the ALJ must consider other relevant
information to evaluate the claims including the claimant's daily
activities, the specific manifestations of pain, precipitating
and aggravating factors, and the availability of effective means
of relieving pain through medications or treatments. 20 C.F.R. §
404.1529(c)(3); Avery, 797 F.2d at 23. If the ALJ has considered
all of the relevant evidence of the claimant's pain, "[t]he
credibility determination by the ALJ, who observed the claimant,
evaluated his demeanor, and considered how that testimony fit in
with the rest of the evidence, is entitled to deference,
especially when supported by specific findings." Frustaqlia v.
Secretary of Health & Human Servs., 829 F.2d 192, 195 (1st Cir.
15 1987) .
In his written decision, the ALJ reviewed Tardugno's
extensive medical records and determined that his allegations of
pain were in excess of what would be reasonably expected from the
objective medical evidence. The medical records of Tardugno's
treating doctors support the ALJ's determination. The records
show that Tardugno had injury to his back including a small disc
herniation at L5-S1 and disc degeneration there and in some other
areas. Upon examination, the doctors repeatedly found that
Tardugno's complaints of pain were unrelated to his disc
condition and were more likely the result of an undetermined soft
tissue or a ligament injury. Dr. Green decided that Tardugno's
bladder incontinence, which was controlled by medication, was
unrelated to his back condition. Although Dr. Sullivan, a
chiropractor, found that Tardugno was disabled from all work in
October 1992, an evaluation of Tardugno's RFC in May 1993 shows
that he was capable of light duty work with some restrictions.
By October 1993 Dr. Kleeman, an orthopedist, and a physical
therapist determined that Tardugno's pain complaints and other
symptoms were out of proportion to his objective medical findings
and that he was capable of light or sedentary work and that his
impairment limited his activity by only fourteen percent.
16 Although Tardugno's treating chiropractor. Dr. McCarthy,
gave his opinion in June 1993 and May 1994 that Tardugno was
totally disabled due to a "disc syndrome," his opinion merits
controlling weight only if it "is well-supported by medically
acceptable clinical and laboratory diagnostic technigues and is
not inconsistent with the other substantial evidence in [the]
case." 20 C.F.R. § 404.1527(d)(2) (1994). The opinions of other
doctors who examined and tested Tardugno contradict Dr.
McCarthy's opinion. Other examining doctors ruled out Tardugno's
disc condition as the cause of his pain complaints and found that
the medical evidence of physical condition did not explain his
pain. While Dr. Kleeman stated in February 1994 that
manipulation treatment was not justified for his condition and
chiropractic treatment had proved to be of no benefit, in June
1994 Dr. McCarthy was continuing to treat Tardugno up to three
times per week and recommended "manipulation under anesthesia."
Based on the record. Dr. McCarthy's treatment is not well-
supported and his opinion of total disability is contradicted by
other examining physicians. Because Dr. McCarthy's opinion is
not entitled to controlling weight, and "the resolution of
conflicts in the evidence is for the Secretary, not the courts."
17 Ortiz, 955 F.2d at 769. Therefore, the ALJ was entitled to give
more weight to opinions other than that of Dr. McCarthy.
Next, following the Avery reguirements, having determined
that Tardugno's complaints of pain exceeded normal expectations
based on the objective medical evidence, the ALJ was obligated to
consider any other evidence in the record concerning the effect
of pain on Tardugno's daily activities. Tardugno testified, and
the ALJ noted in his decision, that he was limited by pain in his
daily activities but was able to drive his children to and from
school and to his own doctors' appointments, take care of
himself, visit with friends, and help his wife around the house.
Tardugno also testified that the only medication he was
using then to control his pain was Tylenol with Codeine taken
occasionally. He explained that he did not take Tylenol every
day because it causes constipation. The medical record shows
that he had previously taken prescribed medications and Tylenol
with Codeine beginning in June 1993 and initially received some
relief for sleeping. Because medications and treatment were
prescribed to control pain, his failure to use those medications
to alleviate pain, or to explain why he does not follow the
18 prescribed treatment, contradicts his allegations of disabling
pain. See Tsarelka v. Secretary of Health and Human Servs., 842
F.2d 529, 534 (1st Cir. 1988) ("If a claimant does not follow
prescribed treatment 'without a good reason, ' he or she will not
be found to be disabled." (guoting 20 C.F.R. § 404.1530)).
The ALJ properly considered the Avery criteria in partially
discounting Tardugno's subjective pain complaints. Based on the
record evidence, the ALJ's determination that Tardugno suffered
back pain but that his pain was not "of disabling proportions" is
supported by substantial evidence. Thus, the ALJ did not
erroneously discount Tardugno's impairment due to pain in
describing his hypothetical to the vocational expert, and
substantial evidence supports the determination that Tardugno is
not disabled from work. I affirm the Commissioner's decision
denying benefits.
IV. CONCLUSION
For the foregoing reasons, the plaintiff's motion to reverse
(document no. 6) is denied and defendant's motion to affirm
19 (document no. 8) is granted.
SO ORDERED.
Paul Barbadoro United States District Judge
February 27, 1996
cc: James Lafrance, Esg. David Broderick, Esg.