Woodin v. SSA

• Court: District Court, D. New Hampshire
• Decided: December 18, 1996
• Docket: CV-95-601-M
• Status: Published

Opinion

Woodin v. SSA CV-95-601-M 12/18/96

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles Woodin, Plaintiff

v. Civil No. 95-601-M

Shirley Chafer, Commissioner Social Security Administration, Defendant.

O R D E R

Pursuant to section 20 5 (g) of the Social Security Act, 42

U.S.C. § 405(g), Charles Woodin seeks review of a final decision

by the Commissioner of the Social Security Administration,

denying his claim for benefits. Before the court is plaintiff's

motion to reverse the decision of the Commissioner. The

Commissioner objects, and moves to affirm that order. For the

reasons set forth below, plaintiff's motion is granted and this

matter is remanded to the Administrative Law Judge for further

proceedings.

Administrative Proceedings

Plaintiff filed an application for disability insurance

benefits on August 27, 1993. His claim was denied initially and again on reconsideration. On June 16, 1994, he filed a request

for hearing, which was held on January 9, 1995, before

Administrative Law Judge Frederick Harp. Plaintiff appeared in

person and testified. He was represented by Attorney Raymond

Kelly. Additionally, two of plaintiff's friends, Roger Levasseur

and Dick Champagne, appeared and testified on his behalf.

Stipulated Facts

Pursuant to this court's local rule 9.1(d), the parties have

submitted a statement of stipulated facts. Because of

plaintiff's substantial medical history and the sizeable number

of facts that the parties have deemed relevant to this

proceeding, the court has incorporated the parties' stipulation

as an appendix to this opinion.

Standard of Review

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."

Factual findings of the Secretary are conclusive if supported by

substantial evidence. 42 U.S.C. §§ 405(g), 1383(c) (3); Irlanda

2 Ortiz v. Secretary of Health and Human Services, 955 F.2d765,

769 (1st Cir. 1991) Z

In making those factual findings, the Commissioner

(formerly, the "Secretary") must weigh and resolve conflictsin

the evidence. Burgos Lopez v. Secretary of Health & Human

Services, 747 F.2d 37, 40 (1st Cir. 1984) (citing Sitar v.

Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It 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." Ortiz, 955 F.2d at 769. And, the

court will give deference to the ALJ's credibility

determinations, particularly where those determinations are

supported by specific findings. Frustaalia v. Secretary of

Health & Human Services, 829 F.2d 192, 195 (1st Cir. 1987)

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It 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).

3 (citing Da Rosa v. Secretary of Health and Human Services, 803

F.2d 24, 26 (1st Cir. 1986)).

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable "to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months." 42 U.S.C.

§ 416(1)(1)(A). The Act places a heavy initial burden on the

plaintiff to establish the existence of a disabling impairment.

Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987); Santiago v.

Secretary of Health and Human Services, 944 F.2d 1, 5 (1st Cir.

1991) . To satisfy that burden, the plaintiff must prove that his

impairment prevents him from performing his former type of work.

Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (citing

Goodermote v. Secretary of Health and Human Services, 690 F.2d 5,

7 (1st Cir. 1982)). Nevertheless, the plaintiff is not reguired

to establish a doubt-free claim; the initial burden is satisfied

by the usual civil standard, a "preponderance of the evidence."

See Paone v. Schweiker, 530 F. Supp. 808, 810-11 (S.D. Miss.

1982) . In assessing a disability claim, the Secretary considers

4 objective and subjective factors, including: (1) objective

medical facts; (2) plaintiff's subjective claims of pain and

disability as supported by the testimony of the plaintiff or

other witnesses; and (3) the plaintiff's educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health and Human Services, 797 F.2d 19, 23 (1st Cir. 1986);

Goodermote, 690 F.2d at 6.

Once the plaintiff has shown an inability to perform his

previous work, the burden shifts to the Secretary to show that

there are other jobs in the national economy that he can perform.

Vazquez v. Secretary of Health and Human Services, 683 F.2d 1, 2

(1st Cir. 1982). If the Secretary shows the existence of other

jobs which the plaintiff can perform, then the overall burden

remains with the plaintiff. Hernandez v. Weinberger, 493 F.2d

1120, 1123 (1st Cir. 1974); Benko v. Schweiker, 551 F. Supp. 698,

701 (D.N.H. 1982).

When determining whether a plaintiff is disabled, the ALJ is

reguired to make the following five inguiries:

(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment;

5 (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.

20 C.F.R. § 404.1520. Ultimately, a plaintiff is disabled only

if his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .

42 U.S.C. § 423(d)(2)(A).

With those principles in mind, the court reviews plaintiff's

motion to reverse the decision of the Commissioner.

III. DISCUSSION

In concluding that Mr. Woodin was not disabled within the

meaning of the Act, the ALJ employed the mandatory five-step

sequential evaluation process set forth in 20 C.F.R. §§ 404.1520,

416.920(1995). Step 4 of the evaluation process requires the

ALJ to determine whether, despite the plaintiff's impairment, he

retains the residual functional capacity ("RFC") to perform his past relevant work. At step 4, the ALJ determined that

plaintiff's RFC permitted him to perform the exertional and

nonexertional requirements of light work and, therefore, he could

perform his past relevant work as an automobile appraiser (Tr.

66). Accordingly, the ALJ concluded that plaintiff was not

disabled within the meaning of the Social Security Act.

A. The ALJ's Reliance on Non-Treating Sources.

Plaintiff asserts that the ALJ erred as a matter of law by

failing to give controlling weight to the opinions of his

treating physicians or, at a minimum, explain why he decided not

to afford those opinions such weight. As plaintiff correctly

notes, generally, the ALJ must afford more weight to the medical

opinions of a claimant's treating physicians because those

sources are:

likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the plaintiff's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.

20 C.F.R. § 404.1527(d)(2). Of course, the ALJ may decide not to

give controlling weight to the opinions of a plaintiff's treating

7 physicians. However, if the ALJ does not give such controlling

weight, he or she must "always give good reasons in [the] notice

of determination or decision for the weight [the ALJ gave] to

[the claimant's] treating source's opinion." Id.

Here, plaintiff says that he had four "treating physicians":

Dr. Edwin Bell (an osteopath). Dr. Anthony Salerni (a

neurosurgeon),2 Dr. Pierre Durand (a psychiatrist), and Dr.

Ronald Aragona (a chiropractor). Under the pertinent

regulations, doctors Bell, Salerni, and Durand are considered

"acceptable medical sources" for determining plaintiff's

disability. 20 C.F.R. § 404.1513(a). As a chiropractor. Dr.

Aragona is considered "another source" of pertinent information

regarding plaintiff's disability. 20 C.F.R. § 414.1513(e).3 The

It appears that plaintiff saw Dr. Salerni on only two occasions. Because "the length of the treatment relationship and the freguency of examination," 20 U.S.C. § 404.1527(d)(2)(i), are relatively insubstantial, it is guestionable whether Dr. Salerni actually gualifies as a "treating source" under the Regulations. The ALJ did not address this issue in his decision and, for the purposes of this order, the court has assumed that Dr. Salerni is a "treating physician." On remand, the ALJ is obviously at liberty to conclude that Dr. Salerni is not a treating physician, provided of course, that he adeguately supports that determination with appropriate legal and factual findings.

Because chiropractors are not considered an acceptable source of medical evidence regarding a claimant's impairment, see 20 C.F.R. § 404.1513(a), the ALJ is entitled to give their medical evidence and opinions submitted by those doctors support

plaintiff's assertion that he is disabled. For example, in July

of 1992, Dr. Bell opined that plaintiff's "ability to function in

simple everyday activities is markedly impaired. The prognosis,

as previous, is very poor. Disability remains total" (Tr. 230).

Subsequently, Dr. Aragona opined that:

The patient most certainly suffers severe post-traumatic spondylopathy and I have cared for over five-thousand spinal injury cases in over twenty-years, his condition is most certainly amongst the worst. I have never seen a patient who has endured so much pain for such a long period of time and who presents such a willingness to get well (Tr. 354).

It is my professional opinion, based on more than twenty- years experience with individuals affected with spinal- related impairments that any sincere practitioner who may have the opportunity to examine this patient, would most certainly concur with not only his severe spinal-related impairments, but also with the obvious necessity for further medical/chiropractic remedial therapy (Tr. 356).

Ultimately, no one (including the Commissioner herself)

doubts that plaintiff experiences pain and has some functional

limitations due to his back condition. The pertinent question

is, of course, whether plaintiff is "disabled" within the meaning

opinions regarding the nature and scope of the plaintiff's impairment less weight. Diaz v. Secretary of Health & Human Services, 59 F.3d 307, 314 (2d Cir. 1995); Cronkhite v. Secretary of Health & Human Services, 935 F.2d 133, 134 (8th Cir. 1991) . of the Act. Despite the presence of a substantial volume of

medical evidence suggesting that plaintiff is "disabled," still,

a large portion of the record also consists of medical opinions

from physicians who believe that there is little or no evidence

of an organic basis for plaintiff's stilted posture or complaints

of pain.

Dr. Donald Cusson, who performed an independent orthopedic

examination, commented that he believed that plaintiff's posture

and exaggerated gait are "theatrical" (Tr. 254) and "entirely

voluntary" (Tr. 260). Dr. Cusson concluded that plaintiff "has

no residual disability from an organic orthopedic and

neurological basis" (Tr. 260). Similarly, Dr. David Lhowe, an

orthopaedic surgeon who examined plaintiff in April of 1992,

concluded that:

In summary, I find that Mr. Woodin sustained a thoracolumbar strain and contusion at the time of his 4/25/91 injury. At this time, it is likely that such an injury would have resolved sufficiently to permit him to return to the majority of his duties. I cannot find any objective orthopedic basis for his continuing postural scoliosis. However, I am unable to determine whether his symptoms are hysterical (patient not attempting to deceive the examiner) or fabricated (patient consciously attempting to fabricate a condition). The fact that Mr. Woodin's curvature could be significantly reduced on the examining table would suggest some degree of conscious exaggeration, in my opinion. I feel that a psychiatric evaluation is indicated. Regarding

10 his disability, I can find no objective orthopedic basis for his continued inability to return to work (Tr. 271-72).

Likewise, after examining plaintiff. Dr. Julie Heston, a

neurologist, concluded:

[T]he patient may well have sustained a thoracolumbar strain when he fell backwards at work on 4/25/91. I do not believe that there is any organic basis for his current posture or "scoliosis." Whether the etiology of this issue is for the purposes of secondary gain or is psychiatric in origin would need to be determined by a psychiatric consultation (Tr. 275) .

In the final analysis, however, the court is constrained to

conclude that the ALJ failed to adeguately considered the

opinions of plaintiff's treating physicians or, at a minimum,

failed to "give good reasons in [the] notice of determination or

decision for the weight [he gave] to [the claimant's] treating

source's opinion." 20 C.F.R. § 404.1527(d)(2). Although there

is certainly evidence in the record which suggests that there is

no organic basis for the apparent severity of claimant's

disability, his x-rays and MRI scans do show that he suffers from

a compression deformity of the 11th thoracic vertebra (Tr. 199),

degenerative disk narrowing, and an annular bulge at L2-3, L3-4,

and L4-5 (Tr. at 287, 291). And, importantly, at least two of

his "treating physicians" have opined that he is totally disabled

11 (see, e.g., Tr. 21, 230, 232). However, the ALJ did not explain

why he discounted or discredited those opinions.4

Of course, because the four orthopedic surgeons who examined

plaintiff (each of whom concluded that he was capable of

performing at least non-exertional work) opined about medical

issues related to their area of speciality, the ALJ was entitled

to give their opinions substantial weight. 20 C.F.R.

§ 404.1527(d)(5). Again, however, the record does not explain

why the ALJ elected to afford more weight to the opinions of

those experts than to the opinions of claimant's "treating

physicians," who are presumed to be "the medical professionals

most able to provide a detailed, longitudinal picture of

[claimant's] medical impairments" and provide "a unigue

perspective to the medical evidence that cannot be obtained from

the objective medical findings alone." 20 C.F.R.

§ 404.1527(d)(2).

Because Dr. Aragona (one of plaintiff's treating physicians who opined that he was totally disabled) is a chiropractor, the ALJ was entitled to afford less weight to that opinion. Nevertheless, the ALJ, at least implicitly, appears to have credited a portion of Dr. Aragona1s medical opinion (Tr. 63). The ALJ neglected, however, to explain why he chose to disregard Dr. Aragona1s ultimate opinion that claimant is totally disabled and incapable of performing even sedentary work.

12 While acknowledging that Dr. Bell opined that plaintiff is

"in acute distress at all times" and his "prognosis is extremely

poor" (Tr. 232), the Commissioner asserts that those comments are

based largely on plaintiff's subjective complaints of pain.

Likewise, the Commissioner claims that Dr. Salerni's opinion that

"at this point in time the patient appears to be totally disabled

with spine pain" (Tr. 21), is also based largely on plaintiff's

subjective complaints of pain. As the Commissioner correctly

notes, the ALJ is "not reguired to accept the conclusions of

plaintiff's treating physicians on the ultimate issue of

disability." Arroyo v. Secretary of Health and Human Services,

932 F .2d 82, 89 (1st Cir. 1991). See also 20 C.F.R.

§ 404.1527(e) ("A statement by a medical source that you are

'disabled' or 'unable to work' does not mean that we will

determine that you are disabled.").

Here, however, the opinions from plaintiff's treating

physicians are based upon more than merely plaintiff's subjective

complaints of pain. Dr. Bell, for example, provided medical

treatment to plaintiff on over 80 occasions. Certainly, his

opinion that plaintiff is disabled is based upon more than merely

plaintiff's complaints of pain (Tr. 222-241). Likewise, Dr.

13 Salerni performed a physical examination of plaintiff which, in

addition to plaintiff's subjective complaints of pain, lead Dr.

Salerni to believe that plaintiff's "musculature is extremely

tense in the left lumbar region" and to conclude that "it is

apparent to me that there is some underlying spinal condition

that exacerbates the muscles and makes them reactive enough to

spasm with activity and time" (Tr. 380). In short, the court

cannot conclude that the opinions of those treating physicians

were merely conclusory and unsubstantiated by physical

examination and/or testing. Accordingly, the ALJ should have

explained why he chose to discount (or disregard) those opinions.

B. The ALJ's Credibility Determination.

The ALJ is reguired to consider the subjective complaints of

pain or other symptoms by a plaintiff who presents 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 Services, 797 F.2d 19, 21 (1st Cir.

1986); 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

14 and Human Services, 869 F.2d 622, 623 (1st Cir. 1989); see

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

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

plaintiff's assertions of pain at face value.") (quoting Burgos

Lopez v. Secretary of Health and Human Services, 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 sequential 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. The

ALJ recognized that this is such a case. (Tr. 57, 63)

When a claimant complains that pain or other subjective

symptoms are a significant factor limiting his or her ability to

work, and those complaints are not fully supported by medical

evidence contained in the record, the ALJ must consider

additional evidence, such as the claimant's prior work record;

15 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. 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. § 4 04.1529(c)(4).

Here, the ALJ concluded that plaintiff's "allegations of

inability to work because of pain are somewhat exaggerated and

are not entirely credible" (Tr. 64). In support of that

conclusion, the ALJ noted that plaintiff's allegations of

limitations exceed those which would be expected based solely

upon the "clinical, objective findings of record" (Tr. 63). The

ALJ then noted that: (1) plaintiff denied leg weakness or

paresthesia and denied that any pain radiated to his legs; (2)

when plaintiff was lying down, his spinal curvature significantly

16 decreased; (3) most physicians who examined plaintiff concluded

that there was some degree of conscious exaggeration, possibly

motivated by secondary gain; (4) plaintiff is able to twist his

shoulders, trunk, and bend side to side without increased pain;

and (5) plaintiff is able to care for his personal needs, drive

his daughter to school, and drive to Dunkin' Donuts (Tr. 63-64).

However, the ALJ did not address the findings of Dr. Price,

an orthopedic surgeon who noted that plaintiff's "skin has

chronic masserations in the right folds of the flank from fixed

lateral bending position" (Tr. 262, emphasis added; Tr. 265), and

that plaintiff has "significant osteophytic changes on the right

side at Ll-2 and 2-3 levels [and] appears to have a partially

sacralized L5" (Tr. 262). Likewise, the ALJ did not address Dr.

Sachs's observation that plaintiff "shows excessive wear on the

right heel in the lower aspect of the right side of his shoe

compared to the left side" (Tr. 278-79) or Dr. Salerni's

observation that plaintiff had developed a "substantial callous

on his right hand because of the pressure he needed to place on

[his] cane" (Tr. 379) or Dr. Aragona's statement that plaintiff's

right hand has actually bled as a result of the shearing force

applied by his persistent reliance on a cane (Tr. 348). Those

17 findings certainly support the view that plaintiff's pain and

markedly awkward gait are real, rather than imagined, or simply

faked when visiting his physicians. While this court would of

course defer to an ALJ's properly supported credibility

determinations, in this case it finds that the ALJ did not

adeguately support his conclusion that plaintiff's complaints of

pain and inability to work were not credible.

In light of the foregoing, the court concludes that the ALJ

erred as a matter of law when he failed to adeguately consider

the medical opinions of plaintiff's "treating physicians" (or, at

a minimum, explain why he did not credit those opinions). 20

C.F.R. § 404.1527(d)(2). Additionally, the court finds that the

ALJ's determination that plaintiff's subjective complaints of

pain were not entirely credible is not adeguately supported in

the record. At a minimum, the ALJ should have addressed (and

explained why he discounted) the material facts in the record

which support plaintiff's assertion that his pain is real and

substantial, rather than imagined or exaggerated (e.g., worn

shoes, maceration on the skin edges as a result of prolonged

and/or continuous postural deformity, etc.). See 20 C.F.R.

§ 404.1529(c) (3) .

18 Conclusion

This is a close case. No one denies that Mr. Woodin

experiences pain resulting from his accident in 1991, and it is

clear that his pain has had a sizeable impact on his life.

Nevertheless, medical experts who have examined him have reached

divergent opinions regarding the nature, source, and severity of

plaintiff's pain. In the end, the court finds that the ALJ's

conclusion that Mr. Woodin is not disabled within the meaning of

the Act is flawed in two material ways. First, the ALJ erred in

applying the pertinent regulations when he neglected to

adeguately explain why he had not credited the opinions of

plaintiff's treating physicians, who opined that plaintiff was

disabled within the meaning of the Act. And, second, the ALJ's

conclusion that plaintiff's subjective complaints of pain are not

entirely credible is tainted because the ALJ failed to consider

(or at least address) all relevant factual issues in the record

in reaching that conclusion. See, e.g., Avery, 797 F.2d at 23.

Plaintiff's motion to reverse the decision of the

Commissioner (document no. 9) is granted. The Commissioner's

motion to affirm the decision of the Commissioner (document no.

11) is denied. Pursuant to sentence four of 42 U.S.C. § 405(g),

19 this matter is remanded to the ALJ for further proceedings not

inconsistent with this opinion. The ALJ may, at his option,

elect to convene a new hearing or he may simply supplement his

original opinion and: (1) clearly state the reason(s) that he

failed to give plaintiff's treating sources controlling weight;

and (2) more clearly explain why he apparently neglected to

consider the substantial medical and non-medical evidence which

suggests that plaintiff's pain and profoundly awkward posture and

gait are real rather than imagined or fabricated.

The Clerk of the Court is instructed to enter judgment in

favor of plaintiff, in accordance with the terms of this order.

SO ORDERED.

Steven J. McAuliffe United States District Judge

December 18, 1996

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

20 UNITED STATES DISTRICT COURT FOR THE

Shirley Chafer, Commissioner Social Security Administration, Defendant.

Appendix - Stipulated Facts

A. Education And Work Background

Charles Woodin was born on June 25, 1942 and was 52 years

old on the date of the ALJ hearing in January 1995 (Tr. 87, 108,

149). He had a high school education and his past relevant work

including [sic] employment as a lead man at Manchester Transit

performing bus maintenance work, an auto salesman and auto

appraiser, a truck driver, an owner and operator of an auto

refurbishing business and a foreman at the upholstery department

of a business that refurbished interiors of aircraft (Tr. 90,

159, 375). At his most recent job as a lead man, he swept,

cleaned and fueled buses and did minor repairs (Tr. 90-91). He

lifted up to 75 lbs. in carrying out his duties (Tr. 91). In

21 April 1991, while cleaning a bus shelter, the plaintiff stepped

back into a manhole and fell on his back (Tr. 92).

B. Medical History

David A. Graf, D.C., a chiropractic doctor, examined the

plaintiff on April 26, 1991 the day after his injury (Tr. 187).

Dr. Graf reported the plaintiff came to him complaining of pain

between his shoulders, sharp left lower back pain, soreness and

weakness in the shoulders, and neck stiffness and cracking (Tr.

187). He also presented with right antalgia (Tr. 187).

Examination of the plaintiff revealed pain and restriction of

motion in the cervical and lumbar areas (Tr. 187). X-rays showed

osteophytic changes at C5, L3 and L4 (Tr. 187). On May 10, 1991,

Dr. Graf indicated the plaintiff was disabled (Tr. 186). As of

June 10, 1991 he had treated the plaintiff with very gentle

spinal adjustments, ultrasound, and electrical stimulation with

good success (Tr. 187). The plaintiff's antalgia was much

improved immediately after treatment, but it returned if he did

too much or moved wrong (Tr.187).

On June 3, 1991 Robert J. Weafer, M.D., an orthopedic

surgeon, examined the plaintiff apparently for purposes of

22 worker's compensation (Tr. 189-192). The plaintiff reported that

he experienced improvement in back pain for about two hours after

a chiropractic treatment (Tr. 190). Physical examination

revealed marked restrictions of major back movements and low back

pain on all movements (Tr. 190). He stood with a right list and

a consequent shallow scoliosis (Tr. 190). X-rays revealed C5-6

spondylosis5 (Tr. 191) . His diagnoses were cervical

sprain/strain, essentially resolved; low back sprain/strain, and

minor lumbar degenerative changes (Tr. 191). Dr. Weafer noted

that the plaintiff had objective findings with a list being the

most noteworthy (Tr. 192). He felt that the plaintiff could not

return to his maintenance work at Manchester Transit but could

perform work that involved: no repetitive bending; no forceful

pushing/pulling; no climbing; no crawling; no lifting over 25

lbs.; and be able to sit and stand at will (Tr. 192). The

estimated time for these restrictions was three to four weeks or

possibly longer depending upon the results of additional

diagnostic studies (Tr. 192).

Spondylosis - A term often applied to any lesion of the spine of a degenerative nature. Stedman's Medical Dictionary, 24th Ed., (1982), p. 1322)

23 Dr. Weafer examined the plaintiff again in August 1991 (Tr.

193-196). The plaintiff reported no significant changes in his

condition and physical examination remained essentially stable.

He ambulated with a cane in the right hand (Tr. 194) . Medication

included daily Naprosyn (Tr. 194). Dr. Weafer's diagnoses also

remains the same. Dr. Weafer was unable to explain the

plaintiff's protracted back pain (Tr. 195). However, his marked

list was consistent with organic pathology (Tr. 195). Dr. Weafer

concluded that the plaintiff could not return to his maintenance

job (Tr. 195). He suggested work restrictions that included

permission to sit and stand at will; no repetitive bending; no

forceful pushing or pulling; no climbing, crawling or lifting in

excess of 25 lbs. (Tr. 195). He could not estimate how long

these restrictions would need to last (Tr. 195). His prognosis

was persistent low back pain with an apparent resultant list

whose etiology had yet to be defined (Tr. 196).

James Shea, M.D., F.A.C.S., an orthopedic surgeon, examined

the plaintiff initially on June 17, 1991 (Tr. 198-199). The

plaintiff complained of severe back pain and walked with a marked

tilt of his torso anteriorly and to the right (Tr. 198). He wore

a corset provided by his chiropractor (Tr. 198). Examination

24 revealed markedly limited range of motion in the back; moderate

tenderness over the thoraco-lumbar junction and minimal

tenderness over the lower lumbar spine; and x-rays of the

thoracic and lumbar spine showed definite compression deformity

of the 11th thoracic vertebra that was about 40% of the length of

the vertebra and degenerative changes around this vertebra and

degenerative changes of the lumbar spine (Tr. 199). Dr. Shea's

diagnosis was severe thoraco-lumbar strain and compression

deformity of 11th thoracic vertebra (Tr. 199). He prescribed

Naprosyn 375 mg., twice a day and physiotherapy (Tr. 199) . He

felt the plaintiff was unable to work at that time (Tr. 199). On

June 27, 1991, Dr. Shea reported the plaintiff was making very

slow progress and was experiencing severe backache (Tr. 200).

Physical examination showed he continued to walk with his torso

tilted to the side and there was moderate tenderness over the

thoraco-lumbar junction and the lumbar spine (Tr. 200).

Neurological examination was unremarkable (Tr. 200). He was

still unable to work (Tr. 200).

On August 1, 1991 Dr. Shea reported the plaintiff was making

no progress (Tr. 200). Severe back pain continued and he began

using a cane (Tr. 200). The plaintiff could not straighten up

25 fully (Tr. 200). There was tenderness over the lumbar area (Tr.

200). He was given a prescription to get a new cane (Tr. 200).

Plaintiff's condition was unchanged at an August 13, 1991 exam

(Tr. 201). An MRI (magnetic resonance imaging) was unremarkable

without any evidence of herniated disc or spinal stenosis (Tr.

201). The plaintiff was reassured that his outlook would be good

at that point in time (Tr. 201) .

Plaintiff was provided physical therapy at the Fitness

Network (Tr. 203-221). He was treated from June 18, 1991 to

August 13, 1991 (Tr. 218-219).

The plaintiff began treatment with Edwin I. Bell, D.O., in

August 1991 (Tr. 222). Dr. Bell treated the plaintiff on a

regular basis up until May 1993 (Tr. 222-247). His records

reflect over 80 office visits by the plaintiff (Tr. 222-247).

After treating the plaintiff for almost 10 months Dr. Bell

stated:

Mr. Woodin continues to have extreme difficulty in ambulating. He remains in a side bent condition and the somatic dysfunctions which have persisted throughout our experience in the upper thoracic, lumbo- dorsal and lumbar regions continue to be evidenced. The pain is modified slightly by anti-inflammatory medication and manipulation, but the left hip pain

26 remains acute. His ability to function in simple everyday activities is markedly impaired. The prognosis, as previous, is very poor. Disability remains total (Tr. 232) .

Dr. Bell reported in July 1992 that ambulation, due to the

plaintiff's side bent condition, was extremely handicapped and

that it was difficult for the plaintiff to sit in an upright

position when he was examined (Tr. 232). He was obviously in

acute distress at all times (Tr. 232). In the weight bearing

position, it was impossible to straighten him up by physical

exertion from an outside source (Tr. 232). He was considered

totally disabled and his prognosis was extremely poor (Tr. 232).

In August 1992, Dr. Bell stated the plaintiff was "suffering

from a gross musculoskeletal dysfunctional state with specific

palpable muscular variations in the upper thoracic area, the

lumbodorsal and low lumbar areas as well as para left hip and

ilio-lumbar musculature (Tr. 236). He was unable to achieve

weight bearing erect position either standing or sitting and

ambulation capability was all but lost without a cane (Tr. 236).

In January 1993, Dr. Bell indicated the plaintiff hadshown

marked improvement since institution of massage therapy in his

27 rehabilitation program (Tr. 243). He was able to achieve a more

erect, ambulatory position, and had a reduction of muscle spasms

(Tr. 243). There was an obvious alleviation of pain (Tr. 243).

Office treatment notes from April and May 1993 revealed a

diagnosis of somatic dysfunction of the lumbar and thoracic

regions (Tr. 246). These notes also show that the plaintiff

continued to complain of pain and that he still had a list to the

right side (Tr. 246).

The plaintiff was examined by David B. Lewis, D.O. in

November 1991 (Tr. 249-251). At that time the plaintiff

complained of pain and significant sleep disturbance (Tr. 249).

Examination showed the plaintiff walked with a right antalgic

gait using a cane in the right hand and severely listing to the

right (Tr. 250). Dr. Lewis' impression was that the plaintiff

had multiple level lumbar disc degeneration without significant

herniation; significant spinal postural changes while standing of

unsure etiology; chronic pain, sleep disturbance and possible

secondary depression; no clinical evidence of intraspinal

pathology; and old Til compression deformity (Tr. 250). He

recommended a kenesio/swim therapy, use of muscle relaxants or

low dose antidepressants at bed time and a trial of injection of

28 local anesthetic followed by an aggressive stretching program

(Tr. 251).

Donald Cusson, M.D., an orthopedic surgeon, examined the

plaintiff in February 1992 (Tr. 252-260) . Dr. Cusson clearly

disbelieved the plaintiff's subjective complaints of pain and

discomfort. He felt that the plaintiff's marked list to the

right was a markedly exaggerated position and described the

plaintiff's posture several times as theatrical (Tr. 254, 256-

257, 259). He felt that there was no organic basis, from his

orthopedic and neurologic evaluation, for the plaintiff to

maintain this posture (Tr. 259). Dr. Cusson concluded the

plaintiff had no disability but had the ability to return to his

work on a full time basis as a second shift boss (Tr. 260). He

felt the plaintiff had considerable psychogenic overlay to

account for his extremely awkward posture which was motivated to

a large extent by secondary gain (Tr. 260).

William Price, M.D., an orthopedic surgeon, examined the

plaintiff in March 1992 (Tr. 262-263). He reported the

plaintiff's complaints of low back pain, listhesis to the right

side anteriorly and weakness in his legs (Tr. 262). His physical

29 examination demonstrated, among other things, severe anterior

fixed flexion deformity at the L/S (lumbo-sacral) spine with

associated right listhesis fixed at approximately 30 degrees (Tr.

262). The plaintiff was not able to straighten out even with

forced bending on physical examination (Tr. 262). He was tender

at the 3-4 and 4-5 level on deep palpation posteriorly (Tr. 262).

His skin had chronic maceration in the right folds of the flank

from fixed lateral bending position (Tr. 262). Dr. Price noted

that the plaintiff's MRI showed disc degeneration at the 2-3, 3-

4, 4-5 discs (Tr. 262). His medical assessment was that the

plaintiff had work related back injury causing left lumbar

scoliosis of a significant degree causing decompensation of this

gentleman's weight bearing axis with persistent significant pain

despite bracing, therapy and chiropractic manipulations (Tr.

263). He did not release the plaintiff for a return to work (Tr.

264). In August 1992, Dr. Price stated that presumably the

plaintiff acutely injured one of his degenerative discs when he

fell and this resulted in his persistent pain and deformity (Tr.

265). He reported he agreed with Dr. Lhowe (see below) that the

plaintiff had severe postural scoliosis but disagreed with Dr.

Lhowe as to his suggestion that the plaintiff had a psychiatric

illness (Tr. 265). He disagreed because he did not feel the

30 plaintiff was consciously exaggerating his posture, due to the

fact, on his examination he had maceration about the skin edges

secondary to this deformity and if he were doing this purely for

a medical legal reason, he clearly would not be doing it at home

and would not have developed maceration at the skin edges (Tr.

265) .

David Lhowe, M.D., an orthopedic surgeon, examined the

plaintiff in April 1992 at the workers' compensation carrier's

reguest (Tr. 268-272). He reported the plaintiff's subjective

complaints to include abnormal spinal curvature, lower back pain

and bilateral upper buttock pain (Tr. 270). His examination

provided a diagnoses of thoracolumbar sprain/contusion and

thoracolumbar scoliosis (Tr. 271). The scoliosis was considered

to be a very severe postural scoliosis as opposed to a structural

scoliosis (Tr. 271). He couldn't find any objective orthopedic

basis for the plaintiff's continuing postural scoliosis (Tr.

271). He was unable to determine whether his symptoms were

hysterical (patient not attempting to deceive the examiner) or

fabricated (patient consciously attempting to fabricate a

condition (Tr. 271-272). Dr. Lhowe felt that because the

plaintiff's curvature could be significantly reduced on the

31 examining table, this would suggest some degree of conscious

exaggeration (Tr. 272). A psychiatric evaluation was recommended

(Tr. 272). He could find no objective orthopedic basis for his

continued inability to return to work (Tr. 272). Dr. Lhowe

stated that the plaintiff should begin working on a part-time

basis and should avoid lifting more than 30 pounds, stooping and

crawling for a period of 6 weeks (Tr. 272). After this time

period, plaintiff could resume his regular work duties.

The plaintiff was examined in August 1992 by Julie Heston,

M.D., a specialist in neurology and psychiatry (Tr. 274-277).

Dr. Heston's examination was essentially negative except for some

tenderness over the L4 and L5 spinous process (Tr. 275). She

felt the plaintiff might well have sustained a thoracolumbar

strain when he injured himself in April 1991, but did not believe

there was any organic basis for his current posture or scoliosis

(Tr. 275). She recommended a psychiatric consultation to

determine whether the plaintiff's scoliosis was for the purposes

of secondary gain or psychiatric in origin (Tr. 275).

Barton Sachs, M.D., an orthopedic and general surgeon,

examined the plaintiff in August 1992 (Tr. 278-284). His

32 examination revealed a spinal malalignment and shift to the right

side; marked right-sided list and a forward list as well (Tr.

278). The plaintiff was unable to straighten up in the standing

or supine position (Tr. 278). He had an asymmetric gait pattern

of the shift to the right side (Tr. 278). However, plaintiff's

motor power, sensation, and deep tendon reflexes were all intact

(Tr. 27 9). He showed excessive wear on the right heel in the

lower aspect of the right of his shoe compared to the left side

(Tr. 278-279). X-rays showed some marked degenerative changes

with some syndesmophytes and endesopathies present (Tr. 279, 281-

283). His impression was marked spinal malalignment and shift

which could be consistent with nerve root irritation such as a

displaced nuclear disc fragment or possibly to the

diastematomyelia6 or other condition (Tr. 279). Further

evaluation with an MRI scan well as a CT scan was recommended

(Tr. 279) .

An MRI scan and CT scan were done at Concord Hospital in

September 1992 (Tr. 287-291). The MRI revealed minor scoliosis

convex to the right, minor annular bulge at the L4-5 level

Diastematomyelia - A congenital fissure of the spinal cord freguently associated with spinal bifida. Taber's Medical Dictionary (15th Ed., F.A. Davis, 1986) p. 459.

33 without evidence of definite disc herniation, spinal or foramina

stenosis (Tr. 287). The CT scan revealed minor annular bulge at

the L2-3 and L3-4 levels and a moderate annular bulge at the L4-5

level (Tr. 2 91).

The Physical Therapy Department at Concord Hospital did a

physical capacity examination on September 22, 1992 (Tr. 296-

299). Joann David, the physical therapist, noted obvious gait

deviations that included significant right lateral shift and

trunk list primarily to the right and uneven step length (Tr.

297). His lateral shift and list was extremely moderate in

degree with the plaintiff being unable to assume an upright

position (Tr. 297). However, in the supine position, the

plaintiff was able to assume a moderately improved erect position

with minor difficulty (Tr. 297). A weighted capacity evaluation

suggested an occasional ability to work at ten to fifteen pounds

which would be at the sedentary exertional level primarily (Tr.

298) . This sedentary work ability came with restrictions

involving no actual lifting lower than waist level with shoulder

to overhead limitations because of left shoulder flexibility

problems to ten pounds (Tr. 298).

34 A. M. Drukteinis, M.D., J.D., pursuant to an apparent

referral by Dr. Sachs, did a psychological back profile on the

plaintiff in September 1992 (Tr. 300). Dr. Drukteinis performed

seven psychological tests (Tr. 301-305). His conclusion from

these tests was that the plaintiff showed psycho-social variables

that carried a very poor prognosis (Tr. 301). Although the

results from the test showed only mild or insignificant

conditions (Tr. 301; cf 303-304) . He indicated that his

presentation of gross physical distortion was unusual, and

considering the duration of the symptoms, a bleak picture for

full rehabilitation was created (Tr. 301). He stated

psychological testing did not show marked somatization potential,

but several of the scales indicated factors of chronic pain

behavior and psychological conflict (Tr. 301).

In August 1992 the plaintiff was referred by Dr. Sachs to

Elliot Hospital Department of Rehabilitation Medicine for

physical therapy (Tr. 307). The plaintiff received physical

therapy from October 1992 until July 1993 (Tr. 309-337) . Jim

Kennett, PT reported to Dr. Sachs in January 1993 that the

plaintiff's posture was extremely side bent right lower thoracic

and lumbar spine with right shoulder lower, head and neck pulled

35 right and weight bearing right leg (Tr. 317). A cane was used to

maintain balance (Tr. 317). There was extreme tightness, all

musculature of back and hips (Tr. 317). The plaintiff was stuck

in right side bending and couldn't move from that position in any

direction (Tr. 317). He was able to ambulate with a straight

cane and a great deal of difficulty for a short period of time

(Tr. 318) . After treating the plaintiff twice a week, he seemed

to loosen up a little but was not able to maintain the changes

and thus there were no noted functional changes (Tr. 318).

Progress notes showed little change in the plaintiff's condition

throughout his treatment (Tr. 319-331).

In March, 1993, Kenneth Polivy, M.D., an orthopedic surgeon,

performed an examination on the plaintiff (Tr. 338-340) . Dr.

Polivy's impression was that the plaintiff suffered thoracolumbar

sprain causally related to his work injury in April 1991 (Tr.

340). Dr. Polivy could not find an orthopedic entity which

would explain the plaintiff's symptomatology (Tr. 340). From an

orthopedic stand-point he felt the plaintiff was capable of

returning to his prior work (Tr. 340). He felt that the

plaintiff's main problem was psychogenic in nature and that

36 underlying psychological factors appeared to be limiting his

response to objective improvement (Tr. 340).

In November, 1993, Larry Politz, M.D. performed a

psychiatric examination on the plaintiff at Social Security's

reguest (Tr. 368-371). Dr. Politz noted the plaintiff's awkward

crooked fashion of sitting and very awkward, distorted gait (Tr.

369-370). His impression was that the way the plaintiff handled

pain, distress, limitations, etc. most likely did affect his

presentation, his function and subjective experience of pain (Tr.

371). Dr. Politz found plaintiff had the ability to understand

tasks, remember and carry out instructions and respond

appropriately to supervision, co-workers and work pressures was

intact (Tr. 371). He also felt the plaintiff could manage his

own funds (Tr. 371) .

Ronald J. Aragona, D.C., Ph.D. began treating the plaintiff

in July 1993 and was treating the plaintiff at the time of the

hearing (Tr. 95, 342-391). In his initial office notes. Dr.

Aragona stated the plaintiff had gone through torment and agony

to a degree that he purchased a special brace for $2,300 and was

making regular payments on this expense (Tr. 342). He noted the

37 plaintiff had a 35 degree list to the right while sitting and

standing (Tr. 342). His examination revealed overt and massive

right occipitoatlantoaxial spasm, myalgic pain on light to

moderate palpation (Tr. 342). He diagnosed severe

spondylopathy7; suspect overt instability; abnormal anatomic

alignment relationships; cervical instability; mid/thoracic

severe instability; and possible low back discopathy (Tr. 344).

His impression from the x-rays was that they showed highly

unstable low back with severe anatomic/osseous factors of

vertebral subluxation misalignments (Tr. 346). "This patient is

overtly impaired as a result of his injury and demonstrates

severe instability, as aforementioned." (Tr. 346). In another

office note in July 1993 Dr. Aragona indicated it was his

understanding that on several occasions the plaintiff's right

palm actually bled from shearing stress applied on his cane (Tr.

348) .

In August 1993 Dr. Aragona wrote a letter to Attorney

Shaughnessy in which he stated the plaintiff most certainly

suffered from severe post-traumatic spondylopathy and that in

Spondylopathy - Any disease of the vertebrae or spinal column. Stedman's Medical Dictionary, 24th Edition (1982), p. 1322 .

38 treating over five thousand spinal cases in over twenty years,

the plaintiff's condition was certainly among the worst (Tr.

353-354). He also stated he had never seen a patient who had

endured so much pain for such a long period and who presented

such willingness to get well (Tr. 354). In spite of some

occasional asymptomatic periods following extended therapy, the

plaintiff was not considered to be stable and his prognosis was

guarded (Tr. 354-355). His spinal related impairments were

considered to be severe thus necessitating further

medical/chiropractic remedial therapy (contrary to the opinion of

an orthopedic doctor) (Tr. 356).

In March 1994, Dr. Aragona stated that due to the nature of

the plaintiff's impairments, he could not be gainfully employed

until significant resolve manifests (Tr. 367). In January 1995,

Dr. Aragona reported the plaintiff did not even have the

capacity to perform sedentary work (Tr. 386). He stated that the

plaintiff suffered from unusual failed back syndrome with

concomitant degenerative disc disease and disc space narrowing in

the lower lumbar spine, as well as thoracolumbar instability,

permanent gait abnormality, secondary to pelvic deformity and

severely weakened paraspinal supportive muscles which were

39 incapable of holding him in an upright position (Tr. 385).

Finally, Dr. Aragona provided a medical assessment to perform

work related activities (Tr. 387-391). He essentially limited

the plaintiff's functional capacity to less than the sedentary

exertional level and noted the plaintiff was very freguently in

tears because of severe paraspinal muscle spasms and that he

would become extremely depressed over his inability to be of any

physical use, not only in the job environment, but in his home

(Tr. 387-391) .

Anthony Salerni, M.D., a neurological surgeon, reported in

November 1994 that the plaintiff had experienced some improvement

in his condition after treatment from Dr. Aragona (Tr. 379). He

had been able to walk without a cane at that time and if he did

absolutely nothing and was straightened out, it could last up to

three days (Tr. 379).

B. Testimony At Hearing (January 9, 1995)

The plaintiff testified that he couldn't work because of his

back impairment which caused him to tilt to the right and

experience pain up his back (Tr. 95). He was taking Motrin 800

mg. which relieved his pain (Tr. 97-98) .

40 He often spent his afternoons lying down toobtain relief

from his pain (Tr. 99). He indicated he couldn't sit for long

periods without discomfort and shortly into the hearing had to

stand up to relieve the discomfort (Tr. 101-120) . Plaintiff

estimated he could only stand 15 minutes when ina tilted

position (Tr. 102), and about 20 minutes when hewasn't in a

tilted position (Tr. 102). He related he used up to two canes

for balance in the past but had recently tried to function

without a cane (Tr. 102-103). The pain would disturb his sleep

at night (Tr. 106). He was 5'6" and weighed 207 lbs. and

pursuant to doctor's recommendations had lost 35-40 pounds since

the date of his injury (Tr. 100). He performed exercises for his

back that were prescribed by Dr. Aragona (Tr. 99-100).

The plaintiff testified that he felt he could not work

because his walking and carrying were impaired and he didn't feel

he could drive a truck again (Tr. 103). He was capable of

driving his daughter to school but that was only 3 or 4 miles

(Tr. 103). His truck, driving job reguired him to lift more than

50 pounds (Tr. 105). His other job as a trimmer renovating auto

interiors reguired lifting and carrying which he felt he couldn't

do (Tr. 104-105) .

41 Plaintiff's activities included, in addition to driving his

daughter to school, sometimes visiting his friend Roger Levasseur

and helping his son with his car (Tr. 98, 104). If his back was

straightened, he tried to do a waltz at the social club he

belonged to although he hadn't danced a waltz in three months

(Tr. 98, 101). He apparently went to the social club on occasion

and sat and talked (Tr. 101).

Roger Levasseur, a friend of the plaintiff' since 1989 or

1990, testified that he worked with the plaintiff at Manchester

Transit (Tr. 110). He stated the plaintiff had no apparent back

problem prior to the injury he sustained in April, 1991 (Tr.

Ill). After the injury he indicated the plaintiff walked real

crooked (Tr. Ill). He had to have help walking and couldn't pick

up anything (Tr. Ill). Mr. Levasseur reported that he had helped

the plaintiff with chores around the house, did some remodeling

and helped him work on his motor vehicles (Tr. Ill). He also

drove the plaintiff to his medical appointments (Tr. 112-113).

His observation of the plaintiff's posture was that the plaintiff

would look straight for a couple days after visiting Dr. Aragona

but then he would start to lean over again (Tr. 112).

42 Richard Champagne, another friend of the plaintiff's,

testified that the plaintiff prior to his injury was an active

dancer at a country and western dance place but no longer was

able to participate as he did in the past (Tr. 114-115) .