Spears v . SSA CV-99-461-JD 07/20/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Donna Spears
v. Civil N o . 99-461-JD
Opinion N o . 2000 DNH 157
Kenneth Apfel, Commissioner
Social Security Administration
O R D E R
The plaintiff, Donna Spears, brings this action pursuant to
42 U.S.C.A. § 405(g), seeking review of the decision of the
Commissioner to deny her claim for social security benefits. A
previous decision, denying Spears benefits, was remanded to the
Administrative Law Judge (“ALJ”) for further consideration of the
evidence and specific findings at the third step of the
sequential evaluation process.1 The ALJ again denied her
1
The ALJ is required to make the following five inquiries
when determining if a claimant is disabled:
(1) whether the claimant is engaged in substantial
gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed
impairment;
(4) whether the impairment prevents the claimant from
performing past relevant work; and
(5) whether the impairment prevents the claimant from
doing any other work.
See 20 C.F.R. § 404.1520.
application for benefits, which became the decision of the
Commissioner pursuant to
20 C.F.R. §§ 404.984(d) and 416.1484(d).
Spears sought judicial review and moves to reverse the decision,
and the Commissioner moves to affirm.
Standard of Review
The court must uphold a final decision of the Commissioner
denying benefits unless the decision is based on legal or factual
error. See Manso-Pizarro v . Secretary of Health and Human
Servs., 76 F.3d 1 5 , 16 (1st Cir. 1996) (citing Sullivan v .
Hudson,
490 U.S. 877, 885 (1989)). The Commissioner’s factual
findings are conclusive if based on substantial evidence in the
record. See
42 U.S.C.A. § 405(g), § 1383(c)(3). Substantial
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v .
Perales,
402 U.S. 389, 401 (1971) (quotation omitted). The
Commissioner’s findings are not conclusive “when derived by
ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v . Chater,
172 F.3d 3 1 , 35 (1st
Cir. 1999). 2 In making the disability determination, “[i]t is
2
Because the regulations implementing the disability
standard for social security insurance benefits, Title I I , 42
U.S.C.A. § 423(d), and for supplemental security income, Title
XVI, 42 U.S.C.A. § 1382c(a), are the same in all relevant
2
the responsibility of the [Commissioner] to determine issues of
credibility and to draw inferences from the record evidence.”
Irlanda Ortiz v . Secretary of Health and Human Servs., 955 F.2d
765, 769 (1st Cir. 1991).
Background
Donna Spears previously worked as a clothing marker, coil
winder, and sales clerk, which all required work at the light
exertional level. In April of 1996, she applied for disability
insurance benefits and supplemental security income, alleging an
inability to work due to asthma and psoriasis since January of
1993 when she was thirty-three years old.3 The ALJ determined,
and Spears does not contest, that she met the insured status
requirements of Title II of the Social Security Act through June
3 0 , 1994. Her application was denied on March 2 7 , 1997,
following a hearing before the ALJ, and after remand, it was
respects, for simplicity, the Title II regulations in Part 404
will be cited for both. See Sullivan v . Zebdley, 493 U.S. 521,
526 n.3 (1990).
3
Title II of the Social Security Act provides for payment of
insurance benefits to applicants whose disability began within
the insured period, while Title XVI of the Act provides for the
payment of supplemental income to indigent persons who are
disabled without regard to insured status. See Bowen v . Yuckert,
482 U.S. 1 3 7 , 140 (1987).
3
denied a second time on June 2 5 , 1999, following a second
hearing.
The medical evidence in the record shows, and the ALJ found,
that Spears has severe impairments caused by asthma and
psoriasis. Spears was diagnosed with chronic sinusitis and nasal
polyps in August of 1992. She had recurrent breathing episodes
including wheezing and was treated in the emergency room in
February of 1994. Spears’s treating physician, D r . Gagne, began
to treat Spears for asthma in August of 1994.
Spears was treated in the emergency room just after midnight
on June 1 0 , 1995, for wheezing and difficulty exhaling and was
released after an hour. D r . Gagne examined her the next day and
provided additional nebulizer treatment. Spears experienced
wheezing symptoms on June 2 0 , 1995, and Dr. Gagne diagnosed acute
asthma on July 3 , 1995. She was again treated in the emergency
room on July 2 4 , 1995, and after two nebulizer treatments her
airflow increased and she was discharged. She continued to
experience wheezing. On September 2 4 , 1995, she returned to the
emergency room where she was diagnosed with an acute asthmatic
attack, acute sinusitis, and bronchitis. She received nebulizer
treatment and an anti-inflammatory medication, Solu-Medrol, was
administered intravenously. Spears was treated in the emergency
room due to wheezing in January, February, May, August, and
4
September of 1996. Each time she was given nebulizer treatments
and during the May treatment, Solu-Medrol was again administered
intravenously. The records from Spears’s February 1996 emergency
room treatment indicate that she was not taking the asthma
medication that had been prescribed for her.
Spears’s respiratory condition improved through 1997. No
further reports of emergency room treatments are included in the
record. On October 2 8 , 1998, Spears’s treating physician, Dr.
Byer, reported that her asthma was considered to be wellcontrolled by the prescribed medications.
Spears was seen by D r . Mittelman for a dermatology
consultation on January 3 , 1992. Following examination and
testing consistent with a diagnosis of psoriasis, Dr. Mittelman
began to treat Spears with ultraviolet therapy and then with
therapy that combined medication and ultraviolet light, known as
PUVA therapy. By July of 1992, he reported that her condition
had improved by more than ninety-five percent. Spears
experienced a skin condition in mid-July of 1992, which the
doctors thought was either viral or a reaction to medication,
that was treated topically for the next several months.
Dr. Mittelman examined Spears in March of 1993 and found
minimal psoriasis. He reinstituted PUVA therapy for psoriasis
and also instructed her to continue to use topical treatments.
5
By January of 1994, her condition had completely cleared, but she
was unable to continue with PUVA maintenance therapy because of
transportation problems. In June of 1994, Spears developed a
rash due to medication that Dr. Mittelman treated with topical
cream and instructed her to avoid sunlight for the next week. He
hoped to begin a PUVA maintenance program. By July of 1994, D r .
Mittelman reported that Spears had a reasonably good resolution
of her psoriasis with topical therapy although she still had
multiple “plaques” of psoriasis. Treatment with Methotrexate was
discontinued in November of 1994 due to Spears’s adverse reaction
including nausea.
Spears continued to receive topical treatment for psoriasis
with varying results. In February of 1995 she was happy with her
response although she still had a condition that involved her
entire scalp and moderate plaques over her trunk and extremities.
By June, her scalp was better and she had fewer plaques on her
extremities. By January of 1996, however, Dr. Mittelman saw
Spears for a dermatology consultation and found that her
psoriasis had become more widespread. He restarted Spears on
PUVA therapy. In June of 1996, Dr. Mittelman noted that Spears’s
psoriasis was worsening and that PUVA therapy was not a viable
option for her because of her problems with transportation. He
tried other treatments but noted in August only slow improvement
6
and that psoriatic plaques covered most of Spears’s body.
A medical consultant for the State Disability Determination
Service, Dr. Campbell, reviewed Spears’s medical records and
assessed her physical capabilities in a report dated June 6,
1996. Dr. Campbell found that Spears retained the functional
capacity to lift or carry ten pounds frequently and twenty pounds
occasionally. He wrote that she could walk, stand, or sit for up
to six hours in an eight hour work day but could only climb,
kneel, crouch, or crawl occasionally. He also recommended that
she avoid exposure to extreme heat and airborne irritants.
Dr. Gagne assessed the functional effects of Spears’s asthma
in January of 1997. He reported that asthma did not affect her
ability to lift or carry, to stand, walk, or sit or to perform
any postural activities. He recommended that she should avoid
temperature extremes, chemicals, dust, fumes, and humidity.
Also in January of 1997, D r . Mittelman wrote that Spears
could not work in a factory because of environmental irritants.
He thought she could work as a sales attendant or cashier
although her appearance might embarrass her. In October of 1997,
Dr. Danby wrote that Spears’s skin was too dry and flaky to
permit her to have contact with the public. He also said that
the nausea caused by Methotrexate would interfere with her
concentration and that the time required for transportation for
7
treatments would have an adverse impact on her ability to work.
By June of 1997, Dr. Mittelman reported that Spears was
responding very slowly to PUVA therapy. Although Dr. Mittelman
hoped for better results from therapy, he said that Spears was
unable to work at that time.
Spears began to treat with Dr. Danby for her skin conditions
in September of 1997. His records for the period between
September 9, 1997, and December 1 8 , 1998, indicate a variety of
treatments, and that Spears’s psoriasis was stable but remained
present. She was again being treated with injections of
Methotrexate that caused nausea.
On January 2 5 , 1999, Dr. Danby wrote that Spears’s psoriasis
condition was unpredictable. He said that she was treated weekly
when the condition was acute and every four to six weeks when she
was only in maintenance treatments. He also said that she
experienced symptoms of pain, dizziness, nausea, and fatigue
which would constantly interfere with her ability to pay
attention and to concentrate. He said that she could sit more
than two hours at a time, could sit for up to six hours in and
eight hour day, and could stand for up to four hours. Dr. Danby
indicated that Spears would need to shift positions at will and
would need breaks of about an hour and a half. He also said that
she would likely be absent from work about three times a month.
8
A hearing on Spears’s application was held on January 2 1 ,
1997, and after remand, a second hearing was held on January 2 0 ,
1999. Spears appeared and testified about her medical history,
her treatment, the side effects of her medications, her symptoms,
and her functional limitations. She testified that she was
essentially housebound during the summer and winter months due to
her asthma and arthritis triggered by her psoriasis. Catherine
Chandick, a vocational expert, was present and testified at the
1997 hearing. A vocational expert was also present at the 1999
hearing, but he did not testify.
The ALJ determined that Spears had severe impairments due to
asthma and psoriasis, but that neither met nor equalled the
listed impairments in the regulations, 20 C.F.R. Part 4 0 4 ,
Subpart P, Appendix 1 . The ALJ found that Spears retained the
residual functional capacity for light work that did not include
exposure to environmental or chemical irritants or temperature
extremes. As a result, the ALJ found that Spears was able to
return to her former work as a sales clerk.
Spears added new evidence to the record after the ALJ denied
her application in June of 1999, but she decided not to submit
her exceptions and the new evidence to the Appeals Council for
review. The circuits disagree, and the First Circuit has not
addressed the question, as to whether evidence submitted only to
9
the Appeals Council is to be considered as part of the
administrative record for judicial review. See Ward v .
Commissioner of Social Security, 211 F.3d 652, 657 n.2 (1st Cir.
2000). Since Spears did not seek review by the Appeals Council,
the new evidence was never considered at any level of
administrative review. For that reason, Spears’s new evidence
would not warrant review as part of the administrative record
even in the circuits where new evidence submitted to the Appeals
Council is considered. See O’Dell v . Shalala,
44 F.3d 855, 858-
59 (10th Cir. 1994); accord Perez v . Chater,
77 F.3d 4 1 , 45 (2d
Cir. 1996). Therefore, the new evidence Spears submitted after
the ALJ’s decision is not considered as part of the
administrative record for judicial review.
Discussion
Spears contends that the Commissioner’s decision denying her
benefits should be reversed because the ALJ erred in not finding
that her asthma met or equalled a listed condition and because
the record does not support the ALJ’s determination that she
retains the residual functional capacity to do her past relevant
work as a sales clerk. Spears challenges the ALJ’s determina-
tions at the third and fourth steps of the sequential analysis.
She bears the burden of showing that she was disabled by her
10
claimed impairment. See Santiago v . Secretary of Health and
Human Servs., 944 F.2d 1 , 5 (1st Cir. 1991); Dudley v . Secretary
of Health and Human Servs.,
816 F.2d 792, 793 (1st Cir. 1987).
A. Presumption of Disability Based on the Listing of Impairments
A claimant will be presumed to be disabled if her impairment
meets or equals the criteria of an impairment listed in 20 C.F.R.
404, Subpart P, Appendix 1 . See Bowen v . Yuckert, 482 U.S. 137,
141 (1987). Spears contends that her asthma meets or equals the
criteria for an impairment due to asthma attacks as listed at 20
C.F.R. Part 404, Subpart P, Appendix 1 , § 3.03B. Section 3.03(B)
lists asthma attacks as follows:
Attacks (as defined in 3.00C), in spite of prescribed
treatment and requiring physician intervention,
occurring at least once every 2 months or at least six
times a year. Each in-patient hospitalization for
longer than 24 hours for control of asthma counts as
two attacks, and an evaluation period of at least 12
consecutive months must be used to determine the
frequency of attacks.
Attacks of asthma are defined “as prolonged symptomatic episodes
lasting one or more days and requiring intensive treatment, such
as intravenous bronchodilator or antibiotic administration or
prolonged inhalational bronchodilator therapy in a hospital,
emergency room or equivalent setting.” 20 C.F.R. Part 4 0 4 ,
Subpart P, Appendix 1 , § 3.00C. The medical evidence of asthma
attacks “must also include information documenting adherence to a
11
prescribed regimen of treatment as well as a description of
physical signs. For asthma, the medical evidence should include
spirometric results obtained between attacks that document the
presence of baseline airflow obstruction.” Id.
Spears refers to asthma episodes in February of 1994, June
of 1995, July of 1995, September of 1995, January of 1996,
February of 1996, May of 1996, August of 1996, and September of
1996, but does not provide the exact dates of the episodes.
Spears offers little affirmative proof to show that she suffered
six asthma attacks, as defined in the regulation, during a
twelve-month period. With respect to the required length of the
attacks, she says that her attacks “presumably started before she
went to the hospital and her symptoms did not instantly subside
after she was treated there” and refers to records of her care
for asthma without any effort to correlate those records with
specific asthma episodes. She also cites transcript pages for
references that she was “administered therapy treatments” without
any discussion of what kind of treatments she received or whether
those references are intended to correlate with the particular
asthma attacks in the cited months and years. In particular,
Spears has not shown, or even argued, that the nebulizer
treatments she received meet or equal the requirement in § 3.03B
for “prolonged inhalational bronchodilator therapy.”
12
Spears cites no other episode within twelve months of the
February 1994 episode, and that episode alone does not meet or
equal a listed impairment. Since Spears’s insured status expired
on June 3 0 , 1994, she cannot establish a disability for purposes
of Title II benefits based on asthma episodes that occurred after
her insured status expired. See 42 U.S.C.A. § 423. Her insured
status does not affect her claim for Title XVI benefits so that
the remaining episodes are considered in that context.
Several of the episodes cited by Spears appear not to
qualify as attacks under the requirements of § 3.03B and § 3.00C.
Spears was treated in the emergency room in the early morning of
June 1 0 , 1995, after waking up with wheezing and difficulty
breathing. She was given respiratory treatment with a nebulizer
and was released after about an hour with improved respiratory
flow, breathing more easily and feeling better. Dr. Gagne’s
examination note for later on June 10 indicates that Spears
continued to have wheezing but that she was breathing fairly
well, had no respiratory distress, and was conversing easily.
After a nebulizer treatment in the office, Spears had no
wheezing. The short nebulizer treatments she received on June 10
would not appear to constitute “prolonged inhalational
bronchodilator therapy,” and the episode did not last one or more
days as required by § 3.03C.
13
Spears’s episodes in July and September of 1995 followed a
similar pattern. In July, she received two short nebulizer
treatments at the emergency room that improved her breathing
although she continued to have faint wheezing. She was treated
and released in a period of less than two hours. She saw Dr.
Gagne the next day. Dr. Gagne noted that she had poor air
movement and wheezing, but Spears declined nebulizer treatment.
Similarly, the episodes in January, August, and September of 1996
were treated in three hours or less, and the symptoms do not
appear to have lasted for a full day or longer.
In February of 1996, the hospital staff noted that she was
not taking medication that was prescribed to treat her asthma,
which would preclude that episode from meeting the listing
requirements. No episodes are reported after September of 1996.
Since Spears has not shown that all of the asthma episodes she
experienced between June of 1995 and September of 1996 met or
equalled the requirements of § 3.03B, she has not carried her
burden of showing that she was disabled due to a listed
impairment. The ALJ’s determination was therefore not erroneous.
B. Residual Functional Capacity to Return to Past Work
The ALJ found that despite her psoriasis and asthma, Spears
14
retained the residual functional capacity to do light work,
including standing for six hours in an eight-hour day, with
certain environmental limitations. He also found that her past
relevant work as a sales clerk was not precluded by her
limitations. Based on those findings, the ALJ determined at step
four of the sequential analysis that Spears was not disabled.
Spears challenges the ALJ’s findings on the grounds that the
ALJ failed to give proper weight to the opinions of her treating
doctors, Dr. Mittelman and Dr. Danby, and to her own testimony
with respect to the severity of her psoriasis and the effects of
the disease and treatment on her ability to work. Spears
contends that the ALJ failed to properly consider the limitations
caused by her psoriasis and the related treatments that were
documented in her medical records and described in her own
testimony about her daily activities. As a result, she argues,
the ALJ erroneously found she retained the residual functional
capacity to return to her past work.
As noted previously, Spears seeks both Title II disability
insurance benefits and Title XVI supplemental security income,
and her insured status for purposes of Title II benefits expired
on June 3 0 , 1994. Spears has not focused on the extent of her
disability during her insured status. Only one documented
treatment for asthma occurred during that period. The medical
15
evidence indicates that Spears’s psoriasis condition was
minimally pruritic in March of 1993, and after treatments, had
completely cleared by January of 1994. Since Spears has not
shown that her doctors’ opinions or other evidence indicate that
she was disabled prior to June 3 0 , 1994, the ALJ’s determination
as to Title II benefits is affirmed. The remaining record is
considered with respect to Spears’s claim for benefits under
Title XVI.
As of January of 1997, D r . Mittelman reported that Spears
would be able to work as a sales attendant or a cashier, despite
her psoriasis, although the condition might be embarrassing to
her. Also in January of 1997, Dr. Gagne assessed the effects of
Spears’s asthma on her functional capacity and reported that she
had no exertional or postural limitations and required only
environmental restrictions. At the hearing held on January 2 1 ,
1997, the ALJ gave a hypothetical based on an ability to do light
work with environmental restrictions and the vocational expert
advised that Spears could return to her previous work as a sales
attendant or sales clerk, a coil winder, and a marking machine
operator. In response to Spears’s counsel’s added limitation
that she could not stand for prolonged periods, the vocational
expert eliminated the sales position. Therefore, as of January
of 1997, the evidence supports a conclusion that Spears was able
16
to do her prior work and was not disabled.
In June of 1997, however, Dr. Mittelman noted that Spears
had widespread psoriasis that was responding very slowly to
treatment. He said that he thought she was unable to do any
work. Her psoriasis continued, and when Dr. Danby began
treatment in September of 1997, he changed her therapy to include
Methotrexate. Dr. Mittelman had previously tried Methotrexate
and discontinued its use do to the adverse side effects including
nausea. Dr. Danby noted in October of 1997 that the Methotrexate
made Spears sufficiently nauseated that she would not be able to
concentrate on work and that the time required for other
treatments would adversely affect her ability to work. Dr. Danby
gave the same opinion in January of 1999. Dr. Danby indicated on
the form completed on January 2 5 , 1999, that Spears could stand
for about four hours and sit for six hours in an eight hour day
and would need rest periods during the work day of one and one
half hours.4 Dr. Danby also indicated that she would be likely
to be absent more than three times a month.
Despite the doctors’ opinions about Spears’s condition and
4
Dr. Danby provides no medical reasons why Spears’s ability
to stand is limited or why he believes she would require an hour
and a half of rest each work day. Since the joint statement of
material facts does not include any facts as to psoriatic
arthritis, Spears’s argument that arthritis limits her ability to
stand is not supported by the record.
17
the adverse effects of her treatment after June of 1997 and her
own testimony about the time and effects of her treatment, the
ALJ disagreed with Dr. Danby’s assessment and relied on Dr.
Mittelman’s earlier opinion given in January of 1997. The ALJ’s
reasons for discounting Dr. Danby’s opinion do not follow the
analysis required in 20 C.F.R. § 416.927. In particular, the ALJ
gave no reason not to consider the time required for treatment
and side effects of the medication being used for Spears’s
psoriasis. See § 416.929(e)(3).
Most glaring, however, is the ALJ’s erroneous statement on
page six of his determination. The ALJ wrote: “Given the
description of the claimant’s past relevant work as a sales
clerk, Howard Steinberg, the vocational expert who testified at
the hearing, stated that the claimant’s maximum sustained
residual functional capacity fully conforms to the exertional and
nonexertional demands associated with this past work activity.”
(Emphasis added.) While Steinberg apparently attended the
hearing held on January 2 0 , 1999, he did not testify. The ALJ
may have mistakenly referred to Steinberg while meaning Chandick,
who testified at the 1997 hearing. Since Chandick was not given
an opportunity to consider the limitations caused by the side
effects of medicine and the time required for treatment that are
part of Dr. Danby’s opinion, her opinion is not based on an
18
accurate hypothetical question and does not constitute
substantial evidence in support of the ALJ’s determination. See
Marcotte v . Callahan, 992 F. Supp. 485, 493 (D.N.H. 1997) (citing
Arocho v . Secretary of Health and Human Servs.,
670 F.2d 374, 375
(1st Cir. 1982)); see also Herron v . Shalala,
19 F.3d 329, 337
(7th Cir. 1994).
Dr. Danby’s opinions provide evidence that Spears’s residual
functional capacity was reduced by the side effects of her
treatments for psoriasis after October of 1997. By January of
1999, Dr. Danby had been Spears’s treating physician for a year
and a half, and his opinion as to the side effects of Spears’s
treatment are consistent with her medical records, including D r .
Mittelman’s records. See 20 C.F.R. § 416.927(d). Since a
vocational expert has not considered the availability of jobs
Spears could perform with the added limitations caused by adverse
side effects and time for treatments, there is no evidence as to
whether she could still perform her previous work or whether, at
step five, there is other work she could perform. Therefore, the
case must be remanded, once again, for further proceedings on her
claim for Title XVI benefits, to resolve whether Spears was
disabled due to the side effects of her treatments for psoriasis
after October of 1997.
19
Conclusion
For the foregoing reasons, the Commissioner’s motion to
affirm (document n o . 11) is granted as to the claimant’s claim
for Title II benefits, but is denied as to her claim for Title
XVI benefits. The claimant’s motion to reverse (document n o . 10)
is granted in that the decision of the Commissioner as to her
claim for Title XVI benefits is vacated, and the case is remanded
pursuant to sentence four of § 405(g) for further proceedings.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
July 2 0 , 2000
cc: Raymond J. Kelly, Esquire
David L. Broderick, Esquire
20
