Brown v. SSA

Brown v . SSA                           CV-00-102-JD   12/22/00
                UNITED STATES DISTRICT COURT FOR THE
                      DISTRICT OF NEW HAMPSHIRE


Larrie Brown

     v.                             Civil N o . 00-102-JD
                                    Opinion N o . 

Kenneth S . Apfel, Commissioner
Social Security Administration


                             O R D E R


     The plaintiff, Larrie Brown, brings this action pursuant to

(g) seeking review of the decision of the
Commissioner to deny his claim for Title II social security
benefits.   Brown challenges the Commissioner’s decision,
contending that the Administrative Law Judge (“ALJ”) failed to
properly assess his subjective complaints of pain and that
substantial evidence does not exist in the record to support the
ALJ’s decision.    Brown moves to reverse the Commissioner’s
decision and to remand the case, and the Commissioner moves to
affirm.



                             Discussion

     Larrie Brown applied for social security disability benefits

in April of 1996, alleging an inability to work since October of

1995, due to a back condition.    Specifically, the medical

evidence in the record shows that Brown had a posterior disc
protrusion at L4-5 and L5-S1, spinal stenosis at L3-5, and
significant midline disc protrusion at L5-S1.   He underwent back
surgery, a laminectomy at L-3 and L-4 with bilateral
foraminotomies, in March of 1996. Brown’s condition improved
after surgery, but he continued to experience neck pain and
symptoms in his arms and hands. By November of 1997, Brown’s
neurologist reported that Brown’s back condition, neck condition,
pain, and radicular symptoms into his arms and hands caused him
to have a moderate to severe permanent impairment that would
prevent him from doing any employment that required physical
exertion.1

     After a hearing held in November of 1997, the ALJ issued a
decision on December 5 , 1997, finding that Brown “has severe
degenerative disc disease of the spine” and that he was not able
to return to his previous work as a pile driver attendant and
truck driver.   The ALJ determined that Brown remained able to do
work at a light exertional level and did not credit Brown’s
statements about the level of his impairment due to pain.     Based


     1
      The additional medical evidence was submitted only to the
Appeals Council, which denied review, and pertains to treatment
after the date of the ALJ’s decision. Therefore, the additional
medical evidence is not material to the time period in question
here. See 

(b); Bergmann v . Apfel, 

 (8th Cir. 2000); Schaal v . Apfel, 

, 505
n.8 (2d Cir. 1998).

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on the testimony of a vocational expert and the MedicalVocational Guidelines, 20 C.F.R. Part 4 0 4 , Subpart P, Appendix 2 ,
the ALJ concluded that Brown was not disabled.
     When a claimant alleges disability due to pain, in assessing
the claimant’s residual functional capacity, the ALJ must first
determine whether the claimant has a medically determinable
impairment that is reasonably likely to produce the pain claimed.
See 

(a) and ( b ) ; Nguyen v . Chater, 

 1 , 34 (1st Cir. 1999).   If s o , the ALJ must assess the severity
of the pain and the extent to which pain impedes the claimant’s
ability to work by considering all of the pertinent evidence of
record including “claimant’s statements, opinions of treating
physicians, reports of claimant’s activities and claimant’s
course of treatment.”   Id.; see also DaRosa v . Secretary of Heath
& Human Servs., 

 4 , 25-26 (1st Cir. 1986).
“[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 & Human Servs., 

 (1st Cir. 1989).

     Once again, the ALJ’s analysis of the claimant’s subjective
complaints of pain is insufficient to allow a meaningful review
by the court. See, e.g., Lovely v . Apfel, 

, *4
(D.N.H. Oct. 2 0 , 2000); Machos v . Apfel, 

, *5

                                   3
(D.N.H. June 1 5 , 2000); Blake v . Apfel, 

, *6
(D.N.H. Jan. 2 8 , 2000).   As the court has repeatedly explained, a
recitation of the standard with little or no discussion of the
facts of the case, in the context of the pertinent factors, is
insufficient and is not acceptable. See 

     To have this
situation recurring unnecessarily wastes the resources of the
litigants and this court. In addition, the ALJ in this case
appears to have misunderstood pertinent facts, such as the
medications that Brown had taken and was taking to treat his
pain.

     Because the ALJ failed to apply the appropriate standard in

assessing the credibility of Brown’s statements about the extent

of his impairment, the ALJ’s finding as to Brown’s credibility is

not conclusive. See Nguyen, 172 F.3d at 3 5 . The Commissioner’s

decision that Brown was not disabled depends heavily on the ALJ’s

finding as to Brown’s level of pain and impairment due to pain.

Therefore, the Commissioner’s decision that Brown is not disabled

must be vacated and the case remanded for further proceedings.

See DaRosa, 803 F.2d at 2 6 .



                                Conclusion

     For the foregoing reasons, the plaintiff’s motion to reverse

and remand the Commissioner’s decision (document n o . 6 ) is

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granted.   The Commissioner’s motion to affirm the decision
(document n o . 8 ) is denied.   The decision of the Commissioner is
reversed and remanded for further proceedings. As this is a
“sentence four” remand, the clerk of court shall enter judgment
accordingly and close the case.
      SO ORDERED.



                                        Joseph A . DiClerico, J r .
                                        District Judge
December 2 2 , 2000

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




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