Stanley v. SSA CV-00-577-JD 07/31/01
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Cindy L. Stanley
v. Civil No. 00-577-JD
Opinion No. 2001 DNH 136
Larry G. Massanari,
Acting Commissioner
of Social Security
O R D E R
The plaintiff, Cindy L. Stanley, brings this action pursuant
to 42 U.S.C.A. § 405(g) seeking judicial review of the decision
by the Acting Commissioner of the Social Security Administration
denying her application for social security benefits. Stanley,
who alleges a disability due to problems with her back and
depression, contends that the Administrative Law Judge ("ALJ")
failed to properly assess her subjective complaints of pain,
erred in failing to include her mental limitations and other
restrictions in the hypothetical question posed to the vocational
expert at the hearing, and erred in concluding that she was
capable of doing full-time work. The Acting Commissioner moves
to affirm the decision.
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. Sec'v of Health and Human Servs., 76
F.3d 15, 16 (1st Cir. 1996) (citing Sullivan v. Hudson,
490 U.S.
877, 885 (1989)). The court's "review is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence." Nguyen v. Chafer,
172 F.3d 31, 35 (1st Cir. 1999). The Commissioner's factual
findings are conclusive if based on substantial evidence in the
record. See
42 U.S.C.A. § 405(g). 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) (internal quotation omitted).
Background
Cindy L. Stanley filed her application for social security
benefits in August of 1997, alleging a disability since June 30,
1996, due to problems with her back. She later alleged
depression as an additional impairment. Stanley was thirty-two
years old when she applied for benefits and had an eleventh-grade
education. She had past relevant work as a nursing assistant, a
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fast food worker, and an assembler.
A. Back Injuries and Pain
Stanley was treated for back injuries and pain, beginning in
1987. By March of 1996, Stanley was only working four hours a
day. Her treating orthopedic surgeon. Dr. Hoke Shirley ordered
an MRI scan that indicated a disc bulge at L4-5 without
herniation, impairment of neural elements, or evidence of spinal
stenosis. On Dr. Shirley's recommendation, Stanley continued
part-time light-duty work until July of 1996, when Dr. Shirley
indicated that she was unable to work at all.
Between July and October of 1996, Stanley also received
physical therapy at Concord Hospital. By the end of September of
1996, the physical therapist told her she was able to return to
part-time work. She was told to wear a sacroilic belt and to use
a corset and a cane as needed.
Stanley was examined by Dr. John Richey on August 1, 1996.
Dr. Richey found a good range of motion in her neck and arms and
normal reflexes and gait. Based on straight leg raising tests.
Dr. Richey thought Stanley showed symptoms of radicular pain on
the right, despite the unremarkable MRI, and he treated her with
an epidural injection of Depo-Medrol. The injection was repeated
on September 18, 1996. On September 30, while Stanley reported
no change in her condition. Dr. Richey found that she was able to
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walk fairly well without her cane, with no obvious limp and with
normal flexion, although she remained depressed. A right
sacroiliac joint injection and a right L5-S1 facet injection on
October 3, 1996, provided almost complete relief from pain.
Stanley continued to take Flexeril and Ultram as needed for pain.
Dr. Shirley noted in his records on November 22, 1996, that
Shirley started working at Burger King. She told him that the
job might not work out because she was required to lift fifty
pounds on a regular basis. Dr. Shirley recommended vocational
counseling to help her find more suitable work and limited her to
working part time.
Stanley reported radiating pain in her right lower back
during an appointment with Dr. Richey on January 22, 1997. Dr.
Richey diagnosed a recurrence of right sacroiliac joint pain and
arranged for a right sacroiliac joint injection. The injection
was done on January 24, 1997, and Stanley reported a decrease in
her level of pain.
Stanley apparently moved to North Carolina during the spring
or summer of 1997. On September 8, 1997, Stanley was evaluated
by Dr. Frank Woriax for North Carolina Disability Determination
Services. A funduscopic examination showed flat discs with no
hemorrhage or exudate. Dr. Woriax noted that Stanley used a cane
for balance and that she had tinel, a tingling sensation, on her
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right side. Her neurological examination and her gait were both
normal. He diagnosed chronic back pain.
On October 2 , 1997, a state medical consultant completed a
residual functional capacity assessment form based on Stanley's
records. The doctor found that Stanley could lift fifty pounds
occasionally and twenty-five pounds frequently and that she could
stand, walk, and sit for about six hours in an eight hour day.
He found that she had limited push/pull capacity in her legs.
On June 22, 1998, Stanley began treating with Dr. Debora
Tallio in Lumberton, North Carolina. Stanley complained of pain
in her right lower back, buttocks, and thigh that ranged from a
level of four to nine and increased with activity. Dr. Tallio
noted that Stanley showed no acute distress and had exaggerated
pain responses to any movement including light palpation during
examination of her back. The pain response increased with
forward flexion and right lateral bending.
Dr. Tallio concluded that Stanley had chronic pain and that
it might be impossible to determine the source although her
history and examination were suspicious for chronic right L5
radiculitis. Dr. Tallio referred Stanley for a right L5-S1 facet
injection on July 10, 1998, which reduced her pain by four or
five levels for one to two weeks. Dr. Tallio noted that although
Stanley's physical therapist reported Stanley was making
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progress, Stanley would not admit it.
B. Depression
By May of 1996, Dr. Hoke Shirley's medical notes indicate
that Stanley was taking the medications Zoloft and Klonopin to
help manage depression. On August 16, 1996, Stanley was seen by
Dr. Peter Kelly, a psychologist, who diagnosed dysthymia,
borderline personality disorder, neck and lower back injury,
chronic pain and financial distress, and a global assessment of
functioning level ("GAF") of forty. A GAF level of forty
indicates some impairment in reality testing or communication or
a major impairment in several areas such as work or school,
family relations, judgment, thinking, or mood. Stanley treated
with Dr. Kelly for five sessions and then discontinued therapy.
A Disability Determination Service psychological consultant
completed a Psychiatric Review Technique form on October 1, 1997.
On the form, the consultant indicated that Stanley suffered from
an affective disorder characterized by depression secondary to
pain. He said that the disorder caused a slight limitation in
her daily living activities and in maintaining social functioning
and that the disorder often caused deficiencies of concentration,
persistence, or pace, resulting in her failure to complete tasks
in a timely manner. The consultant also completed a Mental
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Functional Capacity Assessment in which he stated that Stanley
was moderately limited in her ability to maintain attention and
concentration, perform activities within a schedule, and complete
a normal workday and work week due to lack of motivation and lack
of energy during times of depression. He further stated that
Stanley was able to handle household chores and that she would be
able to perform simple repetitive tasks in a non-production
oriented workplace. On January 21, 1998, another disability
determination service psychological consultant completed a
Psychiatric Review Technique form in which he indicated that he
found no current evidence of a mental impairment.
Stanley was evaluated by Dr. Eugene Lawlor, a psychiatrist,
on Feburary 12, 1998, who diagnosed dysthymia, past history of
substance abuse, bipolar features, and mixed passive dependent
and passive aggressive, noting that he must rule out borderline
personality disorder. Dr. Lawlor prescribed an antidepressant
medication. He saw Stanley again on March 24, 1998, when she
reported no difference and he added medication for the treatment
of manic episodes associated with bipolar disorder. On April 21,
1998, Stanley continued to report no difference and appeared to
be somewhat depressed. Dr. Lawlor discontinued the medication
for bipolar disorder and prescribed Lithium. By September 14,
1998, Dr. Lawlor reported that Stanley appeared to be stable.
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that her affect was better, and that she appeared to be in
control.
C. Hearing
Stanley appeared and was represented by counsel at the
hearing before the ALJ held in Lumberton, North Carolina, on
December 10, 1998. Stanley testified about her educational level
and her ability to read, her past work, and her daily activities.
She said that she could take care of her own personal needs and
that she could cook, wash dishes, do laundry, and clean although
she had to work slowly and take frequent breaks. She also said
that she could drive and go grocery shopping with her husband
pushing the cart.
Stanley described her pain as a constant sharp pain in her
back that sometimes extended down her right leg, typically at a
level of seven on a ten point scale. She said that the pain
caused difficulty in sleeping, that she could sit, stand, or walk
for only ten to fifteen minutes at a time, that she was unable to
bend, squat, or lift more than ten pounds on a regular basis.
She testified that she was taking Flexeril, Norpam, Baclofen, and
eight Tylenol a day. She also said that she had used a cane
since 1995.
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She described her depression as causing her to cry a lot and
to have outbursts of rage at her husband. She said that she had
trouble following television programs and remembering what she
had read. She testified that she took Nortriptyline and
Lithotabs.
A vocational expert also testified at the hearing. Assuming
a residual functional capacity for light and sedentary work not
involving climbing, repetitive bending, stooping, or twisting of
the upper body, with simple instructions and a sit/stand option,
the vocational expert testified that there were jobs in the
national and local economies that Stanley could do. If other
restrictions and limitations were added to allow her to lie down
for thirty minutes twice a day, the vocational expert testified
that the identified positions would not be appropriate if the
rests were for more than a few moments and could not be done
during regular work-shift breaks. If a GAF level of forty were
included in the description, the vocational expert testified that
the identified jobs would be inappropriate.
D. Decision
The ALJ issued his decision on March 5, 1999. He found that
Stanley last engaged in substantial gainful activity on December
31, 1996, and that her back problems and depression were severe
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impairments. He found that despite being severe, the impairments
did not meet or equal a listed impairment. The ALJ also found
that Stanley could not return to any of her past relevant work.
On the Psychiatric Review Technique Form, which is appended to
his decision, the ALJ found that Stanley had affective disorders
due to situational depression which would often cause
deficiencies of concentration, persistence, or pace resulting in
her failure to complete tasks in a timely manner. Based on the
vocational expert's testimony and his own assessment of Stanley's
credibility, however, the ALJ determined that Stanley was not
disabled.
E. Additional Evidence
After the ALJ rejected her application, Stanley appealed to
the Appeals Council and submitted additional evidence that had
not been submitted to the ALJ. The First Circuit has recently
held that the ALJ's decision is to be reviewed based only on the
evidence presented to the ALJ. See Mills v. Apfel, 244 F.3d 1, 5
(1st Cir. 2001). Since Stanley seeks review of the ALJ's
decision, not the decision of the Appeals Council, the additional
evidence will not be considered here. See
id.
Discussion
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Stanley challenges the ALJ's determination that she is not
disabled. She argues that the ALJ improperly failed to fully
credit her subjective complaints of back pain, failed to consider
the effect of her GAF score, failed to include in the
hypothetical to the vocational expert certain exertional and
nonexertional limitations including that due to her depression
she would often experience deficiencies in concentration,
persistence, and pace, and erred in concluding that her residual
functional capacity permitted her to perform full-time work.
Because the ALJ's failure to include Stanley's mental limitation
in his hypothetical to the vocational expert requires that the
case be remanded, it is not necessary to review the other issues
raised for review.
Stanley's application was denied at step five of the
sequential evaluation process set forth in 20 C.F.R. § 404.1520.1
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.
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At the fifth step, the Commissioner has the burden to show that
despite the claimant's severe impairment, she retained the
residual functional capacity to do work other than her prior work
during the covered period and that work the claimant can do
exists in significant numbers in the relevant economies. See
Heggartv v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). The
Commissioner can satisfy the burden of proof at the fifth step by
relying on the opinion of a vocational expert given in response
to a hypothetical question that encompasses the claimant's
functional limitations. See Rose v. Shalala,
34 F.3d 13, 19 (1st
Cir. 1994); Arocho v. Sec'v of Health & Human Servs.,
670 F.2d
374, 375 (1st Cir. 1982) .
In Stanley's case, the ALJ did not include in the
hypothetical to the vocational expert the limitation, which the
ALJ found, that Stanley's depression would often cause her to
have deficiencies in concentration, persistence, and pace
resulting in her failure to complete tasks in a timely manner.
Instead, the hypothetical posed to the vocational expert included
a limitation that Stanley would need a job that had simple
instructions. When Stanley's counsel asked the vocational expert
what effect Stanley's GAF level of 40 would have on available
See 20 C.F.R. § 404.1520.
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jobs, the expert answered that none of the jobs he had found
would be appropriate with a GAF level of 40.
This court and other courts have determined that when an ALJ
has found on a Psychiatric Technique Review Form that a claimant
"often" has deficiencies of concentration, persistence, or pace,
the hypothetical posed to the vocational expert must adequately
describe that limitation in order for the opinion to constitute
substantial evidence. See, e.g..Weaver v. Massanari, 2001 DNH
088, Civ. No. 00-347-JD (D.N.H. May 10, 2001); Brachtel v.
Apfe1 ,
132 F.3d 417, 421 (8th Cir. 1997); Green v. Comm'r of Soc.
Sec.,
2001 WL 364921, at *5 (E.D. La. Apr. 10, 2001); Elswick v.
Apfe1 ,
109 F. Supp. 2d 476, 481 (S.D. W.Va. 2000); Macieiewski v.
Apfel,
2000 WL 1788437, at *9 (N.D. 111. Dec. 5, 2000). In this
case, the limitation included in the hypothetical, that Stanley
would need a job with simple instructions, did not adequately
describe that she would often have deficiencies in concentration,
persistence, or pace resulting in her failure to complete tasks
in a timely manner. C f . Hollins v. Apfel,
2001 WL 322629, at *5-
6 (S.D. Ohio Mar. 12, 2001) (finding extensive description of
limitation adequate).
Since the hypothetical to the vocational expert in this
case did not include the concentration limitation found by the
ALJ, the vocational expert's opinion as to available jobs that
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Stanley could perform is not substantial evidence. Therefore,
the Commissioner has not carried his burden of showing that his
decision is based on substantial evidence in the record. The
decision of the Commissioner is reversed, and the case is
remanded for further proceedings that are not inconsistent with
this opinion.
Conclusion
For the foregoing reasons, the claimant's motion to reverse
(document no. 7) is granted to the extent that the Commissioner's
decision is reversed and the case is remanded for further
administrative proceedings. The Commissioner's motion to affirm
(document no. 8) is denied.
Since this is a "sentence four" remand, the clerk of court
shall enter judgment accordingly and close the case.
SO ORDERED.
Joseph A. DiClerico, Jr.
District Judge
July 31, 2001
cc: Raymond J. Kelly, Esquire
David L. Broderick, Esquire
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