Guziewicz v . SSA 10-CV-310-SM 1/14/11
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Roman Z. Guziewicz,
Claimant
v. Case N o . 10-cv-310-SM
Opinion N o . 2011 DNH 010
Michael J. Astrue, Commissioner
Social Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), Roman Z. Guziewicz moves to
reverse the Commissioner’s decision denying his application for
Social Security disability insurance benefits under Title II of
the Social Security Act,
42 U.S.C. § 423. The Commissioner, in
turn, moves for an order affirming his decision. For the reasons
given below, the matter is remanded to the Administrative Law
Judge (“ALJ”) for further proceedings consistent with this
opinion.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . .
42 U.S.C. § 405(g). However, the court “must uphold a denial of
social security disability benefits unless ‘the [Commissioner]
has committed a legal or factual error in evaluating a particular
claim.’ ” Manso-Pizarro v . Sec’y of HHS,
76 F.3d 1 5 , 16 (1st
Cir. 1996) (quoting Sullivan v . Hudson,
490 U.S. 877, 885
(1989)).
As for the statutory requirement that the Commissioner’s
findings of fact be supported by substantial evidence, “[t]he
substantial evidence test applies not only to findings of basic
evidentiary facts, but also to inferences and conclusions drawn
from such facts.” Alexandrou v . Sullivan, 764 F. Supp. 916, 917-
18 (S.D.N.Y. 1991) (citing Levine v . Gardner,
360 F.2d 727, 730
(2d Cir. 1966)). In turn, “[s]ubstantial evidence is ‘more than
[a] mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’ ” Currier v . Sec’y of HEW,
612 F.2d 594, 597 (1st
Cir. 1980) (quoting Richardson v . Perales,
402 U.S. 389, 401
(1971)). Finally, when determining whether a decision of the
Commissioner is supported by substantial evidence, the court must
“review[] the evidence in the record as a whole.” Irlanda Ortiz
2
v . Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting
Rodriguez v . Sec’y of HHS,
647 F.2d 218, 222 (1st Cir. 1981)). 1
Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 1 0 ) . That statement is part of the court’s
record and will be summarized here, rather than repeated in full.
Other facts of record will be discussed only as necessary.
Guziewicz injured himself on September 3 0 , 2007, while
lifting a ladder from a truck. That injury resulted in both back
and leg pain. Shortly after he was injured, Guziewicz was
diagnosed with “degenerative disc disease in his lumbar spine
that included focal right paracentral disc extrusion extending
cephalad at L3-L4, mild left paracentral disc protrusion at L4-
L 5 , and no evidence of recurrent or residual disc protrusion at
L5-S1.” (Jt. Statement, at 2.) Guziewicz has received various
forms of treatment for his condition, including medication
(Tylenol, anti-inflammatories, Percoset, Neurontin, ibuprofen,
1
“It is the responsibility of the [Commissioner] to
determine issues of credibility and to draw inferences from the
record evidence. Indeed, the resolution of conflicts in the
evidence is for the [Commissioner], not the courts.” Irlanda
Ortiz, 955 F.2d at 769 (citations omitted). Moreover, the court
“must uphold the [Commissioner’s] conclusion, even if the record
arguably could justify a different conclusion, so long as it is
supported by substantial evidence.” Tsarelka v . Sec’y of HHS,
842 F.2d 529, 535 (1st Cir. 1988).
3
acetaminophen, Oxycontin, Tramadol), two epidural steroid
injections, a right L3-L4 discectomy (performed on March 5 ,
2008), outpatient physical therapy, pool therapy, and use of a
TENS device.
In a New Hampshire Workers Compensation Medical Form dated
January 1 0 , 2008, Dr. Rowland Hazard opined that Guziewicz had no
work capacity. (Tr. at 235.) Another such form, dated January
7 , 2010, but bearing an illegible signature, reaches the same
conclusion. (Tr. at 232.)) On May 2 7 , 2008, a non-physician
medical consultant completed a Residual Functional Capacity
Assessment in which she determined that Guziewicz was able t o :
(1) lift twenty pounds occasionally and ten pounds frequently;
(2) stand and walk (with normal breaks) for a total of about six
hours in an eight-hour workday; (3) sit (with normal breaks) for
a total of about six hours in an eight-hour workday; and (4) push
and/or pull without limitation. (Tr. at 128.) The medical
consultant also determined that Guziewicz could occasionally
climb (ramps/stairs and ladder/rope/scaffolds), balance, stoop,
kneel, crouch, and crawl. (Tr. at 129.) On July 2 2 , 2008,
physical therapist Eric Hartman completed a functional assessment
4
in which he determined that Guziewicz had a “Current Capacity /
Physical Demand Level” of “Light.”2 (Tr. at 193.)
At the time he was injured, Guziewicz was working as a cable
television installer. He has not returned to that job. In
September of 2008, he attempted to work as a volunteer teacher’s
aid, for four hours a day, five days a week. He says he had to
give up that position because he was unable to tolerate the
amount of standing and walking that was required, could not
function properly in the classroom while medicated, and could not
obtain the credentials he needed for the job because his pain
prevented him from sitting through the necessary classes.
At his hearing before the ALJ, Guziewicz testified that in a
typical day, he helps his wife get their three children ready for
school, drives them to school, and picks them up each day, making
two trips to take them, and two trips to pick them up. He also
testified that when he brings the youngest child home, he
prepares his lunch, and when be brings the two older children
2
By way of explanation, Hartman’s functional assessment
form explains that “[l]ight work as defined by the U.S.
Department of Employment and Training Administration requires
lifting no more than 20 lbs. on an occasional basis or up to 10
lbws on a more frequent basis. Typical energy requirement – 2.5
METS.” (Tr. at 193.)
5
home, he prepares them a snack. He also prepares dinner for the
family, and helps put the children to bed.
Guziewicz also testified that between the activities
described above, he spends several blocks of time each day
reclining, to ease his pain. Typically, he lies down for: (1) an
hour or more between the time he wakes up and takes his
medications and the time he helps get the children ready for
school; (2) an hour and a half to two hours after taking the
children to school; (3) an hour and a half in the early
afternoon; and (4) an hour and a half after dinner. In addition,
his pain makes it difficult for him to find a comfortable
position in which to sleep, and he gets between four and five
hours sleep per night, either on the floor or on the sofa in the
guest room. Regarding his need to lie down frequently during the
day, Guziewicz testified that when he is unable to do s o , his
pain increases, he takes more pain medication, and it takes two
to four days for the pain to decrease to tolerable level.
After the hearing, the ALJ issued a decision which included
the following findings:
3 . The claimant has the following severe impairments:
low back injury status post an L4-5 discectomy, right
knee arthritis and situational depression (20 CFR
404.1520(c)).
6
4 . The claimant does not have an impairment or
combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, and 404.1526).
5 . After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform sedentary work
allowing for an opportunity to sit and stand
alternatively every 30 minutes. The claimant would be
restricted from all climbing of ladders and would be
able to only occasionally crawl, kneel and climb
stairs. He would need to avoid exposure to unprotected
heights and dangerous machinery, but would be capable
of understanding, remembering and carrying out
moderately complex four and five step tasks despite his
pain and occasional depressive symptoms.
6. The claimant is unable to perform any past relevant
work (20 CFR 404.1625).
1 0 . Considering the claimant’s age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR
404.1560(c) and 404.1566).
(Tr. at 9, 1 0 , 1 1 , 1 4 , 15.) Based on the foregoing findings, the
ALJ determined that Guziewicz had “not been under a disability,
as defined in the Social Security Act, from September 3 0 , 2007
through the date of this decision.” (Tr. at 16.)
7
Discussion
According to Guziewicz, the ALJ’s decision should be
reversed, and the case remanded, because the ALJ erred in
assessing his credibility and, consequently, his residual
functional capacity (“RFC”). The Commissioner disagrees.
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under a
disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question in
this case is whether Guziewicz is under a disability.
For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . inability 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 which has
lasted or can be expected to last for a continuous
period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A). Moreover,
[a]n individual shall be determined to be under a
disability 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, regardless of whether such work
exists in the immediate area in which he lives, or
8
whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any
individual), “work which exists in the national
economy” means work which exists in significant numbers
either in the region where such individual lives or in
several regions of the country.
42 U.S.C. § 423(d)(2)(A).
In order to determine whether a claimant is disabled for the
purpose of determining eligibility for disability insurance
benefits, an ALJ is required to employ a five-step process. See
20 U.S.C. §§ 404.1520.
The steps are: 1 ) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2 ) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3 ) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4 ) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform past
relevant work, then the application is denied; 5 ) if
the [claimant], given his or her residual functional
capacity, education, work experience, and age, is
unable to do any other work, the application is
granted.
Seavey v . Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in
20 C.F.R. § 1520).
9
The claimant bears the burden of proving that he is
disabled. See Bowen v . Yuckert, 482 U.S. 137, 146 (1987). He
must do so by a preponderance of the evidence. See Mandziej v .
Chater,
944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v .
Schweiker,
530 F. Supp. 808, 810-11) (D. Mass. 1982)). Finally,
In assessing a disability claim, the [Commissioner]
considers 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 witness; and (3)
the plaintiff’s educational background, age, and work
experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v . Sec’y of HHS,
797
F.2d 1 9 , 23 (1st Cir. 1986); Goodermote v . Sec’y of HHS,
690 F.2d
5 , 6 (1st Cir. 1982)).
Guziewicz argues that the ALJ erroneously found his claims
of disabling pain not to be credible, and erroneously found that
he had the residual functional capacity to perform sedentary
work, because, in making both determinations, the ALJ ignored
pertinent evidence in the record and failed to fairly consider
the evidence he did assess. The commissioner counters that both
the ALJ’s credibility determination and his RFC assessment are
supported by substantial evidence.
10
According to Social Security Ruling (“SSR”) 96-7p, “an
individual’s statement(s) about his or her symptoms3 is not in
itself enough to establish the existence of a physical or mental
impairment or that the individual is disabled,” 1996 WL 374186,
at * 2 . When “symptoms, such as pain, fatigue, shortness of
breath, weakness, or nervousness,”
id., are alleged, SSR 96-7p
prescribes a two-step evaluation process:
* First, the adjudicator must consider whether
there is an underlying medically determinable physical
or mental impairment(s) – i.e., an impairment(s) that
can be shown by medically acceptable clinical and
laboratory diagnostic techniques – that could
reasonably be expected to produce the individual’s pain
or other symptoms. . . . If there is no medically
determinable physical or mental impairment(s), or if
there is a medically determinable physical or mental
impairment(s) but the impairment(s) could not
reasonably be expected to produce the individual’s pain
or other symptoms, the symptoms cannot be found to
affect the individual’s ability to do basic work
activities.
* Second, once an underlying physical or mental
impairment(s) that could reasonably be expected to
produce the individual’s pain or other symptoms has
been shown, the adjudicator must evaluate the
intensity, persistence, and limiting effects of the
individual’s symptoms to determine the extent to which
the symptoms limit the individual’s ability to do basic
work activities. For this purpose, whenever the
individual’s statements about the intensity,
persistence, or functionally limiting effects of pain
or other symptoms are not substantiated by objective
medical evidence, the adjudicator must make a finding
3
“A symptom is an individual’s own description of his or
her physical or mental impairment(s).” SSR 96-7p, 1996 WL
374186, at * 2 .
11
on the credibility of the individual’s statements based
on a consideration of the entire case record.
Id. In addition:
When additional information is needed to assess
the credibility of the individual’s statements about
symptoms and their effects, the adjudicator must make
every reasonable effort to obtain available information
that could shed light on the credibility of the
individual’s statements. In recognition of the fact
that an individual’s symptoms can sometimes suggest a
greater level of severity of impairment than can be
shown by the objective medical evidence alone, 20 CFR
404.1529(c) and 416.929(c) describe the kinds of
evidence, including the factors below, that the
adjudicator must consider in addition to the objective
medical evidence when assessing the credibility of an
individual’s statements:
1 . The individual’s daily activities;
2 . The location, duration, frequency, and
intensity of the individual’s pain or other
symptoms;
3 . Factors that precipitate and aggravate the
symptoms;
4 . The type, dosage, effectiveness, and side
effects of any medication the individual takes or
has taken to alleviate pain or other symptoms;
5 . Treatment, other than medication, the
individual receives or has received for relief of
pain or other symptoms;
6. Any measures other than treatment the
individual uses or has used to relieve pain or
other symptoms (e.g., lying flat on his or her
back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and
7 . Any other factors concerning the individual’s
functional limitations and restrictions due to
12
pain or other symptoms.
Id. at * 3 .
SSR 96-7p outlines a specific staged inquiry that consists
of the following questions, in the following order: (1) does the
claimant have an underlying impairment that could produce his or
her symptoms?; (2) if s o , are the claimant’s statements about his
or her symptoms substantiated by objective medical evidence?; and
(3) if not, are the claimant’s statements about those symptoms
credible? The ALJ’s decision in this case appears to proceed
through the inquiry out of order, and to draw unsupported
conclusions in response to both the second and third questions.
On page seven of his decision, the Administrative Law Judge
states:
After considering the evidence of record, the
undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected
to produce the alleged symptoms, but that the
claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are
not entirely credible.
(Tr. at 13.) Then, on the next page of his decision, after
discussing a number of the relevant factors (such as daily
activities, pain medication, treatment other than medication, and
measures other than treatment), the ALJ states:
13
Thus, while the claimant was honest and matter-of-fact
in his presentation and has done what he can to
maximize his treatment and re-engage in work (brief
work as a teacher’s aide), the undersigned,
nevertheless, is obligated to find him not disabled
under the meaning of the Social Security Act secondary
to a lack of objective medical evidence confirming the
symptoms of severe pain alleged by the claimant.
(Tr. at 14.)
To properly conduct the inquiry outlined in SSR 96-7p, after
answering the first question in the affirmative, an ALJ must next
determine whether the claimant’s statements about pain are
substantiated by objective medical evidence. As Baker v . Astrue
explains: “If after evaluating the objective findings, the ALJ
determines that the claimant’s reports of symptoms are
significantly greater than what could be reasonably anticipated
from the objective evidence, the ALJ must then consider other
relevant information.” Civil Action N o . 08-11812-RGS, 2010 WL
3191452, at *8 (D. Mass. Aug. 1 1 , 2010) (emphasis added). In
other words, before “weigh[ing] the credibility of a claimant’s
statements about pain . . . [t]he ALJ must first find a lack of
support in objective medical evidence for the allegations of
pain.” Caille v . Comm’r of Soc. Sec., Civil N o . 09-1305,
2010 WL
1424725, at *3 (D.P.R. Apr. 6, 2010) (emphasis added).
14
But here, the ALJ appears to have determined Guziewicz’s
statements about pain to not be entirely credible before he
determined whether there was objective medical evidence to
support those statements. Then, although it is not entirely
clear, it appears that the ALJ relied on the lack of objective
medical evidence as a basis for finding Guziewicz to be not
entirely credible – notwithstanding the fact that the ALJ found
him to be “honest and matter-of-fact” in his presentation. If,
indeed, the ALJ used the lack of objective medical evidence as
his basis for finding Guziewicz to be not entirely credible,
rather than treating such a finding as compelling him to conduct
a credibility assessment, that constitutes legal error on the
ALJ’s part.
Beyond that, the ALJ’s conclusion regarding the lack of
objective medical evidence is legally inadequate. While the ALJ
cites a “lack of objective medical evidence confirming the
symptoms of severe pain alleged by the claimant” (Tr. at 1 4 ) ,
that statement is little more than a bare conclusion -- the
decision does not disclose an evaluation of the objective medical
findings, see Baker, 2010 WL 3191452, at * 8 , or indicate how
Guziewicz’s “reports of symptoms are significantly greater than
what could be reasonably anticipated from the objective
evidence,”
id.
15
Rather, based on a careful reading of the decision, it seems
that the “lack of objective medical evidence” on which the ALJ
relies is his finding that “there is no indication in the record
that [Guziewicz’s] treating physicians are aware of [his need to
lie down during the day to relieve his pain].” (Tr. at 13.)
But, as the Commissioner points out, “the mere memorialization of
a claimant’s subjective complaints in a medical report does not
elevate those statements to a medical opinion.” Morris v .
Barnhart, 78 Fed. App’x 820, 824 (3d Cir. 2003) (citing Craig v .
Chater, 76 F.3d 585, 590 n.2 (4th Cir. 1996)). Conversely, then,
whatever else it may b e , the absence of a report by Guziewicz to
his physicians that he lies down frequently during the day to
relieve his pain, is not equivalent to the absence of objective
medical evidence of pain. Thus, as in Santiago v . Astrue, Civil
Action N o . 09-30006-KPN,
2009 WL 3517611 (D. Mass. Oct. 1 4 ,
2009), which resulted in a remand, the ALJ in this case “did not
discuss . . . how Plaintiff’s statements were inconsistent with
the objective medical evidence,” id. at *8 (emphasis added). The
ALJ’s decision does describe some of the objective medical
evidence, but not in a discussion that compares the medical
evidence to Guziewicz’s symptoms. Absent any meaningful
comparative evaluation of the objective medical evidence and
Guziewicz’s allegations of disabling pain, the ALJ’s decision
16
does not contain an adequate determination that Guziewicz’s
symptoms were not substantiated by objective medical evidence.
Even if the ALJ’s decision did adequately establish that
Guziewicz’s symptoms were not substantiated by objective medical
evidence, the ALJ’s credibility determination falls short of the
mark. While it falls to the Commissioner to determine issues of
credibility and resolve conflicts in the evidence, see Irlanda
Ortiz, 955 F.2d at 769, and, as the Commissioner correctly points
out, it is not the proper role of the court to reweigh the
evidence, still, a credibility determination must be supported by
substantial evidence in the record. See Frustaglia v . Sec’y of
HHS,
829 F.3d 192, 195 (1st Cir. 1987) (giving deference to ALJ’s
credibility determination when supported by substantial
evidence). The credibility determination in this case is not so
supported.
The ALJ acknowledged Guziewicz’s testimony that he had to
lie down during the day to relieve his pain and that if he does
not do s o , he has to take more medication, and is incapacitated
for several days thereafter. In the section of the decision in
which he explained that he did not fully credit Guziewicz’s
testimony, the ALJ noted that: (1) since his surgery in 2008,
Guziewicz “continues to report significant pain” (Tr. at 1 3 ) ; (2)
17
since his surgery, Guziewicz “has received a range of
conservative treatment modalities including epidural steroid
injections, physical therapy, pool therapy[,] pain medication
(Neurontin and Oxycontin) and recently a TENS unit” ( i d . ) ; (3)
“[t]he epidurals did not provide any measurable improvement,
while the other treatments have provide only partial relief”
( i d . ) ; (4) Guziewicz declined to participate in an intensive
rehabilitation program due to his child care duties; and (5) he
“credibly reports some side effects from his pain medications”
(id.). Then the ALJ stated: “Although [Guziewicz] testified that
he must lie down during the day to relieve his pain, there is no
indication in the record that his treating physicians are aware
of this.” (Tr. at 13.)
Nowhere does the ALJ state why he found Guziewicz’s
statements about his pain to be not entirely credible.4 The
closest thing to an explanation appears to be the ALJ’s
observation that Guziewicz’s treating physicians were not aware
that he has to lie down frequently to relieve his pain. That is
not substantial evidence sufficient to undermine the credibility
of Guziewicz’s statements about the intensity, persistence and
limiting effects of his pain. Whether or not Guziewicz told his
4
Moreover, that conclusion is somewhat difficult to square
with the ALJ’s determination that “the claimant was honest and
matter-of-fact in his presentation” at the hearing.
18
physicians about the specific steps he took to alleviate pain, he
did tell the ALJ. That he did not tell his physicians (or, more
correctly, that such disclosure is not in the medical record)
says little about whether Guziewicz actually takes those steps,
and says even less about whether he is suffering from disabling
pain. The record discloses that Guziewicz’s physicians are well
aware of his pain,5 and have prescribed any number of medications
and other treatments to alleviate i t , most of which Guziewicz has
tried. To be sure, the ALJ did mention, directly or indirectly,
many of the factors relevant to making a properly supported
credibility determination. But, in the final analysis, his
decision not to fully credit Guziewicz’s statements about pain is
not supported by substantial evidence in the record.
In sum, the ALJ’s assessment of Guziewicz’s credibility, and
his determination of Guziewicz’s residual functional capacity
(which rests on the credibility assessment), are fatally flawed
by the failure to properly address the allegations of disabling
5
Given the ALJ’s concern with Guziewicz’s failure to tell
his doctors about his need to lie down frequently – the
significance of which the Commissioner does not explain – it is
important to bear in mind that the symptom at issue is the degree
of Guziewicz’s pain, not what he does to relieve i t . (See
Resp’t’s Mem. of Law (document n o . 9 - 1 ) , at 4 (“The ALJ further
noted that though [Guziewicz] testified that he needed to lie
down during the day, there was no evidence in the record that his
doctors were aware of this symptom.”). Pain is a symptom; lying
down to relieve pain is not.
19
pain within the framework established in SSR 96-7p. On that
basis, the decision is not supported by substantial evidence, and
must be remanded.
Conclusion
For the reasons given, Guziewicz’s motion to reverse the
Commissioner’s decision (document n o . 8 ) is granted to the extent
that the case is remanded for a new administrative determination.
Necessarily, then, the Commissioner’s motion to affirm his
decision (document n o . 9 ) is denied. Pursuant to sentence four
of 42 U.S.C. § 405(g), this matter is remanded to the ALJ for
further proceedings. The Clerk of the Court shall enter
judgement in accordance with this order and close the case.
SO ORDERED.
January 1 4 , 2011
cc: Raymond J. Kelly, Esq.
T . David Plourde, Esq.
20
