Aguiar v. Apfel

• Decision Date: 06 June 2000
• Docket Number: No. CV 98-12422-JLT.,CV 98-12422-JLT.
• Citation: 99 F.Supp.2d 130
• Parties: Joann AGUIAR, Plaintiff, v. Kenneth S. APFEL, Commissioner Social Security Administration, Defendants.
• Court: U.S. District Court — District of Massachusetts

99 F.Supp.2d 130

Joann AGUIAR, Plaintiff, v. Kenneth S. APFEL, Commissioner Social Security Administration, Defendants.

No. CV 98-12422-JLT.

United States District Court, D. Massachusetts.

June 6, 2000.

COPYRIGHT MATERIAL OMITTED

Brenda J. McNally, Wynn & Wynn, P.C., Raynham, MA, for Joann Aguiar, Plaintiffs.

George B. Henderson, U.S. Attorney's Office, Boston, MA, for Donna E. Shalala, Secretary of Health & Human Services, Defendants.

MEMORANDUM

TAURO, District Judge.

This case arises under 42 U.S.C. § 405(g), as a review of a denial of disability benefits by the Social Security Administration.

I. Background:

On January 26, 1996, Plaintiff filed an application for disability insurance benefits. After receiving a denial of her initial application and a denial of her Request for Reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). The hearing took place on January 17, 1997. As a result of the testifying Vocational Expert's ("VE") lack of knowledge, a supplemental hearing was scheduled and held on May 27, 1997. On June 27, 1997, Plaintiff received a Notice of Unfavorable Decision.

Plaintiff thereafter filed a Request for Review with the Appeals Council. On October 21, 1998, the Appeals Council denied Plaintiff's Request for Review. On November 30, 1998, a Complaint was filed in this court to appeal the denial of disability benefits.

Plaintiff is a forty-five year old woman with a ninth-grade education. Prior to her disability application, she was employed at a golf ball factory, where she worked for several years in positions such as a "cutter," quality control inspector, and "buffer."¹ Plaintiff asserts that, since March 13, 1995, she has been disabled because of an injury to her neck that occurred at work when she attempted to pull a table towards her.² See Record at 56-57. Plaintiff had previously suffered from neck problems that led to surgery in 1991 (a cervical laminectomy from C3-7). As a result of her cumulative neck injuries, Plaintiff suffers from "post traumatic and post cervical instability, C3/4 disc herniation, and pre-existing underlying multiple level cervical pathology." Id. at 242 (Report of Dr. Adelberg, February 5, 1997).

II. Analysis:

Under applicable federal regulations, a disability determination is based on a five step sequential evaluation. See 20 C.F.R. §§ 404.1520, 416.920; Rohrberg v. Apfel, 26 F.Supp.2d 303, 306 (D.Mass.1998). At each of the first four steps the plaintiff has the burden of proving a disability. "Once the claimant has established that she is unable to return to her former employment, however, the burden shifts to the Commissioner to prove the fifth step, that the claimant is able to engage in substantial gainful activity that exists in significant numbers in the national economy." Rohrberg, 26 F.Supp.2d at 306-07.

Judicial review in Social Security Disability cases is statutorily limited to determining whether the findings of the Commissioner are supported by "substantial evidence." 42 U.S.C. 405(g). "`[Substantial evidence] means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The First Circuit has further stated that "substantial evidence" requires more than a scintilla of evidence, but less than a preponderance. See Sprague v. Office of Workers' Compensation Programs, 688 F.2d 862, 865-66 (1st Cir.1982). Where substantial evidence exists, the Secretary's decision will stand, "even if the record arguably could justify a different conclusion." Rodriguez Pagan v. Secretary of Health and Human Servs., 819 F.2d 1, 3 (1st Cir.1987).

Here, the ALJ determined that Plaintiff suffers from "arthritis of the left shoulder and cervical spine, a central disc herniation at C3-4 and a diagnosis of cervical radiculitis, without evidence of consistent neurological deficits." Record at 21. Based on these limitations the ALJ found that Plaintiff "cannot perform her past relevant work," thus shifting the burden to the Commissioner to establish that there are a significant number of jobs in the national economy that Plaintiff could perform. Id. at 23-24. According to the ALJ's decision, this burden was met by testimony of the second VE,³ who testified that Plaintiff could perform the job of quality control inspector or labeler, of which there are 11,300 and 5,800 jobs, respectively, in the regional market. See id. at 24. The testimony of the VE, along with the regulatory framework in Rule 201.24 of the Medical/Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, led the ALJ to conclude that Plaintiff is not disabled. See Record at 24.

Plaintiff challenges the determination of the Commission on three grounds. First, she argues that the ALJ's findings regarding her credibility are not supported by substantial evidence. Second, Plaintiff argues that the ALJ's hypotheticals to the vocational expert were not supported by substantial evidence. Finally, Plaintiff asserts that the ALJ abased his discretion by accepting the testimony of the second vocational expert over that given by the first. Because Plaintiff convincingly argues the first two points, the court need not consider the third.

A. The ALJ's Credibility Determination is Not Supported By Substantial Evidence

The ALJ begins his analysis by acknowledging that "if the severity of pain and almost complete incapacity the claimant alleges were accepted at face value, there is no doubt she would be unable to perform her past or any other work." Id. at 22. He finds, however, "the severity of symptoms and degree of limitations alleged by the claimant to be exaggerated to some extent, and not fully credible." Id. at 23. These statements are important because they place the ALJ's credibility determination as the central issue in his decision to deny Plaintiff benefits. While the ALJ "resolves conflicts in the record and makes credibility determinations, [he] cannot base such findings on groundless assertion; they must be supported by substantial evidence." Rohrberg, 26 F.Supp.2d at 309 (citing Frustaglia v. Secretary of Health and Human Servs., 829 F.2d 192, 195 (1st Cir.1987)).

According to the ALJ, his credibility finding was based both on a lack of medical evidence to support Plaintiff's asserted limitations and upon the conflict between her asserted limitations and her daily activities. See Record at 22-23. An examination of these rationales finds them lacking the support of substantial evidence. Rather, Plaintiff's limitations are consistently supported by Plaintiff's medical records and her testimony regarding her regular activities.

1. Plaintiff's Medical Evidence Supports Her Stated Functional Limitations.

Considering the medical evidence proffered in support of Plaintiff's disability, the ALJ found an "absence of consistent objective findings which show limitation of functioning at a level which would support a conclusion that the claimant is disabled." See id. at 22. Specifically, he identified a number of factors. He found that muscle spasms were noted only once and that surgery was not recommended. See id. He observes further that Claimant was released for light work in April 1995 and was able to chaperone a school trip. See id. He stated that examinations in January and February of 1996 found no neurological deficits to strength or reflex. See id. Finally, the ALJ concluded that the only consistent limitations in her medical records apply to working with a bent neck position and lifting or carrying. See id. An examination of the record, however, finds that these rationales are not supported by substantial evidence.

First, the ALJ's statement regarding muscle spasms and surgery are inaccurate. Dr. Bowcock (her chiropractor) found "palpable muscle spasticity" during five different examinations in May and June of 1995.⁴ See id. at 187-88. This was in addition to Dr. Wepsic's diagnosis (a neurosurgeon) of "marked cervical spasm" in an examination on July 8, 1996. See id. at 238. Similarly, despite the ALJ's finding that no doctor recommended surgery,⁵ two reports by Doctor Adelberg, an orthopedist, suggest the possibility of surgery. See id. at 210 (November 16, 1995 report), 242-43 (February 5, 1997 report). Because the ALJ's findings regarding muscle spasms and recommendations of surgery are plainly contradicted by medical evidence, they cannot properly constitute a basis for questioning Plaintiff's functional limitations. See e.g., Adie v. Commissioner, Social Security Admin., 941 F.Supp. 261, 267-269 (D.N.H.1996) (selective consideration, mischaracterization and misrepresentation of medical evidence cannot support decision to discredit claimant's reports of pain).

Next the ALJ notes that, in April of 1995, following improvement in her condition, Dr. VonErtfelda released Plaintiff to return to work for "light duty," and that Plaintiff was able to "engage in normal activities, e.g., chaperoning a school field trip." Id. at 22. By itself, this fact suggests that Plaintiff's injuries were not permanently disabling. When Plaintiff attempted to return to work, however, she suffered "severe pain" that caused her to go to the emergency room. Id. at 182 (Emergency Room Report of Dr. Jane Mailloux). Furthermore, none of the subsequent medical evaluations showed any similar signs of improvement or in any way suggest that Plaintiff was capable of returning to "normal activities." Plaintiff's temporary improvements in April 1995 are thus of little probative value, as all of her subsequent medical evaluations suggest significant functional limitations, and the ALJ makes no effort to reconcile any inconsistency.

The ALJ also questions Plaintiff's functional limitations in light of findings that Plaintiff suffered "no neurological deficits to...