UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Kathleen E. Cherok

v. Civil No. 06-cv-125-JD

Jo Anne B. Barnhart, Commissioner

Social Security Administration

O R D E R

Kathleen E. Cherok brings this action pursuant to 42 U.S.C.

§ 405(g), seeking judicial review of the decision by the

Commissioner of the Social Security Administration denying her

application for Title II benefits. Cherok contends that the

Administrative Law Judge (“ALJ”) failed to give appropriate

weight to the opinion of her treating physician and erred in

finding that her subjective complaints of pain were not entirely

credible, which led to an erroneous residual functional capacity

finding. The Commissioner moves to affirm the decision.

Background

Cherok applied for social security disability benefits on

October 7, 2002, alleging that she had been unable to work since

August 1, 1994, when she was thirty-two years old, because of

impairments caused by complications of juvenile diabetes. She

had worked as an administrative assistant, from 1980 to 1992, and

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then did a series of short-term jobs between 1996 and 2002. She

was insured for disability benefits through June 30, 2000.

On July 7, 1997, Cherok began treatment at the Joslin

Diabetes Center. Her treatment notes there indicate that she

said she had been fired from her job because of her diabetes. 

The treatment notes also indicate that her diabetes was under

poor control, that she had anxiety, that her sugar levels were

sensitive to stress, and that she possibly had gastroparesis

(paralysis of the stomach). 

Dr. Paul Friend at the Tilton Family Health Center saw

Cherok beginning in July of 1997. He noted that Cherok was

anxious about the extent and progressive nature of her diabetes. 

Dr. Friend prescribed Valium and suggested that Cherok see a

counselor. In January of 1998, Cherok saw Dr. Friend for back

pain. Cherok also saw Dr. Richard Beaser at the Joslin Diabetes

Center because of tingling in her hands. In April, Cherok again

saw Dr. Friend because of back pain after she had lifted boxes in

the course of traveling. Dr. Friend prescribed Tylenol with

codeine.

Cherok’s next medical record is from February of 1999 when

she was seen at the Joslin Diabetes Center. After that

appointment, Dr. Beaser wrote to Cherok to give her the results

of her diabetes testing which showed that her disease was poorly

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controlled. In March, Cherok saw Dr. Friend and explained that 

financial concerns had kept her from seeking medical care during

the previous months. Dr. Friend’s treatment notes show that

Cherok had had problems with her vision caused by diabetes and

that her diabetes was not well controlled. He noted that her

back pain was much improved. In August of 1999, Dr. Friend wrote

that Cherok’s diabetes was out of control, and he referred her to

Dr. Barrett Chapin. Dr. Chapin saw Cherok in November of 1999,

recorded a history of her disease, and changed her insulin

regimen.

In 2000, Cherok underwent a stress test with normal results. 

Dr. Friend noted worsening symptoms of gastroparesis. In August,

Cherok had right shoulder pain that was diagnosed as bursitis. 

Dr. Friend prescribed Reglan for her gastroparesis symptoms in

November. In 2001, Cherok had an anxiety attack for which she

was prescribed Ativan. She also dropped a wooden cover on her

foot and bruised her toes.

Dr. Charles Meader, a state agency physician, provided an

assessment of Cherok’s physical capacity in December of 2002,

based on a review of her medical records. He concluded that she

could lift up to ten pounds frequently and up to twenty pounds

occasionally, could sit for six hours during an eight-hour work

day, and had no postural limitations. Dr. Meador noted on his

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assessment form that Cherok did not have gastroparesis symptoms

until after June 30, 2000.

Dr. Friend referred Cherok to Dr. Vijay Thadani in March of

2003. On March 31, Dr. Thadani reported that Cherok had fallen

about a month before and landed on her back and then developed

radiating paresthesis with numbness and tingling along her left

leg. The night before the appointment, Cherok felt anxious and

then her whole left side, except her face, went numb. She told

Dr. Thadani that she had weakness on that side.

In August of 2003, Dr. Friend assessed Cherok’s physical

capacity to do work-related activities. He concluded that she

could lift or carry only up to ten pounds, could walk or stand

for less than two hours in an eight-hour work day, and was

precluded from all postural activities such as climbing,

stooping, kneeling, and crouching. Dr. Friend indicated that

Cherok was having problems with her back, her leg, and her right

hand. Dr. Friend also wrote a note, dated October 12, 2003, in

which he stated that Cherok’s attorney had asked him to comment

on her limitations before June of 2000. In that regard, he said

that Cherok’s “limitations have not changed significantly over

the time that I have cared for her. She has gotten worse

concerning her left leg symptoms but the back pain which is

related and her gastroparesis have not changed and did exist

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prior to [June 30, 2000].” Admin. Rec. at 416.

In September of 2003, Dr. Thadani assessed Cherok’s physical

capacity for work and noted that she was limited due to a

transient ischemic attack in March of 2003, diabetic neuropathy,

and poorly controlled diabetes that caused chronic left leg pain

and weakness and chronic fatigue. He found that Cherok could

only stand for fifteen minutes at a time, could sit for two hours

and walk or stand for less than two hours, would require an

option to sit or stand at will, could carry less than ten pounds

occasionally, could rarely twist or stoop, and could never crouch

or climb ladders. Dr. Thadani also noted that Cherok would

require unscheduled breaks during the work day, would need to

rest for fifteen to thirty minutes before returning to work, and

would be absent frequently.

A hearing on Cherok’s application for benefits was held

before ALJ Ruth Kleinfeld on October 8, 2003. Cherok described

her previous work, including her unsuccessful efforts to work. 

She testified that she stopped working after a few months in each

case because complications of her diabetes, gastroparesis,

numbness in her hands and fingers, and vision problems, caused

excessive absences and interfered with her ability to do the

work. Some additional medical evidence was submitted to the ALJ

after the hearing, including Dr. Friend’s letter that is quoted

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above.

ALJ Kleinfeld issued her decision on May 25, 2004, in which

she found that Cherok’s diabetes was a severe impairment before

June 30, 2000, but that Cherok’s allegations about her

limitations were not entirely credible. The ALJ concluded that

Cherok retained the functional capacity to do her past work as an

administrative assistant during the insured period. The Appeals

Council denied Cherok’s request for review, making the ALJ’s

decision the final decision of the Social Security

Administration.

Discussion

Cherok asks the court to reverse and remand the decision

denying her application for benefits. She asserts that the ALJ

failed to give Dr. Friend’s opinion about her limited physical

capacity appropriate weight and erred in concluding that her

allegations about the limitations caused by her disease were not

entirely credible, which caused the ALJ to make an erroneous

residual functional capacity finding. The Commissioner asks the

court to affirm the ALJ’s decision.

The court must uphold a final decision of the Commissioner

to deny an application for benefits unless the decision is based

on legal or factual error. Manso-Pizarro v. Sec’y of Health &

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Human Servs., 76 F.3d 15, 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. 42 U.S.C. § 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 marks omitted). In making the

disability determination, “[i]t is the responsibility of the

[ALJ] to determine issues of credibility and to draw inferences

from the record evidence.” Irlanda Ortiz v. Sec’y of Health &

Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The ALJ’s fact

finding is “not conclusive when derived by ignoring evidence,

misapplying the law, or judging matters entrusted to experts.” 

Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

In concluding that Cherok was not disabled from her former

work as an administrative assistant, the ALJ found that Cherok

retained the functional capacity to do a full range of light

work. She stated that her finding was “consistent with the

minimal findings noted by Dr. Chapin in November 1999 and by Dr.

Friend in October 2002.” Admin. Rec. at 29. As such, the ALJ

relied on Dr. Chapin’s note in November of 1999, stating that

Cherok had no known complications of diabetes. That note,

however, was contrary to the medical record that documents

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1In her first reference to this medical evidence, the ALJ

cited a page number and noted that the examination was for

Cherok’s disability application but mistakenly wrote that the

examination was in April of 2001 when the record is actually

dated October 31, 2002. Later in her decision, the ALJ refers to

Dr. Friend’s findings in October of 2002.

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gastroparesis since 1997 and other diabetes-related symptoms

thereafter. The ALJ did not address that discrepancy, did not

explain her reliance on an absence of information, and did not

distinguish the medical records that documented Cherot’s

symptoms.

The ALJ also cited an examination record by Dr. Friend,

identified as a “disability exam.”1 Admin. Rec. at 350. The ALJ

noted that Dr. Friend did not find that Cherok was disabled. She

also noted Dr. Friend’s findings that Cherok’s range of motion,

vision, reflexes, motor functions, and sensory function were all

normal. The ALJ did not discuss or even cite Dr. Friend’s

residual functional capacity assessment done in August of 2003,

which is relevant to the disability determination due to his

opinion that Cherok’s limitations had not changed significantly

since June of 2000.

The ALJ also appears to have ignored the medical records

documenting Cherok’s gastroparesis and other complaints related

to diabetes. The only residual functional capacity assessment

that supports the ALJ’s findings was done by the state agency

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consulting doctor in December of 2002. As Cherok’s attorney

noted at the hearing before the ALJ, the state agency doctor

mistakenly believed that Cherok was not suffering with

gastroparesis before June of 2000, which undermines the

reliability of his assessment. Although the ALJ did not cite or

refer to that assessment, her findings suggest that she relied on

it nonetheless.

Further, in finding that Cherok was not disabled, the ALJ

focused on Cherok’s physical ability to function at a light

exertional level but failed to address the diabetes-related

effects of chronic gastroparesis, vision disturbances, and

intermittent sensory disturbances due to neuropathy. In the

social security context, “[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); accord 20 C.F.R. §

404.1527(a)(1); see also Barnhart v. Thomas, 540 U.S. 20, 23

(2003). To be found not disabled, a claimant must be both

physically able to perform work and able to sustain her work

effort for a significant period of time. See Frank v. Barnhart,

326 F.3d 618, 621 (5th Cir. 2003); Watson v. Barnhart, 288 F.3d

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212, 217-18 (5th Cir. 2002); Gatliff v. Comm’r of SSA, 172 F.3d

690, 693-94 (9th Cir. 1999) (citing cases); Dix v. Sullivan, 900

F.2d 135, 138 (8th Cir. 1990). Work that continued for only six

months or less, when a claimant’s impairment forced her to stop

working, is not evidence of her ability to do substantial gainful

activity. § 404.1574(c). 

The ALJ found that Cherok’s work attempts in July and August

of 2000 and again in July and August of 2002 were unsuccessful. 

She also found that Cherok had not engaged in substantial gainful

activity since 1994. The ALJ did not address the various jobs

that Cherok attempted between 1996 and 2000, which included

working as a secretary at the New Hampshire Community Technical

College, delivering flowers for a florist, and supervising

housekeepers for a condominium management company. Cherok

testified that she left those jobs because of the effects of

gastroparesis and neuropathy in her hands. 

Cherok’s unsuccessful work experiences strongly suggest that

she had difficulty working on a regular and sustained basis. In

addition to Cherok’s testimony, her former employer at the New

Hampshire Community Technical College, where she worked in 1997,

wrote that Cherok only worked there for a few months because her

illness, which caused severe eye, headache, and digestive

problems, caused so many absences. Even if the ALJ’s residual

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functional capacity assessment were correct, more attention

should have been paid to the issue of whether Cherok was capable

of sustained gainful employment before June 30, 2000.

Because the ALJ ignored important evidence and relied on

questionable evidence to support her decision, that decision must

be reversed and the case remanded for further proceedings.

Conclusion

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

and remand the Commissioner’s decision (document no. 7) is

granted. The Commissioner’s motion to affirm (document no. 8) is

denied.

The case is remanded pursuant to “sentence four” for further

administrative proceedings. The clerk of court shall enter

judgment accordingly and close the case. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 5, 2006

cc: David L. Broderick, Esquire

Raymond J. Kelly, Esquire

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