Lewis v . SSA CV-99-578-JD 08/09/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Deborah J. Lewis
v. Civil N o . 99-578-JD
Opinion N o . 2000 DNH 177
Kenneth S . Apfel, Commissioner,
Social Security Administration
O R D E R
The plaintiff, Deborah J. Lewis, brings this action pursuant
to 42 U.S.C.A. § 405(g), seeking review of the decision of the
Commissioner denying her claim for Title II social security
benefits. The Commissioner found that she was not disabled at
the fifth step of the sequential evaluation process.1 She
challenges the Commissioner’s decision on the grounds that the
Administrative Law Judge (“ALJ”) failed to find that she met or
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.
See 20 C.F.R. § 404.1520.
equaled a listed impairment and failed to call a vocational
expert to assess the effect of her limitation in stooping on the
available occupational base. The Commissioner moves to have the
decision affirmed.
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 . Secretary of Health and Human
Servs., 76 F.3d 1 5 , 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. See
42 U.S.C.A. §§ 405(g), § 1383(c)(3). 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) (quotation omitted). The
Commissioner’s findings are not conclusive “when derived by
ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v . Chater,
172 F.3d 3 1 , 35 (1st
Cir. 1999). 2 In making the disability determination, “[i]t is
2
Because the regulations implementing the disability
standard for social security insurance benefits, Title I I , 42
U.S.C.A. § 423(d), and for supplemental security income, Title
XVI, 42 U.S.C.A. § 1382c(a), are the same in all relevant
2
the responsibility of the [Commissioner] to determine issues of
credibility and to draw inferences from the record evidence.”
Irlanda Ortiz v . Secretary of Health and Human Servs., 955 F.2d
765, 769 (1st Cir. 1991).
Background
Deborah Lewis has a high school education and training as a
certified nurse’s assistant. She previously worked as a nurse’s
assistant, a cashier, and a store clerk. Her insured status for
purposes of Title II benefits expired at the end of 1994 when she
was twenty-eight years old.
Lewis claimed disability due to impairments caused by
injuries to her back in November of 1990 and May of 1991 and an
injury to her knee in September of 1991. Despite those
impairments, during 1992, her treating doctor, D r . Hansen, noted
her improvement. In May of 1992, D r . Hansen found that she could
do sedentary work with a minimum of lifting and bending, if she
could change positions. After a fall in July, Lewis complained
of increased pain and radiating pain into her right arm. Based
on MRI results and examination, Dr. Hansen diagnosed muscular
respects, for simplicity, the Title II regulations in Part 404
will be cited for both. See Sullivan v . Zebdley, 493 U.S. 521,
526 n.3 (1990).
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pain.
In October of 1992, D r . Forbes found no medical evidence of
thoracic outlet syndrome or cervical radiculopathy, and in
February of 1993 he stated that there was no evidence that
Lewis’s complaints of right arm pain were due to neurological
problems. D r . Forbes told Lewis that she could do any job that
did not require lifting her hands to shoulder level repeatedly.
Lewis had surgery in December of 1992 to stabilize the
patellar tendon in her left knee. In January of 1993, D r . Hansen
noted that she was doing remarkably well, walking and progressing
with strengthening exercises, although she still had atrophy in
her leg. In February, Dr. Hansen noted no further evidence of
patellar dislocation and that Lewis had regained fair to good
muscle strength in her leg. Lewis again dislocated her patella
in April of 1993, and in July she told D r . Thatcher that she
continued to have problems with her knee. A functional capacity
evaluation done at Dr. Hansen’s request in October of 1993 showed
that Lewis was able to do sedentary work.
In November of 1993 Lewis told D r . Hansen that she had
occasional low back aches particularly after doing extra bending
or lifting. She was in training to work as a medical records
librarian, and D r . Hansen felt she could do that work. In August
of 1994, Lewis underwent surgery to remove hardware left in her
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knee after her patellar surgery.
In November of 1994, Lewis complained of a recent onset of
neck pain and arthralgia, but MRI and CT scans done at that time
were normal. Examination by Dr. Ruel showed normal sensation
despite some neck discomfort. Dr. Ruel diagnosed a probable soft
tissue problem. Dr. Hansen found that all of her blood work was
normal and that she did not seem to have an orthopedic problem.
In September of 1995, Lewis continued to complain to Dr.
Hansen of left knee problems and low back and arm pain. She said
she spent her days “up and about” and that she could sit for two
hours at a time, stand for fifteen to thirty minutes at a time,
and walk about a half a mile. She could lift ten pounds as long
as she did not have to lift over her shoulder level. Upon
examination D r . Hansen found her straight leg raising and
neurological signs were normal. He found no signs of thoracic
outlet syndrome and found that she displayed good mobility in
both hips and no sign of patellar displacement in either knee.
Nevertheless, she complained of left knee pain with any touching
and arm tenderness and pain when raising her right arm to
shoulder level. D r . Hansen also found several “Waddell signs,”
meaning that her pain complaints may not be organic in nature.
Although additional later medical records are summarized in
the joint statement of facts, those records are not pertinent to
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Lewis’s application as they pertain to her condition more than
one year after her covered period expired and do not include
retrospective diagnoses relevant to her condition before the end
of 1994. See 42 U.S.C.A. § 423(d)(1)(A); see, e.g., Marcotte v .
Callahan,
992 F. Supp. 485, 491 (D.N.H. 1997).
Lewis was represented by counsel and testified at the
hearing before the ALJ held in February of 1996. The ALJ found
that Lewis had severe impairments due to chronic low back pain,
thoracic outlet syndrome, and chronic instability of her left
knee. He also found that Lewis could not lift more than ten
pounds, stand or walk for prolonged periods, or perform work that
required climbing, balancing, kneeling, crouching, or crawling.
Nevertheless, the ALJ determined that Lewis retained the residual
functional capacity to do sedentary work and that her additional
non-exertional, postural limitations did not have an adverse
impact on her ability to do sedentary jobs. As a result, using
the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P,
Appendix 2 , Table 1 , Rules 201.28 and . 2 9 , he found that Lewis
was not disabled.
Discussion
Lewis challenges the ALJ’s determination on two grounds.3
3
Lewis’s four page memorandum, submitted by counsel,
consists of two full pages of quoted material from social
security rulings, with no developed argumentation related to her
6
She contends that the ALJ erred in not finding that her
complaints met or equaled the listed impairment for somatoform
disorders at 20 C.F.R. Part 404, Subpart P, Appendix 1 , 12.07.
She also relies on medical evidence from January and February of
1996, which found her limited in her ability to stoop, as a basis
to contend that the ALJ erred in not calling a vocational expert
to consider the effect of that limitation on her ability to do
sedentary work.
A claimant will be presumed to be disabled if her impairment
meets or equals the criteria of an impairment listed in 20 C.F.R.
404, Subpart P, Appendix 1 . See Bowen v . Yuckert, 482 U.S. 137,
141 (1987). Disability based on a listed impairment is
considered at step three of the sequential analysis. See
20
C.F.R. § 404.1520. At step three, the claimant bears the burden
of showing that she is disabled due to a claimed impairment. See
Dudley v . Secretary of Health and Human Servs.,
816 F.2d 792, 793
(1st Cir. 1987).
A somatoform disorder is a mental impairment which is
addressed in section 12.00 of Part 404, Subpart P, Appendix 1 .
Section 12.00 provides:
case, and only six sentences that present her objections to the
ALJ’s determination. Therefore, the court’s interpretation of
Lewis’s objections to the ALJ’s determination is considerably
more developed than the presentation made to the court.
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The evaluation of a disability on the basis of mental
disorders requires the documentation of a medically
determinable impairment(s) as well as consideration of
the degree of limitation such impairment(s) may impose
on the individual’s ability to work and whether these
limitations have lasted or are expected to last for a
continuous period of at least 12 months.
20 C.F.R. P t . 4 0 4 , Subpt. P., App. 1 , § 12.00A. Lewis did not
claim a somatoform disorder in her application for benefits, and
the parties’ joint statement of material facts does not mention a
somatoform disorder. Lewis does not point to any evidence in the
record in support of that impairment. In fact, evidence in the
record, psychological testing done in March of 1992, undermines
such a diagnosis. Therefore, Lewis has failed to carry her
burden to show that she meets or equals the listing for
somatoform disorder.
Lewis’s argument that the ALJ erred in failing to elicit
vocational expert testimony about the effect of her limitation as
to stooping is equally unavailing. The ALJ did not find that she
was not able to stoop, and the record evidence for the pertinent
period (within twelve months of her insured status) does not show
that she was unable to stoop occasionally. See Social Security
Ruling 83-14 as quoted in Lewis’s memorandum at p . 1 . The
evidence Lewis relies on is from doctors’ reports in January and
February of 1996, more than twelve months after her insured
status expired. The reports do not indicate a retrospective
8
diagnosis pertinent to the insured period. See Marcotte, 992 F.
Supp. at 491. Therefore, since substantial evidence exists in
the record to support the ALJ’s determination that Lewis was
capable of sedentary work with some non-exertional limitations
that would not significantly reduce her ability to perform work
at the sedentary level, the decision that Lewis was not disabled
is affirmed.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document n o . 8 ) is denied. The Commissioner’s motion to affirm
(document n o . 9 ) is granted. The clerk of court shall enter
judgment accordingly and close the case.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
August 9, 2000
cc: Robert E . Raiche Sr., Esquire
David L. Broderick, Esquire
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