Cuthbertson v. SSA

Cuthbertson v . SSA                    CV-02-368-JD     06/20/03
               UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW HAMPSHIRE



Bryan Cuthbertson

     v.                               Civil N o . 02-368-JD
                                      Opinion N o . 

Jo Anne B . Barnhart, Commissioner,
Social Security Administration


                            O R D E R

     Bryan Cuthbertson seeks judicial review, pursuant to 

(g), of the decision of the Commissioner denying his
application for social security benefits. Cuthbertson contends
that the Administrative Law Judge (“ALJ”) failed to give adequate
reasons for rejecting the opinions of his treating physician,
failed to properly consider his subjective complaints of pain,
and lacked substantial evidence to support the decision.      The
Commissioner moves to affirm the decision.



                            Background

     Cuthbertson alleges a disability beginning on September 1 3 ,

1993, due to a back injury caused by a work accident. He was

thirty-two years old at the time of the injury and had worked as

a carpenter, a mason, and a pipe fitter. During the relevant

time, Cuthbertson did not have a high school diploma. His last

insured date is March 3 1 , 1997. This appeal follows the
Commissioner’s denial of Cuthbertson’s second application for
benefits.
     After the initial injury, Cuthbertson was treated by a
chiropractor.   By December of 1993, the chiropractor thought that
Cuthbertson would be able to return to work in two to three
weeks.   By February of 1994, the chiropractor thought Cuthbertson
has reached his maximum level of improvement and released him
from active care. Later in February, Cuthbertson consulted his
family physician about back discomfort. The physician found
muscle spasms, prescribed medication, and referred him to Concord
Orthopedics.

     In April of 1994, D r . William Bruton noted that Cuthbertson
described pain in his left low back that radiated into his leg
with episodes of numbness. He also complained of upper back pain
radiating into his left arm with occasional headaches. D r .
Bruton found no sensory or motor deficits and no bone abnormality
shown by x-ray.   He diagnosed chronic cervical and lumbar strain
and referred Cuthbertson to physical therapy.    On May 3 1 , 1994,
the physical therapist noted that Cuthbertson was playing
basketball in February of 1994, when his back pain returned.
Cutherbertson continued with physical therapy with varying
results.    An MRI performed in August of 1994 showed three small
disc herniations. D r . Bruton referred Cuthbertson to D r . Nagel


                                 2
for management of chronic back problems.
     Dr. Nagel saw Cuthbertson for his first appointment in
October of 1994. During his examination, D r . Nagel found, among
other things, abnormality at C5-6, limited range of motion of the
left arm, tenderness over four other spinal areas, asymmetric
pelvis, limited lumbar range of motion, and rib dysfunction.     A
bone scan ruled out rib dysfunction as the source of pain at T 7 .
Dr. Nagel concluded that Cuthbertson remained disabled from work,
prescribed medication and a brace, and suggested aquatic
exercise.

     In January of 1995, Cuthbertson reported improvement to D r .
Nagel due to the brace. D r . Nagel continued his diagnosis of
chronic cervical and thoracic strain and sacroiliac dysfunction.
He completed a Physical Capacity Evaluation in February of 1995.
Dr. Nagel found that Cuthbertson could perform sedentary work,
allowing a change of position every fifteen to twenty minutes
with a total of sitting and standing for two to three hours in a
work day and with certain other limitations. He could also walk
for a total of two hours and drive for one to two hours. In May
of 1995, Cuthbertson reported little change but a possible
worsening of pain. Cuthbertson missed the next four appointments
with D r . Nagel. At his December, 1995, appointment, D r . Nagel
noted little change. Treatments did not provide long-term


                                 3
relief.    An MRI showed a degenerative disc at L2-3, but D r . Nagel
thought the sacroiliac joint was the source of Cutherbertson’s
pain.
    In June of 1996, D r . Nagel again assessed Cuthbertson’s
activity level. He indicated that Cuthbertson was capable of
sedentary work for six to eight hours each day, three to five
days each week.    Cuthbertson was restricted from repetitive
bending and twisting.    On October 2 2 , 1996, Rachel Heath, a
physical therapist working at New Hampshire Center for Back Care,
administered a Physical Capacity Evaluation of Cuthbertson.       She
concluded that he could work for a maximum of four hours a day in
a five day week at the light exertional level (lifting twenty
pounds occasionally and ten pounds frequently) with no bending.
Heath also found that Cuthbertson could only stand, walk, or sit
without support for up to thirty minutes. Cuthbertson’s Waddell
test results did not show inconsistent or non-anatomical
symptoms.

    In November of 1996, D r . Nagel noted a lapse of nine months
since the last appointment and that Cuthbertson’s condition had
not changed.    He discussed the recent evaluation done by Rachel
Heath and concluded that her findings were very similar to his
results.    In a letter dated December 4 , 1996, D r . Nagel explained
his evaluation in June of 1996, as finding that Cuthbertson could


                                   4
work part time, about four to six hours a day and four to five
days a week, at a sedentary exertional level. He noted that
Rachel Heath’s evaluation found that he could lift more weight
but restricted his work day to four hours and that her evaluation
was conducted over only a two-hour period.    D r . Nagel believed
that Cuthbertson was at maximum medical improvement.

     Cuthbertson next returned to D r . Nagel a year later, in
December of 1997. His back condition was unchanged but he had
increased right shoulder pain. Cuthbertson reported that he had
tried to work at a pizzaria but could not stand up all day.
The record does not show medical treatment in the meantime.
Cuthbertson continued to see D r . Nagel without significant
improvement. D r . Nagel increased Cuthbertson’s pain medication.

     On February 5 , 1999, D r . Nagel completed a “Medical
Assessment of Ability to Do Work-Related Activities.”     As before,
he found that Cuthbertson was limited to lifting a maximum of ten
pounds, that he could stand, walk, or sit for about two hours,
changing position or activity every fifteen minutes, at will, and
that he would need to lie down at unpredictable intervals every
one to two hours.

     Dr. Adams, an orthopeadic surgeon, reviewed Cuthbert’s
medical records from 1993 through 1998 as a medical expert for a
Social Security Disability evaluation.    Answering


                                 5
interrogatories, D r . Adams stated that the medical evidence in
Cuthbertson’s record did not have conflicts and was very
consistent throughout his treatment. He found objective findings
as to range of motion but no objective findings as to neurologic
changes or other physical conditions. D r . Adams thought that
Cuthbertson’s limitations were due to his subjective pain
symptoms and that he was reaching the state of chronic pain
syndrome.   Consultative opinions from D r . Campbell and D r . Nault
were that Cuthbertson could lift twenty pounds occasionally, ten
pounds frequently, that he could stand, walk, or sit for about
six hours in an eight hour day.       They found only a limitation on
overhead reaching.

     Cuthbertson reported to D r . Nagel on May 1 7 , 1999, that he
had moved to Ohio. In his office note for December 1 9 , 2000, D r .
Nagel wrote that Cuthbertson had been incarcerated and had worked
without medication during that time. As part of his sentence and
following his incarceration, Cuthbertson worked in a restaurant
beginning at thirty-two hours each week, which was very
difficult, and his pain level was increasing.      His hours were
later reduced.   Cuthbertson said he could continue the restaurant
job if he could work twenty hours a week.      Based on MRI results
showing bulging at discs T7-8 and T8-9, D r . Nagel thought that
Cuthbertson could have lumbardiscogenic pain referred to the


                                  6
sacroiliac joint and that the thoracic disc herniations were
probably the cause. D r . Nagel’s Medical Assessment of Ability to
do Work-Related Activities was essentially the same as the
February of 1999 assessment.
     A hearing on Cuthbertson’s social security application was
held on July 1 1 , 2001. He testified about the history of his
injury and pain. He described his daily activities and his
condition and limitations. He testified that before his last
insured date of March 3 1 , 1997, he lived with a woman who had
four young children. At that time, he would do some vacuuming
and wash dishes for about five to ten minutes with rests of
thirty to sixty minutes between activities. He would microwave
dinner for himself and the children, instruct the children to do
their expected activities, and set out their clothes for bed.

     A vocational expert, James Parker, also testified at the
hearing.    The ALJ posed a hypothetical of a man who could do
light work with a sit-stand option and with limitations of only
occasional climbing, balancing, stooping, kneeling, crouching,
and crawling, and who could not reach in all directions or
overhead.   The ALJ did not include a limitation on the number of
hours in a work day or the number of days in the week for work.
Parker testified that, based on the hypothetical, the man could
not do heavy skilled or unskilled work, such as his previous


                                 7
work.   Parker said that the hypothetical would permit work as a
furniture rental consultant. When he was asked to change the
exertional level to sedentary work, Parker eliminated the
furniture retail consultant position.
     The ALJ found that Cuthbertson had a residual functional
capacity for light work, lifting twenty pounds occasionally and
ten pounds frequently, with the limitations posed in the

hypothetical at the hearing.   Based on those limitations, the ALJ
found that Cuthbertson was not able to return to his previous
work.   He found that although Cuthbertson could not do the full
range of light work, he could perform a significant range of
light work.   The ALJ considered the Medical-Vocational Guidelines
as “a framework for decision-making” and concluded that there
were a significant number of jobs that Cuthbertson could d o .   He
used the furniture rental consultant job as an example of a job
that Cuthbertson could d o . The ALJ found that Cuthbertson was
not disabled.

     Cuthbertson’s application for benefits was denied.    His
request for review was denied by the Appeals Council. The ALJ’s
decision, therefore, is the final decision of the Commissioner,
subject to judicial review.




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                             Discussion
     The court must uphold a final decision of the Commissioner
denying benefits unless the decision is based on legal or factual
error.   Manso-Pizarro v . Secretary of Health & Human Servs., 

 5 , 16 (1st Cir. 1996) (citing Sullivan v . Hudson, 

 (1989)).    The Commissioner=s factual findings are
conclusive if based on substantial evidence in the record.     

(g).    Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”   Richardson v . Perales, 

 (1971)
(quotation omitted).    In making the disability determination,
“[i]t is the responsibility of the [Commissioner] to determine
issues of credibility and to draw inferences from the record
evidence.”   Irlanda Ortiz v . Secretary of Health & Human Servs.,

 (1st Cir. 1991).

     Cuthbertson’s application was denied at step five of the
sequential evaluation process set forth in 

     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

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At step five, the Commissioner has the burden “of coming forward
with evidence of specific jobs in the national economy that the
applicant can still perform.”   Freeman v . Barnhart, 

 (1st Cir. 2001).   Cuthbertson contends that the
Commissioner’s decision denying him benefits is not based on
substantial evidence, failed to properly consider D r . Nagel’s
opinion, and did not properly credit his subjective complaints of
pain.

        Cuthbertson challenges the ALJ’s residual functional
capacity (“RFC”) finding.   “Ordinarily, RFC is an assessment of
an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis.   A ‘regular and continuing basis’ means 8 hours a day, for
5 days a week, or an equivalent work schedule.”      SSR 96-8P, 

, at *1 (July 2 , 1996).     Determining a Social Security
applicant’s RFC is an administrative decision that is the
responsibility of the Commissioner.     

(e)(2).
For that reason, a treating physician’s opinion as to an
applicant’s RFC is not controlling on the issue. SSR 96-5P, 1996



     (5) whether the impairment prevents the claimant from
     doing any other work.

See 

.


                                 

, *3 (July 2 , 1996).   See also Diaz v . Chater, 

, 306 n.2 (7th Cir. 1995); West v . Barnhart, 

(D. Kan. Jan. 2 2 , 2003) (pub. ref. not available); Gagnon v .

Barnhart, 

 1 1 , 120-21 (D. Conn. 2002); Poland v .

Halter, 

, *6 (D.N.H. Aug. 2 , 2001).

     In making an RFC determination on behalf of the

Commissioner, the ALJ must consider all relevant evidence in the

record, including the opinions and statements by all medical

sources.    

(a) & 404.1564; SSR 96-5P, 

; Fargnoli v . Massanari, 

 4 , 41 (3d Cir. 2001);

Newton v . Apfel, 

 4 8 , 456 (5th Cir. 2000).   The ALJ must

apply the factors provided in 

(d) to evaluate

the opinions of medical sources.2      SSR 96-5P, 

, * 3 .

The ALJ’s RFC determination must provide a clear explanation for

its evidentiary basis and reasons for rejecting medical source

opinions.   See SSR 96-5P; Fargnoli, 

 1 ; Clifford v .
Apfel, 

 (7th Cir. 2000); Newton, 

; Goatcher v . HHS, 

 8 8 , 290 (10th Cir. 1995).

     2
      The factors provided in § 404.1527(d) are: (1) whether the
opinion is based on examination; (2) the length, nature, and
extent of the treatment relationship; (3) whether and to what
extent the opinion is supported by medical signs and laboratory
findings; (4) whether the opinion is consistent with other
evidence in the record; (5) whether the opinion is about medical
issues related to physician’s area of specialty; and (6) any
other factors which support or contradict the opinion.

                                  11
     In this case, the ALJ explained that his RFC finding, that
Cuthbertson was capable of full-time work at the light exertional
level with some postural restrictions, was based on the test
results provided in October of 1996 by the New Hampshire Center
for Back Care, except for the limitation of part-time work.    To
support an RFC for full-time work, the ALJ noted that D r . Nagel
had indicated that Cuthbertson was capable of more hours of work
in his June 1996 assessment and had recognized the discrepancy
between his assessment and the Center’s assessment without
resolving i t . The ALJ considered other evidence in the record as
to Cuthbertson’s ability to work more hours than indicated.

     The ALJ pointed to evidence that the chiropractor, in early
1994, expected Cuthbertson to return to work within weeks of the
accident and that the increase in pain was due to other
activities.   He noted that D r . Nagel appeared to question the
severity of Cuthbertson’s pain in a September 1998 report, that
Cuthbertson did not provide treatment records during the year and
a half he was incarcerated, that he worked as a cook as a
condition of his “house arrest,” and that Cuthbertson was active
in taking care of four young children.

     The ALJ’s RFC finding does not sufficiently explain his
determination that Cuthbertson was capable of full-time work,
despite the opinions of D r . Nagel and the Center. The ALJ cites


                                 12
no evidence that Cuthbertson was capable of full-time work, eight
hours a day in a five day week, to counter the contrary medical
opinions.3   D r . Nagel compared his and the Center’s assessments
and concluded that “the work capacity demonstrated was very
similar” because he had Cuthbertson at a lower weight restriction
with more hours while the Center used a higher weight restriction
but fewer hours. In contrast, the ALJ found that Cuthbertson was
capable of more hours of work than the medical assessments at a
higher weight level.

     It is also undisputed that Cuthbertson’s work as a cook
started at thirty-two hours and then was reduced to twenty hours
a week.   His activities in taking care of children in his
household were limited; he microwaved food, laid out clothing,
and instructed the children to do things. He did some vacuuming
and dishes in short efforts spaced with long rest periods.
Therefore, the evidence the ALJ cites in support of his RFC does
not support his finding.

     The Medical Vocational Guidelines may be used to determine
disability only if facts fit within the Guideline categories.


     3
      The state consultative opinions, relied on to deny
Cuthbertson’s first application, indicate an ability to do light
work on a full-time basis. Those opinions, however, were
provided before D r . Nagel’s and the Center’s assessments were
done and, therefore, did not consider those assessments as part
of the record. The ALJ does not cite the consultative opinions.

                                 13
See Seavey v . Barnhart, 

 , 5 (1st Cir. 2001).   Because
the ALJ’s RFC finding is not properly supported, he could not use
that RFC to determine a Guideline category.
     A vocational expert’s opinion as to available jobs is
substantial evidence sufficient to carry the Commissioner’s
burden at step five only if it is based on an accurate RFC.       See
Rose v . Shalala, 

 3 , 19 (1st Cir. 1994); Arocho v . Sec’y
of Health & Human Servs., 

 7 4 , 375 (1st Cir. 1982).
Because the ALJ’s hypothetical posed to the vocational expert in
this case did not accurately reflect the limitation on the number
of hours Cuthbertson could work, the expert’s opinion is not
substantial evidence. Therefore, substantial evidence does not
support the Commissioner’s decision that Cuthbertson is not
disabled based on either the Guidelines or the vocational
expert’s opinion.




                                 14
                             Conclusion
      For the foregoing reasons, the plaintiff’s motion to reverse
the decision of the Commissioner (document n o . 10) is granted.
The Commissioner’s motion to affirm (document n o . 11) is denied.
The case is reversed and remanded to the Social Security
Administration for further proceedings.

      This is a sentence four remand.     Therefore, the clerk of
court shall enter judgment and close the case.

      SO ORDERED.


                                      Joseph A . DiClerico, J r .
                                      United States District Judge
June 2 0 , 2003

cc:   Elizabeth R. Jones, Esquire
      David L . Broderick, Esquire




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