Conte v. SSA CV-02-216-M 05/12/03
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Carl J. Conte,
Claimant
v. Civil N o . 02-216-M
Opinion N o . 2003 DNH 075
Jo Ann B . Barhnart,
Commissioner, Social
Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), Carl J. Conte (“claimant”)
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 her decision.
For the reasons given below, this matter is remanded to the
Administrative Law Judge (“ALJ”) for further proceedings
consistent with this opinion.
Standard of Review
The statute governing the 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. 8 7 7 , 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 7 2 7 , 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 5 9 4 , 597 (1st
2
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
v . Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (quoting
Rodriguez v . Sec’y of HHS,
647 F.2d 2 1 8 , 222 (1st Cir. 1981)). 1
Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 1 1 ) , which is part of the court’s record.
The facts included in that statement are not reiterated here, but
will be referred to as necessary.
Claimant filed an application for Social Security disability
insurance benefits on December 2 9 , 1999, claiming that he had
become disabled on July 2 8 , 1999, as a result of a workplace
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
accident on that date. Claimant, who was then employed as a
truck driver, slipped and fell while standing on the cab of his
truck and injured his neck and left shoulder. As a result of his
injury, claimant underwent a variety of physical therapy regimens
and medical procedures, including a C5-6 and C6-7 cervical
discectomy with fusion and plating, performed on March 3 , 2000.
On June 4 , 2001, a hearing was held before an Administrative
Law Judge (“ALJ”) at which claimant and a vocational expert
testified. In the body of his decision, dated July 2 6 , 2001, the
ALJ made the following observations:
The claimant’s allegations regarding his functional
impairment and [its] impact on his ability to work
[are] not entirely credible in light of the reports of
the treating and examining practitioners and the
findings made on examination. . . .
. . . It was noted by emergency room treating sources
in August 1999 that while he has avoided work on his
farm involving lifting or use of the shoulder, he was
able to do some things around his farm (Exhibit 1 F ) .
. . . Post-operatively the claimant complained of
worsening neck pain and muscle spasms in [his] whole
upper and lower [body]. Yet MRI showed that there was
less compression than there was preoperatively. . . .
Dr. Salerni [claimant’s surgeon] anticipated that
because of these post-operative complications, the
4
claimant’s disability would last only six months
(Exhibit 5F). 2 In June 2000, the claimant was examined
by D r . Stuart Glassman who attributed the claimant’s
pain to de-conditioning and noted non-organic pain
behavior.3 D r . Glassman surmised that with increased
activity the claimant could eventually return to work
activity (Exhibit 7 F ) . An MRI of the lumbar spine
taken in June 2001, while showing bulging at L4-5, also
showed no compromise of the thecal sac or spinal canal
stenosis to explain the claimant’s complaints of back
pain (Exhibit 8 F ) . 4
2
D r . Salerni actually wrote: “It is anticipated that
[claimant’s] disability will last for at least six months.”
(Administrative Transcript (hereinafter “Tr.”) at 231 (emphasis
added).)
3
While D r . Glassman noted both non-organic pain behavior
and deconditioning (Tr. at 2 4 5 ) , he did not attribute claimant’s
pain to deconditioning; he simply listed deconditioning as one of
four impressions of claimant (Tr. at 2 4 5 ) . He did, however, note
that “[a]s of 3/27/00, it was felt that the patient had
mechanical back and neck pain.” (Tr. at 244.)
4
The June 1 , 2001, radiology report includes the following
relevant information:
. . . Note is made of minor straightening of the normal
lordotic curvature of the upper lumbar spine most
likely related to muscle spasm. L1-L2 and L2-L3 disc
spaces are within normal limits. Minor annular bulges
are seen at L3-L4 level. Broad-based annular bulge of
the disc is seen at L4-L5 level associated with left
parasagittal annular tear resulting in increased T2
signal intensity. No disc herniation is seen however
and the thecal sac is not compromised.
Broad-based annular bulge is seen at L5-S1 level.
CONCLUSION: Left parasagittal annular tear seen at L4-
L5 level without focal protrusions or herniations
noted. The disc shows broad-based annular bulge
5
When examined in light of the pain and subjective
complaint criteria, the claimant’s allegations of
disabling pain and subjective complaints are found to
be unexplained by and inconsistent with the objective
medical evidence documented in the record. The
allegations of his disability are not supported by the
record evidence in light of the findings made on
examination. The evidence as a whole does not support
the allegation that the claimant’s pain and subjective
complaints are as disabling as he has alleged. The
evidence credibly suggests that the claimant’s
subjective complaints are out of proportion given
documented objective physical findings.
Further, a range of light work would not exacerbate the
claimant’s condition. His pain or subjective
complaints do not significantly impact the claimant’s
daily activities. While it is apparent from the face
of the evidence that pain and subjective complaints
limit the claimant’s work capacity, it has not been
sufficiently established that they completely preclude
all work activity. Rather, the evidence establishes
that his pain and subjective complaints only limit the
claimant to a range of light work. I , therefore, find
that the claimant does not credibly experience pain or
subjective complaints at the level that would interfere
with his ability to perform a range of light work.
(Tr. at 17-19.) The ALJ’s decision concludes with the following
findings:
without compromise of the thecal sac.
Minor annual bulges are seen at L3-L4 and L5-S1 level.
No spinal canal stenosis is seen.
(Tr. at 276.)
6
5. The undersigned finds the claimant’s allegations
regarding his limitations are not totally credible
for the reason set forth in the body of the
decision.
7. The claimant has the residual functional capacity
to lift and carry no more than 20 pounds
occasionally and 10 pounds frequently. Further,
the claimant is limited in his ability to reach in
all directions with the upper left extremity, must
be able to alternate his position between sitting
and standing at his option, cannot work at heights
or around moving machinery and is limited to
following simple and non complex instructions.
8. The claimant is unable to perform any of his past
relevant work (20 CFR § 404.1565).
12. The claimant has the residual functional capacity
to perform a significant range of light work (20
CFR § 416.967).
13. Although the claimant’s exertional limitations do
not allow him to perform the full range of light
work, using Medical-Vocational Rule 202.22 as a
framework for decision-making, there are a
significant number of jobs in the national economy
that he could perform. Examples of such jobs
include work as an office helper, of which there
are 600 jobs in the local economy and 88,000 jobs
in the national economy, a cashier, of which there
are 2,600 jobs in the local economy and 781,000
jobs in the national economy, a security guard, of
which there are 208 jobs in the local economy and
87,000 jobs in the national economy, a furniture
rental consultant, of which there are 150 jobs in
the local economy and 22,000 jobs in the national
economy and as a charge account clerk, of which
7
there are 300 jobs in the local and 59,000 jobs in
the national economy.
14. The claimant was not under a “disability,” as
defined in the Social Security Act, at any time
through the date of this decision (20 CFR §
404.1520(f)).
(Tr. at 21-22.)
Discussion
According to claimant, the ALJ’s decision should be
reversed, and the case remanded, because the ALJ: (1) failed to
properly weigh his subjective complaints of pain and,
consequently, made a credibility assessment that was not
supported by substantial evidence; (2) made a residual functional
capacity (“RFC”) assessment that was not supported by substantial
evidence; and (3) failed to carry the Commissioner’s burden at
step five of the sequential evaluation process. The Commissioner
disagrees, categorically.
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
8
disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question in
this case is whether claimant has ever been 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
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) .
9
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 . Barnhard, 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). Here, all agree that
claimant does not have the residual functional capacity to
perform his past relevant work. Thus, resolution of his appeal
turns on whether the ALJ correctly determined that he has the
residual functional capacity to perform other work that exists in
the national economy.
10
The claimant bears the burden of proving that he is
disabled. See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146 (1987). He
must do so by a preponderance of the evidence. See Mandziej v .
Chater,
944 F. Supp. 1 2 1 , 129 (D.N.H. 1996) (citing Paone v .
Schweiker,
530 F. Supp. 8 0 8 , 810-11) (D. Mass. 1982)). However,
[o]nce the [claimant] has met his or her burden at Step
4 to show that he or she is unable to do past work due
to the significant limitation, the Commissioner then
has the burden at Step 5 of coming forward with
evidence of specific jobs in the national economy that
the [claimant] can still perform. Arocho v . Sec’y of
Health & Human Servs., 670 F.2d 3 7 4 , 375 (1st Cir.
1982). If the [claimant’s] limitations are exclusively
exertional, then the Commissioner can meet her burden
through the use of a chart contained in the Social
Security regulations. 20 C.F.R. § 416.969; Medical-Vocational Guidelines, 20 C.F.R. p t . 4 0 4 , subpt. P,
App. 2 , tables 1-3 (2001), cited in 20 C.F.R. §
416.969; Heckler v . Campbell,
461 U.S. 458 (1983). “The
Grid,” as it is known, consists of a matrix of the
[claimant’s] exertional capacity, age, education, and
work experience. If the facts of the [claimant’s]
situation fit within the Grid’s categories, the Grid
“directs a conclusion as to whether the individual is
or is not disabled.” 20 C.F.R. p t . 4 0 4 , subpt. P, App.
2 , § 200.00(a), cited in 20 C.F.R. § 416.969. However,
if the claimant has nonexertional limitations (such as
mental, sensory, or skin impairments, or environmental
restrictions such as an inability to tolerate dust, id.
§ 200(e)) that restrict his [or her] ability to perform
jobs he [or she] would otherwise be capable of
performing, then the Grid is only a “framework to guide
[the] decision,” 20 C.F.R. § 416.969a(d) (2001). See
also Pratts v . Chater, 94 F.3d 3 4 , 39 (2d Cir. 1996)
(discussing use of Grid when applicant has
nonexertional limitations).
11
Seavey, 276 F.3d at 5 (parallel citations omitted). 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)).
Claimant insists that the ALJ’s determination of his
residual functional capacity was not supported by substantial
evidence. According to Claimant, the ALJ erred by: (1)
determining that the pain caused by his medical condition did not
prohibit him from working at a full-time job; (2) failing to
perform an analysis that meets the standards set out in Social
Security Ruling (“SSR”) 96-8p, 1996 WL 374184 (S.S.A.) and
20
C.F.R. § 404.1545, which require a full narrative discussion of
the facts that support the ALJ’s conclusions; (3) failing to
consider his need to use a cane for balance; (4) failing to
12
consider in any way the voluminous medical record generated at
the Veterans Administration (“VA”) Medical Center; and (5)
failing to consider the side effects of his pain medication.
The Commissioner counters that the ALJ properly considered
all the record evidence and properly evaluated claimant’s
subjective complaints when making his RFC determination. In
particular, the Commissioner relies upon: (1) a May 2 5 , 2000,
Physical Residual Functional Capacity Assessment by D r . Fairley
(Tr. at 233-41), a nonexamining source, which states that
claimant was disabled after his March 2000 operation, but was
reasonably anticipated to regain an RFC for light work, with some
limitations on reaching, within twelve months after his surgery;
(2) a June, 1 3 , 2000, Initial Outpatient Evaluation by D r .
Glassman (Tr. at 244-45), a treating source, which notes, among
other things, positive indications of non-organic back pain,
including non-organic pain behavior; (3) claimant’s reports of
reduced pain, on September 6, 2000, and October 4 , 2000, recorded
by workers at the VA Medical Center Pain Control Clinic (Tr. at
268, 2 7 0 ) , along with a nurse’s note (Tr. at 270) that claimant
was able to function independently with the basic activities of
13
daily living; (4) several internal inconsistencies in the October
1 6 , 2000, report of D r . Publow (Tr. at 280-84), a non-treating
source, who opined that claimant appeared to have no work
capacity and was at a medical endpoint.5 The commissioner
further argues that neither claimant’s activities of daily life
nor the objective medical record support his claim to be totally
disabled by pain.
The issue before the court is perhaps best framed by the
following statements, contained in the briefs of the parties.
Claimant correctly states:
All the physicians, except one, who gave an opinion as
to the [claimant’s] ability to work stated he was not
capable of performing work. The one physician who
indicated the plaintiff had the exertional capacity for
sedentary work [and who gave his opinion prior to
claimant’s surgery] did not consider [claimant’s]
cervical disc disease when he offered that opinion.
5
D r . Publow wrote a report on his independent medical
examination of claimant, seemingly performed for claimant’s
employer’s workers’ compensation carrier. While that report was
submitted to the Appeals Council but not presented to the ALJ,
the Commissioner does not argue that the court cannot consider
i t , only that any findings that appear favorable to claimant
should be discounted, because of various internal inconsistencies
in the report.
14
(Cl.’s Mem. of Law at 17.) The Commissioner states, equally
correctly:
Through the time of the ALJ’s decision, no
evidence had been submitted showing that any of
[claimant’s] physicians had opined that he had an
impairment that was expected to last for 12 months that
would preclude his performing a limited range of light
work consistent with the ALJ’s RFC finding.
(Comm’r’s Mem. of Law at 11.) That both of the foregoing
statements are correct is precisely the problem with the record
on which the ALJ based his decision that claimant was not
disabled. (See SSR 96-8p, 1996 WL 374184 at *5 (“The adjudicator
must . . . make every reasonable effort to ensure that the file
contains sufficient evidence to assess RFC.”).
The record before the ALJ contained: (1) several pre-surgery
prognoses that proved to be overly optimistic;6 (2) multiple
post-surgery physician statements indicating that claimant was,
6
See, e.g., T r . at 195 (Dr. Bhatia’s December 2 2 , 1999,
letter indicating that claimant had been advised to stay away
from work for two weeks); T r . at 229 (Dr. Salerni’s February 2 2 ,
2000, pre-operative note advising claimant’s creditors that
claimant was expected to regain a reasonable work capacity
approximately one month after his surgery).
15
at the time of examination, disabled;7 (3) claimant’s surgeon’s
March 2 7 , 2000, prediction of a six-month recovery period (Tr. at
2 3 1 ) ; (4) D r . Fairley’s opinion, given less than three months
after claimant’s surgery, that claimant was disabled as a result
of the surgery, but would not be disabled for more than twelve
months (Tr. at 2 4 0 ) ; and (5) D r . Bhatia’s June 6, 2000, opinion
that claimant would be disabled for another six to eight months
(Tr. at 1 7 7 ) . Given claimant’s prior history of taking longer to
recover than his physicians had predicted, the May 2 5 , 2000,
prediction by a non-examining physician that claimant would no
longer be disabled on March 3 , 2001, is hardly determinative.
See Currier, 612 F.2d at 597 (citation omitted). D r . Fairley’s
May 2 5 , 2000, prediction is not sufficient to support a July 2 6 ,
2001, conclusion that claimant actually recovered from his
uniformly acknowledged post-surgery inability to work. See
id.
7
See, e.g., T r . at 231 (Dr. Salerni’s March 2 7 , 2000,
statement that “[g]iven the severity of the problem [claimant] is
totally disabled.”); T r . at 240 (Dr. Fairley’s May 2 5 , 2000,
statement that “[f]rom his surgery in 3/00 the claimant is
considered to be disabled . . . ” ) ; T r . at 245 (Dr. Glassman’s
June 1 3 , 2000, statement that “it does not appear likely that the
patient . . . can go back to work at this point”).
16
Dr. Glassman’s identification of non-organic pain behavior
is also insufficient to support the ALJ’s conclusion. While D r .
Glassman did identify non-organic back pain and non-organic pain
behavior, his full clinical impression consisted o f :
1. History of anterior C5-7 cervical discectomy.
2. Deconditioning.
3. Non-organic pain behavior.
4. Chronic neck and back pain.
(Tr. at 245.) With respect to claimant’s pain, D r . Glassman
wrote: “If there is still persisting pain in the neck and the arm
over the next month, we will consider doing electrodiagnostic
testing for this patient.” (Tr. at 245.) Plainly, D r . Glassman
identified both non-organic pain behavior and actual pain, and
for claimant’s actual pain, D r . Glassman prescribed no fewer than
three pain medications: Relafen, Vicodin, and Flexeril. (Tr. at
245.)
With regard to the source of claimant’s non-organic pain
behavior and the issue of malingering, D r . Glassman wrote:
the remainder of the physical exam was notable for the
increase in non-organic pain behavior as well as the
patient focusing [on] whether or not I would fill out a
disability form for him.
17
. . . The patient seemed clearly [to be] involved with
improving his overall strength and endurance to get
better. . . . However, he has 3/5 Waddell’s findings
which may impact his overall progress while here.
(Tr. at 245.) The first and third sentences quoted above refer
to non-organic pain behavior, which may or may not be a sign of
malingering, but those sentences are properly interpreted in the
context of the second sentence, which tends to discredit
malingering as a source of claimant’s non-organic pain.
Moreover, D r . Glassman said it appeared unlikely that claimant
was able return to work. It is unlikely that he would have
reached that conclusion if he thought claimant was not, in fact,
disabled. D r . Glassman’s report is more favorable to claimant’s
position than the Commissioner realized.
The remainder of the evidence relied upon by the
Commissioner to support the ALJ’s decision is of a similar
nature; it is far less supportive of the decision when read in
light of “the evidence in the record as a whole.” Irlanda Ortiz,
955 F.2d at 769 (citation omitted). For example, the ALJ’s
conclusion that claimant’s “pain or subjective complaints do not
18
significantly impact [his] daily activities” (Tr. at 19) is based
entirely on a single comment made by a clinical nurse specialist
in the VA Medical Center Pain Control Clinic, in a progress note
dated October 4 , 2000. The note on which the ALJ relied did not
discuss any specific daily activities, but simply stated, in
conclusory fashion: “Activity level a little better, he can at
least function independently with basic ADL’s.” (Tr. at 270.)
That same progress note indicates, however, that claimant was
taking a daily dose of morphine sulphate and was walking with a
cane (Tr. at 2 7 0 ) , which suggests something more than an
insignificant impact on claimant’s ability to perform daily
activities.
Similarly, the two VA Medical Center Pain Clinic progress
notes that the Commissioner points to as demonstrating claimant’s
decreased pain paint a rather different picture, when considered
in their entirety. For example, the September 6, 2000, note
reports that claimant had “[i]mproved level of pain control on
MSContin 90 . . . 5:10 level which is very acceptable,” and that
he had “some days w/o use of any BTP med.” (Tr. at 2 6 8 ) .
However, that same note indicates that claimant had a poor
19
appetite, was sleeping poorly, and had a minimal exercise/
activity level. (Tr. at 268.) That note also contains the
following observation of claimant:
41 yo M , looking pale and very uncomfortable – speech
strained
antalgic gait – limps to L
sits w/ wt off of L buttocks
needs to change position freq and stand and
stretch
(Tr. at 268-69.) Finally, the note indicates that claimant had
been prescribed morphine sulphate for both regular daily use and
for breakthrough pain. Thus, the September 6 note documents an
improved but still substantial level of pain.
The evidence the ALJ relied upon, when considered in
context, and in light of all the other evidence of record, falls
short of the quantum necessary to qualify as substantial. See
Irlanda Ortiz, 955 F.2d at 769 (noting the court’s obligation to
consider the entire record); SSR 96-8p,
1996 WL 374184 at *5
(explaining the ALJ’s responsibility to develop the record).
Because the ALJ’s decision was not based upon substantial
evidence, it cannot stand, and the matter must be remanded.
20
On remand, the ALJ should develop a record that focuses on
establishing when, if ever, claimant regained the capacity for
work. As noted above, all agree that claimant was unable to work
after his surgery. But the record contains nothing more
compelling regarding claimant’s renewed ability to work than D r .
Fairley’s May 2 5 , 2000, prediction that he would, at some point
prior to March 3 , 2001, regain that ability. Given that
claimant’s surgery took place over three years ago, it should be
determinable when, if ever, claimant regained the ability to
work. In a similar vein, it would be useful for the ALJ to
structure his decision so that it addresses, separately,
claimant’s pre- and post-operative ability to work. As the court
has ruled, the ALJ’s decision that claimant regained the ability
to work after his surgery is not supported by substantial
evidence. His determination of a pre-surgery ability to work is
on only slightly firmer ground; it would seem, as a logical
matter, that the validity of any pre-surgery conclusion that
claimant was capable of work is at least called into serious
question by the fact that claimant’s impairments did ultimately
prove severe enough to warrant surgery. In any event, i f , on
remand, the ALJ determines that claimant did have the capacity to
21
work prior to his surgery, he should provide a full narrative
discussion of the facts supporting that conclusion, which also
“explain[s] how any material inconsistencies or ambiguities in
the evidence in the case record were considered and resolved.”
SSR 96-8p, 1996 WL 374184 at * 7 .
Conclusion
For the reasons given, claimant’s motion to reverse and
remand (document n o . 8 ) is granted in part and denied in part.
To the extent it seeks reversal of the Commissioner’s decision
denying his application for benefits, the motion is denied. To
the extent it seeks remand to the ALJ for further consideration,
it is granted. The Commissioner’s motion for an order affirming
the ALJ’s decision (document n o . 10) 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 judgment in accordance with this order and
close the case.
22
SO ORDERED.
Steven J. McAuliffe
United States District Judge
May 1 2 , 2003
cc: Raymond J. Kelly, Esq.
David L . Broderick, Esq.
23
