Gerry v . SSA CV-04-063-SM 11/8/04
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Patricia K. Gerry,
Petitioner
v. Civil N o . 04-063-SM
Opinion N o . 2004 DNH 158
Jo Anne B . Barnhart, Commissioner,
Social Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Patricia K. Gerry,
moves to reverse the Commissioner’s decision denying her
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, the matter is remanded to the
Administrative Law Judge (“ALJ”) for further proceedings
consistent with this opinion.
Standard of Review
The applicable standard of review 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)).
Regarding 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 . 7 ) . That statement is part of the court’s
record, and will be summarized, rather than repeated in full.
On October 8 , 2000, claimant awoke with numbness on her
right side.2 Eventually, physicians determined that her numbness
was probably caused by demyelinating disease, a condition similar
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).
2 She has not worked since.
3
to multiple sclerosis.3 On several occasions, claimant also
reported to her treating physicians that she was suffering from
fatigue.
Claimant’s capacity for work has been evaluated on several
occasions. The record includes: (1) a November 5 , 2001,
independent neurological examination report by D r . Eugene A .
Lesser;4 (2) a November 2 6 , 2001, residual functional capacity
(“RFC”) assessment by D r . Burton Nault;5 and (3) three medical
3
The principal difference is that demyelinating disease
involves only a single lesion on the spinal cord, while multiple
sclerosis involves multiple lesions.
Dr. Lesser concluded:
Relative to M s . Gerry’s ability to do basic work-related activities, her ability to sit, stand, carry,
bend, and lift is unimpaired. I think it is likely
that she could function at a sedentary level, though
sensory loss in the right hand may limit her ability to
perform some fine motor activity.
(Administrative Transcript (“Tr.”) at 144.)
5
D r . Nault concluded:
In summary at this time, the claimant is
identified as having a probable early multiple
sclerosis syndrome currently with basic residual
numbness in the right upper extremity and somewhat in
the right leg. It would appear that this aspect of her
multiple sclerosis is not at Listings level impairment
and it would appear from the MER provided by her own
4
source statements of ability to do work-related activities by D r .
Gerald Indorf, dated July 5 , 2002, July 2 9 , 2002, and October 1 8 ,
2002. 6
treating sources as well as the current neurological
evaluation by D r . Lesser, that the claimant would
retain a functional capacity that would allow her to
occasionally lift 20 pounds, more frequently 10 pounds
and to be able to stand and ambulate for at least six
hours out of an eight-hour workday and to be able to
sit for at least six hours out of an eight-hour workday
with the ability to do occasional bending, lifting,
crouching, and climbing stairs. It would appear that
the claimant needs to avoid work requiring fine rapid
repetitive manipulation of the right hand and fingers,
and avoid lifting over 5 pounds with the right upper
extremity. This level of activity is supported by the
claimant’s own ADL’s [activities of daily living] which
appear, by history from D r . Lesser, to have shown
definitive improvement since her submitted ADL’s of
05/01.
The claimant’s allegations of symptoms are
credible, however, her symptoms do not support a total
disability at this time, according to the objective
findings and the claimant’s own ADL’s.
(Tr. at 151-52).
6
In the most recent of his statements, D r . Indorf indicated
that claimant: (1) was limited in her ability to lift and carry
because she “cannot lift effectively with right upper extremity”
(Tr. at 1 7 2 ) ; (2) was limited to standing and/or walking less
than two hours in an eight-hour workday (Tr. at 1 7 2 ) ; (3) had an
unlimited ability to sit (Tr. at 1 7 3 ) ; (4) was limited in her
ability to push and/or pull because she “cannot use right upper
extremity effectively” (Tr. at 1 7 3 ) ; (5) could occasionally
balance, kneel, and stoop (Tr. at 1 7 3 ) ; (6) could never climb,
crouch, or crawl (Tr. at 1 7 3 ) ; (7) had limited abilities in
reaching, handling, fingering, and feeling in her right upper
5
After conducting a hearing at which claimant was
unrepresented, the ALJ issued a decision which included the
following findings:
3. The medical evidence establishes that the claimant
has the following medically determinable severe
impairments: demyelinating disease.
5. The claimant retains the residual functional
capacity to lift up to 10 pounds and occasionally
to lift or carry articles like docket files,
ledgers, and small tools, to stand and walk for 2
hours out of an 8 hour workday, and to sit for 6
hours out of an 8 hour workday. She can
occasionally stoop, kneel, and balance, but must
avoid climbing balancing, and crawling. She must
avoid constant, fine, rapid, repetitive motions
with her right upper extremity and concentrated
exposure to temperature extremes, high humidity,
and hazardous machinery. This finding comports
with a substantially full range of sedentary
exertion work.
9. Despite her medically determinable severe
impairments, the claimant retained throughout the
period under review the ability to perform
other work that exists in significant numbers in
the national economy. This finding is made
extremity because she “cannot use right hand effectively/strength
and sensation both impaired” (Tr. at 1 7 4 ) ; (8) had unlimited
abilities in seeing, hearing, and speaking (Tr. at 1 7 4 ) ; (9) had
limited tolerance for temperature extremes, humidity/wetness, and
hazards (Tr. at 1 7 5 ) ; and (10) had unlimited tolerance for noise,
dust, vibration, and fumes (Tr. at 1 7 5 ) .
6
pursuant to the Medical-Vocational Guidelines at
Rules 201.25-201.26.
(Tr. at 17-18.) Absent from the ALJ’s list of findings is any
specific assessment of claimant’s credibility.
Discussion
According to claimant, the Commissioner’s decision should be
reversed, and the case remanded, because the ALJ failed t o : (1)
consider her allegations of disabling fatigue; (2) carry the
Commissioner’s burden of proof at step five of the sequential
evaluation process;7 (3) properly assess her credibility; and (4)
properly advise her of her right to counsel and conduct an
adequate inquiry into her waiver of counsel. Respondent
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
disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question in
7
More specifically, claimant asserts that it was incorrect
for the ALJ to rely upon the Medical-Vocational Guidelines (also
known as “the grid”) to make her step five determination.
7
this case is whether the ALJ correctly determined that claimant
was not 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 [her] physical or mental impairment
or impairments are of such severity that [she] is not
only unable to do [her] previous work but cannot,
considering [her] 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
[she] lives, or whether a specific job vacancy exists
for [her], or whether [she] would be hired if [she]
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).
8
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).
The claimant bears the burden of proving that she is
disabled. See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v .
9
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).
Seavey, 276 F.3d at 5 (parallel citations omitted). Finally,
10
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 contends that the ALJ did not properly consider her
subjective complaints of disabling fatigue and did not properly
assess her credibility in determining, at step five, that she was
not disabled. Respondent disagrees, arguing that claimant was
not entitled to a particularized evaluation of her claim of
disabling fatigue and that the ALJ’s credibility determination is
supported by substantial evidence.
According to Social Security Ruling (“SSR”) 96-7p, 1996 WL
374185 (S.S.A), “an individual’s statement(s) about his or her
symptoms8 is not in itself enough to establish the existence of a
8
“A symptom is an individual’s own description of his or
her physical or mental impairment(s).” SSR 96-7p, 1996 WL
374186, at * 2 .
11
physical or mental impairment or that the individual is
disabled.” Id. at * 2 . When “symptoms, such as pain, fatigue,
shortness of breath, weakness, or nervousness,”
id. are alleged,
SSR 96-7p prescribes a two-step evaluation process:
* First, the adjudicator must consider whether
there is an underlying medically determinable physical
or mental impairment(s) – i.e., an impairment(s) that
can be shown by medically acceptable clinical and
laboratory diagnostic techniques – that could
reasonably be expected to produce the individual’s pain
or other symptoms. . . . If there is no medically
determinable physical or mental impairment(s), or if
there is a medically determinable physical or mental
impairment(s) but the impairment(s) could not
reasonably be expected to produce the individual’s pain
or other symptoms, the symptoms cannot be found to
affect the individual’s ability to do basic work
activities.
* Second, once an underlying physical or mental
impairment(s) that could reasonably be expected to
produce the individual’s pain or other symptoms has
been shown, the adjudicator must evaluate the
intensity, persistence, and limiting effects of the
individual’s symptoms to determine the extent to which
the symptoms limit the individual’s ability to do basic
work activities. For this purpose, whenever the
individual’s statements about the intensity,
persistence, or functionally limiting effects of pain
or other symptoms are not substantiated by objective
medical evidence, the adjudicator must make a finding
on the credibility of the individual’s statements based
on a consideration of the entire case record. . . .
This requirement for a finding on the credibility of
the individual’s statements about symptoms and their
effects is reflected in 20 CFR 404.1529(c)(4) and
416.929(c)(4).
12
Id. (emphasis added).
Here, it is not evident from the ALJ’s decision that she
followed the two-step process set out in SSR 96-7p. There is no
discussion of whether claimant’s diagnosis, demyelinating
disease, could reasonably be expected to produce fatigue of the
kind Gerry claims to experience.9 Assuming that the ALJ’s
decision implies a step-one determination favorable to claimant,
the decision lacks a specific finding on claimant’s
credibility.10 The ALJ’s failure to follow the two-step process
established by SSR 96-7p constitutes legal error requiring
remand. On remand, the ALJ should follow the process described
in SSR-96-7p, and, in light of D r . Nault’s assessment of
9
Respondent argues that no controlling authority mandates a
particularized credibility assessment of claimant’s complaints of
fatigue. The court notes that SSR 96-7p includes fatigue in a
non-exclusive list of symptoms subject to the two-step evaluation
process. Moreover, to the extent claimant’s medical records and
her testimony before the ALJ both include several references to
fatigue, the ALJ had sufficient notice of the need to conduct the
requisite analysis.
10
10In her memorandum of law, the Commissioner argues as if
the ALJ did make a credibility determination, and while it might
be inferred from the decision that the ALJ necessarily did not
find claimant’s assertion of disabling fatigue to be credible, no
explicit (or reviewable) finding appears in either the text of
the decision or the numbered findings.
13
claimant’s credibility,11 the ALJ should consider the following
guidance:
[I]f the case record includes a finding by a State
agency medical or psychological consultant or other
program physician or psychologist on the credibility of
the individual’s statements about limitations or
restrictions due to symptoms, the adjudicator at the
administrative law judge or Appeals Council level of
administrative review must consider and weigh this
opinion of a nonexamining source under the applicable
rules in 20 CFR 404.1527 and 416.927 and must explain
the weight given to the opinion in the decision.
Id. at * 8 .
Because this case is being remanded, and claimant is now
represented by counsel, her argument that the ALJ failed to
properly advise her regarding her right to counsel would appear
to be moot. Similarly, there is no need for a full analysis of
claimant’s claim that the ALJ improperly relied upon the Medical-
Vocational Guidelines in determining that claimant was not
disabled.12 However, on remand, the ALJ should give due
11
D r . Nault wrote: “The claimant’s allegations of symptoms
are credible, however, her symptoms do not support a total
disability at this time, according to the objective findings and
the claimant’s own ADL’s.” (Tr. at 152.)
12
According to claimant, use of the Medical Vocational
Guidelines was inappropriate because: (1) she was unable to
14
consideration to two issues raised by claimant: (1) the
applicability of Rule 201.26 where, as here, “[t]he
transferability of skills is not an issue” (Tr. at 1 8 ) ; and (2)
the internal inconsistency in Finding 5 concerning balancing (Tr.
at 1 8 ) .
Conclusion
For the reasons given, claimant’s motion to reverse and
remand (document n o . 5 ) is granted in part and denied in part.
To the extent it seeks reversal of the Commissioner’s decision
denying her 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 . 6 ) 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
perform a full or nearly full range of sedentary work due to
limitations in her ability to use her right upper extremity; (2)
grid rule 201.26 does not apply to persons such as claimant, who
lack transferrable skills; and (3) grid rule 201.25 does not
apply to persons who must avoid all balancing.
15
court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe
Chief Judge
November 8 , 2004
cc: David L . Broderick, Esq.
Raymond J. Kelly, Esq.
16
