Down v . SSA CV-04-111-SM 11/16/04
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David W . Downs,
Petitioner
v. Civil N o . 04-111-SM
Opinion N o . 2004 DNH 160
Jo Anne B . Barnhart, Commissioner,
Social Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, David W . Downs,
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, and
asks the court to remand the case. 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 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 . 7 ) . Because that statement is part of the
court’s record, it will be summarized here, rather than repeated
in full.
Claimant suffers from a variety of psychological and
physical conditions, including carpel tunnel syndrome,
degenerative disc disease, and somatoform disorder. He applied
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
for a period of disability beginning on January 1 , 1994, and was
insured for disability benefits through December 3 1 , 1997. The
record in this case includes: (1) a Physical Residual Functional
Capacity Assessment by a state-agency physician, dated January 6,
1997 (Administrative Transcript (hereinafter “Tr.”) at 289-96); 2
(2) a Medical Assessment of Ability to do Work-Related Activities
(Physical) by treating physician George W . Costello, dated
November 1 0 , 1997 (Tr. at 298-302; (3) a Medical Assessment of
Ability to do Work-Related Activities (Mental) by examining
psychologist Thomas P. Lynch, dated April 9, 1998 (Tr. at 333-
3 6 ) ; and (4) a Physician/Psychologist Statement for
Exemption/Limitation from the New Hampshire Employment Program
Work Requirement by treating physician Peter B . Hope, dated June
6, 2001 (Tr. at 342-43).
According to the January 6, 1997, residual functional
capacity (“RFC”) assessment performed by a non-examining agency
physician, Downs was able to stand and/or walk for about six
hours in an eight-hour workday. (Tr. at 290.) According to the
November 1 0 , 1997, report of a treating physician, D r . Costello,
2
The January 6, 1997, assessment was affirmed by agency
physician Burton A . Nault on May 3 0 , 1997. (Tr. at 296.)
4
Downs was able to stand and/or walk for one hour without
interruption and for a total of four hours in an eight-hour day.
(Tr. at 299.)
In her decision denying claimant’s application for
disability insurance benefits, the ALJ made the following
findings:
3. The medical evidence establishes that on the date
his insured status expired the claimant had
degenerative disc disease, back pain and
somatoform disorder, impairments which are severe
but which do not meet or equal the criteria of any
of the impairments listed in Appendix 1 , Subpart
P, Regulations N o . 4 .
4. The claimant’s statements concerning his
impairments and their impact on his ability to
work on the date his insured status expired are
not entirely credible in light of the claimant’s
own description of his activities and life style,
the medical history, the findings made on
examination and the reports of the treating and
examining practitioners.
5. On December 3 1 , 1997, the date his insured status
expired, the claimant lacked the residual
functional capacity to lift and carry more than 20
pounds, or more than ten pounds on a regular
basis, or perform more than unskilled jobs and
work in a low stress environment. He would also
require an opportunity to change positions from
sitting to standing at least every hour.
5
7. On the date his insured status expired, the
claimant’s capacity for the full range of light or
sedentary work was diminished by his inability to
perform more than unskilled jobs and work in a low
stress environment. He would also require an
opportunity to change positions from sitting to
standing at least every hour.
11. Based on an exertional capacity for light and
sedentary work, and the claimant’s age,
educational background, and work experience,
Section 404.1569 and Rule 202.18, Table 2 ,
Appendix 2 , Subpart P, Regulations N o . 4 , would
direct a conclusion of “not disabled.”
12. Although the claimant was unable to perform the
full range of light work on the date his insured
status expired, he was capable of making an
adjustment to work which exists in significant
numbers in the national economy. Such work
includes employment as cashier, outside deliverer,
cafeteria attendant and packing line worker. A
finding of “not disabled” is therefore reached
within the framework of the above-cited rule.
(Tr. at 26-27.)
Discussion
According to claimant, the ALJ’s decision should be
reversed, and the case remanded, because the ALJ: (1) improperly
evaluated the vocational and medical evidence; (2) relied on
improper hypothetical questions and vocational evidence that did
6
not account for all of claimant’s limitations; and (3) made a
credibility determination not supported by substantial evidence.
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
disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question in
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 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
7
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).
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.
8
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 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; MedicalVocational 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
9
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,
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 makes several arguments regarding the ALJ’s
evaluation of the medical and vocational evidence. Specifically,
he claims that the ALJ: (1) mishandled the medical evidence by
failing to properly evaluate, weigh (and clarify) treating
physicians’ evidence and by failing to fully develop the medical
10
record; and (2) adopted an erroneous residual functional capacity
(“RFC”).
Claimant’s arguments are, at several points, based upon a
flatly inaccurate characterization of the record. For example,
the ALJ did not ignore the significance of D r . Costello’s
assessment of claimant’s ability to do work-related activities,
as claimant repeatedly asserts. To the contrary, the ALJ
referred to D r . Costello’s findings in her decision3 and adopted
many of them. Cavalier imprecision such this i s , to say the
least, counterproductive.
However, despite claimant’s overreaching, he identifies an
issue that requires remand - the manner in which the ALJ
addressed claimant’s capacity to stand and/or walk. Claimant’s
capacity for standing and/or walking is important because all
four occupations the ALJ identified as suitable for claimant are
at the “light” exertional level, “which requires standing or
3
As the Commissioner concedes, the ALJ erroneously
attributed D r . Costello’s report to D r . Stone – an understandable
error given the quality of D r . Costello’s penmanship – but the
fact remains that the content of D r . Costello’s report is fully
incorporated into the ALJ’s decision.
11
walking, off and o n , for a total of approximately 6 hours of an
8-hour workday.” SSR 83-10, 1983 WL 31251, at * 6 ; see also
20
C.F.R. § 404.1567(b); Heggarty v . Sullivan,
947 F.2d 9 9 0 , 994
(1st Cir. 1991).
It is not apparent from the ALJ’s decision which assessment
she used to reach her determination of claimant’s RFC, the
January 6, 1997, non-examining physician’s finding that he could
stand and/or walk for six hours per eight-hour day (Tr. at 2 9 0 ) ,
or the November 1 0 , 1997, treating physician’s finding that he
could stand and/or walk for no more than an hour at a time and
for no more than four hours in an eight-hour day (Tr. at 2 9 9 ) .
In the text of her decision, she mentions both the agency
physician’s determination (Tr. at 24) and D r . Costello’s
determination (Tr. at 2 2 ) , but in her formal findings, she does
not select one over the other, and makes no specific finding
regarding claimant’s capacity to stand and/or walk. Rather, she
finds that claimant “would require an opportunity to change
positions from sitting to standing at least every hour,” (Tr. at
2 7 ) , a finding which incorporates part, but not all, of D r .
Costello’s appraisal of claimant’s capacity for standing and/or
12
walking. The ALJ’s question to the Vocational Expert (“VE”) was
phrased in the same way. (Tr. at 48.) Thus, the ALJ’s decision
simply does not provide a finding regarding claimant’s capacity
for standing and/or walking.
There are two possibilities. If the ALJ accepted D r .
Costello’s opinion that claimant was limited to no more than four
hours of standing and/or walking per eight-hour workday, then she
erred in determining that he had the capacity for any form of
light work. I f , on the other hand, she accepted the agency
physician’s opinion that claimant had the capacity to stand
and/or walk for six hours per eight-hour workday, then she had an
obligation to explain the way in which she weighed the two
medical opinions and chose one over the other. See 20 C.F.R. §§
404.1527(c)(2) (“If any of the evidence in your case record,
including any medical opinion(s), is inconsistent with other
evidence or is internally inconsistent, we will weigh all of the
evidence and see whether we can decide whether you are disabled
based on the evidence we have.”);
20 C.F.R. § 404.1527(d)(2) (“We
will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s
13
opinion.”). The need to explain a decision to credit the agency
opinion over D r . Costello’s opinion4 would seem to be heightened
in this case, given the ALJ’s own finding that claimant suffered
from a degenerative condition (Tr. at 2 6 ) , and that acceptance of
the more recent of the two opinions, D r . Costello’s, would
preclude a finding that claimant had the RFC for light work.
Because the ALJ’s decision does not disclose what capacity for
standing and/or walking the ALJ ascribed to claimant, it is not
possible to affirm her decision that claimant has the residual
functional capacity for light work. Accordingly, the case must
be remanded for further consideration of that issue.
Because this case is being remanded, claimant’s remaining
arguments are moot. Nonetheless, the court offers the following
observations. First, D r . Hope’s two-page report (Tr. at 341-42)
4
The Commissioner is mistaken in her characterization of
Dr. Costello’s report as an opinion on a matter expressly
reserved to the Commissioner. Plainly, an ALJ should not
consider, as a medical opinion, a physician’s statement that a
claimant is disabled or a physician’s statement regarding a
claimant’s RFC. However, this case does not involve a statement
by D r . Costello that Downs was disabled, nor does it involve a
statement by D r . Costello specifying Downs’s RFC. Rather, what
is at issue is D r . Costello’s medical opinion that claimant had
the ability to stand and/or walk for only four hours per day.
Downs’s ability to stand and/or walk is a matter of medical
opinion, not a matter expressly reserved to the Commissioner.
14
was completed on June 5 , 2001, more than three years after
claimant’s insured status expired; that report gives no
indication that it was retrospective.5 Thus, D r . Hope’s report
would appear to be irrelevant in determining claimant’s RFC as of
December 3 1 , 1997. Second, without the benefit of a full
analysis, it would appear that the ALJ’s credibility
determination was well supported in the body of her decision.
Among other things, the ALJ noted that claimant’s treatment
history for back, neck, and wrist pain was inconsistent with the
severity of his pain allegations (Tr. at 2 1 ) , and also stated
that D r . Stone’s concerns over claimant’s possible drug-seeking
behavior reflected negatively on claimant’s credibility (Tr. at
22). Third, while the ALJ might have made more specific findings
regarding the impact of claimant’s mental impairments on his
capacity for unskilled work, the law does not require the level
of specificity that claimant invokes. See Lancellotta v . Sec’y
5
In
n addition, that report was completed not to establish
claimant’s RFC for Social Security purposes, but to determine
whether he qualified for a waiver of the work requirement imposed
by the State of New Hampshire’s Temporary Assistance for Needy
Families (“TANF”) program. Thus, the form seems necessarily to
have been related to claimant’s condition at the time of his TANF
application, not some earlier time.
15
of Health & Human Servs., 806 F.2d 2 8 4 , 285-86 (1st Cir. 1986)
(interpreting SSR 85-15,
1985 WL 56857 (S.S.A. 1985)).
Conclusion
For the reasons given, claimant’s motion to remand (document
n o . 6 ) is granted, and the Commissioner’s motion for an order
affirming the ALJ’s decision (document n o . 8 ) 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 judgement in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
November 1 6 , 2004
cc: David L . Broderick, Esq.
Karen B . Nesbitt, Esq.
16
