Cook v . SSA CV-03-271-M 01/23/04
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Warren B . Cook,
Claimant
v. Civil N o . 03-271-M
Opinion N o . 2004 DNH 022
Jo Ann B . Barnhart,
Commissioner, Social
Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), Warren B . Cook 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, 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 ) , which is part of the court’s record.
Accordingly, this section is limited to a brief survey of the key
facts.
According to claimant, he became disabled on July 2 , 1999,
due to ulnar nerve damage and back and leg pain. He had “insured
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
status” for disability insurance benefits through December 3 1 ,
2000.
Back and Leg Pain
In September 1996, claimant had disc surgery, as a result of
a workplace injury. In October 1999, he aggravated his back
while lifting an air conditioner, and was diagnosed with
sciatica.
In May 2000, claimant saw D r . Mark Aronson, complaining of
back pain that resulted from driving a rental car. A September
2000 lumbar MRI showed disc degeneration and some bulging without
sign of herniation at L2-3 and L4-5 (with borderline stenosis at
the latter level), and post-surgical changes at L3-4 (without
recurrent herniation but with mild residual degenerative
narrowing). In October 2000, claimant was diagnosed with severe
lumbar tenderness and spasm. The following month, he was
diagnosed with degenerative lumbar disc disease at the L3-4
level, with a prescription for a back brace and physical therapy.
4
In March 2001, claimant reported low back pain radiating
into his upper right leg, and D r . Seddon R. Savage recommended
that he enroll in a pain group, in addition to continuing with
physical therapy and use of a back brace and a TENS unit. In May
2001, claimant reported some improvement in his back. The
following month, he complained of continuing low back pain, made
tolerable by Percocet. Finally, in April 2002, claimant reported
weakness in his right leg, ongoing low back pain radiating into
his right leg, and headaches related to muscle spasm apparently
related to his lower back condition.
Ulnar Nerve Damage
In March 1999, claimant injured his left arm at work, and
was diagnosed with medial epicondylitis. After using splints and
undergoing physical therapy, claimant had surgery on his left
elbow,2 in July 1999, followed by physical therapy. In December
1999 further surgery was recommended, and in January 2000,
claimant had a second elbow operation.3 He followed up with
2
Claimant’s July 2 1 , 1999, “release of flexor origin, left
elbow” was performed by D r . William Mitchell. (Tr. at 331.)
3
Claimant’s January 5 , 2000, “transposition subcutaneous
ulnar nerve, left elbow” was also performed by D r . Mitchell.
(Tr. at 333.)
5
physical therapy. In May 2001, claimant reported ongoing
problems with his left arm, and the following month, he reported
pain and numbness.
Medical Opinions
Claimant’s capacity for work has been predicted and
evaluated on many occasions, in a variety of contexts.
On May 1 2 , 1999, D r . Mitchell saw claimant on a workers’
compensation referral occasioned by his work-related elbow
injury, and indicated that claimant could return to work so long
as he did no work involving use of his left arm. (Administrative
Transcript (“Tr.”) at 326.) On June 30 of that same year,
claimant was examined by D r . Lawrence Luppi of Concentra Medical
Examinations who stated: “Mr. Cook will demonstrate a total
disability of two to six weeks and a partial disability following
this of two to six weeks. The prognosis of return to full
employment is good.” (Tr. at 357.) In an initial evaluation
dated September 2 , 1999, Gilbert Lawrence of Laconia Physical
Therapy indicated the following functional limitations:
“Reaching, lifting, grasping, work duties, driving, sleeping,
grooming, dressing and recreational activities.” (Tr. at 361.)
6
On March 7 , 2000, Lawrence noted the following functional
limitations: “Grasping, lifting, reaching, house and yard work,
recreational activities and work duties.” (Tr. at 367.)
On December 2 , 1999, D r . Mordecai Berkowitz evaluated
claimant prior to his second elbow operation, and predicted that
“he might be capable of resuming light work approximately eight
weeks after surgery.” (Tr. at 375.) Based upon a March 3 0 ,
2000, examination and re-evaluation, D r . Berkowitz reached the
following conclusions:
At the time of this evaluation, this examinee does have
mild objective findings. However, I do believe that
Mr. Cook is capable of working full time in a modified
capacity, with lifting up to 5 pounds frequently and 25
pounds on occasion. I do not believe he should be
required to twist heavy wrenches at this time.
I believe the therapy he is receiving is appropriate
for an additional two to three weeks, and at the end of
approximately an additional three to four weeks I
believe M r . Cook should be capable of resuming his
regular job as a pipe fitter.
(Tr. at 377.)
On July 2 5 , 2000, D r . Mitchell examined claimant, and on
October 3 , 2000, he wrote:
7
Despite conservative measures including supervised
physical therapy to recondition his arm, the patient
continues to be disabled with active use of his left
elbow. It is quite apparent that the patient’s ability
to work would be that in a modified capacity, limiting
any use of his left arm including repetitive power,
grip and grasp maneuvers to less than five pounds. He
should not be in the position to perform any task
requiring power, grip and grasp of his left arm. The
patient would be able to resume work with the above
restrictions pending an evaluation by a hand surgeon to
determine the etiology of his persisting painful
symptoms.
(Tr. at 349.) On December 5 , 2000, D r . Mitchell wrote:
EMG/NCS show a chronic ulnar neuropathy, signs and
symptoms consistent with a permanent deficit in
function of his left hand. He is limited in his
ability to tolerate power, grip, grasp and fine finger
dextrous coordinated maneuvers. . . . Based on his
current complaints and the EMG/NCS, the patient is a
candidate for modified duty, including no heavy
workloads are recommended. Light to moderate work
capacity, perhaps a functional capacity evaluation
would be appropriate at this time.
(Tr. at 350.) It appears that no functional capacity evaluation
was performed at that time.
On April 2 5 , 2001, on some sort of insurance company form,
Dr. Savage reported seeing claimant once, for a consultation,
which he provided without the benefit of any longitudinal
8
information. (Tr. at 380.) Based upon that consultation, D r .
Savage stated that claimant had been totally disabled from July
1999 through the date of consultation, would be released to work
in his regular occupation at some indefinite point, and was
subject to the following work restrictions: “avoid heaving,
lifting, bending, twisting, extending.” (Tr. at 380.)
On May 5 , 2001, D r . Hugh Fairley, a state agency medical
consultant, conducted a Residual Functional Capacity (“RFC”)
Assessment. Regarding exertional limitations, D r . Fairley found
that claimant could: occasionally lift and/or carry twenty
pounds, frequently lift and/or carry ten pounds, stand and/or
walk for about six hours in an eight-hour workday, sit for about
six hours in an eight-hour workday, and push/pull without
limitation. (Tr. at 383.) Regarding postural limitations, D r .
Fairley found that claimant could occasionally climb, balance,
stoop, kneel, crouch, and crawl. (Tr. at 384.) D r . Fairley
found no visual, communicative, or environmental limitations, and
only one manipulative limitation, a limited ability for handling,
which he explained more fully in the narrative section of his
assessment. (Tr. at 385.) In his narrative, D r . Fairley stated:
9
In summary, the claimant is credible. The diagnoses
are status-post lumbar discectomy with chronic low back
pain and radicular symptoms still occurring. Left
ulnar neuropathy, status-post transposition of the left
ulnar nerve, with ongoing symptoms.
It is recommended that the claimant be reduced to
lifting no more than 20 pounds occasionally, no more
than 10 pounds frequently. He should avoid work
requiring frequent bending, stooping, climbing,
kneeling and he should avoid work that requires
frequent left-handed tight grasping.
(Tr. at 389.)
On October 2 4 , 2001, D r . John Sharpe examined claimant. In
a letter dated November 2 , he stated, in pertinent part:
It appears that M r . Cook is clearly not able to resume
his
his prior
prior activities
activities doing
doing heavy
heavy labor;
labor; this
this opinion
opinion
was al
was also reflected in orthopedic and pain management
notes.
It is not clear to me that M r . Cook is disabled from
less demanding activities at this time. At the time of
his orthopedic evaluation in May 2001 it was noted that
vocational rehabilitation was to be sought; the results
of that evaluation are not known to m e .
Certainly such an evaluation should be obtained if
it has not yet been completed.
I do not feel that I am able to make any long-term
estimate of his further treatment or prognosis, given
that I have had limited interaction with M r . Cook at
this time. I note that he was felt by orthopedics to
be improving when last seen in May 2001; a follow up
exam in one year was suggested.
10
(Tr. at 393.)
Finally, on May 2 1 , 2002, in conjunction with an annual
follow-up examination, D r . Richard Corzatt gave a “Medical Source
Statement of Ability to do Work-Related Activities” (Tr. at 401-
0 4 ) , in which he found that claimant could: occasionally lift
and/or carry twenty pounds, frequently lift and/or carry ten
pounds, stand and/or walk for at least two hours in an eight-hour
work day, sit for about six hours in an eight-hour workday, and
push/pull no more than twenty-five pounds with his lower
extremities. D r . Corzatt also found that claimant was limited to
occasional climbing, balancing, kneeling, crouching, crawling,
and stooping; occasional reaching; and had environmental
limitations regarding humidity/wetness and hazards.
Based upon the foregoing, the ALJ made the following
findings:
3. The medical evidence establishes that the claimant
has a left ulnar nerve disorder, status post
surgery and is status post L3-4 discectomy with
low back pain and radiculopathy. These
impairments are accompanied by pain which
interfere[s] with his ability to do basic work
11
activities. Therefore, the claimant has a
“severe” impairment.
5. Prior to December 3 1 , 2000, the claimant ha[d]
pain and functional limitations resulting from the
pain. However, his complaints of pain and alleged
functional limitations were not as severe as
alleged and were only partially credible.
6. Prior to December 3 1 , 2000, the claimant had the
residual functional capacity to lift and carry up
to 20 pounds occasionally and 10 pounds
frequently. He was advised to avoid work that
required frequent bending, stooping, climbing,
kneeling and work that required frequent left-handed grasping.
8. Prior to December 3 1 , 2000, the claimant had the
residual functional capacity to perform light and
sedentary work, but not the full range of light
work.
11. The claimant does not have skills that are
transferable to light occupations (20 CFR
404.1568).
12. If the claimant had the residual functional
capacity to perform the full range of light work
and considering his vocational profile, Rule
202.21 of Table N o . 2 , Appendix 2 , Subpart P,
Regulations Part 404 would direct a conclusion of
“not disabled.”
13. Although the claimant’s nonexertional limitations
do not allow him to perform the full range of
light work, using the above-cited rule as a
framework for decision making, there remain a
12
significant number of jobs in the national economy
that he could perform. Examples of occupations in
which such jobs exist are: construction inspector
(296 jobs regionally and 50,000 jobs nationally),
cost estimator (15 jobs regionally at the
sedentary level and 368 jobs regionally at the
light level and at the light level, 59,000 jobs
nationally), escort vehicle driver (54 jobs
regionally and 4,100 nationally), fast foo[d]
worker (2,100 jobs regionally and 403,000 jobs
nationally) and messenger (674 jobs regionally and
32,000 jobs nationally).
(Tr. at 19-20.)
In the narrative section of his decision, the ALJ stated
that “[a] recent assessment from the treating source [presumably
Dr. Corzatt] allows for work in the light to sedentary range.”
(Tr. at 17.) He then characterized claimant’s residual
functional capacity in the following way:
The undersigned finds that, prior to December 3 1 , 2000,
the claimant was able to sit, stand or walk for up to 6
hours in an 8-hour workday. He had the ability to
occasionally lift and carry up to 20 pounds and
frequently lift and carry objects weighing up to 10
pounds. He should avoid tasks that require frequent
bending, stooping, climbing, kneeling and frequent
left-handed grasping.
In reaching this conclusion, the undersigned adopts the
medical opinion of the State agency medical consultant
regarding the claimant’s abilities to do work related
activities. The undersigned finds that this opinion is
well supported by medically acceptable clinical and
13
laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the
record. Most importantly, this conclusion finds
support in the assessments and opinions of the
examining and treating physicians in this record, Drs.
Berkowitz, Mitchell and Corzatt.
(Tr. at 16-17 (emphasis added).)
Discussion
According to claimant, the ALJ’s decision should be reversed
because the ALJ: (1) incorrectly determined his RFC; (2) failed
to properly analyze his subjective complaints of disabling pain;
(3) failed to pose a proper hypothetical question to the
vocational expert (“VE”); and (4) made an improper credibility
determination. 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 prior to December 3 1 , 2000, the last
date on which he had insured status.
14
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).
In order to determine whether a claimant is disabled for the
purpose of determining eligibility for disability insurance
15
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 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
16
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
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.
17
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)).
Here, the ALJ’s determination that claimant had the capacity
for light work rests upon both factual and legal errors.
Factually, the ALJ overlooked a material inconsistency between
two medical opinions. Because of that error, the ALJ failed to
weigh those conflicting opinions and explain his decision to
credit one over the other.
In the narrative portion of his decision, the ALJ adopted
Dr. Fairley’s RFC assessment and concluded that claimant had the
capacity to “stand or walk for up to 6 hours in a normal 8-hour
workday.” (Tr. at 17.) He went on to state that his conclusion
was “not inconsistent with the other substantial evidence in the
record” and that it was supported, inter alia, by the assessment
of D r . Corzatt. Those statements are both factually incorrect.
Unlike D r . Fairley, who found claimant able to stand and/or
walk for six hours in an eight-hour workday, D r . Corzatt found
that claimant was capable of standing and/or walking “at least 2
18
hours in an 8-hour workday.” In other words, D r . Fairley’s RFC
assessment was inconsistent with D r . Corzatt’s statement of
ability to do work-related activities. That inconsistency is
material because “the full range of light work requires standing
or walking, off and o n , for a total of approximately 6 hours of
an 8-hour workday.” SSR 83-10, 1993 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). Not only was it incorrect for the ALJ to find
that D r . Fairley’s RFC assessment was not inconsistent with the
other substantial evidence in the record, it was also incorrect
to state that D r . Corzatt’s assessment “allow[ed] for work in the
light to sedentary range.” (Tr. at 17.) Because D r . Corzatt
found claimant unable to stand and/or walk for about six hours in
an eight-hour workday, his assessment does not support a finding
that claimant was capable of light work.
Because the ALJ did not recognize the inconsistency between
the evaluations of Drs. Fairley and Corzatt, he did not weigh
those two opinions against one another, as required by 20 C.F.R.
§§ 404.1527(c)(2) and ( d ) , and, necessarily, he did not give good
reasons for discounting the opinion of D r . Corzatt, who was a
treating source. See § 404.1527(d)(2) (“We will always give good
19
reasons in our notice of determination or decision for the weight
we give your treating source’s opinion.”). Accordingly, it is
not possible to affirm the ALJ’s decision that claimant has the
residual functional capacity for light work. While there may be
acceptable reasons for discounting the treating source opinion in
this case, it is up to the ALJ, in the first instance – or on
remand – to develop those reasons.
Because the ALJ’s determination that claimant was capable of
light work cannot be affirmed, his decision may only be affirmed
if substantial evidence supports his determination that claimant
had the residual functional capacity to perform the two sedentary
occupations identified by the VE - cost estimator (a skilled job)
and escort-vehicle driver (an unskilled j o b ) . Based upon the
ALJ’s determination that claimant had no transferrable job skills
(Tr. at 1 8 ) , and claimant’s testimony that he did not have any
knowledge of the costs involved in sprinkler system installation
(Tr. at 5 7 ) , substantial evidence does not support the ALJ’s
determination that claimant had the residual functional capacity
to work as a cost estimator. That leaves escort-vehicle driver.
20
According to claimant, he was unable to work as an escort-
vehicle driver because: (1) that occupation requires frequent
reaching and frequent handling; (2) D r . Corzatt found him capable
of only occasional reaching; and (3) D r . Fairley found him
limited in his ability for handling. The ALJ erred, in
claimant’s view, by failing to ask the VE whether his testimony
conflicted with the Dictionary of Occupational Titles (“DOT”),
and by relying upon the VE’s implicit testimony that the escort-
vehicle driver occupation did not require frequent handling (or
reaching). The Commissioner counters that the ALJ did not
determine that claimant had a generic bilateral limitation in his
ability for handling but, rather, that claimant was unable to
perform only “frequent left-handed grasping” - a subset of the
full range of “handling.” In other words, the Commissioner says
that the ALJ, in adopting D r . Fairley’s RFC assessment, did not
determine that claimant was only capable of occasional handling.
The Commissioner further points out that the VE was aware of
claimant’s precise limitation when he gave his testimony.
Claimant is correct in his assertion that the ALJ failed to
ask the VE whether his testimony about the requirements of
various occupations was consistent with the DOT, as required by
21
SSA 00-4p, 2000 WL 1898704, at * 4 . What is less clear, however,
is whether the VE actually – if implicitly – characterized the
escort-vehicle driver occupation differently than it is
characterized in the DOT. Claimant correctly states that the DOT
lists frequent reaching and frequent handling as physical demands
of the escort-vehicle driver occupation. The V E , however, did
not offer direct testimony to the contrary. Rather, he merely
stated that, based upon the RFC posited by the ALJ (which was
based upon the RFC found by D r . Fairley), claimant was capable of
working as an escort-vehicle driver. If the VE understood D r .
Fairley’s RFC assessment to limit claimant to only occasional
handling, then he must, implicitly, have concluded that escort-
vehicle driving requires occasional rather than frequent
handling, which would be a conclusion in conflict with the DOT.
I f , on the other hand, the VE understood D r . Fairley’s RFC
assessment to include a more narrow limitation that pertained
only to the left arm and to a certain type of handling, then he
did not necessarily conclude that escort-vehicle driving could be
done by a person capable of only occasional handling. Moreover,
it is by no means a logical impossibility that someone with the
handling limitation indicated by D r . Fairley could meet the
physical demands of some occupations requiring frequent handling,
22
depending on the nature of the handling involved in the specific
occupation. Of course, had the pertinent question been asked,
there would be no need to speculate about the VE’s understanding
of the physical demands of escort-vehicle driving. That
shortcoming can be rectified on remand.
Claimant has raised several other objections to the ALJ’s
decision, but because the entire matter is remanded on the
grounds outlined above, it is not necessary to address claimant’s
remaining arguments.
Conclusion
For the reasons given above, claimant’s motion to reverse
(document n o . 4 ) is granted to the extent that this matter is
remanded to the ALJ for further consideration. The
Commissioner’s motion for an order affirming her decision
(document n o . 6 ) is necessarily 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.
23
SO ORDERED.
Steven J. McAuliffe
United States District Judge
January 2 3 , 2004
cc: David L . Broderick, Esq.
Karen B . Nesbitt, Esq.
24
