Adie v. SSA CV-95-217-SD 08/12/96 P UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Scott L. Adie
v. Civil No. 95-217-SD
Commissioner, Social Security Administration
O R D E R
Pursuant to section 20 5 (g) of the Social Security Act, 42
U.S.C. § 405(g), plaintiff Scott L. Adie seeks review of a final
decision of the Commissioner of the Social Security
Administration denying his claim for benefits. Presently before
the court is plaintiff's motion to reverse, which primarily
argues that the decision of the Commissioner was not supported by
substantial evidence. Defendant has moved for affirmance.
Administrative Proceedings
Plaintiff filed an application for a period of disability
and for disability insurance benefits on November 23, 1993,
alleging an inability to work since October 22, 1992. Transcript
(Tr.) 60-63. The application was denied initially, Tr. 76-77,
and upon reconsideration, Tr. 82-83, by the Social Security Administration. An Administrative Law Judge (ALJ), before whom
plaintiff and his attorney appeared, considered the matter de
novo, and on December 16, 1994, found that plaintiff was not
under a disability. Tr. 12-22.
Applying the five-step seguential evaluation process
prescribed by 20 C.F.R. § 404.1520, the ALJ found that (1) Adie
has not engaged in substantial gainful activity since October 22,
1992; (2) he has "severe degenerative disc disease", Tr. 21; (3)
his impairments or combination of impairments do not meet or
egual the impairments listed in 20 C.F.R. p t . 404, subpt. P, app.
1; (4) his impairments prevent him from performing his past
relevant work as a chef; and (5) he has a residual functional
capacity (RFC) for sedentary work. Tr. 21-22. The ALJ further
found that Adie was not credible regarding the severity of his
subjective complaints of pain and their effect on his ability to
perform substantial gainful activity. Tr. 21.
The Appeals Council denied plaintiff's reguest for review on
February 28, 1995, Tr. 3-4, thereby rendering the ALJ's decision
the final decision of the Commissioner of the Social Security
Administration, subject to judicial review.
Factual Background
Plaintiff Scott Adie had worked for nearly twenty years as a
2 chef when he injured his back while moving a refrigerated salad
table at his place of employment on October 22, 1992. Tr. 39,
113. At the time of the accident, he was head chef at Capucino's
Restaurant in Newton, Massachusetts, and was thirty-eight years
old. Tr. 38, 158. Adie was out of work for approximately six
weeks before he returned on a part-time basis with limited
duties. Shortly thereafter he left work because of a returning
pain in his back, buttocks, and right leg. Tr. 38, 41, 159.
On March 5, 1993, plaintiff was examined by Dr. B. Eugene
Brady, an orthopedic surgeon, who reported that an MRI of
plaintiff's lower spine revealed a herniation of the L5-S1
intravertebral disc. Tr. 113.1 Otherwise, Dr. Brady found that
plaintiff had normal ankle and knee reflexes and a normal motor
exam, although a sensory exam showed some reduction of motion in
his back. Dr. Brady recommended conservative treatment,
including rest and a swimming program, and indicated that if
plaintiff's symptoms did not improve, surgical intervention might
1It appears that plaintiff received medical attention on February 17, 1993, concerning his complaints of back pain, Tr. 112, but the details of this visit are unclear in the record and plaintiff does not describe them in his motion. Defendant, however, states that at such visit plaintiff was able to straighten and raise his right leg 75 degrees and had normal reflexes. See Defendant's Motion at 4. In addition, on such visit, plaintiff was diagnosed with back pain and was prescribed the medications Toradol and Flexeril. It was also recommended that he have an MRI of his spine and that he use a TENS unit. Id.
3 possibly be necessary. Id. Plaintiff continued to see Dr. Brady
in April and May of 1993, complaining of back pain. On May 14,
1993, Dr. Brady reported that from a standing position Adie
continued to have flattening of the lumbar lordosis, consistent
with persistent muscle spasm. Tr. 114.
On April 9, 1993, Adie was evaluated by Dr. Mordecai E.
Berkowitz, an orthopedic surgeon, at the reguest of the carrier
of his employer's workmen's compensation insurance. Adie
complained to Dr. Berkowitz of lower back and right leg pain.
Tr. 118. Dr. Berkowitz observed plaintiff to be in mild
distress, with limited range of motion in his back, and noted
that at that time plaintiff did not appear to be capable of
gainful employment. Tr. 118-20. In addition, he found plaintiff
to have normal ankle and knee reflexes and normal strength. Tr.
118-19. Dr. Berkowitz diagnosed Adie as having a sprain to the
lumbosacral spine with right sciatica and a guestionable
herniated disc at L5-S1. Tr. 119. He further opined that the
objective findings substantiated plaintiff's subjective
complaints, although the limitations in his back motions were
somewhat greater than that which would normally be expected of a
patient who had received the type and degree of therapy that
plaintiff had previously received (traction, hydroculator pads,
ultrasound, and massages). Tr. 119-20. Dr. Berkowitz
4 recommended that claimant undergo a more aggressive
rehabilitative exercise program, and further noted that claimant
might need surgery should a new MRI confirm the presence of a
herniated disc at L5-S1. Tr. 121.
Dr. Scott Masterson treated plaintiff on June 8, 1993, at
the Northeast Rehabilitation Hospital. Tr. 150-52. Dr.
Masterson noted that Adie had L5-S1 disc herniation, centrally
located. Tr. 151. Physical examination revealed minimal lumbar
range of motion and no lumbar lordosis. Tr. 151. He also
reported that Adie's clinical examination was more significant
for localized muscular tenderness, loss of lumbar symmetry, and
deconditioning than specifically for a lumbosacral radiculopathy.
Id. He recommended that Adie go on a six-day course of anti
inflammatory medication, physical therapy, and a swim therapy
program. Tr. 152. At a follow-up examination three weeks later.
Dr. Masterson observed that Adie was still walking with a forward
flexed position and a slight limp in the right leg. Tr. 153.
Adie was also still tender around the right iliolumbar region,
the right PSIS, and somewhat in the sacroiliac region, although
not in the gluteals or the greater trochanter. Id. On this
visit, Adie told Dr. Masterson that he would not take the six-day
course of steroids because he feared the long-term side effects.
Id. However, he agreed to a local steroid injection into the
5 area of the iliolumbar region and the PSIS. Id. Dr. Masterson
recommended a regular swimming program and continuation of Adie's
exercise program, but discontinued physical therapy for Adie's
back. Id. A mid-August progress report to Dr. Masterson written
by Adie's physical therapist indicated that the swimming therapy
had not helped Adie's symptoms. Tr. 124.
On August 16, 1993, Adie reported to Dr. Masterson that he
was feeling worse and that he still was experiencing pain in his
lower back, radiating down into his legs. Tr. 154. At Adie's
reguest. Dr. Masterson referred him to a neurosurgeon for further
work-up and a decision about surgical intervention. Id.
On August 31, 1993, Adie was examined by Dr. Amin F. Sabra,
a neurologist, Tr. 128-29. On this visit, plaintiff reported
pain upon standing or sitting, relieved by lying down on one
side. Tr. 128. Dr. Sabra noted plaintiff was able to straight-
leg raise to 45 degrees bilaterally and that his reflexes were
normal, but that there was diffuse weakness in the left leg. Id.
In addition to a CAT scan and an EMG, Dr. Sabra recommended
conservative treatment. Tr. 129. A CAT scan of plaintiff's
lumbosacral spine, performed on September 10, 1993, revealed mild
stenosis at L5-S1, with disc protrusion centrally and toward the
right, which appeared to impinge on the right SI nerve root and,
to a lesser degree, on the left SI nerve root, proximal to their
6 lateral recesses. Tr. 132. In addition, EMG and NCV tests
revealed bilateral SI radiculopathy, but no active denervation.
Tr. 135. At a follow-up examination. Dr. Sabra recommended
aggressive physical therapy and an epidural block. Tr. 130. Dr.
Sabra also noted the possibility of surgical intervention if
plaintiff did not improve within six weeks. Id.
On November 10, 1993, Adie was examined by Dr. Steven C.
Schachter, a neurologist. After noting that plaintiff's EMG had
been abnormal and that a CAT scan had revealed a herniated L5-S1
disc, both to the right and to the left. Dr. Schachter diagnosed
plaintiff as having a "[c]hronic herniated disc secondary to
[his] work related injury." Tr. 136. After observing that
conventional treatment had not helped plaintiff, he further
opined that plaintiff would be "completely disabled from all
forms of gainful employment including light and sedentary
activity given the degree of pain that he is in and his
functional limitations" until he received surgery. Tr. 136-37.
Plaintiff visited Dr. Edwin G. Fischer, a neurosurgeon, in
February 1994. Tr. 155. Dr. Fischer found plaintiff had limited
range of motion of his back, but that he had normal reflexes and
essentially normal strength in his lower extremities. In
addition, no sensory loss was apparent. In March, after
examining claimant's test results. Dr. Fischer concluded that
7 surgery would not be unreasonable given the duration of
plaintiff's disability. Tr. 156. Dr. Fischer also prescribed
Flexeril and Darvocet.
Dr. Deepak S. Tandon, a neurologist, examined plaintiff on
April 29, 1994, at the reguest of plaintiff's employer's
workmen's compensation carrier. Tr. 158-65. Plaintiff told Dr.
Tandon he was experiencing moderately severe lower back pain,
with right-sided sciatica, and that the pain freguently traveled
down the right buttock to the back of the right knee. Tr. 161,
164. Upon examination. Dr. Tandon found mild restriction of
lumbar spine movements, difficulties with straight-leg raising, a
moderate amount of lumbar muscle spasm, and an antalgic gait.
Tr. 164. Dr. Tandon further found no evidence of a motor or
sensory deficit. Id. He opined that the objective findings did
correlate with the subjective symptoms, Tr. 164-65, and also
noted that he thought surgery would be beneficial to plaintiff,
Tr. 164.
On August 23, 1994, Adie visited Dr. Schachter and told him
that although Dr. Fischer had recommended surgery, he had refused
because of fears of surgical complications. Tr. 141. Adie also
complained of pain as before, varying from dull and constant to
sharp and severe. Id. Dr. Schachter discussed the advisability
of surgery with Adie, prescribed Flexeril and Percocet, and recommended that Adie continue with his TENS unit and swimming
program. Id.
In September 1994, Dr. Schachter completed a medical
assessment of plaintiff's ability to perform work-related
activities. Tr. 142-48. Dr. Schachter opined that for an eight-
hour day, plaintiff would be able to lift and/or carry up to 15
pounds occasionally and up to 10 pounds freguently. Tr. 142. He
also stated that plaintiff could stand and/or walk for 30 minutes
at a time, for a total of three hours per day, and that
plaintiff's ability to sit was not affected by the impairment.
Tr. 143. Furthermore, although plaintiff could occasionally
climb and balance, he could not stoop, crouch, kneel, crawl,
push, or pull. Tr. 144.
Discussion
A. Standard of Review
Pursuant to the Social Security Act, the court may "enter,
upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Secretary
[of Health and Human Services], with or without remanding the
cause for a rehearing." 42 U.S.C. § 405(g) (Supp. 1994).
A denial of social security disability benefits should be
upheld unless "'the Secretary has committed a legal or factual error in evaluating a particular claim.'" Manso-Pizarro v.
Secretary, 76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).
When reviewing a social security disability determination,
the factual findings of the Secretary "shall be conclusive if
supported by 'substantial evidence.'" Irlanda Ortiz v.
Secretary, 955 F.2d 765, 769 (1st Cir. 1991) (quoting 42 U.S.C. §
405(g)). "[S]ubstantial evidence" requires "'more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)); Rodriguez v. Secretary,
647 F .2d 218, 222 (1st Cir. 1981).
However, substantial evidence "is something less than the
weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by
substantial evidence." Consolo v. Federal Maritime Comm'n, 383
U.S. 607, 620 (1966) (citing NLRB v. Nevada Consol. Copper Corp.,
316 U.S. 105, 106 (1942)). Moreover, the decision of the
Secretary must be affirmed, "even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence." Rodriguez Pagan v. Secretary, 819 F.2d 1,
10 3 (1st Cir. 1987) (citing Lizotte v. Secretary, 654 F.2d 127, 128
(1st Cir. 1981)), cert, denied, 484 U.S. 1012 (1988).
It is incumbent on the Secretary "to determine issues of
credibility and to draw inferences from the record evidence."
Irlanda Ortiz, supra, 955 F.2d at 769 (citing Rodriguez, supra,
647 F.2d at 222). Moreover, "the resolution of conflicts in the
evidence is for the Secretary, not the courts." Id.; Evangelista
v. Secretary, 826 F.2d 136, 141 (1st Cir. 1987); see also Burgos
Lopez v. Secretary, 747 F.2d 37, 40 (1st Cir. 1984); Sitar v.
Schweiker, 671 F.2d 19, 22 (1st Cir. 1982).
Since determinations regarding factual issues and the
credibility of witnesses are entrusted to the Secretary, whose
findings should be accorded great deference, see, e.g.,
Frustaglia v. Secretary, 829 F.2d 192, 195 (1st Cir. 1987), the
court "'must uphold the Secretary's findings . . . if a
reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adeguate to support his conclusion.'" Irlanda
Ortiz, supra, 955 F.2d at 769 (guoting Rodriguez, supra, 647 F.2d
at 222).
B. Step 5
Adie challenges the adverse decision below on the ground
that the ALJ erroneously concluded, at step five of the
11 sequential evaluation process, that plaintiff's back pain would
not preclude him from performing sedentary work. At step five
the burden shifts to the Commissioner to demonstrate the
existence of jobs in the national economy that claimant can
perform. Heggartv v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991)
(citing Ortiz v. Secretary, 890 F.2d 520, 524 (1st Cir. 1989)).
In evaluating subjective complaints of pain (and their
effect on a claimant's ability to perform work), the ALJ first
must decide whether there is "'a clinically determinable medical
impairment that can reasonably be expected to produce the pain
alleged.'" Da Rosa v. Secretary, 803 F.2d 24, 25 (1st Cir. 1986)
(quoting Avery v. Secretary, 797 F.2d 19, 21 (1st Cir. 1986)).
"' [OJther evidence including statements of the claimant or his
doctor, consistent with medical findings, shall be part of the
calculus.'" Id. (citing Avery, supra, 797 F.2d at 25; 42 U.S.C.
§ 423(d)(5)(A)). Should the ALJ decide to disbelieve the
claimant, he must make "specific findings as to the relevant
evidence he considered in determining to disbelieve the
[claimant]." Id. at 26 (citing Benko v. Schweiker, 551 F. Supp.
698, 704 (D.N.H. 1982)) .
_____ 1. The Objective Medical Evidence
Although finding Adie suffered from a "severe impairment"
12 causing pain, the ALJ did not believe Adie's complaints of pain
were fully credible as to the severity of the pain or its effect
on his ability to perform substantial gainful activity. Tr. 21.
The ALJ based his conclusion, in part, on the objective findings
of record. Tr. 20.
Claimant testified that his injury causes him to have muscle
spasms and to experience a burning pain radiating down both legs.
Tr. 41. He stated that he is able to sit 15 to 30 minutes before
the pain reappears. Tr. 42. During a typical eight hour work
day, he states he must lie down for three to four hours to
relieve his pain. Tr. 47.
The ALJ's consideration of the objective medical evidence,
and his determination of whether there was a clinically
determinable medical impairment that could reasonably be expected
to produce the pain alleged by Adie, can charitably be described
as vague and incomplete. As an initial matter, it should be
noted that the ALJ concludes that the claimant has "severe
degenerative disc disease," Tr. 21, while in reality there is no
evidence on the record of such disease. Instead, the medical
evidence (including a CAT scan, an MRI, and an EMG), rather
consistently indicates that Adie has a central herniated disc at
13 the location of L5-S1.2 Tr. 113, 135, 136, 151, 156. There is
also some evidence on the record of either bilateral
radiculopathy (disease of the nerve roots), Tr. 135, or of
denervation, Tr. 156.
In addition, the ALJ failed to adequately consider the
medical evidence that could potentially corroborate plaintiff's
claims. When evaluating such allegations, the ALJ should
consider the medical evidence on the record, such as any evidence
of reduced joint motion, muscle spasm, sensory deficit, or motor
disruption. See 20 C.F.R. § 404.1529(2). The ALJ, however,
failed to do so. For example, the ALJ does not mention that two
physicians, upon examination, discovered moderate or persistent
muscle spasms in claimant's lower back. Tr. 114, 164.
Moreover, the ALJ mischaracterizes the medical opinions
relating to whether plaintiff's subjective complaints are
corroborated by objective findings. For example. Dr. Tandon
opined,
Adie currently complains of moderately severe low back pain radiating down the right leg, in the sciatic distribution, to the back of the right knee. Objective findings include mild restriction of lumbar spine movements, difficulties with straight leg raising tests, a moderate amount of lumbar muscle spasm and an antalgic gait. There is no motor or sensory deficit at this time. J-H
2If the ALJ's mistake here was inadvertent, he (or another ALJ) will have the opportunity to clarify it on remand.
14 my opinion, the objective findings do correlate with the subjective symptoms.
Tr. 164 (emphasis added). However, the ALJ concludes that Dr.
Tandon opined that the objective findings did not correlate with
the subjective symptoms.3 Tr. 19.
The ALJ also appears to have only selectively considered the
opinion of one of plaintiff's treating physicians. Dr. Schachter.
A report written by Dr. Schachter on November 10, 1993,4 states.
Until such time that he undergoes surgery, [Adie] is completely disabled from all forms of gainful employment including light and sedentary activity given the degree of pain that he is in and his functional limitations.
Tr. 136-37 (emphasis added). The ALJ instead relies on a
residual functional capacity assessment form that Schachter
filled out in September of 1994 in which he checked a box
3The court pauses here to commend the integrity and skill of defendant's attorney. The court discovered the discrepancy between Dr. Tandon's opinion and the ALJ's rendering thereof from its own review of the record, as plaintiff did not call the matter to the court's attention. The defendant, nonetheless, accurately reports that Dr. Tandon opined that plaintiff's subjective complaints were correlated to his objective findings. See Defendant's Memorandum at 8. Such honesty and attention to detail, although perhaps not availing in the instant circumstance, likely has, and will in the future, serve defendant's counsel well.
4Plaintiff claims that said report was actually written on September 27, 1994, and that it was submitted into evidence at the hearing before the ALJ; however, there is no evidence of such report in the record provided to the court. The court therefore has assumed that plaintiff is referring to the report dated November 10, 1993.
15 indicating that Adie's ability to sit during the day was not
affected by his impairment and which otherwise indicated that
plaintiff was capable of performing activities consistent with
sedentary work.5 Tr. 142-48. As there is little written
commentary in the assessment, there is no express statement about
the degree of pain experienced by plaintiff. There is also no
mention in the assessment of why Dr. Schachter apparently
departed from his previous opinion that the plaintiff experienced
pain so severe as to prevent him from performing sedentary work.
The ALJ relies on the work assessment without mentioning Dr.
Schachter's earlier reports or attempting to reconcile their
conclusions. Given that the Commissioner has the burden of
production at step five, the ALJ's failure to explain why he gave
more weight to Dr. Schachter's report of September 1994--or to
elicit additional evidence that could shed light on Dr.
Schachter's opinion--constitutes error.
In addition, the ALJ misconstrues the opinions of other
physicians concerning whether the objective medical evidence
substantiates claimant's subjective complaints of pain. The ALJ
states that other treating physicians (in addition to Dr.
5Sedentary jobs generally reguire that the worker be able to remain seated most of the day. See Da Rosa, supra, 803 F.2d at 26 (citing Thomas v. Secretary, 659 F.2d 8, 10-11 (1st Cir. 1981)) .
16 Schachter) opined that claimant is qualified for work in the
sedentary range. The court's review of the record reveals no
such statements from a treating or a nontreating physician.
Indeed, even the physicians who examined Adie on behalf of his
employer's workmen's compensation carrier opined that Adie would
not be capable of sedentary or light work until his condition
improved.6
Given the ALJ's misrepresentation of the medical evidence
that could potentially substantiate plaintiff's allegations of
totally disabling pain, the ALJ has failed to provide the
requisite specific findings to support his decision to discount
Adie's reports of pain. It is thus incumbent upon the
Commissioner to re-evaluate whether the objective medical
evidence substantiates Adie's claims of pain.
_____ 2. The Avery Factors
If after evaluating the objective findings the ALJ
determines that the claimant's reports of pain are significantly
6Dr. Tandon opined, "I do not believe that [Adie] is capable of sedentary or light work at this time, as there is enough evidence on the objective testing data (with EMG, MRI and CAT scan)." Tr. 165. Dr. Berkowitz opined, "At this time, this patient does not appear to be capable of gainful employment, but I believe that after two to three weeks of a rehabilitative exercise program, such as a swim program, he may be capable of a modified duty work capacity." Tr. 120.
17 greater than that which can be reasonably anticipated from the
objective evidence, the ALJ must consider other relevant
information. Avery, supra, 797 F.2d at 23. Considerations
capable of substantiating subjective complaints of pain include
evidence of (1) the claimant's daily activities; (2) the
location, duration, freguency, and intensity of the pain; (3)
precipitating and aggravating factors; (4) the type, dosage,
effectiveness and side effects of any medication taken to
alleviate the pain or other symptoms; (5) treatment, other than
medications, received to relieve pain or other symptoms; and (6)
any other factors relating to claimant's functional limitations
and restrictions due to pain. 20 C.F.R. § 404.1529(c) (3); Avery,
supra, 797 F.2d at 23. The court will refer to these
considerations collectively as "the Avery factors."
Although the ALJ considers some of the Avery factors in his
decision to not fully credit plaintiff's reports of pain, he does
not provide the "full description" reguired. See Avery, supra,
797 F.2d at 23. For example, the ALJ relies on the fact that
claimant testified that he uses the medications Flexeril and
Percocet for pain but had, at a much earlier point in time, told
one of his doctors that he was not taking either medication. The
ALJ apparently believed this discrepancy was significant because
(1) claimant had not alleged any side effects from the
18 medications that would justify his decision to not take the
medication at certain times, and (2) the low level of medication
shows that plaintiff's pain is not so severe. In fact, the
claimant testified that he takes 10 milligrams of Percocet a day,
but experiences dizziness and grogginess from it, and that he
takes 10 milligrams of Flexeril three times a day, but said,
"it's a muscle relaxer, so, you know, you don't want to do too
much," Tr. 48.7 In addition, Adie testified that he takes 100
milligrams of Propacet8 three or four times a day for pain, but
the ALJ does not mention this testimony and thus apparently did
not include it in his determination. Tr. 48.
The ALJ also states that Adie testified that his pain is
relieved by the pool therapy program he participates in three
times a week. Adie's actual testimony, however, was that such
relief lasts sometimes for a couple of hours, but that sometimes
the therapy even aggravates his condition. Tr. 44.
The ALJ examined the claimant's daily activities, but.
7The court recognizes that the ALJ is entitled to disregard this testimony if not corroborated by medical records. However, it is preferable that if the ALJ chooses to discount the testimony for such reason, he should so state, instead of mischaracterizing plaintiff's claim.
8Plaintiff appears to be referring to Darvocet, which is indicated for the relief of mild to moderate pain, see P h y s i c i a n s ' D e s k R e f e r e n c e 1433, 1434 (50th ed. 1996), and has been prescribed for him on previous occasions, Tr. 156.
19 again, there are discrepancies between the ALJ's conclusions and
the record. For example, the ALJ notes that Adie is able to
cook, clean, and care for his three-year-old son. However, Adie
testified that his wife does most of the household chores. Tr.
46. He also stated that although he is a former professional
chef, he is now only able to make himself simple lunches. Tr.
46. He states in his Disability Report that he cares for his son
by reading to him, teaching him, and changing his diapers, but
that he can no longer play with him. Tr. 98, 99. There was
further testimony that his son is in day care during the day
until Adie's wife comes home. Tr. 50.
These and other inconsistencies within the ALJ's treatment
of the Avery factors leads this court to conclude that the ALJ
committed legal error by failing to provide a full and complete
description of the factors (in addition to the medical evidence)
capable of substantiating or disproving the claimant's reports of
pain. Thus, on remand, not only must the Commissioner reconsider
the objective medical evidence, but a new consideration of the
Avery factors should be conducted as well.
_____ 3. Use of the Grid
Finally, although the record is not clear on this point, it
appears that the ALJ committed legal error by relying solely on
20 the Medical-Vocational Guidelines set forth in 20 C.F.R. p t . 404,
subpt. P, app. 2 (the Grid). Use of the Grid is appropriate
where the claimant has an impairment that limits his ability to
meet the strength requirements of certain jobs. Ortiz, supra,
890 F.2d at 524; 20 C.F.R. p t . 404, subpt. P, app. 2, §
200.00(e). However, "[w]here a claimant has nonexertional
impairments in addition to exertional limits, the Grid may not
accurately reflect the availability of jobs such a claimant could
perform." Heggartv, supra, 947 F.2d at 996. In these
situations, the Commissioner may rely on the Grid only where
claimant's nonexertional impairment does not "significantly
affect" his ability to perform the full range of jobs at the
relevant strength level. Id. If the nonexertional impairment is
of such character, the Commissioner usually must consider the
testimony of a vocational expert. Id.
The ALJ determined that plaintiff's capacity for sedentary
work was not compromised by his exertional limitations. Tr. 22.
Applying the Grid rules as they relate to sedentary work, the ALJ
determined that the claimant was not disabled. Such use of the
Grid would be appropriate, except that the ALJ also found the
claimant's residual functional capacity "for the full range of
sedentary work is reduced by his pain." Tr. 21. The ALJ did not
21 qualify the extent to which Adie's ability to perform sedentary
work is reduced.
If, on remand, the ALJ determines that the claimant's
residual functional capacity for the full range of sedentary work
is significantly reduced by his pain, the ALJ may not rely solely
on the Grid. See Scott v. Shalala, 30 F.3d 33, 35 (5th Cir.
1994) (pain may constitute a nonexertional factor limiting the
range of jobs a claimant can perform and therefore an ALJ should
rely on expert vocational testimony, not the Grid, to show the
existence of jobs); c f . Da Rosa, supra, 803 F.2d at 26 (pain "may
be a nonexertional factor to be considered in combination with
exertional limitations"). Instead, to fulfill the Commissioner's
burden of showing the existence of jobs in the national economy
that Adie is capable of performing, the ALJ must consider the
testimony of a vocational expert.9
9A further point deserves mention. It appears from the record that the ALJ contemplated that the claimant could perform security guard work involving TV monitoring, which would permit him to stand up whenever he needed to relieve his pain. Tr. 54. If such consideration influenced the ALJ's conclusion that Adie could perform jobs in the national economy, again, the ALJ erred by not consulting a vocational expert. See Scott, supra, 30 F.3d at 35 (holding that it was improper to apply the Grid where claimant needed to alternate between sitting and standing).
22 Conclusion
For the reasons stated above, the court denies plaintiff's
motion to reverse the final decision of the Commissioner
(document 6) and denies defendant's motion to affirm (document
7). The case is remanded back to the Commissioner for
proceedings not inconsistent with this opinion.
If the court had the power, it also would order that the
case be transferred to a different administrative law judge. See
Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996) (discussing
when district court may order transfer to new ALJ). In lieu of
such order, the court will venture to merely suggest or recommend
that a new ALJ be assigned.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
August 12, 1996
cc: Steven I. Bergel, Esg. David L. Broderick, Esg.