Baird v. SSA CV-97-024-B 03/24/98
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Barbara Baird
v. C-97-024-B
John J . Callahan, P h .D ., Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Barbara Baird appeals the decision of the Social Security
Administration (the "SSA") to reject her application for Social
Security Disability Insurance ("SSDI") benefits at step four of
the mandated five-step sequential analysis. An Administrative
Law Judge ("ALJ") determined that, although Baird suffered from
number of arthritic ailments, including neck, back, and knee
disorders, she had a residual functional capacity ("RFC")
allowing her to perform sedentary work. He opined that she cou
return to her previous work as a gauger in a ball-bearing plant
She was, therefore, found not disabled and not entitled to
benefits. Baird argues, however, that the record lacks
substantial evidence that she could perform her prior work as a ball-bearing gauger, or any other sedentary work.1
For the following reasons, I agree with Baird's contention.
Thus, I vacate the SSA's decision and remand the case for further
proceedings.
I. BACKGROUND
A. Limitations Caused by Pain
Baird states that the pain she experiences from her
impairments, and particularly from the arthritis in her neck.
1 Baird also contends that the Social Security Administration ("SSA") erred in determining the onset date of her conditions, resulting in a date one full year later than the claimed date. Before the SSA's final decision was entered, Baird's attorney pointed out to the SSA that it had erroneously changed the claimed onset date from February 3, 1992, to February 3, 1993 (Tr. at 182), thereby preserving the right to raise the matter on appeal. Examining the matter, I find that the only documents in the record supporting the 1993 onset date are: (1) the ALJ's decision (Tr. at 17); (2) one of the SSA consulting doctor's reports (Tr. at 78); and (3) one SSA reguest for Baird's earnings record (Tr. at 122). All three documents took the February 1993 date from a computerized form (Tr. at 65) prepared by an SSA employee. The data on the computerized form, however, was taken from information Baird filed on Form SSA-3368-BK (1-89) that alleges an onset date in February 1992. (Tr. at 92, 96). In addition, every other document in the record with any bearing on the onset date supports the February 1992 date. (See, e.g., Tr. at 70, 92, 93, 96, 103, 107, 108, 124, 125-141, 171, and 174). These include the SSA earnings report (Tr. at 124) and Baird's medical record (Tr. at 125-141), both of which begin in February 1992. (Tr. at 125-161). Thus, I find that the SSA's entry of a February 1993 onset date was a clerical error and reform the onset date to February 3, 1992.
2 limits her ability to work as well as to engage in her usual
daily living and social activities.
1. Limitations at Work
Baird stopped working on February 3, 1992. (Tr. at 92, 96,
103, 107, 108, and 124). She had been employed as a catheter
inspector at a medical supply company. (Tr. at 46, 125). The
job reguired her to sit for seven hours out of an eight-hour day,
using a micrometer (a magnifying device) to look for
imperfections in catheters. (Tr. at 46, 111). To do the work,
she had to sit upright at a work bench with her arms raised and
out to the sides and with her neck flexed forward, bending her
head over the device. (Tr. at 46). Holding this position
aggravated her arthritis, causing her neck and shoulders to hurt,
numbing her left arm, and ultimately making her unable to
continue working. (Tr. at 45).
Baird held only one other job relevant to this appeal, that
of a gauger in a ball-bearing plant. (Tr. at 46, 49, 113). She
inspected the interior and exterior dimensions of bearing parts.
Id. At the ALJ hearing, as well as on her initial benefits
application, Baird stated that the job reguired the same postural
position and physical movement as catheter inspection work. Id.
Thus, as a gauger, she had to sit for nearly seven hours a day at
3 an assembly-line bench, with her neck flexed so that her head was
bent forward over the gauging device. Id.
2. Limitations with Respect to Daily Living Activities
In addition to the limitations she experienced at work,
Baird stated at the hearing, as she had done in her benefits
application, that her activities of daily living were altered by
her disability. (Tr. at 64-75, 100-106, 114-120). In an early
assessment of her daily living capabilities, she stated that she
could do light housework (Tr. at 100), gualifying this assessment
by stating that she could not mop, vacuum, or carry laundry or
shopping bags, and that she had trouble lifting. (Tr. at 65,
101, 105). She even had trouble carrying a gallon of milk. (Tr.
at 56) .
In later assessments, Baird noted that her condition had
worsened and that she could not shop or clean much because of her
pain, and that it became harder to walk around stores. (Tr. at
116, 120). Often she rode automated carts at the market, and she
planned her trips for times when her family could assist her.
(Tr. at 56, 104). Her husband helped with shopping, housework,
and cooking. (Tr. at 56, 100, 101, 105). If he did not do so,
chores would generally not get done. (Tr. at 104). Often the
chores Baird accomplished were limited to sorting and folding the
4 laundry, and even completion of those tasks required frequent
breaks. (Tr. at 58).
Further, thouqh Baird could usually wash herself and
complete other personal qroominq tasks, she sometimes needed help
with her shoes and stockinqs when her knees were exceptionally
painful. (Tr. at 104). She walked with the aid of a cane or a
walker, and she found that even sitting and standing for any
length of time was uncomfortable and that she had to lie down or
move about. (Tr. at 53-55, 106). She was unable to stoop or
bend over to get items, which she often dropped. (Tr. at 56).
Baird stated that even her sleep was affected by the pain. She
had to get up in the night to ice her knees for relief. (Tr. at
53, 57) .
3. Limitations with Respect to Social Activities
Baird also noted how her disability affected her social
activities. Although Baird stated that she talked on the phone
daily, and either visited her friends using the car or had her
friends visit her (Tr. at 101, 102), she qualified these
generalities by stating that: her pain was constant so that she
often had to get up and move around while chatting (Tr. at 105);
her degree of pain and, thus, her ability to make outings were
limited by the state of the weather (Tr. at 61, 101); she had to
5 drive to shop or visit friends because her pain prevented her
from walking to these destinations as she formerly had done.
(Tr. at 105) .
Moreover, when Baird tried to read books and magazines, she
found it difficult both to sit for long periods of time and to
hold books. (Tr. at 105). She had the same problems when doing
crafts and other tasks with repetitive movements. (Tr. at 52,
60, 101, 105, 107) . Playing a game of cards was difficult too:
even when she elevated the playing surface so that she did not
have to bend her neck, she could only complete one game before
her neck bothered her. (Tr. at 53, 54). She further stated that
watching television for long periods of time was uncomfortable,
even when sitting in a recliner. (Tr. at 60, 105). Finally,
Baird stated that she could no longer bowl, take walks, or engage
in other exercise. (Tr. at 60).
B. Medical History
The record contains evidence that Baird suffers from
numerous degenerative ailments that have not responded well to a
variety of treatments.
1. Medical Ailments
The record indicates that after stopping work, Baird visited
6 her doctors regularly.2 Baird consistently complained of pain in
her cervical spine to numerous physicians, including Drs. Boule-
Bruch, Makman, Ruel, Schlegelmilch, and Thatcher. (Tr. at 125,
126, 128, 129, 131, 132, 134, 135, 136, 138, 139, 140, 141, 143,
146, 147, 152, 155, 158, 161, 163, 170, 174). She also
complained to these physicians of how the pain in her neck
occasionally radiated into her upper back and shoulders, down her
arms, and into her hands, and of how movement of these body parts
caused pain in her neck. (Tr. at 125, 126, 129, 131, 136, 138,
139, 140, 143, 147, 152, 158, 163). X-rays of Baird's neck
showed that her neck pain was caused by cervical arthritis. The
x-rays showed disc space narrowing, narrowing of the bony
passages through which nerves pass, and other bony growths in her
vertebrae. (Tr. at 123, 126, 127, 128, 130, 140, 169, 170).
Although there was no evident nerve root damage (Tr. at 12 6,
146), Baird's doctors, including Drs. Boule-Bruch, Schlegelmilch,
and Thatcher, attributed her neck pain to her condition and
stated that there was no way of providing complete relief. (Tr.
2 The medical record (Tr. at 125-161) shows only two gaps of at most ten weeks between doctor visits, though some of the visits concerned other medical problems not at issue here. In almost every entry made in her medical record, Baird complained of some aspect of the arthritic pain in her knees, lower back, feet, hands, shoulder, or neck.
7 at 129, 131, 135, 136, 139, 170, 172, 174).
In addition to her neck pain, beginning in March 1992, Baird
consistently complained of lower back pain. (Tr. at 128, 131,
132, 134, 135, 136, 139, 140, 141, 143, 146, 147, 149, 152, 154,
155, 158, 161, 163, 169, 170, 172, 174). Like her neck pain,
Baird's back pain caused transient numbness and pain in her legs
and feet. Her doctors attributed her pain to the narrowing of
the disc spaces in her lumbar spine as revealed through x-ray
examination. (Tr. at 131, 133, 140). Again, Baird's physicians
noted that there was nothing they could do about her ailment (Tr.
at 131, 174) and that there was no way of completely relieving
the pain (Tr. at 131, 132, 134, 136, 154, 163, 170, 172).
Baird's third major complaint was of knee pain. Such pain
had been of some concern to Baird before February 1992 (Tr. at
135, 137) but became significantly worse beginning in early 1993.
(Tr. at 135, 138, 139, 147, 149, 150, 152, 154, 157, 158, 159,
161, 169). Multiple clinical tests showed crepitance3 of the
knees (Tr. at 135, 138, 139, 147, 158, 159), and x-rays showed a
progressively worsening narrowing of the right knee spaces as
3 Crepitance is a noise or vibration produced by rubbing bone or irregular cartilage surfaces together. Stedman's Medical Dictionary 368 (William R. Hensyl et al. eds., Williams & Wilkins 25th ed. 1990) .
8 well as bony growths therein. (Tr. at 135, 137, 140, 150, 151,
160). Eventually, assessments showed there was bone-on-bone
contact in Baird's knee. (Tr. at 150). Her doctors stated they
would have replaced her knee had Baird been older. (Tr. at 150,
159) .
Finally, the record shows Baird had a host of other medical
problems. She complained of pain in both her left hip and
shoulder, which pain her doctors determined was caused by the
onset of bursitis. (Tr. at 141, 143, 153, 154, 155, 156, 158,
161, 169, 170) . She continually complained of swelling and
redness in her feet that her doctors observed but that they never
found a cause of or treatment for. (Tr. at 134, 139, 140, 146).
Notes also show that Baird had bony growths on her fingertips and
that her arthritis has spread to her hands and the tendon sheaths
of her finger joints. (Tr. at 152, 153, 154, 158, 161.
2. Medical Treatments
The medical record shows a variety of recommended treatments
and devices including: medications, physical therapy, massage
therapy, water exercises, range of movement exercises, avoiding
stress on the knees, rest, icing, moist heat, a soft collar, ace
bandages or a knee brace, a cane, a walker, lifts, and pain
management technigues. Baird complied with many of these
9 treatment recommendations. Although they were variably
effective, in no instance did they reduce her pain below moderate
levels. (Tr. at 128, 132, 139, 140, 150, 153, 154, 159, 169,
171). For instance, Baird's doctors noted that all attempts at
physical therapy4 failed to relieve her pain. In addition,
Baird's doctors continually tried different medications and
dosages in combination with little success at achieving anything
more than moderate pain reduction. The list of medications
includes: Ansaid, Flexeril, Imipramine, Relafen, Elavil, Advil,
Tylenol, Nuprin, Voltaren, Feldene, Toradol, Seldane, Xanex,
Trilisate, Daypro, Darvocet-N, Zostrix cream, and increasing
dosages of Amitriptyline. The most invasive treatment consisted
of steroid injections, which also proved ineffective. (Tr. at
131, 135, 139, 150, 158-59, 179). Finally, the doctors noted
that either Baird's ailments were inoperable or that it was
inadvisable to operate on them. (Tr. 131, 159). Thus,
commenting on the success of the treatments at alleviating
Baird's pain. Dr. Thatcher, and later Dr. Boule-Bruch, opined
that Baird had reached a "medical end-point." (Tr. at 135, 174) .
4 Although the record does not contain the reports of any physical therapist, the doctors' notes make freguent mention of Baird's lack of success in the physical therapy, suggesting that such therapy did actually occur. (Tr. at 126, 128, 129, 131, 140) .
10 Because of the pain Baird's arthritis caused her and the
lack of successful treatments, her doctors agreed that her
arthritis had significant effects on Baird's functionality. For
instance. Dr. Thatcher reported in his disability evaluations of
Baird that she was between 15 percent and 19 percent disabled
(Tr. at 135, 141), although these assessments only accounted for
a decrease in the range of movement of her neck and back, not her
knees. Also, it is unclear whether pain was a factor in these
assessments. The evaluations stress, in particular, Baird's
inability to flex her neck forward. Thus, Dr. Thatcher found
that Baird should not return to the kind of work she had been
engaged in. (Tr. at 129, 131) .
Dr. Schlegelmilch also commented on Baird's limited forward
neck flexion. In addition, although Dr. Boule-Bruch did find
Baird capable of sedentary work (Tr. at 172, 173), Dr. Boule-
Bruch severely gualified that assessment. The doctor stated that
although she found that Baird could sit for the reguisite period
of time necessary to do sedentary work, such an assessment
assumed the use of a reclining position, not the upright position
of bench work. (Tr. at 181). Finally, although the opinion of
Dr. Ruel, Baird's neurologist, was limited to whether Baird
suffered any nerve damage, about which he commented that there
11 was "a striking paucity of findings" (Tr. at 146), he did observe
a numbness in her arms, legs, and feet "of unknown etiology."
Id.
C. Procedural History
Baird applied for SSDI benefits on February 28, 1994. (Tr.
at 92, 97, 124). The SSA denied the application and the
reconsideration reguest. (Tr. at 70, 85-86). At each stage, the
SSA received a different consulting physician's opinion as to
Baird's disability. (Tr. at 69, 71-78, 84, 85-86). Each
physician based his opinion entirely on the medical record;
neither actually examined Baird. Id. They both stated that her
impairment did not meet the reguirements of a listed impairment,
that she could do sedentary work, and that she could, therefore,
return to work as a ball-bearing gauger. Id.
Baird reguested a hearing before an ALJ to appeal the denial
of benefits. (Tr. at 88, 90). The hearing was held on January
25, 1995, and Baird was represented by an attorney. (Tr. at 42-
64, 90). The ALJ issued a decision on August 17, 1995. The
report contained eight findings and three pages of discussion.
The ALJ held that: (1) Baird met the disability insured status
reguirements; (2) she was not engaged in substantial gainful
activity; (3) her impairments consisted of a back disorder and
12 knee problems that did not meet the severity of a listed
impairment; (4) her assertions of pain limitations were not
credible to the degree alleged; (5) she had an RFC allowing
sedentary labor, except that she was not able to stand, walk, or
sit for prolonged periods of time, and was restricted to lifting
and carrying less than ten pounds; (6) her work as a gauger was
not precluded by her RFC; (7) her work as a gauger was not
precluded by her impairments; and (8) she was not disabled as
defined by the Social Security Act. (Tr. at 17, 18).
The ALJ's discussion illuminated only some of these
findings, focusing on how Baird's allegations of pain were not
credible and, therefore, on how she could return to work as a
ball-bearing gauger. Although the ALJ admitted that Baird's
doctors reported she suffered from severe back and neck pain, he
found that Baird's medications were successful in relieving most
of her pain and discomfort. (Tr. at 15). In addition, the ALJ
stated that because Baird's primary doctor said she was capable
of sedentary work, but also said she was not capable of resuming
her former work, the doctor's opinion was not believable. Also,
the ALJ found the doctor's reports did not have substantial
evidentiary support because Baird's daily activities were not
severely curtailed by her impairments. (Tr. at 16). Citing
13 Baird's activities of daily living questionnaire (Tr. at 100-
109), the ALJ found:
She does not usually have problems caring for her personal needs, e.g., grooming, dressing, cleaning, etc. She is capable of doing light duty cleaning and laundry. She has no problem with concentration. She prepares most of her own meals. She accompanies her husband and helps with the shopping for the household. She is able to drive a car.
(Tr. at 15). Finally, regarding Baird's own account of her
disabling pain, the ALJ stated that such allegations were not
corroborated by the medical record. He asserted that "her lack
of effort to seek appropriate treatment for her pain" and "the
types and dosage[s] of any medications taken" indicated that her
pain allegations were not credible. (Tr. at 16). Rejecting the
evidence of Baird's pain, the ALJ characterized Baird's
exertional limitations as being able to sit for six hours of an
eight-hour day, with frequent breaks; a capacity within the
requirements of sedentary work. (Tr. at 16) .
The ALJ then went on to evaluate Baird's past relevant work.
He stated that seven hours of sitting with occasional standing,
walking, bending, and reaching were required. (Tr. at 16). He
concluded, without further support, that given these requirements
and her RFC, she could perform the job of a gauger. (Tr. at 16).
Because she could return to her prior work as a gauger, Baird was
14 found not disabled. (Tr. at 17). In reaching this finding, no
vocational testimony was admitted.
After the ALJ denied Baird'sclaim, she sought review by the
Appeals Council. (Tr. at 8). The Appeals Council adopted the
ALJ's decision as the SSA's final determination. (Tr. at 4). On
January 14, 1997, Baird filed the present complaint with this
court (document no. 1).
II. STANDARD OF REVIEW
After a final determination by the SSA, and upon the timely
reguest of a party, this court is authorized to: (1) review the
pleadings and the transcript of the record; and (2) enter a
judgment affirming, modifying, or reversing the SSA's decision.
See 42 U.S.C.A. § 405(g) (West Supp. 1997). The court's review
is limited in scope, however, as the SSA's findings are
conclusive if they are supported by substantial evidence. See 42
U.S.C.A. § 405(g); Irlanda Ortiz v. Secretary of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991). Substantial evidence
has been defined as "'more than a mere scintilla,' . . . [and
where such exists], even if the record could support multiple
conclusions, a court must uphold the [SSA's decision]." Pedis v.
Chater, 956 F. Supp. 45, 49 (D. Mass. 1997) (guoting Richardson
15 v. Perales, 402 U.S. 389, 401 (1971)). Moreover, the SSA is
responsible for settling issues of credibility, drawing
inferences from the record evidence, and resolving conflicting
evidence. See Irlanda Ortiz, 955 F.2d at 769. In sum, a court
must, uphold the SSA's findings "if a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
adeguate to support [the SSA's] conclusion." Id. (guoting
Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218,
222 (1st Cir. 1981)). If the SSA has misapplied the law or has
failed to provide a fair hearing, however, deference to the
decision is not appropriate, and remand for further development
of the record may be necessary. See Carroll v. Secretary of
Health & Human Servs., 705 F.2d 638, 644 (2d Cir. 1983); see also
Slessinqer v. Secretary of Health & Human Servs., 835 F.2d 937,
939 (1st Cir. 1987). I review Baird's appeal in light of this
standard.
III. DISCUSSION
Baird does not dispute that the ALJ correctly followed the
first three steps of the five-step analysis reguired by 20 C.F.R.
16 §404.1520 (1997).5 She argues, however, that the ALJ erred at
step four of the analysis in finding her able to perform
sedentary work and, thus, able to return to her previous work as
a ball-bearing gauger. Baird contends that the record lacks
substantial evidence to support such a decision. See Santiago v.
Secretary of Health & Human Servs., 944 F.2d 1, 5 (1st Cir.
1991). I now examine her contention.
At step four of the reguired analysis, an ALJ determines
whether an impairment would prevent a claimant from performing
past relevant work. 20 C.F.R. § 404.1520(e). To do so, the ALJ
assesses: (1) the claimant's RFC -- i.e., what she can do despite
her impairment; and (2) the demands of any of the claimant's past
relevant occupations. See id. If the ALJ finds that the
claimant's RFC does not prevent her from doing her past relevant
work, then the claimant is held able to work and the claim is
denied. Id.; 20 C.F.R. §404.1560(b). In making such findings.
5 An ALJ is reguired to consider the following five steps to determine if a claimant is disabled: (1) whether the claimant is insured under the Social Security Act and not engaged in substantial gainful activity; (2) whether the claimant has a severe impairment that has lasted or will last for twelve months; (3) whether the impairment meets the severity of those listed in 20 C.F.R. P t . 404, Subpt. P, Ap p . 1; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520.
17 an ALJ must explain in detail how he came to the determination.
See Santiago, 944 F.2d at 5-6. This explanation must be based on
the record, which includes any hearing testimony. See id.
1. RFC Analysis
In assessing the RFC of the claimant, the ALJ begins by
reviewing the available medical evidence. See Manso-Pizarro v.
Secretary of Health & Human Servs., 76 F.3d 15, 17 (1st Cir.
1996); Santiago, 944 F.2d at 5. Where the claimant has shown
that she suffers from an impairment that could reasonably be
expected to produce pain, the ALJ must also consider the
claimant's subjective evaluation of the pain and the limitations
that the pain may impose. See Avery v. Secretary of Health &
Human Servs., 797 F.2d 19, 21 (1st Cir. 1986). An ALJ need not
give credence to the claimant's allegations of pain, however, if
they are inconsistent with the medical findings regarding her
condition. See Dupuis v. Secretary of Health & Human Servs., 869
F .2d 622, 623 (1st Cir. 1989); 20 C.F.R. § 404.1529(a), (c)(4);
Social Security Ruling 88-13. Rather, after making specific
findings detailing the inconsistencies, the ALJ may discount the
claimant's allegations of pain and determine her RFC solely from
18 the objective medical analysis of her limitations.6 See Avery,
797 F.2d at 22-23.
In the instant case, I find substantial evidence exists in
the record to support the ALJ's conclusion that Baird was capable
of performing sedentary work.7 The ALJ began by reviewing the
available medical evaluations of Baird's condition. Although the
evidence regarding Baird's ability to perform sedentary work is
somewhat contradictory, overall it provides substantial support
for the ALJ's finding that Baird has a RFC that would allow her
to perform such work. For instance. Dr. Boule-Bruch, Baird's
primary physician, indicated that she had a sedentary work RFC.
Dr. Boule-Bruch found that Baird could sit for the reguisite six
hours within an eight-hour day, albeit in a reclined rather than
an upright position. In addition, although Dr. Thatcher
recommended against Baird returning to the past types of work she
6 To determine the credibility of the claimant's allega tions of pain, the ALJ must consider: (1) the nature, location, onset, freguency, duration, radiation, and intensity of the pain; (2) any precipitating and aggravating factors; (3) the type, dosage, effectiveness, and adverse side-effects of any pain medications; (4) any non-medication forms of treatment for pain relief; (5) any functional restrictions; and (6) the claimant's daily activities. See Avery, 797 F.2d at 29.
7 Sedentary work involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools;" occasional "walking and standing;" and freguent "sitting." See 20 C.F.R. § 404.1567(a).
19 had performed, he found her only between 15 and 19 percent
disabled. Finally, the SSA doctors, on whose recommendations the
ALJ was entitled to rely, see Berrios Lopez v. Secretary of
Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991), reached
similar conclusions, determining that Baird had the physical
strength to perform sedentary work. Other than a limited ability
to walk, stand, crawl, and sguat, the SSA doctors found that she
had no broad postural limitations that would affect her ability
to perform sedentary work.
Next, the ALJ considered Baird's subjective evaluation of
her pain and the limitations that the pain imposed on her ability
to perform sedentary work. Again, the evidence in the record
provides substantial support for the ALJ's finding that Baird is
capable of performing sedentary work. The ALJ did not make
specific findings detailing the inconsistencies between Baird's
allegations of pain and other medical evidence upon which he
based his opinion, as reguired by Avery, 797 F.2d at 22-23,
though the record does provide such support. Specifically,
Baird's allegations were directly contradicted by: (1) her
primary physician's opinion that she had a sedentary RFC; (2) Dr.
Thatcher's opinion that she was only between 15 and 19 percent
disabled; and (3) the SSA doctors' opinions that noted no pain
20 limitations associated with Baird's ability to perform sedentary
work. Further, the ALJ specifically found that her allegations
of pain were contradicted by her own account of her daily living
and social activity capabilities, including her ability to: (1)
do light housework (including sorting and folding laundry,
shopping with the aid of an automated cart, and some cooking);
(2) wash and groom herself; (3) walk with a cane or walker; and
(4) drive. See Ortiz v. Secretary of Health & Human Servs., 890
F .2d 520, 523-24 (1st Cir. 1989).
Although the ALJ did not fully comply with Avery's
reguirement that he specify how the medical record contradicted
the claimant's assertions, see 797 F.2d at 22-23, the record
contains more than enough evidence to support his conclusion,
and, thus, I must affirm the ALJ's finding that Baird can perform
sedentary work. See Irlanda Ortiz, 955 F.2d at 769.
2. Past Work Analysis
After determining the claimant's RFC, the ALJ must next
assess the reguirements of the claimant's past relevant work and
decide whether the claimant can still do that work in light of
her RFC. See Santiago, 944 F.2d at 5.
The initial burden is on the claimant to show that she
cannot perform her past work. Manso-Pizarro, 76 F.3d at 17;
21 Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 794
(1st. Cir. 1987). To carry her burden, the claimant must only
produce evidence of how her functional limitations preclude her
from performing her former work. See Santiago, 944 F.2d at 5.
The ALJ must then ascertain the demands of her usual former work
and compare those demands with the claimant's capabilities. Id.
In making this assessment, the ALJ may rely on the claimant's
description of her work duties and her functional limitations,
including limitations caused by pain. Id.
The ALJ does not have to accept the claimant's description
of her limitations. As noted above, to show that the claimant's
claims of functional loss due to pain are not credible, however,
the ALJ must make specific findings detailing the inconsistencies
he has found between the claimant's assertions of pain and the
objective medical evidence or the claimant's own description of
her capabilities. See Avery, 797 F.2d at 22-23. In the
alternative, the ALJ may rely on the testimony of a vocational
expert to show that a claimed limitation due to pain does not
preclude the claimant's return to her past relevant work. See
Santiago, 944 F.2d at 7; Social Security Ruling 82-62; Social
Security Ruling 82-61. Once the claimant has raised a contention
that her limitations prevent her return to her former work, an
22 expert evaluation is ordinarily essential to refute her
contentions unless the extent of the claimant's functional loss
and its effect on her work capabilities would be apparent even to
a lay person. Santiago, 944 F.2d at 7.
Hence, at step four, where the claimant makes a prima facie
case that she cannot return to work, and the ALJ does not
properly explain why her claims of pain are incredible, or the
ALJ has no expert testimony that the claimant can return to her
work despite the pain limitations, the claimant must prevail at
step four. See Manso-Pizarro, 76 F.3d at 18-19.
Here, Baird successfully made her prima facie case that she
could not return to her past work, including her work as a ball
bearing gauger -- the only occupation at issue in this case. She
testified at the hearing, as she had stated in her benefits
application, that her neck condition and the pain it produced
rendered it impossible for her to meet the postural demands of
both catheter inspection work and ball-bearing gauger work.
Moreover, she testified that the postural demands of both jobs,
specifically neck flexion, were the same. There is no record
evidence to counter this contention as the SSA introduced no
vocational expert testimony. Baird supported her assertion that
she could not return to work as a gauger with considerable
23 medical evidence as well as with her own description of how her
pain has inhibited her daily living and social activities in ways
similar to the way in which it limits her ability to work as a
gauger.
After receiving such evidence, the ALJ concluded that Baird
could not return to work as a catheter inspector, but that she
could return to work as a ball-bearing gauger.8 In reaching this
conclusion, the ALJ found the evidence in support of Baird's
claim regarding her inability to resume work as a gauger was not
credible because it was contradicted by other record evidence. I
find, however, that a reasonable mind reviewing the evidence in
the record could not accept that it lends any support to the
ALJ's conclusion. Thus, the ALJ's conclusion as to Baird's
returning to work as a gauger cannot stand on the present record.
8 This distinction by itself reveals a fatal inconsistency in the ALJ's decision. Without any testimony distinguishing the jobs, and in the face of evidence likening them, the ALJ stated that Baird's condition precluded her from returning to one job but not the other. To reach such a conclusion, the ALJ either: (1) accepted Baird's account of how her pain precluded her from working as a catheter inspector while impermissibly ignoring her just-as-well-supported account of how her pain precluded her from working as a gauger; or (2) impermissibly relied on the SSA's initial benefits determination that made a similar distinction between the two jobs without the benefit of Baird's hearing testimony. In either case, the ALJ abused his power in that he did not properly consider Baird's allegations of how her pain limited her ability to work as a gauger.
24 In rendering this decision, I look in turn to the ALJ's analysis
of the medical evidence and Baird's description of her daily
living and social activities.
(a) The medical record
The medical record reveals that Baird suffers continuous
pain due to arthritis of the cervical spine. Her arthritis
results from the vertebral discs, the vertebrae themselves, and
other bony growths within the cervical spine exerting pressure on
nerves as they pass through that portion of the cervical spine.
The record reveals that Baird's physicians were unable to provide
her with anything more than partial relief from her pain.
Despite physical therapy and courses of numerous types of pain
medications, Baird's neck pain never subsided below moderate
levels. In addition, her physicians stated that her condition is
not amenable to surgery. Conseguently, Baird's physicians stated
that they have reached a "medical end-point" in trying to
eliminate her pain.
Moreover, the medical record reveals that the permanent pain
Baird experiences in her neck limits her ability to perform her
past work as a gauger. Both disability assessments conducted by
Dr. Thatcher stress Baird's inability to flex her neck forward, a
movement necessary when sitting upright and studying materials
25 located on a laboratory tabletop. Consequently, Dr. Thatcher
recommended against Baird returning to such work, a restriction
that implicitly includes her work as a gauger in that it requires
sitting upright and bending one's neck forward to study materials
located on a tabletop. Dr. Boule-Bruch also found that Baird's
condition would prevent her from performing any sedentary work
that required her to bend her neck forward. Further, Dr.
Schlegelmilch commented on Baird's limited forward neck flexion.
Thus, the medical record contains substantial evidence that
Baird's condition would prevent her from returning to work as a
Yet, the ALJ discounted such evidence as incredible, finding
that it was contradicted by other evidence in the record. If I
find substantial support exists for the ALJ's conclusion, I must
accept it. Baird's medical evidence, however, is simply not
contradicted in the way the ALJ claimed it was.
To support his conclusion that Baird's neck pain would not
preclude her returning to work as a gauger, the ALJ stated that
Baird's medications successfully relieved most of her pain.
Nowhere in the extensive medical record, however, is there any
evidence that Baird's pain ever dropped below a moderate level.
All of Baird's physicians stated that hers was a permanent
26 condition and that a reduction of pain to a moderate level was
the best they could attain. Baird's neurologist's statement that
Baird's nervous system was intact and that her pain had an
unknown etiology in no way supports the ALJ's conclusion that
Baird's pain was controlled or non-existent. That Baird's pain
medications were continually changed over the course of a two-
year period shows guite the opposite and corroborates her
doctors' opinion that, at best, her pain was only cut to moderate
levels and could never be completely controlled.
The ALJ also found Baird's allegations of pain contradicted
by her lack of effort to obtain treatment. Yet, this finding,
too, is unsubstantiated by the record. Throughout her treatment
history, the record shows that Baird complied with her treating
physicians' advice, including trying numerous medications;
medications involving injections; and wearing a cervical collar.
She even considered having invasive measures performed against
the advice of her doctors. In sum, she did everything possible
to obtain all appropriate treatment. Nowhere does the ALJ point
to contradicting evidence.
Finally, the fact that Baird's physicians found her able to
do sedentary work but not able to work as a gauger provides no
support for the ALJ's conclusion that she could work as a gauger.
27 The physicians' comments regarding Baird's sedentary work
capabilities do not contradict their statements that Baird's
capabilities prevent her from working as a gauger. The
physicians always gualified their comments about Baird's
sedentary work capabilities by stating that she could not perform
jobs reguiring neck flexion.
I cannot accept that a reasonable mind reviewing such
evidence would find that it lends any support to the ALJ's
discounting of the medical evidence that Baird's neck pain
prevents her from returning to work as a gauger. Therefore,
such discounting of Baird's medical evidence was in error.
(b) Baird's description of her daily living and social activities
Baird's description of how her pain limits her daily living
and social activities substantially corroborates her claim that
her pain limits her ability to work as a gauger. Regarding her
daily living activities, Baird stated that she can no longer
perform household chores that place stress on her neck, such as
carrying groceries or laundry, and vacuuming or mopping. Even in
doing jobs that place minimal stress on her neck, such as sorting
or folding laundry, Baird testified that she has to take multiple
breaks. In addition, she testified how her social activities
were also limited by her pain in a way similar to how her work
28 capabilities were limited. Baird spoke of how she finds it
difficult to hold up books or magazines; do crafts that require
repetitive motions; play a game of cards without elevating the
playing surface so that she does not have to bend her neck at
all; or watch television even when reclining.
Yet, as with Baird's medical evidence, the ALJ also
discounted this evidence as incredible, finding that it was
contradicted by other evidence in the record. Again, if I find
substantial support exists for the ALJ's conclusion, I must
accept it. Baird's description of how her pain limits her
activities, however, is not contradicted in the way the ALJ set
forth in his opinion.
To support his conclusion that Baird's daily living
activities were not affected by her pain to the extent she
claimed, the ALJ cited portions of Baird's daily living
questionnaire wherein she describes how she: can groom and dress
herself; do light cleaning, laundry, and cooking; shop; and drive
a car. Yet, the ALJ ignored Baird's hearing testimony through
which she qualified such generalizations and explained how they
do not contradict her allegations of pain. At the hearing, Baird
testified, for example, that: she can groom and dress herself but
often needs help with actions such as pulling up her stockings;
29 her laundry tasks are limited to sorting and folding, chores
accomplished only with freguent breaks; her shopping is done in
an automated cart and with the assistance of her husband; and her
driving was out of necessity -- i.e., for short distances to
replace walks of the same length that had become too painful.
When discounting Baird's comments about her social
activities, the ALJ also ignored evidence that reconciles Baird's
general comments about her activities with the particularities of
how her pain limits her activities in ways similar to the way in
which it limits her ability to work as a gauger. In discounting
Baird's evidence, the ALJ relied solely on her statements that
she still drives a car to shop and visit friends. He overlooked
the fact that Baird finds it extremely difficult to hold a book
up, play cards, do crafts, or watch television comfortably
because of the demands these activities place on her neck.
Again, I cannot accept that a reasonable mind reviewing such
evidence would find that it lends any support to the ALJ's
conclusion, and, thus, I find that his discounting of Baird's
description of how her pain limits her activities was in error.
Baird has borne her burden of proof that her functional
limitations preclude her from doing her former work, including
her work as a gauger. The ALJ's conclusion to the contrary finds
30 no support in the record. Thus, I must vacate the decision and
remand the case for analysis at the step-five stage of disability
benefits review.
IV. CONCLUSION
For the foregoing reasons, Baird's motion for summary
judgment reguesting reversal of the SSA's decision (document no.
5) is granted, and the SSA's motion to affirm (document no. 8) is
denied. Pursuant to 42 U.S.C.A. § 405(g), the ALJ's decision is
vacated, and this case is remanded for further proceedings.
Judgment shall be entered for the petitioner accordingly.
SO ORDERED.
Paul Barbadoro Chief Judge
March 24, 1998
cc: Michael Kainen, Esg. Maria L. Sozio, Esg. David Broderick, AUSA