Beatrice Johnson v . SSA CV-02-37-B 01/21/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Beatrice A . Johnson
v. Civil N o . 02-037-B Opinion N o . 2003 DNH 013
Jo Anne B . Barnhart
MEMORANDUM AND ORDER
On June 8 , 2000, Beatrice A . Johnson filed an application
with the Social Security Administration (“SSA”) for Title II
disability insurance benefits (“DIB”). Johnson alleges that she
has been unable to work since April 2 0 , 1999. The SSA denied her
application initially and again on reconsideration. Johnson
filed a timely request for rehearing on which administrative law
judge (“ALJ”) Matthew J. Gormley III held a hearing on May 1 0 ,
2001. The ALJ issued an opinion dated August 1 4 , 2001 denying
Johnson’s application. Johnson appealed, but the Appeals Council
denied her request for review of the ALJ’s decision. At that
point, the ALJ’s decision became the final decision of the
Commissioner of Social Security (“Commissioner”). Johnson brings this action pursuant to 42 U.S.C. § 405(g)
(1991 & Supp. 2002) seeking judicial review of the denial of her
application for DIB. Johnson argues, among other things, that
the ALJ failed to consider her significant non-exertional
limitations in determining whether or not she was disabled at
Step Five. I agree and therefore grant Johnson’s motion for an
order reversing the decision of the Commissioner, Doc N o . 1 4 , and
deny the defendant’s motion for order affirming the decision of
the Commissioner, Doc. N o . 1 7 .
I. BACKGROUND1
A . Education and Work History
Johnson was forty-six years old when she applied for DIB in
June 8 , 2000. She has a General Educational Development diploma
(“GED”) which is a high school equivalency certificate awarded
after passing an examination. Johnson worked primarily as an
assembly worker in the jewelry and precision bearing businesses.
Johnson left her last position as an assembly worker in 1999,
when she contends she became disabled and could no longer work.
1 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts (Doc. N o . 18) submitted by the parties.
-2- At that time, Johnson had cut her hours from eight hours a day,
five days a week, to four hours a day, five days a week. T r . at 79-80. 2
B. Medical Evidence
Johnson began to experience medical problems several years
before she left her last position as an assembly worker.
Beginning in 1994, Johnson sought medical treatment for left
wrist and left shoulder discomfort and tingling. Her initial
diagnosis was probable overuse syndrome associated with Johnson’s
position as an assembly worker. The overuse resulted in arm
strain, bursitis 3 , tendinitis4 of the left shoulder, and lateral
2 From September 2 0 , 1999 until June 8 , 2000, Johnson worked as a homemaker for a health care company. She left that position because she could no longer work. See T r . at 9 0 . The ALJ determined that there was insufficient evidence in the record to determine whether or not her position as a homemaker constituted “substantial gainful employment.” T r . 1 7 . 3 Bursitis: inflammation of a bursa (a sac or sac-like cavity filled with a viscid fluid and situated at places in the tissues at which friction would otherwise develop), occasionally accompanied by a calcific deposit in the underlying tendon. Dorland’s Illustrated Medical Dictionary, (hereinafter “Dorland’s”) 2 5 4 , 257 (29th ed. 2000). 4 Tendinitis: inflammation of tendons and of tendon-muscle attachments. Dorland’s, supra, at 1797.
-3- epicondylitis.5 T r . 3 3 7 , 3 4 2 , 343.
On January 1 5 , 1996, Johnson visited D r . Matthew J. Donovan
complaining of shoulder pain. D r . Donovan referred Johnson to a
rehabilitation institute because he felt Johnson would benefit
from some intensive rehabilitation. T r . 106. Johnson visited a
rehabilitation institute on January 2 2 , 1996 where she was
evaluated by D r . Nancy E . Johnson.6 D r . Johnson noted, among
other things, that Johnson had attended several treatments of
physical therapy for her shoulder pain. T r . 186. D r . Johnson
recommended advanced physical therapy.
On October 1 0 , 1996, Johnson visited D r . Dennis L . Swartout
for a follow-up evaluation of her neck and shoulder pain. Tr.
113. D r . Swartout referred to a computed tomography (“CT-Scan”)
of the cervical spine that revealed anterior cord compression.
Id.
5 Lateral epicondylitis: an overuse syndrome caused by continued stress on the grasping muscles (extensor carpi radialis brevis and longus) and supination muscles (supinator longus and brevis) of the forearm, which originate on the lateral epicondyle of the elbow. The Merck Manual of Diagnosis And Therapy, 505 (17th ed. 1999). 6 Johnson testified that D r . Nancy E . Johnson is her primary care physician and that she visited D r . Johnson every couple months. T r . 2 5 .
-4- On October 1 6 , 1996, Johnson underwent a Magnetic resonance
imaging (“MRI”) of the cervical spine, as ordered by D r . Johnson.
Tr 193. The MRI results showed cervical spondylosis7 with
spurring at C5-6, and more markedly, C6-7.
On November 1 3 , 1996, Johnson visited D r . Johnson for a
follow-up for Johnson’s left upper extremity symptoms. D r .
Johnson stated that x-rays revealed significant degenerative
changes in the cervical spine. An electromyogram (“EMG”), a
record of muscles at rest, had not revealed any significant
abnormalities.
Johnson was seen by D r . George W . Monlux on December 1 6 ,
1998. Based on his examination of Johnson, D r . Monlux diagnosed
Johnson with Fibromyalgia8 and moderate cervical stenosis9 as
7 Cervical spondylosis: degenerative joint disease affecting the cervical vertebrae...intervertebral disks... ligaments and connective tissue, sometimes with pain or paresthesia radiating down the arms. Dorland’s, supra, at p . 1684. 8 Fibromyalgia: pain and stiffness in the muscles and joints that is either diffuse or has multiple trigger points. Dorland’s, supra, at p . 673. 9 Stenosis: an abnormal narrowing of a duct or canal. Dorland’s, supra, at 1698.
-5- well as possible left thoracic outlet syndrome10 and bicep
tendinitis on the left bicep. D r . Monlux recommended that
Johnson not return to her former work position in her employer’s
wash system for four weeks. T r . 303. He indicated that she was
otherwise released to work at essentially the sedentary
exertional level with no restrictions on fine motor, and
occasionally climbing and reaching. D r . Monlux opined, regarding
her long term prognosis, that Johnson has fairly prominent
degenerative changes of her neck.
On March 2 1 , 1997, Johnson visited D r . Thomas J. Kleeman for
a second opinion. T r . 307-8. D r . Kleeman reported that Johnson
displayed tenderness in the middle and lower cervical spine that
was aggravated by motion. D r . Kleeman questioned the diagnosis
of fibromyalgia and attributed the symptoms to overuse and de-
conditioning. He noted that Johnson’s medical records did not
demonstrate a pathlogical basis for fibromyalgia. D r . Kleeman
10 Thoracic outlet syndrome: any of a variety of neurovascular syndromes resulting from compression of the subclavian artery, the brachial plexis nerve trunks...by thoracic outlet abnormalities such as a dropping shoulder girdle, a cervical rib or fibrous band, an abnormal first rib, or occasionally compression of the edge of the scalenus anterior muscle. Dorland’s, supra, at p . 1769.
-6- did note a tenderness over the left anterior acromion,11 as well
as tenderness over the lateral epicondyle.
On June 1 2 , 1998, D r . Johnson recommended that Johnson
receive a functional capacity evaluation. At that appointment,
Dr. Johnson noted that continuing assembly line work on a long
term basis is simply going to lead to increasing “flares of
symptoms.” T r . 252. On July 2 3 , 1998, physical therapist Maria
Gonzales evaluated Johnson’s functional capacity to assess her
ability to return to gainful employment. T r . 258. Gonzales
opined that Johnson was unable to return to her previous work,
but was capable of sedentary and light work. T r . 257-58. During
a subsequent functional capacity evaluation on December 2 , 1998,
Johnson demonstrated a work capacity for physical activity at the
light to medium exertional level.
Johnson visited D r . Catherine Hawthrone complaining of
painful neck, left shoulder, left elbow, and headaches on April
1 4 , 2000. D r . Hawthorne examined Johnson and found that she had
tenderness in her cervical spine and left elbow. D r . Hawthorne
11 Acromion: the lateral extension of the spine of the scapula, projecting over the shoulder joint and forming the highest point of the shoulder. Dorland’s, supra, at p . 2 1 .
-7- recommended, among other things, that Johnson be conscious of her
posture and body mechanics at work, limit her activities at or
above the shoulder level and avoid pushing, pulling or lifting
more than ten pounds.
During the time period between May 3 1 , 2000 and October 2 ,
2000, Johnson continued to be examined for cervical discomfort,
degenerative disk disease and left shoulder and arm pain. Johnson
had a follow-up appointment with D r . Johnson on February 2 0 ,
2001. D r . Johnson reported that Johnson continued to complain of
neck and shoulder pain. D r . Johnson noted that they had not been
successful with prescribed medications, but that physical
exercise did seem to result in an overall decrease in Johnson’s
symptoms.
D. Treating Physician’s RFC Assessment
On March 1 2 , 2001, D r . Johnson rendered an assessment of
Johnson’s ability to perform work-related activities. D r .
Johnson indicated that Plaintiff’s impairment affected her
ability to lift/carry and she was restricted to lifting a maximum
of ten pounds both frequently and occasionally. D r . Johnson,
however, considered Johnson to be unrestricted as to her
abilities to sit, stand and walk. D r . Johnson further opined
-8- that Johnson was capable of climbing and balancing frequently,
but was limited only to occasional stooping, crouching, kneeling
or crawling. D r . Johnson indicated that Johnson should not
perform any reaching above shoulder level and was limited in her
ability to push/pull. D r . Johnson also determined that Johnson
should not do anything that required prolonged neck flexion for
more than two hours per day, neck stretches of more than twenty
minutes and no “repetitive motion with both shoulders.” T r . 335.
D. Non-Treating Physician
On May 1 3 , 2000, D r . Joseph R. Cataldo completed a residual
physical functional capacity assessment of Johnson in connection
with Johnson’s application for benefits. D r . Cataldo, a medical
consultant to the New Hampshire Disability Determination Services
(“DDS”), assessed Johnson’s work capabilities after reviewing the
medical evidence of record. D r . Cataldo found that Johnson could
occasionally and frequently lift ten pounds. He determined that
she could stand and walk for about six hours in an eight hour
work day and sit for the same. D r . Cataldo found that Johnson
had unlimited push and pull abilities, but was limited in her
ability to lift and/or carry. D r . Cataldo opined that Johnson
could only occasionally climb, balance, stoop, kneel, crouch, and
-9- crawl. T r . 321. D r . Cataldo determined that Johnson’s reaching
in all directions was limited and she should avoid repetitious
overhead reaching movement of the left shoulder. T r . 322-23.
Dr. Cataldo noted Johnson’s long history of neck and left
upper extremity pain, as well the various diagnostic impressions
from her treating sources. D r . Cataldo determined, based on the
treatment notes and reported findings, that Johnson’s allegations
of symptoms were credible, but they were “not credible for her
ability to function.” T r . 326.
E. Administrative Hearing
On May 1 0 , 2001, Johnson appeared before Administrative Law
Judge Matthew J. Gormley, III (the “ALJ”). When asked to
describe her typical day, Johnson stated that she would go to the
grocery store, or visit with her daughter and children. T r . 2 6 .
She stated that she could do the chores around the house, but
that she had to do them slowly and carefully. Id. Johnson stated
that she also prepared the meals and could drive, but that she
avoided driving for more than an hour at a time. T r . 29, 30.
The ALJ asked Johnson why she was disabled and Johnson
responded that her vocational rehabilitation counselor and her
doctor had told her that she should not be working due to the
-10- condition in her neck and shoulders. She later testified,
however, that her vocational rehabilitation counselor wanted her
to get a job or go to school to learn a trade. T r . 2 3 , 2 7 . She
further stated that she was in constant pain that by the end of
the day the pain was at 9.5 on a 0-10 scale. When asked if she
could handle a nonstressful job that did not require her to use
her left shoulder for overhead lifting, Johnson replied “yes, but
I don’t know what.” T r . 2 8 . Johnson testified that she would
likely be unable to work more than four hours a day due to the
pain she experienced and because she could not “move properly.”
Tr. 2 9 .
F. ALJ’s Decision
The ALJ applied the five-step sequential evaluation process
under which disability applications are reviewed. See 20 C.F.R.
§ 404.1520 (2002). The ALJ found the Johnson carried her burden
sufficiently at each of the first four steps in the process.12
At step five, however, the ALJ found that Johnson was “not
disabled” because she retained the capacity to perform work which
12 The ALJ found, at step one, that there was insufficient development in the record to determine whether Johnson’s work after April 2 0 , 1999 constituted “substantial gainful activity.” He therefore continued the sequential evaluation process.
-11- existed in significant numbers in the national economy. Tr. 1 4 ,
17. Specifically, although the ALJ found that Johnson had severe
impairments, including degenerative disc disease of the cervical
spine, and tendinitis/bursitis in the upper left extremity that
precluded her from returning to her former employment, he found
that Johnson retained the RFC to perform sedentary work. The ALJ
further found that Johnson’s non-exertional limitations were
“no[t] significant” and went on to apply Rule 201.21 of the
Medical-Vocational Guidelines (the “Grid”), 20 C.F.R. § 404 App.
2 , Subpart P, Regulation N o . 4 at 201.21. In determining that
Johnson’s claimed non-exertional limitations, including her
testimony concerning the level of pain she feels, “no[t]
significant,” the ALJ found Johnson’s statements about “her
impairments and their impact on her ability to work . . . not
entirely credible in light of the reports of the treating
physician, [Johnson’s] daily activities, and [her] history of
work since the date of alleged onset.” Tr. 15.
Based on an exertional capacity for sedentary work, the ALJ
applied the GRID and concluded that given Johnson’s age,
education, and work experience, she “has not been under a
disability . . . at any time through the date of this decision.”
-12- Tr. 18.
II. STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant’s application for benefits and upon a timely request by
the claimant, this court is authorized t o : (1) review the
pleadings submitted by the parties and the transcript of the
administrative record; and (2) enter a judgment affirming,
modifying, or reversing the Commissioner’s decision. See 42
U.S.C.A. § 405(g). The court’s review is limited in scope,
however, as the Commissioner’s factual findings are conclusive
only if they are supported by substantial evidence. See id.;
Irlanda Ortiz v . Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991). The Commissioner is responsible for
settling credibility issues, drawing inferences from the record
evidence, and resolving conflicting evidence. See Irlanda Ortiz,
955 F.2d at 769; Frustaglia v . Sec’y of Health & Human Servs.,
829 F.2d 1 9 2 , 195 (1st Cir. 1987); see also Tsarelka v . Sec’y of
Health & Human Servs., 842 F.2d 529, 535 (1st Cir. 1988) (“[W]e
must uphold the [C]ommissioner’s conclusion, even if the record
arguably could justify a different conclusion, so long as it is
-13- supported by substantial evidence.”) (citations omitted).
Therefore, the court must “‘uphold the [Commissioner’s] findings
. . . if a reasonable mind, reviewing the evidence in the record
as a whole, could accept it as adequate to support [the
Commissioner’s] conclusion.’” Irlanda Ortiz, 955 F.2d at 769
(quoting Rodriguez v . Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981)).
While the ALJ’s findings of fact are conclusive when
supported by substantial evidence, they “are not conclusive when
derived by ignoring evidence, misapplying the law, or judging
matters entrusted to experts.” Nguyen v . Charter, 172 F.3d 3 1 ,
35 (1st Cir. 1999) (per curiam) (citations omitted). If the
Commissioner has misapplied the law or has failed to provide a
fair hearing, deference to the Commissioner’s decision is not
appropriate, and remand for further development of the record may
be necessary. See Carroll v . Sec’y of Health & Human Servs., 705
F.2d 6 3 8 , 644 (2d Cir. 1983); see also Slessinger v . Sec’y of
Health & Human Servs., 835 F.2d 9 3 7 , 939 (1st Cir. 1987) (“The
[Commissioner’s] conclusions of law are reviewable by this
court.”) I apply these standards in reviewing the issues Johnson
raises on appeal.
-14- III. ANALYSIS
A. General SSA Principles
Under the Social Security Act (the “Act”), an individual
seeking DIB is “disabled” if he or she is unable “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 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) (1991 & Supp. 2002). The Act instructs the ALJ to
apply a five-step sequential analysis to determine whether a
claimant is disabled.13
At step five, the Commissioner must show that despite an
impairment or impairments that preclude the claimant from
returning to her past relevant work, “that there are jobs in the
national economy that [the] claimant can perform.” Heggarty v .
Sullivan, 947 F.2d 9 9 0 , 995 (1st Cir. 1991) (per curiam); see
13 The five-step sequential analysis requires the ALJ to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (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. See 20 C.F.R. § 404.1520 (2002).
-15- also Keating v . Sec’y of Health & Human Servs., 848 F.2d 2 7 1 , 276
(1st Cir. 1988) (per curiam) (citations omitted). In making this
determination, “the standard is not employability, but capacity
to do the job; not whether claimant could actually locate a job,
but whether health limitations would prevent him from engaging in
substantial gainful work.” Keating, 848 F.2d at 276 (citing
Miranda v . Sec’y of Health, Education, and Welfare, 514 F.2d 996,
998 (1st Cir. 1975) (internal quotation marks omitted).
The ALJ is responsible for ensuring that “an adequate record
is developed during the disability hearing consistent with the
issues raised.” Hawkins v . Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Where it is within the power of the ALJ “without
undue effort,” he must fill in an undeveloped record “where there
are gaps in the evidence necessary to a reasoned evaluation of
the claim.” Heggarty, 947 F.2d at 997 (citations omitted).
B. The ALJ Failed to Adequately Consider Johnson’s Non-Exertional Limitations
Johnson contends that the ALJ’s decision should be reversed
arguing, among other things, that the decision was erroneous
because the ALJ erred in evaluating Johnson’s RFC. Johnson
contends that the record demonstrates the existence of several
-16- non-exertional limitations that should have been considered when
evaluating her RFC.
An RFC determination specifies what a claimant can do in a
work setting despite his or her limitations. 20 C.F.R. §
404.1545 (2002). The ALJ must perform a “function-by-function”
assessment of the claimant’s ability to engage in work-related
activities when determining his or her RFC. See Social Security
Regulation (“SSR”) 96-8p, 1996 WL 374184, at *3 (1996); see also
Ferraris v . Heckler, 728 F.2d 5 8 2 , 586-87 (2d Cir. 1984). The
ALJ must address, not ignore, relevant evidence, especially when
that evidence supports the claimant’s cause. See Nguyen, 172
F.3d at 3 5 . In addition, the ALJ must specify the evidentiary
basis for his RFC determination. SSR 96-8p, 1996 WL 374184, at
* 7 ; see also White v . Sec’y of Health & Human Servs., 910 F.2d
6 4 , 65 (2d Cir. 1990) (An ALJ’s failure to specify a basis for
the RFC determination is a sufficient reason to vacate a decision
of the Commissioner).
As described above, the ALJ “directly applied” the Grid when
determining that Johnson was “not disabled.” Tr. 16. Johnson
urges that the ALJ’s sole reliance on the Grid was improper
because Johnson had significant non-exertional limitations that
-17- the ALJ ignored. I agree. The purpose of the Grid is to measure
exertional, or strength, limitations of the claimant in a
streamlined fashion. See 20 C.F.R. § 404 App. 2 , Subpart P,
Regulation N o . 4 at 201.21; Oritz v . Sec’y of Health & Human
Servs., 890 F.2d 5 2 0 , 524 (1st Cir. 1989). If a claimant, such as
Johnson, has other non-exertional limitations, the Grid may not
be applied unless the ALJ makes a finding that the non-exertional
limitations are “not significant.” See Heggarty, 947 F.2d at
995; Oritz,890 F.2d at 524. The ALJ found that the non-
exertional limitations in this case were “not significant” and
therefore directly applied the Grid. The ALJ, however, did not
adequately specify his evidentiary basis for finding that
Johnson’s non-exertional limitations were “not significant.”
Although the ALJ found Johnson’s testimony concerning her pain, a
non-exertional limitation, “not entirely credible,” he also did
not address Johnson’s other non-exertional limitations found both
in the DDS examination by D r . Cataldo, and by her treating
physician, D r . Johnson. T r . 319-328, 331-335.
Dr. Johnson opined that Johnson had postural limitations and
should only occasionally stoop, crouch, kneel and crawl. In
addition, D r . Johnson found that Johnson had manipulative
-18- limitations in her ability to reach, push and pull.
Specifically, D r . Johnson found that Johnson cannot reach above
shoulder level. D r . Johnson opined that Johnson should not have
prolonged neck flexion and should not engage in any repetitive
motion with both shoulders. Moreover, the DDS examination by D r .
Cataldo agreed with D r . Johnson’s RFC characterization with
limitations on Johnson’s ability to stoop, kneel, crouch and
crawl. D r . Cataldo found additional postural limitations in
Johnson’s ability to climb and balance. T r . 321. D r . Cataldo
also agreed that Johnson should avoid repetitious movement of the
left shoulder and avoid overhead reaching. No medical opinions
in the record contradict the non-exertional limitations found by
Dr. Cataldo and D r . Johnson.
The ALJ references both D r . Cataldo and D r . Johnson’s
examinations in his opinion. However, he does not discuss
Johnson’s non-exertional postural and reach limitations; nor does
he discredit these opinions in finding all of Johnson’s non-
exertional limitations “not significant.” The additional non-
exertional limitations may, depending on the weight the ALJ
assigned to the medical opinions, impact the number of jobs
within the sedentary-work category that Johnson could perform.
-19- The ALJ should have either discredited the physicians’ opinions,
if he felt they lacked credibility, or called a vocational expert
to determine the extent to which the non-exertional limitations
affected her ability to perform sedentary work. Because the ALJ
did not properly explain his decision to discount Johnson’s
claimed non-exertional limitations, he could not properly use the
Grid in determining that she was not disabled.14 See Heggarty,
947 F.2d at 996 (Use of the Grid by ALJ improper where the ALJ
did not adequately take into consideration other non-exertional
limitations).
CONCLUSION
I conclude that because the ALJ failed to make specific
findings regarding Johnson’s non-exertional limitations and the
effect these limitations may have on her ability to work, I must
14 Johnson also argues that the Commissioner has not met his burden at step five because he did not show that Johnson can maintain employment. On remand, the ALJ should consider whether Johnson has the ability to perform sustained work activities on a regular and continuing basis, as required by the SSR. See the Social Security Regulation definition of RFC. See SSR 96-8p, (“RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.” A “regular and continuing basis” means 8 hours a day, for 5 days a week).
-20- remand Johnson’s claim for benefits to the Commissioner. On
remand, the Commissioner shall explicitly address the non-
exertional limitations and the physicians’ capacity assessments
detailing them. If any of the non-exertional limitations
identified in these assessments are deemed to be significant, the
Commissioner may not directly apply the Grid and instead shall,
consistent with SSR 96-9p, consult with a vocational expert to
determine the erosion of Johnson’s sedentary occupational base.
For the forgoing reasons, Johnson’s motion to reverse the
decision of the Commissioner (Doc. N o . 14) is granted, and the
Commissioner’s motion to affirm her decision (Doc. N o . 17) is
denied. I vacate the ALJ’s decision, pursuant to sentence four
of 42 U.S.C. § 402(g), and remand this case for further
proceedings in accordance with this Memorandum and Order. The
Clerk of the Court shall enter judgment in accordance with this
order and close the case.
SO ORDERED.
Paul Barbadoro Chief Judge January 2 1 , 2003 c c : David L . Broderick, Esq. Francis M . Jackson, Esq.
-21-