Brunei v. SSA

• Court: District Court, D. New Hampshire
• Decided: January 26, 1999
• Docket: CV-97-306-SD
• Status: Published

Opinion

Brunei v. SSA CV-97-306-SD 01/26/99 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Wilma Brunei

v. Civil No. 97-306-SD

Kenneth S. Apfel, Commissioner, Social Security Administration

O R D E R

Pursuant to 42 U.S.C. § 405(g), plaintiff Wilma Brunei moves

to reverse the Commissioner's decision denying her application

for Social Security Disability Insurance Benefits under Title II

of the Social Security Act, 42 U.S.C. § 423 (the Act). Defendant

objects and moves for an order affirming the Commissioner's

decision.

Background

Pursuant to Local Rule 9.1, the parties have filed a joint

statement of material facts (document 8), which the court hereby

incorporates.

____________________ Administrative Proceedings

Brunei filed an application for a period of disability and

for social security disability benefits on January 9, 1996,

alleging an inability to work since October 1, 1995. Transcript of Record (Tr.) at 55-57. The Social Security Administration

initially and upon reconsideration denied the application. Tr.

at 68-69, 82-83. On August 8, 1996, a de novo hearing was held

before an Administrative Law Judge (ALJ), who denied plaintiff's

application. Tr. at 7-16.

Applying the five-step, sequential evaluation process

prescribed by 20 C.F.R. § 404.1520,1 the ALJ found that (1)

Brunei has not engaged in substantial gainful employment since

October 1, 1995; (2) Brunei suffers from "severe venous stasis,"

a severe medically determinable physical impairment; (3) Brunei

does not have an impairment listed in or medically equal to the

impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1; (4)

because of Brunei's impairment, she is not able to return to her

past relevant work; and (5) despite her impairment, Brunei has

the residual functional capacity (RFC) to perform the full range

of sedentary work. Tr. at 15.

The ALJ also found that Brunei's subjective complaints of

pain were not credible in view of the conservative medical

1The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. 20 C.F.R. § 404.1520 (1998).

2 therapy, the testimony at her hearing, and her functional

capabilities. Id. Because he determined that Brunei's

impairment and related symptoms imposed only exertional

limitations, the ALJ applied the Medical-Vocational Guidelines

(the "Grid") in determining that Brunei is not disabled. Tr. at

14.

On April 25, 1997, the Appeals Council affirmed the ALJ's

decision, Tr. at 4-6, thereby rendering the ALJ's decision the

final decision of the Commissioner and one subject to judicial

review.

Discussion

1. Standard of Review

Following a final determination by the Commissioner, and

upon timely request by a party thereto, the reviewing court

"shall have the power to enter, upon the pleadings and transcript

of the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with or without

remanding the cause for a rehearing." 42 U.S.C. § 405(g) (1997).

Findings of fact by the Commissioner, if supported by substantial

evidence, shall be conclusive.2 Id.; see also Irlanda Ortiz v.

Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st Cir.

Substantial evidence is "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) ) .

3 1991). It is for the Commissioner "to determine issues of

credibility and to draw inferences from the record evidence," and

"the resolution of conflicts in the evidence is for the

[Commissioner], not the courts." Id.

Accordingly, the Commissioner's decision to deny benefits

will be affirmed unless "the [Commissioner] has committed a legal

or factual error in evaluating a particular claim." Manso-

Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16

(1st Cir. 1996) (quoting Sullivan v. Hudson, 490 U.S. 877, 885

(1989) ) .

2. Plaintiff's Motion

Plaintiff charges that the ALJ erred at step five of the

sequential evaluation process prescribed by 20 C.F.R. § 404.1520,

where he found that, despite the plaintiff's impairment, she

retained the RFC necessary to perform the full range of sedentary

work.3 Brunei argues that the ALJ erred in relying exclusively

on the Grid to prove she was able to do other work because she is

unable to perform the full range of sedentary work.

320 C.F.R. § 404.1567(a) provides:

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. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

4 Specifically, Brunei alleges that her need to alternate sitting

and standing precludes her from performing the full range of

sedentary work.

"[0]nce a claimant has demonstrated a severe impairment that

prohibits return to his previous employment, the [Commissioner]

has the burden of proving the existence of other jobs in the

national economy that the claimant can perform." Ortiz v.

Secretary of Health and Human Servs., 890 F.2d 520, 524 (1st Cir.

1989); accord Heggartv v. Sullivan, 947 F.2d 990, 995 (1st Cir.

1991). Should the Commissioner succeed in proving the existence

of other jobs which the plaintiff can perform, the burden then

remains with the plaintiff. See Hernandez v. Weinberger, 493

F.2d 1120, 1123 (1st Cir. 1974); Benko v. Schweiker, 551 F. Supp.

698, 701 (D.N.H. 1982).

To assist the Commissioner in satisfying his burden at step

five, the Grid is used to "streamline" the process by eliminating

the need for "the live testimony of vocational experts." Ortiz,

supra, 890 F.2d at 524. Specifically, the Grid "is 'predicated

on an individual's having an impairment which manifests itself

by limitations in meeting the strength reguirements of jobs

. . . . '" Id. (quoting 20 C.F.R. pt. 404, subpt. P, app. 2

§ 200.00(e) (emphasis added). The use of the Grid in determining

disability is explained by S.S.R. 96-9p, which states,

for a rule in Table No. 1 [the Grid] to direct a conclusion of 'not disabled', the individual must be able to perform the full range of work administratively noticed by a rule. This means that the individual must

5 be able to perform substantially all of the strength demands defining the sedentary level of exertion . . . .

S.S.R. 96-9p, 1996 WL 374185, *4 (S.S.A.) (emphasis added).

The inability to perform substantially all sedentary

unskilled occupations does not equate with a finding of

disability. When the claimant cannot perform a full range of

work, however, the ALJ cannot rely solely on the Grid. See id.

at *5. Moreover, Social Security ruling 96-9p states that

[w]here there is more than a slight impact on the individual's ability to perform the full range of sedentary work, if the adjudicator finds that the individual is able to do other work, the adjudicator must cite examples of occupations or jobs the individual can do and provide a statement of the incidence of such work in the region where the individual resides or in several regions of the country.

Id.

Here, the ALJ must evaluate more than Brunei's physical

abilities. He must also determine to what extent Brunei's need

to alternate sitting and standing can be accommodated within the

sedentary occupational base. The ALJ relied on the evaluation of

Dr. Kenneth E. Ness, Brunei's physician, that the plaintiff can

sit for two hours continuously and six hours in an eight-hour

day, and that she can stand in twenty-minute increments and walk

in ten- to fifteen-minute increments for two hours out of an

eight-hour day. Tr. at 137. Relative to the plaintiff's need to

alternate sitting and standing, the ALJ concluded that "[s]he

should be able to alternate sitting and standing as necessary

within these time frames [described above]." Tr. at 12. The

6 court does not challenge the ALJ's findings of fact relative to

Brunei's physical abilities. Rather, the court rejects the ALJ's

legal determination that Brunei's physical abilities enable her

to meet the requirements of the sedentary occupational base on a

sustained basis.4

Social Security Ruling 96-9p clearly states that the need to

alternate sitting and standing can erode the occupational base

for a full range of sedentary work and that the extent of erosion

will depend upon the facts in the case.5 Because "[t]he RFC

assessment must be specific as to the frequency of the

individual's need to alternate sitting and standing, [i]t may be

especially useful in these situations to consult a vocational

4S.S.R. 96-9p states that RFC is the individual's maximum ability to perform sustained work on a regular and continuing basis; i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule. It is not the least an individual can do, but the most, based on all of the information in the case record. S.S.R. 96-9p, 1996 WL 374185, *1 (S.S.A.).

Where [the need to alternate sitting and standing] cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded. The extent of the erosion will depend on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. The RFC assessment must be specific as to the frequency of the individual's need to alternate sitting and standing. It may be especially useful in these situations to consult a vocational resource in order to determine whether the individual is able to make an adjustment to other work.

S.S.R.. 96-9P, 1996 WL 374185, *7 (S.S.A.) (emphasis added).

7 resource in order to determine whether the individual is able to

make an adjustment to other work." S.S.R. 96-9p, 1996 WL 374185,

*7 (S.S.A.).

The error in the ALJ's findings relative to Brunei's need to

alternate sitting and standing, within the context of sedentary

work, is the ALJ's perception of the degree to which Brunei will

be able to do so as necessary. The ALJ states that Brunei

"should be able to alternate sitting and standing within these

time frames as necessary," Tr. at 13; however, the ALJ offersno

evidence that Brunei's need to doso is compatible with the

requirements of the sedentary occupational base. Again, at step

five of the sequential evaluation process, the Commissioner has

the burden of proving the existence of other jobs in the national

economy. See Ortiz v. Secretary of Health and Human Servs., 890

F.2d 520, 524 (1st Cir. 1989); accord Heggartv v. Sullivan,947

F .2d 990, 995 (1st Cir. 1991).

Social Security Ruling 83-12, which considers the RFC of a

claimant who would otherwise be able to perform sedentary or

light work, but must alternate sitting and standing, clearly

acknowledges the fact that while there are some jobs that allow

employees to sit or stand by choice, unskilled jobs are

structured so that a person cannot ordinarily sit or stand at

will.6

£

[M]ost jobs have ongoing work processes which demand that a worker be in a certain place or The missing link in the ALJ's evidentiary burden is the

testimony of a vocational specialist. In Adie v. Commissioner,

Social Security Administration, 941 F. Supp. 261, 270 n.9 (D.N.H.

1996), this court stated that it is an error for an ALJ to

determine, without consulting a vocational expert, that a

claimant who needs to alternate between sitting and standing

could perform jobs in the national economy. See also Scott v.

Shalala, 30 F.3d 33, 35 (1st Cir. 1994); Curtis v. Sullivan, 808

F. Supp. 917, 925 (D.N.H. 1992).

Accordingly, on the issue of Brunei's need to alternate

sitting and standing, the court reverses the decision of the

ALJ and remands the case for the consultation of a vocational

resource to determine whether there are a significant number of

sedentary jobs that are compatible with Brunei's need to

alternate sitting and standing.

Brunei also argues that the ALJ erred in refusing to

determine whether Brunei's environmental allergies were a

nonexertional limitation that precluded use of the Grid. Here,

the ALJ was correct in finding that Brunei offered no medical

posture for at least a certain length of time to accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or stand, a vocational specialist should be consulted to clarify the implications for the occupational base.

S.S.R 83-12, 1983 WL 31253, *4 (S.S.A.) evidence of allergies severe enough to affect her ability to

perform sedentary work.

Under 42 U.S.C. § 423(d)(5)(A), the burden of proof is on

the claimant to prove the existence of a disability.

Specifically, the statute states that

[a]n individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment . . . .

42 U.S.C. § 423(d)(5)(A). Thus defendant is correct in arguing

that complaints alone cannot provide the basis of a disability

when they are not supported by medical evidence. The one

reference to environmental allergies in the transcript, Tr. at

114, is nothing more than Brunei's complaint to an emergency room

nurse. The record provides no objective medical evidence of the

environmental allergies alleged by Brunei.

Plaintiff's memorandum of law attempts to link the existence

of the alleged environmental allergies with the existence of

chronic sinusitis. Plaintiff's Memorandum in Support of Motion

at 8 n.3. However, chronic sinusitis is defined as "inflamation

of a sinus. The condition may be purulent or nonpurulent [con

sisting of or containing pus], acute or chronic." BORLAND'S

ILLUSTRATED MEDICAL DICTIONARY 1532 (28th ed. 1994) . Brunei

provides no evidence that the ALJ, or the court, can use to

connect chronic sinusitis to severe environmental allergies.

10 In light of the record, the ALJ's conclusion that there was

no medical evidence of environmental allergies is worthy of the

requisite deference, and therefore must stand. See Irlanda Ortiz

v. Secretary of Health and Human Servs., 955 F.2d at 769 (1st

Cir. 1991). Accordingly, the court finds that the ALJ did not

commit an error by refusing to determine whether the

environmental allergies alleged by Brunei caused erosion to the

sedentary occupational base as a nonexertional limitation.

Conclusion

For the reasons set forth above, Brunei's motion for an

order reversing the decision of the Commissioner (document 6) is

denied, and the Commissioner's motion for an order affirming his

decision (document 7) is also denied. Pursuant to sentence four

of 42 U.S.C. § 405(g), this matter is remanded to the ALJ for

further proceedings consistent with this opinion.

SO ORDERED.

Shane Devine, Senior Judge United States District Court January 26, 1999 cc: Peter K. Marsh, Esq. David L. Broderick, Esq.