Cote v . Comm., SSA 11-CV-347-JD 06/07/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher R. Cote
v. Civil N o . 11-cv-347-JD Opinio n N o . 2012 DNH 099 Michael J. Astrue, Commissioner, Social Security Administration
O R D E R
Christopher R. Cote seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Commissioner of the
Social Security Administration, denying his application for
social security disability insurance benefits under Title I I .
Cote contends that the Administrative Law Judge (“ALJ”) made
several errors, including that he erred in finding that Cote
could do his past work as a warehouse operator and forklift
operator. The Commissioner moves to affirm the decision.
Background
Cote previously worked as a delivery driver and as a
forklift operator in a warehouse. He last worked on November 1 3 ,
2006, when he was injured while working. He is a high school
graduate and was thirty-seven years old when he stopped working. Before 2006, Cote had a history of surgery to repair back,
ankle, and shoulder problems. Despite those issues, he continued
to work full time although he also experienced continuing pain.
In November of 2006, Cote had arthroscopic surgery on his left
shoulder. Although he made some progress post surgery, D r .
Ricardo A . Gonzales recommended surgical repair of the left rotator cuff, which was in April of 2007.
In August of 2007, Cote aggravated his shoulder during
strength training. In November, D r . Gonzales told Cote that he
did not think further surgery would help. D r . Gonzales wrote
that Cote could do work at waist level without heavy weight.
Cote required additional treatment following a car accident
in June of 2008. In August of 2008, Cote saw M s . Morrison at a
pain clinic and explained that his primary pain was at the back
of his head and in his lower back. On examination, Cote had good range of head motion in all directions, good range of arm motion
overhead, no difficulty with walking, normal strength tests, and
normal sensation and reflexes. One test was positive for left
sacroiliac pain with a suggestion of right sacroiliac pain, and
Cote had tenderness to palpation on the left side of his back.
Cote continued to see M s . Morrison for pain treatment and had
2 sacroiliac injections for back pain. The administrative record
has no medical records from November of 2008 through November of
2010.
In January of 2009, Cote completed a report indicating that
he was in constant pain and could not lift much weight or walk or
stand for long because of ankle problems. An unsigned and undated “Disability Report Form” indicated that Cote’s job as a
forklift operator in a warehouse required driving a forklift,
loading and unloading merchandise with the forklift, standing for
eight hours and walking for one hour, handling and grasping for
four hours, and writing and handling small objects for one hour.
The form indicated that the heaviest object Cote lifted was less
than ten pounds.
Cote completed a function report in March of 2009, in which
he said that chronic back, shoulder, and ankle pain limited his ability to sleep. He said he had some difficulty dressing and in
other personal care activities due to shoulder pain. Cote said
that he prepared daily meals, did laundry, cleaned the house, and
required no help with those tasks. He went outside every day,
drove a car, and did weekly shopping. He wrote that he no longer
participated in sports because of his leg, back, and shoulder
pain. He said that he visited with friends and family but less
than before the pain began. Cote said that he could lift weight
3 up to ten pounds, could walk for one-half mile without resting,
had no problems with memory or following instructions, did not
need a cane, and handled stress as well as anyone.
On April 3 0 , 2009, D r . Hugh Fairley, a state agency
physician, reviewed Cote’s medical records for purposes of a
residual functional capacity assessment. D r . Fairley found that Cote was able to do light work without frequent overhead reaching
with his left arm, with lifting twenty pounds occasionally and
ten pounds frequently, with standing and walking for a total of
about six hours in an eight hour work day, with sitting for a
total of six hours in an eight hour work day, and with only
occasional postural activities.
In December of 2010, Cote saw D r . Ross because of pain in
his right shoulder and left ankle. Cote said that his right
shoulder pain was more significant and started a week before the appointment, apparently the result of throwing a bag of garbage.
Dr. Ross found that Cote’s shoulder motion was severely guarded
and restricted, with some mild tenderness and weakness on manual
muscle testing. Reflexes and sensation were normal. Shoulder x-
rays showed minimal irregularity, but an MRI showed a re-tear of
the rotator cuff. D r . Ross found some ankle tenderness. Cote’s
heel cord was intact, but his range of motion was guarded and
restricted, and he walked with a limp. Ankle x-rays showed
4 moderate degenerative bone formation, but the joint spaces looked
reasonably maintained, and no other abnormalities were seen.
B. Administrative Proceedings
Cote applied for disability benefits in January of 2009,
alleging an onset date of November 1 3 , 2009. His application was
denied, and he requested a hearing. An administrative hearing
was held on February 4 , 2011. Cote was represented by counsel,
and his wife and a vocational expert also testified.
At the hearing, Cote testified that he was always sore and
had limited mobility and reduced strength in his arms. He also
testified that his activities involved making breakfast and
watching television and that he did not go out unless he had an
appointment. He said his ankle problem had worsened with time so
that his ankle would give out and cause him to lose his balance.
He said that he could not even walk a quarter of a mile and could
not stand more than twenty or thirty minutes before his ankle
would begin to swell. He also said he had started wearing an
ankle brace in late 2010.
Cote testified that his shoulder had been better after
surgery in 2006 until he reinjured it during therapy. He said
that surgery in April of 2007 had not helped him to regain
strength and range of motion nor reduced pain. He said he had
5 very limited strength and range of motion in his left arm, along
with numbness and tingling, and could not even lift a gallon of
milk. Cote testified that he had lingering pain in his right
shoulder after surgery in 2000, although he could work through
i t , but then reinjured his right shoulder in December of 2010.
He was scheduled for right rotator cuff surgery after the date of the hearing. He also testified that he had back pain after the
2008 accident but that his doctors did not want to address his
back until his shoulders and ankle resolved.
Cote said that he had gained ninety pounds since 2006 and
that he could not exercise because of his other problems. He
said he might need to have gastric bypass surgery for his weight
issue. Cote also testified that he was not using prescription
pain medication, relying instead on aspirin.
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Cote v . Comm., SSA 11-CV-347-JD 06/07/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher R. Cote
v. Civil N o . 11-cv-347-JD Opinio n N o . 2012 DNH 099 Michael J. Astrue, Commissioner, Social Security Administration
O R D E R
Christopher R. Cote seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Commissioner of the
Social Security Administration, denying his application for
social security disability insurance benefits under Title I I .
Cote contends that the Administrative Law Judge (“ALJ”) made
several errors, including that he erred in finding that Cote
could do his past work as a warehouse operator and forklift
operator. The Commissioner moves to affirm the decision.
Background
Cote previously worked as a delivery driver and as a
forklift operator in a warehouse. He last worked on November 1 3 ,
2006, when he was injured while working. He is a high school
graduate and was thirty-seven years old when he stopped working. Before 2006, Cote had a history of surgery to repair back,
ankle, and shoulder problems. Despite those issues, he continued
to work full time although he also experienced continuing pain.
In November of 2006, Cote had arthroscopic surgery on his left
shoulder. Although he made some progress post surgery, D r .
Ricardo A . Gonzales recommended surgical repair of the left rotator cuff, which was in April of 2007.
In August of 2007, Cote aggravated his shoulder during
strength training. In November, D r . Gonzales told Cote that he
did not think further surgery would help. D r . Gonzales wrote
that Cote could do work at waist level without heavy weight.
Cote required additional treatment following a car accident
in June of 2008. In August of 2008, Cote saw M s . Morrison at a
pain clinic and explained that his primary pain was at the back
of his head and in his lower back. On examination, Cote had good range of head motion in all directions, good range of arm motion
overhead, no difficulty with walking, normal strength tests, and
normal sensation and reflexes. One test was positive for left
sacroiliac pain with a suggestion of right sacroiliac pain, and
Cote had tenderness to palpation on the left side of his back.
Cote continued to see M s . Morrison for pain treatment and had
2 sacroiliac injections for back pain. The administrative record
has no medical records from November of 2008 through November of
2010.
In January of 2009, Cote completed a report indicating that
he was in constant pain and could not lift much weight or walk or
stand for long because of ankle problems. An unsigned and undated “Disability Report Form” indicated that Cote’s job as a
forklift operator in a warehouse required driving a forklift,
loading and unloading merchandise with the forklift, standing for
eight hours and walking for one hour, handling and grasping for
four hours, and writing and handling small objects for one hour.
The form indicated that the heaviest object Cote lifted was less
than ten pounds.
Cote completed a function report in March of 2009, in which
he said that chronic back, shoulder, and ankle pain limited his ability to sleep. He said he had some difficulty dressing and in
other personal care activities due to shoulder pain. Cote said
that he prepared daily meals, did laundry, cleaned the house, and
required no help with those tasks. He went outside every day,
drove a car, and did weekly shopping. He wrote that he no longer
participated in sports because of his leg, back, and shoulder
pain. He said that he visited with friends and family but less
than before the pain began. Cote said that he could lift weight
3 up to ten pounds, could walk for one-half mile without resting,
had no problems with memory or following instructions, did not
need a cane, and handled stress as well as anyone.
On April 3 0 , 2009, D r . Hugh Fairley, a state agency
physician, reviewed Cote’s medical records for purposes of a
residual functional capacity assessment. D r . Fairley found that Cote was able to do light work without frequent overhead reaching
with his left arm, with lifting twenty pounds occasionally and
ten pounds frequently, with standing and walking for a total of
about six hours in an eight hour work day, with sitting for a
total of six hours in an eight hour work day, and with only
occasional postural activities.
In December of 2010, Cote saw D r . Ross because of pain in
his right shoulder and left ankle. Cote said that his right
shoulder pain was more significant and started a week before the appointment, apparently the result of throwing a bag of garbage.
Dr. Ross found that Cote’s shoulder motion was severely guarded
and restricted, with some mild tenderness and weakness on manual
muscle testing. Reflexes and sensation were normal. Shoulder x-
rays showed minimal irregularity, but an MRI showed a re-tear of
the rotator cuff. D r . Ross found some ankle tenderness. Cote’s
heel cord was intact, but his range of motion was guarded and
restricted, and he walked with a limp. Ankle x-rays showed
4 moderate degenerative bone formation, but the joint spaces looked
reasonably maintained, and no other abnormalities were seen.
B. Administrative Proceedings
Cote applied for disability benefits in January of 2009,
alleging an onset date of November 1 3 , 2009. His application was
denied, and he requested a hearing. An administrative hearing
was held on February 4 , 2011. Cote was represented by counsel,
and his wife and a vocational expert also testified.
At the hearing, Cote testified that he was always sore and
had limited mobility and reduced strength in his arms. He also
testified that his activities involved making breakfast and
watching television and that he did not go out unless he had an
appointment. He said his ankle problem had worsened with time so
that his ankle would give out and cause him to lose his balance.
He said that he could not even walk a quarter of a mile and could
not stand more than twenty or thirty minutes before his ankle
would begin to swell. He also said he had started wearing an
ankle brace in late 2010.
Cote testified that his shoulder had been better after
surgery in 2006 until he reinjured it during therapy. He said
that surgery in April of 2007 had not helped him to regain
strength and range of motion nor reduced pain. He said he had
5 very limited strength and range of motion in his left arm, along
with numbness and tingling, and could not even lift a gallon of
milk. Cote testified that he had lingering pain in his right
shoulder after surgery in 2000, although he could work through
i t , but then reinjured his right shoulder in December of 2010.
He was scheduled for right rotator cuff surgery after the date of the hearing. He also testified that he had back pain after the
2008 accident but that his doctors did not want to address his
back until his shoulders and ankle resolved.
Cote said that he had gained ninety pounds since 2006 and
that he could not exercise because of his other problems. He
said he might need to have gastric bypass surgery for his weight
issue. Cote also testified that he was not using prescription
pain medication, relying instead on aspirin. He said that he had
trouble sleeping despite taking Ambien. As to his daily activities, Cote said that he had trouble
getting dressed because of pain and had trouble going up and down
stairs, which he avoided. His main activity was watching
televison, and he only occasionally used the computer. He could
only read for fifteen minutes because of back pain and could only
sit for thirty to forty minutes. He did no housework or yard
work. He could not lift even five pounds repetitively. Cote’s
wife’s testimony corroborated his statements.
6 A vocational expert testified at the hearing and explained
that Cote’s previous work as a delivery driver was unskilled and
was at a medium work level and his job as a forklift operator was
semi-skilled and was performed at a light work level. The ALJ
asked the vocational expert to give his opinion about what work a
person could do who was limited to light work without frequent overhead reaching with his left arm and with only occasional
postural activities. The vocational expert responded that the
hypothetical person could do Cote’s jobs as a warehouse worker
and forklift operator as he actually performed those jobs. The
vocational expert also testified that he could do other unskilled
light jobs, such as a fast food worker, courier, mail clerk,
office helper, and cashier. He added that a sit-stand option
would eliminate the jobs of fast food worker and cashier. If the
person were limited to sedentary work with a sit-stand option, he could not do the prior jobs but could work as an eyeglass
assembler and charge account clerk. If Cote were as limited as
he and his wife described, he could not do any jobs.
The ALJ issued the decision on February 4 , 2011, in which he
found that Cote was not disabled because he retained the
functional capacity to do his past work as a warehouse operator
and forklift operator at the light work level, as he had
previously performed those jobs. The ALJ found that Cote’s
7 impairments of left shoulder tendinopathy, low back pain, and
morbid obesity were severe but did not meet or equal a listed
impairment or prevent him from doing his prior work. The ALJ
also found that Cote’s recent injury to his right shoulder did
not meet the twelve-month requirement for a disability finding.
When the Decision Review Board failed to complete review within the time allowed, the ALJ’s decision became the final decision of
the Commissioner.
Standard of Review
In reviewing the final decision of the Commissioner in a
social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.” Nguyen v . Chater,
172 F.3d 3 1 , 35 (1st Cir. 1999). The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence. § 405(g). “Substantial evidence is more than a
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Astralis
Condo. Ass’n v . Sec’y Dep’t of Housing & Urban Dev., 620 F.3d 6 2 ,
66 (1st Cir. 2010).
Disability, for purposes of social security benefits, is
“the inability to do any substantial gainful activity by reason
8 of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 20 C.F.R. §§ 404.1505(a). The ALJ follows a five-step
sequential analysis for determining whether a claimant is
disabled. § 404.1520. The claimant bears the burden, through the first four steps, of proving that his impairments preclude
him from working. Freeman v . Barnhart, 274 F.3d 606, 608 (1st
Cir. 2001). At the fifth step, the Commissioner determines
whether other work that the claimant can d o , despite his
impairments, exists in significant numbers in the national
economy and must produce substantial evidence to support that
finding. Seavey v . Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001).
Discussion
Cote contends that the ALJ erred in finding that he retained
the functional capacity to do light work, with certain
restrictions. Cote argues that the ALJ improperly relied on the
opinion of a state agency physician, improperly assessed Cote’s
credibility as to the severity of his pain, failed to credit the
testimony of Cote’s wife, failed to properly evaluate the effect
of Cote’s extreme obesity, and erroneously found that he could
return to his past work. In support of the motion to affirm, the
9 Commissioner asserts that the ALJ properly relied on the state
agency physician’s opinion, considered the effect of Cote’s
obesity, properly assessed Cote’s credibility, considered his
wife’s testimony, and properly found that he could return to his
past work.
At Step Four of the sequential analysis, the ALJ assesses the claimant’s residual functional capacity for work and whether
the claimant can return to his past work. 20 C.F.R.
§ 404.1520(e). In this case, the ALJ relied on the opinion of
the state agency consultant, D r . Fairley, to find that Cote
retained the capacity to do light work except that he should
avoid frequent overhead reaching with his left arm and should
only occasionally do postural activities. With that residual
functional capacity, the ALJ found that Cote could do his past
work as a warehouse operator and forklift operator, based on the vocational expert’s opinion.
Cote described his past work as a warehouse operator and
forklift operator to require standing for eight hours each day
and sitting for one hour. The ALJ repeated those requirements in
his finding. D r . Fairley, however, stated in his residual
functional capacity assessment that Cote could stand or walk for
only a total of six hours in an eight-hour day. The discrepancy
between D r . Fairley’s residual functional capacity assessment and
10 the requirements of the warehouse operator work as Cote performed
the job mean that Dr. Fairley’s opinion does not provide
substantial evidence to support that finding. No other medical
opinion evidence in the record supports a finding that Cote could
stand for eight hours each work day. Therefore, the ALJ’s
finding that Cote could return to his past work is not supported by substantial evidence. Although the vocational expert
testified that there were other jobs that Cote could do, the ALJ
made no findings at Step Five of the sequential analysis.
Therefore, because substantial evidence is lacking to
support the Commissioner’s decision, it must be reversed.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
the decision (document no. 13) is granted. The Commissioner’s
motion to affirm (document no. 14) is denied. The case is
remanded under “Sentence Four” for further administrative
proceedings.
SO ORDERED.
___________________ Joseph United ^ a ^ D i s S c t Judge June 7, 2012
cc: Robert J. Rabuck, Esquire Jeffry A. Schapira, Esquire