Dianna Correll v. SSA CV-01-258-B 03/25/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Dianna Correll
v. Civil No. 01-258-B Opinion No. 2002 DNH 071 Jo Anne Barnhart, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
On November 2 0 , 1 9 9 5 , Diana M. Correll filed concurrent
applications with the Social Security Administration ("SSA") for
Title II disability insurance benefits ("DIB") and Title XVI
supplemental security income ("SSI"). Correll alleged a
disability onset date of May 2 6 , 1995. SSA denied her
application on April 4, 1996 and again on reconsideration on
January 2 2 , 1997. Correll filed a timely request for rehearing
and, on September 27, 1997, ALJ Robert Klingebiel held a hearing
thereon. On November 28, 1997, the ALJ issued his decision
denying Correll's application because she had not demonstrated an
inability to perform sedentary work for a continuous 12-month
period. Correll appealed, but the SSA denied her request for review and the ALJ's decision became the final decision of the
Commissioner.
Correll brings this action pursuant to § 2 0 5 (g) of the
Social Security Act, 42 U.S.C. § 405(g), seeking review of the
denial of her application for benefits. For the reasons set
forth below, the ALJ's decision is not supported by substantial
evidence. Therefore, I vacate the ALJ's decision and remand the
case for further proceedings.
I. BACKGROUND
A. Work History
Correll was forty-seven years old when she applied for
benefits. She has a high school education and a past work
history as a stitcher in the clothing and shoe industries. As
previously stated, she alleges an inability to perform basic work
activities since May 26, 1995. Correll attempted to return to
work in May 1996, but she was able to work for only three weeks.
Correll also worked between June 1996 and December 6, 1996, when
she was laid off (drawing unemployment benefits until June 1997) .
She has not engaged in any employment since June 1997.
- 2 - B. Medical Evidence
On June 9 , 1995, Correll visited Dr. Mark Fillinger because
she was experiencing pain and numbness in her right foot, low
back pain, and pain in her hips. A lower extremity arterial
study indicated that Correll was suffering from lower extremity
arterial occlusive disease. Dr. Fillinger suggested that Correll
stop smoking, exercise and lose weight before considering more
aggressive therapy such as angiography and/or angioplasty.
On July 14, 1995, Correll returned to Dr. Fillinger with
additional complaints of pain and numbness in her left thigh and
calf. Angiography conducted on August 4, 1995 established that
Correll was suffering from a total occlusion of her right iliac
artery and a partial occlusion of her left iliac artery. After
angioplasty and stent replacement failed to alleviate Correll's
symptoms. Dr. Fillinger recommended an aortobifemoral bypass. He
then referred Correll to Dr. Samuel Law, a cardiologist, for a
preoperative evaluation.
On September 29, 1995, Dr. Lau diagnosed Correll with
coronary artery disease (CAD) with angina, severe peripheral
vascular disease with occlusion of the right common/external
iliac artery, inadequately controlled diabetes, hypertension, and
- 3 - asthma. Dr. Lau's treatment plan for Correll's CAD and angina
began with obtaining a more accurate picture of her heart via a
cardiac catheterization.
On September 12, 1995, John F. Robb, M.D., a cardiologist,
performed an outpatient cardiac catheterization. The results
evinced progressive angina and two-vessel coronary disease with
diffuse disease in the left anterior descending artery (LAD). On
September 27, 1995, Dr. Lau referred Correll to John Sanders,
M.D., a cardiothoracic surgeon, to assess whether she was a
bypass candidate. On October 6, 1995, Dr. Sanders determined
that Cornell's condition would benefit from coronary bypass
surgery. On October 26, 1995, Dr. Sanders performed coronary
bypass surgery on Correll. She tolerated the surgery well and
was discharged on October 31, 1995 in good condition.
On December 29, 1995, Correll returned to Dr. Fillinger for
further evaluation of her lower extremity occlusive disease.
Although she reported that her angina had improved, she also
indicated that she continued to experience pain in her buttocks,
thighs, calves, and right foot that caused her to limp after
walking short distances. Dr. Fillinger felt that an aorto-
bifemoral bypass would help relieve her thigh and calf pain while
- 4 - walking, as well as much of her resting right foot pain, but that
it would not relieve the pain in her buttocks because of the
nature of her iliac disease. Dr. Fillinger also did not think
the procedure would do much to relieve her foot pain, which was
likely secondary to diabetic neuropathy. On January 2, 1996,
Dr. Fillinger performed an aortobifemoral bypass without
complication.
On February 5, 1996, Correll visited Diane Zavotsky, M.D.,
her attending physician. Correll complained about continued hip
and leg pain that prevented her from engaging in daily activities
such as grocery shopping. She stated that rest only partially
relieved her symptoms. On February 7, 1996, Correll saw Dr.
Fillinger for a post-aortobifemoral bypass visit. Again she
reported generalized pain between her shoulders and hips. Dr.
Fillinger opined that the pain was due to some generalized
disorder or inactivity. Correll also reported a significant
amount of fatigue and depression, but a marked improvement in her
walking ability. Specifically, Correll stated that she could
climb stairs, walk around her house, and walk from the parking
lot to the hospital without limping. Dr. Fillinger estimated
- 5 - that, with continued improvement, Correll could return to work in
four w e eks.
During the next six months, Correll returned to Dr. Zavotsky
six times with general pain symptoms. Intermittently, Correll
complained of pain in her hips, legs, and shoulders; soreness
near the incision for her vascular surgery and aching in her
lower back. Dr. Zavotsky noted give-away weakness at Correll's
shoulder girdle, but felt that it occurred because of pain, not
true weakness. Dr. Zavotsky noted that Correll had only a
limited range of motion in her right shoulder due to pain that
improved over time. Generally, Dr. Zavotsky reassured Correll
that her symptoms were musculoskeletal and not caused by her
heart or lungs. Dr. Zavotsky referred Correll to Dr. Lin Brown
for a rheumatological evaluation.
On September 11, 1996, Correll visited Dr. Robert Zwolak,
complaining of abdominal pain and a bulge in her left flank. Dr.
Zwolak found that, given her surgical history, the bulge in her
incision was normal. On October 16, 1996, Dr. Zavotsky confirmed
that delayed gastric emptying caused Correll's reported abdominal
- 6 - pain. Dr. Zavotsky recommended weaning Correll off of Darvocet1
and onto Ultram.2
On December 17, 1996, Dr. Fillinger saw Correll for a
follow-up evaluation of her aorto-iliac occlusive disease.
Correll described a burning sensation in her feet, which Dr.
Fillinger attributed to diabetic neuropathy. He did not think
Correll required vascular intervention and recommended that she
see a neurologist and/or a pain clinic specialist.
Dr. John Robb saw Correll on March 19, 1997. Correll
complained that since January of 1997, she had been experiencing
an increase in her angina when walking up stairs or doing
housework with her arms. She also complained of a shortness of
breath upon exertion that seemed to improve with Lasix.3 Dr.
Robb's impression was atherosclerotic cardiovascular disease with
recurrent angina, diabetes with peripheral neuropathy, and severe
peripheral vascular disease and abdominal angina.
1 Darvocet is a centrally acting analgesic. Physician's Desk Reference 1708 (55th ed. 2001).
2 Ultram is a centrally acting synthetic analgesic. Physician's Desk Reference 2398 (55th ed. 2001).
3 Lasix, also known as Furosemide, is a diuretic. Physician's Desk Reference 2121 (55th ed. 2001).
- 7 - At the request of Dr. Zavotsky, Dr. Parker Towle examined
Correll on April 3, 1997. Correll presented him with complaints
of pain in her legs, feet, hips, and shoulders. After examining
Correll, Dr. Towle determined that diabetic neuropathy was
contributing to her symptoms. On April 11, 1997, Dr. Towle
executed a follow-up nerve conduction study. The results
revealed diffuse sensory motor neuropathy with possible
asymptomatic carpal tunnel syndrome. Dr. Towle provided Correll
with an increased dose of Amitriptyline4 for her neuropathic
symptoms and a prescription for Tegretol.5
C. Evidence as to Functional Capacity
1. Examining Physicians and Occupational Therapist
On December 16, 1996, Dr. Fillinger wrote to the New
Hampshire Department of Education detailing Cornell's physical
capacities. He stated that, because of her vascular conditions,
Correll could walk short distances but would probably have
difficulty walking long distances, climbing stairs or carrying
4 Amitriptyline, also known as Elavil, is an antidepressant. Physician's Desk Reference 626 (55th ed. 2001) .
5 Tegretol is an anti-convulsant. Physician's Desk Reference 2120 (55th ed. 2001). any significant weight. Dr. Fillinger also stated that Correll
had chronic peripheral neuropathy due to diabetes and ischemia6
prior to revascularization, causing her a significant amount of
discomfort in her lower extremities and making it difficult for
her to get comfortable in any position. He cautioned that a
neurologist could more appropriately delineate her lower
extremity limitations. Dr. Fillinger further stated that Correll
had limitations in lifting, carrying, bending, and other
significant activities. Again, he suggested that an expert in
physical and rehabilitative medicine could better define these
limitations.
Dr. Zavotsky referred Correll to John Lane, an occupational
therapist, for a functional capacity evaluation. On January 23,
1997, Lane evaluated Correll for her physical capacities.
Correll walked 1.3 mph with complaints of bilateral hip pain
after 90 seconds. Correll stood for 15 minutes before indicating
an increase in pain. Lane's findings restricted Correll to
occasionally climbing stairs and never climbing ladders. Lane
6 Local anemia due to mechanical obstruction (mainly arterial narrowing) of the blood supply. Stedman's Medical Dictionary 894 (26th ed. 1995) .
- 9 - concluded that Correll demonstrated the ability for only
sedentary work based on her intolerance to any frequent lifting
and inability to stand for extended periods of time.
On August 1 , 1997, Dr. Towle evaluated Correll's physical
capabilities and concluded that, due to her neuropathy and chest
pain, she could lift a maximum of 10 pounds occasionally and 1
pound frequently. He limited Correll's walking to approximately
one quarter of a mile. He recognized that her ability to reach
and stoop were somewhat limited. On August 11, 1997, Dr. Towle
completed a medical assessment of Correll's ability to perform
work-related activities. He concluded that Correll could lift 10
pounds occasionally and 1 pound frequently. He determined that
Correll could only stand for a total of 1 hour in an 8-hour day
and one-half hour without interruption. He determined that
Correll should only occasionally (from very little to up to 1/3
of an eight-hour day) climb, balance, or kneel and that she
should never stoop, crouch, or crawl. Dr. Towle characterized
Correll's ability to reach, handle, feel, push, and pull as slow
and uncomfortable.
On August 13, 1997, Dr. Zavotsky completed a medical
assessment of Correll's ability to engage in work-related
- 10 - activities. Dr. Zavotsky commented that Correll had fairly good
control over her diabetes, and that, although she experienced
angina and shortness of breath with moderate exertion, medication
controlled her symptoms during normal daily activities. Dr.
Zavotsky further concluded, however, that Correll's neuropathic
pain was becoming increasingly problematic. Dr. Zavotsky
indicated that Correll could barely squat down and return to a
standing position without using her arms for assistance. She
diagnosed Correll with coronary artery disease with class II7
angina, diabetes with complications of neuropathy and myopathy,
peripheral, vascular, and abdominal angina, asthma, and
degenerative joint disease of the lumbar spine. Specifically,
Dr. Zavotsky found that Correll could lift up to 15 pounds
occasionally and 2 pounds frequently. She restricted Correll to
standing for a total of 3 hours in an 8-hour day, but limited
standing to 15-20 minutes without interruption. Dr. Zavotsky
7 Slight limitation of ordinary activity; for example, angina occurs walking or stair climbing after meals, in cold, in wind, under emotional stress or only during the few hours after awakening, walking more than two level blocks or climbing more than one flight of ordinary stairs at a normal pace and in normal conditions.
- 11 - asserted that Correll should never stoop, crouch, or crawl; had
poor balance; and should only occasionally kneel. Dr. Zavotsky
opined that Correll was limited in her ability to reach, feel,
push, and pull. She specifically stated that Cornell's reaching
was impaired by a decreased range of motion in the left shoulder
and pain in the midsternum and right rib. She also concluded
that peripheral neuropathy impaired Cornell's feeling in her
hands and feet.
2. Non-examining Physician
On April 3, 1996, Dr. Burton Nault completed a residual
physical functional capacity assessment of Correll at the request
of the SSA. He opined that Correll could carry 20 pounds
occasionally and 10 pounds frequently. He determined that she
could stand for 6 hours out of an 8-hour work day and sit about 6
hours out of an 8-hour workday. Dr. Nault did not believe that
Correll had any push and pull limitations, but he noted that she
should avoid repetitive stooping and only occasionally perform
other postural activities. Dr. Nault considered Correll to be
capable of at least light work, provided that she avoid prolonged
ambulation and repetitive bending, lifting, and overhead
reaching.
- 12 - D. The 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. The ALJ concluded that Correll had carried her
burden at each of the first four steps in the process, but that
Correll was "not disabled" because there was no continuous 12
month period when she would have been unable to perform at least
sedentary work. Specifically, the ALJ found that, although
Correll had severe impairments including severe cardiac disease,
vascular disease, and myofacial pain, she retained the residual
functional capacity ("RFC") during the relevant period "to lift
and carry 10 pounds...[and] stand and walk for two hours out of
an eight hour work day." While conceding that Cornell's "ability
to perform all postural activities is restricted," the ALJ,
without meaningful elaboration of these non-exertional
limitations, also went on to apply the Medical-Vocational
Guidelines, also known as the "Grid." At step five, the ALJ
concluded, without calling a vocational expert, that "the
claimant has the residual functional capacity to perform a full
range of sedentary work which exists in significant numbers in
the national economy."
- 13 - In reaching his conclusions, the ALJ referenced the
functional capacity evaluations performed by John Lane, Dr.
Zavotsky, and Dr. Towle and specifically calculated Correll's
lifting/carrying and standing/walking abilities. The ALJ
commented that, according to Dr. Zavotsky and Dr. Towle, "all
postural limitations would be limited," but did not assess the
extent of these limitations. Nor did the ALJ (1) explicitly
accept or reject the opinion's of Dr. Zavotsky and Dr. Towle,
that Correll should never perform certain postural activities,
including stooping, crouching, crawling; (2) determine whether
Correll's treating physicians' opinions are entitled to
controlling weight; or (3) discuss the weight to be given to the
respective opinions.
Correll challenges the ALJ's use of the Grid, and his
concomitant unexplained disregard of the treating physicians'
opinions regarding Correll's postural limitations.
II. DISCUSSION
A. Standard of Review
After a final determination by the Commissioner denying a
- 14 - claimant's application for benefits, and upon timely request by
the claimant, I am authorized to: (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 ALJ's decision. See 42 U.S.C. § 405(g). My
review is limited in scope, however, because the ALJ's factual
findings are conclusive if supported by "substantial evidence."
See id.; Irlanda Ortiz v. Sec'v of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991) (per curiam). While the ALJ's
findings of fact "are not conclusive when derived by ignoring
evidence, misapplying the law, or judging matters entrusted to
the experts," Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(per curiam), I must defer when the ALJ has reasonably settled a
credibility issue, drawn an inference from the record evidence,
and resolved a conflict in the evidence, see Irlanda Ortiz, 955
F.2d at 769. In the end, I must "uphold the [ALJ's]
findings...if a reasonable mind, reviewing the evidence in the
record as a whole, could accept it as adequate to support [the
ALJ's] conclusion," i d . (quoting Rodriguez v. Sec'v of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)) (internal
quotation marks omitted), even where the record can be construed
- 15 - to support another conclusion, see Rodriquez Pagan v. Sec'v of
Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987).
B. The Social Security Act
1. General Principles
_____ In relevant part, the Social Security Act (the "Act")
defines "disability" as the "inability 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 which 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). As indicated above, the Act directs the State ALJ
to apply a five-step sequential analysis to determine whether a
claimant is disabled.8 See 20 C.F.R. § 404.1520.
At step four of the process, the ALJ must determine whether
the claimant's impairment prevents her from performing her past
work. See i d . § 404.1520(e). To make this determination, the
8 In applying the five-step sequential analysis, the ALJ is required 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 or prevented the claimant from performing past relevant work; and (5) whether the impairment prevents or prevented the claimant from doing any other work. See 20 C.F.R. § 404.1520 (2000).
- 16 - ALJ must assess both the claimant's RFC, that is, what the
claimant can do despite her impairments, and the demands of the
claimant's prior employment.9 See id. ; 20 C.F.R. § 404.1545(a);
see also Santiago v. Sec'v of Health and Human Servs., 944 F.2d
1, 7 (1st Cir. 1991) (per curiam). The claimant, however, bears
the burden of showing that she does not have the RFC to perform
her past relevant work. See Santiago, 944 F.2d at 5.
At step five, the burden shifts to the Commissioner to show
"that there are jobs in the national economy that [the] claimant
can perform." Heggartv v. Sullivan, 947 F.2d 990, 995 (1st Cir.
1991) (per curiam). The Commissioner must show that the
claimant's limitations do not prevent her from engaging in
substantial gainful work, but need not show that the claimant
could actually find a job. See Keating v. Sec'v of Health and
Human Servs., 848 F.2d 271, 276 (1st Cir. 1988) (per curiam)
("The standard is not employability, but capacity to do the
j o b .") .
"Where a claimant's impairments involve only limitations in
9 The ALJ uses the claimant's RFC as the basis for deciding what types of work a claimant can perform in spite of her impairments. 20 C.F.R. § 404.1545(a).
- 17 - meeting the strength requirements of work," the Grid provides "a
''streamlined' method by which the [Commissioner] can carry [her
step five] burden." Heggartv, 947 F.2d at 995 (citing Ortiz v.
Sec'v of Health and Human Services, 890 F.2d 520, 524 (1st Cir.
1989)(per curiam)). "Where a claimant has non-exertional
impairments in addition to exertional limits," however, the Grid
may not accurately reflect the availability of jobs the claimant
can perform. I d . at 996. If a non-exertional limitation
"significantly affects [the] claimant's ability to perform
substantially the full range of jobs" at a given strength level,
the Commissioner may not rely on the Grid to carry her burden,
and the testimony of a vocational expert is usually required.
I d . (quoting Lugo v. Secretary of Health and Human Servs., 794
F .2d 14, 17 (1st Cir. 1986)).
2. Determinating a Claimant's RFC
In determining a claimant's RFC, the ALJ must perform a
"function-by-function" assessment of the claimant's ability to
engage in work-related activities. See SSR 96-8p, 1996 WL
374184, at *3 (1996); see also Ferraris v. Heckler, 728 F.2d 582,
586-87 (2d Cir. 1984) (holding that the ALJ's findings on a
claimant's RFC were insufficient where the ALJ determined the
- 18 - claimant's RFC in a conclusory manner without a function-by-
function assessment). The ALJ must "consider objective medical
facts, diagnoses and medical opinions based on such facts, and
subjective evidence of pain or disability testified to by the
claimant or others." Ferraris, 728 F.2d at 585; see also 20
C.F.R. § 404.1545(a) (stating that the RFC must be based on all
relevant evidence). The ALJ is not free to simply ignore
relevant evidence in the record, especially when that evidence
supports a claimant's cause. See Nquven, 172 F.3d at 35.
Moreover, the ALJ must specify the evidentiary basis for his RFC
determination. SSR 96-8p, 1996 WL 374184, at *7; see also White
v. Sec'v of Health & Human Servs., 910 F.2d 64, 65 (2d Cir. 1990)
(noting that the failure to specify a basis for the RFC
determination is a sufficient reason to vacate a decision of the
Commissioner).
3. Correll's Argument
As previously noted, Correll challenges the ALJ's use of the
Grid and his concomitant unexplained disregard of her treating
physicians opinions that she faced non-exertional limitations on
her ability to stoop, crouch, crawl, balance, and manipulate. In
Cornell's view, the ALJ was obliged either (1) to credit these
- 19 - opinions and consult with a vocational expert as to whether, in
light of Correll's non-exertional limitations, there is a
significant number of jobs in the national economy that she can
perform; or (2) to explain why he was not crediting or not fully
crediting these opinions. I agree.
D r s . Zavotsky and Towle opined that Correll should only
occasionally climb, balance, or kneel and that she should never
stoop, crouch, or crawl. Dr. Towle characterized Correll's
ability to reach, handle, feel, push, and pull as slow and
uncomfortable, and Dr. Zavotsky opined that Correll was limited
in her ability to reach, feel, push, and pull. Although the ALJ
references these opinions in his decision, he does not explicitly
determine the weight they should be given. Nor does he discuss
the extent to which the limitations identified in these opinions
might reduce the number of jobs that Correll was capable of
performing.
Depending on the weight assigned to these medical opinions,
Correll's non-exertional limitations, whether considered
individually or in combination, may circumscribe the number of
jobs within the sedentary-work category that Correll could
perform. Her non-exertional limitations thus could prevent the
- 20 - ALJ from being able to use the Grid and instead require that he
consult with a vocational expert to determine the extent to which
they affect her ability to perform sedentary work.10 See
Heggartv, 947 F.2d at 995. The ALJ's failure to determine the
weight given to each of the physical capacity assessments is a
fatal deficiency that requires a remand. See Nguven, 172 F.3d at
35; Nguven v. Callahan, 997 F. Supp. 179, 182 (D. Mass. 1998);
see also SSR 96-9p, 1996 WL 374180, at *2.
III. CONCLUSION
Because the ALJ failed to make findings concerning the
severity of Correll's non-exertional postural and physical
limitations and the effect of these limitations on her ability to
work, I am unable to determine whether the ALJ should have
consulted with a vocational expert to determine the extent of the
erosion of Correll's occupational base. Accordingly, on remand
10 SSR 96-9b provides that consultation with a vocational resource concerning the erosion of the occupational base may be appropriate if (1) "an individual is limited to balancing even when standing or walking on level terrain", SSR 96~9p, 1996 WL 374185, at *7., (2) "the individual is limited to less than occasional stooping", i d . at *8, or there exists "any significant manipulative limitation of an individual's ability to handle and work with small objects." i d .
- 21 - the Commissioner shall explicitly determine the weight to be
given to Correll's treating physicians' capacity assessments. If
any of the limitations identified in these assessments is deemed
to be significant, the Commissioner shall, consistent with SSR
96-9p, consult with a vocational expert to determine the erosion
of Correll's sedentary occupational base. Accordingly, I vacate
the ALJ’s decision, pursuant to sentence four of 42 U.S.C. §
4 0 5 (g), and remand this case for further proceedings in
accordance with this Memorandum and Order.
SO ORDERED.
Paul Barbadoro Chief Judge
March 25, 2002
cc: D. Lance Tillinghast, Esq. David L. Broderick, Esq.
- 22 -