Gadson v. Callahan CV-96-355-M 08/26/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Frederick Gadson
v. Civil No. 96-355-M
John J. Callahan, Commissioner Social Security Administration1
O R D E R
Frederick Gadson moves pursuant to 42 U.S.C.A. § 405(g) to
reverse the Commissioner's decision denying him supplemental
security income benefits. He asserts that the Commissioner's
decision is not supported by substantial evidence in the record.
The Commissioner moves to affirm the decision. For the reasons
that follow, the Commissioner's decision is reversed and remanded
for further consideration.
Background
Frederick Gadson applied for supplemental security income
benefits on September 29, 1993, claiming a disability that began
on September 28 (after last working in August 1993) . From
February to August 1993, Gadson worked as an office assistant at
a law firm. He based his disability claim on physical imitations
due to heart and back conditions as well as emotional problems.
1 The President appointed John J. Callahan as Acting Commissioner of Social Security, effective March 1, 1997, to succeed Shirley S. Chater. Pursuant to Fed. R. Civ. P. 25(d)(1), John J. Callahan is thus substituted for Shirley S. Chater as the defendant in this action. Heart Condition
In 1966, when Gadson was sixteen, he underwent surgery to
repair a ventricular septal defect (abnormal opening) in his
heart. Gadson's medical records, from the mid 1980's through the
period relevant to his application for benefits, show that he
experienced chest pain of varying degrees and heart palpitations.
Diagnostic testing revealed some irregularities. He had also
been a smoker for ten to fifteen years. Dr. Richard Boss, a
cardiologist, concluded in March 1994 that Gadson's chest pain
was due to musculoskeletal rather than cardiac causes. Tylenol,
or similar medication, was recommended as needed. Because of
continued chest pain, Gadson underwent a Thallium exercise test
on November 23, 1994, which showed a fair exercise capacity and
normal blood circulation in response to exercise. Despite some
abnormalities in his resting electrocardiogram. Dr. Boss
concluded that the test was negative.
Gadson saw his treating physician. Dr. Florio, on November
30, 1994, and expressed concern about his electrocardiogram and
continuing chest pain. Dr. Florio noted that Gadson had
increased risk factors for heart disease and recommended cardiac
rehabilitation and baby aspirin. Gadson reported chest and
shoulder pain after each cardiac rehabilitation session. Dr.
Florio recommended that he continue using Amitriptyline, which
had been prescribed for his back pain, and Tylenol.
Back Condition
2 Gadson experienced ongoing back problems, beginning after a
back injury at work in 1987, that were exacerbated by an
automobile accident in February 1993. He was treated by Dr. Hoke
Shirley, an orthopaedist, and Dr. Ashcliffe, a chiropractor.
After the accident. Dr. Shirley diagnosed a soft tissue injury
and prescribed Amitriptyline (antidepressant used to treat
chronic pain) to be taken at bed time. In June 1993, Dr. Shirley
recommended that Gadson begin a physical therapy program.
In late August 1993, Gadson complained of neck pain and
severe headaches as well as severe aching into his mid-back area
and worsened lower back pain. Dr. Shirley nevertheless noted
that Gadson was continuing with physical therapy and seemed to be
doing better. The physical therapy was changed to a work
tolerance program in mid-September. A physical therapy progress
report dated September 27, 1993, assessed Gadson's work ability
as part time--four hours per day at a sedentary exertional level.
On September 28, 1993, Dr. Shirley examined Gadson and
decided he could not continue with the work tolerance program due
to the pain he was experiencing. His examination, however,
revealed no focal neurological deficits in Gadson's legs and
other testing was negative. Dr. Shirley nevertheless wrote that
he believed Gadson was totally disabled from any significant
gainful employment despite physical therapy or medication.
Dr. Shirley saw Gadson on May 20, 1994, for complaints of
back pain. His examination found mild muscle tenderness in the
back but again the "flip test," straight leg raising test and
3 neurological examination were normal. Dr. Shirley recommended
physical therapy, a daily walking program, and prescribed
Flexeril, a muscle relaxant.
Gadson saw Dr. Shirley in December 1994 to follow up his
previous diagnoses of soft-tissue cervical pain dysfunction
syndrome and mechanical thoracic lumbar pain. Gadson explained
that he had discontinued his stretching exercises because of
angina attacks. Dr. Shirley's objective findings on examination
were muscle tenderness but not as prominent as previously found.
Dr. Shirley found both the flip and straight leg raising tests
negative and also found a good range of motion in the cervical
spine. He diagnosed chronic soft-tissue pain syndrome and
substantial mechanical back pain syndrome involving cervical,
thoracic and lumbar regions. He concluded that Gadson had
reached an endpoint in his improvement, that he should continue
to take Amitriptyline and to do stretching exercise. In a letter
dated December 11, 1995, Dr. Shirley again gave his opinion that
Gadson was unable to maintain full-time work due to his back
conditions and chronic pain.
Psychological Condition
In November 1994, Dr. Florio recommended that Gadson receive
psychotherapy. Gadson began treatment with Dr. Frank Birmingham,
MSW, Ph.D. on December 15, 1994. Dr. Birmingham diagnosed
adjustment disorder with depressed mood. A letter from Dr.
Birmingham dated January 23, 1995, states that he had seen Gadson
4 twice. Based on those visits. Dr. Birmingham wrote that they had
identified strong stresses in Gadson's life due to family
problems, physical pain, insomnia, depression, and unemployment
causing lowered self-esteem. Dr. Birmingham also concluded that
Gadson's cognitive and manual skills were limited based on the
fact that he had been able to achieve a typing rate of only
twenty-five words per minute despite fairly intensive training.
His opinion was that due to Gadson's psychological condition, it
would be nearly impossible for him to find and maintain
employment.
The Hearing
A hearing before an Administrative Law Judge (ALJ) was held
on February 14, 1995. Gadson testified that he was born on April
25, 1950, and he was 44 years old at the time of the hearing. He
obtained his high school GED degree in 1986. He had not worked
since August 1993 and was waiting to hear from New Hampshire
Vocational Rehabilitation to see if they could assist him.
Before August 1993, he held a variety of jobs including custodial
positions and, most recently, an office job that involved
carrying files up and down stairs as well as data entry. He said
he had difficulty with both the physical demands of the office
work and the typing reguired for data entry. At the time of the
hearing, he lived in Concord, New Hampshire, with his wife who
received workers' compensation benefits that were the family's
only source of income.
5 Gadson testified that pain in his back was constant but was
aggravated by bending or walking for more than fifteen minutes.
He also described pain in his left shoulder and neck if he
reached above his shoulder. He said that sitting for more than
fifteen or twenty minutes made his legs stiff and numb so that he
had to stretch in order to move around again. He said that pain
in his lower back made his legs weak and that when he climbed or
descended stairs, he limped and needed to pull himself along with
the bannister. He explained that because of his wife's
disability, he does the family's grocery shopping once a month.
He said that he had difficulty lifting grocery bags and that
after two or three trips with bags he was unable to continue due
to weakness in his back, neck, and shoulders. At the time of the
hearing, Gadson was attending the cardiac rehabilitation clinic
at Concord Hospital, and he described his difficulty and the pain
associated with the exercises in the clinic.
In addition to physical pain, Gadson testified that he had
been experiencing depression and was being treated by Dr.
Birmingham. He explained that he had been depressed since being
with his brother when he died in Chicago in August 1994. He also
testified that he had difficulty getting along with other people
and for that reason did not associate with others.
Gadson described his daily activities as beginning with
showering, drinking coffee, and dressing which he described as
slow. He then made breakfast for himself and his wife and was
able to do the dishes for five or ten minutes by leaning on the
6 sink. He said that he was not able to do other household chores.
He was able to drive, although with difficulty, but could drive
to his therapy at the hospital and to the store. He did the
family's cooking, shopping, and laundry at the Laundromat.
The Determination
In a decision issued on October 26, 1995, the ALJ found that
Gadson had severe impairments related to his heart condition and
chronic back strain, and that he was unable to perform any of his
past work. The ALJ did not find Gadson's testimony regarding the
pain he was experiencing to be credible. The ALJ concluded that
Gadson was capable of performing a full range of sedentary work,
and based on the Medical-Vocational Guidelines, 20 C.F.R. Part
404, Subpt. P, A p p . 2 ("the Grid"), for a person of his age and
with a high school education, determined that he was not
disabled. His application for SSI benefits was denied. The
Appeals Council denied review in May 1996.
Standard of Review
After a final determination by the Commissioner and upon
reguest by a party, the court is empowered "to enter, upon the
pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Secretary, with or
without remanding the cause for a rehearing." 42 U.S.C.A. §
405(g). The Commissioner's factual findings are conclusive if
supported by substantial evidence. Id.; Irlanda-Ortiz v.
7 Secretary of H.H.S., 955 F.2d 765, 769 (1st Cir. 1991).
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. N.L.R.B., 305 U.S. 197, 229 (1938));
see also Rodriquez Pagan v. Secretary of H.H.S., 819 F.2d 1, 3
(1st Cir.1987).
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence, settle credibility issues, and
draw inferences from the record evidence. Ortiz, 955 F.2d at
7 69; Burgos Lopez v. Secretary of H.H.S., 747 F.2d 37, 40 (1st
Cir. 1984). The court will defer to the ALU's credibility
determinations, particularly where those determinations are
supported by specific findings. Frustaqlia v. Secretary of
H .H .S ., 829 F.2d 192, 195 (1st Cir. 1987). Accordingly, the
Commissioner's decision to deny benefits will be affirmed unless
it is based on a legal or factual error. Manso-Pizarro v.
Secretary of H.H.S., 76 F.3d 15, 16 (1st Cir. 1996).
Discussion
Gadson's application for benefits was denied at the fifth
step of the sequential analysis for evaluating disability. 20
C.F.R. § 416.920(f). At step five, the Commissioner has the
burden of showing that despite the severity of the claimant's
impairment and inability to return to past relevant work, he is
able to perform other work. Heggartv v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). Gadson contends that the Commissioner did
not meet his burden in this case because no substantial evidence
supports the ALJ's determinations pertaining to his physical and
mental impairments and because the grid was not appropriately
used to decide that he was not disabled.
A. Physical Impairments
1. Heart Condition
The objective medical evidence in the record and the
diagnoses of Gadson's treating physicians demonstrate that Gadson
has a heart condition caused by a faulty mitral valve and a
residual ventricular septal defect following the surgical repair
in 1966 that cause a backflow of blood during heart contraction.
The physicians found no cardiac dysfunction, however, and
concluded that Gadson's complaints of chest pain are not caused
by his cardiac condition. Thus, substantial evidence in the
record does support the ALJ's conclusion that Gadson's heart
condition precludes work that would reguire heavy exertional
levels, but does not otherwise limit his capacity for sedentary
work.
2. Back and Neck Condition
The ALJ found that Gadson was impaired by chronic cervico-
lumbrosacral strains. He also found that Gadson's complaints of
pain were not credible, and decided that Gadson was capable of a
full range of sedentary work activity. In reaching his determination regarding Gadson's residual
functional capacity for sedentary work, the ALJ primarily relied
on a functional capacity assessment by Gadson's physical
therapists in September 1993. The referenced assessment dated
September 27, 1993, concluded that Gadson was then capable of
sedentary work only part time--for a four hour period. The ALJ
explained the part-time limitation by interpreting the physical
therapist's notes to suggest that Gadson "would be able shortly
to do sedentary work on a full-time basis." The note that
discusses a potential for full-time work actually says, "At this
point in time, pt is at a sed. work cap. part time at 4 hours
max. Please advise. Otherwise cont. [with] WTP (Work Tolerance
Program) to [increase?] hours to full time."
Dr. Shirley's office notes of his examination of Gadson the
next day, September 28, indicate that while Gadson was achieving
some improvement in neck pain, he continued to have cervical pain
and dysfunction extending into his shoulder area. Dr. Shirley
further noted that Gadson was unable to continue in the work
tolerance program due to pain and intolerance to medications for
pain. Dr. Shirley's assessment, based on the physical
therapist's capacity evaluation and his own knowledge of Gadson's
condition, was that Gadson was "totally disabled from significant
gainful employment." While Dr. Shirley's opinion is not
conclusive as to disability under the statute, it is nevertheless
10 to be considered as part of the evidence in making the
determination.2
A plausible interpretation of the physical therapy note,
particularly in light of Dr. Shirley's examination notes the next
day, does not provide substantial evidence that Gadson was then
capable, or would soon become capable, of performing a full range
of sedentary work activities. Because an ALJ is not gualified to
assess a claimant's residual functional capacity based on the
bare medical record, evidence must exist in the record to support
his or her findings. Berrios Lopez, 951 F.2d at 431.
In the motion for affirmance, the Commissioner points to the
evaluation by a Disability Determination Services physician dated
December 10, 1993, which in turn was based on Gadson's medical
records, that found a residual functional capacity for light work
activity without restrictions. The evaluation was affirmed by a
second DDS physician's review of Gadson's medical record on June
23, 1994.
Because the ALJ did not mention the DDS evaluations in his
decision, it is unclear whether he relied on the evaluations, and
if so, whether he employed the process prescribed at 20 C.F.R. §
416.927(f). The DDS evaluations are of the ordinary type, that
is, a series of checked boxes indicating functional capacity, but
also include some supporting medical conclusions which might add
2 A treating physician's opinion as to the claimant's medical condition and the nature and severity of his impairments is entitled to considerable weight under appropriate circumstances, 20 C.F.R. § 416.927(c), but an opinion of disability is not controlling, 20 C.F.R. § 416.927(e).
11 to the significance of the evaluation. See Berrios Lopez v.
Secretary of H.H.S., 951 F.2d 427, 431 (1st Cir. 1991). However,
the last functional capacity assessment in Gadson's record found
him limited to sedentary work for a maximum of a four hour
period. The DDS physician did not explain his differing
assessment, and, to the contrary, notes that Gadson "has
continued to have problems with neck and upper back pain.
Physiotherapy and medication have not resulted in significant
improvement." Under these circumstances, the DDS evaluation is
entitled to only passing weight and does not provide the
substantial evidence necessary to support the ALJ's finding.
Thus the more reliable record evidence of Gadson's residual
functional capacity appears to be the physical therapy report
from September 1993, which does not support the ALJ's assessment
of Gadson's prospective improved capabilities. The record
evidence demonstrates that in September 1993 Gadson had a
capacity for sedentary work limited to a four-hour period each
day, and the Commissioner has not demonstrated that evidence in
the record establishes that his capacity increased thereafter.
Although part time work can in some circumstances gualify as
substantial gainful activity, see 20 C.F.R. §§ 416.973, 416.974,
the Grid is not an appropriate shortcut for the vocational aspect
of the Commissioner's burden at step five if a claimant is not
capable of a full range of activity at the particular exertional
level. See Heggartv, 947 F.2d at 996; see also Walker v. Bowen,
826 F.2d 996, 1002 (11th Cir. 1987). Therefore, the Commissioner
12 has not carried his burden at the fifth step to show that the
claimant is capable of doing other work. Accordingly, the
decision denying benefits must be reversed and remanded for
further consideration of Gadson's work capabilities.
B. Remand
The ALJ's finding that Gadson was able to perform a full
range of sedentary work, despite his complaints of back, neck,
and chest pain and weakness, was apparently influenced by his
conclusion that Gadson's subjective complaints of pain were not
credible. The ALJ also found that the record did not demonstrate
that Gadson suffered from a severe mental impairment. On remand,
the following deficiencies in the Commissioner's decision, based
on the ALJ's credibility and mental impairment determinations,
are also noted for correction.
1. Credibility
A claimant's subjective complaints are evaluated in light of
the Avery factors. Avery v. Secretary of H.H.S., 797 F.2d 19
(1st Cir. 1986). Under Avery, the ALJ was reguired to consider:
"(1) the nature, location, onset, duration, freguency, radiation,
and intensity of pain; (2) any precipitating or aggravating
factors; (3) the type, dosage, effectiveness and adverse
side-effects of any pain medication; (4) any treatment, other
than medication, for the relief of pain; (5) any functional
13 restrictions; and (6) the claimant's daily activities." Pedis
v. Chater, 956 F. Supp. 45, 53 (D. Mass., 1997) .
Although Gadson's testimony generally covered the Avery
factors, the ALJ did not specifically address the factors in his
decision. In addition, some of the ALJ's specific credibility
determinations are not entitled to deference since appropriate
consideration of the factors and the record evidence would not
support the ALJ's determination. See Frustaqalia, 829 F.2d at
195. For example, Gadson's testimony that he cannot sit in one
place for an extended time and that he moves position often to
relieve back pain is supported in the record and not contradicted
by his testimony pertaining to his daily activities.3 The ALJ
also noted that Gadson seemed to feel he was capable of work
activity because he continued to seek vocational rehabilitation
services. While the record indicates that Gadson has tried
rehabilitation programs, it also reveals his lack of success.
His unsuccessful attempts to find employment does not evidence
his capacity to engage in work activity.
2. Mental Impairment
Gadson also contends that the ALJ did not properly assess
his mental impairment as reguired by 20 C.F.R. § 416.920a. The
3 The ALJ's inference that because Gadson did not complain of pain during the trip to Chicago to attend his brother when he died, he was able to sit for long periods of time without pain, is unwarranted. See, e.g.. Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir., 1989) (claimant's ability to withstand back pain during four-hour bus ride not indicative of ability to work).
14 regulation initially requires that the same five sequential steps
applicable to a disability determination be applied to determine
whether a mental impairment exists. § 416.920a(a). In addition,
evidence of a mental impairment must be evaluated through a
prescribed procedure which is to be recorded on a document known
as a psychiatric review technic form ("PRTF") and appended to the
decision. § 416.920a(b)(1) and (d)(2). If an initial
determination is made that a mental impairment exists, additional
procedures must be followed and recorded on the PRTF. §
416.920a (b) (2), (3) and (c) .
In this case, Gadson's treating physician. Dr. Florio,
referred him to Dr. Frank Birmingham in December 1994 for
psychotherapy. Dr. Birmingham met with Gadson twice in December.
He diagnosed his condition as "adjustment disorder with depressed
mood" and "depression." In Dr. Birmingham's letter dated January
23, 1995, he noted Gadson's mental health issues as well as a
deficiency in his cognitive and manual skill. He concluded that
Gadson's psychological condition would make it "all but
impossible to find and maintain employment at present."
In his decision, however, the ALJ found, without
explanation, that "[t]here is no discrete mental impairment in
this record nor is there impact on basic work activities from
[Gadson's] mental state." The ALJ's conclusion is contrary to
the record evidence and fails to follow the prescribed procedure.
On remand, the ALJ must properly assess the evidence of mental
impairment, including appropriate use of a PRTF. If the evidence
15 of record is deemed to be insufficient, the ALJ must fulfill his
obligation to supplement the record as necessary. See, e.g., 42
U.S.C.A. § 421(h); Heggartv, 947 F.2d at 997; Carter v. Chater,
73 F .3d 1019, 1022 (10th Cir. 1996).
Conclusion
For the foregoing reasons, the claimant's motion to reverse
the decision of the Commissioner (document no. 8) is granted, the
Commissioner's motion to affirm (document no. 10) is denied, and
the case is remanded for further administrative proceedings. The
clerk of court is directed to close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
August 26, 1997
cc: Elizabeth R. Jones, Esg. David L. Broderick, Esg.