Georgette Poland v. SSA CV-00-350-B 08/02/01
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Georgette D . Poland
v. Civil No. 00-350-B Opinion No. 2001 DNH 141 William A. Halter, Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Georgette D. Poland applied for Title II Social Security
Disability Insurance Benefits on November 3, 1994. Poland
alleged an inability to work since May 30, 1994, due to lower
back pain and carpal tunnel syndrome. The Social Security
Administration ("SSA") denied her application initially and on
reconsideration. Administrative Law Judge ("ALJ") Robert
Klingebiel held a hearing on Poland's claim on December 12, 1995.
In a decision dated April 17, 1996, the ALJ found that Poland was
not disabled. On July 16, 1997, the Appeals Council vacated the
ALJ's decision and remanded the case to him for a new hearing and
decision. The ALJ held a second hearing on January 27, 1998 and,
in a decision dated February 24, 1998, he again found that Poland
was not disabled. On June 12, 2000, the Appeals Council denied Poland's request for review, rendering the ALJ's decision the
final decision of the Commissioner of the SSA.
Poland brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the denial of her application for benefits.
Poland requests that this court reverse the Commissioner's
decision and award her benefits. I conclude that Poland is not
entitled to an order awarding benefits to her. For the reasons
set forth below, however, I remand this case and direct that the
ALJ take additional evidence.
I. FACTS1
Poland was thirty-seven years old when she applied for
benefits. She worked as a custodian, child-care provider, press
operator, and, most recently, as a material handler from November
1982 until May 1994. Tr.2 at 150. Poland has not worked since
May 30, 1994, the date she claims her disability began. In
December 1997, she received her high school equivalency degree.
1 Unless otherwise noted, I take the following facts from the Joint Statement of Material Facts, Doc. No. 8, submitted by the parties.
2 "Tr." refers to the certified transcript of the record submitted to the Court by the SSA in connection with this case.
- 2 - Id. at 84.
Poland suffered neck, lower back, and wrist injuries in a
motor vehicle accident on May 30, 1994. She was taken to the
emergency room at Concord Hospital for treatment. The examining
physician. Dr. Andrew Jaffe, observed that Poland was
neurologically intact and had good range of motion in her neck.
The radiologist reported that the x-rays of her cervical spine
were normal. Dr. Jaffe diagnosed her with acute cervical strain
and prescribed Robaxin. Although he also instructed Poland to
wear a soft cervical collar, she declined to do so.
On June 1, 1994, Poland reported to Nurse Practitioner
("NP") Jody Goodrich that she had neck and lower back pain. She
also described two brief episodes of bilateral hand numbness.
Her sensory exam, however, was normal. NP Goodrich referred her
to physical therapy. Tr. at 171. Poland returned to NP Goodrich
a week later and said that her pain was "a little better." She
noted that she had numbness in her hands two to three times a day
which resolved quickly. She was diagnosed with severe cervical
strain that appeared to be resolving slowly.
On July 8, 1994, Poland complained to NP Goodrich that her
lower back was tender all the time, but stated that her condition
- 3 - improved somewhat with physical therapy. Tr. at 165. She also
reported that her neck pain was better, but that she could not
lift any objects without pain. Id. In addition, Poland stated
that she still suffered from intermittent hand numbness when she
cooked or knitted. NP Goodrich diagnosed her with persistent
lumbar strain, and they both agreed that she probably could not
go back to work.
Physician Assistant ("PA") Patrick McCarthy examined Poland
on July 22, 1994. He noted some point tenderness along Poland's
entire cervical spine, but no pain in her lumbar spine. Upon
examination, Poland had full cervical flexion and extension. Her
strength was 5/5 in the finger intrinsics and flexors, and her
upper extremity sensation was normal. PA McCarthy indicated that
Poland could engage in light-duty work, and encouraged her to
return to work.
Three days later, Poland's physical therapist reported that
Poland was slowly resolving her neck and back injury, although
her back was still somewhat sore. In addition, the physical
therapist observed that Poland's functional mobility was much
improved.
On August 31, 1994, Dr. William House, a neurologist,
- 4 - examined Poland. During her exam, Poland tested positive for
carpal tunnel syndrome ("CTS")3 during the Phalen's maneuver.4
Tr. at 205, 229. Dr. House diagnosed Poland with probable post-
traumatic bilateral CTS and prescribed Ibuprofen and wrist
splints.
NP Goodrich noted on October 25, 1994, that Poland showed
only limited progress in resolving her cervical and lumbosacral
strain symptoms. She opined that Poland could not lift more than
5 to 10 pounds and that Poland could not sit for more than an
hour without pain. She also indicated that Poland would not be
able to perform work which required significant manual labor but
she could handle a part-time job in which she did mostly desk
work with the opportunity to stand and walk frequently.
In a follow-up appointment with Dr. House, on November 30,
1994, Poland said she still experienced numbness in her hands.
3 Carpal tunnel syndrome consists of a complex of symptoms resulting from compression of the median nerve in the carpal tunnel, with pain and burning or tingling paresthesias in the fingers and hand, sometimes extending to the elbow. Dorland's Illustrated Medical Dictionary 1626 (28th ed. 1994).
4 Phalen's test or maneuver is used to detect carpal tunnel syndrome and consists of reducing the size of the carpal tunnel by holding the affected hand with the wrist fully flexed or extended for 30 to 60 seconds. Id. at 985.
- 5 - Dr. House's examination revealed no neurological abnormalities
and showed that the Phalen's test was "weakly positive or perhaps
not positive at all." Dr. House diagnosed Poland with mild CTS,
and he ordered an upper extremity electromyograph ("EMG"). The
EMG showed no evidence of active or chronic denervation, however.
Dr. House concluded that the EMG confirmed Poland's mild CTS. He
advised her to return to work and to continue with her treatment.
Dr. David Nagel, an orthopaedist, examined Poland on
February 24, 1995. Poland told Dr. Nagel that she could no
longer engage in snowmobiling and other sports. She also could
not do all of her housework, and required help with the laundry
and vacuuming. On examination, Poland exhibited almost full
range of motion in her neck, marked tenderness over the left
trapezius, and a positive Phalen's test at about 12 seconds for
the right hand and 20 seconds for the left hand. Poland's
forward lumbar flexion was moderately restricted. Dr. Nagel
diagnosed Poland with cervical strain with myofascial pain,
bilateral CTS, and lumbar strain.
In April 1995, Dr. Campbell, a medical consultant for the
state disability determination agency, assessed Poland's physical
residual functional capacity ("RFC"). He determined that Poland
- 6 - was capable of performing light work with the exception that she
should avoid rapid, repetitive movements with her hands and
fingers. Tr. at 122.
In May 1995, Poland underwent another course of physical
therapy. Her physical therapist reported that her progress was
excellent. After therapy, Poland's upper extremity elevation was
normal, her cervical range of motion improved from 50% to 75%,
and her hand pain decreased. Poland, however, still complained
of lumbosacral tightness and poor endurance when using her upper
extremity for lifting.
In July 1995, another medical consultant for the state
disability determination agency. Dr. Burton Nault, determined
Poland's RFC. He affirmed Dr. Campbell's previous RFC for light
work and also opined that Poland should avoid repetitive bending
and lifting.
In February 1996, Dr. Nagel reported that Poland's neck pain
and back pain were still severe. He noted that she was markedly
symptomatic and, as a result, had significant functional
limitations. In March 1996, Dr. Nagel opined that additional
medical intervention was not likely to cause dramatic improvement
in Poland's condition and that her functional limitations were
- 7 - not likely to change.
In July 1996, Dr. Nagel reported to an insurance company
that Poland's symptoms had reached the point of maximum medical
improvement. He opined that she would be capable of sedentary,
non-repetitive work with limited bending, twisting, and stooping.
He was unable to estimate how many hours she could work, but he
felt that with rehabilitation she could engage in part-time
sedentary work.
In December 1996, physical and occupational therapists at
the New Hampshire Center for Back Care at Concord Hospital
performed a formal Physical Capacity Evaluation ("PCE") of
Poland.5 The test results revealed: (1) that Poland can bend,
kneel, squat, stand, walk, sit, reach, drive, and perform fine
motor activities only occasionally (1-33% of the time); (2) that
she has a sedentary work capacity, which means she can lift 10
pounds occasionally and less than 5 pounds frequently; and (3)
that she cannot perform repetitive motions with her right
shoulder. Physical Capacity Summary, Doc. No. 6, at 1-2.
5 This evaluation is not part of the administrative record upon which the ALJ based his decision. Poland submitted a copy of the PCE, for the first time, with her motion to reverse the Commissioner's decision. Specifically, the PCE indicated that Poland "demonstrates a very
low weighted lifting ability at 7^-10 pounds with bilateral
activities and low lift and carry activities [and] 3-5 pounds for
unilateral reaching activities at shoulder height and above."
Physical Capacity Evaluation, Doc. No. 6, at 3. In addition, the
test results indicated that Poland could stand for 25 minutes and
sit for 60 minutes continuously. Id. The evaluation did not
estimate how many hours per day Poland could work.
In February 1997, Dr. Nagel reiterated that Poland's chronic
cervical and lumbar strains and her CTS had reached the point of
maximum medical improvement. Dr. Nagel adopted the results of
Poland's PCE and reported that she could perform sedentary work
with frequent breaks to stretch her neck, that she should avoid
prolonged neck flexion, that she should avoid repetitive use of
the arms without frequent breaks, and that she should limit any
bending activities. Dr. Nagel expected that these restrictions
would be permanent. In a letter to an insurance company in March
1997, Dr. Nagel estimated that Poland could work 4 to 6 hours per
day, 3 to 5 days per week. He also noted that she should not
engage in any repetitive grasping or pinching, she should not sit
for more than one half-hour at a time without the ability to get
- 9 - up and stretch, and she should not bend or twist repeatedly.
On April 23, 1997, Dr. Nagel rated Poland's level of
impairment according to the AMA Guide to the Evaluation of
Permanent Impairment. He assessed her cervical and lumbar range
of motion and concluded that she suffered minor impairments
(category 2) of both the cervical and lumbar spine.
In November 1998, Poland complained to Dr. Nagel about pain
in her right trapezius muscle, which radiated up into her head
and down through the shoulder. She also continued to have pain
across her lower back which was aggravated by bending. In
February 1999, Dr. Nagel reported that Poland felt better and
that her pain had "quieted down." Tr. at 291. Poland told Dr.
Nagel that she had started physical therapy again and felt that
she was making "slow but steady gains" and that the "therapy does
seem to help." Id.
II. STANDARD OF REVIEW
_____ After a final determination by the Commissioner denying a
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
- 10 - 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, as the ALJ's factual findings are
conclusive if they are 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). The ALJ is responsible
for settling credibility issues, drawing inferences from the
record evidence, and resolving conflicts in the evidence. See
Irlanda Ortiz, 955 F.2d at 7 69. Therefore, 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." Id. (quoting Rodriquez v. Sec'v
of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981))
(internal quotation marks omitted).
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 the experts." Nguyen v. Chater, 172 F.3d
31, 35 (1st Cir. 1999) (per curiam). I apply this standard in
reviewing the issues that Poland raises on appeal.
III. DISCUSSION
- 11 - The Social Security Act (the "Act") defines "disability" for
the purposes of Title II 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 tolast
for a continuous period of not less than 12 months." 42 U.S.C. §
423(d)(1)(A). The Act directs an ALJ to apply a five-step
sequential analysis to determine whether a claimant is disabled.6
See 20 C.F.R. § 404.1520. At step four, the ALJ must determine
whether the claimant's impairment prevents her from performing
her past work. See id. § 404.1520(e). To make this
determination, the ALJ must assess both the claimant's residual
functional capacity ("RFC"), that is, what the claimant can do
despite her impairments, and the demands of the claimant's prior
employment. See id.; 20 C.F.R. § 404.1545(a); see also Santiago
v. Sec'v of Health & Human Servs., 944 F.2d 1, 7 (1st Cir. 1991)
6 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 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 (2000).
- 12 - (per curiam). The claimant, however, bears the burden of showing
that she does not have the RFC to perform her past relevantwork.
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." Heqqartv v. Sullivan, 947 F.2d 990, 995 (1st Cir.
1991) (per curiam); see also Keating v. Sec'v of Health & Human
Servs., 848 F.2d 271, 276 (1st Cir. 1988) (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, 848 F.2d at 276 ("The standard is not employability,but
capacity to do the job.").
In this case, the ALJ concluded at step five of the
sequential evaluation process that Poland was "not disabled."
Tr. at 42, 47, 49. The ALJ determined that Poland retains the
RFC to perform light work7 but that she should avoid work that
7 Light work involves "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds," "a good deal of walking or standing," and/or "sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).
- 13 - requires bending and lifting at the waist and repetitive
manipulation with her hands. Id. at 48. Ultimately, the ALJ
considered Poland's educational background, age, RFC, and the
testimony of a vocational expert when he decided that Poland can
perform jobs that exist in significant numbers in the national
economy. Id. at 47, 49.
Poland argues that the ALJ's decision was tainted by a
number of legal errors. First, Poland asserts that the ALJ
improperly rejected the opinion of Dr. Nagel, her treating
orthopedic physician, regarding her RFC. Second, Poland argues
that the ALJ did not properly evaluate her subjective complaints
of pain. Lastly, Poland argues that the ALJ improperly relied on
the testimony of the vocational expert ("VE") because the
hypothetical question posed to the VE did not fully reflect
Poland's functional limitations. I address each of these
arguments in turn and, ultimately, conclude that they lack merit.
In addition, although Poland did not raise this as a separate
ground for reversal, I also address the ALJ's failure to fully
develop the record and decide to remand the case for the taking
- 14 - of additional evidence.8
A. The ALJ's Weighing of Dr. Nagel's Opinion
Poland contends that the ALJ improperly rejected Dr. Nagel's
opinion concerning her RFC. She argues that the ALJ failed to
apply the appropriate factors for evaluating opinion evidence,
and that had he done so, he would have found that Dr. Nagel's
opinion was entitled to controlling or significant weight. On
March 3, 1997, Dr. Nagel opined that Poland retained the RFC to
engage in sedentary work, as she can lift 10 pounds occasionally
and 5 pounds frequently.9 He estimated that Poland could work 4
to 6 hours per day, 3 to 5 days per week. Tr. at 286. The ALJ
rejected Dr. Nagel's determination of Poland's RFC because
neither Dr. Nagel's notes nor NP Goodrich's notes support those
limitations. Tr. at 44.
8 Because this remand is pursuant to sentence six of 42 U.S.C. § 405(g), I will not enter a final judgment in this case until the Commissioner files any additional findings of fact or a modified decision. See id.; Melkonvan v. Sullivan, 501 U.S. 89, 98 (1991) .
9 According to the SSA, 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;" occasional "walking and standing;" and frequent "sitting." 20 C.F.R. § 404.1567(a).
- 15 - An ALJ must give controlling weight to the medical opinion
of a treating physician where the opinion is "well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2).
When a treating physician's medical opinion is not entitled to
controlling weight, the ALJ must still determine the appropriate
weight to give to the opinion by evaluating certain factors. See
id. The ALJ must consider: (i) the length of the treatment
relationship and the frequency of examination; (ii) the nature
and extent of the treatment relationship; (iii) whether and to
what extent the opinion is supported by medical signs and
laboratory findings; (iv) whether the opinion is consistent with
other evidence in the record; (v) whether the physician's opinion
concerns medical issues related to his area of specialty; and
(vi) any other factors which support or contradict the opinion.
Id. § 404.1527(d)(2)-(d)(6).
Dr. Nagel's opinion concerning Poland's RFC, however, is not
a medical opinion; rather it is an opinion on an issue reserved
to the Commissioner. See id. § 404.1527(e); SSR 96-5p, 1996 WL
374183, at *2 (1996). Therefore, Dr. Nagel's opinion is not
- 16 - entitled to "controlling weight or special significance."
SSR 96-5p, 1996 WL 374183, at *2; see 20 C.F.R. § 404.1527(e) (3).
The ALJ, however, was still required to consider the applicable
factors in 20 C.F.R. § 404.1527(d) when he evaluated Dr. Nagel's
opinion concerning Poland's RFC. See SSR 96-5p, 1996 WL 374183,
at *3 .
I conclude that the ALJ properly weighed the applicable
factors, although he did not explicitly address each one in his
decision. The ALJ determined that Dr. Nagel's opinion regarding
Poland's RFC was not supported by his medical notes or the
medical notes of other treating sources. Tr. at 44. This
conclusion is supported by substantial evidence in the record.10
10 Dr. Nagel fails to provide objective findings in his notes which could support his determination of Poland's RFC. Dr. Nagel's notes do reveal that Poland's range of motion is limited due to her neck and back pain. Her functional limitations, however, are not severe enough to support an RFC for part-time, sedentary work. For example, when Dr. Nagel first examined Poland in February 1995, he found that she had full range of motion in her neck, shoulder, elbow, and wrists. Tr. at 207. Poland, however, exhibited moderate restriction in forward flexion. Id. In addition in April 1997, Dr. Nagel assessed Poland's cervical and lumbar range of motion to determine her level of impairment according to the AMA Guide to the Evaluation of Permanent Impairment. He determined that she suffered only minor impairments of both her cervical and lumbar spine. Id. at 278.
- 17 - In addition. Dr. Nagel's opinion was not consistent with the RFC
determinations of the state agency medical consultants. Dr.
Campbell and Dr. Nault determined that Poland retained the RFC to
perform light work with the additional limitations that she
fingers and repetitive bending and lifting. Tr. at 118, 126.
For the foregoing reasons, I find that the ALJ's decision to
reject Dr. Nagel's opinion was supported by substantial evidence
in the record.
B . The ALJ's Evaluation of Poland's Subnective Complaints of _____ Pain
_____ Poland argues that the ALJ failed to properly evaluate her
subjective complaints of pain. Specifically, she contends that
the ALJ did not properly analyze the Avery factors before he
determined that her subjective complaints of pain were not
credible. Poland alleges that she suffers neck and lower back
pain when she exerts herself and when she is just sitting or
standing for more than one half-hour at a time, and that the pain
ranges in severity depending on the circumstances.
1. Standards Governing an ALJ's Credibility Determination
The SSA regulations require that the ALJ consider a
- 18 - claimant's symptoms, including complaints of pain, when he is
determining whether a claimant is disabled. See 20 C.F.R. §
404.1529(a).11 The ALJ must evaluate the intensity, persistence,
and functionally limiting effects of the claimant's symptoms so
that the ALJ can determine how the claimant's symptoms limit his
or her capacity for work. See id. § 404.1529(c) (1); SSR 96-7p,
1996 WL 374186, at *1 (1996). The ALJ must consider all of the
available evidence, including the claimant's medical history, the
medical signs and laboratory findings, the claimant's prior work
record, and statements from the claimant, the claimant's treating
or examining physician or psychologist, or other persons about
how the claimant's symptoms affect her. 20 C.F.R. §
404.1529 (c) (1)- (3) .
11 An ALJ must apply a two-step analysis to evaluate a claimant's subjective complaints of pain. First, the ALJ must determine whether the claimant suffers from a medically determinable impairment that can reasonably be expected to produce the pain and other symptoms alleged. See 20 C.F.R. § 404.1529(b); Da Rosa v. Sec'v of Health and Human Servs., 803 F.2d 24, 25 (1st Cir. 1986) (per curiam). Then, if such an impairment exists, the ALJ must evaluate the intensity and persistence of the claimant's symptoms. See 20 C.F.R. § 404.1529(c). The ALJ made a specific finding regarding the first step of the analysis. He determined that Poland suffered from "neck, low back and wrist injuries ... [that] cause some pain and discomfort." Tr. at 42. Therefore, I focus on the second step of the analysis.
- 19 - _____ The Commissioner recognizes that symptoms such as pain may
suggest a more severe impairment "than can be shown by objective
medical evidence alone." Id. § 404.1529(c)(3). Accordingly, the
ALJ must evaluate the claimant's complaints of pain in light of
the following factors: (1) the claimant's daily activities; (2)
the location, duration, frequency, and intensity of the
claimant's pain; (3) precipitating and aggravating factors; (4)
the type, dosage, effectiveness, and side effects of any
medication that the claimant takes or has taken to alleviate his
pain; (5) treatment, other than medication, the claimant receives
or has received for relief of his pain; (6) any measures the
claimant uses or has used to relieve pain; and (7) other factors
concerning the claimant's limitations and restrictions due to
pain. See id. § 404.1529(c)(3)(i)-(vii); see also Avery v . Sec'v
of Health & Human Servs., 797 F.2d 19, 29-30 (1st Cir. 1986).
These factors are sometimes called the "Avery factors." In
addition to considering these factors, the ALJ is entitled to
observe the claimant, evaluate his demeanor, and consider how the
claimant's testimony fits with the rest of the evidence. See
Frustaqlia v. Sec'v of Health & Human Servs., 829 F.2d 192, 195
(1st Cir. 1987) (per curiam).
- 20 - _____ In assessing the credibility of a claimant's subjective
complaints of pain, the ALJ must consider whether these
complaints are consistent with the objective medical evidence and
other evidence in the record. See 20 C.F.R. § 404.1529(a).
While a claimant's complaints of pain must be consistent with the
medical evidence to be credited, they need not be precisely
corroborated with such evidence. See Dupuis v. Sec'v of Health &
Human Servs., 869 F.2d 622, 623 (1st Cir. 1989) (per curiam).
The ALJ in making a credibility determination must also make
specific findings as to the relevant evidence he considered in
deciding whether to believe a claimant's subjective complaints.
Da Rosa, 803 F.2d at 26.
2. The ALJ's Assessment of Poland's Subjective Complaints of Pain
Contrary to Poland's argument, the ALJ properly analyzed the
Avery factors, and he made sufficient findings as to the relevant
evidence he considered in deciding not to credit her subjective
complaints of pain. The ALJ heard considerable testimony
regarding these factors at the hearing on January 27, 1998. Tr.
at 84-100. He considered the evidence concerning the nature,
frequency, and intensity of Poland's pain when he determined that
- 21 - "she does not have a condition which involves constant
intractable pain or other marked functional restrictions." Tr.
at 45. Substantial evidence exists in the record to support his
conclusion that Poland suffers from some pain, but that her pain
does not preclude her from performing all work. Poland testified
that her neck pain was severe enough to make her lie down only
twice a month. Tr. at 91. In addition, she could sit for 45
minutes and stand for up to an hour without any back pain. Id.
at 92. Furthermore, during Dr. Nagel's most recent examination
of Poland on February 9, 1999, he noted that "[r]ight now she
does feel better and her pain has quieted down." Tr. at 291.
The ALJ also made specific findings about Poland's daily
activities. Tr. at 45. Poland stated that she cooks, does light
housework, shops for groceries, cares for her basic needs, and
reads books, newspapers, and periodicals. Id. at 142-43. She
also drives on a regular basis and visits with her grandchildren
twice a week. Id. at 45. Thus, there is substantial evidence in
the record to support the ALJ's determination that because Poland
is able to engage in some daily activities, she would still be
able to engage in light work. See Roe v. Chater, 92 F.3d 672,
677 (8th Cir. 1996) ("More telling than a chronicle of [the
- 22 - claimant's] various ailments are his actual activities, which are
incongruous with his contention that he cannot work.")
In addition, the ALJ noted that Poland takes Tylenol, Somex
and Aspirin for pain relief. Tr. at 45. Poland, however, told
Dr. Nagel on November 10, 1998 that she is "not a pill taker" and
that she has been taking stronger medication only when her
symptoms worsened. Tr. at 289. Her treating nurse practitioner,
however, stated on September 18, 1997, that Poland was on no
chronic medications except for Advil. Tr. at 281. Based on this
evidence, the ALJ could find that Poland's limited use of
stronger medications suggests that her pain is not as severe as
she alleges. C f . Albors v. Sec'v of Health & Human Servs., 817
F.2d 146, 148 (1st Cir. 1986) (per curiam) (holding that the fact
that a claimant takes no medication stronger than aspirin
supports the ALJ's discrediting of the claimant's assertions of
disabling pain).
Lastly, although the ALJ did not explicitly discuss the
"other treatment" factor, the evidence in the record supports the
proposition that physical therapy helps to alleviate Poland's
pain. On February 9, 1999, Poland told Dr. Nagel that she was
making "slow but steady gains" at physical therapy and that
- 23 - "therapy does seem to help." Tr. at 291. In addition, following
an earlier course of physical therapy, Poland's physical
therapist remarked that her progress was excellent and that her
cervical range of motion increased from 50% to 75%. Id. at 216.
The fact that physical therapy can alleviate Poland's pain
suggests that her symptoms are not so debilitating as to prevent
her from engaging in all types of work.
For the foregoing reasons, I find that the ALJ's analysis of
the Avery factors was proper and that substantial evidence exists
to support his conclusion that Poland's pain is not severe enough
to preclude her from engaging in all work. Therefore, I conclude
that the ALJ's determination that Poland's subjective complaints
of pain were not entirely credible is supported by substantial
evidence and thus entitled to deference.
C. The ALJ's Reliance on Vocational Expert Testimony
_____ Lastly, Poland argues that the ALJ improperly relied on the
testimony of the VE because the hypothetical question the ALJ
posed to the VE did not fully reflect her functional limitations.
For the following reasons, I disagree.
Once a claimant proves that he is incapable of returning to
his prior jobs, the burden shifts to the Commissioner to come
- 24 - forward with evidence of specific jobs in the national economy
that the claimant is capable of performing. See Arocho v . Sec'v
of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982); 20
C.F.R. § 404.1520(f). The Commissioner can meet his burden of
proof on this issue by relying on the testimony of a V E . See
Arocho, 670 F.2d at 375; see also Berrios Lopez v. Sec'v of
Health & Human Servs., 951 F.2d 427, 429-30 (1st Cir. 1991) (per
curiam).
In order to rely on the V E 1s testimony, however, the ALJ
must pose to the VE a hypothetical question that accurately
reflects the claimant's functional limitations. See Berrios
Lopez, 951 F.2d at 429. That is, the ALJ may credit the VE's
response only if there is "substantial evidence in the record to
support the description of [the] claimant's impairments given in
the ALJ's hypothetical." Id.; see Arocho, 670 F.2d at 375.
In this case, the ALJ's hypothetical question to the VE
included the following limitations: she is limited to lifting and
carrying no more than 20 pounds maximum; she can not use her
hands for rapid, repetitive activities; and she can not
repetitively bend, particularly at the waist, nor repetitively
lift items off the floor to put them onto a table or workbench.
- 25 - Tr. at 103-04. The VE found that an individual with those
functional limitations could perform a number of jobs including:
retail sales, teacher's aide, receptionist/information giver, and
security guard. Id. at 105-06.
Poland argues that the ALJ cannot rely on the testimony of
the VE because the ALJ failed to include the limitations that
Poland can only lift 10 pounds occasionally and 5 pounds
frequently, that she can only engage in sedentary work for 4
hours, three to five times a week, and that she can sit no more
than one half-hour at a time. These limitations embody the
limitations listed in Dr. Nagel's determination of Poland's RFC.
T r . at 110.
Poland's argument lacks merit because the ALJ discredited
these limitations when he rejected Dr. Nagel's opinion concerning
Poland's RFC. I determined earlier that the ALJ's decision to
reject Dr. Nagel's opinion is supported by substantial evidence
in the record. Therefore, because the ALJ was entitled to
discredit these limitations, he was not required to include them
in his hypothetical to the V E .
Moreover, the functional limitations the ALJ included in his
hypothetical are supported by substantial evidence. Those
- 26 - limitations are consistent with the RFC determinations of Dr.
Campbell and Dr. Nault, the state agency medical consultants, and
with Physician Assistant Patrick McCarthy's determination that
Poland could engage in light-duty work. Tr. at 118, 126, 166.
Because substantial evidence in the record supported the
description of Poland's functional limitations, I conclude that
the ALJ properly credited the VE's response to the hypothetical.
D. The ALJ's Failure to Develop the Record
Notwithstanding the fact that I conclude that Poland's
arguments lack merit, I find that the ALJ breached his duty to
develop a full and fair record from which to make a reasonable
determination regarding Poland's disability. See Heqqartv, 947
F.2d at 997; Currier v. S e c ' v of Health, Educ. & Welfare, 612
F.2d 594, 598 (1st Cir. 1980). The ALJ failed to obtain a copy
of Poland's December 1996 Physical Capacity Evaluation ("PCE") ,12
The PCE could have impacted the ALJ's decision regarding Poland's
disability because the PCE determined that Poland retained the
RFC to perform only sedentary work.
12 The ALJ knew that the PCE existed at the time he rendered his second decision, as he stated that "Dr. Nagel notes that [Poland] had a physical capacity assessment with indicated a sedentary part time work capacity." Tr. at 43.
- 27 - In addition, the ALJ's duty to develop the record was
enhanced in this case because the PCE was necessary to fill a gap
in the record and the ALJ could easily obtain a copy of it. See
Heqqartv, 947 F.2d at 997; Currier, 612 F.2d at 598. The PCE
fills a gap in the record because it is the only physical
capacity assessment which contradicts the RFC determinations of
the state medical consultants. The PCE indicates that Poland has
a sedentary work capacity, whereas Dr. Campbell and Dr. Nault
concluded that Poland retains the RFC to engage in light work.
Tr. at 43, 119-26. This distinction is crucial because the SSA
considers light work to be more strenuous than sedentary work.
See 20 C.F.R. § 404.1567(a)- (b).
Because I find that the PCE could have impacted the ALJ's
decision, I direct the ALJ, pursuant to 42 U.S.C. § 405(g), to
obtain a copy of the PCE and any other medical records relating
to the PCE. See 42 U.S.C. § 405(g) (The district court "may at
any time order additional evidence to be taken before the
Commissioner ..., but only upon a showing that there is new
evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior
proceeding."). As I discuss below, this evidence satisfies the
- 28 - three requirements of Section 405(g)-- newness, materiality, and
good cause-- that must be met before a district court may remand
a case to the Commissioner to obtain additional evidence. See
id.; Evangelista v. Sec'v of Health & Human Servs., 826 F.2d 136,
139 (1st Cir. 1987) .
Evidence is new if it is non-cumulative and has not been
previously presented to the ALJ. Evangelista, 826 F.2d at
139-40. Evidence is material if its inclusion in the record is
necessary to develop the facts of the case fully and to afford
the claimant a fair hearing. Id. Determining whether evidence
is material also requires a showing of prejudice; a showing that
if the ALJ had considered the proposed evidence, his decision
might reasonably have been different. See Faria v. Comm'r of
Soc. Sec., 187 F.3d 621, No. 97-2421, 1998 WL 1085810, at **1
(1st Cir. 1998) (per curiam) (table, text available on Westlaw);
Evangelista, 826 F.2d at 140. Finally, the good cause
requirement is satisfied when the ALJ fails to adequately develop
the administrative record. See Heggartv, 947 F.2d at 997-98;
Carrillo Marin v. Sec'v of Health & Human Servs., 758 F.2d 14, 16
(1st Cir. 1985).
The PCE constitutes new evidence because it is non-
- 29 - cumulative: it is the only physical capacity assessment that
contradicts the RFC determinations of the state medical
consultants. Furthermore, the PCE was not previously presented
to the ALJ; it was presented for the first time to this Court.13
The PCE is also material. The PCE is necessary to fully
develop the facts of this case because the findings of the PCE
contradict the RFC determinations of the state medical
consultants, which the ALJ relied upon. See Evangelista, 826
F.2d at 139. In addition, because the ALJ must consider all
allegations of physical restrictions when determining a
claimant's RFC, the PCE is essential to a fair hearing. See id.;
see also SSR 96-8p, 1996 WL 374184, at *5 (1996) (emphasizing
that the ALJ, when determining a claimant's RFC, must "consider
all allegations of physical and mental limitations or
restrictions and make every reasonable effort to ensure that the
file contains sufficient evidence to assess RFC").
Furthermore, if the ALJ had considered the PCE, his decision
13 The record contains a reference which suggests that the PCE may have been presented to the Appeals Council following the ALJ's second decision. Tr. at 12. The fact that the PCE was not made part of the administrative record, however, leaves open the possibility that the Appeals Council never received a copy of the PCE .
- 30 - might reasonably have been different. See Evangelista, 826 F.2d
at 140. The ALJ stated that Dr. Nagel's opinion regarding
Poland's limitations was not supported by medical notes in the
record. Tr. at 44. The ALJ, however, did not consider the PCE,
which provided support for Dr. Nagel's opinion as to Poland's
RFC.
In addition, the PCE is based on Poland's actual maximum
lifting ability, determined through graduated increases in
weight. See Physical Capacity Evaluation and Summary, Doc. No.
6. In contrast, the state medical consultants determined
Poland's RFC based solely on a review of her medical records.14
Thus, if the ALJ had evaluated the PCE he might have chosen to
adopt the findings of the PCE instead of the RFC determination of
the state medical consultants because the PCE included actual
physical testing. If the ALJ adopted the findings of the PCE in
14 The Commissioner argues that I should not remand this case for consideration of the PCE because the PCE was not conducted by an acceptable medical source. See 20 C.F.R. § 404.1513(a). The PCE, however, would be considered "[i]nformation from other sources [that] may also help [the Commissioner] to understand how [a claimant's] impairment affects [her] ability to work." Id. § 404.1513(e). Because information from other sources is also considered medical evidence that the ALJ must consider, I reject the Commissioner's argument. See id. §§ 404.1512, 404.1513.
- 31 - his RFC determination, he consequently would need to conclude
that Poland retained the RFC to perform sedentary work, but not
light work.15 Therefore, I find that the ALJ's decision might
reasonably have been different if he had considered the PCE. See
Evangelista, 826 F.2d at 140.
Lastly, I find that the ALJ's failure to obtain material
medical records that he knew existed constitutes good cause for
remand pursuant to 42 U.S.C. § 405(g). See Carrillo Marin, 758
F.2d at 16 (holding that the ALJ's failure "to develop an
adequate record from which a reasonable conclusion can be drawn"
constitutes good cause for remand pursuant to § 40 5 (g)); see
also Heggartv, 947 F.2d at 997-98.
For the foregoing reasons, remand is appropriate to permit
the ALJ to properly develop the administrative record. The ALJ
should obtain a copy of the PCE and any medical records relating
to the PCE. The ALJ should then consider the limitations
presented in the PCE and determine whether to credit those
limitations when determining Poland's RFC.
15 If the ALJ on remand were to conclude that Poland retained the RFC to perform only sedentary work, he would also need to assess anew whether Poland could still perform jobs that exist in the national economy.
- 32 - IV. CONCLUSION
Poland is not entitled to an award of benefits. I find,
however, that the ALJ failed to fully develop the administrative
record. Therefore, remand pursuant to sentence six of 42 U.S.C.
§ 405(g) is appropriate to permit the ALJ to take additional
evidence. Thus, I remand this case to the Commissioner for
further proceedings consistent with this Memorandum and Order.
See Melkonvan v. Sullivan, 501 U.S. 89, 98 (1991). Following the
necessary administrative proceedings, the Commissioner should
file with the Court any additional findings of fact or modified
decision, at which time the Court will enter a final judgment.
42 U.S.C. § 405(g); see Melkonvan, 501 U.S. at 98.
SO ORDERED.
Paul Barbadoro Chief Judge
August 2, 2001
cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.
- 33 -