Groulx v. SSA CV-98-692-B 01/04/00
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
ADRIAN GROULX
v. Civil N o . 98-692-B Opinion N o . 2000 DNH 027 KENNETH S. APFEL, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Adrian Groulx seeks review of a final decision of the
Commissioner of the Social Security Administration (SSA), denying
his application for Supplemental Security Income (SSI) benefits.
I have jurisdiction pursuant to 42 U.S.C. § 405(g) (1994).
Before me are Plaintiff’s Motion for Order Reversing the Decision
of the Commissioner (Doc. # 9 ) and Defendant’s Motion for Order
Affirming the Decision of the Commissioner (Doc. # 1 1 ) .
Groulx applied for SSI benefits on October 2 2 , 1996. His
application was denied initially and on reconsideration by the
SSA. On November 2 6 , 1997, an Administrative Law Judge (ALJ)
held a de novo hearing on Groulx’s claim. Groulx and a
vocational expert (VE) testified at the hearing.
On February 1 9 , 1998, the ALJ issued her decision, which
applied the familiar five-step sequential evaluation process set forth in the SSA’s regulations.1 See 20 C.F.R. § 416.920 (1999).
At the first three steps of the process, the ALJ found that (1)
Groulx had not engaged in substantial gainful activity since June
1 5 , 1991; (2) Groulx suffered from hypertension, moderate small
airways obstruction, and back pain related to a previous lumbar
laminectomy,2 impairments that were severe; and (3) Groulx’s
impairments did not meet or equal the criteria of any of the
listed impairments. See Tr. at 22. 3 At step four, the ALJ found
that Groulx was unable to perform his past relevant work. See
id.
The ALJ rejected Groulx’s claim for benefits at step five of
the evaluation process. After considering Groulx’s functional
capacity, age, educational experience, and work background, the
1 In applying the sequential analysis, the ALJ must 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. § 416.920 (1999). 2 Laminectomy: Excision of the posterior arch of a vertebra. Dorland’s Illustrated Medical Dictionary 898 (28th ed.). 3 “Tr.” refers to the official transcript of the record submitted to the Court by the SSA in connection with this case.
-2- ALJ concluded that Groulx was capable of performing certain jobs
that existed in significant numbers in the national economy. See
id. at 22-3. This finding was predicated on the testimony of the
V E , who stated in response to a hypothetical question posed by
the ALJ that a person with the characteristics outlined in the
hypothetical could perform work as a cashier, information clerk,
order clerk, production coordinator, surveillance monitor, or
assembler. See id. at 2 1 , 2 3 , 69-71. Based on the VE’s
testimony, the ALJ found that Groulx was not disabled within the
meaning of the Social Security Act. See id. at 2 3 .
On October 2 8 , 1998, the Appeals Council denied Groulx’s
request for a review of the ALJ’s decision, rendering the ALJ’s
decision the final determination of the Commissioner. Groulx
then filed the present action in federal court, claiming that the
Commissioner’s decision should be reversed because: (1) Groulx’s
claim was prejudiced because his statutory right to
representation at the disability hearing was not adequately
protected; (2) the ALJ’s determination at step 5 of the
evaluation process was infected with error and thus was not
supported by substantial evidence; and (3) the ALJ’s credibility
finding was not supported by substantial evidence. Because I
agree with the second of these assertions, I reverse the
-3- Commissioner’s decision and remand for further proceedings.4
I. FACTS5
Groulx was forty-five years old at the time of his
administrative hearing. He has a general equivalency diploma and
has worked as a meat packer, a mason/carpenter, and a dispatcher.
He lives in Manchester, New Hampshire.
Groulx first injured his back in August 1984, when he fell
down a stairway. After pursuing more conservative treatment for
several years, Groulx underwent his first back surgery, a lumbar
laminectomy, in August 1986.
Five years later, in June 1991, Groulx sustained a second
injury to his back, this time while at work. As a result, he was
scheduled for five weeks of physical therapy to eliminate lower
back pain and increase his range of motion.
Groulx underwent a number of medical tests at Catholic
Medical Center (“CMC”) in October and November 1991. Magnetic
resonance imaging (“MRI”) revealed a scar in the left lateral
4 Because I find that the Commissioner’s decision must be reversed and remanded for the reasons that follow, I render no opinion on the merits of Groulx’s other claims on appeal. 5 Unless otherwise indicated, the following facts are derived from the Joint Statement of Material Facts (Doc. #12) submitted by the parties.
-4- recess at L4-5, with only a small component of residual disc
bulge identified. A myelogram revealed a midline and right-sided
diskal lesion at L4-5. A CT scan showed a central and right-
sided extradural defect, L4-5, which was small to moderate in
size. Dr. Garrett Gillespie stated that based on the M R I , Groulx
probably had a recurrent disc in addition to some probable
lateral spinal stenosis. In the discharge summary from CMC dated
November 2 0 , 1991, Dr. Gillespie indicated that Groulx remained
disabled from his June 1991 injury and would need remedial
surgery.
While Groulx was at CMC, he was evaluated by Dr. Robert
Brethauer for complaints of coughing and dyspnea.6 Examination
revealed diffuse expiratory wheezes and rhonchi.7 Dr. Brethauer
diagnosed probable asthmatic bronchitis, noted that Groulx smoked
one and one-half packs of cigarettes per day, and prescribed
bronchodilators.
Dr. Gillespie conducted several follow-up examinations of
Groulx in 1991 and 1993. In October 1993, Dr Gillespie expressed
6 Dyspnea: Difficult or labored breathing. Dorland’s Illustrated Medical Dictionary 518 (28th e d . ) . 7 Rhonchi: Continuous dry rattlings in the throat or bronchial tube due to a partial obstruction. Dorland’s Illustrated Medical Dictionary 1462 (28th e d . ) .
-5- his opinion that Groulx was totally disabled and scheduled Groulx
for decompressive surgery. Later that month, Groulx underwent
back surgery for the second time. The procedure consisted of
lumbar laminectomy L4-5, right, with excision of ruptured lumbar
disc; decompression right L5 nerve root and cauda equina 8 ;
foraminotomy9 L4-5, right; lumbar laminotomy L5-S1, right, with
exploration of disc space; decompression right S1 nerve root; and
foraminotomy L5-S1, right. Postoperative course and wound
healing were satisfactory and Groulx was free of leg pain at the
time of discharge. His discharge medications included Tylenol #3
and Flexeril.10
While he was hospitalized for surgery, Groulx was seen in
consultation by Dr. Stephen Rowe regarding his respiratory
status. D r . Rowe noted that Groulx smoked two packs of
cigarettes per day and had been unsuccessful in reducing his
8 Cauda equina: The collection of spinal roots that descend from the lower part of the spinal cord and occupy the vertabral canal below the cord. Dorland’s Illustrated Medical Dictionary 280 (28th e d . ) . 9 Foraminotomy: The operation of removing the roof of inverterbral foramina, done for the relief of nerve root compression. Dorland’s Illustrated Medical Dictionary 650-51 (28th e d . ) . 10 Flexeril: A muscle relaxant. Dorland’s Illustrated Medical Dictionary 4 1 4 , 639 (28th e d . ) .
-6- smoking prior to surgery. Dr. Rowe diagnosed asthmatic
bronchitis in a patient with chronic obstructive pulmonary
disease. He recommended nebulizer treatments and Kefsol, and
noted that the most important part of Groulx’s treatment would be
the cessation of cigarette smoking.
On October 2 7 , 1993, Groulx had a follow-up examination with
Dr. Gillespie, who observed the expected amount of post-operative
muscle spasm. D r . Gillespie recommended that Groulx start on a
progressive walking and exercise program. After another follow-
up examination in November, Dr. Gillespie noted that Groulx had
become more active. Dr Gillespie also noted that Groulx
continued to have residual muscle spasms and right leg pain, and
that Groulx’s spinal extension was limited. To address the
muscle spasms, see Tr. at 243, D r . Gillespie changed Groulx’s
medication to Robaxisal.11
In February 1994, D r . Gillespie noted that Groulx was up and
around without much leg pain. Groulx reported back pain with any
prolonged activity or postural maintenance. Examination revealed
right-sided muscle spasm, spinal extension, and lateral flexion
to no more than 30% of normal range; forward bending to somewhat
11 Robaxisal: A skeletal muscle relaxant. Dorland’s Illustrated Medical Dictionary 1025, 1469 (28th e d . ) .
-7- more than 45 degrees; and straight leg raising limited on both
sides to about half of normal range. D r . Gillespie recommended
that Groulx get into a training program for a sedentary indoor
occupation that required no repetitive bending, lifting,
climbing, or crawling, and that would accommodate the need to
change posture at will.
At Groulx’s next follow-up examination, in August 1994, Dr.
Gillespie noted that Groulx had not been placed in a training
program. The doctor indicated that Groulx could probably perform
“some light sedentary type work.” Tr. at 245. Dr. Gillespie
added that Groulx “has residual symptomology and obvious
limitations and will have throughout his life but does well
enough so that he can do some light work.” Id.
In 1996, Groulx was seen by Dr. Harvey Silverman in
connection with his respiratory condition. Dr. Silverman
diagnosed COPD and chronic bronchitis/emphysema, and stated that
Groulx could perform sedentary work.
In November 1996, Groulx underwent pulmonary function tests
at Elliot Hospital. Pre and post bronchodilator spirometry were
performed. Baseline FEV1 (forced expiratory volume) was 79% of
predicted, which is just below normal, and FVC (forced vital
capacity) was in the normal range at 87% of predicted. After
-8- administration of bronchodilator, FEV1 improved 28% and FVC
improved 2 1 % . Dr. William Mezzanotte concluded that Groulx had
mild obstructive lung disease with excellent response to
bronchodilator.
Dr. William Kilgus performed a consultative examination in
December 1996. Groulx reported chronic pain affecting his lower
back, with numbness and weakness in his legs. Dr. Kilgus opined
that Groulx was suffering from chronic lumbar strain,
lumbrosacral instability, and bilateral lumbar radiculopathies.
He stated that Groulx could not do work requiring physical
activity and recommended vocational rehabilitation. Dr. Kilgus
indicated that work involving alternate sitting and standing and
using the arms in a nonstrenuous fashion would be best suited to
Groulx’s condition.
In January 1997, Dr. Rowe examined Groulx, noting chronic
bronchitis. Dr. Rowe stated that there was no evidence of
disability related to Groulx’s pulmonary condition.
Dr. William Windler examined Groulx in February 1997 in
connection with Groulx’s application for Medicaid. D r . Windler
noted that Groulx had a decreased tolerance for exercise due to
his lung condition, that Groulx could only sit or stand for 20-60
minutes due to back pain, and that Groulx’s capacity for lifting
-9- was limited by his back condition. The doctor recommended
vocational rehabilitation.
Dr. Mitch Young evaluated Groulx in February 1997.
Examination revealed that Groulx’s lungs were negative, that a
range of motion of the lumbar spine produced some pain, that
straight leg raising was negative, and that there was some mild
weakness with dorsiflexion. D r . Young opined that Groulx could
not do heavy work. At a follow-up examination scheduled to check
Groulx’s blood pressure, physician’s assistant Heather Davis
noted hypertension. As a result, Groulx was counseled on his
diet and his use of alcohol and cigarettes. Groulx was also
given prescriptions for Enalapril12 and Captopril.13
In April 1997, Davis noted that Groulx had symptoms of a
respiratory tract infection and that his hypertension was
beginning to be controlled by medication. In May, Groulx
complained to Davis of difficulty breathing and Davis diagnosed
an exacerbation of COPD. Later that month and at a subsequent
12 Enalapril: An antihypertensive. Dorland’s Illustrated Medical Dictionary 547 (28th e d . ) . 13 Captopril: An angiotensin-converting enzyme inhibitor used in the treatment of hypertension and congestive heart failure. Dorland’s Illustrated Medical Dictionary 261 (28th ed.).
-10- examination in July, Groulx complained of rectal bleeding. As of
July 1997, Groulx continued to complain of difficulty breathing
and had failed to quit smoking.
In December 1997, one month after the administrative
hearing, Groulx underwent a second pulmonary function study
ordered by the ALJ. FEV1 was 72% of predicted and FEVC was 83%
of predicted. Bronchodilator brought FEV1 into the normal range
at 8 5 % . D r . Rowe’s overall impression was that Groulx had a
moderate airflow obstruction primarily in the small airways with
an excellent response to bronchodilator.
II. STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant’s application for benefits, and upon a timely request by
the claimant, I am authorized t o : (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, as the ALJ’s factual findings are
conclusive if they are supported by substantial evidence. See
Irlanda Ortiz v . Secretary of Health and Human Servs., 955 F.2d
765, 769 (1st Cir. 1991) (per curiam); 42 U.S.C. § 405(g). The
-11- ALJ is responsible for settling credibility issues, drawing
inferences from the record evidence, and resolving conflicting
evidence. See Irlanda Ortiz, 955 F.2d at 769. 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
Rodriguez v . Secretary of Health and Human Servs., 647 F.2d 218,
222 (1st Cir. 1981)).
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 experts.” Nguyen v . Chater, 172 F.3d 3 1 , 35
(1st Cir. 1999) (per curiam). I apply these standards in
reviewing Groulx’s case on appeal.
III. DISCUSSION
The key to this case lies in its chronology. While at
particular points in the administrative process the ALJ acted
carefully and in accordance with the Commissioner’s regulations,
an analysis of the record in sequence reveals that the ALJ
committed several related, if unintentional, errors when
considering Groulx’s respiratory impairment. Each of these
-12- errors independently supports the conclusion that the ALJ’s
decision was not supported by substantial evidence.
Prior to the November 2 6 , 1997 administrative hearing,
Groulx had been diagnosed by two physicians -- Drs. Rowe and
Silverman -- as suffering from chronic obstructive pulmonary
disease. See Tr. at 216-17, 230. In November 1996, one year
before the hearing, Groulx underwent his first pulmonary function
study, which revealed that he had mild obstructive lung disease
with excellent response to bronchodilator. See id. at 249. When
Groulx appeared at the hearing before the ALJ, he testified that
his breathing problem had worsened during the previous year. See
id. at 6 4 . As a result, the ALJ ordered another pulmonary
function study to update the medical evidence of Groulx’s
respiratory impairment. See id. at 6 6 , 72-73. This second
study, which was conducted in December 1997 by Dr. Rowe, showed
that Groulx had a moderate airflow obstruction primarily in the
small airways with excellent response to bronchodilator. See id.
at 277. Dr. Rowe noted that in comparison to the November 1996
study, the more recent results showed that Groulx’s FEV1 had
decreased by approximately 200 cubic centimeters. See id.
At the time of the hearing, of course, the results of the
second pulmonary function study were not yet part of the record.
-13- Therefore, the state agency physicians who completed and affirmed
the physical residual functional capacity (RFC) assessment prior
to the hearing, see id. at 147-53, did not have the results of
the second study when they made their assessment. This RFC
assessment concluded that Groulx should avoid concentrated
exposure to extreme cold, fumes, dust, and related environmental
irritants. See id. at 151. The hypothetical that the ALJ posed
to the vocational expert (VE) at the hearing generally tracked
the environmental limitations indicated in the RFC assessment.
Specifically, the ALJ instructed the VE to assume a hypothetical
worker who, among other restrictions, had to “avoid concentrated
exposure to respiratory irritants like fumes and chemicals and
dust.” Id. at 6 9 . In response to a hypothetical that included
these environmental limitations, the VE identified specific jobs
existing in the national economy that such a worker could
perform. See id. at 69-71.
In her written decision, issued approximately three months
after the hearing, the ALJ credited the results of the second
pulmonary function study, citing that study to support the
conclusion that Groulx “had moderate airflow obstruction.” Id.
at 1 7 . The ALJ further concluded that the claimant “would be
precluded from working around moderate environmental irritants.”
-14- Id. The decision does not explain how the ALJ arrived at this
assessment of Groulx’s environmental limitations; nor does it
acknowledge that this assessment differs from that contained in
the RFC evaluation, which in turn was the basis for the
hypothetical question posed to the VE at the hearing.
This recitation is necessary to illuminate two legal errors
committed by the ALJ, both of which stemmed from the occurrence
of an additional medical study of Groulx’s respiratory impairment
conducted after the hearing. First, the ALJ inferred, without
the benefit of expert medical opinion, that the moderate airflow
obstruction revealed by the second pulmonary function study
correlated with a need to avoid moderate environmental irritants.
While this inference may have a certain semantic logic to
recommend i t , it is nonetheless a medical judgment that the ALJ
was not competent to render.
The First Circuit has consistently held that an ALJ is “not
qualified to interpret raw medical data in functional terms.”
Nguyen, 172 F.3d at 3 5 ; see also Manso-Pizarro v . Secretary of
Health and Human Servs., 76 F.3d 1 5 , 17 (1st Cir. 1996) (per
curiam); Gordils v . Secretary of Health and Human Servs., 921
F.2d 327, 329 (1st Cir. 1990) (per curiam). Determining the
environmental restrictions that result from a moderate airflow
-15- obstruction requires “more than a layperson’s effort at a
commonsense functional capacity assessment.” Manso-Pizarro, 76
F.3d at 1 9 . In the present case, the ALJ should have sought
guidance from a medical expert when reassessing Groulx’s
functional capacity in light of new medical evidence showing that
Groulx suffered from a moderate -- rather than mild -- airflow
obstruction. See id. at 17-19. The ALJ’s failure to seek expert
advice, and the resultant lack of any support for the conclusion
that Groulx must avoid moderate exposure to environmental
irritants, constitutes sufficient basis for remand. See id. at
1 9 ; see also White v . Secretary of Health and Human Servs., 910
F.2d 6 4 , 65 (2d Cir. 1990) (noting that “the failure to specify
the basis for a conclusion as to residual functional capacity is
reason enough to vacate a decision of the Secretary”).
The ALJ also erred by relying on the VE’s testimony after it
became apparent that the hypothetical posed to the VE no longer
accurately reflected the extent of Groulx’s respiratory
impairment. An ALJ is entitled to rely on the testimony of a VE
“as long as there was substantial evidence in the record to
support the description of [the] claimant’s impairments given in
the ALJ’s hypothetical to the [VE].” Berrios Lopez v . Secretary
of Health and Human Servs., 951 F.2d 427, 429 (1st Cir. 1991)
-16- (per curiam); see also Arocho v . Secretary of Health and Human
Servs., 670 F.2d 374, 375 (1st Cir. 1982). In the present case,
the problem is that the medical evidence of Groulx’s respiratory
impairment was supplemented after the hearing by the results of
the second pulmonary function test, which the ALJ ordered at the
hearing and credited in her decision. Therefore, while the
hypothetical the ALJ posed to the VE accurately reflected the
medical evidence of Groulx’s respiratory impairment at the time
of the hearing, it did not (and could not) take into account the
results of the second pulmonary function study, which indicated
that Groulx’s pulmonary obstruction had progressed from “mild” to
“moderate.” Because the ALJ’s hypothetical relied on an RFC
assessment that did not incorporate credited medical evidence of
the extent of Groulx’s respiratory impairment, the VE’s testimony
does not support a finding that Groulx was not disabled. See
Rose v . Shalala, 34 F.3d 1 3 , 19 (1st Cir. 1994); Nguyen v .
Chater, 100 F.3d 1462, 1466 n.3 (9th Cir. 1996).
While it is possible that the results of the second
pulmonary function study would not have appreciably altered
either Groulx’s functional limitations or the VE’s testimony,
neither the ALJ nor I , as laypersons, are qualified to make that
determination. In this case, the ALJ acted commendably by
-17- ordering an additional medical test in response to Groulx’s
complaint at the hearing that his respiratory impairment had
worsened. However, once the ALJ credited the results of that
test, she was obligated to seek expert advice to determine
whether the new evidence of impairment would affect either the
RFC assessment or the VE’s analysis.14
IV. CONCLUSION
Accordingly, I reverse the Commissioner’s decision and
remand for further proceedings with instructions that, in
14 The present case is distinguishable from Rodriguez v . Secretary of Health and Human Servs., 915 F.2d 1557, N o . 90-1039, 1990 WL 152336 (1st Cir. Sept. 1 1 , 1990) (per curiam) (table, text available on Westlaw), in which the First Circuit rejected a claimant’s contention that the ALJ and/or the Appeals Council should have sought additional VE testimony based on medical evidence submitted after the claimant’s hearing. First, the claimant in Rodriguez was represented by counsel, who neither requested that the VE reconsider his opinion in light of the subsequent evidence nor suggested how that evidence may have affected the VE’s opinion. Id. at * 3 . In the present case, Groulx was not represented by counsel at either the hearing or Appeals Council stages of the process. Second, the Rodriguez Court found that the evidence submitted after the hearing was not significantly different from the evidence considered by the ALJ and VE at the hearing. See id. at * 3 - 4 . As noted above, the second pulmonary function study performed on Groulx seems to suggest some change in the impairment. The extent and significance of that change is not readily apparent to a layperson. Finally, the subsequent evidence in Rodriguez came from the claimant, see id. at * 2 - 3 , while the subsequent evidence in the present case resulted from testing ordered by the ALJ herself.
-18- reaching a new decision, the ALJ obtain the expert opinion
necessary to determine the functional and vocational limitations
related to Groulx’s respiratory impairment. Plaintiff’s motion
for an order reversing the decision of the Commissioner (Doc. #9)
is granted, and Defendant’s motion for an order affirming the
decision of the Commissioner (Doc. #11) is denied. Because I am
acting pursuant to sentence four of 42 U.S.C. § 405(g), the Clerk
is instructed to enter judgment forthwith in accordance with this
order. See Shalala v . Schaefer, 509 U.S. 292, 296, 299 (1993).
SO ORDERED.
Paul Barbadoro Chief Judge January 4 , 2000
cc: Raymond J. Kelly, Esq. David Broderick, Esq.
-19-