Hannaford v. SSA CV-00-224-M 01/15/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Andre B. Hannaford, Claimant
v. Civil No. 00-224-M Opinion No. 2001 DNH 030 Kenneth S. Apfel, Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Andre B.
Hannaford, moves to reverse the Commissioner's decision denying
his applications for Social Security Disability Insurance
Benefits and Supplemental Security Income Payments under Titles
II and XVI, respectively, of the Social Security Act, 42 U.S.C.
§§ 423, 1382 (the Act). Defendant objects and moves for an order
affirming the Commissioner.
Factual Background
I. Procedural History
In the Fall of 1996, claimant filed applications for
disability insurance benefits and for supplemental security income payments under Titles II1 and XVI of the Act, alleging
that he had been unable to work since May 23, 1993, due to a back
injury and a heart problem. The Social Security Administration
denied his application initially and on reconsideration. On
January 7, 1997, claimant and his attorney appeared before an
Administrative Law Judge (ALJ) who considered the claims de novo.
The ALJ issued his order on March 25, 1998, concluding that,
although subject to some restrictions, claimant was capable of
light work and making an adjustment to work which exists in
significant numbers in the national economy. Accordingly, the
ALJ found that claimant was not disabled, within the meaning of
the Act, at any time through his decision.
Claimant then sought review of the ALJ's decision by the
Appeals Council. On March 15, 2000, the Appeals Council denied
claimant's reguest thereby making the ALJ's decision final,
subject to judicial review. On May 8, 2000, claimant filed a
timely action in this court asserting that the ALJ's decision was
not supported by substantial evidence and seeking a judicial
1Claimant last met the disability insurance reguirement on December 31, 1996.
2 determination that he is entitled to benefits. Claimant then
filed a "Motion for Order Reversing Decision of the Secretary"
(document no. 7), referencing his earlier filed "Memorandum of
Law in Support of Plaintiff's Reguest for Qualification of
Benefits under Disability Insurance and Supplemental Security
Income" (document no. 6). The Commissioner objected and filed a
"Motion for Order Affirming the Decision of the Commissioner"
(document no. 8). Those motions are pending.
II. Stipulated Fact
Pursuant to this court's Local Rule 9.1(d), the parties have
filed a detailed statement of stipulated facts which, because it
is part of the record (document no. 9), need not be recounted in
this opinion.
Standard of Review
III. Properly Supported Findings by the ALJ are Entitled to Deference
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
3 Secretary [now, the Commissioner], with or without remanding the
cause for a rehearing." Factual findings of the Commissioner are
conclusive if supported by substantial evidence. See 42 U.S.C.
§§ 405(g), 1382(c)(3); Irlanda Ortiz v. Secretary of Health and
Human Services, 955 F.2d 765, 769 (1st Cir. 1991).2 Moreover,
provided the ALJ's findings are supported by substantial
evidence, the court must sustain those findings even when there
may also be substantial evidence supporting the claimant's
position. See Gwathev v. Chater, 104 F.3d 1043, 1045 (8th Cir.
1997) (The court "must consider both evidence that supports and
evidence that detracts from the [Commissioner's] decision, but
[the court] may not reverse merely because substantial evidence
exists for the opposite decision."). See also Andrews v.
Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (The court "must
uphold the ALJ's decision where the evidence is susceptible to
2 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966).
4 more than one rational interpretation."); Tsarelka v. Secretary
of Health and Human Services, 842 F.2d 529, 535 (1st Cir. 1988)
("[W]e must uphold the [Commissioner's] conclusion, even if the
record arguably could justify a different conclusion, so long as
it is supported by substantial evidence.").
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v. Secretary
of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)
(citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It
is "the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner] not the courts." Irlanda Ortiz, 955 F.2d at 769.
Accordingly, the court must give deference to the ALJ's
credibility determinations, particularly where those
determinations are supported by specific findings. See
Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192,
195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health and
Human Services, 803 F.2d 24, 26 (1st Cir. 1986)).
5 IV. The Parties' Respective Burdens
A person seeking Social Security disability benefits is
disabled under the Act if he or she is unable "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 has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C. §
416(1)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act places
a heavy initial burden on the claimant to establish the existence
of a disabling impairment. See Bowen v. Yuckert, 482 U.S. 137,
146-47 (1987); Santiago v. Secretary of Health and Human
Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that burden,
the claimant must prove that his impairment prevents him from
performing his former type of work. See Gray v. Heckler, 760
F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v. Secretary of
Health and Human Services, 690 F.2d 5, 7 (1st Cir. 1982)).
Nevertheless, the claimant is not reguired to establish a doubt-
free claim. The initial burden is satisfied by the usual civil
standard: a "preponderance of the evidence." See Paone v.
Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982).
6 In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant's subjective claims of pain and
disability as supported by the testimony of the claimant or other
witnesses; and (3) the claimant's educational background, age,
and work experience. See, e.g., Avery v. Secretary of Health and
Human Services, 797 F.2d 19, 23 (1st Cir. 1986); Goodermote, 690
F.2d at 6. Provided the claimant has shown an inability to
perform his previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that he
can perform. See Vazquez v. Secretary of Health and Human
Services, 683 F.2d 1, 2 (1st Cir. 1982). If the Commissioner
shows the existence of other jobs which the claimant can perform,
then the overall burden to demonstrate disability remains with
the claimant. See Hernandez v. Weinberger, 493 F.2d 1120, 1123
(1st Cir. 1974); Benko v. Schweiker, 551 F. Supp. 698, 701
(D.N.H. 1982) .
When determining whether a claimant is disabled, the ALJ is
reguired to make the following five inguiries:
(1) whether the claimant is engaged in substantial gainful activity;
7 (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.
20 C.F.R. § 404.1520. See also 20 C.F.R. § 416.902. Ultimately,
a claimant is disabled only if his:
physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).
With those principles in mind, the court reviews claimant's
motion to reverse and the Commissioner's motion to affirm the
decision.
8 Discussion
I. Background - The ALJ's Findings
In concluding that Mr. Hannaford was not disabled within the
meaning of the Act, the ALJ employed the mandatory five-step
seguential evaluation process described in 20 C.F.R. §§ 404.1520
and 416.920. Accordingly, he first determined that claimant had
not been engaged in substantial gainful employment since May 23,
1993. Transcript at 18. Next, he concluded that claimant
suffers from severe impairments: "The evidence supports a finding
that Mr. Hannaford has atrial fibrillation and degenerative disc
disease of the lumbar spine, impairments which cause significant
vocationally relevant limitations." Id. at 19. At step three of
the seguential analysis, the ALJ concluded that claimant's
impairments did not meet or egual a listed impairment. Id.
The ALJ next determined that claimant's residual functional
capacity (RFC) allows him to perform less than a full range of
light work. Accordingly, he concluded that claimant's
impairments prevent him from performing his past relevant work as
an auto body mechanic. Transcript at 28. Finally, while noting
that strict application of the Medical-Vocational Guidelines of Appendix 2 of the regulations (also known as the "Grid") was not
possible due to "non-exertional limitations which narrow the
range of work he is capable of performing," the ALJ nonetheless
concluded that there are jobs, existing in significant numbers in
the national economy, which the claimant is able to perform. Id.
at 29. Conseguently, he concluded that claimant is not disabled
within the meaning of the Act.
II. Claimant's Allegations of Error
In this appeal, claimant challenges many aspects of the
ALJ's decision. He asserts that the ALJ did not adeguately
address his allegations of pain; erred in evaluating medical
opinions, particularly the opinion of Dr. Nagel, one of
claimant's treating physician; failed to consider the combined
effects of multiple impairments; and improperly concluded that
there are jobs in the national economy that claimant can perform.
A. Claimant's Allegations of Pain
It is the province of the ALJ to determine a claimant's
credibility. Accordingly, if properly supported, the ALJ's
10 credibility determination is entitled to substantial deference
from the court. See, e.g., Irlanda Ortiz, 955 F.2d 765, 769 (1st
Cir. 1991) ("It is the responsibility of the [Commissioner] to
determine issues of credibility and to draw inferences from the
record evidence. Indeed, the resolution of conflicts in the
evidence is for the [Commissioner], not the courts." (internal
citations omitted)).
Once it is determined, as it was here, that a claimant has
an impairment (or impairments) that are capable of causing pain,
the ALJ must "evaluate the intensity, persistence, and limiting
effects of the [pain] to determine the extent to which the [pain]
limit[s] the individual's ability to do basic work activities."
Social Security Ruling (SSR) 96-7p (July 2, 1996) . If the
alleged intensity, persistence, and limiting effect of the pain
are not supported by the objective medical evidence, the ALJ must
look beyond the objective medical evidence and consider the
following factors:
(1) the claimant's daily activities;
(2) the location, duration, freguency, and intensity of the claimant's pain;
(3) factors that precipitate and aggravate the pain;
11 (4) type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate the pain;
(5) treatment, other than medication, the claimant receives or has received for relief of pain;
(6) any measures other than treatment the claimant uses or has used to relieve pain; and
(7) any other factors concerning the claimant's functional limitations and restrictions due to pain.
20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); SSR 96-7p; Avery v.
Secretary of Health and Human Services, 797 F.2d 19, 28 (1st Cir.
1986). Additionally, "the lack of consistency between an
individual's statements and other statements that he or she made
at other times does not necessarily mean that the individual's
statements are not credible." SSR 96-7p. The ALJ should review
the record for any explanations regarding variations in a
claimant's statements about pain. Id.
Here, the ALJ found "claimant's statements concerning his
impairments and their impact on his ability to work are not
entirely credible." Transcript at 26. Although he noted the
reguirement to address all the above factors, it is not clear
from the record that he went beyond consideration of the
12 objective medical evidence and pointing out inconsistencies in
claimant's statements about his activities. And, on at least one
occasion, the ALJ appears to have misread the record when he
identified a treatment note as "indicat[ing] the claimant's
current work in auto body" when the note actually indicates that
claimant had been out of work "since Sept. due to heart."
Compare Transcript at 26 (citing Exhibit 24F-20) with Transcript
at 367 (Exhibit 24F-20) (handwritten notations: "works auto body
(00W)" and "00W since Sept. due to heart") . The medical note
actually seems consistent with claimant's testimony that,
although he did try to start his own auto body service so that he
could pace himself, he had to give it up because "it just took
too long to get anything done and it caused problems . . . as far
as [his] health," see Transcript at 413 - an explanation that may
have been overlooked.
The ALJ also identified two occasions on which claimant
drove a car, and seems to have found it particularly significant
that claimant was "obviously able to drive". See Transcript at
26. While the ALJ found this fact inconsistent with claimant's
testimony that he "spends most of his day lying down," id., the
13 ALJ made no finding as to how often claimant drives, for how long
he can drive at a time, or what physical conseguences might
follow his driving activity. See Nquven v. Chater, 172 F.3d 31,
36 (1st Cir. 1999) (per curiam). On this record, it is difficult
to find the assessment of claimant's credibility to be adeguately
supported. It is not sufficiently clear that the reguisite
factors were adeguately considered, and the referenced objective
indicia of the absence of a disabling pain are not, standing
alone, dispositive.
B. Evaluation of Medical Opinions in Determining RFC
Like other credibility issues, the ALJ has significant
discretion with respect to the weight given medical opinions.
However, under the regulations, a treating physician's medical
opinion will generally be given controlling weight unless the ALJ
finds that the opinion is not well-supported by medically
acceptable clinical and laboratory diagnostic technigues, and
concludes that it is not supported by substantial evidence in the
record, in which case the opinion may be afforded less or no
weight. 20 C.F.R. §§ 404.1527(d), 416.927(d). When a treating
14 physician's opinion is not given controlling weight, the ALJ must
determine what weight, if any, to afford it after considering the
(1) Length of the treatment relationship and the freguency of evaluation;
(2) Nature and extent of the treatment relationship;
(3) Relevant evidence provided to support the opinion;
(4) Consistency;
(5) Specialization; and
(6) Any other factors claimant or others bring to the ALJ's attention, or of which the ALJ is aware, which tend to support or contradict the opinion.
20 C.F.R. §§ 404.1527(d) (2) (i)- (d) (6), 416.927 (d) (2) (i)- (d) (6) .
See also Guvton v. Apfel, 20 F.Supp.2d 156, 167 (D. Mass. 1998).
Here, the ALJ found Dr. Nagel's evaluation of "claimant's
ability to perform work related activities sitting, standing and
walking . . . not persuasive and binding." Transcript at 27.
However, the record does not adeguately support that finding.
The ALJ describes the objective medical evidence as
supporting a diagnosis of degenerative disc disease, but
revealing that claimant exhibits normal heel-to-toe walking.
15 strength and motor function, as well as sitting, standing, and
walking. See Transcript at 27. He also notes that claimant had
a normal neurological exam and negative straight leg rising. See
id.
The "Medical Assessment of Ability to do Work-Related
Activities (Physical)" form completed by Dr. Nagel on November
26, 1997, reveals his opinion that claimant's ability to lift is
limited to five pounds freguently, and ten pounds occasionally;
and claimant's ability to sit and stand is limited to two to
three hours, and an hour and a half hour without interruption,
respectively.3 Transcript at 275-76. The ALJ summarizes the
opinion as recommending vocational rehabilitation and finding
claimant limited in his ability to lift, carry, sit, stand, and
walk. See id. at 27. In assessing this opinion, the ALJ
"note[d] that the opinion of a treating physician need not be
assigned weight if it is not supported by objective medical
evidence or clinical findings." Id. He then went on to state
3Dr. Nagel's assessment also includes his opinion related to other limitations that the ALJ seems to have at least partly accepted. See Transcript at 277-79; see also Transcript at 30 (Findings) .
16 There are no objective medical findings that support limitations on the claimant's ability to sit, stand and walk. In fact, information contained in medical reports documenting work activity, and his ability to drive have all supported his ability to sit, stand and walk. Therefore I find that Dr. Nagel's opinion with regard to the claimant's ability to perform work related activities sitting, standing and walking is not persuasive and binding. The objective medical evidence has supported that the claimant has an ability to perform light work activities.
Transcript at 27.4
Although the lack of objective medical evidence may result
in a decision not to assign controlling weight to a treating
physician's medical opinion, a decision to assign no weight to
the opinion must follow consideration of the additional
referenced factors. See 20 C.F.R. §§ 404.1527(d)(2)(i)-(d)(6),
416.927 (d)(2)(i)-(d)(6). See also Guvton v. Apfel, 20 F.
Supp.2d at 167. The ALJ's decision in this case does not reflect
consideration of those additional factors. For example, it does
not discuss the fact that Dr. Nagel, a physician specializing in
orthopaedics, regularly treated claimant for his back problems
since 1994 and noted increases in pain during that time. Nor
41he findings related to claimant's apparent ability to work and drive were dealt with above and are similarly lacking support in this context.
17 does it address the fact that he consistently found claimant to
have trouble sitting and standing for prolonged periods of time.
See Transcript at 203, 206, 211, 212, 219, 275-76. It may be
that the ALJ did consider all relevant factors before assigning
no weight to Dr. Nagel's opinion, but the record is not helpful
in determining whether he did or did not. While the objective
medical evidence of record, in isolation, might undermine Dr.
Nagel's opinion, and application of the relevant factors may not
alter the weight the ALJ assigns to that opinion, this record
does not adeguately support the decision to completely disregard
Dr. Nagel's assessment of claimant's ability to sit, stand, and
walk.
C. Multiple Impairments
When assessing a claimant's RFC, the ALJ must evaluate the
severity of individual impairments. However, if multiple
impairments are adeguately identified, the combined effect must
also be assessed. 20 C.F.R. §§ 404.1523, 416.923. Here, the ALJ
clearly found that claimant suffers from "atrial fibrillation and
degenerative disc disease of the lumbar spine, impairments which
18 are severe. . . Transcript at 30. He also individually
assessed the severity and impact of each impairment. However,
there is no indication in the record that he considered the
combined effects of claimant's impairments.5 Accordingly, the
ALJ's assessment of the severity of claimant's multiple
impairments is not supported by substantial evidence.
D. Determination that Jobs Claimant Can Perform Exist in the National Economy
Finally, claimant argues that there are no jobs in the
national economy that he can perform, and that the ALJ failed to
consider the severity of his pain at step five of the seguential
analysis. Actually, claimant seems to be arguing that the ALJ
inappropriately relied on the Grid and did not account for
claimant's non-exertional limitations.
At step five, the burden is on the Commissioner to show that
jobs that claimant can perform within his limitations exist in
5For example. Dr. Nagel noted that an epidural helped claimant with radiating pain but that due to claimant's heart treatment, he (Dr. Nagel) was "reluctant" to repeat the epidural. Transcript at 389. Similarly, Dr. Nagel observed that claimant's endurance is hindered by his heart problems. Id. at 27 9.
19 the national economy. See Vazquez v. Secretary of Health and
Human Services, 683 F.2d 1, 2 (1st Cir. 1982). If claimant were
only limited in strength requirements, the ALJ could rely
exclusively on the Grid. See Heggartv v. Sullivan, 947 F.2d 990,
995 (1st Cir. 1991). However, when other limitations (known as
"non-exertional limitations") exist, such as an inability to bend
repeatedly or to work in extreme temperatures, the ALJ must rely
on more than just the Grid, unless the ALJ finds that the
additional limitations only marginally erode the relevant
occupational base. See id. at 996 (citing Ortiz v. Secretary of
Health and Human Services, 890 F.2d 520, 524 (1st Cir. 1989)).
The most common source to turn to is a vocational expert. Id.
Here, the ALJ found that "claimant's capacity for the full
range of light work is diminished by his inability to bend
repeatedly or work in extreme temperature." Transcript at 30.
He also acknowledged that "[s]trict application of [the Grid] is
not possible" due to these non-exertional limitations. Id. at
29. However, without indicating any other source or identifying
specific jobs, without consulting a vocational expert, and
without finding that the non-exertional limitations only
20 marginally reduce claimant's occupational base, the ALJ concluded
that claimant "retains the capacity to make an adjustment to work
which exists in significant numbers in the national economy."
Id. Based on that conclusion, the ALJ denied claimant's reguest
for benefits. Because the ALJ did not disclose the basis for his
conclusion, it cannot be sustained. See, e.g., Ortiz, 890 F.2d
at 525 n.4 ("[W]henever an ALJ fails to take vocational
testimony, he must be deemed in reality to have relied
exclusively on the grid to show the existence of jobs claimant
could perform." (internal guotation marks and citations
omitted)).
Conclusion
For the foregoing reasons, the court finds that the ALJ's
decision denying claimant benefits is not supported by
substantial evidence in the record. Accordingly, claimant's
motion to reverse the decision of the Commissioner (document no.
7) is granted. The Commissioner's motion to affirm the decision
(document no. 8) is denied. Pursuant to sentence four of 42
21 U.S.C. § 405(g), this matter is remanded to the ALJ for further
proceedings.
SO ORDERED,
Steven J. McAuliffe United States District Judge
February 15, 2001
cc: James W. Craig, Esg. T. David Plourde, Esg.