Hynes v . SSA CV-03-062-JD 01/22/04 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Charles P. Hynes
v. Civil N o . 03-62-JD Opinion N o . 2004 DNH 189 Jo Anne Barnhart, Commissioner, Social Security Administration
O R D E R
The plaintiff, Charles P. Hynes, brings this action pursuant
to 42 U.S.C. § 405(g), seeking judicial review of the decision by
the Commissioner of the Social Security Administration, denying
his application for social security benefits under Title II of
the Social Security Act. Hynes contends that the Administrative
Law Judge (“ALJ”) failed to properly assess his residual
functional capacity (“RFC”) and, as a result, the vocational
expert’s opinion does not constitute substantial evidence in
support of the decision to deny benefits. The Commissioner moves
to affirm the decision.
Background
Hynes applied for disability insurance benefits in November
of 2001, alleging disability since August of 1993, primarily due
to a back condition. After his application was denied, he
requested a hearing before an ALJ which was held on July 1 , 2002.
The ALJ issued her decision on August 7 , 2002, denying Hynes’s application based on her findings that Hynes was able to perform
work that existed in the relevant economies through his last
insured date of March 3 1 , 1996. The Appeals Council denied
Hynes’s request for review, making the ALJ’s decision the final
decision of the Commissioner.
In August of 1993, Hynes saw D r . James Benson for complaints
of low back pain following a work injury. X-rays showed no acute
injuries and only minimal degenerative changes. Although Hynes
reported less pain after physical therapy, he again complained of
pain at visits in September and October. A CAT-scan in October
of 1993 showed disc bulging at L4-5 and possibly slight nerve
encroachment. He tried oral steroids without relief and then
underwent epidural injections of steroids.
Hynes was examined on January 1 0 , 1994, by D r . Sherwin, an
orthopaedic surgeon, who diagnosed a low grade lumbar disc
prolapse. D r . Sherwin stated that he would not consider surgery
unless Hynes lost a significant amount of weight. Also in
January of 1994, Hynes reported to D r . Benson that he had re-
injured his back in a fall and later that he was feeling better.
Dr. Richard Hawkins, an orthopaedic surgeon, also saw Hynes
during January. He gave Hynes a guarded prognosis due to his
obesity and the positive CAT scan. D r . Hawkins found that Hynes
was then capable of doing work that did not involve repetitive
lifting of over thirty pounds and that also allowed him to sit,
2 stand, and walk at frequent intervals.
In April of 1994, Hynes discussed a weight loss plan with
Dr. Benson. In May of 1994, D r . Sherwin stated that Benson was
limited to lifting ten pounds and needed the ability to rest,
change position, and walk around at will. He also stated that
Hynes was not able to bend, reach, push, or pull.
In February of 1995, Hynes was tested by D r . A . M .
Drukteinis, a board certified psychiatrist and forensic
specialist. The testing indicated that Hynes’s actual perception
of pain was quite low but that he perceived pain as having a
moderate to marked impact on his ability to function. Other
testing indicated a marked degree of depression, mild to moderate
anxiety, and a mild to moderate tendency to somatization. Dr.
Drukteinis concluded that improvement in Hynes’s coping skills
and anti-depressants might help him. In March of 1995, Hynes
reported to D r . Drukteinis that Prozac was helping him
tremendously. He was then walking up to four miles a day; he was
in better spirits, and he hoped to get a light-duty job. In
April, Hynes reported much more physical activity, including
installing windows in a friend’s house. D r . Drukteinis felt that
Hynes should continue Prozac indefinitely but that he did not
need further psychological treatment. Hynes had medical care for
only minor ailments during the remainder of 1995.
In January of 1996, Hynes saw D r . Benson for a routine
3 physical examination and reported that he had no acute
complaints. D r . Benson noted elevated liver function test
results, most likely due to alcohol consumption, but no other
abnormalities other than obesity. Hynes had his Prozac
prescriptions refilled during 1996. In September of 1996, Hynes
reported renewed back pain after he fell into a ditch. X-rays
were negative, and the doctor diagnosed back strain.
In December of 2001, D r . Burton Nault, a state agency
consultative physician, reviewed Hynes’s records and concluded
that he was able to perform work at a medium exertional level
through the end of March of 1996. D r . Michael Schneider, a state
agency psychologist, reviewed Hynes’s records and concluded that
he had not established that he had any severe mental impairment
that persisted for at least twelve months. D r . Nault’s
assessment was reviewed in January 2002 and affirmed. In June of
2002, D r . Robert Johnson, who had treated Hynes since 1999,
reviewed his records and stated that he did not believe that
Hynes could have performed any type of full-time work from 1993
though 1996.
At the hearing before the ALJ, Hynes was present and was
represented by counsel. Hynes testified that before March of
1996, he spent most of the time sitting around the house, that he
tried to help his wife with housework but could only stand for
five minutes while doing the dishes, and that he had to stop
4 doing yard work because of problems with his knees and back. The
ALJ posed a hypothetical to the vocational expert describing a
person who could do light work activities and then added certain
postural limitations and limited contact with the public.
Hynes’s attorney also added limitations as to pace in the job.
In response, the vocational expert testified that jobs existed,
in the relevant communities, that a person described by the
hypotheticals could do and that even with the hypothetical jobs
as a parking lot attendant existed in the relevant economies.
In her decision, the ALJ found that before his insured
status expired on March 3 1 , 1996, Hynes had an RFC for light work
restricted only by an inability to climb. She found that he
could not do any of his past work, which consisted of work as a
concrete laborer and a form carpenter. She concluded, however,
based on the vocational expert’s testimony, that because jobs
existed that he could d o , such as a cashier, an outside
deliverer, a bottling line attendant, a parking lot attendant,
and a checker, he was not disabled.
Discussion
The court must uphold a final decision of the Commissioner
denying benefits unless the decision is based on legal or factual
error. Manso-Pizarro v . Sec’y of Health & Human Servs., 76 F.3d
1 5 , 16 (1st Cir. 1996) (citing Sullivan v . Hudson, 490 U.S. 8 7 7 ,
5 885 (1989)). The Commissioner’s factual findings are conclusive
if based on substantial evidence in the record. 42 U.S.C. §
405(g). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
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Hynes v . SSA CV-03-062-JD 01/22/04 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Charles P. Hynes
v. Civil N o . 03-62-JD Opinion N o . 2004 DNH 189 Jo Anne Barnhart, Commissioner, Social Security Administration
O R D E R
The plaintiff, Charles P. Hynes, brings this action pursuant
to 42 U.S.C. § 405(g), seeking judicial review of the decision by
the Commissioner of the Social Security Administration, denying
his application for social security benefits under Title II of
the Social Security Act. Hynes contends that the Administrative
Law Judge (“ALJ”) failed to properly assess his residual
functional capacity (“RFC”) and, as a result, the vocational
expert’s opinion does not constitute substantial evidence in
support of the decision to deny benefits. The Commissioner moves
to affirm the decision.
Background
Hynes applied for disability insurance benefits in November
of 2001, alleging disability since August of 1993, primarily due
to a back condition. After his application was denied, he
requested a hearing before an ALJ which was held on July 1 , 2002.
The ALJ issued her decision on August 7 , 2002, denying Hynes’s application based on her findings that Hynes was able to perform
work that existed in the relevant economies through his last
insured date of March 3 1 , 1996. The Appeals Council denied
Hynes’s request for review, making the ALJ’s decision the final
decision of the Commissioner.
In August of 1993, Hynes saw D r . James Benson for complaints
of low back pain following a work injury. X-rays showed no acute
injuries and only minimal degenerative changes. Although Hynes
reported less pain after physical therapy, he again complained of
pain at visits in September and October. A CAT-scan in October
of 1993 showed disc bulging at L4-5 and possibly slight nerve
encroachment. He tried oral steroids without relief and then
underwent epidural injections of steroids.
Hynes was examined on January 1 0 , 1994, by D r . Sherwin, an
orthopaedic surgeon, who diagnosed a low grade lumbar disc
prolapse. D r . Sherwin stated that he would not consider surgery
unless Hynes lost a significant amount of weight. Also in
January of 1994, Hynes reported to D r . Benson that he had re-
injured his back in a fall and later that he was feeling better.
Dr. Richard Hawkins, an orthopaedic surgeon, also saw Hynes
during January. He gave Hynes a guarded prognosis due to his
obesity and the positive CAT scan. D r . Hawkins found that Hynes
was then capable of doing work that did not involve repetitive
lifting of over thirty pounds and that also allowed him to sit,
2 stand, and walk at frequent intervals.
In April of 1994, Hynes discussed a weight loss plan with
Dr. Benson. In May of 1994, D r . Sherwin stated that Benson was
limited to lifting ten pounds and needed the ability to rest,
change position, and walk around at will. He also stated that
Hynes was not able to bend, reach, push, or pull.
In February of 1995, Hynes was tested by D r . A . M .
Drukteinis, a board certified psychiatrist and forensic
specialist. The testing indicated that Hynes’s actual perception
of pain was quite low but that he perceived pain as having a
moderate to marked impact on his ability to function. Other
testing indicated a marked degree of depression, mild to moderate
anxiety, and a mild to moderate tendency to somatization. Dr.
Drukteinis concluded that improvement in Hynes’s coping skills
and anti-depressants might help him. In March of 1995, Hynes
reported to D r . Drukteinis that Prozac was helping him
tremendously. He was then walking up to four miles a day; he was
in better spirits, and he hoped to get a light-duty job. In
April, Hynes reported much more physical activity, including
installing windows in a friend’s house. D r . Drukteinis felt that
Hynes should continue Prozac indefinitely but that he did not
need further psychological treatment. Hynes had medical care for
only minor ailments during the remainder of 1995.
In January of 1996, Hynes saw D r . Benson for a routine
3 physical examination and reported that he had no acute
complaints. D r . Benson noted elevated liver function test
results, most likely due to alcohol consumption, but no other
abnormalities other than obesity. Hynes had his Prozac
prescriptions refilled during 1996. In September of 1996, Hynes
reported renewed back pain after he fell into a ditch. X-rays
were negative, and the doctor diagnosed back strain.
In December of 2001, D r . Burton Nault, a state agency
consultative physician, reviewed Hynes’s records and concluded
that he was able to perform work at a medium exertional level
through the end of March of 1996. D r . Michael Schneider, a state
agency psychologist, reviewed Hynes’s records and concluded that
he had not established that he had any severe mental impairment
that persisted for at least twelve months. D r . Nault’s
assessment was reviewed in January 2002 and affirmed. In June of
2002, D r . Robert Johnson, who had treated Hynes since 1999,
reviewed his records and stated that he did not believe that
Hynes could have performed any type of full-time work from 1993
though 1996.
At the hearing before the ALJ, Hynes was present and was
represented by counsel. Hynes testified that before March of
1996, he spent most of the time sitting around the house, that he
tried to help his wife with housework but could only stand for
five minutes while doing the dishes, and that he had to stop
4 doing yard work because of problems with his knees and back. The
ALJ posed a hypothetical to the vocational expert describing a
person who could do light work activities and then added certain
postural limitations and limited contact with the public.
Hynes’s attorney also added limitations as to pace in the job.
In response, the vocational expert testified that jobs existed,
in the relevant communities, that a person described by the
hypotheticals could do and that even with the hypothetical jobs
as a parking lot attendant existed in the relevant economies.
In her decision, the ALJ found that before his insured
status expired on March 3 1 , 1996, Hynes had an RFC for light work
restricted only by an inability to climb. She found that he
could not do any of his past work, which consisted of work as a
concrete laborer and a form carpenter. She concluded, however,
based on the vocational expert’s testimony, that because jobs
existed that he could d o , such as a cashier, an outside
deliverer, a bottling line attendant, a parking lot attendant,
and a checker, he was not disabled.
Discussion
The court must uphold a final decision of the Commissioner
denying benefits unless the decision is based on legal or factual
error. Manso-Pizarro v . Sec’y of Health & Human Servs., 76 F.3d
1 5 , 16 (1st Cir. 1996) (citing Sullivan v . Hudson, 490 U.S. 8 7 7 ,
5 885 (1989)). The Commissioner’s factual findings are conclusive
if based on substantial evidence in the record. 42 U.S.C. §
405(g). 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)
(quotation omitted). In making the disability determination, “[i]t is the responsibility of the [Commissioner] to determine
issues of credibility and to draw inferences from the record
evidence.” Irlanda Ortiz v . Sec’y of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991).
Hynes’s application was denied at step five of the
sequential evaluation process set forth in 20 C.F.R. § 404.1520.1
At step five, the Commissioner has the burden to show that
despite the applicant’s severe impairment, he retained the
residual functional capacity to do work other than his prior work
1 The ALJ is required to make the following five inquiries when determining if a claimant is disabled:
(1) whether the claimant is 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.
6 and that work the claimant can do exists in significant numbers
in the relevant economies. See Seavey v . Barnhart, 276 F.3d 1 , 5
(1st Cir. 2001); Heggarty v . Sullivan, 947 F.2d 9 9 0 , 995 (1st
Cir. 1991). The opinion of a vocational expert constitutes
substantial evidence to support the Commissioner’s decision at
step five as long as the hypothetical posed to the vocational
expert accurately reflected the claimant’s residual functional
capacity and limitations. Rose v . Sec’y of Health & Human
Servs., 35 F.3d 1 3 , 19 (1st Cir. 1994); Arocho v . Sec’y of Health
& Human Servs., 670 F.2d 374 (1st Cir. 1982).
“Ordinarily, RFC is an assessment of an individual’s ability
to do sustained work-related physical and mental activities in a
work setting on a regular and continuing basis. A ‘regular and
continuing basis’ means 8 hours a day, for 5 days a week, or an
equivalent work schedule.” SSR 96-8P, 1996 WL 374184, at *1
(July 2 , 1996). Determining a Social Security applicant’s RFC is
an administrative decision that is the responsibility of the
Commissioner. 20 C.F.R. § 404.1527(e)(2). In making an RFC
determination on behalf of the Commissioner, the ALJ must
consider all relevant evidence in the record, including the
opinions and statements by all medical sources. 20 C.F.R. §§
404.1545(a) & 404.1564; SSR 96-5P, 1996 WL 374183; Fargnoli v .
Massanari, 247 F.3d 3 4 , 41 (3d Cir. 2001); Newton v . Apfel, 209
F.3d 4 4 8 , 456 (5th Cir. 2000). The ALJ’s RFC determination must
7 provide a clear explanation for its evidentiary basis and reasons
for rejecting medical source opinions. See SSR 96-5P; Fargnoli,
247 F.3d at 4 1 ; Clifford v . Apfel, 227 F.3d 863, 874 (7th Cir.
2000); Newton, 209 F.3d at 456; Goatcher v . HHS, 52 F.3d 2 8 8 , 290
(10th Cir. 1995).
In this case, the ALJ found that Hynes was capable of light
work with only a limitation as to climbing. She did not explain
the source of that RFC assessment. The ALJ explained that she
did not give weight to D r . Johnson’s opinion, that Hynes was
unable to lift or carry and that it would have been impossible
for him to hold a full-time job, because it was contradicted by
Dr. Benson’s contemporaneous treatment notes. In her opinion,
the ALJ also noted that both D r . Sherwin and D r . Hawkins, in
1994, limited Hynes to work that would allow him to frequently
change position between sitting, standing, and walking or to be
able to change position at will. She did not include those
limitations in her RFC, however, and she did not explain why she
excluded them. As such, the ALJ failed to clearly explain the
evidentiary basis of her RFC assessment and her reasons for
rejecting Hynes’s treating physicians’ opinions.
The ALJ’s hypotheticals to the vocational expert were based
on her RFC assessment that did not include all of the limitations
found by Hynes’s treating physicians, which the ALJ did not
properly exclude. As such, the hypotheticals were incomplete.
8 The vocational expert’s opinion, given in response to incomplete
hypotheticals, does not constitute substantial evidence to
support the Commissioner’s decision that work exists that Hynes
could d o . Therefore, the decision to deny benefits is not
supported by substantial evidence.
Conclusion
For the foregoing reasons, the plaintiff’s motion to reverse
(document n o . 8 ) is granted. The defendant’s motion to affirm
(document n o . 10) is denied. The decision of the Commissioner is
reversed, and the case is remanded for further proceedings
consistent with this order.
As this is a sentence four remand, the clerk of court shall
enter judgment accordingly and close the case.
SO ORDERED.
Joseph A . DiClerico, J r . United States District Judge January 2 2 , 2004
cc: Raymond J. Kelly, Esquire David L . Broderick, Esquire