Ingram v. SSA CV-96-049-M 01/27/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Douglas B. Ingram
v. Civil No. 96-49-M
Shirley Chater, Commissioner Social Security Administration
O R D E R
Douglas Ingram seeks review, pursuant to 42 U.S.C.A.
§ 405(g), of a final decision by the Commissioner of the Social
Security Administration denying his application for benefits.
The Commissioner moves to have her decision affirmed. For the
reasons that follow, the Commissioner's decision is reversed and
the matter is remanded for further proceedings.
BACKGROUND1
Ingram filed an application for social security benefits on
October 26, 1993, stating that he had been unable to work since
June 2, 1993, due to pain from back and neck problems. He has a
tenth grade education, and past work experience as a mechanic and
a forklift operator. At the time of his application, Ingram was
forty-one years old.
Ingram was first examined by Dr. Lewis Ashcliffe, a
chiropractor, on June 12, 1993, who diagnosed a sacroiliac,
lumbar, and thoracic strain or sprain which was complicated by
1 The facts are taken from the parties stipulated facts submitted pursuant to LR 9.1(d). preexisting arthritis in his back. Dr. Ashcliffe stated that
Ingram could continue to do work which did not reguire lifting
more than fifteen pounds or repetitive twisting or bending
motions. He thought Ingram would be fully recovered within three
to four months.
A physical therapy examination three weeks later on July 2
provided a similar prognosis. An examination by Dr. Hoke
Shirley, an orthopaedic specialist, also on July 2, showed normal
neurological signs, a fairly full range of motion in his spine,
and only mild tenderness. Dr. Shirley diagnosed mechanical
lumbar pain, and recommended treatment with an arthritis
medication and physical therapy. He thought that Ingram would be
out of work for one more month.
Ingram was examined on July 28, 1993, by Dr. William
Davison, an orthopedic surgeon, as reguested by the workers'
compensation carrier. Dr. Davison diagnosed degenerative
arthritis of the spine. He concluded that Ingram was capable of
light duty work that did not reguire lifting more than 20 pounds
or prolonged standing or walking and would be able to return to
work in a month. Dr. Shirley's follow-up examination on August 2
found no change in Ingram's condition and also that he would not
be able to return to work for a month.
The physical therapy progress notes and chiropractic
treatment notes during August indicate some progress in Ingram's
condition. Dr. Ashcliffe, the chiropractor, again noted that
Ingram was capable of light duty work and expected him to return
2 to his prior work. His examination by Dr. Shirley on September
2, 1993, revealed some slight back pain with certain tests. Dr.
Shirley referred Ingram to Dr. Levy at Concord Orthopaedics for
evaluation of possible disc injury in the lower lumbar spine area
after noting some narrowing of the disc space and mild
instability. Dr. Levy examined Ingram on September 27, 1993, and
recommended an MRI, anti-inflammatory medication, and continued
physical therapy. When he examined Ingram again on November 3,
he found no change and decided to refer him to Dr. Nagel for
evaluation. The chiropractic and physical therapy notes for
September and October show some progress. In November, Ingram
was discharged from physical therapy with home exercises.
Dr. Nagel saw Ingram on November 15 and again on November
29, 1993. He first diagnosed mechanical low back pain and
degenerative spine disease and recommended an MRI and medical
treatment. The MRI showed diffuse degenerative loss of signal of
the lumbar discs from L2 to SI, marked narrowing between
vertebrae in one area with possible mild bulging of the disc, and
mild narrowing in another area. At the second visit. Dr. Nagel
found Ingram's range of motion decreased and a pain trigger point
although his neurological exam remained normal. He offered no
further treatment other than to try a back brace for awhile.
In January 1994, Dr. Nagel noted that Ingram was totally
stiff but without objective findings and diagnosed cervico-lumbar
strain. Dr. Nagel felt that Ingram had reached maximum medical
improvement at that point. He suggested vocational
3 rehabilitation. Dr. Nagel completed a Physician's Statement for
the New Hampshire Department of Employment Security in March 1994
in which he stated that Ingram was justified by medical reasons
in stopping work in June 1993 and that he would not be able to
return to his former work. He gave his opinion that Ingram was
limited in bending, lifting, carrying, reaching, walking,
climbing stairs, standing, and sitting, but he did not give a
degree of restriction. He suggested vocational rehabilitation.
Dr. Ashcliffe completed a guestionnaire on July 1, 1994, in
which he stated that Ingram was capable of full-time sedentary
work. Two months later. Dr. Nagel completed a medical report for
the Social Security Administration in which he described Ingram
as having continued severe pain and decreased functional
abilities. He assessed Ingram's ability to do work related
activities as being limited to occasionally lift up to ten
pounds, and to sit, stand and/or walk up to two to three hours
per day. Dr. Nagel believed that Ingram should not climb,
balance, stoop, crouch, or crawl, but that he could occasionally
kneel. In November, Dr. Nagel placed Ingram on a total temporary
disability status from October through December 1994.
Ingram's application for benefits was denied initially and
on reconsideration. He reguested a hearing which was held before
an Administrative Law Judge ("ALJ") on November 16, 1994. Ingram
was accompanied at the hearing by a non-attorney representative.
Ingram testified that his back and neck pain were the major
problems preventing him from working. He described the pain as
4 located in his neck with radiation down both sides, underneath
his shoulder blades, and down to his tailbone. He said the pain
was aggravated by standing too long and his sleep was interrupted
twice a night by the pain. At the time of the hearing, Ingram
said that he was taking eight Vicodin a day for pain. In
response to the ALJ's guestions, Ingram said that his daily
activities were limited and that he could no longer participate
in the recreational activities he enjoyed before his injury.
A vocational expert testified that Ingram was considered a
younger worker with limited educational ability. The ALJ posed a
hypothetical worker with Ingram's past work experiences and a
light to sedentary work capacity with no prolonged standing,
walking, or sitting, and with an option to sit or stand at will.
The vocational expert responded that he could perform a
supervisory position as a transferred skill from the supervisory
role he had in his prior mechanic position. He identified that
type of work as semi-skilled light work. The vocational expert
also testified that Ingram could do light engine repair, or
security monitor work. If he were restricted to only sedentary
work, the vocational expert said he could work as a cashier or a
sales counter clerk.
The ALJ denied Ingram's application for benefits on April
28, 1995, finding Ingram not disabled because jobs existed in the
economy that Ingram could perform. In his decision, the ALJ
found that Ingram had "severe degenerative disc disease of the
spine with low back and cervical spine strain." He also found
5 that Ingram had a residual functional capacity for light and
sedentary work limited by a reguirement that he be allowed to
change position as necessary. The ALJ found that Ingram could
lift more than twenty pounds occasionally and ten pounds
freguently and he could stand and walk no more than fifteen
minutes at a time for a total of two hours in an eight hour work
day. He further found that Ingram's sitting was restricted to
two hours at a time, and he was precluded from doing any type of
work that would reguire him to do overhead reaching or repetitive
pushing and pulling. The ALJ concluded that Ingram could not
return to his past work as a production machine mechanic or as a
forklift operator. The ALJ found, however, that he was not
disabled because a significant number of jobs existed that he
could perform given his exertional capacity and limitations, age,
education, and work experience: supervisor, small engine repair,
security surveillance, cashier, sales counter clerk, assembly.
Ingram's appeal to the Appeals Council was denied. His
motion to reverse and remand the decision followed.
STANDARD OF REVIEW
After a final determination by the Commissioner and upon
reguest by a party, the court is empowered "to enter, upon the
pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Secretary, with or
without remanding the cause for a rehearing." 42 U.S.C.A.
§ 405(g). The Commissioner's factual findings are conclusive if
supported by substantial evidence. Id.; Irlanda-Ortiz v.
6 Secretary of Health and Human Services, 955 F.2d 765, 769 (1st
Cir. 1991). Substantial evidence is "'such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)); see also Rodriquez Pagan v. Secretary of Health & Human
Servs., 819 F.2d 1, 3 (1st Cir.1987, cert, denied, 484 U.S. 1012
(1988) .
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence, settle credibility issues, and
draw inferences from the record evidence. Ortiz, 955 F.2d at
7 69; Burgos Lopez v. Secretary of Health & Human Services, 747
F.2d 37, 40 (1st Cir. 1984). And, the court will give deference
to the ALJ's credibility determinations, particularly where those
determinations are supported by specific findings. Frustaqlia 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)). Accordingly, the
Commissioner's decision to deny benefits will be affirmed unless
it is based on a legal or factual error. Manso-Pizarro v.
Secretary of Health and Human Servs., 76 F.3d 15, 16 (1st Cir.
1996).
DISCUSSION
7 Ingram asserts that the ALJ's conclusion at the third and
fifth steps of the sequential analysis2 are not supported by
substantial evidence in the record. More particularly, he
asserts that his combination of impairments meets or equals a
listed impairment. Ingram also contends that the ALJ did not
sufficiently develop the administrative record at the hearing in
light of the fact that he had a lay representative but not an
attorney. He also contends that the record does not include
substantial evidence to support the residual functional capacity
for work that the ALJ used to find that he was not disabled, or
his capacity to do the jobs which the ALJ determined he could
perform. The issues raised are addressed as follows.
A. Recruirements of a Listed Impairment
A claimant may prove a disability at the third step of the
sequential analysis if he can show that his impairment meets or
equals an impairment listed in 20 C.F.R. part 404, subpart P,
appendix 1, and has existed or is expected to continue for the
2 The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. 20 C.F.R. § 404 .1520 (1995) . requisite twelve month period. The ALJ found that Ingram's back
condition did not meet or equal a listed impairment. Ingram
asserts, however, that the ALJ failed to consider all of the
evidence and that his condition, properly evaluated in light of
the evidence, equals a listed impairment. Although the medical
evidence in the record that Ingram points to on appeal tends to
support the pain aspect of the first element of a listed spinal
impairment, he has not established the second element:
" [a]ppropriate radicular distribution of significant motor loss
with muscle weakness and sensory and reflex loss." 20 C.F.R. p t .
404, subpt. P, A p p . 1 § 1.05(c)(2). Accordingly, as Ingram has
not shown that the ALJ erred in determining that his condition
did not meet or equal a listed impairment, his appeal on that
ground is denied.
B. Substantial Evidence in Record in Support of Finding
At the fifth step of the sequential analysis, the burden
shifts to the Commissioner to show that despite the claimant's
severe impairment, he retains the residual functional capacity to
do work other than his prior work and that work the claimant can
do exists in significant numbers in the national and regional
economies. 20 C.F.R. § 404.1520(f); Keating v. Secretary of
Health and Human Servs., 848 F.2d 271, 276 (1st Cir. 1988) .
Ingram asserts that the record lacks substantial evidence to
support the ALJ's finding that he retained a residual functional
capacity to lift and carry up to twenty pounds occasionally and ten pounds frequently and that he could sit for a period of up to
two hours at a time. The ALJ did not indicate what record
evidence he relied on in making his finding of residual
functional capacity, although he stated that Ingram's treating
doctors' evaluations were persuasive as to "specific limitations
on his ability to perform some other work." In its motion for an
order affirming the Commissioner's decision to deny benefits, the
government points to evaluations in the record by two state
agency physicians and a consultation report from an orthopedic
surgeon as support for the ALJ's finding.
When a claimant has shown that he has an impairment that
prevents him from doing his prior relevant work, and its effect
on his ability to work is not readily apparent, a residual
functional capacity evaluation by an expert is necessary to
assess the claimant's ability to work. See Manso-Pizano, 76 F.3d
at 17. An ALJ cannot rely on his or her own interpretation of
the medical record to determine a claimant's ability to work
"'unless the extent of functional loss, and its apparent effect
on job performance, would be apparent even to a lay person.'" Id.
quoting Santiago v. Secretary of Health and Human Servs., 944
F.2d 1, 7 (1st Cir. 1991). Ingram's impairment due to his back
and neck condition was not sufficiently obvious to be assessed by
a lay person.
The parties agree that the residual functional capacity
found by the ALJ is for light work with some additional
restrictions. The Commissioner states that the opinions of two
10 state agency doctors and a consultative orthopedic surgeon
support the ALJ's finding that Ingram retained an exertional
ability to perform light work with certain restrictions. The
agency physician report cited was initially done in December 1993
by one doctor and was reviewed and affirmed in March 1994 by a
second agency doctor. A report, such as the one in this record,
by a nonexamining doctor that consists of merely checking boxes
on a form to indicate functional capacity is entitled to little
weight. Berrios Lopez v. Secretary of Health and Human Servs.,
951 F .2d 427, 431 (1st Cir. 1991).
The consultative orthopedic surgeon. Dr. Davison's,
assessment of Ingram's functional capacity was based on an
examination and is entitled to more weight than the opinion of a
nonexamining doctor. 20 C.F.R. § 404.1527(d)(1). Dr. Davison
concluded in July 1993 that Ingram could do light duty work, part
time, without prolonged standing or walking. In contrast,
Ingram's treating doctor. Dr. Nagel, assessed his functional
capacity in August 1994 and, based on a last examination in July
1994, found that Ingram was limited to lifting and carrying only
ten pounds and noted that the freguency of lifting and carrying
was "negligible." Dr. Nagel's findings were consistent with an
exertional level of sedentary work with additional restrictions.
A treating doctor's opinion is generally entitled to more
weight than a consultation examiner's opinion and is given
controlling weight unless it is not supported by accepted medical
diagnostic evidence or is inconsistent with other substantial
11 evidence in the record. 20 C.F.R. § 404.1527(d)(2). The ALJ
decided not to give Dr. Nagel's opinion controlling weight but
did not identify the reasons for his determination. Although the
Commissioner states in the motion for affirmance that Dr. Nagel's
opinion was inconsistent with other opinions and objective
medical evidence in the record, she points to no specific
examples. The record presented on appeal does not seem to
support the Commissioner's assertion. Accordingly, substantial
evidence does not exist in the record to support the ALJ's
finding that Ingram was capable of light work with certain
restrictions.
The Commissioner contends, however, that based on the
vocational expert's testimony, jobs exist in the relevant
economies that Ingram can perform even if limited to the
sedentary functional capacity assessed by Dr. Nagel. The ALJ
posed an alternative hypothetical claimant limited to a work
capacity to lift or carry no more than ten pounds with
restrictions on reaching, bending and stooping, prolonged
standing, walking or sitting, and with an option to change
position at will, as assessed by Dr. Nagel. The vocational
expert concluded that Ingram would be limited to unskilled
positions at the sedentary exertional level. The vocational
expert suggested jobs as a cashier, sales counter clerk, and
assembler of small parts as in electronics or machinery.
Ingram's representative challenged the vocational expert's
suggestions because he believed bending, twisting, and prolonged
12 standing would be required of sales clerks and cashiers. The ALJ
then asked whether the vocational expert had considered the
activities mentioned and the vocational expert responded that he
considered plumbing supply or hardware positions.
Ingram contends that the Dictionary of Occupational Titles'
("DOT") descriptions of jobs in each of the categories described
by the vocational expert are beyond Ingram's exertional and skill
limitations, so that substantial evidence does not exist to
support the ALJ's reliance on those jobs. The Commissioner takes
administrative notice of the accuracy of several sources of job
information including the DOT. 20 C.F.R. 404.1566(d). An ALJ
may rely on a vocational expert to provide an opinion about a
claimant's abilities and the relevant job market on complex
issues that cannot be resolved by manuals. See 20 C.F.R. §
404.1566(e). Some courts have determined that substantial
evidence does not support an ALJ's determination based on
testimony by a vocational expert that is clearly contradicted by
the DOT. See, e.g.. Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.
1995) ("when expert testimony conflicts with the DOT, the DOT
controls"); Williams v. Shalala, 997 F.2d 1494, 1500 (D.C. Cir.
1993) (VE1s testimony in conflict with DOT does not constitute
substantial evidence); but see Johnson v. Shalala, 60 F.3d 1428,
1425 (9th Cir. 1995) (ALJ may rely on testimony from expert that
is different from DOT); Conn v. Secretary of Health and Human
Servs., 51 F.3d 607, 610 (6th Cir. 1995) (same).
13 In this case, the vocational expert did not reveal the
sources for his opinion regarding jobs which Ingram could perform
and there is no indication that he relied on DOT listings. The
DOT job classifications offered by Ingram to show that cashier,
sales counter clerk, and assembly positions all reguire greater
exertional and skill levels than his abilities do not give the
whole picture. The vocational expert limited his opinion to
assembly of small parts in electronics or machinery and to
cashier or sales clerk positions in hardware or plumbing supply.
It seems that no DOT listings for cashiers or sales clerk
positions in hardware or plumbing supply meet Ingram's exertional
and skill3 limitations. See, e.g., DOT #279.357-050
(Salesperson, general hardware: light exertional level, medium
educational level, more than three months of specific vocational
preparation). The DOT lists assembly job categories at the
sedentary exertional level that reguire less than a month of
preparation and a low general educational development. See,
e.g., DOT ## 726.684-110 (touch-up screener) , 726.687-030 (loader
semiconductor dies), 726.685-066 (bonder, semiconductor),
726.687-046 (wafer breaker, semiconductors), 725.687-022
(getterer lighting fixtures industry). However, it is unclear
3 "Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. . . . For example, we consider jobs unskilled if the primary work duties are handling, feeding and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed." 20 C.F.R. § 404 .1568 (a) .
14 whether the DOT listed assembly jobs would accommodate the sit or
stand option the ALJ required or the limitation on reaching and
repetitive pushing and pulling, as all of the assembly jobs
require at least occasional reaching and pushing and pulling. In
addition, it is not clear that the numbers of available jobs
suggested by the vocational expert are available in the specific
categories described in the DOT.
The generality and uncertainty of the vocational expert's
testimony coupled with conflicting information from the DOT
undermines the usefulness of his opinion on appellate review. On
balance, the opinion does not provide substantial evidence
establishing jobs Ingram could do given his residual functional
capacity. Accordingly, as substantial evidence is lacking to
support the ALJ's determination that jobs exist in significant
numbers in the relevant economies which Ingram could perform, his
determination at the fifth step that Ingram was not disabled is
reversed. The matter is remanded to the Commissioner for further
proceedings.
SO ORDERED.
Steven J. McAuliffe United States District Judge
January 27, 1997
cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.