Sapier v. HHS CV-94-352-SD 05/11/95 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Ronald Sapier
v. Civil No. 94-352-SD
Secretary of Health and Human Services
O R D E R
Pursuant to section 20 5 (g) of the Social Security Act, 42
U.S.C. § 405(g), plaintiff Ronald Sapier seeks judicial review of
a final decision of the Secretary of Health and Human Services
denying his claims for disability insurance benefits. Presently
before the court are (1) plaintiff's motion to reverse the
Secretary's decision and (2) defendant's motion to affirm the
Secretary's decision.
Background
Plaintiff Ronald Sapier was born on April 15, 1945, in
Perry, Maine. He currently resides in Ashland, New Hampshire,
with his wife and two daughters. Transcript of Administrative
Record (Tr.) 51-52. Sapier has a GED and has taken a supervisory
training course and a course on electrical principles. Tr. 53.
Sapier's work history includes employment as a laborer in the construction field between 1973 and 1976 and between 1977 and
1978. He subsequently worked for approximately six months
between 1979 and 1980 as a vacuum cleaner sales and service
representative.
In April of 1980 Sapier went to work at a textile mill in
Ashland. Over a ten-year period, he was employed at the mill as
a machine operator, a floor man, and an expediter. He left his
job at the mill on April 13, 1990, because of back problems.
In addition to his job at the textile mill, Sapier worked
one day per week as a gasoline station attendant between 1984 and
April of 1990. Due to his back problems, Sapier left this job at
the same time he left his job at the mill.
Since 1990, Sapier has experienced numerous health problems,
the combination of which purportedly leaves him unable to engage
in any substantial gainful activity.
Procedural History
As a result of his medical problems, Ronald Sapier has filed
three separate applications for disability insurance benefits,
each alleging an inability to work since April 13, 1990. His
first application, filed on August 9, 1991, was denied on
September 23, 1991. Tr. 125-32. He did not appeal this
decision.
2 Sapier filed a second application for disability insurance
benefits on January 21, 1992. Tr. 146-48. That application was
denied initially and upon reconsideration. Tr. 150-55; 158-62.
No further appeal of this denial was taken.
Sapier filed a third application for disability insurance
benefits on January 25, 1993. Tr. 180-82. This application was
denied initially and upon reconsideration. Tr. 183-87; 190-94.
Sapier filed a timely request for a de novo hearing on his
third application before an Administrative Law Judge (ALJ). Tr.
195. Sapier, who was represented by counsel at the October 20,
1993, hearing, testified at the hearing, along with his wife and
a vocational expert.
On November 18, 1993, the ALJ issued his decision, finding
that Sapier was not disabled. Tr. 21-29. Applying the five-step
sequential evaluation prescribed by 20 C.F.R. § 404.1520, the ALJ
found that (1) Sapier has not engaged in substantial gainful
employment since April 13, 1990; (2) Sapier has "severe diabetic
neuropathy, myofascial complaints with fibromyalgia, colitis,
depressive symptoms and a sleep disturbance . . . .", Tr. 28; (3)
Sapier's impairments or combination of impairments does not meet
or equal the impairments listed in 20 C.F.R. Pt. 404, Subpt. P,
A p p . 1; (4) Sapier's impairments do not prevent him from doing
his past relevant work as a vacuum cleaner salesperson; and (5)
3 Sapier has a residual functional capacity (RFC) for a range of
light work.1 The ALJ further found that Sapier's "allegations of
inability to work are not credible." Tr. 28.
On May 10, 1994, the Appeals Council of the Social Security
Administration denied Sapier's reguest for review of the ALJ's
decision. Tr. 8-9. The Appeals Council subseguently vacated
that decision in order to review additional evidence. However,
after reviewing said evidence, the Appeals Council again denied
Sapier's reguest for review, thereby rendering the ALJ's decision
final.
In the present action, Sapier moves for an order reversing
the Secretary's decision on the grounds that the following
findings are not supported by substantial evidence:
(1) that Sapier's diabetes mellitus does not meet or egual
the impairment listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1,
Sec. 908;
(2) that Sapier's combination of impairments does not meet
or egual the musculoskeletal impairment listed at 20 C.F.R. Pt.
4 04, Subpt. P, App. 1, Sect. 1.0 9;
(3) that Sapier's past relevant work included work as a
1The ALJ found Sapier capable of performing the full range of light work "except for work involving lifting or carrying objects weighing in excess of 20 pounds or working at or above shoulder level (20 CFR 404.1545)." Tr. 28.
4 salesman; and
(4) that Sapier could perform a limited range of light work.
Defendant opposes plaintiff's motion and moves for an order
affirming the Secretary's decision on the ground that said
decision is supported by substantial evidence.
Discussion
1. Standard of Review
Pursuant to 42 U.S.C. § 405(g), this court, upon review of a
final decision of the Secretary, 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 case for a rehearing." 42 U.S.C. § 405(g)
(Supp. 19 94).
However, the court's review of the Secretary's decision is
limited. Section 405(g) provides that the Secretary's factual
findings shall be conclusive if they are supported by
"substantial evidence." "Substantial evidence" means "'more than
a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adeguate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971)
(guoting Consolidated Edison Co. v. NLRB,305 U.S. 197, 229
(1938)); Rodriquez v. Secretary, 647 F.2d 218, 222 (1st Cir.
5 1981) .
Further, substantial evidence "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) (citing NLRB v. Nevada Consolidated Copper
Corp., 316 U.S. 105, 106 (1942)). Thus, the decision of the
Secretary must be affirmed, "even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence." Rodriguez Pagan v. Secretary, 819 F.2d 1,
3 (1st Cir. 1987), cert, denied, 484 U.S. 1012 (1988) (citing
Lizotte v. Secretary, 654 F.2d 127, 128 (1st Cir. 1981)).
2. Listed Impairments (Step 3)
At Step 3 of the seguential analysis, the claimant bears the
burden of proving that he has an impairment that meets or eguals
an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
Dudley v. Secretary, 816 F.2d 792, 793 (1st Cir. 1987). If the
claimant meets his burden, the Secretary is reguired to find the
claimant disabled without further consideration of his age,
education, and work experience. 20 C.F.R. § 1520(d).
6 a. Section 9.08
Plaintiff asserts that the Secretary failed to consider
whether his impairments met the listed impairment for diabetes
mellitus,2 20 C.F.R. Pt . 404, Subpt. P, App. 1, Sect. 9.08
(1994). That listing states in relevant part.
Diabetes mellitus. With: A. Neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station (see 11.00C);
Section 11.00C, one of the listings for neurological
impairments, states.
Persistent disorganization of motor function in the form of paresis or paralysis, tremor or other involuntary movements, ataxia and sensory distrubances [sic] (any or all of which may be due to cerebral cerbellar [sic], brain stem, spinal cord, or peripheral nerve dysfunction) which occur singly or in various combination, freguently provides the sole or partial basis for decision in cases of neurological impairment. The assessment of impairment depends on the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Sect. 11.00C.
2Diabetes mellitus is "a chronic syndrome of impaired carbohydrate, protein, and fat metabolism owing to insufficient secretion of insulin or to target tissue insulin resistance." D o r l a n d 's I l l u s t r a t e d M e d i c a l D i c t i o n a r y 457 (28th ed. 1994) .
7 The ALJ found that "[t]he medical evidence establishes that
the claimant has severe diabetic neuropathy . . . but that he
does not have an impairment or combination of impairments listed
in, or medically equal to one listed in Appendix 1, Subpart P,
Regulations No. 4." Tr. 28. The ALJ did not, however, make any
specific findings as to why Sapier's condition did not meet or
equal the section 9.08 listing for diabetes mellitus. Although
the ALJ's failure to make such specific findings renders this
court's review more difficult, the court may nonetheless affirm
the ALJ's finding that Sapier's diabetes mellitus does not meet
or equal a listing if that finding is supported by substantial
evidence.
The ALJ did find that Sapier suffered from diabetes mellitus
and that this condition "is not sufficiently controlled by
medication . . . ." Tr. 26. Therefore, the question presented
here is whether the ALJ's finding that Sapier does not have the
associated neuropathy required to meet or equal the section 9.08
listing is supported by substantial evidence.
Beginning in early 1991, Sapier began complaining to Dr.
Miller of pain and cramping in his hands and fingers, Tr. 236,
and that his hand was "shaking all the time," Tr. 237. Dr.
Miller referred Sapier to Dr. L.P. Zyskowski who, upon
examination, opined that Sapier was likely suffering from "an early fibrosing syndrome related to his diabetes." Tr. 238. Dr.
Zyskowski in turn referred Sapier to Dr. Michele Gaier Rush, a
neurologist, to determine if Sapier's condition "is a neuropathy
or just related to his diabetes." Id.
After her initial physical examination of Sapier on
February 21, 1991, Dr. Rush scheduled Sapier for electromyograph
(EMG) nerve conduction studies. Tr. 240. Dr. Rush's
interpretation of the EMG study conducted on March 6, 1991, was
as follows:
This is a markedly abnormal study and probably represents diffuse diabetic sensory and motor polyneuropathy with a superimposed carpal tunnel syndrome on the right and possibly an early carpal tunnel syndrome on the left. There was no evidence of cervical de-innervation. There was evidence of denervation in the right APB muscle.
Tr. 241.
Dr. Rush subseguently referred Sapier back to Dr. Miller
for evaluation of his carpal tunnel problems and for evaluation
of his lower back "for the symptoms of intermittent leg
weakness." Tr. 243. After examining Sapier on March 27, 1991,
Dr. Miller opined that Sapier's problem with his arms, wrists,
and hands "is certainly in large part due to his diabetic
neuropathy, but the carpal tunnel syndrome is probably making it
a little bit worse. ..." Tr. 244. Dr. Miller performed a
carpal tunnel release on Sapier's left hand in April 1991, and on his right hand in June 1991. Tr. 245-46.
On examination in July 1991, Dr. Miller noted that the
carpal tunnel releases had provided Sapier with some relief, but
he also noted that Sapier "still gets some aching in the [right]
wrist and still has his tremor which hasn't been clearly
defined." Tr. 247. Dr. Miller again pointed out that "a lot of
his problems are due to his diabetes and diabetic neuropathy."
Id.
Dr. Rush continued to treat Sapier while Sapier was seeing
Dr. Miller for treatment of his bilateral carpal tunnel syndrome.
Dr. Rush's sensory examination of Sapier on October 4, 1991,
revealed "decreased sensation in the entire right upper extremity
and some possible stocking glove distribution loss in the lower
extremities, although not consistent. Deep tender reflexes are
absent throughout even with reinforcement." Tr. 248. However,
Sapier's cerebellar exam and motor exams were normal, and formal
romberg testing was negative. Tr. 248-49. Examination on
November 19, 1991, again revealed decreased sensation and
hyporeflexia throughout, but no motor weakness. Tr. 240. Dr.
Rush's diagnosis at this point was "probable cervical
radiculopathy."3 Tr. 250.
3Cervical radiculopathy is disease of the nerve roots in the neck. D o r l a n d 's , supra, at 303, 1404.
10 Dr. Rush's final examination of Sapier was on July 1, 1992.
Dr. Rush again found no motor weakness on examination, but noted
that Sapier's "reflexes remain hyporeflexic throughout." Tr.
256. Dr. Rush, noting that she was "not really doing anything
more for him," referred Sapier to the chronic pain clinic at
Dartmouth Hitchcock Medical Center.
Social Security regulations reguire the Secretary to
evaluate every medical opinion received. 20 C.F.R. § 404.1527(d)
(1994). Said regulations also generally reguire the Secretary to
give more weight to a claimant's treating sources
since these sources are likely to be the medical professionals most able to provide a detailed longitudinal picture of your medical impairment(s) and may bring a unigue perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(d)(2). Further, the Secretary will give a
treating source's opinion controlling weight if his or her
"opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic technigues and is not inconsistent with
the other substantial evidence in your case record . . . ." Id.
The regulations also provide that the Secretary "will always give
good reasons in our notice of determination or decision for the
11 weight we give our treating source's opinion."4 Id.
Having treated Sapier on a regular basis for over sixteen
months. Dr. Rush clearly gualifies as a "treating physician"
under the Social Security Regulations. Accordingly, her medical
opinion that Sapier suffers from diffuse diabetic sensory and
motor polyneuropathy is entitled to some weight, if not
controlling weight.
Despite the obvious relevance of Dr. Rush's medical opinions
to a determination of whether plaintiff's condition meets or
eguals the impairment listed at section 9.08, the ALJ failed to
even mention Dr. Rush's medical opinions, much less determine the
weight to which such opinions are entitled, in his decision.
Because the medical evidence obtained from Dr. Rush includes
evidence that could support a finding that Sapier meets or eguals
the section 9.08 listing for diabetes mellitus, the court finds
that the ALJ's failure to consider Dr. Rush's medical findings
reguires the court to reverse the ALJ's findings and remand this
case for further review.
On remand, the ALJ shall determine whether Sapier's
condition meets or eguals a listed impairment based on all of the
4This regulation, promulgated in 1991, negates the First Circuit's prior rule that the ALJ is not reguired to give greater weight to the opinions of treating physicians. See Arrovo v. Secretary, 932 F.2d 82, 89 (1st Cir. 1991) (applying old rule).
12 evidence before him, including the medical evidence from Dr.
Rush. In determining the weight to which the opinions of Dr.
Rush and plaintiff's other treating physicians are entitled, the
ALJ shall detail the reasons for his determination as provided in
20 C.F.R. § 404.1527.
b. Section 1.09
Plaintiff next asserts that his combination of impairments
meets or eguals the musculoskeletal impairment listed at 20
C.F.R. P t . 404, Subpt. P, App. 1, Sect. 1.09 (1994), and that the
Secretary's finding that his impairments do not meet or egual
this listing is not supported by substantial evidence.
The musculoskeletal impairment listed in section 1.09 is the
[ajmputation or anatomical deformity of (i.e., loss of major function due to degenerative changes associated with vascular or neurological deficits, traumatic loss of muscle mass or tendons and X-ray evidence of bony ankylosis at an unfavorable angle, joint subluxation or instability): A. Both hands; or B. Both feet; or C. One hand and one foot.
20 C.F.R. P t . 404, Subpt. P., App. 1, Sect. 1.09. The relevant
regulations further provide that
[l]oss of function may be due to amputation or deformity. Pain may be an important factor in causing functional loss, but it
13 must be associated with relevant abnormal signs or laboratory findings. Evaluations of musculoskeletal impairments should be supported where applicable by detailed descriptions of the joints, including ranges of motion, condition of the musculature, sensory or reflex changes, circulatory deficits, and X-ray abnormalities.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Sect. 1.00A.
The ALJ did not make any specific findings as to why
plaintiff's impairment does not meet or egual the impairment
listed in section 1.09, but he did make a general finding that
plaintiff's impairment or combination of impairments does not
meet or egual any listed impairment.
The court finds, for the same reasons set forth in section
2.a. of this order, that it is unable to determine whether this
finding is supported by substantial evidence due to the ALJ's
failure to consider all of the medical opinions he received.
Because the medical opinions of plaintiff's treating physicians
contain evidence which could support a finding that plaintiff's
impairment meets or eguals the impairment listed in section 1.09,
the ALJ's failure to consider and weigh such opinions in
accordance with 20 C.F.R. § 404.1527 reguires the court to
reverse the Secretary's findings and remand this case for further
review.
On remand, the ALJ shall evaluate all of the medical
opinions presented to him. If the ALJ determines that any of the
14 medical opinions of plaintiff's treating physicians are not
entitled to controlling weight, his explanation for such
determinations shall meet the reguirements of 20 C.F.R. §
404.1527(d).
In remanding this particular case to the ALJ for further
review, the court notes that the reguirements of 20 C.F.R. §
404.1527 serve the dual purpose of ensuring (1) that the ALJ
carefully considers all of the medical evidence before him and
(2) that the ALJ's reasons for attributing more or less weight to
certain medical opinions are well-documented, thereby permitting
the ALJ's findings to be properly reviewed under the substantial
evidence standard. This dual purpose is consistent with the
general rule that "[t]he Secretary has an obligation both to
claimants and to reviewing courts to make full and detailed
findings in support of his ultimate conclusion." Small v.
Califano, 565 F.2d 797, 801 (1st Cir. 1977) (citing, inter alia,
42 U.S.C. § 405 (b)) .5
5Having found it necessary to reverse the Secretary's disability determination based on the Secretary's findings at Step 3 of the five-step seguential analysis, the court does not reach the guestion of whether the Secretary's findings at Steps 4 and 5 of the seguential analysis are supported by substantial evidence.
15 3. Reopening of Earlier Application
At the October 23, 1993, hearing, the ALJ agreed to reopen
plaintiff's earlier application for disability benefits, noting
that he could do so "for any reason within 12 months . . .
Tr. 121. See also 20 C.F.R. § 404.988(a) (1994) (a decision or
determination "may be reopened . . . [w]ithin 12 months of the
date of the notice of the initial determination, for any reason .
. . ."). Because the initial determination on plaintiff's second
application for disability benefits was the only initial
determination made within 12 months of plaintiff's third
application for disability benefits, the court presumes that the
ALJ intended to reopen plaintiff's second application, but not
his first.6
To clarify this issue, if the Secretary determines on remand
that plaintiff is disabled, the Secretary shall specify which
prior application has been reopened.
Conclusion
As set forth herein, the Secretary's disability
determination is reversed and this case is remanded for a
6The notice of initial determination on plaintiff's first application for disability benefits is dated September 23, 1991. The notice of initial determination on his second application is dated April 27, 1992. Plaintiff's third application was filed on January 25, 1993.
16 redetermination of plaintiff's eligibility for disability
insurance benefits in accordance with the provisions of this
order. Plaintiff's motion for an order reversing the decision of
the Secretary (document 7) is accordingly granted, and
defendant's motion for an order affirming the decision of the
Secretary (document 9) is denied.
SO ORDERED.
Shane Devine, Senior Judge United States District Court May 11, 1995 cc: Quentin J. Blaine, Esg. David L. Broderick, Esg.11