Viveiros v. SSA CV-02-255-B 04/05/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David Viveiros
v. Civil N o . 02-255-B Opinion NO. 2003 DNH 058 Jo Anne Barnhart, Commissioner of Social Security Administration
MEMORANDUM AND ORDER
On February 2 3 , 2000, David Viveiros filed an application
with the Social Security Administration (“SSA”) for Supplemental
Security Income (“SSI”). Viveiros alleges that his disability
began on October 2 9 , 1999 as a result of multiple knee surgeries
and a back injury. The SSA denied Viveiros’s application on
December 6, 2000. Viveiros filed a new application for benefits
and requested a hearing before an Administrative Law Judge
(“ALJ”) without requesting reconsideration on the initial
decision. A hearing was held on August 2 3 , 2001 before ALJ
Douglas Hoban. ALJ Hoban determined on March 5 , 2002 that
Viveiros was not disabled within the meaning of the Social
Security Act (the “Act”). See 42 U.S.C. § 1382 (1992 & Supp. 2002). Viveiros then
asked the Appeals Council to review the ALJ’s decision. The
Appeals Council declined to do so and, pursuant to 42 U.S.C. §
405(g) (1991 & Supp. 2002), Viveiros filed this civil action
seeking judicial review of the denial of his application.
Viveiros argues that the ALJ’s denial of benefits is not
supported by substantial evidence or adequate findings. Among
other things, he argues that the ALJ failed to present the
correct hypothetical questions to the vocational expert (“VE”).
I. BACKGROUND1
A. Education and Work History
Viveiros was thirty-four years old when he filed his
application for SSI. Viveiros has a tenth grade education and
worked primarily in pipe line construction. He also worked as a
general laborer doing weatherproofing. (Tr. 5 5 ) . After making
his first filing in support of his application, he worked in
packaging for a door and window company for less than two months.
1 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts (Doc. N o . 13) submitted by the parties.
-2- (Tr. 4 0 ) . He left his position because of his knee problems.
From May 2001 until August 2001, Viveiros worked as a flag
person during road construction. (Tr. 4 3 ) . He left because he
was unable to perform his duties.
B. Medical Evidence
Beginning in 1996, Viveiros sought treatment from William
Spina, M.D. at Weeks Memorial Hospital (“Weeks”) for knee pain
resulting from a prior work accident. Prior to moving to New
Hampshire and seeking treatment from D r . Spina, Viveiros had
already undergone four surgeries on his right knee. In a report
dated April 1 4 , 1997, D r . Spina opined that a diagnostic
procedure was, once again, necessary because Viveiros’s right
knee was swollen and repeatedly had given out on him. Viveiros
underwent arthroscopic debridement of his right knee.
Viveiros returned to Weeks in May 1998 and was examined by
Jeffrey Johnson, M.D. Viveiros had injured his right knee after
falling through a bridge. D r . Johnson recommended Viveiros wear
a knee immobilizer and crutches. In September 1998, Viveiros
returned to D r . Johnson after falling onto a wood pile and
injuring his back. An x-ray examination was within normal
-3- limits. Viveiros was placed on Demerol and Phenergan for relief
of pain.
In November 1999, Viveiros visited D r . Spina complaining of
knee pain and swelling. He stated his left knee would catch and
give out. D r . Spina opined that Viveiros had degenerative
arthritis. Viveiros underwent arthroscopic debridement of his
left knee later that same month. In December of 1999, D r . Spina
found a golf-ball size lump on Viveiros’s left knee which he
opined was a synovial2 fluid leak. Viveiros was subsequently
prescribed Celebrex and Vicodin for swelling and pain.
In May 2000, Viveiros fell in a pit, injured his back and
began to develop spasms. He sought treatment at the Upper
Connecticut Valley Hospital. Marvin Kendall, M.D., examined
Viveiros and opined that he had a contusion to his lower back.
Two days later, Viveiros returned to Connecticut Valley Hospital
complaining of severe back pain. Viveiros was examined by Sharon
Curtis, M.D. D r . Curtis furnished Viveiros with Motrin, Valium,
and Vicodin. She opined that Viveiros had low back strain and
2 A clear fluid, the main function of which is to serve as a lubricant in a joint, tendon sheath, or bursa. Stedman’s, p . 689.
-4- noted severe muscle spasms.
Viveiros sought treatment during this same period from D r .
Spina for back spasms and pain. D r . Spina found him “unfit to
work” due to his injury. D r . Spina also opined that Viveiros had
a soft tissue mass in this lower back and osteoarthritis of both
knees. D r . Spina recommended that Viveiros receive an orthopedic
consult. On August 3 , 2000, Viveiros visited Gerrit Groen, M.D.
for the recommended consultation. D r . Groen noted that Viveiros
should not engage in heavy work and should “get going” with
vocational rehabilitation. (Tr. 2 4 1 ) . D r . Groen noted that
Viveiros should be fitted for a brace for his right leg. In
October 2000, D r . Spina, once again, performed arthroscopy on
Viveiros’s right knee.
C. Treating Physician’s Opinion3
In physician notes from March 8 , 2001, D r . Spina noted
Viveiros’s complaints of severe knee pain and his claim that he
was unable to walk any distance. (Tr. 2 4 4 ) . D r . Spina opined
that Viveiros’s knee symptoms limited his work capacity and that,
3 D r . Spina never completed an RFC assessment for Viveiros. As such, D r . Spina’s specific opinions as to Vieveiros’s limitation exist only in the form physician notes and letters to Vieveiros’s attorney.
-5- as a result, he would have difficulty with both “sedentary work
and physical labor.” (Tr. 2 4 4 ) .
In a letter dated October 2 2 , 2001, from D r . Spina to
Viveiros’s attorney, D r . Spina discussed the possibility of
Viveiros securing SSI. He opined that while Viveiros had early
onset degenerative arthritis, “the problem with David and Social
Security is that he is a very young and intelligent young man. He
is an ideal candidate for Vocational Rehabilitation and job
retraining in to a sedentary occupation. Perhaps even a career
as a driver of some type.” (Tr. 2 4 3 ) .
D. New Hampshire Disability Determination Services (“DDS”) RFC Determination
On November 2 9 , 2000, DDS non-physician examiner, Lisa Beck,
completed an RFC assessment for Viveiros. Beck reviewed
Viveiros’s medical history and found that he could engage in
light work. (Tr. 1 8 ) . Specifically, Beck found that Viveiros
was capable of lifting up to 20 pounds occasionally and ten
pounds frequently. (Tr. 2 3 2 ) . She determined that Viveiros
could walk or stand for about six hours during an eight-hour
workday and sit for about six hours during an eight-hour workday.
She determined that he had an unlimited ability to push and pull.
-6- She noted that Viveiros had postural limitations which allowed
him to only occasionally climb, balance, stoop, kneel, crouch,
and crawl. (Tr. 2 3 3 ) .
E. Hearing before ALJ
On August 2 3 , 2001, Viveiros appeared before ALJ Hoban.
Viveiros testified that he had to constantly reposition himself
because he could not sit still for long periods of time due to
knee and back pain. After sitting for a long period of time, his
back would begin to spasm. He further testified that he could
drive, but must pull over every 15 to 20 minutes to “position
[him]self.” (Tr. 3 4 ) . Viveiros indicated that he took pain and
anti-inflammatory medications. He also stated that he could sit
for only two to three hours during an eight-hour work day and
that he needed to lie down for two to three hours a day in half-
hour increments. Viveiros testified that he “tr[ied] to walk
outside [his] house” for exercise. (Tr. 5 3 ) .
The ALJ asked vocational expert (“VE”) James Parker if there
were any jobs available in the national economy for a 35 year-old
-7- person who had a tenth grade education and only heavy work
experience. Parker listed a series of jobs at the light work
level. The ALJ asked Parker to identify sedentary jobs meeting
the same requirements and Parker responded that there were three
job descriptions meeting the stated requirements. The ALJ then
asked Parker to assume that a person was not capable of the
required six hours of standing and had to adjust positions
between standing and sitting. Parker responded that two
sedentary positions remained: an automobile locater and a water
clerk, food and beverage, both of which existed in the New
Hampshire and Vermont area. The ALJ did not ask Parker to
discuss whether non-exertional limitations such as limited
reaching, pushing and pulling, climbing, balancing, kneeling,
crouching, crawling, and stooping would impact the available
sedentary jobs.
The ALJ found D r . Spina’s medical records vague and
contradictory. The ALJ ordered an orthopedic evaluation and held
the record open in the interim. He then informed Viveiros that
he would find that Viveiros was not capable of performing
sedentary work if the orthopedic consultant supported that
conclusion.
-8- On October 1 5 , 2001, Viveiros was examined by orthopedist
John Lambrukos, M.D. Viveiros described his sitting and standing
limitations to D r . Lambrukos. After observing Viveiros sitting
for approximately a half-hour, D r . Lambrukos opined that Viveiros
must avoid: extended periods of standing or walking; prolonged
riding or driving in motor vehicles; bending; squatting;
kneeling; climbing; and heavy lifting. D r . Lambrukos opined that
Viveiros could occasionally lift more than ten pounds and
frequently lift less than ten pounds. He determined that
Viveiros could stand or walk for less than two hours during an
eight-hour workday. D r . Lambrukos found that Viveiros had a
limited ability to sit for less than six hours during an eight-
hour workday and must periodically alternate sitting and standing
to relieve pain or discomfort. In addition, D r . Lambrukos found
that Viveiros could not climb, balance, kneel, or crawl. D r .
Lambrukos also indicated that Viveiros could occasionally reach
in all directions.
F. ALJ Determination
The ALJ applied the five-step sequential evaluation process
-9- under which SSI applications are reviewed.4 See 20 C.F.R. §
416.920 (2002). He found that Viveiros had carried his burden
through step four of the process as to his knee condition. He
found, however, that Viveiros’s back problems were not “severe”
and therefore halted analysis of his back injury at step two. At
step five, the ALJ found that Viveiros was capable of working at
jobs existing in significant numbers in the national economy.
The ALJ determined that although Viveiros was generally credible,
his testimony did not support a finding of total disability.
Instead, the ALJ determined that Viveiros was capable of working
in a sedentary job which allowed him to exercise “the stand/sit
option.” (Tr. 1 7 ) . The ALJ then applied the Medical-Vocational
Guidelines (the “Grid”), relied on the VE’s testimony and found
that Viveiros was not disabled as defined by the Act.
4 The five-step evaluation process requires the ALJ adhere to the following sequential analysis: (1) whether the claimant is performing 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 claimant is capable of performing any work that exists in significant numbers in the national economy. See 20 C.F.R. § 416.920 (2002).
-10- 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, this court is authorized to review the transcript
of the administrative record and enter a judgment affirming,
modifying, or reversing the Commissioner’s decision. See 42
U.S.C. § 405(g). The court’s review is limited in scope,
however, as the Commissioner’s factual findings are conclusive
only if they are supported by substantial evidence. See id.;
Irlanda Ortiz v . Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991). The Commissioner is responsible for
settling credibility issues, drawing inferences from the record
evidence, and resolving conflicting evidence. See Irlanda Ortiz,
955 F.2d at 769; Frustaglia v . Sec’y of Health & Human Servs.,
829 F.2d 1 9 2 , 195 (1st Cir. 1987); see also Tsarelka v . Sec’y of
Health & Human Servs., 842 F.2d 529, 535 (1st Cir. 1988).
Therefore, the court must “‘uphold the [Commissioner’s] findings
. . . if a reasonable mind, reviewing the evidence in the record
as a whole, could accept it as adequate to support [the
Commissioner’s] conclusion.’” Irlanda Ortiz, 955 F.2d at 769
-11- (quoting Rodriguez v . Sec’y of Health & 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 . Charter, 172 F.3d 3 1 ,
35 (1st Cir. 1999) (per curiam) (citations omitted). If the
Commissioner has misapplied the law or has failed to provide a
fair hearing, deference to the Commissioner’s decision is not
appropriate, and remand for further development of the record may
be necessary. See Carroll v . Sec’y of Health & Human Servs., 705
F.2d 6 3 8 , 644 (2d Cir. 1983); see also Slessinger v . Sec’y of
Health & Human Servs., 835 F.2d 9 3 7 , 939 (1st Cir. 1987) (“The
[Commissioner’s] conclusions of law are reviewable by this
court.”) I apply these standards in reviewing the issues Johnson
raises on appeal.
III. ANALYSIS
Viveiros contends, among other things, that the ALJ
improperly ignored non-exertional limitations in posing
-12- hypothetical questions to the VE at the August 2 3 , 2001 hearing.
As a result, Viveiros argues, the ALJ could not rely on the VE’s
testimony that at least two jobs existed in the national economy
at the sedentary level that Viveiros was capable of performing.
At step five in the sequential evaluation process, the
Commissioner has the burden of demonstrating that Viveiros has
the RFC to work in a job that appears in significant numbers in
the relevant economy. See Seavey v . Barnhart, 276 F.3d 1 , 5 (1st
Cir. 2001); Arocho v . Sec’y of Health & Human Servs., 670 F.2d
374, 375 (1st Cir. 1982); see also 20 C.F.R. § 416.920. In order
for the Commissioner to meet her burden of proof where both
exertional and significant non-exertional limitations exist, she
must look to evidence outside the Grid. See Ortiz v . Sec’y of
Health & Human Servs., 890 F.2d 5 2 0 , 524 (1st Cir. 1989). In
such cases, she can rely on the testimony of a VE to meet her
step five burden of proof. See Arocho, 670 F.2d at 375; Berrios
Lopez v . Sec’y of Health & Human Servs., 951 F.2d 4 2 7 , 429-430
(1st Cir. 1991) (per curiam). In order to properly rely on a
VE’s testimony, however, the ALJ must pose hypothetical questions
to the VE that correspond to the claimant’s functional
-13- limitations as evidenced by medical authorities and testimony.
See Berrios Lopez, 950 F.2d at 429; see also Rose v . Shalala, 34
F.3d 1 3 , 19 (1st Cir. 1994). An ALJ may only credit the VE’s
response to hypothetical questions if there is “substantial
evidence in the record to support the description of [the]
claimant’s impairments given to the ALJ’s hypothetical to the
VE.” Berrios Lopez, 950 F.2d at 429; see Rose, 34 F.3d at 1 9 .
The ALJ asked the VE to identify light duty jobs that would
be available to a younger person with a tenth grade education,
functional literacy, and only unskilled heavy labor work
experience. The VE identified several jobs. The ALJ then asked
the VE to identify any sedentary jobs with the same restrictions.
The VE identified three jobs: automobile locater; water clerk,
food and beverage; and jewelry assembler. The ALJ then added:
Assuming a person couldn’t do the walking contemplated by light or the standing, well, let’s limit it to walking. . . . Assume this individual would need to work at a workstation and would need to alternate positions hourly between standing and sitting. But otherwise could do everything else the [DDS] said in that assessment, how would that affect the jobs you’ve just described?
In response, the ALJ noted that only two light jobs would exist
and of the sedentary positions identified, only the clerk and
-14- automobile locater positions remained feasible.
The ALJ then asked:
If we take into account the testimony and your observations vocationally, could an individual who has described the imitations that M r . Viveiros has done today perform any of the jobs you’ve identified?
The VE responded:
Your honor, based on the testimony today, there is indication of a need to lay down four to six times a day. . . . And in my professional opinion, that would rule out all employment. (Tr. 60)
The ALJ ultimately concluded that Viveiros was capable of
performing the sedentary jobs listed by the V E . Viveiros
contends that certain non-exertional limitations, specifically
his postural limitations noted by the DDS report and subsequently
in D r . Lambrukos’s report, were not included in the hypothetical
question posed by the ALJ to the V E . Viveiros also contends that
the pull and push limitations that D r . Lambrukos identified also
should have been included in the hypothetical.
The ALJ determined that Viveiros did not suffer from any of
the upper extremity limitations identified by D r . Lambrukos, as
none were presented to him at the hearing or elsewhere in the
medical evidence. The ALJ did not, however, discredit findings
-15- by both DDS and D r . Lambrukos that Viveiros suffered from
postural limitations. In addition, the ALJ did not include any
of the non-exertional postural limitations in the hypothetical
questions he posed to the V E . The DDS report explicitly included
restrictions on Viveiros’s ability to climb, balance, stoop,
kneel, crouch, and crawl. Furthermore, there is evidence in the
medical record to support such limitations, especially that of
crouching and balancing. The ALJ should have asked the VE if the
two jobs identified in the sedentary work category with the
stand/sit option would still be viable with the balance and
stooping restrictions both DDS and the medical record support.
Although Social Security Ruling (“SSR”) 96-9p states that
postural limitations do not usually erode the occupational base
for sedentary work, it also states that restrictions in
“balancing” and “stooping” may significantly erode the sedentary
work base. The ALJ should have provided this information to the
VE to determine if Viveiros’s balancing and stooping restrictions
further eroded the sedentary work base so as to preclude him from
working in the two identified sedentary jobs.
Furthermore, even if the ALJ could not address the postural
limitations during the August 2 3 , 2000 hearing, he should have
-16- posed the question to the VE at a supplemental hearing after the
orthopedic consultation by D r . Lambrukos clearly indicated a
total restriction on all climbing, balancing, kneeling, crawling
and stooping. SSR 96-9p explicitly provides that “consultation
with vocational resource may be particularly useful for cases
where the individual is limited to less than occasional
stooping.” SSR 96-9p. A supplemental hearing would have allowed
the VE to take the additional balancing and stooping restrictions
into consideration. As such, I find the ALJ’s reliance on the
VE’s testimony was not proper. See Rose, 34 F.3d at 1 9 ; Berrios
Lopez,951 F.2d at 429. Accordingly, the ALJ’s decision was not
based on substantial evidence.
IV. CONCLUSION
For the forgoing reasons, Viveiros’s motion to reverse the
decision of the Commissioner is granted. (Doc. N o . 1 2 ) . The
Commissioner’s motion for order affirming the Commissioner is
denied. (Doc. N o . 1 4 ) . The case is remanded for further
proceedings. The clerk of court shall enter judgment accordingly
and close the case.
-17- SO ORDERED.
Paul Barbadoro Chief Judge
April 5 , 2003
cc: Francis M . Jackson, Esq. David L . Broderick, Esq. Dennis G. Bezanson, Esq.
-18-