Wilma Brunei v. SSA CV-00-402-B 01/07/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Wilma Brunei
v. Civil No. 00-402-B Opinion NO. 2002 DNH 009 JoAnne Earnhardt. Commissioner. Social Security Administration
MEMORANDUM AND ORDER
Wilma Brunei applied for Title II Social Security Disability
Insurance Benefits on January 9 , 1996, alleging an inability to work since October 1, 1995. The Social Security Administration
("SSA") denied her application initially and on reconsideration.
Administrative Law Judge ("ALJ") Frederick Harap held a hearing
on July 2, 1996, and subsequently issued a decision in which he
concluded that Brunei was not disabled. The Appeals Council
denied Brunei's request for review, and she appealed the ALJ's
decision to this court. On January 26, 1999, Judge Devine issued
an order reversing the Commissioner's decision and remanding the case for further proceedings. The Appeals Council vacated the
ALJ's initial decision and remanded the case to him. On July 2 2 , 1999, ALJ Harap held another hearing and, on August 21, 1999, he
issued a second decision in which he concluded that Brunei was
not disabled. The Appeals Council affirmed ALJ Harap's decision
on July 6, 2000, thus rendering it the final decision of the
Commissioner of the SSA. 20 C.F.R. §§ 404.984(a), 416.1484(a)
(20 0 1 ) .
Brunei brought this timely action seeking review of the
Commissioner's denial of her application for benefits. See 42
U.S.C. § 405(g) (1994 & Supp. V 1999). Before me are Brunei's
Motion for Order Reversing the Decision of the Commissioner or
for Other Relief, (Doc. No. 6), and the Commissioner's Motion for
Order Affirming the Decision of the Commissioner, (Doc. No. 7).
For the reasons set forth below, I conclude that the ALJ
improperly acted as a medical expert and concomitantly failed to
account adequately for certain non-exertional limitations of
which Brunei plausibly complained. I thus reverse the
Commissioner's decision and, remand for further proceedings.
- 2 - I. BACKGROUND
The relevant procedural and factual background of this case,
which is largely derived from the joint statement of material
facts provided by the parties, is as follows:
A. Procedural History
Brunei filed an application for disability insurance
benefits on January 9, 1996. She alleged an inability to work
since October 1, 1995, due to venous stasis.1 After the SSA
denied Brunei's application initially and on reconsideration,
Brunei requested a hearing before an ALJ. On July 2, 1996, ALJ
Harap held a hearing at which Brunei, represented by counsel,
appeared and testified. On August 8, 1996, ALJ Harap denied
Brunei's application, finding that Brunei was not disabled during
the relevant period because she had the ability to perform
sedentary work2 with a sit/stand option, and thus could perform a
1 Venous stasis is a cessation or impairment of venous flow. Borland's Illustrated Medical Dictionary 1573-74 (28th ed. 1994) .
2 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles such as docket files, ledgers, and small tools. Although a sedentary job is one that involves sitting, a certain amount of walking and standing is often necessary. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
- 3 - significant number of jobs in the national economy.
On April 25, 1997, the Appeals Council denied Brunei's
request for review of the ALJ's decision, thus rendering the
ALJ's decision the final determination of the Commissioner.
Brunei then filed a timely action in this court, seeking review
of the Commissioner's decision pursuant to 42 U.S.C. § 405(g).
On January 26, 1999, Judge Devine vacated the decision and
remanded for a consultation with a vocational expert ("VE") as to
the availability of sedentary jobs that allow alternating between
sitting and standing to the extent required by Brunei. The
Appeals Council subsequently remanded the case back to ALJ Harap
for further proceedings consistent with Judge Devine's order.
On July 22, 1999, ALJ Harap conducted a second hearing at
which Brunei, who was again represented by counsel, and VE
Catherine Chandick appeared and testified. On August 21, 1999,
the ALJ again denied Brunei's application for benefits. In his
decision, the ALJ found that the plaintiff was disabled as of
September 1997 when she turned fifty years old, but that she was
not disabled from October 1, 1995 to August 31, 1997 because she
are met. 20 C.F.R. § 404.1567(a) (2001).
- 4 - retained the residual functional capacity ("RFC")3 to do a
reduced range of sedentary work, which in turn permitted her to
perform a significant number of jobs in the national economy.
Brunei then filed the present action for review of the
Commissioner's decision.
B. Summary of Facts
Brunei was a forty-eight year old high school graduate when
she filed her application for benefits. Between 1990 and 1995,
Brunei worked as a school cafeteria worker and an electronics
assembler. Brunei reported that she stopped working on July 18,
1995, primarily because of a vascular condition which caused her
leg to swell and become numb.
1. Medical Evidence
In May 1995, Brunei's treating physician. Dr. Kenneth E.
Ness, referred her for evaluation of chronic venous disease of
her lower extremities, more pronounced on the left than the
right. Brunei reported that she had experienced asymmetric leg
swelling since she was a teenager, but did not have any history
3 Residual functional capacity is what the claimant can do despite her impairments. 20 C.F.R. § 404.1520(e) (2001).
- 5 - of trauma or phlebitis.4 Brunei reported that, initially, there
had been no discomfort associated with the swelling (which would
decrease with elevation), but that the swelling had recently
worsened with a change in her job duties requiring long periods
of standing.
Dr. Ness requested a bilateral venous ultrasound because of
Brunei's complaints of recurrent swelling of the left leg for
many years and swelling of the right leg over the previous two
weeks. The ultrasound showed that the deep venous structures had
a normal appearance and compressibility, and did not indicate any
evidence of deep venous thrombophlebitis.5
On May 25, 1995, an examination by an unidentified doctor
showed that Brunei had edema6 of her left leg with pitting at the
4 Phlebitis is an inflammation of a vein. Dorland's Illustrated Medical Dictionary 1279 (28th ed. 1994).
5 Thrombophlebitis is inflammation of a vein associated with thrombus formation. Thrombus is an aggregation of blood factors, primarily platelets and fibrin with entrapment of cellular elements, frequently causing vascular obstruction at the point of its formation. Dorland's Illustrated Medical Dictionary 1707-08 (28th ed. 1994).
6 Edema is the presence of abnormally large amounts of fluid in the intercellular tissue spaces in the body. Dorland's Illustrated Medical Dictionary 528 (28th ed. 1994) .
- 6 - ankle, much more pronounced on the left than on the right.
Brunei was diagnosed as having a congenital absence of
superficial vein valves resulting in chronic edema from venous
hypertension, and it was recommended that the leg be compressed
and elevated "as much as possible." Brunei reported that an
over-the-counter compression stocking she had used in the past
made the situation worse if anything, and it was recommended that
she have fitted stockings made for both legs.
On July 20, 1995, Brunei went to the New London Hospital
emergency room with complaints of swelling in the left leg with a
hard, painful vein since the previous day, and left facial
numbness since that morning. Observations showed no significant
phlebitis or significant tenderness in the calf, inner-thigh, or
groin. Magnetic resonance imaging ("MRI") of the left leg did
not show any evidence of deep venous thrombosis, and all veins
appeared easily compressible and lacking defined clots. A July
29, 1995 MRI, taken to rule out a ruptured cyst at the posterior
of the knee, was normal.
By October 1, 1995 (Brunei's alleged onset date). Dr. Ness
reported that Brunei was working two to three hours a day as a
- 7 - caregiver, and that her legs were swollen and uncomfortable. At
the July 2, 1996 hearing, Brunei testified that the caregiving
involved visiting an elderly neighbor with a broken hip for two
or three hours a day, cleaning the house, watering plants, and
doing some grocery shopping. Brunei received less than $100.00
in total for the assistance she provided.
On November 20, 1995, Brunei visited the New London Hospital
emergency room complaining that, in the weeks prior to her visit,
the sole of her left foot had become tender to the touch and
painful to walk on. Dr. Finer examined Brunei and found that her
toes and left foot were puffy; that the sole of her left foot was
tender without crepitus, warmth, or redness; and that most of the
tenderness involved deep callouses or plantar warts. X-rays of
the foot showed degenerative change of the intraphalangeal joint
in the big toe and mild hallux valgus.7
On November 26, 1995, Brunei called Dr. Ness's office and
reported that her left foot was not improving. She felt as
though she were walking on "sharp stones." Dr. Ness examined her
7 Hallux valgus is angulation of the great toe away from the midline of the body, or toward the other toes. Dorland's Illustrated Medical Dictionary 730 (28th ed. 1994). the next day and found that she had multiple plantar warts. He
prescribed Compound W (an over-the-counter wart treatment) and
referred her to a podiatrist.
In a letter dated December 2 2 , 1995, Dr. Ness reported that Brunei's venous stasis of the lower extremities caused pain and
swelling in her legs if she was required to stand or sit for more
than a few hours. Dr. Ness stated in the letter that he was "not
convinced that [Brunei] is disabled for all forms of work, but
she has been actively looking for a job that she can tolerate"
and "has not been successful." Dr. Ness concluded by saying that
"[u]ntil someone can help her find gainful employment that does
not make her pain and swelling worse, I feel that she should be
considered totally disabled."
On January 9, 1996, Brunei filed her application for Social
Security disability insurance benefits. As noted above, Brunei
alleged an inability to work since October 1, 1995 due to venous
stasis. Brunei stated that her condition kept her from working
because sitting, standing, or walking for more than two or three
hours was very hard, she tired quickly, and had difficulty
concentrating. In her application, Brunei reported that she was
- 9 - required to elevate her legs above heart level to reduce swelling
and pain, and that her doctor had told her that she needed to
change her regular job. Brunei noted that she did most of the
cleaning and shopping at home because her husband is disabled,
but that she took frequent rests as she completed the tasks and
put her legs up after doing them. She indicated that on "good"
days she did her regular household chores, which included
cooking, cleaning, washing dishes, and doing laundry with rest
periods. But on "bad" days, Brunei did "next to nothing."
Brunei also reported that she cooked approximately 10 homemade
meals per week.
Brunei stated that, because of her husband's disability, she
shoveled the snow from their walkway during the winter for about
10 minutes at a time and then rested for 30 minutes. Brunei
traveled outside of her home "frequently," either driving or
walking. Generally, she went to her doctor, the bank, post
office, and stores, or to visit her parents, friends, and
neighbors. Brunei went grocery shopping once a week and to a
discount store about once every six weeks, needing help only if
something was heavy or down on the floor.
- 10 - Having undergone a hysterectomy, Brunei was on hormonal
replacement therapy, which consisted of taking Estrace and
Premarin8 on alternating days. Brunei also reported taking
Triam[terene]/HCTZ9 to cope with fluid retention and an over-the-
counter medication. Extra Strength Tylenol, for discomfort in her
legs and as a sleep aid.
Dr. Campbell, acting as a consultant for the SSA, reviewed
Brunei's medical records from New London Hospital and New London
Surgical Associates for the period through November 20, 1995.
Based upon these records. Dr. Campbell prepared an assessment of
Brunei's physical functional capacity.10 In his assessment. Dr.
Campbell indicated that Brunei's impairments caused exertional
limitations in that she could lift and carry only about 10 pounds
8 Estrace is indicated in treatment of vulval and vaginal atrophy associated with menopause. Premarin is used for treatment of moderate to severe vasomotor symptoms, and/or vulval atrophy associated with menopause. Physician's Desk Reference 3258, 3429-32 (55th ed. 2001) .
9 Triamterene/HCTZ is a potassium-sparing diuretic that blocks the reabsorbtion of sodium in the distal convoluted tubules. It is used for the treatment of edema and hypertension. Dorland's Illustrated Medical Dictionary 1739 (28th ed. 1994).
10 Dr. Campbell's report in the file is dated "1/30/94," but it is apparent that the report was completed on January 30, 1996.
- 11 - frequently and 20 pounds occasionally. Dr. Campbell stated that,
although Brunei could sit or stand for about six hours during an
eight-hour work day, it would be beneficial for her to take a
brief break every two to three hours to elevate her feet. Other
limitations identified in the report included climbing and
balancing only occasionally.
On April 5, 1996, Dr. Ness wrote a note in which he reported
that Brunei was "affected by pain and swelling whenever she is
required to sit or stand for longer periods of time than a few
hours." Dr. Ness noted that, other than her venous stasis,
Brunei "is physically unimpaired and could be expected to lift
and carry up to 20-25 pounds on an occasional basis." But "[t]he
problem is that walking, standing, and prolonged sitting cause
pain and swelling in her legs which can lead to a deterioration
in her underlying medical condition."
On April 12, 1996, Dr. Robert C. Rainie, an SSA consultant,
reviewed the medical evidence and completed an RFC assessment of
Brunei's ability to perform physical, work-related functions.
Dr. Rainie noted that Brunei's venous stasis was a congenital
problem, and that the medical record did not show that it had
resulted in inflammation of the skin, skin lesions, phlebitis, or
- 12 - lymphedema.11 Dr. Rainie opined that Brunei could lift and carry
about 10 pounds frequently and 20 pounds occasionally. Rainie
further suggested that Brunei could sit or stand for about six
hours during an eight-hour workday, but should wear support
stockings and elevate her legs when possible.
On June 19, 1996, Dr. Ness opined about Brunei's ability to
perform a variety of day-to-day activities on a sustained basis.
Dr. Ness stated that Brunei could sit for "2+" hours continuously
and six hours in an eight-hour workday. Dr. Ness also thought
that Brunei could stand for up to 20 minutes continuously and two
hours in an eight-hour day, and that she could walk 10 to 15
minutes continuously and one to two hours in an eight-hour day.
Dr. Ness believed that Brunei could not perform a job which
required her to sit or stand for at least six hours in an eight-
hour workday without alternating between sitting and standing as
necessary. Dr. Ness went on to suggest that Brunei would need to
take 15-minute breaks to "elevate her legs" between four or five
11 Lymphedema is chronic unilateral or bilateral edema of the extremities due to accumulation of interstitial fluid as a result of stasis of lymph, which is secondary to obstruction of lymph vessels or disorders of the lymph nodes. Dorland's Illustrated Medical Dictionary 968 (28th ed. 1994) .
- 13 - times on a "good" day, and eight or more times on a "bad" day,
but he did not elaborate on the degree of elevation Brunei
required in order to obtain relief. Dr. Ness indicated that his
recommendations were "somewhat arbitrary," but that a program of
this type seemed "reasonable" to him on the whole.
On May 5, 1997, Brunei saw Dr. Ness for a routine physical
and complained of a slight backache after recent yard work. She
continued to be bothered by left foot pain and edema. On May 23,
1997, Brunei complained of back pain and increased swelling in
her left leg after driving in a small vehicle. Her cholesterol
level was 350. Dr. Ness prescribed medication for Brunei's
cholesterol, obesity, and back pain. On June 26, 1997, Brunei
reported that she had not purchased her cholesterol medication
due to cost; that she had stopped taking her obesity medication
because of heart palpitations; and that her back spasms were not
painful enough to require her to take the prescribed medication.
Brunei requested a referral to a specialist "to support her
disability" and phlebitis.
On July 28, 1997, Brunei told Dr. Ness that she had stopped
taking her cholesterol medication after one week because of
- 14 - flushing. Dr. Ness noted that swelling continued in both of
Brunei's ankles, more so on the left. Dr. Ness also noted that a
venous doppler ultrasound was normal and that another test, a
bilateral photoplethysmography,12 showed no evidence of venous
valvular insufficiency in the right foot. Dr. Ness further noted
that the test was unreliable on the left foot due to Brunei's
inability to flex that foot.
On August 18, 1997, Brunei saw Dr. Jack L. Cronenwett, a
vascular surgeon, on referral from Dr. Ness. Dr. Cronenwett
noted that Brunei had non-pitting milky edema on her left leg
from the knee to the ankle with minimal involvement of the thigh
or foot, and very mild edema on the right leg. Dr. Cronenwett
reported that Brunei's recent tests did not show venous reflux or
venous valvular incompetency in either leg.
Cronenwett diagnosed relatively classic primary lymphedema
in the left leg, and perhaps mild lymphedema in the right. Dr.
Cronenwett opined that intermittent pneumatic compression using a
12 Plethysmography is a recording of the changes in the size of a part as modified by circulation of the blood in it. Dorland's Illustrated Medical Dictionary 1306 (28th ed. 1994).
- 15 - Lympha press13 would be beneficial, and that Brunei might be more
tolerant of wearing support stockings during the day if she used
the Lympha press at night and "intermittently during the day."
Dr. Cronenwett stated that Brunei's lymphedema had "increased in
severity and no longer responds to more conservative treatment
such as elevation, diuretic therapy, or custom support
stockings." He stated that she was "at the point where she
[could not] work, and [would] become disabled unless more
effective treatment" was provided to her. In a letter to Keene
Medical Products, Cronenwett stated that intermittent use of the
Lympha press "will relieve her symptoms sufficiently that she
will be able to continue to work," and that "[i]ntermitted
pneumatic compression is a recognized effective treatment for
this degree of lymphedema and I believe that it will prevent
future medical complications."
2. Brunei's Testimony
At both hearings, Brunei's attorney questioned her about the
13 At the July 22, 1999 hearing, Brunei described the Lympha press as a large boot attached to a computerized pump. The boot is put on the leg to push fluid from the leg back into the rest of the body. Tr. at 179.
- 16 - degree of elevation she required in order to obtain relief, and
how her daily activities were impacted by pain and swelling. At
the July 2, 1996 hearing, Brunei testified that she was required
to "get [her] leg up higher than [her] heart" to alleviate pain
and swelling. Brunei further testified that elevating her leg on
a chair or box is ineffective and "sometimes it hurts more."
Brunei stated that her leg would swell and become painful if she
was required to sit for longer than 30 minutes. Brunei explained
that she was able to do housework and laundry, but needed to rest
if she was on her feet for as little as an hour. She stated that
it was difficult to wear shoes and clothes when her leg was
swollen, and that on some days she was barely able to get out of
b ed.
At the July 22, 1999 hearing, Brunei testified about how the
use of the pneumatic compression device affected her daily
activities. Brunei stated that the "medical supply people"
advised her to use the device for two hours at a time to get the
maximum benefit. Brunei testified that she used the device
several times a day, and that doing so required her to lie down
on an unscheduled basis with no clothing on her left leg. When
- 17 - cross-examined by the ALJ, Brunei stated that she used the device
for two-and-a-half to four hours in an eight-hour time period.
3. Vocational Expert Testimony
VE Catherine Chandick testified at Brunei's second hearing
before ALJ Harap on July 22, 1999. Ms. Chandick observed that
Brunei's past work as an electronics assembler was semi-skilled,
sedentary to medium-level work, and that her work as a school
cafeteria worker was unskilled, light to medium-level work.
Using a hypothetical scenario, the ALJ asked Ms. Chandick whether
these jobs could be performed by an individual under 50 with a
high school education and Brunei's past work experience if that
individual was limited to sedentary work that did not require
more than occasional climbing or balancing and allowed for a
sit/stand option. Ms. Chandick replied that such a person could
not work in a cafeteria, but could perform the electronics
assembly job if it were sedentary. However, Ms. Chandick
qualified this testimony by observing that such a person could
not do the electronics assembly job if it was performed in the
way Ms. Brunei described it, at the light to medium-level.
- 18 - Ms. Chandick further testified that there were jobs that
could be performed by a person of Brunei's age, education, and
work experience who was limited to sedentary work that did not
require more than occasional climbing or balancing and permitted
a sit/stand option. Such a person could work in small-product
assembly jobs, production-inspection jobs, sedentary security-
guard positions, sedentary cashier positions, and information
clerk positions in a mall. Ms. Chandick noted that there were
more than 863,500 of these jobs nationally.
Ms. Chandick further opined that, even if one needed to keep
her feet "elevated," she could still perform the sedentary
security-guard, cashier, and information clerk positions, and
that there are more than 700,000 of these jobs nationally. On
cross-examination, Ms. Chandick conceded that there were no jobs
that a person could perform if she needed to lie down with her
feet elevated above her heart for two-and-a-half to four hours in
an eight-hour time period. Nor were there jobs that permitted a
person to take 15-minute breaks six to eight times a day. Ms.
Chandick concluded by agreeing with Brunei's counsel that there
were no jobs that a person of Brunei's age, background, and
- 19 - expertise could perform if she needed to elevate her feet above
heart level while working.
4. The ALJ's Ruling
The ALJ applied the five-step sequential evaluation process
under which disability applications are reviewed. See 20 C.F.R. §
404.1520. The ALJ concluded that Brunei had carried her burden
at each of the first four steps in the process, but that Brunei
was "not disabled" because the Commissioner had established that,
from October 1, 1995 to August 31, 1997, there were jobs in the
national economy that Brunei could perform. See 20 C.F.R. §
404.1520(f) (summarizing the showing the Commissioner must make
at step five). Specifically, the ALJ found that, although Brunei
had severe impairments, including chronic venous stasis,
lymphedema, and obesity that precluded a return to her former
employment, she retained the RFC during the relevant period "for
the full range of sedentary work with only occasional climbing
and balancing, the option to alternate positions between sitting
and standing, and the option to have her lower extremities
elevated straight out while seated as needed or desired."
Moreover, while conceding that Brunei's impairments "can be
- 20 - reasonably expected to result in pain and swelling," the ALJ,
without meaningful elaboration, stated that Brunei's allegations
of pain and swelling were "not entirely credible" and went on to
apply Rules 201.21 and 201.22 of the Medical-Vocational
Guidelines ("the Grid"). The ALJ found that, because Brunei had
an exertional capacity for sedentary work, and given Brunei's
age, education, and work experience, Brunei was "not disabled
between October 1, 1995 and August 31, 1997." 20 C.F.R. Pt. 404,
Subpt. P, A p p . 2 at 202.21 (2001).
In reaching his conclusions, the ALJ rejected the opinion of
Brunei's treating physician. Dr. Ness, that, as of June 19, 1996,
Brunei needed to take 15-minute breaks to elevate her legs "8+"
times on a bad day and "4-5X" on a good day. He did so because
he regarded this opinion as "contradicted" by Dr. Cronenwett's
conclusion that conservative treatments such as elevation were no
longer working. Nevertheless, reasoning in the alternative, the
ALJ further concluded that, even if Dr. Ness was correct about
the required frequency of elevation, Brunei could elevate her
legs "straight out while seated" and thus alleviate her symptoms
while continuing to work.
- 21 - II. DISCUSSION
A. Standard of Review
After a final determination by the Commissioner denying a
claimant's application for benefits, and upon timely request by
the claimant, I am authorized to: (1) review the pleadings
submitted by the parties and the transcript of the administrative
record; and (2) enter a judgment affirming, modifying, or
reversing the ALJ's decision. See 42 U.S.C. § 405(g). My review
is limited in scope, however, because the ALJ's factual findings
are conclusive if supported by "substantial evidence." See id.;
Irlanda Ortiz v. Sec'v of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (per curiam). While the ALJ's findings of
fact "are not conclusive when derived by ignoring evidence,
misapplying the law, or judging matters entrusted to the
experts," Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per
curiam), I must defer when the ALJ has reasonably settled a
credibility issue, drawn an inference from the record evidence,
and resolved a conflict in the evidence, see Irlanda Ortiz, 955
F.2d at 769. In the end, I must "uphold the [ALJ's] findings
. . . if a reasonable mind, reviewing the evidence in the record
- 22 - as a whole, could accept it as adequate to support [the ALJ's]
conclusion," id. (quoting Rodriquez v. Sec'v of Health & Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981)) (internal quotation
marks omitted), even where the record can be construed to support
another conclusion, see Rodriquez Pagan v. Sec'v of Health &
Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) .
B. The Social Security Act
1. General Principles
In relevant part, the Social Security Act (the "Act")
defines "disability" as the "inability 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 which has lasted for a continuous period of
not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (1994 & Supp.
V 1999). As noted above, the Act directs the ALJ to apply a
five-step sequential analysis to determine whether a claimant is
disabled. See 20 C.F.R. § 404.1520. At step four of the
process, the ALJ must determine whether the claimant's impairment
prevents her from performing her past work. See 20 C.F.R. §
404.1520(e). To make this determination, the ALJ must assess
- 23 - both the claimant's RFC, that is, what the claimant can do
despite her impairments, and the demands of the claimant's prior
employment. See id.; Santiago v. Sec'v of Health & Human Servs.,
944 F.2d 1, 5 (1st Cir. 1991) (per curiam). The claimant bears
the burden of showing that she does not have the RFC to perform
her past relevant work. See Santiago, 944 F.2d at 5.
If the claimant makes such a showing, the burden shifts to
the Commissioner to show "that there are jobs in the national
economy that [the] claimant can perform." Heggartv v. Sullivan,
947 F.2d 990, 995 (1st Cir. 1991) (per curiam); see also Keating
v. Sec'v of Health & Human Servs., 848 F.2d 271, 276 (1st Cir.
1988) (per curiam). The Commissioner must show that the
claimant's limitations do not prevent her from engaging in
substantial, gainful work, but need not show that the claimant
could actually find a job. See Keating, 848 F.2d at 276 ("The
standard is not employability, but capacity to do the job.").
Although an ALJ should ordinarily be entitled to rely on
claimant's counsel to structure and present the claimant's case
in a way that adequately explores the claims, "the ALJ is
responsible in every case to ensure that an adequate record is
- 24 - developed during the disability hearing consistent with the
issues raised." Hawkins v. Chater, 113 F.3d 1162, 1164, 1167
(10th Cir. 1997). This duty to develop the record is heightened
where the claimant is not represented by counsel, but applies in
all cases. See 20 C.F.R. § 404.1512(d) (2001) . Thus, an ALJ
cannot leave the record undeveloped where a "claim itself seems
on its face to be substantial, where there are gaps in the
evidence necessary to a reasoned evaluation of the claim, and
where it is within the power of the administrative law judge,
without undue effort, to see that the gaps are somewhat filled
. . . ." Heggartv, 947 F.2d at 997 (citation and internal
quotation marks omitted); see also Thompson v. Sullivan, 987 F.2d
1482, 1492, (10th Cir. 1993) (citation omitted). The duty has
been described as one of inquiry, requiring the decision maker
"to inform himself about facts relevant to his decision and to
hear the claimant's own version of those facts." Heckler v.
Campbell, 461 U.S. 458, 471 n.l (1983) (Brennan, J. concurring).
In deciding whether an ALJ has fully developed the record,
the most important inquiry is not the length or brevity of the
hearing, but "whether [sufficient questions were asked] to
- 25 - ascertain (1) the nature of the claimant's alleged impairments,
(2) what on-going treatment and medication the claimant is
receiving, and (3) the impact of the alleged impairment on a
claimant's daily routine and activities." Thompson, 987 F.2d at
1492 (citation and internal quotation marks omitted).
Importantly, "the absence of evidence is not evidence" sufficient
to support a step-five finding that a claimant is not disabled.
See id. at 1491.
2. Determining a Claimant's RFC
The ALJ is responsible for determining a claimant's RFC.
See 20 C.F.R. § 404.1546 (2001). In doing so, the ALJ must
perform a "function-by-function" assessment of the claimant's
ability to engage in work-related activities. See SSR 96-8p,
1996 WL 374184, at *3 (1996); see also Ferraris v. Heckler, 728
F.2d 582, 586-87 (2d Cir. 1984) (holding that the ALJ's findings
on a claimant's RFC were insufficient where the ALJ determined
the claimant's RFC in a conclusory manner without a function-by-
function assessment). In making his RFC determination, the ALJ
must "consider objective medical facts, diagnoses and medical
opinions based on such facts, and subjective evidence of pain or
- 26 - disability testified to by the claimant or others." Ferraris,
728 F.2d at 585; see also 20 C.F.R. § 404.1545(a) (2001) (stating
that the RFC must be based on all relevant evidence). The ALJ is
not free to simply ignore relevant evidence in the record,
especially when that evidence supports a claimant's cause. See
Nquven, 172 F.3d at 35. Moreover, the ALJ must specify the
evidentiary basis for his RFC determination. See White v . Sec'v
of Health & Human Servs., 910 F.2d 64, 65 (2d Cir. 1990) (noting
that the failure to specify a basis for the RFC determination is
a sufficient reason to vacate a decision of the Commissioner);
SSR 96-8p, 1996 WL 374184, at *7.
C. Brunei's Arguments
Brunei contends that she was disabled during the relevant
time period because there were no jobs in the national economy
that would accommodate her need to take frequent breaks during
the workday to elevate her legs above her heart. The ALJ
rejected Brunei's argument for two reasons. First, he concluded
that Brunei did not need to elevate her legs at all because
elevation would not benefit her medical condition. Alterna
tively, he determined that if Brunei needed to elevate her legs
- 27 - during the workday, she could do so by extending her legs
straight out from a seated position. He then reasoned that since
jobs existed in the national economy that would accommodate this
non-exertional limitation, Brunei was not disabled. Neither
argument is supported by substantial evidence.
First, the record does not support the ALJ's decision to
reject Dr. Ness's opinion that Brunei needed to take frequent
breaks during the workday to elevate her legs. The only evidence
the ALJ cited to support this conclusion was Dr. Cronenwett's
opinion that Brunei's condition had deteriorated to the point
that she would not derive any benefit from elevating her legs.
The ALJ's reasoning is faulty, however, because he overlooked Dr.
Cronenwett's related opinion that Brunei's medical condition had
become so serious that she needed to use a Lympha press
intermittently during the day. These two opinions are
inextricably intertwined. The ALJ cannot accept one without also
either accepting the other or offering a principled reason for
doing otherwise. His failure to do so is determinitive because
the record does not contain any evidence which would support a
conclusion that jobs existed in the national economy that would
- 28 - accommodate Brunei's need to use a Lympha press during the
workday. In short, the ALJ cannot determine that Brunei is able
to work based on a medical opinion that her condition had
deteriorated to the point that she could no longer benefit from
elevating her legs without also considering whether the
limitations on her ability to work resulting from the
determination of her condition rendered her disabled.
The ALJ also erred in his alternative ruling that even if
Brunei needed to elevate her legs, she only needed to be able to
elevate her legs straight out from a seated position. Brunei
presented uncontradicted testimony that the only way to relieve
the pain and swelling in her legs was to lie down with her legs
elevated above her heart. See Tr. at 47, 50, 178. Although
medical professionals, including Drs. Campbell, Rainie, and Ness,
stated that Brunei needed to elevate her legs, they did not make
clear whether Brunei was required to elevate her legs above her
heart. Tr. at 61, 75, 137. At the very least, the ALJ was
responsible for developing the record during the disability
hearing with respect to this gap in the evidence. See Hawkins,
113 F.3d at 1167; see also Heqqartv, 947 F.2d at 997. Instead,
- 29 - the ALJ listened to Brunei's uncontradicted testimony that she
was required to elevate her legs above her heart to alleviate the
pain and swelling, read the reports of numerous doctors who found
that Brunei was required to elevate her legs, and, without the
benefit of any medical testing, then interpreted the medical data
himself to conclude that elevation of Brunei's legs straight out
while seated would sufficiently alleviate her edema. This was
beyond the ALJ's statutory and regulatory warrant.
IV. CONCLUSION
When a court finds that the administrative record is
incomplete, a court should generally vacate the Commissioner's
decision and remand the matter for further proceedings consistent
with the reasoning in its opinion. See 42 U.S.C. § 405(g);
Seavev v. Barnhart, ___ F.3d , 2001 WL 1631477, at * 6 (1st
Cir. Dec. 27, 2001). But there are "unusual case[s] in which the
underlying facts and law are such that the agency has no
discretion to act in any manner other than to award . . .
benefits." Id. In my opinion, it is a close question whether
this is such a case. After all, the October 1, 1995 - August 31,
- 30 - 1997 period for which disability benefits are sought is becoming
ever more remote; unless additional medical records are located,
the body of medical evidence based on examinations of Brunei
conducted during or near this period is obviously closed; and the
extant medical and testimonial evidence strongly suggest, if they
do not establish, that Brunei was unable to work during this
period.
Nonetheless, recognizing the limits of my competence and
authority in this area, see generally id., I shall err on the
side of caution and decline to hold, as a matter of law, that the
Commissioner will be unable to generate substantial evidence that
Brunei was capable of working during the relevant time frame.
Accordingly, I vacate the judgment denying Brunei benefits and
remand this matter to the Commissioner with instructions that she
either award Brunei benefits or produce evidence that Brunei was
capable of work during the period in question. In so doing, I
urge the Commissioner to give this matter her prompt attention,
given how long it has been pending.
For the reasons stated, I deny the Commissioner's Motion for
Order Affirming the Decision of the Commissioner (document no. 7)
- 31 - and grant, to the extent just described, Brunei's Motion for
Order Reversing the Decision of the Commissioner (document no.
6) . The Clerk shall enter judgment accordingly.
SO ORDERED.
Paul Barbadoro Chief Judge
January 9, 2002
cc: Peter Marsh, Esq. David L. Broderick, Esq.
- 32 -