Carey v . HHS CV-92-605-B 03/02/94

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Ruth N . Carey

v. Civil N o . 92-605-B

Secretary of Health and Human Services

O R D E R

Ruth Carey, ("claimant") brings this action pursuant to

(g) (West Supp. 1993), challenging a final

determination by the Secretary of Health and Human Services

("Secretary") denying her application for Social Security

disability benefits. Presently before the court are Plaintiff's Motion to Remand, and Defendant's Motion for Order Affirming the

Decision of the Secretary.

I. STANDARD OF REVIEW

Pursuant to

(g), 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."

In reviewing a Social Security decision, the factual findings of the Secretary "shall be conclusive if supported by 'substantial

evidence.'" Irlanda Ortiz v . Secretary of Health & Human Serv.,

(1st Cir. 1991) (quoting

(g)). 1

Thus the court must "'uphold the Secretary's findings . . . if a

reasonable mind, reviewing the evidence in the record as a whole,

could accept it as adequate to support [the Secretary's]

conclusion.'"

(quoting Rodriguez v . Secretary of Health &

Human Serv.,

1 8 , 222 (1st Cir. 1981)). Moreover, it is

the Secretary's responsibility to "determine issues of

credibility and to draw inferences from the record evidence," and

"the resolution of conflicts in the evidence is for the

Secretary, not the courts." Irlanda Ortiz,

(citing Rodriguez, 647 F.2d at 2 2 2 ) .

II. BACKGROUND

Claimant was born on August 2 9 , 1931. She has a high school

education, and training as a dental assistant. Her job history

1 The Supreme Court has defined 'substantial evidence' as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v . Perales, 91 S . C t . 1420, 1427 (1971). "This 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, 86 S . C t . 1018, 1026 (1966).

2 includes positions as a baby sitter, teacher's aid, retail sales/

receptionist, and dental assistant. Claimant asks this court to

review the findings and determinations of the Secretary and

either remand for further hearing or rule that she is entitled to

benefits from "August 1 0 , 1989 up through and including the

present date." Complaint, p . 6.

A. Medical History

Claimant's medical records indicate that she has a history

of back problems. Her doctors have prescribed numerous

prescription drugs for her pain including Chymopapain, Maolate,

Dalmane, Halcyon, Tolectin, Meclomen, Naprosyn, Quinamm, Parafon-

Forte, Wygesic, Codine, Flexoril, and Soma. In June 1988,

claimant's problems were aggravated by an auto accident in which

she injured her lower back and neck. X-rays of her spine taken

after the accident showed some degenerative changes at L 3-4 and

her physician diagnosed a cervical lumber strain.

In November, claimant complained to D r . James M . Shea of

pain radiating down her left leg. He examined her and found that

she had full range of motion of the spine, and that she flexed to

90 degrees with hesitation. His neurological examination was

unremarkable. D r . Shea opined that claimant needed to leave her

job, which involved lifting a disabled child, and obtain another

3 job which required less lifting.

Claimant returned to D r . Shea in April, 1989, complaining of

backaches and pain radiating down her right buttock. She again

showed full range of motion and flexed to 90 degrees with

hesitation. D r . Shea found that claimant was experiencing

moderate discomfort with percussion over her L-4 and L-5

vertebrae. Moreover, his neurological examination of her lower

extremities was unremarkable. This same diagnosis continued

through visits in June 1989, September 1989, December, 1989,

February, 1990, March 1990, May 1990, and September 1990. During

this time, claimant's physicians discussed the possibility of

surgery and/or a myelogram, but left the decision about whether

or not to proceed to her discretion. Claimant told her doctor

that she was afraid to proceed with surgery.

In June 1991, claimant, complaining of increased back pain radiating down to her legs, was referred to D r . Ronald J. Faille.

His examination revealed that her range of motion was limited in

all directions, and that her back was tender over the iliac crest

bilaterally. D r . Faille found no tenderness in claimant's

midline, and neurological testing revealed normal strength,

intact sensation to pin prick, and all reflexes to be brisk. He

determined that there was no neurological evidence of nerve

4 compression at that time, but he recommended an MRI to better

diagnose the situation.

On June 1 8 , 1991, claimant underwent MRI testing. The

results showed her vertebral bodies to be normal in height and

signal intensity, however there was decreased signal seen in the

lower three intervertebral disc spaces consistent with disc

degeneration. The test showed evidence of mild spinal stenosis

in the mid-lumbar region, and minimal circumferential bulging at

L-23, L-34, and L-45.

Claimant returned to D r . Shea in August 1991, complaining

that she continued to experience back pain down her right leg to

her knee. Once again an examination revealed that claimant had a

full range of motion, with tenderness over L 3 , L4 and L 5 . D r .

Shea's neurological examination of claimant's lower extremities

was also unremarkable. D r . Shea also examined claimant in September when she asserted that she felt the same way she had in

August, except she complained that her right leg would sometimes

become weak. D r . Shea's physical examination revealed no changes

in claimant's condition, and he prescribed Robaxin. At this time

claimant expressed an intention to undergo a myelogram.

When D r . Shea reexamined claimant in November, 1991, her

condition remained unchanged, however she stated that there were

5 days that her back pain was less severe than others, and she

complained of only intermittent leg pain. D r . Shea's physical

examination revealed the same results with full range of motion

of the spine, no spasm, and his neurological examination of

claimant's lower extremities was unremarkable. Claimant stated

that she preferred to avoid having a myelogram at that time.

Claimant returned to D r . Faille in June, 1992, who made the

same diagnosis, and recommended a myelogram to determine if

claimant had significant spinal stenosis. When the myelogram was

performed, it showed some stenosis, measuring less than 10 mm in

its anteroposterior height. There was also some bulging

suggested at L-2 and L-3, and the 5th lumbar vertebra was totally

bacralized. Claimant's final diagnosis was total sacralization

of the 5th lumbar vertebra and spinal stenosis at L-3 and L-4.

B. Procedural History

Claimant filed an application for disability insurance

benefits on or about October 1 2 , 1990. The claim was denied on

November 1 3 , 1990. Her request for reconsideration was likewise

denied on April 1 8 , 1991. Claimant then requested, and received,

a hearing before an Administrative Law Judge (ALJ) on October 3 ,

1991. The ALJ found that claimant was not entitled to disability

6 benefits, and that: 1 ) The claimant met the disability insured status requirements of the Act on August 1 0 , 1989, the date the claimant stated she became unable to work, and continued to meet them through September 3 0 , 1990.

2 ) The claimant did not engage in substantial gainful activity between August 2 0 , 1989 the alleged onset of disability and September 3 0 , 1990 the date that the claimant's insured status expired but has since returned to work as a babysitter beginning in September, 1991.

3 ) The medical evidence establishes that the claimant has severe degenerative disk changes with bulging and mild spinal stenosis, but that she does not have an impairment or combination of impairments listed i n , or medically equal to one listed in Appendix 1 , Subpart P, Regulations N o . 4 .

4 ) The claimant's hearing testimony was not entirely credible with respect to her allegations of pain because, as analyzed under the criteria of Social Security Ruling 88-13 and the Avery court order, the allegations did not consistently support a finding of total disability. Rather they supported a determination that claimant had sufficient residual functional capacity for work activity in the sedentary range.

5 ) The claimant has the residual functional capacity to perform work related activities except for work involving very heavy, heavy, medium, and light work and work involving situations where the claimant would not have an option sit and stand at will every 20 minutes (20 CFR 404. 1545).

6 ) The claimant's past relevant work as a receptionist or dental assistant did not require the performance of work related activities precluded by the above limitation(s) (20 CFR 404. 1565).

7 7 ) The claimant's impairment does not prevent the claimant from performing her past relevant work. 8 ) The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision (20 CFR 404.1520(e)). A request for review made to the Appeals Council was denied

on September 2 5 , 1992. In its denial, the Appeals Council

specifically addressed claimant's new medical records which were

not presented to the ALJ. This new evidence consisted of D r .

Faille's report and the results of claimant's myelogram. The

Appeals Council concluded that these new reports did not indicate

any change in claimant's condition from her previous

examinations. It concluded that a consideration of all of the

evidence in the record did not warrant a change in the findings

set forth in the ALJ's decision. Claimant filed the instant appeal on or about November 3 0 , 1992.

III. DISCUSSION

A. Issue

Claimant asserts that her case should be remanded because

the Secretary's determination that she was capable of performing

her past relevant work was not supported by substantial evidence.

8 B. Analysis

(d)(1)(A) defines disability as an

"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

lasted or can be expected to last for a continuous period of not

less than 12 months. . . ." The ALJ used the five step

evaluation process outlined in

to determine

whether the claimant is disabled.2 Generally, a claimant has the

burden of proving that he or she is disabled as defined by the

Social Security Act. Deblois v . Secretary of Health and Human

Services,

6 , 79 (1st Cir. 1982). However, the First Circuit has repeatedly recognized that the non-adversarial nature

of disability proceedings imposes a certain duty on the Secretary

to develop the evidence. Currier v . Secretary of Health

2 The steps in the process involve a determination of whether: 1 ) the claimant is engaging in substantial gainful activity, 2 ) claimant has a severe impairment, 3 ) the impairment meets or equals a listed impairment, 4 ) the impairment prevents claimant from doing past relevant work, and 5 ) the impairment prevents claimant from doing any other work. See generally

.

9 Education and Welfare,

9 4 , 598 (1st Cir. 1980); Miranda

v . Secretary of Health Education and Welfare,

(1st Cir. 1975).

Step 4 of the analysis requires the ALJ to determine if an

impairment prevents claimant from performing her past relevant

work. If claimant is still able to engage in work she has

performed in the past, then she is not disabled within the

meaning of the Social Security Act. Goodermote v . Secretary of

Health and Human Services,

, 7 (1st Cir. 1982);

(e).

The Step 4 burden is on the claimant, and to meet it she is

required to make "some reasonable threshold showing that she

cannot return to her former employment because of her alleged

disability." Santiago v . Secretary of Health and Human Services,

, 5 (1st Cir. 1991) (citations omitted). Claimant must produce evidence of the physical and mental demands of her prior

work and describe her limitations, indicating how her current

functional capacity precludes her from performing her prior job.

Although the burden is on claimant to show that she is

incapable of returning to her past relevant work, the Secretary

may not "simply rely upon 'the failure of the claimant to

demonstrate [that] the physical and mental demands of her past

10 relevant work' can no longer be met, but,'once alerted by the

record to the presence of an issue,' must develop the record

further." Santiago,

-6 (quoting May v . Bowen,

8 8 , 394) (D.Me. 1987) (emphasis in original). 1. Claimant's Past Work as a Dental Assistant

Claimant testified that she had two previous jobs as a

dental assistant. The first involved very close assistance to

the dentist, which required her to sit at his side for prolonged

periods. Her second position enabled her to stand, which

claimant testified she found easier to tolerate. She testified

that she left both positions, each of which lasted for

approximately eight months, because of her back pain. Claimant

further testified that, at the hearing, she was experiencing

increased pain both in her knees and back due to a car accident that she was involved in after she left her second position.

Claimant testified that her functional limitations included

restrictions on her ability to both push and pull. Further, she

testified that she experienced pain when bending or lifting. She

testified that she did laundry and was able to go grocery

shopping. She visited her mother, and occasionally went to

restaurants. In addition, she stated that she was able to lift a

gallon of milk, but not a 20 pound baby without discomfort. She

11 testified that she was able to bend over and touch her knees, but

it bothered her, and she could climb stairs but they bothered her

as well. She testified that she could manipulate her fingers

well, but her right foot sometimes bothered her when driving.

Claimant also testified that she was able to sit for 20 minutes

and then her back "start[ed] pulling (sic) [on] me". She gave

the same 20 minute limitation for standing.

In determining whether the plaintiff was able to perform her

past relevant work, the ALJ used factors outlined in Social

Security Ruling 88-13 and Avery v . Secretary of Health and Human

Services,

(1st Cir. 1986). The ALJ reports that she

considered factors such a s : the claimant's prior work record and information and observations of treating and examining physicians and third parties regarding such matters a s : the nature, location, onset, frequency, radiation, and intensity of any pain, precipitating and aggravating factors; type, dosage, effectiveness and adverse side-effects of any pain medication; treatment, other than medication for relief of pain; functional restrictions; and the claimant's daily activities.

In light of these factors, the ALJ determined that the

claimant was capable of sedentary work as defined by 20 C.F.R. 404.1567(a). 3 Claimant apparently does not dispute this finding.

3 Sedentary work is defined in the Social Security regulations as that which involves "lifting no more than 10

12 Claimant does, however, dispute the ALJ's finding that with this

capacity, she would be able to return to her past work as a

receptionist or a dental assistant.

Claimant's testimony about her two previous positions as a

dental assistant was concise and she plainly testified that she

believed she would not be able to return to either position. She

testified concerning the physical demands of her prior work and

how she believed that her current functional capacity prevented

her from performing her prior jobs.

The ALJ found claimant capable of sedentary work so long as

she were allowed to change position between sitting and standing

every 20 minutes. Uncontroverted testimony indicates that this

restriction could not be accommodated at claimant's first dental

assistant position. However, the record is silent as to whether

it could be accommodated in her second position. A vocational expert ("VE") testified that the job of dental

assistant is normally characterized as exertionally light with a

skill level of 6. In response to the ALJ's first hypothetical

question assuming that claimant was unable to sit or stand for

pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. 404.1567(a).

13 more than 20 minutes at a time, and that she was taking

medication that would leave her spacey or groggy, the VE

testified that the only previous job that claimant would be able

to return to would be her "receptionist" position. The VE

further testified that if claimant were capable of light work

without sitting or standing limitations, she would be able to

return to her past work as dental assistant, however she would

not be able to return to that position if the sitting and

standing restrictions were applied. The VE also testified that

if claimant were classified as sedentary, her skills as a dental

assistant were not transferable.

The Secretary does not dispute the ALJ's finding that

claimant has only the residual functional capacity for sedentary

work. Accordingly, the ALJ cannot rely on testimony given by the

VE to show that claimant can return to her past relevant work as a dental assistant because the VE testified that a dental

assistant's job required the ability to do light duty work.

Further, because claimant testified that she could not return to

either of the dental assistant jobs she had previously held, I

find that the record does not contain substantial evidence to

support the Secretary's conclusion that claimant would be able to

return to her past relevant work as a dental assistant.

14 15 2. Claimant's Past Relevant Work as Receptionist/ Cashier The Secretary also contends that claimant would be able to

return to a position as a receptionist or appointment clerk, a

skill which she learned at her job at the Genest Bakery. Claimant testified that her job at the bakery entailed answering

the phone, setting up appointments, and working at the retail

store which involved standing at the cash register and lifting

racks of bread that weighed over 20 pounds. Because of the

diverse duties that claimant performed at this position, the VE

testified that she could not assign it a specific listing from

the Dictionary of Occupations. Instead, the VE only made the

assessment that given the restrictions imposed by a sedentary

exertional level and sitting and standing limitations of 20 minutes, claimant would be able to work as an appointment clerk.

The VE specifically testified that she was not characterizing

claimant's job at the bakery as an appointment clerk's job

because the VE determined that claimant's duties also involved

medium work at a semi-skilled level. Nevertheless, the ALJ

disregarded this testimony and characterized claimant's work at

the bakery as an appointment clerk position in rendering her

decision. In doing so she bifurcated claimant's position at the

16 Genest bakery, and likened a portion of claimant's duties at the

bakery to the VE's testimony concerning the appointment clerk

position. Claimant contends that this bifurcation was improper.

I agree.

In order to be eligible for disability benefits, it is not

sufficient that a claimant show merely an inability to return to

a particular job. Rather, the claimant "must establish an

inability to return to her former type of work." Gray v .

Heckler,

(1st Cir. 1985). The instant case

poses the problem of evaluating claimant's past relevant work

when her previous position entails two different types of work

with two different exertional levels.

The court in Taylor v . Bowen,

(D.Me. 1987),

faced a very similar issue when the ALJ found the claimant

capable of returning to her previous relevant work based on half of her duties there. The Taylor claimant's past relevant work

was a combination receptionist/ general office position which had

an exertional level of sedentary for the receptionist position

and light work with significant reaching, pushing and pulling for

general office work. Finding claimant capable of sedentary work,

the ALJ bifurcated claimant's previous position and denied

benefits at Step 4 based on the fact that she could "return" to

17 being a receptionist. The Taylor court vacated the decision of

the Secretary and remanded the case for further consideration,

requiring the Secretary to perform a Step 5 analysis.

As the Taylor court noted, the Ninth Circuit Court of

Appeals had reached the same conclusion on similar facts in

Valencia v . Heckler,

(1985). The Valencia claimant

had worked as an agricultural laborer, whose duties included

harvesting tomatoes and cherries, and sorting tomatoes at a

machine.

. The ALJ opined that claimant could

return to this job if she only sorted tomatoes. The Ninth

Circuit disagreed, reasoning that: Every occupation consists of a myriad of tasks, each involving different degrees of physical exertion. To classify an applicant's "past relevant work" according to the least demanding function of the claimant's past occupations is contrary to the letter and spirit of the Social Security Act.

Valencia, 751 at 1086; see also Rogers v . Schweiker,

(N.D. Ala 1983) ("[t]wo positions which share the same

title and have certain activities in common are not the same

'kind of work' where one requires a different functional capacity

from the other.").

Applying this reasoning to the instant case, the ALJ

employed an erroneous interpretation of prior work in

18 characterizing her prior job as a receptionist's position. Had

the ALJ correctly characterized claimant's past job at the

bakery, she would have been required to find that claimant was

unable to return to her past relevant work. Accordingly,

claimant's case must be remanded so that the ALJ can conduct a

Step 5 analysis.

III. CONCLUSION

The Secretary's decision is vacated and this matter is

remanded for a new hearing consistent with this order.

SO ORDERED.

Paul Barbadoro United States District Judge March 2 , 1994

cc: Raymond J. Kelly, Esq. Gretchen L . Witt, Esq.

19