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,

(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

, 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

(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."

(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,

(1971)

(guoting Consolidated Edison Co. v. NLRB,

(1938)); Rodriquez v. Secretary,

(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,

(1966) (citing NLRB v. Nevada Consolidated Copper

Corp.,

(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,

(1st Cir. 1987), cert, denied,

(1988) (citing

Lizotte v. Secretary,

(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,

(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.

(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."

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."

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.

(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.

(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 . . . ."

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

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,

(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

.

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

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

(d).

In remanding this particular case to the ALJ for further

review, the court notes that the reguirements of

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,

(1st Cir. 1977) (citing, inter alia,

(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

(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

17