Courchesne v. SSA CV-95-427-B 06/13/96

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Angela Courchesne

v. Civil No. 95-427-B

Shirley S. Chater, Commissioner of Social Security

O R D E R

Angela Courchesne appeals the Commissioner's decision to

deny her application for disability insurance benefits at Step

Four of the sequential analysis. The Administrative Law Judge

("ALJ") determined that Courchesne could perform her previous

work as an office cleaner or as a school crossing guard and

therefore that she was not disabled. Courchesne argues that the

record lacks substantial evidence that she could perform either

job and that her work as a school crossing guard was not relevant

at Step Four as it did not constitute substantial gainful

activity. For the reasons that follow, I reverse the

Commissioner's decision and remand for further proceedings.

I. BACKGROUND

Courchesne applied for disability insurance benefits alleging that she had been unable to work since August 1 , 1990.

Her chief complaints are pain, numbness, and loss of strength in

her arms and hands, particularly on her dominant left side.

Courchesne also claims that she cannot read or write and that she

can only add and subtract. Her medical records include

evaluation of her problems with her arms and hands, treatment for

carpal tunnel syndrome, and testing of her cognitive abilities.

Courchesne was treated by Dr. James Shea, an orthopedic

surgeon, from August 1990 to March 1993 for pain and numbness in

her arms and hands. Dr. Shea's notes from her first examination

on August 7, 1990, reported that Courchesne complained of

numbness in her left hand with discomfort in her left wrist and

elbow. He noted that her work reguired a twisting hand motion

and that she was left handed. He also noted that she had no

history of injury to her arm, that she had no neck symptoms, and

that her right arm was well. Dr. Shea's physical examination

showed that Courchesne had a full range of motion in both

shoulders, both elbows, and both wrists. His neurological

examination of her arms showed that her left grasp was very weak

compared to the right, and her left thumb had decreased

appreciation of a pin prick, but he found no atrophy or other

abnormalities of sensation or strength. He diagnosed carpal

2 tunnel syndrome in Courchesne's left wrist and inflammation in

the left elbow. He recommended that she stop working for one

week. At Courchesne's subsequent appointments over the next

month. Shea prescribed Feldene, an anti-inflammatory, analgesic,

and anti-fever medication; provided her with a wrist brace; and

began to discuss surgery to address the worsening of her

symptoms.

Courchesne's symptoms improved slightly during the fall, but

because she continued to have numbness in her fingers, she

underwent carpal tunnel release surgery in November 1990. She

made a good recovery from the surgery but continued to report

numbness in her left fingers and thumb. Through the next year,

she developed pain in her left wrist and elbow, difficulty with

her right wrist requiring a brace, and increased numbness in her

left fingers and thumb.

Dr. William Kilgus examined Courchesne on January 24, 1991,

for the workers' compensation insurance carrier. He reported

that Courchesne had tenderness in her left wrist and a decrease

in sensation and weakness in her left hand. He found that her

range of motion was good in her fingers and wrist. He suggested

an intense program in occupational therapy. He stated that she

3 had some work capacity but should not do work that involved

continuous or repetitive use of the left hand.

Dr. William Davison examined Courchesne on December 31,

1991, also for the workers' compensation carrier. He found that

she had a moderate tremor when she tried to grasp strongly with

her left hand. He diagnosed carpal tunnel syndrome of the left

wrist that would prevent Courchesne from returning to work

reguiring delicate use of her hands and forearms. He stated that

she could perform modified light-duty work lifting and carrying

up to twenty pounds, but would have difficulty performing simple

grasping, fine manipulation, and repetitive motions with her left

hand and forearm.

By June 8, 1992, Courchesne reported to Dr. Shea that she

could no longer knit, crochet, or sew because of her arm and hand

symptoms. Dr. Shea's notes indicate that she did not improve

through March 1993.

Dr. Burton Nault reviewed Courchesne's record on June 14,

1993, for the New Hampshire Department of Health and Human

Services. Dr. Nault assessed Courchesne's residual functional

capacity ("RFC") and determined that she could occasionally lift

and carry up to twenty pounds, freguently lift and carry up to

ten pounds, stand, walk, or sit for up to six hours per day with

4 normal breaks, and push and pull without limitation. He found no

postural limitations but found that she would have to avoid fine,

rapid, repetitive, manipulative movements with her hands and

fingers. Two other doctors who later reviewed Courchesne's

records concurred with Dr. N a u l t 's determination.

Courchesne was given intelligence tests by Dr. William

Jamieson, a psychologist, on August 13, 1993. Her testing

results were interpreted as showing an overall intellectual

capacity in the borderline to low-average range. Dr. Jamieson

determined that Courchesne's testing results did not explain her

problems with reading and writing, and he guestioned whether she

had a more specific developmental language disability. Dr.

Jamieson concluded that Courchesne had the ability to comprehend

instructions and to relate appropriately in a work situation.

Dr. Shea reevaluated Courchesne's condition on April 15,

1994, for vocational rehabilitation. He reported tenderness in

her left elbow and wrist, sensory deficit in all fingers of her

left hand, but a full range of motion in her left elbow and

wrist. Based on Courchesne's records. Dr. Shea determined that

she had a capacity for sedentary work with light assistive work

with her hands and arms but she could not do work reguiring

significant demanding use of her arms. Dr. Shea's subseguent

5 report, dated August 1, 1994, stated that Courchesne's left arm

was markedly disabled and that her right arm also had restricted

function. He diagnosed her condition as left elbow epicondylitis

(inflammation), carpal tunnel syndrome, and deQuervain's disease

in the left wrist.

Courchesne and her husband testified at the hearing before

the ALJ on July 19, 1994. Courchesne explained that she could

not read and could only add and subtract. She testified about

her previous work, her carpal tunnel condition, and her medical

treatment. She said that she had numbness in her hands and arms

after about five minutes of use that caused her to drop things.

She said that she could not open jars, and that she had

difficulty doing laundry, lifting a gallon of milk, using a touch

tone phone, and writing her name due to the numbness and shaking

in her left hand. She said that she could drive a car but that

her left arm went numb after two minutes of driving and that it

took fifteen minutes to recover. She testified that although she

had been able to perform the duties of both the office cleaning

job and the school crossing guard job, she could no longer do the

vacuuming reguired for cleaning and could not hold up the sign

used by crossing guards. Her husband testified that the numbness

6 and shaking in her left hand caused his wife difficulty in doing

routine household tasks.

A vocational expert testified at the hearing. The ALJ asked

the vocational expert whether a hypothetical claimant of

Courchesne's age and work experience, who was limited to light

work but was unable to use her hands for fine and repetitive

movements could still do any of the work Courchesne had done in

the past. The vocational expert testified that the conditions in

the hypothetical would preclude Courchesne's previous work and

explained that work as a school crossing guard and as an office

cleaner did not reguire fine hand movements but did reguire

repetitive arm and hand motions on an ongoing basis. The

vocational expert further stated that a school crossing guard did

not have to use her hands as regularly as a typist. The

vocational expert also testified that unskilled entry level jobs

existed for a hypothetical claimant who was limited to light work

involving gross but not fine manipulation.

The ALJ determined that Courchesne had severe impairment of

her left arm and right wrist that caused significant limitation

of her ability to perform work reguiring extensive use of her

arms but that her subjective complaints including pain were not

entirely credible. He found that she was not impaired by an

7 inability to read or write as she had described. He found that

she had a RFC for work except that she could not lift or carry

more than twenty pounds occasionally and not more than ten pounds

frequently. He also found that she could not perform tasks that

required repetitive use of her hands or fine manual dexterity.

Based on his findinqs, the ALJ concluded that Courchesne was able

to perform her past work as an office cleaner and as a school

crossinq quard, althouqh she could not do her other past work.

Courchesne appealed the decision to the Appeals Council and

submitted the followinq additional evidence that was not

submitted to the ALJ.1 Dr. Steven L. Brown, a hand surqeon,

wrote a report dated November 16, 1994, based on examinations on

July 1 and October 24, 1994, for Courchesne's continued problems

with left arm numbness and pain. He found that althouqh she

complained with any motion or use of her elbow or wrist, she had

a full ranqe of motion and had no evidence of onqoinq neuroloqic

problems. He concluded that Courchesne had some problems with a

cumulative traumatic disorder in her left arm. He reported that

1 The Commissioner does not challenqe consideration of the evidence submitted only to the Appeals Council and, in fact, relies on Dr. Brown's report in the motion to affirm. As no objection is raised, I will consider the additional evidence submitted to the Appeals Council. she would be capable of sedentary work, and also would be able to

work as a school crossing guard, although she could not work as

an office cleaner because the work was too repetitive and

traumatic. Dr. William Windier provided a medical assessment of

ability to do work-related activities dated December 12, 1994.

He evaluated her work ability as severely restricted due to hand

numbness, tremor, and weak grip.

Courchesne submitted a copy of the Dictionary of

Occupational Titles description of the characteristics of a

school crossing guard. Courchesne also submitted her affidavit

and her W-2 Wage Statements showing that she earned $794.88 in

1986 and $1368.50 in 1987 from the City of Manchester for work as

a crossing guard between September 1986 and September 1987. She

stated in her affidavit that she tried to work as a crossing

guard again for one day and was unable to do the job because her

arm shook when she held the sign or held her arm to stop traffic.

The Appeals Council denied review, and Courchesne now

appeals the Commissioner's decision.

II. STANDARD OF REVIEW

After a final determination by the Commissioner and upon request by a party, this court is authorized to review the

pleadings and the transcript of the record of the proceeding, and

enter a judgment affirming, modifying, or reversing the decision.

(g) (West Supp. 1995). The court's review is

limited in scope, however, as the Commissioner's factual findings

are conclusive if they are supported by substantial evidence.

Id.; Irlanda Ortiz v. Secretary of Health & Human Servs.,

(1st Cir. 1991). The Commissioner is responsible

for settling credibility issues, drawing inferences from the

record evidence, and resolving conflicting evidence.

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.'" I d . (quoting Rodriquez v.

Secretary of Health & Human Servs.,

(1st Cir.

1981). However, 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. Carroll v.

Secretary of Health & Human Servs.,

(2d Cir.

1983) . See also Slessinaer v. Secretary of Health & Human

Servs.,

(1st Cir. 1987). I review Courchesne's

10 appeal in light of the applicable standard.

III. DISCUSSION

The ALJ concluded at the fourth step of the five step

disability determination analysis,2 that Courchesne was not

disabled because she could return to her previous work as an

office cleaner or as a school crossing guard. At Step Four, the

ALJ must determine whether an impairment, or combination of

impairments, prevents the claimant from performing her past

relevant work.

(e) (1994).

A. Courchesne's Work As A Crossing Guard

To gualify as past relevant work within the meaning of the

Commissioner's regulations, the claimant must have past "work

2 The ALJ is reguired to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work.

(1994) .

11 experience [that] . . . was done within the last 15 years, lasted

long enough for [the claimant] ... to learn to do it, and was

substantial gainful activity."

(a) (1994).3

Part-time work may gualify as substantial gainful activity if it

involved significant mental or physical activities.

(a) (1994). If a claimant's earnings averaged less than

$190 per month during years between 1979 and 1990, however, a

presumption generally arises that the claimant did not engage in

substantial gainful activity.

(b) (3) (1994);

see Zenker v. Bowen,

(8th Cir. 1989) .

Courchesne stated in her affidavit that she earned less than

$190 per month during the year that she worked as a school

crossing guard for the Manchester Police Department. Her W-2

Wage and Tax Statements confirm that she earned an average of

$180.28 per month from the City of Manchester between September

1986 and September 1987. Courchesne stated that she worked two

3 Although the Commissioner contests the applicability of § 404.1565(a) at the fourth step, the Social Security Administration's own policy statements explaining "past relevant work" use the three-part definition of "work experience" in § 404.1565(a) to define past relevant work at the fourth step. See Social Security Ruling 82-61 (1982),

; Social Security Ruling 82-62 (1982),

; see also Lauer v. Bowen,

(7th Cir. 1987); Curtis v. Sullivan,

(D.N.H. 1992).

12 to three hours per day. Even assuming that Courchesne was

capable of performing the school crossing guard job, there is no

evidence in the record that the job could provide income at the

level of substantial gainful activity. See Lauer v. Bowen,

, 640 n.10 (7th Cir. 1987). Therefore, the school

crossing guard position should not have been considered as past

relevant work at the fourth step of the analysis, and I need not

determine whether substantial evidence supports the ALJ's

determination that Courchesne was able to perform the work.

B . Courchesne's Work as an Office Cleaner

To make the determination of whether a claimant can perform

past relevant work, "the ALJ must compare the physical and mental

demands of that past work with current functional capability."

Manso-Pizarro v. Secretary of Health and Human Servs.,

(1st Cir. 1996) (citing

(b)). Thus, a

decision that a claimant can return to her past work must be

supported by factual findings concerning the claimant's RFC and

the physical and mental demands of the claimant's previous work.

Santiago v. Secretary of Health and Human Servs.,

, 5

n.l (1st Cir. 1991); see also SSR 82-62,

*4.

The initial burden is on the claimant to make a "reasonable

threshold showing that she cannot return to her former employment

13 because of her alleged disability." Santiago,

;

accord Manso-Pizarro,

. To carry her burden, the

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 work. Santiago,

. The ALJ may rely on the

claimant's own descriptions of her duties and her functional

limitations.

If the claimant can still perform her past

work, as she actually performed it when employed, she is not

disabled.

If the ALJ finds that the claimant cannot perform

her actual previous work, however, the claimant nevertheless is

not disabled if she "retains the capacity to perform the

functional demands and job duties of the job as ordinarily

reguired by employers throughout the national economy." SSR 82-

61,

*2; accord Santiago,

n.l; Gray v.

Heckler,

(1st Cir. 1985).

The ALJ found that Courchesne could not perform tasks

reguiring extensive use of her arms, repetitive use of her hands

or fine manual dexterity.4 Courchesne testified that she could

4 Relying on Dr. Nau l t 's RFC assessment, the Commissioner asserts that the record contains substantial evidence to support a finding that Courchesne could repetitively use her arms and

14 no longer do the vacuuming reguired of an office cleaner and the

vocational expert testified that an office cleaner job reguired

an employee to repetitively use her arms and hands. The record

contains no evidence to support a contrary finding. Therefore,

the record does not contain substantial evidence to support the

ALJ's determination that Courchesne could return to her past job

as an office cleaner.

Because the ALJ's determination at Step Four is not

supported by substantial evidence in the record, the decision is

reversed. Although the hearing record includes evidence

pertaining to a Step Five evaluation, the ALJ did not make

alternative findings to support a disability determination at

Step Five. Accordingly, the case is remanded to the Commissioner

for further proceedings at Step Four of the seguential analysis,

and, if necessary, to proceed to Step Five.

IV. CONCLUSION

For the foregoing reasons, Courchesne's motion to reverse

the decision of the Commissioner (document no. 7) is granted, and

hands as long as she avoided fine, repetitive, manipulative use of her hands and fingers. Even if this assertion were true, it would be irrelevant because the ALJ made a contrary finding.

15 the Commissioner's motion to affirm (document no. 11) is denied.

The case is remanded for further proceedings pursuant to sentence

four of

(g). Judgment shall be entered

accordingly.

SO ORDERED.

Paul Barbadoro United States District Judge

June 13, 1996

cc: David Broderick, Esg. Elizabeth Jones, Esg.

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