Kalar v. SSA CV-95-330-B 05/16/96

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Janet M. Kalar

v. Civil No. 95-330-B

Shirley S. Chater, Commissioner of Social Security

O R D E R

Janet Kalar appeals the Commissioner's decision denying her

application for disability insurance benefits and asks that her

case be remanded for further proceedings. She contends that the

Administrative Law Judge ("ALJ") improperly determined that she

could return to her former work and that new and material

evidence exists which would change the outcome of her

application. For the reasons that follow, I reverse the

Commissioner's decision and remand for further proceedings.

I. BACKGROUND

Janet Kalar filed an application for disability insurance

benefits on October 14, 1993, on the grounds that her asthma had

prevented her from working since July 24, 1991. Her medical records show that in addition to her chronic asthma, she has

experienced a variety of other ailments requiring medical

attention including carpal tunnel syndrome affecting both hands.

Kalar's medical records from a visit to Frisbie Memorial

Hospital in January 1992 confirm her history of asthma and list

her medications as Albuterol, Intal, and Azmacort. In November

1992, her treating physician, Paul Friedrichs, wrote that he had

treated Kalar for asthma since early 1990 and that she required

daily medications, including nebulized medication (medication

administered through an atomizer). He stated that she takes

medications three or four times per day and that the medication

regime would add fifteen minutes to her preparation time before

work each morning. Dr. Friedrichs examined Kalar in June 1993

due to complaints of swollen glands, and Kalar reported that her

asthma was under good control. Similarly, when Dr. Friedrichs

saw her in January 1994 for a chest cold and impetigo on her

wrist, he determined that her asthma was stable.

Dr. Homer Lawrence reviewed Kalar's medical records and

assessed the severity of her impairments for the Disability

Determination Program in January 1994. He found that Kalar had

no exertional or postural limitations that would restrict her

work capacity but that her work environment could not include

2 fumes, odors, dust, gas, or poor ventilation. Dr. A. C. Campbell

reviewed Kalar's records in March 1994 and determined that Kalar

could lift and carry ten pounds frequently and twenty pounds

occasionally, and that she could stand, walk or sit for about six

hours in an eight hour day. He also included the environmental

limitations identified by Dr. Lawrence. Dr. Campbell concluded

that Kalar had a residual functional capacity ("RFC") for light

work with the noted environmental limitations.

Kalar was treated in April and May 1994 at the Lahey Clinic

for allergies. At that time, her chief complaints were asthma,

aching muscles, swelling with hives, swollen glands, and

headaches. She underwent a Pulmonary Function Test that was

interpreted to indicate "mild obstructive disease cannot rule out

restrictive disease." Her chest x-ray showed her lungs to be

clear.

Kalar complained of numbness in her hands and feet, an

aching right shoulder, and difficulty in holding her arms up

during her April 1994 neurology examination at the Lahey Clinic.

Her neurological examination was normal, and the recorded

impression was that she had symptoms without neurological

findings. An electromyogram on May 16, 1994, revealed moderately

severe bilateral carpal tunnel syndrome which causes burning or

3 tingling pain in the fingers and hands sometimes extending to the

elbows.

Kalar was treated in June 1994 by Dr. David J. Bryan, a hand

surgeon, for carpal tunnel syndrome. She reported numbness and

tingling in both hands and all fingers for the past two years,

intermittent bluish discoloration of her right hand in the past

six months, and some swelling in her arms and legs. From the

examination and the results of her previous testing. Dr. Bryan

concluded that Kalar had bilateral carpal syndrome, right greater

than left, that the pain in her arms was probably causalgia

caused by an injury to the peripheral nerve. He recommended

conservative treatment of her carpal tunnel syndrome and

suggested a rheumatology consultation to address her complaints

of hip and knee pain and general muscle soreness.

Dr. Bryan also completed a Medical Assessment of Ability to

Do Work-Related Physical Activities Form limited to an evaluation

of Kalar's hands. He showed no limits on her ability to lift or

carry, but indicated that her handling and feeling ability in her

right hand, more than her left hand, was affected by numbness and

diminished sensation in her fingers caused by neuropathy of the

median nerve. He noted that her impairment was worsened by

temperature extremes and vibrations.

4 Following Dr. Bryan's advice, Kalar underwent a

rheumatological evaluation in August 1994 by Dr. Jonathan Kay.

At that time, she described pain in her right shoulder and muscle

aches in her legs for the previous two years. Dr. Kay's

impression following examination was that Kalar had tendinitis in

her right biceps muscle and bilateral carpal tunnel syndrome but

showed no evidence of rheumatic disease. Kalar saw Dr. Kay again

in October 1994 due to a swelling under her chin. He was unable

to make a specific diagnosis and scheduled a follow-up

examination. Dr. Kay also completed a Medical Assessment of

Ability To Do Work-Related Physical Activities Form dated

November 14, 1994, and indicated no limitations on Kalar's

physical abilities.

At the ALJ hearing on November 14, 1994, Kalar testified

that she was forty-four years old, that she had completed three

years of college, and that she had previously worked as an

accounts payable clerk, a day care worker, a cashier, and an

office manager/executive assistant. She indicated that she was

terminated from her last employment because of her asthma and

that she had looked for work but was not hired for the same

reason. She explained that she used a nebulizer machine three to

four times each day to push the asthma medication into her lungs

5 and that each use lasted ten to fifteen minutes. She stated that

she had asthma attacks once or twice each day and that things in

the environment, such as chemicals, perfumes, and cigarette

odors, bothered her.

Kalar also testified that she had problems with her arms

which interfered with gripping things. She explained that when

she did bookkeeping, she constantly used calculators, adding

machines, and computers, and that she could no longer perform the

necessary fine manipulations with her hands. She explained that

her hands got tired too easily and developed "pins and needles"

so that she had to shake them and rest to restore circulation.

She also stated that she had muscle and back problems and that

her legs were useless for walking.

A vocational expert ("VE") also testified at the hearing.

The ALJ posed a hypothetical to the VE describing Kalar's age,

education, and past work experience, and the exertional

limitations indicated in the RFCs in the record and from Kalar's

testimony. Specifically, the hypothetical claimant was

restricted from doing "fine-finger hand tasks." The vocational

expert testified that based on the limitations posed by the ALJ,

the hypothetical claimant could return to work as an accounting

clerk because the necessary keyboard work was repetitive but did

6 not require fine-fingered manipulation. When the ALJ modified

the hypothetical to preclude any work with keyboards, the VE

testified that the hypothetical claimant could not work as an

accounting clerk. The ALJ then asked if there was other work

that Kalar could do, and the VE testified that she could work as

a surveillance monitor, a sedentary unskilled job, and that

52,987 of those positions existed in the national economy.

The ALJ issued his opinion on February 6, 1995, in which he

determined that the medical evidence supported Kalar's

impairments of lumbosacral strain, median neuropathy, bilateral

carpal tunnel syndrome, bilateral biceps tendinitis, and asthma.

He concluded, however, that her subjective complaints of pain and

other restrictions were not credible and that she was not

disabled from her past work as an accounting clerk by her

limitations. Therefore, he denied her benefits at the fourth

step of the sequential analysis.

Kalar then appealed the ALJ's decision to the Appeals

Council and submitted additional evidence. The Appeals Council

declined her request for review, and she then filed her appeal

here.

7 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.'"

(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 Slessinqer v. Secretary of Health & Human

Servs.,

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

appeal in light of the applicable standard.

III. DISCUSSION

Kalar argues that the record does not include substantial

evidence to support the ALJ's determination that she could return

to her previous work as an accounting clerk. Because I conclude

that remand is necessary on that ground, I do not address the two

additional grounds Kalar raises for remanding her case.

The ALJ concluded at the fourth step of the five step

disability determination analysis,1 that Kalar was not disabled

1 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) . because she could return to her previous work as an accounting

clerk. At Step Four, the ALJ must determine whether an

impairment, or combination of impairments, prevents the claimant

from performing her past relevant work.

(e).

To make the determination, "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

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

10 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

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

61,

*2; accord Santiago,

n.l; Gray v.

Heckler,

(1st Cir. 1985).

Kalar testified at the hearing that she could no longer do

the fine hand manipulations necessary to use calculators, adding

machines, and computers in her job as an accounting clerk. The

VE testified that an accounting clerk job depended upon keyboard

work with repetitive motion and fingering although the job did

not require fine hand manipulations.2 The ALJ found that Kalar's

2 The parties dispute whether a V E 's opinion is appropriate at Step Four. In the second part of the analysis, when the nature of the job as it exists in the national economy is at issue, the ALJ may rely on supplementary or corroborative information from a variety of sources including a V E . See SSR 82-62,

*3; but see Musqrave v. Sullivan,

(10th Cir. 1992) (ALJ not obligated to elicit opinion of VE to help claimant meet his burden of proof at Step Four); Smith v. Bowen,

(4th Cir. 1987) (improper to

11 RFC was limited by a variety of restrictions including that "she

cannot perform repetitive reaching and any handling, finqerinq or

feeling" (emphasis added). Nevertheless, the ALJ determined that

although Kalar was disabled from returning to most of her

previous work, she could work as an accounting clerk. The ALJ

did not explain the conflict between his finding that Kalar could

not do any fingering or handling and the record evidence that an

accounting clerk position reguires repetitive fingering and

keyboard work, as the VE testified, or that Kalar's previous

accounting job reguired fine hand manipulations, as she

testified. Nor does the record contain any evidence that would

support a finding that an accounting clerk position does not

reguire fingering, fine hand manipulations, or use of a keyboard.

Therefore, the ALJ's finding that Kalar could return to her job

as an accounting clerk in spite of her inability to perform

repetitive reaching, handling or fingering, is not supported by

substantial evidence.

Because the ALJ's determination at Step Four is not

supported by his factual findings or by substantial evidence in

the record, the decision is reversed. Although the hearing

rely on vocational expert's opinion until a claimant is found unable to do her past relevant work).

12 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 to determine whether Kalar is disabled from

all previous work, and, if necessary, to proceed to Step Five.

CONCLUSION

For the foregoing reasons, the claimant's motion to reverse

(document no. 8) is granted, the government's motion to affirm

(document no. 12) is denied, and the case is remanded to the

Commissioner for further proceedings.

SO ORDERED.

Paul Barbadoro United States District Judge May 16, 1996

cc: Jeffrey A. Schapira, Esg. David L. Broderick, Esg.

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