Gadson v. Callahan CV-96-355-M 08/26/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Frederick Gadson

v. Civil No. 96-355-M

John J. Callahan, Commissioner Social Security Administration1

O R D E R

Frederick Gadson moves pursuant to

(g) to

reverse the Commissioner's decision denying him supplemental

security income benefits. He asserts that the Commissioner's

decision is not supported by substantial evidence in the record.

The Commissioner moves to affirm the decision. For the reasons

that follow, the Commissioner's decision is reversed and remanded

for further consideration.

Background

Frederick Gadson applied for supplemental security income

benefits on September 29, 1993, claiming a disability that began

on September 28 (after last working in August 1993) . From

February to August 1993, Gadson worked as an office assistant at

a law firm. He based his disability claim on physical imitations

due to heart and back conditions as well as emotional problems.

1 The President appointed John J. Callahan as Acting Commissioner of Social Security, effective March 1, 1997, to succeed Shirley S. Chater. Pursuant to Fed. R. Civ. P. 25(d)(1), John J. Callahan is thus substituted for Shirley S. Chater as the defendant in this action. Heart Condition

In 1966, when Gadson was sixteen, he underwent surgery to

repair a ventricular septal defect (abnormal opening) in his

heart. Gadson's medical records, from the mid 1980's through the

period relevant to his application for benefits, show that he

experienced chest pain of varying degrees and heart palpitations.

Diagnostic testing revealed some irregularities. He had also

been a smoker for ten to fifteen years. Dr. Richard Boss, a

cardiologist, concluded in March 1994 that Gadson's chest pain

was due to musculoskeletal rather than cardiac causes. Tylenol,

or similar medication, was recommended as needed. Because of

continued chest pain, Gadson underwent a Thallium exercise test

on November 23, 1994, which showed a fair exercise capacity and

normal blood circulation in response to exercise. Despite some

abnormalities in his resting electrocardiogram. Dr. Boss

concluded that the test was negative.

Gadson saw his treating physician. Dr. Florio, on November

30, 1994, and expressed concern about his electrocardiogram and

continuing chest pain. Dr. Florio noted that Gadson had

increased risk factors for heart disease and recommended cardiac

rehabilitation and baby aspirin. Gadson reported chest and

shoulder pain after each cardiac rehabilitation session. Dr.

Florio recommended that he continue using Amitriptyline, which

had been prescribed for his back pain, and Tylenol.

Back Condition

2 Gadson experienced ongoing back problems, beginning after a

back injury at work in 1987, that were exacerbated by an

automobile accident in February 1993. He was treated by Dr. Hoke

Shirley, an orthopaedist, and Dr. Ashcliffe, a chiropractor.

After the accident. Dr. Shirley diagnosed a soft tissue injury

and prescribed Amitriptyline (antidepressant used to treat

chronic pain) to be taken at bed time. In June 1993, Dr. Shirley

recommended that Gadson begin a physical therapy program.

In late August 1993, Gadson complained of neck pain and

severe headaches as well as severe aching into his mid-back area

and worsened lower back pain. Dr. Shirley nevertheless noted

that Gadson was continuing with physical therapy and seemed to be

doing better. The physical therapy was changed to a work

tolerance program in mid-September. A physical therapy progress

report dated September 27, 1993, assessed Gadson's work ability

as part time--four hours per day at a sedentary exertional level.

On September 28, 1993, Dr. Shirley examined Gadson and

decided he could not continue with the work tolerance program due

to the pain he was experiencing. His examination, however,

revealed no focal neurological deficits in Gadson's legs and

other testing was negative. Dr. Shirley nevertheless wrote that

he believed Gadson was totally disabled from any significant

gainful employment despite physical therapy or medication.

Dr. Shirley saw Gadson on May 20, 1994, for complaints of

back pain. His examination found mild muscle tenderness in the

back but again the "flip test," straight leg raising test and

3 neurological examination were normal. Dr. Shirley recommended

physical therapy, a daily walking program, and prescribed

Flexeril, a muscle relaxant.

Gadson saw Dr. Shirley in December 1994 to follow up his

previous diagnoses of soft-tissue cervical pain dysfunction

syndrome and mechanical thoracic lumbar pain. Gadson explained

that he had discontinued his stretching exercises because of

angina attacks. Dr. Shirley's objective findings on examination

were muscle tenderness but not as prominent as previously found.

Dr. Shirley found both the flip and straight leg raising tests

negative and also found a good range of motion in the cervical

spine. He diagnosed chronic soft-tissue pain syndrome and

substantial mechanical back pain syndrome involving cervical,

thoracic and lumbar regions. He concluded that Gadson had

reached an endpoint in his improvement, that he should continue

to take Amitriptyline and to do stretching exercise. In a letter

dated December 11, 1995, Dr. Shirley again gave his opinion that

Gadson was unable to maintain full-time work due to his back

conditions and chronic pain.

Psychological Condition

In November 1994, Dr. Florio recommended that Gadson receive

psychotherapy. Gadson began treatment with Dr. Frank Birmingham,

MSW, Ph.D. on December 15, 1994. Dr. Birmingham diagnosed

adjustment disorder with depressed mood. A letter from Dr.

Birmingham dated January 23, 1995, states that he had seen Gadson

4 twice. Based on those visits. Dr. Birmingham wrote that they had

identified strong stresses in Gadson's life due to family

problems, physical pain, insomnia, depression, and unemployment

causing lowered self-esteem. Dr. Birmingham also concluded that

Gadson's cognitive and manual skills were limited based on the

fact that he had been able to achieve a typing rate of only

twenty-five words per minute despite fairly intensive training.

His opinion was that due to Gadson's psychological condition, it

would be nearly impossible for him to find and maintain

employment.

The Hearing

A hearing before an Administrative Law Judge (ALJ) was held

on February 14, 1995. Gadson testified that he was born on April

25, 1950, and he was 44 years old at the time of the hearing. He

obtained his high school GED degree in 1986. He had not worked

since August 1993 and was waiting to hear from New Hampshire

Vocational Rehabilitation to see if they could assist him.

Before August 1993, he held a variety of jobs including custodial

positions and, most recently, an office job that involved

carrying files up and down stairs as well as data entry. He said

he had difficulty with both the physical demands of the office

work and the typing reguired for data entry. At the time of the

hearing, he lived in Concord, New Hampshire, with his wife who

received workers' compensation benefits that were the family's

only source of income.

5 Gadson testified that pain in his back was constant but was

aggravated by bending or walking for more than fifteen minutes.

He also described pain in his left shoulder and neck if he

reached above his shoulder. He said that sitting for more than

fifteen or twenty minutes made his legs stiff and numb so that he

had to stretch in order to move around again. He said that pain

in his lower back made his legs weak and that when he climbed or

descended stairs, he limped and needed to pull himself along with

the bannister. He explained that because of his wife's

disability, he does the family's grocery shopping once a month.

He said that he had difficulty lifting grocery bags and that

after two or three trips with bags he was unable to continue due

to weakness in his back, neck, and shoulders. At the time of the

hearing, Gadson was attending the cardiac rehabilitation clinic

at Concord Hospital, and he described his difficulty and the pain

associated with the exercises in the clinic.

In addition to physical pain, Gadson testified that he had

been experiencing depression and was being treated by Dr.

Birmingham. He explained that he had been depressed since being

with his brother when he died in Chicago in August 1994. He also

testified that he had difficulty getting along with other people

and for that reason did not associate with others.

Gadson described his daily activities as beginning with

showering, drinking coffee, and dressing which he described as

slow. He then made breakfast for himself and his wife and was

able to do the dishes for five or ten minutes by leaning on the

6 sink. He said that he was not able to do other household chores.

He was able to drive, although with difficulty, but could drive

to his therapy at the hospital and to the store. He did the

family's cooking, shopping, and laundry at the Laundromat.

The Determination

In a decision issued on October 26, 1995, the ALJ found that

Gadson had severe impairments related to his heart condition and

chronic back strain, and that he was unable to perform any of his

past work. The ALJ did not find Gadson's testimony regarding the

pain he was experiencing to be credible. The ALJ concluded that

Gadson was capable of performing a full range of sedentary work,

and based on the Medical-Vocational Guidelines, 20 C.F.R. Part

404, Subpt. P, A p p . 2 ("the Grid"), for a person of his age and

with a high school education, determined that he was not

disabled. His application for SSI benefits was denied. The

Appeals Council denied review in May 1996.

Standard of Review

After a final determination by the Commissioner and upon

reguest by a party, 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."

(g). The Commissioner's factual findings are conclusive if

supported by substantial evidence. Id.; Irlanda-Ortiz v.

7 Secretary of H.H.S.,

(1st Cir. 1991).

Substantial evidence is "'such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.'"

Richardson v. Perales,

(1971) (quoting

Consolidated Edison Co. v. N.L.R.B.,

(1938));

see also Rodriquez Pagan v. Secretary of H.H.S.,

(1st Cir. 1987).

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence, settle credibility issues, and

draw inferences from the record evidence. Ortiz,

69; Burgos Lopez v. Secretary of H.H.S.,

(1st

Cir. 1984). The court will defer to the ALU's credibility

determinations, particularly where those determinations are

supported by specific findings. Frustaqlia v. Secretary of

H .H .S .,

(1st Cir. 1987). Accordingly, the

Commissioner's decision to deny benefits will be affirmed unless

it is based on a legal or factual error. Manso-Pizarro v.

Secretary of H.H.S.,

(1st Cir. 1996).

Discussion

Gadson's application for benefits was denied at the fifth

step of the sequential analysis for evaluating disability.

(f). At step five, the Commissioner has the

burden of showing that despite the severity of the claimant's

impairment and inability to return to past relevant work, he is

able to perform other work. Heggartv v. Sullivan,

(1st Cir. 1991). Gadson contends that the Commissioner did

not meet his burden in this case because no substantial evidence

supports the ALJ's determinations pertaining to his physical and

mental impairments and because the grid was not appropriately

used to decide that he was not disabled.

A. Physical Impairments

1. Heart Condition

The objective medical evidence in the record and the

diagnoses of Gadson's treating physicians demonstrate that Gadson

has a heart condition caused by a faulty mitral valve and a

residual ventricular septal defect following the surgical repair

in 1966 that cause a backflow of blood during heart contraction.

The physicians found no cardiac dysfunction, however, and

concluded that Gadson's complaints of chest pain are not caused

by his cardiac condition. Thus, substantial evidence in the

record does support the ALJ's conclusion that Gadson's heart

condition precludes work that would reguire heavy exertional

levels, but does not otherwise limit his capacity for sedentary

work.

2. Back and Neck Condition

The ALJ found that Gadson was impaired by chronic cervico-

lumbrosacral strains. He also found that Gadson's complaints of

pain were not credible, and decided that Gadson was capable of a

full range of sedentary work activity. In reaching his determination regarding Gadson's residual

functional capacity for sedentary work, the ALJ primarily relied

on a functional capacity assessment by Gadson's physical

therapists in September 1993. The referenced assessment dated

September 27, 1993, concluded that Gadson was then capable of

sedentary work only part time--for a four hour period. The ALJ

explained the part-time limitation by interpreting the physical

therapist's notes to suggest that Gadson "would be able shortly

to do sedentary work on a full-time basis." The note that

discusses a potential for full-time work actually says, "At this

point in time, pt is at a sed. work cap. part time at 4 hours

max. Please advise. Otherwise cont. [with] WTP (Work Tolerance

Program) to [increase?] hours to full time."

Dr. Shirley's office notes of his examination of Gadson the

next day, September 28, indicate that while Gadson was achieving

some improvement in neck pain, he continued to have cervical pain

and dysfunction extending into his shoulder area. Dr. Shirley

further noted that Gadson was unable to continue in the work

tolerance program due to pain and intolerance to medications for

pain. Dr. Shirley's assessment, based on the physical

therapist's capacity evaluation and his own knowledge of Gadson's

condition, was that Gadson was "totally disabled from significant

gainful employment." While Dr. Shirley's opinion is not

conclusive as to disability under the statute, it is nevertheless

10 to be considered as part of the evidence in making the

determination.2

A plausible interpretation of the physical therapy note,

particularly in light of Dr. Shirley's examination notes the next

day, does not provide substantial evidence that Gadson was then

capable, or would soon become capable, of performing a full range

of sedentary work activities. Because an ALJ is not gualified to

assess a claimant's residual functional capacity based on the

bare medical record, evidence must exist in the record to support

his or her findings. Berrios Lopez, 951 F.2d at 431.

In the motion for affirmance, the Commissioner points to the

evaluation by a Disability Determination Services physician dated

December 10, 1993, which in turn was based on Gadson's medical

records, that found a residual functional capacity for light work

activity without restrictions. The evaluation was affirmed by a

second DDS physician's review of Gadson's medical record on June

23, 1994.

Because the ALJ did not mention the DDS evaluations in his

decision, it is unclear whether he relied on the evaluations, and

if so, whether he employed the process prescribed at

(f). The DDS evaluations are of the ordinary type, that

is, a series of checked boxes indicating functional capacity, but

also include some supporting medical conclusions which might add

2 A treating physician's opinion as to the claimant's medical condition and the nature and severity of his impairments is entitled to considerable weight under appropriate circumstances,

(c), but an opinion of disability is not controlling,

(e).

11 to the significance of the evaluation. See Berrios Lopez v.

Secretary of H.H.S.,

(1st Cir. 1991). However,

the last functional capacity assessment in Gadson's record found

him limited to sedentary work for a maximum of a four hour

period. The DDS physician did not explain his differing

assessment, and, to the contrary, notes that Gadson "has

continued to have problems with neck and upper back pain.

Physiotherapy and medication have not resulted in significant

improvement." Under these circumstances, the DDS evaluation is

entitled to only passing weight and does not provide the

substantial evidence necessary to support the ALJ's finding.

Thus the more reliable record evidence of Gadson's residual

functional capacity appears to be the physical therapy report

from September 1993, which does not support the ALJ's assessment

of Gadson's prospective improved capabilities. The record

evidence demonstrates that in September 1993 Gadson had a

capacity for sedentary work limited to a four-hour period each

day, and the Commissioner has not demonstrated that evidence in

the record establishes that his capacity increased thereafter.

Although part time work can in some circumstances gualify as

substantial gainful activity, see

, 416.974,

the Grid is not an appropriate shortcut for the vocational aspect

of the Commissioner's burden at step five if a claimant is not

capable of a full range of activity at the particular exertional

level. See Heggartv,

; see also Walker v. Bowen,

(11th Cir. 1987). Therefore, the Commissioner

12 has not carried his burden at the fifth step to show that the

claimant is capable of doing other work. Accordingly, the

decision denying benefits must be reversed and remanded for

further consideration of Gadson's work capabilities.

B. Remand

The ALJ's finding that Gadson was able to perform a full

range of sedentary work, despite his complaints of back, neck,

and chest pain and weakness, was apparently influenced by his

conclusion that Gadson's subjective complaints of pain were not

credible. The ALJ also found that the record did not demonstrate

that Gadson suffered from a severe mental impairment. On remand,

the following deficiencies in the Commissioner's decision, based

on the ALJ's credibility and mental impairment determinations,

are also noted for correction.

1. Credibility

A claimant's subjective complaints are evaluated in light of

the Avery factors. Avery v. Secretary of H.H.S.,

(1st Cir. 1986). Under Avery, the ALJ was reguired to consider:

"(1) the nature, location, onset, duration, freguency, radiation,

and intensity of pain; (2) any precipitating or aggravating

factors; (3) the type, dosage, effectiveness and adverse

side-effects of any pain medication; (4) any treatment, other

than medication, for the relief of pain; (5) any functional

13 restrictions; and (6) the claimant's daily activities." Pedis

v. Chater,

(D. Mass., 1997) .

Although Gadson's testimony generally covered the Avery

factors, the ALJ did not specifically address the factors in his

decision. In addition, some of the ALJ's specific credibility

determinations are not entitled to deference since appropriate

consideration of the factors and the record evidence would not

support the ALJ's determination. See Frustaqalia,

. For example, Gadson's testimony that he cannot sit in one

place for an extended time and that he moves position often to

relieve back pain is supported in the record and not contradicted

by his testimony pertaining to his daily activities.3 The ALJ

also noted that Gadson seemed to feel he was capable of work

activity because he continued to seek vocational rehabilitation

services. While the record indicates that Gadson has tried

rehabilitation programs, it also reveals his lack of success.

His unsuccessful attempts to find employment does not evidence

his capacity to engage in work activity.

2. Mental Impairment

Gadson also contends that the ALJ did not properly assess

his mental impairment as reguired by

.920a. The

3 The ALJ's inference that because Gadson did not complain of pain during the trip to Chicago to attend his brother when he died, he was able to sit for long periods of time without pain, is unwarranted. See, e.g.. Nelson v. Bowen,

(2d Cir., 1989) (claimant's ability to withstand back pain during four-hour bus ride not indicative of ability to work).

14 regulation initially requires that the same five sequential steps

applicable to a disability determination be applied to determine

whether a mental impairment exists. § 416.920a(a). In addition,

evidence of a mental impairment must be evaluated through a

prescribed procedure which is to be recorded on a document known

as a psychiatric review technic form ("PRTF") and appended to the

decision. § 416.920a(b)(1) and (d)(2). If an initial

determination is made that a mental impairment exists, additional

procedures must be followed and recorded on the PRTF. §

416.920a (b) (2), (3) and (c) .

In this case, Gadson's treating physician. Dr. Florio,

referred him to Dr. Frank Birmingham in December 1994 for

psychotherapy. Dr. Birmingham met with Gadson twice in December.

He diagnosed his condition as "adjustment disorder with depressed

mood" and "depression." In Dr. Birmingham's letter dated January

23, 1995, he noted Gadson's mental health issues as well as a

deficiency in his cognitive and manual skill. He concluded that

Gadson's psychological condition would make it "all but

impossible to find and maintain employment at present."

In his decision, however, the ALJ found, without

explanation, that "[t]here is no discrete mental impairment in

this record nor is there impact on basic work activities from

[Gadson's] mental state." The ALJ's conclusion is contrary to

the record evidence and fails to follow the prescribed procedure.

On remand, the ALJ must properly assess the evidence of mental

impairment, including appropriate use of a PRTF. If the evidence

15 of record is deemed to be insufficient, the ALJ must fulfill his

obligation to supplement the record as necessary. See, e.g.,

(h); Heggartv,

; Carter v. Chater,

73 F .3d 1019, 1022 (10th Cir. 1996).

Conclusion

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

the decision of the Commissioner (document no. 8) is granted, the

Commissioner's motion to affirm (document no. 10) is denied, and

the case is remanded for further administrative proceedings. The

clerk of court is directed to close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 26, 1997

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

16