Ingram v. SSA CV-96-049-M 01/27/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Douglas B. Ingram

v. Civil No. 96-49-M

Shirley Chater, Commissioner Social Security Administration

O R D E R

Douglas Ingram seeks review, pursuant to

(g), of a final decision by the Commissioner of the Social

Security Administration denying his application for benefits.

The Commissioner moves to have her decision affirmed. For the

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

the matter is remanded for further proceedings.

BACKGROUND1

Ingram filed an application for social security benefits on

October 26, 1993, stating that he had been unable to work since

June 2, 1993, due to pain from back and neck problems. He has a

tenth grade education, and past work experience as a mechanic and

a forklift operator. At the time of his application, Ingram was

forty-one years old.

Ingram was first examined by Dr. Lewis Ashcliffe, a

chiropractor, on June 12, 1993, who diagnosed a sacroiliac,

lumbar, and thoracic strain or sprain which was complicated by

1 The facts are taken from the parties stipulated facts submitted pursuant to LR 9.1(d). preexisting arthritis in his back. Dr. Ashcliffe stated that

Ingram could continue to do work which did not reguire lifting

more than fifteen pounds or repetitive twisting or bending

motions. He thought Ingram would be fully recovered within three

to four months.

A physical therapy examination three weeks later on July 2

provided a similar prognosis. An examination by Dr. Hoke

Shirley, an orthopaedic specialist, also on July 2, showed normal

neurological signs, a fairly full range of motion in his spine,

and only mild tenderness. Dr. Shirley diagnosed mechanical

lumbar pain, and recommended treatment with an arthritis

medication and physical therapy. He thought that Ingram would be

out of work for one more month.

Ingram was examined on July 28, 1993, by Dr. William

Davison, an orthopedic surgeon, as reguested by the workers'

compensation carrier. Dr. Davison diagnosed degenerative

arthritis of the spine. He concluded that Ingram was capable of

light duty work that did not reguire lifting more than 20 pounds

or prolonged standing or walking and would be able to return to

work in a month. Dr. Shirley's follow-up examination on August 2

found no change in Ingram's condition and also that he would not

be able to return to work for a month.

The physical therapy progress notes and chiropractic

treatment notes during August indicate some progress in Ingram's

condition. Dr. Ashcliffe, the chiropractor, again noted that

Ingram was capable of light duty work and expected him to return

2 to his prior work. His examination by Dr. Shirley on September

2, 1993, revealed some slight back pain with certain tests. Dr.

Shirley referred Ingram to Dr. Levy at Concord Orthopaedics for

evaluation of possible disc injury in the lower lumbar spine area

after noting some narrowing of the disc space and mild

instability. Dr. Levy examined Ingram on September 27, 1993, and

recommended an MRI, anti-inflammatory medication, and continued

physical therapy. When he examined Ingram again on November 3,

he found no change and decided to refer him to Dr. Nagel for

evaluation. The chiropractic and physical therapy notes for

September and October show some progress. In November, Ingram

was discharged from physical therapy with home exercises.

Dr. Nagel saw Ingram on November 15 and again on November

29, 1993. He first diagnosed mechanical low back pain and

degenerative spine disease and recommended an MRI and medical

treatment. The MRI showed diffuse degenerative loss of signal of

the lumbar discs from L2 to SI, marked narrowing between

vertebrae in one area with possible mild bulging of the disc, and

mild narrowing in another area. At the second visit. Dr. Nagel

found Ingram's range of motion decreased and a pain trigger point

although his neurological exam remained normal. He offered no

further treatment other than to try a back brace for awhile.

In January 1994, Dr. Nagel noted that Ingram was totally

stiff but without objective findings and diagnosed cervico-lumbar

strain. Dr. Nagel felt that Ingram had reached maximum medical

improvement at that point. He suggested vocational

3 rehabilitation. Dr. Nagel completed a Physician's Statement for

the New Hampshire Department of Employment Security in March 1994

in which he stated that Ingram was justified by medical reasons

in stopping work in June 1993 and that he would not be able to

return to his former work. He gave his opinion that Ingram was

limited in bending, lifting, carrying, reaching, walking,

climbing stairs, standing, and sitting, but he did not give a

degree of restriction. He suggested vocational rehabilitation.

Dr. Ashcliffe completed a guestionnaire on July 1, 1994, in

which he stated that Ingram was capable of full-time sedentary

work. Two months later. Dr. Nagel completed a medical report for

the Social Security Administration in which he described Ingram

as having continued severe pain and decreased functional

abilities. He assessed Ingram's ability to do work related

activities as being limited to occasionally lift up to ten

pounds, and to sit, stand and/or walk up to two to three hours

per day. Dr. Nagel believed that Ingram should not climb,

balance, stoop, crouch, or crawl, but that he could occasionally

kneel. In November, Dr. Nagel placed Ingram on a total temporary

disability status from October through December 1994.

Ingram's application for benefits was denied initially and

on reconsideration. He reguested a hearing which was held before

an Administrative Law Judge ("ALJ") on November 16, 1994. Ingram

was accompanied at the hearing by a non-attorney representative.

Ingram testified that his back and neck pain were the major

problems preventing him from working. He described the pain as

4 located in his neck with radiation down both sides, underneath

his shoulder blades, and down to his tailbone. He said the pain

was aggravated by standing too long and his sleep was interrupted

twice a night by the pain. At the time of the hearing, Ingram

said that he was taking eight Vicodin a day for pain. In

response to the ALJ's guestions, Ingram said that his daily

activities were limited and that he could no longer participate

in the recreational activities he enjoyed before his injury.

A vocational expert testified that Ingram was considered a

younger worker with limited educational ability. The ALJ posed a

hypothetical worker with Ingram's past work experiences and a

light to sedentary work capacity with no prolonged standing,

walking, or sitting, and with an option to sit or stand at will.

The vocational expert responded that he could perform a

supervisory position as a transferred skill from the supervisory

role he had in his prior mechanic position. He identified that

type of work as semi-skilled light work. The vocational expert

also testified that Ingram could do light engine repair, or

security monitor work. If he were restricted to only sedentary

work, the vocational expert said he could work as a cashier or a

sales counter clerk.

The ALJ denied Ingram's application for benefits on April

28, 1995, finding Ingram not disabled because jobs existed in the

economy that Ingram could perform. In his decision, the ALJ

found that Ingram had "severe degenerative disc disease of the

spine with low back and cervical spine strain." He also found

5 that Ingram had a residual functional capacity for light and

sedentary work limited by a reguirement that he be allowed to

change position as necessary. The ALJ found that Ingram could

lift more than twenty pounds occasionally and ten pounds

freguently and he could stand and walk no more than fifteen

minutes at a time for a total of two hours in an eight hour work

day. He further found that Ingram's sitting was restricted to

two hours at a time, and he was precluded from doing any type of

work that would reguire him to do overhead reaching or repetitive

pushing and pulling. The ALJ concluded that Ingram could not

return to his past work as a production machine mechanic or as a

forklift operator. The ALJ found, however, that he was not

disabled because a significant number of jobs existed that he

could perform given his exertional capacity and limitations, age,

education, and work experience: supervisor, small engine repair,

security surveillance, cashier, sales counter clerk, assembly.

Ingram's appeal to the Appeals Council was denied. His

motion to reverse and remand the decision followed.

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.

6 Secretary of Health and Human Services,

(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. NLRB,

(1938)); see also Rodriquez Pagan v. Secretary of Health & Human

Servs.,

(1st Cir.1987, cert, denied,

(1988) .

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 Health & Human Services,

(1st Cir. 1984). And, the court will give deference

to the ALJ's credibility determinations, particularly where those

determinations are supported by specific findings. Frustaqlia v.

Secretary of Health & Human Services,

(1st Cir.

1987) (citing Da Rosa v. Secretary of Health and Human Services,

(1st Cir. 1986)). 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 Health and Human Servs.,

(1st Cir.

1996).

DISCUSSION

7 Ingram asserts that the ALJ's conclusion at the third and

fifth steps of the sequential analysis2 are not supported by

substantial evidence in the record. More particularly, he

asserts that his combination of impairments meets or equals a

listed impairment. Ingram also contends that the ALJ did not

sufficiently develop the administrative record at the hearing in

light of the fact that he had a lay representative but not an

attorney. He also contends that the record does not include

substantial evidence to support the residual functional capacity

for work that the ALJ used to find that he was not disabled, or

his capacity to do the jobs which the ALJ determined he could

perform. The issues raised are addressed as follows.

A. Recruirements of a Listed Impairment

A claimant may prove a disability at the third step of the

sequential analysis if he can show that his impairment meets or

equals an impairment listed in 20 C.F.R. part 404, subpart P,

appendix 1, and has existed or is expected to continue for the

2 The ALJ is required 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 equals 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.

.1520 (1995) . requisite twelve month period. The ALJ found that Ingram's back

condition did not meet or equal a listed impairment. Ingram

asserts, however, that the ALJ failed to consider all of the

evidence and that his condition, properly evaluated in light of

the evidence, equals a listed impairment. Although the medical

evidence in the record that Ingram points to on appeal tends to

support the pain aspect of the first element of a listed spinal

impairment, he has not established the second element:

" [a]ppropriate radicular distribution of significant motor loss

with muscle weakness and sensory and reflex loss." 20 C.F.R. p t .

404, subpt. P, A p p . 1 § 1.05(c)(2). Accordingly, as Ingram has

not shown that the ALJ erred in determining that his condition

did not meet or equal a listed impairment, his appeal on that

ground is denied.

B. Substantial Evidence in Record in Support of Finding

At the fifth step of the sequential analysis, the burden

shifts to the Commissioner to show that despite the claimant's

severe impairment, he retains the residual functional capacity to

do work other than his prior work and that work the claimant can

do exists in significant numbers in the national and regional

economies.

(f); Keating v. Secretary of

Health and Human Servs.,

(1st Cir. 1988) .

Ingram asserts that the record lacks substantial evidence to

support the ALJ's finding that he retained a residual functional

capacity to lift and carry up to twenty pounds occasionally and ten pounds frequently and that he could sit for a period of up to

two hours at a time. The ALJ did not indicate what record

evidence he relied on in making his finding of residual

functional capacity, although he stated that Ingram's treating

doctors' evaluations were persuasive as to "specific limitations

on his ability to perform some other work." In its motion for an

order affirming the Commissioner's decision to deny benefits, the

government points to evaluations in the record by two state

agency physicians and a consultation report from an orthopedic

surgeon as support for the ALJ's finding.

When a claimant has shown that he has an impairment that

prevents him from doing his prior relevant work, and its effect

on his ability to work is not readily apparent, a residual

functional capacity evaluation by an expert is necessary to

assess the claimant's ability to work. See Manso-Pizano,

. An ALJ cannot rely on his or her own interpretation of

the medical record to determine a claimant's ability to work

"'unless the extent of functional loss, and its apparent effect

on job performance, would be apparent even to a lay person.'"

quoting Santiago v. Secretary of Health and Human Servs.,

(1st Cir. 1991). Ingram's impairment due to his back

and neck condition was not sufficiently obvious to be assessed by

a lay person.

The parties agree that the residual functional capacity

found by the ALJ is for light work with some additional

restrictions. The Commissioner states that the opinions of two

10 state agency doctors and a consultative orthopedic surgeon

support the ALJ's finding that Ingram retained an exertional

ability to perform light work with certain restrictions. The

agency physician report cited was initially done in December 1993

by one doctor and was reviewed and affirmed in March 1994 by a

second agency doctor. A report, such as the one in this record,

by a nonexamining doctor that consists of merely checking boxes

on a form to indicate functional capacity is entitled to little

weight. Berrios Lopez v. Secretary of Health and Human Servs.,

951 F .2d 427, 431 (1st Cir. 1991).

The consultative orthopedic surgeon. Dr. Davison's,

assessment of Ingram's functional capacity was based on an

examination and is entitled to more weight than the opinion of a

nonexamining doctor.

(d)(1). Dr. Davison

concluded in July 1993 that Ingram could do light duty work, part

time, without prolonged standing or walking. In contrast,

Ingram's treating doctor. Dr. Nagel, assessed his functional

capacity in August 1994 and, based on a last examination in July

1994, found that Ingram was limited to lifting and carrying only

ten pounds and noted that the freguency of lifting and carrying

was "negligible." Dr. Nagel's findings were consistent with an

exertional level of sedentary work with additional restrictions.

A treating doctor's opinion is generally entitled to more

weight than a consultation examiner's opinion and is given

controlling weight unless it is not supported by accepted medical

diagnostic evidence or is inconsistent with other substantial

11 evidence in the record.

(d)(2). The ALJ

decided not to give Dr. Nagel's opinion controlling weight but

did not identify the reasons for his determination. Although the

Commissioner states in the motion for affirmance that Dr. Nagel's

opinion was inconsistent with other opinions and objective

medical evidence in the record, she points to no specific

examples. The record presented on appeal does not seem to

support the Commissioner's assertion. Accordingly, substantial

evidence does not exist in the record to support the ALJ's

finding that Ingram was capable of light work with certain

restrictions.

The Commissioner contends, however, that based on the

vocational expert's testimony, jobs exist in the relevant

economies that Ingram can perform even if limited to the

sedentary functional capacity assessed by Dr. Nagel. The ALJ

posed an alternative hypothetical claimant limited to a work

capacity to lift or carry no more than ten pounds with

restrictions on reaching, bending and stooping, prolonged

standing, walking or sitting, and with an option to change

position at will, as assessed by Dr. Nagel. The vocational

expert concluded that Ingram would be limited to unskilled

positions at the sedentary exertional level. The vocational

expert suggested jobs as a cashier, sales counter clerk, and

assembler of small parts as in electronics or machinery.

Ingram's representative challenged the vocational expert's

suggestions because he believed bending, twisting, and prolonged

12 standing would be required of sales clerks and cashiers. The ALJ

then asked whether the vocational expert had considered the

activities mentioned and the vocational expert responded that he

considered plumbing supply or hardware positions.

Ingram contends that the Dictionary of Occupational Titles'

("DOT") descriptions of jobs in each of the categories described

by the vocational expert are beyond Ingram's exertional and skill

limitations, so that substantial evidence does not exist to

support the ALJ's reliance on those jobs. The Commissioner takes

administrative notice of the accuracy of several sources of job

information including the DOT. 20 C.F.R. 404.1566(d). An ALJ

may rely on a vocational expert to provide an opinion about a

claimant's abilities and the relevant job market on complex

issues that cannot be resolved by manuals. See

(e). Some courts have determined that substantial

evidence does not support an ALJ's determination based on

testimony by a vocational expert that is clearly contradicted by

the DOT. See, e.g.. Smith v. Shalala,

(8th Cir.

1995) ("when expert testimony conflicts with the DOT, the DOT

controls"); Williams v. Shalala,

(D.C. Cir.

1993) (VE1s testimony in conflict with DOT does not constitute

substantial evidence); but see Johnson v. Shalala,

,

1425 (9th Cir. 1995) (ALJ may rely on testimony from expert that

is different from DOT); Conn v. Secretary of Health and Human

Servs.,

(6th Cir. 1995) (same).

13 In this case, the vocational expert did not reveal the

sources for his opinion regarding jobs which Ingram could perform

and there is no indication that he relied on DOT listings. The

DOT job classifications offered by Ingram to show that cashier,

sales counter clerk, and assembly positions all reguire greater

exertional and skill levels than his abilities do not give the

whole picture. The vocational expert limited his opinion to

assembly of small parts in electronics or machinery and to

cashier or sales clerk positions in hardware or plumbing supply.

It seems that no DOT listings for cashiers or sales clerk

positions in hardware or plumbing supply meet Ingram's exertional

and skill3 limitations. See, e.g., DOT #279.357-050

(Salesperson, general hardware: light exertional level, medium

educational level, more than three months of specific vocational

preparation). The DOT lists assembly job categories at the

sedentary exertional level that reguire less than a month of

preparation and a low general educational development. See,

e.g., DOT ## 726.684-110 (touch-up screener) , 726.687-030 (loader

semiconductor dies), 726.685-066 (bonder, semiconductor),

726.687-046 (wafer breaker, semiconductors), 725.687-022

(getterer lighting fixtures industry). However, it is unclear

3 "Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. . . . For example, we consider jobs unskilled if the primary work duties are handling, feeding and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed."

.1568 (a) .

14 whether the DOT listed assembly jobs would accommodate the sit or

stand option the ALJ required or the limitation on reaching and

repetitive pushing and pulling, as all of the assembly jobs

require at least occasional reaching and pushing and pulling. In

addition, it is not clear that the numbers of available jobs

suggested by the vocational expert are available in the specific

categories described in the DOT.

The generality and uncertainty of the vocational expert's

testimony coupled with conflicting information from the DOT

undermines the usefulness of his opinion on appellate review. On

balance, the opinion does not provide substantial evidence

establishing jobs Ingram could do given his residual functional

capacity. Accordingly, as substantial evidence is lacking to

support the ALJ's determination that jobs exist in significant

numbers in the relevant economies which Ingram could perform, his

determination at the fifth step that Ingram was not disabled is

reversed. The matter is remanded to the Commissioner for further

proceedings.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 27, 1997

cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.

15