Swanick v. SSA CV-97-343-M 05/18/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Thomas Swanick, Plaintiff

v. Civil No. 97-343-M

Kenneth S. Apfel, Commissioner Social Security Administration, Defendant

O R D E R

Plaintiff, Thomas Swanick, moves for district court review

pursuant to

(g), and to reverse the decision of

the Commissioner denying him social security benefits. Swanick

contends that the Administrative Law Judge ("ALJ"), Robert S.

Klingebiel, erred in referring to the Medical Vocational

Guidelines ("the Grid") rather than seek the opinion of a

vocational expert, and improperly assessed the record, including

the opinion of his treating physician. For the reasons that

follow, the decision of the Commissioner is reversed, and the

case is remanded for further administrative proceedings.

BACKGROUND

The following material background information is summarized

from the parties' joint statement of material facts.

Thomas Swanick filed applications for disability benefits

and supplemental security income on March 2, 1995, on grounds that he had been unable to work since February 1, 1994. Swanick

contends that he was disabled by the effects of a stroke he

suffered on February 1, 1994. Prior to that date, Swanick worked

in masonry construction and had twenty-four years of experience.

Swanick had a high school education and was forty-seven years old

when he stopped working. Swanick reported that he had the stroke

while working in Arizona in February 1994 and that he moved to

New Hampshire to be with his family.

Swanick began medical treatment for the effects of the

stroke on May 13, 1994, when he reported to personnel at the

Veterans Administration Hospital ("VAH") in Manchester that he

thought he had suffered a stroke on February 1. He described a

weak feeling on his left side from head to toe since the

incident, but denied blurred vision, shortness of breath, and

chest pain. He admitted alcohol abuse and regularly smoking two

packs of cigarettes per day. Physical examination revealed that

his cranial nerves and motor sensory systems were intact, he was

in no acute distress, and was oriented in three spheres. His

blood pressure was measured at 218/148, but after receiving

Librium (medication for treatment of anxiety) and hydration, his

blood pressure dropped to 145/80. The assessment was alcohol-

related hypertensive symptoms, and he was encouraged to stop

drinking alcohol and to stop smoking. Quinopril was prescribed

2 (treatment for hypertension), and he was scheduled for

reassessment in three days.

During his return visit to the VAH on May 1 6 , Swanick

reported that he felt better after taking his medication. He

told the examiner that he could not work because his left side

was "numb." His physical examination showed egual muscle

strength and deep tendon reflexes in his arms and legs on both

sides. He was advised to continue hypertension medication and to

stop drinking and smoking. A CT scan provided inconclusive

results. When Swanick returned to the VAH for a blood pressure

check in June, he was put on Hydrochlorthiazide, a diruetic

medication used to treat hypertension, and was again advised to

stop smoking and drinking.

In July 1994, the New Hampshire Disability Determination

Service ("DDS") had Swanick's medical records reviewed for an

assessment of his residual functional capacity. Dr. Nault

concluded that Swanick was able to occasionally lift up to fifty

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

that he could stand or walk up to six hours a day and sit for six

hours with normal breaks. Dr. Nault found no manipulative,

postural, communicative, visual, or environmental limitations.

Dr. Nault commented that Swanick's records indicated no

perceptible deficits and found no evidence of sensory or strength

loss on his left side.

3 During a psychiatric examination on August 1, 1994, Dr.

Standow noted that Swanick walked normally and showed no unusual

movements. Two weeks later in August, Swanick underwent a

general medical examination to determine his eligibility for a

Veterans Administration pension. Swanick said that he smoked and

drank beer. He told the examiner that he may have had a stroke

and that he took Hydrochlorthiazide and Quinopril for his blood

pressure. He had no complaints about his physical condition.

His physical examination showed no significant problems (other

than blood pressure) or deficits, and his neurological

examination again revealed egual motor strength in right and left

sides in all extremities. He demonstrated good repetitive motion

with his fingers and his reflexes were egual bilaterally. The

evaluation report diagnosed essential hypertension, increased

alcohol consumption, status "post transient ischemic attack," and

a liver test provided abnormal results.

In March 1995, the DDS referred Swanick to neurologist

Robert Thies, M.D., for an independent medical examination.

Swanick described the incident in February 1994 that he believed

to have been a stroke and told Dr. Thies that his left arm had

been clumsy since that time and that he had reduced sensation on

the left side of his face. Dr. Thies performed a motor

examination that showed Swanick had clumsiness of rapid

alternating movements of the left hand, a downward drift of his

4 left arm, and that his reflexes were absent. The sole of his

left foot was "upgoing," while the right sole was "downgoing,"

and he favored his left leg slightly when walking. Dr. Thies

noted "a guestion of a patch and impersistent decrease in

appreciation of touch over the left hand as compared to the

right." He concluded that his examination and Swanick's

descriptions were compatible with deep right cerebral dysfunction

and that he was a candidate for a lacunar stroke because of his

high blood pressure.

A consulting non-examining physician reviewed Swanick's

medical records on April 5, 1995, and concluded that he could

occasionally lift up to twenty pounds and freguently lift and

carry up to ten pounds. He could stand or walk for up to six

hours in a day and could sit for six hours with normal breaks.

The consulting physician found limitations on Swanick's ability

for climbing, handling, and fingering.

In May 1995, Swanick had another neurological evaluation.

Dr. Astarjian, the examiner, found that Swanick's motor

examination showed a definite drift in his left arm, and weakness

and pronation in his left leg. The sensory examination showed

discrepancy between the left and right side of the body with the

left side being at least fifty percent less perceptive of a pin

prick, although other sensory perceptions were intact. Dr.

Astarjian believed that Swanick had suffered a stroke, and that

5 his moderate left-sided weakness would hinder him from returning

to his previous occupation as a pipe fitter although he could

perform desk work.

During a psychological evaluation in August 1995, Swanick

told Dr. Berke that "his brain works fine" but that his left side

was weak and that he got tired doing physical work. He admitted

drinking a six pack of beer a day, as he had for twenty years,

and Dr. Berke noticed alcohol on his breath. Dr. Berke found

that Swanick had an average ability to perform tasks involving

sustained attention. He diagnosed alcohol abuse and an

unspecified personality disorder and concluded that his ability

to work might be compromised by his "cynicism" and perhaps a lack

of motivation.

In January 1996, at the reguest of Swanick's attorney. Dr.

Gordon of the VAH prepared an assessment of Swanick's ability to

perform work-related activity, concluding that Swanick could not

lift or stand, that he could sit for two to three hours, but that

he could not climb, balance, stoop, crouch, kneel, or crawl, and

that reaching handling, feeling, and pushing or pulling were

affected by his impairment. Also in January, a repeat CT scan

confirmed that Swanick had suffered a right lacunar infarct that

was unchanged since May 1994. Swanick's medical records indicate

that he continued to smoke and drink throughout the period.

6 Swanick's applications for benefits were initially denied,

and he was granted a hearing before an ALJ. He attended with his

attorney and testified about the effects of the stroke on his

strength and activities. He testified that his whole left side

was affected causing him to tire easily so that he could not

stand for more than twenty minutes without resting and had to

rest climbing two flights of stairs. Describing the weakness of

his left side, he said that he could not hold bread with his left

hand long enough to make turkey stuffing. He said that he could

vacuum, clean, and dust his apartment but that he needed

assistance for bigger tasks like moving things around. He

testified that he did not drive a car anymore because his left

arm and leg did not react reliably.

The ALJ determined that Swanick was not able to return to

his past work as a masonry pipe layer but that he was not

disabled from all work. He denied Swanick's applications for

benefits in a decision issued on January 26, 1996. The Appeals

Council considered additional arguments and medical exhibits

submitted by Swanick's counsel, that were not considered by the

ALJ, but concluded that the additional materials did not provide

a basis for changing the ALJ's decision denying benefits.

Standard of Review

7 After a final determination by the Commissioner and upon

request 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.

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 C i r . 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

On appeal, Swanick challenges the ALJ's determination, made

at the fifth step of the seguential analysis, that he was not

disabled during the relevant period.1 At the fifth step, 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), 416.920(f);

Keating v. Secretary of H.H.S.,

(1st Cir.

1988). Swanick contends the ALJ did not properly evaluate the

evidence of his reduced physical functional capacity caused by

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.

(1995); see also

(1995). his stroke and erred in using the Grid to determine that he was

not disabled.

A. Record Evidence of Functional Capacity

Swanick argues that the opinion submitted by his treating

physician. Dr. Gordon, was not given proper weight. The parties

assume that Dr. Gordon's opinion is part of the administrative

record for review even though the Appeals Council, not the ALJ,

received and evaluated the opinion.2 In addition, Swanick

contends that the ALJ did not properly assess other evidence of

his physical limitations. Because the court finds that the ALJ's

reliance on the Grid was error in this case, reguiring remand for

an opinion by a vocational expert, it is not necessary to resolve

issues about the weight to be given Dr. Gordon's opinion, or the

ALJ's assessment of other record evidence.

B. Use of the Grid

2 Most courts considering the guestion have held that evidence not considered by the ALJ but submitted to and considered by the Appeals Council pursuant to

(b), which then denied review, may nevertheless be considered as part of the administrative record on appeal. See, e.g., Perez v. Chater, 77 F .3d 41, 45 (2d Cir. 1996); Box v. Shalala,

(8th Cir. 1995); O'Dell v. Shalala.

, 859 (10th Cir. 1994); Keeton v. Department of Health and Human Servs.,

(11th Cir. 1994); Wilkins v. Secretary,

(4th Cir. 1991); but see Perkins v. Chater,

(7th Cir. 1997); Casev v. Secretary of Health and Human Servs., 987 F .2d 1230, 1233 (6th Cir. 1993).

10 The ALJ relied on the Grid for light work, Medical-

Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P, A p p . 2, Rule

202.21, to determine that a significant number of jobs existed

that Swanick could do despite his limitations. The ALJ found

that Swanick was a "younger individual," with a high school

eguivalency diploma, and without transferable work skills. He

found that Swanick retained the exertional capacity for light

work limited by his "inability to perform rapid alternating

movements of his non-dominant left hand." The ALJ concluded that

Swanick's dexterity limitation "impacts very few jobs in the

light or sedentary job base" and determined, based on the Grid,

that Swanick was not disabled.

The Grid provides a "streamlined" method for determining

whether jobs, which claimant can perform, are available when a

claimant's nonexertional impairments do not significantly affect

his ability to perform the full range of jobs available at the

appropriate exertional level. Heggartv v. Sullivan,

(1st Cir. 1991). "Where a claimant has nonexertional

impairments in addition to exertional limits, the Grid may not

accurately reflect the availability of jobs such a claimant could

perform." I d . at 996. Limitations in the use of the hands

necessary for work is a nonexertional impairment. Heggartv, 947

F .2d at 996.

11 The functional capacity necessary to perform the full range

of light work includes the capacity to do sedentary work as well.

20 C.F.R. Part 404, Subpt. P, App. 2, Rule 202(a). The ALJ found

that Swanick's limitations would impact "very few jobs in the

light or sedentary job base." Because most sedentary jobs

reguire use of the hands in working with small objects, however,

an inability to perform jobs reguiring bilateral manual dexterity

significantly reduces the number of jobs available at the

sedentary level. I d . at Rule 201(h); see also Heggartv,

. For that reason, use of the Grid is inappropriate when a

claimant limited to sedentary work is further limited by

nonexertional dexterity impairments. I d . at 997; Foote v.

Chater,

(11th Cir. 1995).

The guestion then remains as to whether the record includes

significant support for the ALJ's conclusion that Swanick's

limitations would not significantly impact the number of light

and sedentary work jobs that he could do. Social Security Ruling

83-10 explains that jobs in the light work exertional level would

reguire "use of arms and hands to grasp and to hold and turn

objects, and they generally do not reguire use of the fingers for

fine activities to the extent reguired in much sedentary work."

The regulations explain that light work either involves a good

deal of walking and standing or, if sitting, reguires "some

12 pushing and pulling of arm or leg controls."

, § 416.967.

The ALJ found that Swanick could not perform jobs reguiring

rapid alternating movements with his left hand. The undisputed

medical record, however, suggests a broader limitation.

Neurologists' examinations found that Swanick experienced

"downward drift" of his left arm, his reflexes were absent, his

left leg and arm showed weakness, and a marked decrease (fifty

percent) in feeling a pin prick on his left side.3 Swanick

testified that he had not driven a car since his stroke because

of the uncertain response of his left arm and leg. A consulting

non-examining physician's residual functional capacity evaluation

in April 1995 concluded that Swanick's abilities for both gross

and fine manipulation were limited.

Given the nature of Swanick's nonexertional limitations in

using his left arm and leg, including the ALJ's finding that

Swanick could not perform the full range of light and sedentary

work, substantial evidence is lacking in this record to support

the ALJ's finding that Swanick's limitations would not

substantially impact the jobs available at the light exertional

level. Accordingly, the ALJ's reliance on the Grid to meet the

3 Although earlier general medical examinations reported no strength or sensory deficits on the left side, generally the medical findings of a specialist, such as the neurologists, are given more weight in the area of expertise. See

(d)(5), 416.927(d)(5).

13 Commissioner's burden at step five was erroneous, and the case

must be remanded to allow the ALJ to take further vocational

evidence. Upon remand, the record shall be reopened for

additional evidence pertinent to the period of application.

Conclusion

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

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

motion to affirm the decision (document no. 8) is denied; and the

case is remanded for further administrative proceedings that are

consistent with this order. The clerk of court is directed to

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 18, 1998

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

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