Thompson v. SSA CV-97-145-SD 04/09/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles Thompson

v. Civil No. 97-145-SD

Kenneth S. Apfel, Commissioner, Social Security Administration

O R D E R

Plaintiff Charles Thompson brings this action pursuant to

the Social Security Act (Act),

(g), seeking review

of a final decision by defendant Social Security Administration

denying his claim for benefits under the Act. Before the court

is plaintiff's motion to reverse the Commissioner's decision1 on

grounds that (1) the Administrative Law Judge (ALJ) should not

have used Grid § 201.23 because his subjective complaints of pain

were not properly considered under the standards of Avery v.

Secretary of Health and Human Servs.,

(1st Cir.

1986), (2) the use of pain medication to ease his pain and his

illiteracy eroded his vocational base, and (3) his physicians'

opinions were not given the proper weight. The government has

moved to affirm the Commissioner's decision.

Plaintiff's memorandum supporting his motion for reversal of the Commissioner's decision exceeded the 25-page limit in Local Rule 7.1(a)(3). Plaintiff failed to request leave of the court for exceeding the maximum page limit. The court considers plaintiff's memorandum, but does not look favorably upon his disregard for the local rules of court. Pursuant to Local Rule 9.1, the parties have filed a joint

statement of material facts, a copy of which is attached herewith

(Attachment).

Discussion

1. Standard of Review

In this case, the Commissioner found plaintiff Charles

Thompson not disabled as defined under the Act. After a final

determination by the Commissioner and upon request by a party,

this court has the authority to review the pleadings and the

record of the proceeding, and to enter a judgment affirming,

modifying, or reversing the Commissioner's decision.

(g) (1994). The jurisdiction of the district court in

reviewing a final adverse decision is limited to determining

whether the administrative findings are supported by substantial

evidence in the record. Bourcrue v. Secretary of Health & Human

Servs., No. CV-93-248-L slip op. at 8 (D.N.H. Nov. 8, 1993)

(citing Gray v . Matthews,

(D.C. Cal. 1976)).

Substantial evidence means "more than a mere scintilla. It means

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)). Substantial evidence is "something

less than the weight of the evidence, and the possibility of

drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported

by substantial evidence." Consolo v. Federal Maritime Comm'n,

(1966) (quoting NLRB v. Nevada Consolidated

Copper Corp.,

(1942)). A denial of social

security disability benefits should be upheld unless it is clear

that "the Commissioner has committed a legal or factual error in

evaluating a particular claim." Manso-Pizarro v. Secretary of

Health & Human Servs.,

(1st Cir. 1996) (quoting

Sullivan v. Hudson,

(1989)).

2. Determination of Disability

Disability is the inability to engage in any substantial

gainful activity by reason of any medically determinable physical

or mental impairment which can be expected to result in death or

which has lasted or can be expected to last for at least 12

months.

(d)(1)(A) (West Supp. 1997). A claimant

is disabled under the Act if his "physical or mental impairment

or impairments are of such severity that [he] is not only unable

to do [his] previous work but cannot, considering [his] age,

education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy,

regardless of whether such work exists in the immediate area in

which [he] lives or whether a specific job vacancy exists for him

or whether [he] would be hired if [he] applied for work." 42

(d)(2)(A) (1994). The ALJ is required to employ the

following five steps in sequence when analyzing a disability

claim:

1) whether the claimant is engaged in substantial gainful

activity;

2) whether the claimant has a severe impairment;

3) whether the impairment meets or equals a listed

impairment described in Appendix 1;

4) whether the claimant has sufficient residual functional

capacity which is defined as what an individual can do despite

limitations in performing [his] past work; and

5) whether the impairment prevents the claimant from doing

any other gainful and substantial work within the economy based

upon [his] age, education, work experience and residual

functional capacity. See

(1997).

If the claimant is engaged in substantial gainful activity,

his claim will be denied at the first step. However, if not, the

ALJ must decide whether his impairment is severe. If the

claimant's medical condition is severe, his claim will proceed to

Step 3. A claimant's claim must be approved if his impairment

either meets or equals one listed in Appendix 1. If his

impairment does not, his claim for disability proceeds to Step 4.

If the claimant can perform his past work, his claim is denied.

If he is unable to perform his past employment, the Commissioner

4 must determine, based upon his age, education, past work

experience, and residual functional capacity, whether he can

perform other work that exists in substantial numbers in the

national economy. A claimant will be considered disabled and

eligible for benefits if based on the above factors of age,

education, and work experience he could not perform work that

exists in the national economy. 2 B a r b a r a Sa m u e l s , S o c i a l S e c u r i t y

D isability C laims Practice and Procedure § 22:8 (2d ed. 1994) .

At the fifth step, the Grid at

, Subpart P,

Appendix 2, 200.00(a)- (e) (1997) simplifies the Commissioner's

task of determining whether claimants can perform work that

exists in the national economy enabling "the [Commissioner] to

satisfy [the] burden in a 'streamlined' fashion without resorting

to 'the live testimony of vocational experts.'" Ortiz v.

Secretary of Health & Human Servs.,

(1st Cir.

1989) (quoting, Sherwin v. Secretary of Health & Human Servs.,

(1st Cir. 1982)). The Grid, which is a matrix

combining different permutations of four essential factors set

forth in the statute; i.e., age, education, work experience, and

residual work capacity, applies to claimants who have only

exertional limitations.2

. The

2Exertional impairments limit an individual's ability to do work that requires lifting, walking, and standing. The C.F.R. classifies jobs as sedentary, light, medium, heavy, and very heavy. See C.F.R. § 404.1567. The Grid applies to individuals

5 Grid states as to each factor combination, whether a claimant is

"disabled" or "not disabled." Id. If a claimant's

characteristics such as vocational factors or residual functional

capacity are not contemplated by the Grid and are not identical

to any rule, the Grid does not apply, but may be used as a guide.

, 416.969 (1997). The Commissioner must

rely on the Grid unless a claimant has a nonexertional impairment

that significantly reduces the range of jobs he might otherwise

be able to perform. Burgos Lopez v. Secretary of Health and

Human Servs.,

(1st Cir. 1984). However, if only

nonexertional limitations exist, then the Grid rules cannot be

applied, and independent vocational testimony may be required

instead. See Sanders v. Sullivan,

(8th Cir. 1992).

Reliance on the Grid is appropriate where a nonexertional

limitation does not impose a significant restriction on the range

of work that a claimant is able to perform. Ortiz, supra, 890

whose exertional impairments limit them to sedentary, light, or medium work. A nonexertional impairment is a symptom which arises in the absence of physical activity and includes limitations that affect: mental activity, such as thinking, relating, following instructions, accepting supervision, getting along with co-workers; sensory experiences, such as seeing, hearing; communication, such as speaking; postural, such as ability to stand, sit, walk with normal gait, bend, stoop; and manipulative skills, such as the ability to use one's fingers and hands to maneuver objects. Further, if pain is triggered by physical activity, it is considered an exertional impairment. If a symptom such as pain is not related to exertion, but arises in absence of physical activity, then it is considered a nonexertional limitation. 2 S a m u e l s , supra, §22:29.

6 F.2d at 524. The more the occupational base is reduced by a

nonexertional impairment, the less applicable the Grid rules

become. Id.

3. Commissioner's Decision

In this case, the ALJ found that Mr. Thompson had not

engaged in substantial gainful activity since July 4, 1994. The

ALJ further found that the medical evidence established that Mr.

Thompson's degenerative disc disease qualified as a severe

impairment which significantly interfered with his ability to

perform basic work activities, but was not an impairment which

met or equaled the severity of any impairment listed in or

medically equivalent to one listed in

, Subpart P,

Appendix 1 (1997). The ALJ also determined that Mr. Thompson

could not perform his previous work responsibilities as a general

maintenance man and automobile mechanic because of the amount of

lifting, bending, carrying, standing, and walking involved.

However, the ALJ found that Mr. Thompson had the residual

functional capacity to perform the physical exertion and

nonexertional requirements to work except for lifting and

carrying over 10 pounds and work which required prolonged periods

of walking and standing. See

, 416.945

(1997). Court Transcript (Tr.) 73.

7 The ALJ decided that Mr. Thompson's complaints of severe

pain were not credible and did not further limit his functional

capacity. Mr. Thompson's physicians and the independent

physician's assessment of his injury actually stated that he

could perform light work. The ALJ gave Mr. Thompson the benefit

of the doubt by balancing his complaints of pain with the

physicians' assessments to determine that he could perform a full

range of sedentary work.3

Since Mr. Thompson established that he can no longer perform

the duties of his past relevant work, the Commissioner had the

burden to determine if there were jobs in the national and

regional economy that Mr. Thompson could perform which were

consistent with his vocational factors and residual functional

capacity. Mr. Thompson's nonexertional limitations were not

significant enough to make the Grid inapplicable. Therefore the

ALJ determined that the Grid mandated a finding that Mr. Thompson

was not disabled. See

, Subpart P, Appendix 2,

201.23 (1997). The ALJ determined that Mr. Thompson was not

disabled within the meaning of the Act because he retained the

3Sedentary work is defined as that work which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

(a) (1997). ability to perform sedentary work which exists in significant

numbers in the national economy.

Mr. Thompson contends that the ALJ improperly relied on the

Grid because he failed to consider his subjective complaints of

pain which, according to Thomson, precludes him from performing a

full range of sedentary work.4 The ALJ is required to consider

subjective complaints of pain or other symptoms made by a

claimant who presents a clinically determinable medical

impairment that can be reasonably expected to produce the alleged

pain. According to Avery, the ALJ must consider the following

factors: 1) the nature, location, onset, duration, frequency,

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

restrictions; and 6) the claimant's daily activities.

. When the ALJ is assessing the credibility

of the claimant's pain, he may draw an inference that the

claimant would have sought additional treatment if the pain was

as intense as claimant alleges.

Credible complaints of pain

4Thomson also contends that his illiteracy further limits the work available to him. This argument, however, is specious because the ALJ relied on the Grid Rule 201.23, which is the rule that applies to younger individuals who are illiterate and able to perform sedentary activity. may be determined to diminish a claimant's capacity to work.

Id.; see

(d) (West Supp. 1997);

(c)(4) (1997).

The evaluation of subjective complaints of pain calls for a

determination on the credibility of the claimant's testimony and

objective findings. See Frustaglia v. Secretary of Health &

Human Servs.,

(1st Cir. 1987). In this case,

Mr. Thompson was asked about the nature, location, onset,

duration, frequency, radiation, and intensity of his back pain.

He replied that the pain was in his lower back and that it was

sharp and constant. He rated the pain a ten on a scale of one to

ten in intensity, and said it radiated down his right and left

legs, causing them to go numb. Tr. 102-103. Mr. Thompson

further stated that the weather and activities such as bending,

lifting, driving, sitting, or standing for long periods caused

pain to his back. Tr. 101, 103-104. He also testified that he

was on Flexeril and Percocet, which he took for pain when it

caused him to awaken in the night. Tr. 102-103.

The ALJ found "that the claimant does not credibly

experience pain at a level that would further reduce his

functional capacity." Tr. 71. The ALJ found Mr. Thompson's

complaints of pain inconsistent with such daily activities as

taking and picking up his son from school, cooking, sweeping the

floor, grocery shopping, socializing with friends, and fishing.

10 Tr. 70-71, 101-02, 148-150. The ALJ also noted that Mr. Thompson

rejected Dr. Kudins' suggestion that surgery may be an option,

and originally refused physical therapy. Tr. 122. Both Dr. Levy

and Dr. Kudins suggested epidural injections to help control the

pain, yet Mr. Thompson refused such measures. Tr. 178, 180, 182.

Mr. Thompson further argues that the ALJ's finding of no

disability was not supported by substantial evidence because the

reports by Dr. Kudins and Dr. Clark were not given proper weight.

The court, however, finds this argument meritless. According to

Dr. Kudins, Mr. Thompson could lift about 20 pounds, but should

avoid extensive bending, twisting, or frequent lifting. Tr. 183.

Dr. Kudins' reports all support the ALJ's determination that Mr.

Thompson could perform sedentary activity. In his notes Dr.

Kudins opined "from a purely medical standpoint he does have a

sedentary to light duty capacity . . . ." Tr. 184. In a later

assessment Dr. Kudins stated that "although I believe he does

have a light duty to sedentary work capacity, he basically is

disabled from any type of gainful employment, when considering

his education, training, and work experience." Tr. at 187.

While Dr. Kudins is certainly qualified to assess Thompson's

physical capacity, the determination of disability under the

Social Security Act is a legal determination for the ALJ. In

fact, given the doctor's opinion that Thompson could perform

11 sedentary work, the applicable law requires a finding of no

disability.

5. Evidence Submitted After ALJ's Decision

Mr. Thompson argues that Dr. Clark's report supported a

finding of disability and was not allowed to be put into evidence

and given its proper weight. However, Dr. Clark's opinion about

Mr. Thompson's pain and disability came after the ALJ heard and

decided the case. Tr. 7-8. Under

(g), a court

may at any time order additional evidence to be taken before the

Commissioner, but only upon a showing that there is new material

evidence and that there is good cause for the failure to

incorporate the evidence into the record of the prior proceeding.

(g) (1994). In the First Circuit, a district

court must find that the evidence is "new" and "material" and

that "good cause" exists for the failure to seasonably offer the

evidence. Evangelista v. Secretary of Health & Human Servs.,

(1st Cir. 1987). The question in this case is

not whether the additional evidence by Dr. Clark was new or that

good cause existed for not seasonably offering it to the ALJ,

because the surgery did not take place until after the ALJ's

decision, but whether Dr. Clark's opinion was material.

To decide whether evidence is material, the court must ask

if the ALJ's decision "might reasonably have been different" if

12 he had the opportunity to consider the evidence. Falu v.

Secretary of Health & Human Servs.,

(1st Cir.

1983). The reports of Dr. Clark do not differ significantly from

the other medical reports before the ALJ. When Mr. Thompson

first saw Dr. Clark, he was only taking over-the-counter Tylenol

and no other pain medications. Tr. 7. Dr. Clark suggested

epidural steroids and physical therapy. Tr. 8. Dr. Clark also

suggested to Mr. Thompson that using his old back brace might

help subside the pain. Tr. 11. Surgery was discussed on

September 4, 1996, and performed on October 30, 1996. Tr. 13,

20-21. According to a November 18, 1996, report by Dr. Clark,

Mr. Thompson's neurologic exam was normal, and he did not see

anything wrong which would cause back spasms and numbness and

tingling down Mr. Thompson's left leg. Tr. 17. Everything still

looked normal on November 26, 1996, even though Mr. Thompson

still complained of back pain. Therefore, even in light of the

additional evidence, the finding of the Commissioner that Mr.

Thompson was not disabled as defined under the Act was supported

by substantial evidence.

Conclusion

Because the court finds that substantial evidence exists to

support the ALJ's decision that Mr. Thompson's back pain does not

constitute a disability under the Act, the ALJ was not in error

13 in denying Mr. Thompson disability benefits. The court denies

Mr. Thompson's Motion to Reverse the Decision by the Commissioner

and grants the Defendant's Motion for Order Affirming the

Decision of the Commissioner.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

April 9, 1998

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

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