Richard Elliott v. SSA CV-97-276-B 09/29/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Elliott

v. Civil No. 97-276-B

Kenneth S. Apfel, Commissioner of the Social Security Administration

MEMORANDUM AND ORDER

Richard Elliott has a history of health problems, including

back and respiratory difficulties.1 Elliott first applied for

Title II Social Security Disability Income ("SSDI") benefits on

September 15, 1992. The Social Security Administration ("SSA")

denied Elliott's application at the initial determination level

on December 30, 1992. Elliott did not appeal and his insured

status expired the following day. Elliott filed a subseguent

application for disability benefits on November 29, 1994. The

SSA denied Elliott's second claim, with an Administrative Law

Judge ("ALJ") rendering an unfavorable decision on September 2 9,

1 Elliott's 1994 application for disability insurance benefits alleged an inability to work since November 17, 1986, due to chest pain, carotid artery disease, arteriosclerosis, pulmonary disease, low back pain, and glaucoma.

1 1995. The Appeals Council denied Elliott's request for a review

of the ALJ's decision on April 10, 1997.

Elliott brings this action pursuant to Section 205 (g) of the

Social Security Act,

(g) (West Supp. 1998) ("the

Act"), seeking review of the SSA's 1995 decision denying his

claim for benefits. Elliott claims that the ALJ's determination

that he was not disabled within the meaning of the Act and that

he could perform light work as defined by SSA regulations is not

supported by substantial evidence.

For the reasons that follow, I grant Elliott's motion and

remand the case to the ALJ for further review.

I. FACTS2

Elliott was born on October 9, 1940, and was 54 years old

when ALJ Robert S. Klingebiel denied his second claim in 1995.

He is a high school graduate who, prior to his alleged dis­

ability, worked for more than 20 years as a mill man, supply man,

mold cleaner, and rubber cutter for Goodyear Tire and Rubber

Company. He has not engaged in substantial gainful employment

2 Unless noted otherwise, the following facts are taken from the Joint Statement of Material Facts submitted by the parties to this action.

2 since November 17, 1986. (Tr. 15) .3

Elliott suffered a back injury in July 1986 while carrying a

bureau down a flight of stairs. Dr. David Russo diagnosed

Elliott with recurrent acute low back strain. Dr. Russo pre­

scribed five weeks of physical therapy before clearing Elliott to

return to work on August 21, 1986. A week after returning to

work, Elliott was treated for low back muscle spasms and stiff­

ness in the emergency room of M t . Ascutney Hospital. Elliott

received prescriptions for Valium and Advil. He returned to the

emergency room once again on November 17, 1986, after suffering

low back pain while working. Elliott later told Dr. A. S.

Goldstein that he had crawled under a machine to remove an object

when he felt intense pain, then numbness, before he collapsed on

the floor and had to be assisted by co-workers. Dr. Goldstein

diagnosed Elliott with "recurrent episodes of disc protrusion

probably involving the 5th lumbar root on the right." He

indicated that Elliott had a good prognosis for recovery, but

that recurrent episodes were likely.

Elliott then saw Dr. C. Frederick Lord, an orthopaedic

surgeon, on March 6, 1987, complaining of low back pain radiating

3 "Tr." refers to the certified transcript of record filed by the Commissioner of the Social Security Administration with the Court.

3 into his buttocks, legs, and feet. He also complained of numb­

ness and tingling, which made it difficult to remain in one

position. Dr. Lord diagnosed Elliott with spinal stenosis with

superimposed L4-L5 disc herniation. He indicated that Elliott's

condition would bar him from returning to his job, as it reguired

heavy manual labor. He prescribed continued conservative treat­

ment, but did not rule out surgery. That same month, Elliott saw

Dr. William Kois, a physiatrist,4 at the reguest of his insurance

company. Dr. Kois observed that Elliott could sit for about 30

minutes, if allowed to continuously shift his weight or position.

He could stand for only 10 minutes and could go up and down

stairs using safety devices. He also found that Elliott had a

limited range of motion in his spine and appeared to be suffering

significant pain. Dr. Kois determined that surgery was

appropriate.

Dr. Lord performed back surgery on Elliott on October 22,

1987, after a September visit in which Elliott reported worsening

symptoms. A CT scan and myelogram performed on October 21, 1987,

confirmed bulging of the L5-S1 disc with impingement of the right

SI nerve root. After surgery, Elliott reported that he had no

4 The specialization in physical or rehabilitation medicine.

4 leg pain but did feel tingling in his right leg. Elliott again

complained of tingling, coupled with numbness, at follow-up

appointments with Dr. Lord in November and December 1987 and

January 1988. He also exhibited a stiff range of motion in his

back and pain upon backward and lateral bending. Dr. Lord

prescribed Motrin, Orudis, and Depo-Medrol. Dr. Lord then

referred Elliott to a physical therapist and continued to follow

his progress through July 1988.

Elliott participated in physical therapy at M t . Ascutney

Hospital during January and February 1988. At one appointment,

Elliott was unable to perform due to respiratory problems. At

another appointment, he reported increased pain after sneezing

the previous week.

Elliott returned to Dr. Lord in February 1988. Dr. Lord

found that Elliott had decreased right ankle jerk reflex,

decreased sensation to pin prick, muscle spasms in his lower

back upon straight leg raising, and hamstring tightness. Dr.

Lord referred Elliott to Dr. Leonard Rudolph, an orthopaedic

surgeon, who recommended continued conservative treatment. Dr.

Lord agreed, and sent Elliott to Dr. Seddon Savage, a board

certified anesthesiologist, to consider epidural and trigger

point steroid injections.

5 Elliott saw Dr. Savage in March 1988. She later admini­

stered epidural steroid injections to Elliott, who stated that

the injections produced no change in the feeling of his lower

back, but that they did decrease neck stiffness for several

hours. She also referred Elliott to physical therapist William

Cioffredi. Elliott saw Cioffredi for regular physical therapy

sessions from March until August 1988.

Elliott's doctors noted some signs of improvement during

this time, but also freguent setbacks due to sneezing, trying to

remove a car battery, and driving to doctor appointments.

Elliott no longer hunted or fished. He spent most of his time

reading, listening to the radio, or watching television. He

reported that he suffered from night-mares, as well as pain or

spasms which woke him up at night. His appetite was poor. He had

also become irritable, which led to stressful relationships with

his family.

On March 9, 1988, Dr. Lord completed a functional capacity

assessment of Elliott, stating that Elliott should never lift or

carry more than 10 pounds. He estimated that Elliott could

return to work in July 1988 on a part-time basis, working three

to four hours a day. (Tr. 395-95) .

6 In an August 24, 1988, discharge note, Cioffredi wrote that

Elliott continued to improve through physical therapy and was

probably able to return to "limited periods of light duty

activity." He noted that Elliott's symptoms were "periodically

aggravated," but that Elliott was able to resolve them with his

home exercise program. (Tr. 292).

Dr. Lord wrote to an employment consultant for Elliott's

worker's compensation carrier on August 25, 1988, that Elliott's

condition was essentially unchanged. Although he recommended

Elliott participate in a work hardening program, he noted that he

was not optimistic. Dr. Lord wrote that "Although [Elliott] is

certainly not crippled, on the other hand he is not in any way,

shape or form in any condition to be employed gainfully."

In a letter dated September 11, 1988, Dr. Savage wrote that,

if Elliott continued to improve, he could return to a sedentary

or light job on a part-time basis. She stated that his work

should not involve lifting or carrying more than 10 pounds (with

rare lifting or carrying of less than 10 pounds), prolonged

sitting or standing, or repetitive arm movements. She advised

that Elliott suffers from respiratory problems and that his

primary care physician. Dr. Beach Conger, should be contacted to

determine whether the problems would further restrict Elliott's

7 capabilities. Dr. Savage examined Elliott two days later and

noted that Elliott could return to sedentary work on a part-time

basis. Elliott reported that he was worried about returning to

work because of the increased pain he suffered with increased

activity. (Tr. 301-02). Dr. Savage observed in her examination

notes that Elliott's flexibility and pain had worsened since

discontinuing physical therapy three weeks earlier. She

recommended that he return for weekly physical therapy sessions.

In a functional capacity report dated September 13, 1998,

Dr. Savage stated that Elliott could never lift or carry more

than 10 pounds, and could only occasionally lift or carry up to

10 pounds. (Tr. 396-97). She noted that he could walk for a few

minutes at a time for a total of one hour, and sit or stand for a

few minutes at a time for a total of four hours. Dr. Lord

completed a similar assessment on September 16, in which he

stated that he "agree[s] totally" with Dr. Savage's report. (Tr.

399) .

The following month. Dr. Savage again examined Elliott, who

told her that he was stretching and exercising at home and that

his back was stable. He complained of neck pain accompanied by a

"sickening, nauseating discomfort." She concluded that Elliott's

improvement was stable, but that he had degenerative joint

8 disease of the neck, which she treated with a nonsteroidal anti­

inflammatory medication. She treated Elliott a final time in

December 1988. He reported at that appointment that he had tried

to increase his activities, but he had suffered muscle spasms

since trying to cut and trim a Christmas tree.

Between April 1989 and March 1990, Elliott saw Dr. Kois, Dr.

Rudolph, and Dr. Conger for his back condition. In a November

1989 letter. Dr. Rudolph calculated that Elliott had a 15 percent

permanent disability of his entire body. Dr. Conger and Dr. Kois

recommended physical therapy and work hardening programs.

Elliott used a back brace to keep from bending, and told Dr. Kois

that it seemed to help. In March 1990, Dr. Kois noted that the

brace restricted Elliott's lung capacity and that Elliott's

respiratory illness was complicating his rehabilitation. He

wrote that Elliott needed a more aggressive physical therapy

program, noting that "I cannot see how we can make Mr. Elliott a

viable member of the work force unless a coordinating program is

developed."

Elliott underwent a functional capacity assessment on May 7,

1990. Linda Smith-Blais, a physical therapist, reported that

Elliott could sit for one to two hours, 20 minutes at a time, for

a total of three to four hours; stand for 50 to 60 minutes at a

9 time for a total of four hours; and walk for two to three hours.

She noted that he could occasionally bend, stoop, squat, climb

stairs, crouch, kneel, and balance. He could crawl frequently,

she stated, and he could push or pull up to 54 pounds occasion­

ally and 26.5 pounds frequently.

Elliott went to the emerqency room on September 19, 1990,

sufferinq from respiratory problems. He was diaqnosed with

asthmatic bronchitis. He returned to the emerqency room with

similar problems in December. Dr. Conqer ordered a pulmonary

function test, which indicated that Elliot had a small to medium

airway obstruction that had increased since a test conducted in

Auqust. Dr. Conqer recommended a sinus drainaqe procedure. In

his recommendation report, dated April 20, 1992, Dr. Conqer noted

Elliot's chronic obstructive lunq disease, which caused exer­

tional dyspnea, or difficultly breathinq. He also noted

Elliott's chronic low back pain, which had not improved much

since surqery. Dr. Conqer noted that Elliott complained of a

burninq sensation in his chest, which Dr. Conqer attributed to

anqina.

In Auqust 1992, Elliott underwent a cardiac catheterization

performed by Dr. Bruce Hettleman. Elliott underwent triple

coronary artery bypass qraft surqery on September 9, 1992. In a

10 follow-up examination in October, Elliott reported no anginal

symptoms, but did complain of numbness and tingling in his chest,

difficultly sleeping due to nightmares, and mild shortness of

breath.

Elliott underwent cardiac stress tests in November 1992,

September 1993, and November 1994. Each test was non-diagnostic

due to Elliott's failure to reach the target heart rate due to

fatigue or leg cramps caused by claudication.5

In a November 23, 1994, medical examination report to the

New Hampshire disability determination agency. Dr. Conger noted

that Elliott's lung condition was unchanged since 1990. He

stated that the claudication would prevent Elliott from a job

reguiring walking; the lung disease would prevent Elliott from

any job without repeated absences due to illness; and the back

problems would prevent him from sitting or standing in a single

position for prolonged periods of time. Dr. Conger assessed that

Elliott was "totally and permanently disabled." (Tr. 346).

In medical interrogatories dated July 1995, Dr. Conger

stated that he had treated Elliott since 1987. He stated that

Elliott had been diagnosed with chronic obstructive pulmonary

5 Pain, tension, and weakness in the legs due to walking; seen in occlusive arterial disease.

11 disease, arteriosclerotic heart disease, high blood pressure,

lumbosacral disc disease, and peripheral vascular disease. He

concluded that Elliott could sit or stand for an hour at a time

for a total of five hours; stand and walk for an hour at a time

for a total of five hours; lift 15 pounds occasionally and 10

pounds frequently; and carry a maximum of 10 pounds. He wrote

that Elliott should avoid gases, fumes, dust, moisture, humidity

and moving machinery, and that he should never bend, stoop,

twist, crouch or kneel.

Elliott testified that he spends much of his time reading.

(Tr. 68) . His household chores consist of straightening up

magazines and putting dishes in the dishwasher. (Tr. 62-3). He

uses a snow blower for a half-hour at a time, but must wear a

mask while doing so. (Tr. 63). He uses a nebulizer machine to

aid his breathing, especially during the summer months. (Tr. 69-

70). He can fish from a boat. (Tr. 67). He rarely goes out,

but enjoys watching soccer games by alternating positions between

a blanket and a chair. (Tr. 68-9) . He testified that he has

difficultly bathing his feet because he cannot easily bend or

stoop. (Tr. 71). He used to keep a garden, but now has only a

small flower garden that he tends by leaning on a special pad.

(Tr. 72). He used to enjoy walks with his wife, but testified

12 that he no longer does because she has to wait for him while he

rests. (Tr. 62) .

Bruce Chipman,6 a vocational rehabilitation counselor

employed by Rehabilitation Services Associates of Henniker, N.H.,

testified that there were 2,575 jobs in New Hampshire and 770,000

in the nation that Elliott could perform. The jobs listed are

all considered "light" jobs under SSA regulations. The ALJ

specifically reguested that the vocational expert calculate the

numbers and types of light jobs and exclude any at the sedentary

level. (Tr. 85). Chipman based his calculations on the job

opportunities for a hypothetical worker, as described by the ALJ.

II. STANDARD OF REVIEW

After a final determination by the Commissioner denying a

claimant's application for benefits and upon a timely reguest by

the claimant, I am authorized to: (1) review the pleadings

submitted by the parties and the transcript of the administrative

record; and (2) enter a judgment affirming, modifying, or

reversing the Commissioner's decision. See

(g).

My review is limited in scope, however, as the Commissioner's

6 The ALJ mistakenly refers to Mr. Chipman as "Mr. Bopp" throughout his decision.

13 factual findings are conclusive if they are supported by

substantial evidence. See Irlanda Ortiz v. Secretary of Health

and Human Servs.,

(1st Cir. 1991);

(g). The Commissioner is responsible for settling

credibility issues, drawing inferences from the record evidence,

and resolving conflicting evidence. See Irlanda Ortiz,

. Therefore, I must "'uphold the [Commissioner's] findings

. . . if a reasonable mind, reviewing the evidence in the

record as a whole, could accept it as adeguate to support [the

Commissioner's] conclusion.'"

(guoting Rodriquez v.

Secretary of Health and Human Servs.,

(1st Cir.

1981)) .

If the Commissioner has misapplied the law or has failed to

provide a fair hearing, however, deference to the Commissioner's

decision is not appropriate, and remand for further development

of the record may be necessary. See Carroll v. Secretary of

Health and Human Servs.,

(2d Cir. 1983); see

also Slessinaer v. Secretary of Health and Human Servs.,

(1st Cir. 1987) ("The [Commissioner's] conclusions of

law are reviewable by this court.") I apply these standards in

reviewing the issues Elliott raises on appeal.

14 III. DISCUSSION

A. Reopening of the 1992 denial of benefits

As a preliminary matter, the Commissioner argues that the

doctrines of res judicata and collateral estoppel bar Elliott

from proving his alleged disability existed on or before December

30, 1992, the date his previous application was denied.

(Defendant's Motion for Order Affirming the Decision of the

Commissioner, at 4.). Because the ALJ explicitly refused to

reopen the 1992 decision, the Commissioner claims, Elliott is

bound by the prior determination. Thus, Elliott must prove that

he became disabled on December 31, 1992, the last date of his

insured status and the only such date on which his condition was

not previously adjudicated. I disagree.

The district court has no jurisdiction to review an ALJ's

refusal to reopen a prior decision absent a colorable consti­

tutional claim. See Torres v. Secretary of Health and Human

Servs.,

(1st Cir. 1988) (citing Califano v.

Sanders,

(1977)). Where an ALJ reopens a

prior decision, however, the ALJ's final decision is subject to

judicial review to the extent the prior decision has been

reopened. See Morin v. Secretary of Health and Human Servs.,

(D. N.H. 1992). An ALJ may consider evidence

15 from a prior case for the limited purpose of reviewing the facts

and medical history to determine whether the claimant was

disabled at the time of the second application. See Frustaglia

v. Secretary of Health and Human Servs.,

(1st

Cir. 1987). An ALJ may also review the prior evidence to deter­

mine whether the second claim is the same as the first for res

judicata purposes. See Torres,

. Where an ALJ

reconsiders the prior evidence on the merits, however, the ALJ

"constructively" reopens the prior decision and renders it

subject to judicial review under the substantial evidence

standard. See Jelinek v. Heckler,

(8th Cir.

1985); Morin,

; Malave v. Sullivan,

(S.D.N.Y. 1991). This is so even where the ALJ

explicitly states his refusal to reopen the prior case. See

Jelinek,

; Malave, 111 F. Supp. at 251.

Here, although the ALJ explicitly refused to reopen the 1992

decision, his statements at the hearing coupled with his recon­

sideration of prior evidence on the merits indicate that he did,

in fact, reopen the decision. The ALJ stated at the adminis­

trative hearing that he would base his decision on

"all of the evidence as to whether Mr. Elliott is disabled at any time on or before December 31, 1992, as opposed to considering separately any issue about whether there was

16 new and material evidence to disturb or to reopen what had ordinarily been final by the Administration back on December 30, 1992."

(Tr. 48). While questioning Elliott, he further stated that

"we're looking very specifically at a period of time before 1992,

December 31, 1992, to be exact." (Tr. 55, emphasis added).

While an ALJ is free to examine evidence relevant to a prior

determination without actually reopening that case, here the ALJ

not only examined the evidence but also rendered a decision on

the merits based largely on that evidence.7 Contra Frustaglia,

. He cites to medical records and assessments

from 1986, 1987, 1988, 1990, and 1992 -- all of which were

relevant to the prior determination. Virtually the only

subsequent evidence the ALJ cites in his decision is a 1994

medical examination report from Dr. Conger and medical inter­

rogatories answered by Dr. Conger in 1995. The ALJ's reliance on

7 It is true that, because there was only one day of insurance coverage which post-dates the 1992 decision, the bulk of evidence relating to Elliott's condition is the same in both the 1992 and the 1994 applications. In the absence of evidence relating specifically to December 31, 1992, the ALJ could have simply concluded that the claims were the same and applied res judicata to bar the second claim. See Torres,

. Doing so would have insulated the ALJ's decision not to reopen the prior case from judicial review. See

Here, however, the ALJ clearly went beyond a mere reexamination of the evidence for res judicata purposes and reconsidered it on the merits. Contra

.

17 these items is insufficient to support a finding that he did not

reopen the prior decision for two reasons. First, the report and

interrogatories are retrospective and relate to Elliott's con­

dition on or before December 31, 1992. Second, the ALJ himself

discredits Dr. Conger's 1994 opinion by noting that the letter

was written "long after the date the claimant was last insured."

The only other subseguent evidence noted in the ALJ's

decision is a 1995 residual functional assessment by Dr. Homer

Lawrence, a physician certified by the state agency to review

Elliott's case. Dr. Lawrence's assessment was merely a review of

the evidence relevant to the 1992 determination. Furthermore,

the ALJ places great reliance in his determination that Elliott

can perform light work on a 1988 letter written by Dr. Savage,

which, again, was relevant to the 1992 determination. Thus, I

find that the ALJ constructively reopened the 1992 decision.

The guestion before me, therefore, is not whether the ALJ

properly applied res judicata to preclude a finding of disability

prior to December 31, 1992 -- as he did not. Rather, the

guestion is whether there is substantial evidence to support a

finding that Elliott was not disabled and could perform light

work within the meaning of the Act at any time between November

17, 1986 and December 31, 1992.

18 B. ALJ's review of Elliott's disability claim

An ALJ is required to apply a five-step sequential analysis

to determine whether a claimant is disabled within the meaninq of

the A c t .8 At step four, the ALJ must determine whether the

claimant's impairments prevent him from performinq his past work.

See

(e). The ALJ must assess both the

claimant's residual functional capacity ("RFC") -- i.e., what

the claimant can do despite his impairments -- and the claimant's

past work experience. See Santiago v. Secretary of Health and

Human Servs.,

(1st Cir. 1991). At step five, the

burden shifts to the Commissioner to show that there is other

work in the national economy that the claimant is capable of

performinq based on the claimant's RFC. See Heaaartv v.

Sullivan,

(1st Cir. 1991); Keating v. Secretary

8 The ALJ is required to consider the followinq five steps when determininq if a claimant is disabled: (1) whether the claimant is enqaqed in substantial qainful employment; (2) whether the claimant has a severe impairment thatlasted for twelve months or had a severe impairment for a periodof 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 performinq past relevant work; (5) whether the impairment prevents or prevented the claimant from doinq any other work. See

.

19 of Health and Human Servs.,

(1st Cir. 1988).

The Commissioner must show that the claimant's limitations do not

prevent him from engaging in substantial gainful work, but need

not show that the claimant could actually find a job. See

Keating,

("[t]he standard is not employability,

but capacity to do the job").

Here, the ALJ concluded at the fourth step that Elliott

could not return to his past work because it reguired medium and

heavy labor. The ALJ also found that Elliott retained the

ability to perform a limited range of light work. Relying on the

testimony of a vocational expert ("VE"), the ALJ found, at step

five, that there were a significant number of light duty jobs in

the national economy which Elliott could perform. Thus, the ALJ

found Elliott was not under a disability and denied his claim for

benefits.

The Commissioner can meet his burden of proof at step five

by posing hypothetical guestions to a VE and relying on the VE's

testimony. The VE's answer to a hypothetical guestion is not

adeguate, however, unless "the inputs into that hypothetical

. . . correspond to conclusions that are supported by the outputs

from the medical authorities." Arocho v. Secretary of Health and

Human Servs.,

(1st Cir. 1982); see also Rose v.

20 Shalala,

(1st Cir. 1994) (ALJ cannot rely on VE's

testimony when hypothetical omits significant functional

limitation). Elliott argues that the hypothetical posed to the

VE did not adeguately reflect his functional limitations and,

therefore, the ALJ could not rely on the VE's testimony to

determine Elliott was not disabled. For the reasons that follow,

I agree and remand this case for further consideration at step

five of the disability benefits review.

1. Medical evidence of Elliott's RFC

An ALJ must specify the basis for his conclusion that a

claimant possesses a residual functional capacity to perform a

certain level of work. See White v. Secretary of Health and

Human Servs.,

(2d Cir. 1990). Failure to specify

such a basis is grounds to vacate a decision. See

Even

where the ALJ does specify his reasons, the record must contain

adeguate evidence to support his finding. See Rose,

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

(1st Cir. 1991). Here, the ALJ appears to base his

determination that Elliott could perform light work on three

pieces of evidence: (1) Dr. Savage's 1998 letter; (2) Dr.

Conger's 1995 medical interrogatories; and, (3) Dr. Lawrence's

review of the medical record. After examining the entire record.

21 I find that this evidence, whether taken together or separately,

is insufficient to support a determination that Elliott could

perform light work as it is defined by SSA regulations.

First, the ALJ misconstrues Dr. Savage's letter. Dr. Savage

stated that Elliott could return to work on a part-time basis and

could perform "sedentary or light work." (Tr. 305). The ALJ

fails to take note of the restrictions Dr. Savage set out in her

letter. She stated that Elliott's work should include "no

lifting or carrying of objects weighing over 10 pounds, rare

lifting or carrying of objects of 10 pounds or less. No

prolonged sitting or standing with the ability to change position

at will." She further advised that Elliott should not use his

arms, particularly his left arm, for repetitive activities.

These restrictions would clearly bar Elliott from "light" work as

it is defined by the SSA.9

By relying on Dr. Savage's guote in isolation, the ALJ also

ignores Dr. Savage's September 1988 functional capacity assess­

ment of Elliott, which supports the restrictions set out in her

9 "Light" work is defined as work involving "lifting no more than 20 pounds at a time with freguent lifting or carrying of objects weighing up to 10 pounds . . . a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls."

.1567 (b) .

22 letter. (Tr. 396-97). Here, she noted that Elliott should never

lift or carry more than 10 pounds, bend, squat, crawl, climb, or

reach above his shoulders. She noted that Elliott can walk for

up to an hour a day and sit or stand for up to four hours a day,

but neither for more than a few minutes at a time. She added

that Elliott should rarely, if ever, push or pull from a seated

or standing position.

Dr. Lord, who operated on Elliott's back and treated him

over a two-year period, made similar findings in functional

capacity assessments dated March and September 1988. (Tr. 394-

95, 396-97). In the latter. Dr. Lord wrote that he "agree[s]

totally" with Dr. Savage's assessment of Elliott's capabilities.

Neither Dr. Savage nor Dr. Lord concluded that Elliott could

perform light work without restrictions. At most, this evidence

would support a finding that Elliott could, as of September

1 988, 10 perform sedentary work on a part-time basis.11

10 About 18 months after his initial injury.

11 "Sedentary" work is defined as work that "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."

(a).

23 The ALJ also relies on Dr. Conger's 1995 interrogatories to

determine that Elliott is capable of light work. Dr. Conger's

answers arguably support such a finding. Elsewhere in the ALJ's

decision, however, he discredits Dr. Conger's ability to assess

Elliott's back condition because Dr. Conger did not treat

Elliott's back condition. He also discredits Dr. Conger's 1994

assessment as being too remote in time from the last date of

Elliott's insured status. Applying his own logic, the ALJ would

have to likewise discount the 1995 interrogatories because Dr.

Conger answered them a year after he made his medical assessment.

The only remaining evidence which would support the ALJ's

determination is Dr. Lawrence's RFC assessment. Dr. Lawrence did

not examine Elliott, nor did he testify at the hearing. A non­

examining, non-testifying physician's report standing alone may,

in some circumstances, constitute sufficient evidence to support

an ALJ's RFC determination. See Berrios Lopez,

-

32. Such circumstances do not exist here. Contra

(evidence included two reports by non-examining doctors, one

report included subsidiary medical findings, treating physician's

report differed only slightly). Where, as here, an assessment

clearly conflicts with the opinions of the claimant's treating

physicians, the assessment does not constitute substantial

24 evidence. See Rose,

. While weighing the evidence

is the ALJ's responsibility, SSA regulations direct the ALJ to

give more weight to an examining physician than to a non­

examining physician. See

(d)(1),(2); Morin,

. The ALJ recognized this where he

explicitly chose to favor Dr. Savage's assessment of Elliott's

back condition over Dr. Conger's. An ALJ is not reguired to

accept a treating physician's conclusions of a claimant's

disability. See Arrovo v. Secretary of Health and Human Servs.,

(1st Cir. 1991). An ALJ may not, however,

substitute his own judgment for uncontroverted medical evidence.

See Rosado v. Secretary of Health and Human Servs.,

(1st Cir. 1986). Here, the treating physicians do more

than give mere conclusory statements about Elliott's condition.

Rather, both Dr. Savage and Dr. Lord give detailed descriptions

of Elliott's abilities and specific recommendations for

appropriate work. Nothing in the record, with the exception of

Dr. Lawrence's review, indicates that any doctor treating Elliott

for his back condition disagreed with Drs. Lord and Savage in the

fall of 1988. The ALJ gave no reason for dis-crediting Dr.

Lord's assessment -- indeed, he does not even mention Dr. Lord in

his decision. Nor does he give a reason for discrediting Dr.

25 Savage's opinion. On the contrary, he claims to credit it and

then goes on to misapply her recommendations to conclude Elliott

can perform light work. In the face of such overwhelming

contradictory evidence, the ALJ could not rely on Dr. Lawrence's

assessment as substantial evidence of Elliott's residual

functional abilities. See Rose,

; contra Berrios

Lopez,

.

2. ALJ's hypothetical question to VE

Because there is no substantial evidence to support a

finding that Elliott could perform light work, the ALJ's ultimate

conclusion that there are numerous jobs in the national economy

that Elliott could perform is also without support. See Perez v.

Secretary of Health and Human Servs.,

(1st Cir.

1991). The ALJ relied on testimony from the VE, who testified

only as to the number of light jobs available in the nation and

New Hampshire. The VE based his calculations on a hypothetical

claimant described by the ALJ. Here, the ALJ's hypothetical

guestion did not correspond to the medical evidence. Thus, the

ALJ could not properly rely on the VE's testimony. See Rose,

(remand appropriate where ALJ's hypothetical failed to

take note of medical evidence of claimant's symptoms); Arocho,

(remand for clarification of claimant's capa-

26 cities and availability of work appropriate where vocational

expert based opinion on flawed hypothetical).

In his decision, the ALJ explicitly chose to credit Dr.

Savage's assessment of Elliott's back condition; yet his

hypothetical painted a portrait of a man who could perform work

at a much higher exertional level than Dr. Savage recommended.

The ALJ's hypothetical asked the VE to consider:

"[SJomeone who is not going to be able to do that type of heavy lifting of more than 20 pounds, not being able to work in a job where they would have to be exposed to excessive amounts of dust and fumes and extremes of particularly temperature (sic) such as very cold weather or very hot, humid environments, and if we're dealing with someone who would be able to, perhaps, stand with the opportunity to occasionally change positions, perhaps in the morning, mid-morning with a mid-morning break, lunch time break, perhaps in the mid-afternoon as well."

(Tr. 84). The ALJ's hypothetical does not correspond to the

medical evidence for two reasons. First, it clearly contemplates

an individual who can work an eight-hour day. Second, it

describes an individual who can perform work at the light

exertional level.12

12 Indeed, the ALJ explicitly told the VE to confine his answer to jobs at the light exertional level and to refrain from testifying as to sedentary jobs. (Tr. 85). The VE, responding to guestions from Elliott's attorney, testified that the number of light jobs in his calculation would be reduced if the hypothe-

27 Nothing in the medical records before the ALJ indicated that

Elliott could perform anything more than part-time work. Dr.

Lord's March 1988 assessment predicted that Elliott could return

to part-time work, for three to four hours a day, the following

July. Dr. Savage's 1988 letter and RFC assessment state that

Elliott could work only four hours a day. Dr. Lord's September

1988 assessment states that he concurred completely with Dr.

Savage. Cioffredi's 1988 discharge note states that Elliott is

capable of "limited periods" of work. (Tr. 292). Smith-Blais'

1990 functional capacity report was based on Elliott's abilities

during a three- to four-hour work day. (Tr. 400) .

Furthermore, the hypothetical described an individual who

could lift and carry at the light exertional level (a maximum of

20 pounds), while the medical evidence in the record -- most

notably Dr. Savage's 1988 letter and functional capacity

assessment -- states that he should lift and carry no more than

10 pounds. Dr. Lord's RFC assessments similarly state that

Elliott should never lift or carry more than 10 pounds. Dr.

tical worker could lift no more than 10 pounds. (Tr. 89). The VE was unable to testify as to the number of jobs available for a person with a 10-pound lifting restriction, stating "that would be a separate set of figures under the sedentary."

The ALJ did not further guestion the VE, revise his hypothetical, or ask the VE to provide figures for sedentary jobs.

28 Conger's 1995 interrogatories state that Elliott could lift a

maximum of 15 pounds and carry a maximum of 10 pounds. (Tr. 368-

69) .

Because the ALJ's hypothetical did not accurately portray

Elliott's functional capabilities, he could not reasonably rely

on the VE's testimony. See Arocho,

. Therefore,

the Commissioner did not meet his step-five burden of proving

there is other work in the national economy that Elliott can

perform. See Heggartv,

. Conseguently, this case

must be remanded to allow the ALJ to properly analyze Elliott's

claim at step five of the disability benefits review. See

Arocho,

.

IV. CONCLUSION

For the foregoing reasons, Elliott's motion for an order

reversing the Commissioner's decision (document no. 7) is

granted, and the Commissioner's motion for an order affirming his

decision (document no. 9) is denied. Pursuant to

(g), this case is remanded to the Commissioner for further

consideration consistent with this order.

29 SO ORDERED.

Paul Barbadoro Chief Judge

September 2 9, 1998

cc: Maria L . Sozio, Esq. David L . Broderick, AUSA

30