Demeritt v. SSA CV-97-575-M 03/26/99 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Michael W. Demeritt, Claimant

v. Civil No. 97-575-M

Kenneth S. Apfel, Commissioner, Social Security Administration, Defendant.

O R D E R

Claimant Michael W. Demeritt moves pursuant to

(g) to reverse the Commissioner's decision denying his

applications for Social Security Disability Insurance benefits

under Title II of the Social Security Act (the "Act"),

, and Supplemental Security Income disability payments under

Title XVI of the Act,

. The Commissioner moves

for an order affirming the Commissioner's decision. For the

reasons that follow, the decision of the Commissioner is vacated

and remanded.

Standard of Review

I .___ Properly Supported Findings by the Administrative _____ Law Judge ("ALU") are Entitled to Deference.

Pursuant to

(g), 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 [now, the "Commissioner"], with or without remanding

the cause for a rehearing." Factual findings of the Commissioner

are conclusive if supported by substantial evidence. See

(g), 1383(c) (3); Irlanda Ortiz v. Secretary of

Health and Human Services,

(1st Cir. 1991).1

Moreover, provided the ALJ's findings are supported by

substantial evidence, the court must sustain those findings even

when there may be substantial evidence supporting the claimant's

position. See Gwathnev v. Chater,

, 1045 (8th Cir.

1997) (The court "must consider both evidence that supports and

evidence that detracts from the [Commissioner's] decision, but

[the court] may not reverse merely because substantial evidence

exists for the opposite decision."). See also Andrews v.

Shalala,

(9th Cir. 1995) (The court "must

uphold the ALJ's decision where the evidence is susceptible to

more than one rational interpretation.").

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

of Health & Human Services,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(1st Cir. 1982)). It

is "the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts." Irlanda Ortiz,

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB,

(1938). It 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).

2 (citation omitted). Accordingly, the court will give deference

to the ALJ's credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v. Secretary of Health & Human Services,

(1st Cir. 1987) (citing Da Rosa v. Secretary of Health and

Human Services,

(1st Cir. 1986)).

II. The Parties' Respective Burdens.

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable "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 has lasted or can be expected to last for a

continuous period of not less than 12 months."

(1)(1)(A). The Act places a heavy initial burden on the

claimant to establish the existence of a disabling impairment.

See Bowen v. Yuckert,

(1987); Santiago v.

Secretary of Health and Human Services,

(1st Cir.

1991). To satisfy that burden, the claimant must prove that his

impairment prevents him from performing his former type of work.

See Gray v. Heckler,

(1st Cir. 1985) (citing

Goodermote v. Secretary of Health and Human Services,

(1st Cir. 1982)). Nevertheless, the claimant is not reguired

to establish a doubt-free claim. The initial burden is satisfied

by the usual civil standard: a "preponderance of the evidence."

See Paone v. Schweiker,

(D. Mass. 1982) .

3 In assessing a disability claim, the Commissioner considers

objective and subjective factors, including: (1) objective

medical facts; (2) the claimant's subjective claims of pain and

disability as supported by the testimony of the claimant or other

witnesses; and (3) the claimant's educational background, age,

and work experience. See, e.g., Avery v. Secretary of Health and

Human Services,

(1st Cir. 1986); Goodermote,

. Provided the claimant has shown an inability to

perform his previous work, the burden shifts to the Commissioner

to show that there are other jobs in the national economy that he

can perform. See Vazquez v. Secretary of Health and Human

Services,

(1st Cir. 1982). If the Commissioner

shows the existence of other jobs which the claimant can perform,

then the overall burden remains with the claimant. See Hernandez

v. Weinberger,

(1st Cir. 1974); Benko v.

Schweiker,

(D.N.H. 1982).

When determining whether a claimant is disabled, the ALJ is

reguired to make the following five inguiries:

(1) whether the claimant is engaged in substantial gainful activity;

(2) whether the claimant has a severe impairment;

(3) whether the impairment meets or eguals a listed impairment;

(4) whether the impairment prevents the claimant from performing past relevant work; and

(5) whether the impairment prevents the claimant from doing any other work.

4

. Ultimately, a claimant is disabled only 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 . . . .

(d) (2) (A) .

With those principles in mind, the court reviews claimant's

motion to reverse and the Commissioner's motion to affirm his

decision.

Background2

In 1982, at the age of thirteen, claimant was injured when a

gas tank exploded in a hut or play fort in claimant's backyard.

Claimant suffered second and third degree burns over 80% of his

body. He was admitted to the Shriners Hospital for Crippled

Children, in Boston, Massachusetts, a number of times between

1982 and 1989, where he underwent numerous surgical procedures

including reconstructive skin grafts.

On March 14, 1991, claimant was examined by Lawrence Gray,

M.D. Dr. Gray found that claimant's right hand had normal

sensation and motion, except for the thumb, which was fused at

the interphalangeal joint at zero degrees. Dr. Gray concluded

2The background facts are taken from the parties' Joint Statement of Material Facts with some supplementation from the record.

5 that claimant's right hand was "able to function without

limitation." (R. at 227.)3

Dr. Gray found significant impairment in claimant's left

hand, including fusion of the index, middle, ring and little

fingers. Dr. Gray concluded that claimant could not hold or

carry small objects in his left hand or lift large, heavy

objects. Use of claimant's left hand was limited at that time,

in Dr. Gray's opinion, to "assistance only." (R. at 223). Dr.

Gray opined that additional reconstructive surgery could benefit

claimant but "would not significantly improve his function." (R.

at 223.) Dr. Gray noted no restrictions on claimant's ability to

sit, stand, walk or bend, nor did he conclude that claimant

suffered from any restrictions with regard to his right hand.

Dr. Gray examined claimant again on December 17, 1992. He

found that claimant's condition had changed very little except

for recurrent ulceration of the left elbow and a small ulceration

on the left index finger that claimant attributed to a recent

attempt to work. Although Dr. Gray noted significant

restrictions with claimant's left hand, he believed claimant was

"capable of basic work-related activities such as sitting,

standing, walking and bending." (R. at 224) .

On October 21, 1993, claimant was again seen by Dr. Gray,

who reported "essentially no change" in claimant's condition from

the previous two visits. (R. at 222.) Dr. Gray noted continued

3Citations to the record are to the certified transcript of record filed by the Commissioner with the court.

6 breakdown of the skin on claimant's left elbow and ulcerations on

the left index finger with use of the hands. Dr. Gray reported

no limitations on standing, sitting or walking, but noted a

restriction on lifting and carrying all but very light objects

with his left upper extremities.

Claimant applied for SSI disability payments on June 27,

1990. The application was denied and claimant did not appeal.

The ALJ declined to reopen that decision and it is not now before

the court.

On September 11, 1992, claimant filed applications for both

disability insurance benefits and SSI payments,4 alleging that he

first became unable to work because of his disabling condition on

February 15, 1991. Claimant described his impairment in his

application for SSI payments as "complications from burns; hand

[and] leg problems." (R. at 174.). Claimant's applications were

denied both initially and on reconsideration. A hearing was held

on December 19, 1994, before ALJ Thomas H. Fallon, who denied

claimant's applications on January 27, 1995. On appeal to the

Appeals Council of the Social Security Administration, the ALJ's

decision was vacated and the case remanded with instructions to

hear evidence from a vocational expert.

4Claimant's application for SSI payments is dated August 3, 1992, but stamped as received at the Portsmouth, New Hampshire, Social Security Administrative Office on September 11, 1992. (R. at 174.) Although the ALJ's decision treats the SSI application as filed on August 3, 1992, the parties state in their Joint Statement of Material Facts that both applications were filed on September 11, 1992. For purposes of this order, the court accepts the date provided in the joint statement of material facts.

7 Following another hearing on March 4, 1996, at which

claimant and a vocational expert testified, the ALJ again denied

claimant's applications. The Appeals Council denied claimant's

reguest for review and the ALJ's decision thus became the final

decision of the Commissioner.

The ALJ's decision described claimant as a then 27-year-old

individual with less than a high school education and past

relevant work experience as a dishwasher, framer, painter and gas

station attendant and manager. The ALJ found that claimant had

not engaged in any substantial gainful activity since he stopped

working, allegedly due to his impairments, on February 15, 1991.

The ALJ also found that claimant had a severe impairment or

combination of impairments, namely "status post extensive burns

with residuals, left hand restrictions, back pain and foot

drop, [5] impairments which cause significant vocationally

relevant limitations." (R. at 18.) The ALJ concluded, however,

that while claimant's impairments were severe, they did not meet

or egual the criteria of any listed impairment.

The ALJ then found that claimant had the residual functional

capacity to meet the exertional reguirements of a less than full

range of light work and a full range of sedentary work. The ALJ

noted, however, that claimant had non-exertional limitations,

"impos[ing] a moderate limitation regarding dust, fumes or other

irritants, changes in temperature and humidity, exposure to

5The ALJ found that claimant has "right foot drop as a result of a surgical procedure where a nerve was severed." (R. at 18.) heights, and noise," that slightly reduced his ability to perform

light and sedentary work. (R. at 20.) The ALJ determined that

because claimant was reguired in his previous work to lift up to

20 pounds, he was not capable of returning to his former

employment. He concluded, however, that claimant did have the

capacity to make an adjustment to employment that exists in

significant numbers in the national economy. The ALJ also found

that because claimant's capacity for light and sedentary work was

not significantly reduced by his non-exertional limitations, a

finding of "not disabled" could be reached under the Medical-

Vocational Rules 202.17 or 201.24.

Discussion

Claimant argues that the ALJ erred in (1) finding that

claimant's impairments did not meet or egual the criteria of a

listed impairment; (2) finding that claimant's capacity for light

work had not been significantly diminished and that there are a

significant number of jobs claimant can perform; and (3) finding

that claimant's testimony was not credible.

Claimant argues that his impairments meet or egual in

severity the impairments listed in 8.00 and 1.13 in 20 C.F.R.

Part 404, Subpart P, Appendix 1. The burden is on claimant to

show that his impairment meets or eguals a listed impairment.

Torres v. Secretary of Health and Human Services,

(1st Cir. 1989). Claimant cites the following portion of

section 8.00:

Skin lesions may result in a marked, long-lasting impairment if they involve extensive body areas or critical areas such as the hands or feet and become resistant to treatment. These lesions must be shown to have persisted for a sufficient period of time despite therapy for a reasonable presumption to be made that a marked impairment will last for a continuous period of at least 12 months.

Claimant argues that he meets this description because he

suffered skin lesions, in the form of second and third degree

burns, over 80% of his body, including over the critical area of

his hands, and that this impairment will last for a continuous

period of at least 12 months.

Claimant's argument fails, however, because section 8.00 is

not itself a listed impairment. Rather it is the introductory

section for the listed impairments dealing with conditions of the

skin. Claimant has not shown, nor does he argue, that he meets

any of the listed impairments following this general

introduction.

Claimant also cites the following portion of section 8.00,

which directs him to a different category of impairments: "When

skin lesions (including burns) are associated with contractures

or limitation of joint motion, that impairment should be

evaluated under l.OOff." 20 C.F.R. Pt. 404, Subpt. P, Ap p . 1,

§ 8.00(B). He then argues that he meets or eguals the listed

impairment 1.13, which provides:

_____ Soft tissue injuries of an upper or lower extremity reguiring a series of staged surgical procedures within 12 months after onset for salvage and/or restoration of major function of the extremity, and such major function was not restored or expected to be restored within 12 months after onset.

10 20 C.F.R. P t . 404, Subpt. P, App. 1, § 1.13. Claimant argues

that he meets or equals this listing because his injuries

required a series of surgical procedures within 12 months after

onset and still require further surgery as noted by Dr. Gray.

Listing 1.13 has been interpreted as follows:

[I]t is directed at the loss of the use of one extremity, not in itself disabling under the regulations, where restoration of function will require repeated staged surgical procedures over a lengthy period, thus making an individual who would otherwise be capable of substantial gainful employment unavailable for work because of these repeated surgical procedures.

Waite v. Bowen,

(7th Cir 1987). See also

Lapinskv v. Secretary of Health and Human Services,

(6th Cir. 1988) . Thus, "[t]he listing provides for

disability benefits during the time an individual is going

through several separate but progressive surgical procedures and

recovery from those procedures." Holden v. Secretary of Health

and Human Services, No. 90-CV-40329-FL.,

at *3

(E.D. Mich. Jan. 23, 1992). That is not claimant's situation.

The series of surgical procedures performed on claimant at

Shriners Hospital was completed in 1989. The impairment for

which claimant now seeks benefits began on February 15, 1991, the

date he alleges he first became unable to work because of his

disabling condition. The record reveals no surgical procedure

performed on or scheduled after February 15, 1991, nor does it

indicate that the further surgery suggested by Dr. Gray would

render claimant unable to work for a period of 12 months. See

Holden,

at *2 (noting that it is also crucial that

11 the surgical process last for at least a twelve month period.)6

The ALJ's determination that claimant's impairment does not meet

or equal7 a listed impairment is supported by substantial

evidence.

Having found that claimant's condition did not meet or equal

a listed impairment, the ALJ was next required to assess

claimant's residual functional capacity "to determine the effects

of the impairment, including any additional limitations imposed

by pain, on the claimant's capacity to perform former work or

other work." Avery,

.

When a claimant complains that pain or other subjective symptoms are a significant factor limiting his or her ability to work, and those complaints are not fully supported by medical evidence contained in the record, the ALJ must consider additional evidence, such as the claimant's prior work record; daily activities; location, duration, frequency, and intensity of pain; precipitating and aggravating factors; type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms, past or present; treatment, other than medication, received for relief of pain or other symptoms, past or present; any measures used, past or present, to relieve pain or other symptoms; and other factors concerning functional limitations and restrictions due to pain.

Mandziej v. Chater,

(D.N.H. 1996).

Claimant argues that the ALJ erred in finding his testimony

regarding his pain and physical limitations not credible.

Although the ALJ's credibility determinations are normally owed

6Such surgical procedure would apparently also not qualify under § 1.13 because it would not have taken place within twelve months after onset.

7As the court in Holden noted, "[t]here is no medical equivalent for the staged surgical process called for by listing 1.13." Holden,

at *3.

12 considerable deference, see Dupuis v. Secretary of Health and

Human Services,

(1st Cir. 1989), those

determinations "must be supported by substantial evidence and the

ALJ must make specific findings as to the relevant evidence he

considered in determining to disbelieve the [ c l a i m a n t ] Da

Rosa,

.

When evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements. . . . The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision. . . . The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subseguent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.

Social Security Ruling ("SSR") 96-7p (July 2, 1996). The ALJ

noted that claimant alleged he could not work because his hands

hurt and would routinely crack and bleed, and he has little

motion in, and cannot lift heavy objects with, his left, non­

dominant hand. The ALJ found, however, that "[t]he claimant's

statements concerning his impairments and their impact on his

ability to work are not entirely credible in light of the

claimant's own description of his activities and life style, the

degree of medical treatment reguired and the findings made on

examination." (R. at 23.)

Specifically, the ALJ noted that in 1992, claimant reported

engaging in the following activities: shopping, drawing,

sketching, taking care of his cat, building models, watching

13 television and movies, listening to music, visiting friends,

going for walks and riding a bike. In 1996, claimant testified

that he no longer built models or rode his bike and was unable to

lift and place items in a grocery cart due to weakness in his

hands. The ALJ noted, however, that claimant took no

prescription medication for his symptoms or pain, and has not

pursued the further surgery suggested by Dr. Gray. Although

claimant stated that he could not afford the surgery, the ALJ

noted that claimant has a history of not following his

physicians' advice, and found that he would not seek medical

treatment even if he could afford it. The ALJ also concluded

that because Dr. Gray prescribed no medication for claimant's

skin ulcerations, they must not be severe.

The ALJ's specific findings are not supported by substantial

evidence. First, the ALJ credits claimant's accounts of his

activities in 1992, but discounts claimant's 1996 testimony that

pain and weakness in his hands had forced him to curtail those

activities. The ALJ appears to have discounted claimant's later

testimony because claimant has allegedly failed to obtain medical

treatment for his symptoms.

The Commissioner argues that the ALJ is allowed to "view . .

. gaps in the medical record as 'evidence,'" Irlanda Ortiz,

, and asserts that claimant received no treatment for

his symptoms after 1989. The Commissioner overlooks, however,

claimant's effort to obtain medical treatment in June of 1993,

after the statement of claimant's activities that the ALJ

14 credited; he complained about precisely the same symptoms he now

describes. A note in claimant's record from Shriners Burns

Institute, dated June 23, 1993, states:

Complains of chronic problems [with] pain, tenderness, tightness, both hands [with] stiff joints. Unable to work at many tasks [secondary] to these problems. Now overage [and] cannot be Rx'd at [Shriners Burns Institute]. Will refer to [Massachusetts General Hospital] hand clinic [if desires?]8 Close record.

(R. at 199.) The note also partly corroborates claimant's

testimony that he has not pursued further surgery because he

cannot afford it, and is now too old to obtain free treatment at

Shriners. (R. at 93.)

The ALJ determined that "the weight of the evidence does not

support a finding that the claimant would seek medical treatment

if he had more finances." (R. at 20.) The ALJ based this

determination in part on claimant's history of not following his

physicians' advice. Aside from a few missed appointments and an

apparent failure to give up smoking, however, the record

discloses only two notations, back in 1983, suggesting claimant

failed to comply with a prescribed physical therapy regimen (R.

at 189, 191.) The court notes that in 1983, claimant was a

teenager (15 years old). Claimant's lack of diligence in

strictly adhering to physical therapy reguirements when he was

fifteen says nothing meaningful about whether at the age of

thirty, he would likely fail to follow a doctor's advice.

8The note is handwritten and nearly illegible in places.

15 Finally, the ALJ concluded that because Dr. Gray did not

prescribe medication for claimant's skin ulcerations, they must

not be severe. However, the medical record indicates that

claimant had been advised to treat this longstanding problem with

what appear to be over-the-counter medications, such as neosporin

(R. at 195) and bacitracin (R. at 198). C f . SSR 96-7p (listing,

as a possible "good reason[]" for a claimant not seeking further

medical treatment, that symptoms "may be relieved with over-the-

counter medications"). Thus, Dr. Gray's failure to prescribe

controlled medication does not necessarily support the conclusion

that claimant's symptoms are not serious.

The ALJ's credibility determination may well be perfectly

solid, after all he was able to see and hear claimant and make an

informed judgment about possible exaggeration. The difficulty

here is that the reasons given for the ALJ's credibility finding

are actually contradicted by the record in substantial part, and

this court cannot glean from the decision below whether

controlling weight was given to an articulated factor

contradicted by the evidence. Thus the ALJ's decision is vacated

and remanded for further proceedings.

Conclusion

For the foregoing reasons, the claimant's motion for order

reversing the decision of the [Commissioner] (document no. 4) is

granted and the Commissioner's motion for order affirming the

decision of the Commissioner (document no. 6) is denied.

Pursuant to sentence four of

(g), the case is

16 remanded to the ALJ for further proceedings, during which

claimant will perhaps better document the status of his residual

functional capacity and more concretely establish his claim of

debilitating pain. In any event, removal will also provide an

opportunity to review the record, resolve some apparent

evidentiary inconsistencies, and clarify the factors considered,

and weight given those factors, relative to redetermination of

the claims presented.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 26, 1999

cc: Bradley M. Lown, Esg. David L. Broderick, Esg.

17