Berthiaume v. SSA CV-98-419-M 09/30/99 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Elizabeth Berthiaume, Claimant

v. Civil No. 98-419-M

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

O R D E R

Claimant Elizabeth Berthiaume moves pursuant to

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

application for Social Security Disability Insurance benefits

under Title II of the Social Security Act (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

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 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,

(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

3 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).

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).

4 When determining whether a claimant is disabled, the ALJ is

required to make the following five inquiries:

(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;

(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.

. 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

Pursuant to this court's Local Rule 9.1(c) and (d), the

parties have filed a Joint Statement of Material Facts and a List

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

5 of Disputed Facts Proposed By Defendant. As these documents are

part of the court's record (documents 10 and 12), a lengthy

recitation of facts in this order is not necessary. Therefore,

only a brief account of background facts and procedural history

follows.

Claimant was born on September 3, 1952; she was 44 years old

at the time the ALJ issued his decision denying her benefits.

She attended school through the 12th grade and earned her GED the

next year. (R. at 134.)3 She has also taken some college-level

night classes. She has worked in the past as an ultrasonic

slitter, which involved operating a machine that slits velcro

into desired widths, (R. at 134); a stock person at a department

store; a clerical worker; a packer; and a precision winder of

resistors.

On July 21, 1995, claimant filed an application for Social

Security Disability Insurance Benefits,4 alleging an inability to

work due to her disabling condition starting on November 15,

1993. She described her disabling conditions as a back injury

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

4Claimant had filed a prior application in 1986, which was denied and the denial not appealed. As the current application was filed more than four years after the previous one, the ALJ found no cause to reopen the prior application. Thus, the1995 application is the one at issue here.

6 sustained in a car accident and stress. (R. at 130.) She also

reported that she had been told by her doctor that she could not

work due to chronic back pain, chronic abdominal pain and

depression. (R. at 133.) In a request for reconsideration, she

noted experiencing additional symptoms of chronic pelvic pain and

severe depression. (R. at 109.)

The Commissioner denied claimant's application for benefits

both initially and on reconsideration. Claimant requested a

hearing before an ALJ, which was held on August 26, 1996. The

ALJ issued a decision on September 24, 1996, finding that

claimant was not disabled. The ALJ found that claimant met the

Act's special earnings requirement as of the date she alleged her

disability started through March 31, 1999. Finding that an

effort by claimant to work in late 1995 was an "unsuccessful work

attempt," the ALJ determined that claimant had not engaged in any

substantial gainful activity since the onset of her disability.

(R. at 41.) The ALJ also found that claimant had severe

impairments consisting of chronic lumbar strain with sciatica,

chronic stomach or pelvic pain, and a psychiatric condition "with

elements of depressive, posttraumatic stress, social phobia, and

personality disorders." (R. at 42.) He found that these

impairments did not, however, meet or equal a listed impairment.

7 At step four of the sequential analysis, the ALJ found that

in light of claimant's back pain, she had the residual functional

capacity ("RFC") to lift and carry 20 pounds occasionally and 10

pounds frequently. The ALJ considered claimant's subjective

complaints of pain and concluded that they were not fully

supported by the evidence. He found that claimant's pain was not

constantly severe, but would "occasionally flare[] up to severe

levels." (R. at 45) The ALJ concluded that while claimant's

abdominal/pelvic pain imposed some work limitations, it did not

restrict claimant's RFC any more that her back pain already had.

With regard to claimant's psychiatric disorders, the ALJ

concluded that claimant's daily living activities and social

functioning were "only slightly limited," while her concentration

and task-completion abilities were "more moderately limited."

(R. at 44-45.) He found no evidence of decompensation in a work

or work-like environment. He concluded, therefore, that while

"claimant would be limited in her ability to perform work that

required understanding, remembering, and carrying out complex

instructions[,] [s]he could perform simple, semi-skilled work."

(R. at 45 .)

The ALJ noted that claimant had worked in the past

assembling and packing computers and inputting clerical data. He

classified that work as sedentary to light and not complex. He therefore found that claimant could perform her past relevant

work as an assembler/packer and clerical (data input) worker.

Accordingly, the ALJ ended his analysis at step four and

concluded that claimant was not disabled.

The ALJ's decision became the final decision of the

Commissioner on June 3, 1998, when the Appeals Council denied

claimant's request for review. Claimant now appeals to this

court.

Discussion

Claimant argues that the ALJ's decision contains a number of

errors. She focuses on the ALJ's alleged failure to properly

evaluate her subjective complaints of pain and his failure to

give proper weight to the findings of her treating practitioners.

The court finds, however, that a different error, one addressed

less prominently in claimant's brief, warrants remand.

A claimant's disability claim will fail at step four of the

sequential analysis if she has the RFC to perform either 1) "'the

actual functional demands and job duties of a particular past

relevant job,'" Santiago,

(quoting SSR 82-61), or

2) "the functional demands of that occupation as customarily

required in the national economy," ib.. at 5 n.l. The ALJ appears

to have found that claimant satisfies the first test. To make either finding, the ALJ was required to determine the physical

and mental demands of claimant's prior relevant work and then

decide whether claimant could meet them given her RFC. See

Santiago,

. The decision must set forth sufficient

supportive findings of fact:

In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain among the findings the following specific findings of fact: 1. A finding of fact as to the individual's RFC. 2. A finding of fact as to the physical and mental demands of the past job/occupation. 3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation.

SSR 82-62,

at *4.

Here, the ALJ made the first and third findings without

making the second. Claimant notes that at the hearing, the ALJ

"did not question her about . . . the specific work demands when

she was a [slitter], or her clerical work. He did not ask her

why she could not go back to any of her past work." (Cl.'s Br.

at 3.) Claimant criticizes the ALJ for having "generally relied

upon the claimant and her counsel to develop her physical

impairments, limitations and nonexertional restrictions due to

depression."

The admonition given in Gray,

, applies

equally to claimant here: "[I]t is the claimant, not the

[Commissioner] (or ALJ), who has the burden of proving inability

10 to perform her former type of work. That burden necessarily

includes an obligation to produce evidence on that issue." Thus,

claimant must introduce evidence of the mental and physical

demands of her past relevant work and indicate how her alleged

impairments prevent her from meeting those demands. See

Santiago,

. Such evidence may be introduced through

claimant's testimony at the hearing, her written application, or

additional documentation submitted to the agency.

Failure

to present such evidence leads to a finding of nondisability. See

; Gray,

.

Nevertheless, the "ALJ may not simply rely upon the failure

of the claimant to demonstrate that the physical and mental

demands of her past relevant work can no longer be met, but, once

alerted by the record to the presence of an issue, must develop

the record further." Santiago,

(internal

guotation marks, brackets, and emphasis omitted). Claimant's

stated reasons for being unable to perform her past relevant work

are vague. For instance, she stated on her application that

"[b]ecause of the problem with my back I cannot presently perform

the jobs I've been trained for satisfact[ori]ly." (R. at 130.)

Claimant's medical records, however, provide a better

explanation. In her office notes of April 3, 1995, Bridget

Bettencourt, PA-C, stated:

11 The patient is requesting something for her back pain, as well as a note stating her current disability. She is currently taking OTC anti-inflammatories which help minimally with her pain. Apparently whenever she's gone back to previous jobs, she has had to do some degree of lifting which has caused her to be unable to work for several days secondary to worsening pain.

(R. at 166.) The court finds that there was information inthe

record sufficient to "alert[] . . . [the ALJ] to the presence of

an issue," Santiago,

(internal quotation marks and

emphasis omitted), and trigger his duty to further develop the

record. Cf. May v. Bowen,

(D. Me.

1987)(claimant adequately raised issue of inability to perform

past work where medical evidence showed claimant to be at risk of

having a major stroke and claimant stated in her vocational

report that all of her past jobs had been "'pressure jobs'").

Having previously determined that claimant could engage in a

limited range of light work (the limitation being an impaired

ability to understand, remember and execute detailed or complex

instructions), the ALJ stated his findings at step four as

follows:

In the past, the claimant has worked as an assembler and packer of computers and as a data input clerical. This work is sedentary to light in its exertional requirements and is not complex in nature. I find that the claimant's past relevant work as a[n] assembler/packer and data input clerical is not precluded by the claimant's current residual functional capacity. Therefore, the claimant is not disabled within the meaning of the Social Security Act.

12 (R. at 46.) The ALJ provided no basis for his finding that

assembler/packer and data input tasks constituted sedentary to

light work and were not complex. This omission prevents the

court from finding that the ALJ's decision is supported by

substantial evidence. See Pfitzner v. Apfel,

(8th Cir. 1999) (noting 8th Circuit's position that conclusory

statements that a claimant can perform past work, unsupported by

the specific findings reguired by SSR 82-62, do not amount to

substantial evidence).

Claimant opines that her past work is "most closely

approximate[d]" by the listing in the Dictionary of Occupational

Titles ("DOT") of "assembler, semi-conductor," DOT Occupational

Code Number 726.684-034. (Cl.'s Br. at 14.) Describing that

occupation as a "light, semi-skilled job,"5 claimant challenges

the ALJ's finding that she has the RFC to perform it. Her

attempt to provide some rationale for the ALJ's decision, albeit

with the ultimate purpose of proving it flawed, is both

SClaimant appears to be mistaken on this point. The occupation with the code number 726.684-034 and title "assembler, semiconductor," is classified in the DOT as a sedentary job with a specific vocational preparation (SVP) rating of 3 (meaning that it reguires a training period of "[o]ver 1 month up to and including 3 months," DOT, Ap p . C ) . Claimant may have intended to refer to the job of electronics assembler. Occupational Code Number 726.684-018, which is rated at the light exertional level and has an SVP rating of 4 (reguiring a training period of "[o]ver 3 months up to and including 6 months," DOT, App. C ) .

13 unnecessary, as discussed above, and overly generous to the

Commissioner.

First, while the ALJ could have referred to the DOT to

determine the physical and mental demands of claimant's prior

relevant work without having to obtain that information through

the claimant's testimony, see Gray,

, he did not

expressly claim to have done so. Nor should the court assume or

infer that he did. See Pfitzner,

(holding that

although it could be argued that the ALJ implicitly referred to

the DOT in stating that an occupation was described as medium

work and semiskilled, "the lack of an express reference reflects

more than a mere deficiency in opinion-writing in this case" that

would not necessitate reversal). Moreover, even if the court

could assume that the ALJ made his determination by reference to

the DOT, there is no way of knowing whether he relied on the

listing that claimant, or even this court, might think most

closely describes claimant's past relevant work. Cf. French v.

Apfel,

(N.D.N.Y. July 14, 1999) (ALJ's

decision not supported by substantial evidence where "nowhere is

the term 'office worker' listed in the DOT, and it is thus

unclear how the ALJ arrived at the conclusion that office work is

usually sedentary in nature").

14 Claimant's analysis is also overly generous to the

Commissioner because it considers only one of a number of tasks

performed as part of claimant's prior work, which task may well

require a lesser exertional capacity than others performed in the

same job. Such a bifurcated approach by an ALJ is impermissible.

As the Ninth Circuit has held, "[e]very occupation consists of a

myriad of tasks, each involving different degrees of physical

exertion. To classify an applicant's 'past relevant work'

according to the least demanding function of the claimant's past

occupations is contrary to the letter and spirit of the Social

Security Act." Valencia v. Heckler,

(9th

Cir. 1985).

Thus, in order to conclude that a claimant can perform her

past relevant work, the ALJ must find that she is "capable of

performing all of the duties of that job." Armstrong v.

Sullivan,

(W.D. Tex. 1993) (emphasis

added). This is true even where claimant's prior job combined

the duties of occupations that also exist separately in the

national economy. See, e.g.,

(claimant previously worked as

both cook and cashier in a restaurant); Tavlor v. Bowen,

(D. Me. 1987)(claimant's prior job was described in

the record as "'combination receptionist, general office

clerk' ") .

15 The ALJ found that claimant had previously "worked as an

assembler and packer of computers and as a data input clerical."

(R. at 46.) Although the statement appears to describe two jobs,

the record suggests that the ALJ may have been referring to a

single job, namely, claimant's employment at Computervision from

January, 1984, to December, 1987 .6 Claimant described her duties

in that job as follows: "Cleaned, assembled, and packed computers

for shipping. Also worked in purchasing entering & deleting

purchase orders on computer." (R. at 134.) Claimant's data

entry tasks in this job were probably sedentary, see DOT

Occupational Code Number 203.582-054 (describing the occupation

"data entry clerk (clerical)" as sedentary), and would not be

precluded by the RFC found by the ALJ. However, even if, as

claimant suggests, her computer assembly tasks can be classified

as light work, and therefore also arguably open to claimant based

on the ALJ's determination of her RFC, the Computervision job

6Whatever the ALJ's intended reference, the Computervision job may be the only past relevant work that could supportably be described as "data input." The extent to which claimant's other clerical jobs may have involved computer data entry is unclear. Claimant described the duties of her temporary position at First NH Bank, which lasted approximately one month, as "[s]orted & handled all of N.E. Tel. Bills," (R. at 134.), and " [r]esponsible for routing incoming mail to the appropriate departments," (R. at 226). Claimant also worked in the City Clerk's office for the City of Manchester, apparently in the personnel department. The record does not clearly indicate what duties that job reguired.

16 also involved packing computers. That task may well have

required a greater exertional capacity than the ALJ found

claimant had. See DOT Occupational Code Number 920.587-018

(describing the occupation "packager, hand (any industry)" as

medium work); DOT Occupational Code Number 920.685-078

(describing the occupation "packager, machine (any industry)" as

medium work).

Accordingly, the ALJ's decision is not supported by

substantial evidence. On remand, the ALJ should determine, based

on substantial testimonial and/or documentary evidence, what

physical and mental demands were imposed by all of the duties of

claimant's past relevant work, and whether claimant can meet

those demands given her RFC. Of course, if the ALJ finds that

claimant cannot perform her past relevant work, he must go on to

step five of the sequential analysis.

Conclusion

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

and remand the Commissioner's denial of benefits (document no. 7)

is granted and the Commissioner's motion for order affirming the

decision of the Commissioner (document no. 11) is denied.

Pursuant to sentence four of

(g), the case is

17 remanded to the ALJ for further proceedings consistent with this

decision.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 30, 1999

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

18