Lawrence v. SSA CV-99-198-JD 06/14/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark Lawrence

v. Civil No. 99-198-JD Opinion No. 2000DNH134 Kenneth S. Apfel, Commissioner Social Security Administration

O R D E R

Mark Lawrence seeks review pursuant to

(g)

of the denial of his application for social security benefits.

Lawrence alleges a disability due to a combination of physical

and mental impairments. Following remand of the initial decision

of the Administrative Law Judge ("ALJ" ) , Lawrence was found to be

able to perform work other than his previous work and was

therefore determined not to be disabled. Lawrence appeals the

decision on the grounds that his intelligence guotient meets the

listing level for mental retardation and that the ALJ erred in

finding him not disabled without considering his vision

impairment. The Commissioner moves to affirm the decision

denying benefits.

_________________________ Standard of Review

The court must uphold a final decision of the Commissioner

denying benefits unless the decision is based on legal or factual error. See Manso-Pizarro v. Secretary of Health and Human

Servs.,

(1st Cir. 1996) (citing Sullivan v.

Hudson,

(1989)). The Commissioner's factual

findings are conclusive if based on substantial evidence in the

record. See

(g) and § 1383(c) (3) . Substantial

evidence is "such relevant evidence as a reasonable mind might

accept as adeguate to support a conclusion." Richardson v.

Perales,

(1971) (guotation omitted). The

Commissioner's findings are not conclusive "when derived by

ignoring evidence, misapplying the law, or judging matters

entrusted to experts." Nguyen v. Chater,

(1st

C i r . 1999).

Discussion

Lawrence's application was denied at step five of the

seguential evaluation process set forth in

.

The ALJ found that Lawrence was not able perform his past

relevant work as a pallet repairer or as an etcher plater. Based

on the opinion of a vocational expert, the ALJ determined that

Lawrence was able to perform work as an assembler of small parts

and as a checker and inspector, and that he was therefore not

disabled. Upon denial of review by the Appeals Council, the

ALJ's determination became the opinion of the Commissioner.

2 Lawrence first challenges the ALJ's determination at step

three of the analysis that his impairments did not meet or equal

the requirements of a listed impairment in 20 C.F.R. p t . 404,

subpt. P, a p p . 1. He contends that his intelligence quotient

meets the listing at § 12.05(D) for mental retardation and that

the ALJ erred in not finding him disabled due to mental

retardation. At step three, the claimant bears the burden of

proving that his condition meets or equals a listed impairment.

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

(1st Cir. 1987).

The listing at § 12.05(D) requires "[a] valid verbal,

performance, or full scale IQ of 60 through 70, . . . ." along

with at least two of four listed functioning difficulties or

deficiencies. The record establishes, and Lawrence acknowledges,

that his intelligence quotient for verbal, performance, and full

scale functioning has been measured to be in the range between 70

and 80. It is therefore unclear on what basis Lawrence claims to

meet or equal a listed impairment for mental retardation.

Instead, the record supports the ALJ's finding that Lawrence's

impairment does not meet or equal the criteria listed for an

impairment due to mental retardation.

Lawrence next contends that the ALJ erred in concluding that

he was not disabled at the fifth step in the analysis because the

3 jobs the vocational expert found he could perform would be

precluded due to his visual limitation, which was not included in

the hypothetical posed to the expert.1 At the fifth step, the

Commissioner has the burden to show that despite the claimant's

severe impairments, he retained the residual functional capacity

to do work other than his prior work and that work the claimant

can do exists in significant numbers in the relevant economies.

See Heggartv v. Sullivan,

(1st Cir. 1991) .

In making a disability determination, the ALJ is reguired to

consider all of the record evidence, including the medical

records and the claimant's own statements concerning his

abilities and limitations.See

(a); see also

Hickman v. Apfel,

(7th Cir. 1999); Clifton v.

Chater,

(10th Cir. 1996). The opinion of a

vocational expert as to whether a claimant is capable of

performing work may be relied upon as substantial evidence only

if the hypothetical posed to the expert is accurate, based on the

record evidence. See Marcotte v. Callahan,

(D.N.H. 1997) (citing Arocho v. Secretary of Health and Human

1In 1992, Lawrence was diagnosed by Dr. Joseph J. Raczek with stable amblyopia, which was correctable to 20/40 vision in his right eye and to 20/80 for distance and 20/100 for near vision in his left eye. Dr. Raczek indicated no physical limitations due to Lawrence's vision impairment.

4 Servs.,

(1st Cir. 1982)). To be accurate, the

hypothetical must include all of the claimant's limitations that

are supported in the evidence of record. See Herron v. Shalala,

(7th Cir. 1994). A vision impairment can

constitute a significant limitation on a claimant's ability to

work. See Collado v. Apfel,

(D.P.R.

1999).

At Lawrence's application hearing, the ALJ raised the issue

of Lawrence's vision based on a reference in the record that he

had been diagnosed in 1992 as having amblyopia. The ALJ asked to

be provided with an up-to-date opthalmological record and said

that he would then check with the vocational expert about what

effect, if any, Lawrence's vision diagnosis would have on the

expert's opinion as to the availability of jobs that he could

perform. The ALJ left the record open for ten days for the

submission of additional medical evidence, and Lawrence sent Dr.

Raczek's 1992 records showing his diagnosis of amblyopia and a

loss of visual acuity even with correction. The ALJ did not ask

for additional medical evidence on Lawrence's vision and did not

consult the vocational expert as to what effect the diagnosis

would have on her opinion. The ALJ did not mention Lawrence's

diagnosed vision impairment in his determination, and he relied

on the jobs recommended by the vocational expert, who had not

5 been informed of the diagnosis.

Despite the ALJ's failure to address Lawrence's vision

impairment, the Commissioner argues that the record contains

substantial evidence to support a determination that Lawrence's

ability to work was not affected. The Commissioner points to

evidence of Lawrence's daily activities to show that his ability

to function was not impaired by his vision loss. In particular,

the Commissioner notes that Lawrence was able to watch television

and play darts and was able to do cooking, cleaning, laundry,

housekeeping, and shopping, although he preferred to have his

girlfriend do those tasks.

The jobs recommended by the vocational expert could be

expected to reguire some level of visual acuity for close work.

Nothing in the record indicates what effect Lawrence's diagnosed

condition of amblyopia and corrected near vision in his right eye

to 20/100 and to 20/40 in his left eye would have on his ability

to assemble small parts or to check and inspect parts. The ALJ

did not explain, as the Commissioner has attempted to do after

the fact, whether he considered Dr. Raczek's diagnosis in light

of Lawrence's daily activities, or otherwise. In fact, the ALJ

did not address Lawrence's vision limitations in his decision at

all. Further, absent expert opinion, the ALJ is not gualified to

interpret Dr. Raczek's diagnosis to determine its effect on

6 Lawrence's functional capacity to do the jobs recommended by the

vocational expert. See Manso-Pizarro,

. The ALJ's

apparent failure to consider Lawrence's vision impairment is not

merely a technical deficiency but instead prevents a reasoned

review of the Commissioner's decision to deny benefits. See

Senne v. Apfel,

(8th Cir. 1999); Collado,

.

Since Lawrence's visual limitation was not included in the

hypothetical posed to the vocational expert, her opinion does not

accurately state his ability to work in the relevant job market

and does not constitute substantial evidence of Lawrence's

ability to work. Therefore, the ALJ's determination that

Lawrence is not disabled is not supported by substantial evidence

in the record. Since the Commissioner has not carried the burden

at step five to show that substantial evidence in the record

supports his decision, the decision is vacated, and the case is

remanded for further proceedings.

Conclusion

_____ For the foregoing reasons, the claimant's motion (document

no. 8) is granted to the extent that the decision of the

Commissioner is vacated and the case is remanded for further

proceedings. The Commissioner's motion (document no. 9) is

7 denied. Because this is a sentence four determination, the clerk

of court shall enter judgment and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

June 14, 2000

cc: Robert E. Raiche Sr., Esguire David L. Broderick, Esguire

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