Groulx v. SSA CV-98-692-B 01/04/00

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

ADRIAN GROULX

v. Civil N o . 98-692-B Opinion N o .

KENNETH S. APFEL, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Adrian Groulx seeks review of a final decision of the

Commissioner of the Social Security Administration (SSA), denying

his application for Supplemental Security Income (SSI) benefits.

I have jurisdiction pursuant to

(g) (1994).

Before me are Plaintiff’s Motion for Order Reversing the Decision

of the Commissioner (Doc. # 9 ) and Defendant’s Motion for Order

Affirming the Decision of the Commissioner (Doc. # 1 1 ) .

Groulx applied for SSI benefits on October 2 2 , 1996. His

application was denied initially and on reconsideration by the

SSA. On November 2 6 , 1997, an Administrative Law Judge (ALJ)

held a de novo hearing on Groulx’s claim. Groulx and a

vocational expert (VE) testified at the hearing.

On February 1 9 , 1998, the ALJ issued her decision, which

applied the familiar five-step sequential evaluation process set forth in the SSA’s regulations.1 See

(1999).

At the first three steps of the process, the ALJ found that (1)

Groulx had not engaged in substantial gainful activity since June

1 5 , 1991; (2) Groulx suffered from hypertension, moderate small

airways obstruction, and back pain related to a previous lumbar

laminectomy,2 impairments that were severe; and (3) Groulx’s

impairments did not meet or equal the criteria of any of the

listed impairments. See Tr. at 22. 3 At step four, the ALJ found

that Groulx was unable to perform his past relevant work. See

The ALJ rejected Groulx’s claim for benefits at step five of

the evaluation process. After considering Groulx’s functional

capacity, age, educational experience, and work background, the

1 In applying the sequential analysis, the ALJ must determine: (1) whether the claimant is presently 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. See

(1999). 2 Laminectomy: Excision of the posterior arch of a vertebra. Dorland’s Illustrated Medical Dictionary 898 (28th ed.). 3 “Tr.” refers to the official transcript of the record submitted to the Court by the SSA in connection with this case.

-2- ALJ concluded that Groulx was capable of performing certain jobs

that existed in significant numbers in the national economy. See

id. at 22-3. This finding was predicated on the testimony of the

V E , who stated in response to a hypothetical question posed by

the ALJ that a person with the characteristics outlined in the

hypothetical could perform work as a cashier, information clerk,

order clerk, production coordinator, surveillance monitor, or

assembler. See id. at 2 1 , 2 3 , 69-71. Based on the VE’s

testimony, the ALJ found that Groulx was not disabled within the

meaning of the Social Security Act. See id. at 2 3 .

On October 2 8 , 1998, the Appeals Council denied Groulx’s

request for a review of the ALJ’s decision, rendering the ALJ’s

decision the final determination of the Commissioner. Groulx

then filed the present action in federal court, claiming that the

Commissioner’s decision should be reversed because: (1) Groulx’s

claim was prejudiced because his statutory right to

representation at the disability hearing was not adequately

protected; (2) the ALJ’s determination at step 5 of the

evaluation process was infected with error and thus was not

supported by substantial evidence; and (3) the ALJ’s credibility

finding was not supported by substantial evidence. Because I

agree with the second of these assertions, I reverse the

-3- Commissioner’s decision and remand for further proceedings.4

I. FACTS5

Groulx was forty-five years old at the time of his

administrative hearing. He has a general equivalency diploma and

has worked as a meat packer, a mason/carpenter, and a dispatcher.

He lives in Manchester, New Hampshire.

Groulx first injured his back in August 1984, when he fell

down a stairway. After pursuing more conservative treatment for

several years, Groulx underwent his first back surgery, a lumbar

laminectomy, in August 1986.

Five years later, in June 1991, Groulx sustained a second

injury to his back, this time while at work. As a result, he was

scheduled for five weeks of physical therapy to eliminate lower

back pain and increase his range of motion.

Groulx underwent a number of medical tests at Catholic

Medical Center (“CMC”) in October and November 1991. Magnetic

resonance imaging (“MRI”) revealed a scar in the left lateral

4 Because I find that the Commissioner’s decision must be reversed and remanded for the reasons that follow, I render no opinion on the merits of Groulx’s other claims on appeal. 5 Unless otherwise indicated, the following facts are derived from the Joint Statement of Material Facts (Doc. #12) submitted by the parties.

-4- recess at L4-5, with only a small component of residual disc

bulge identified. A myelogram revealed a midline and right-sided

diskal lesion at L4-5. A CT scan showed a central and right-

sided extradural defect, L4-5, which was small to moderate in

size. Dr. Garrett Gillespie stated that based on the M R I , Groulx

probably had a recurrent disc in addition to some probable

lateral spinal stenosis. In the discharge summary from CMC dated

November 2 0 , 1991, Dr. Gillespie indicated that Groulx remained

disabled from his June 1991 injury and would need remedial

surgery.

While Groulx was at CMC, he was evaluated by Dr. Robert

Brethauer for complaints of coughing and dyspnea.6 Examination

revealed diffuse expiratory wheezes and rhonchi.7 Dr. Brethauer

diagnosed probable asthmatic bronchitis, noted that Groulx smoked

one and one-half packs of cigarettes per day, and prescribed

bronchodilators.

Dr. Gillespie conducted several follow-up examinations of

Groulx in 1991 and 1993. In October 1993, Dr Gillespie expressed

6 Dyspnea: Difficult or labored breathing. Dorland’s Illustrated Medical Dictionary 518 (28th e d . ) . 7 Rhonchi: Continuous dry rattlings in the throat or bronchial tube due to a partial obstruction. Dorland’s Illustrated Medical Dictionary 1462 (28th e d . ) .

-5- his opinion that Groulx was totally disabled and scheduled Groulx

for decompressive surgery. Later that month, Groulx underwent

back surgery for the second time. The procedure consisted of

lumbar laminectomy L4-5, right, with excision of ruptured lumbar

disc; decompression right L5 nerve root and cauda equina 8 ;

foraminotomy9 L4-5, right; lumbar laminotomy L5-S1, right, with

exploration of disc space; decompression right S1 nerve root; and

foraminotomy L5-S1, right. Postoperative course and wound

healing were satisfactory and Groulx was free of leg pain at the

time of discharge. His discharge medications included Tylenol #3

and Flexeril.10

While he was hospitalized for surgery, Groulx was seen in

consultation by Dr. Stephen Rowe regarding his respiratory

status. D r . Rowe noted that Groulx smoked two packs of

cigarettes per day and had been unsuccessful in reducing his

8 Cauda equina: The collection of spinal roots that descend from the lower part of the spinal cord and occupy the vertabral canal below the cord. Dorland’s Illustrated Medical Dictionary 280 (28th e d . ) . 9 Foraminotomy: The operation of removing the roof of inverterbral foramina, done for the relief of nerve root compression. Dorland’s Illustrated Medical Dictionary 650-51 (28th e d . ) . 10 Flexeril: A muscle relaxant. Dorland’s Illustrated Medical Dictionary 4 1 4 , 639 (28th e d . ) .

-6- smoking prior to surgery. Dr. Rowe diagnosed asthmatic

bronchitis in a patient with chronic obstructive pulmonary

disease. He recommended nebulizer treatments and Kefsol, and

noted that the most important part of Groulx’s treatment would be

the cessation of cigarette smoking.

On October 2 7 , 1993, Groulx had a follow-up examination with

Dr. Gillespie, who observed the expected amount of post-operative

muscle spasm. D r . Gillespie recommended that Groulx start on a

progressive walking and exercise program. After another follow-

up examination in November, Dr. Gillespie noted that Groulx had

become more active. Dr Gillespie also noted that Groulx

continued to have residual muscle spasms and right leg pain, and

that Groulx’s spinal extension was limited. To address the

muscle spasms, see Tr. at 243, D r . Gillespie changed Groulx’s

medication to Robaxisal.11

In February 1994, D r . Gillespie noted that Groulx was up and

around without much leg pain. Groulx reported back pain with any

prolonged activity or postural maintenance. Examination revealed

right-sided muscle spasm, spinal extension, and lateral flexion

to no more than 30% of normal range; forward bending to somewhat

11 Robaxisal: A skeletal muscle relaxant. Dorland’s Illustrated Medical Dictionary 1025, 1469 (28th e d . ) .

-7- more than 45 degrees; and straight leg raising limited on both

sides to about half of normal range. D r . Gillespie recommended

that Groulx get into a training program for a sedentary indoor

occupation that required no repetitive bending, lifting,

climbing, or crawling, and that would accommodate the need to

change posture at will.

At Groulx’s next follow-up examination, in August 1994, Dr.

Gillespie noted that Groulx had not been placed in a training

program. The doctor indicated that Groulx could probably perform

“some light sedentary type work.” Tr. at 245. Dr. Gillespie

added that Groulx “has residual symptomology and obvious

limitations and will have throughout his life but does well

enough so that he can do some light work.” Id.

In 1996, Groulx was seen by Dr. Harvey Silverman in

connection with his respiratory condition. Dr. Silverman

diagnosed COPD and chronic bronchitis/emphysema, and stated that

Groulx could perform sedentary work.

In November 1996, Groulx underwent pulmonary function tests

at Elliot Hospital. Pre and post bronchodilator spirometry were

performed. Baseline FEV1 (forced expiratory volume) was 79% of

predicted, which is just below normal, and FVC (forced vital

capacity) was in the normal range at 87% of predicted. After

-8- administration of bronchodilator, FEV1 improved 28% and FVC

improved 2 1 % . Dr. William Mezzanotte concluded that Groulx had

mild obstructive lung disease with excellent response to

bronchodilator.

Dr. William Kilgus performed a consultative examination in

December 1996. Groulx reported chronic pain affecting his lower

back, with numbness and weakness in his legs. Dr. Kilgus opined

that Groulx was suffering from chronic lumbar strain,

lumbrosacral instability, and bilateral lumbar radiculopathies.

He stated that Groulx could not do work requiring physical

activity and recommended vocational rehabilitation. Dr. Kilgus

indicated that work involving alternate sitting and standing and

using the arms in a nonstrenuous fashion would be best suited to

Groulx’s condition.

In January 1997, Dr. Rowe examined Groulx, noting chronic

bronchitis. Dr. Rowe stated that there was no evidence of

disability related to Groulx’s pulmonary condition.

Dr. William Windler examined Groulx in February 1997 in

connection with Groulx’s application for Medicaid. D r . Windler

noted that Groulx had a decreased tolerance for exercise due to

his lung condition, that Groulx could only sit or stand for 20-60

minutes due to back pain, and that Groulx’s capacity for lifting

-9- was limited by his back condition. The doctor recommended

vocational rehabilitation.

Dr. Mitch Young evaluated Groulx in February 1997.

Examination revealed that Groulx’s lungs were negative, that a

range of motion of the lumbar spine produced some pain, that

straight leg raising was negative, and that there was some mild

weakness with dorsiflexion. D r . Young opined that Groulx could

not do heavy work. At a follow-up examination scheduled to check

Groulx’s blood pressure, physician’s assistant Heather Davis

noted hypertension. As a result, Groulx was counseled on his

diet and his use of alcohol and cigarettes. Groulx was also

given prescriptions for Enalapril12 and Captopril.13

In April 1997, Davis noted that Groulx had symptoms of a

respiratory tract infection and that his hypertension was

beginning to be controlled by medication. In May, Groulx

complained to Davis of difficulty breathing and Davis diagnosed

an exacerbation of COPD. Later that month and at a subsequent

12 Enalapril: An antihypertensive. Dorland’s Illustrated Medical Dictionary 547 (28th e d . ) . 13 Captopril: An angiotensin-converting enzyme inhibitor used in the treatment of hypertension and congestive heart failure. Dorland’s Illustrated Medical Dictionary 261 (28th ed.).

-10- examination in July, Groulx complained of rectal bleeding. As of

July 1997, Groulx continued to complain of difficulty breathing

and had failed to quit smoking.

In December 1997, one month after the administrative

hearing, Groulx underwent a second pulmonary function study

ordered by the ALJ. FEV1 was 72% of predicted and FEVC was 83%

of predicted. Bronchodilator brought FEV1 into the normal range

at 8 5 % . D r . Rowe’s overall impression was that Groulx had a

moderate airflow obstruction primarily in the small airways with

an excellent response to bronchodilator.

II. STANDARD OF REVIEW

After a final determination by the Commissioner denying a

claimant’s application for benefits, and upon a timely request by

the claimant, I am authorized t o : (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 ALJ’s decision. See

(g). My review

is limited in scope, however, as the ALJ’s factual findings are

conclusive if they are supported by substantial evidence. See

Irlanda Ortiz v . Secretary of Health and Human Servs.,

(1st Cir. 1991) (per curiam);

(g). The

-11- ALJ is responsible for settling credibility issues, drawing

inferences from the record evidence, and resolving conflicting

evidence. See Irlanda Ortiz,

. Therefore, I must

“‘uphold the [ALJ’s] findings . . . if a reasonable mind,

reviewing the evidence in the record as a whole, could accept it

as adequate to support [the ALJ’s] conclusion.’”

(quoting

Rodriguez v . Secretary of Health and Human Servs.,

(1st Cir. 1981)).

While the ALJ’s findings of fact are conclusive when

supported by substantial evidence, they “are not conclusive when

derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts.” Nguyen v . Chater,

1 , 35

(1st Cir. 1999) (per curiam). I apply these standards in

reviewing Groulx’s case on appeal.

III. DISCUSSION

The key to this case lies in its chronology. While at

particular points in the administrative process the ALJ acted

carefully and in accordance with the Commissioner’s regulations,

an analysis of the record in sequence reveals that the ALJ

committed several related, if unintentional, errors when

considering Groulx’s respiratory impairment. Each of these

-12- errors independently supports the conclusion that the ALJ’s

decision was not supported by substantial evidence.

Prior to the November 2 6 , 1997 administrative hearing,

Groulx had been diagnosed by two physicians -- Drs. Rowe and

Silverman -- as suffering from chronic obstructive pulmonary

disease. See Tr. at 216-17, 230. In November 1996, one year

before the hearing, Groulx underwent his first pulmonary function

study, which revealed that he had mild obstructive lung disease

with excellent response to bronchodilator. See id. at 249. When

Groulx appeared at the hearing before the ALJ, he testified that

his breathing problem had worsened during the previous year. See

id. at 6 4 . As a result, the ALJ ordered another pulmonary

function study to update the medical evidence of Groulx’s

respiratory impairment. See id. at 6 6 , 72-73. This second

study, which was conducted in December 1997 by Dr. Rowe, showed

that Groulx had a moderate airflow obstruction primarily in the

small airways with excellent response to bronchodilator. See id.

at 277. Dr. Rowe noted that in comparison to the November 1996

study, the more recent results showed that Groulx’s FEV1 had

decreased by approximately 200 cubic centimeters. See id.

At the time of the hearing, of course, the results of the

second pulmonary function study were not yet part of the record.

-13- Therefore, the state agency physicians who completed and affirmed

the physical residual functional capacity (RFC) assessment prior

to the hearing, see id. at 147-53, did not have the results of

the second study when they made their assessment. This RFC

assessment concluded that Groulx should avoid concentrated

exposure to extreme cold, fumes, dust, and related environmental

irritants. See id. at 151. The hypothetical that the ALJ posed

to the vocational expert (VE) at the hearing generally tracked

the environmental limitations indicated in the RFC assessment.

Specifically, the ALJ instructed the VE to assume a hypothetical

worker who, among other restrictions, had to “avoid concentrated

exposure to respiratory irritants like fumes and chemicals and

dust.” Id. at 6 9 . In response to a hypothetical that included

these environmental limitations, the VE identified specific jobs

existing in the national economy that such a worker could

perform. See id. at 69-71.

In her written decision, issued approximately three months

after the hearing, the ALJ credited the results of the second

pulmonary function study, citing that study to support the

conclusion that Groulx “had moderate airflow obstruction.” Id.

at 1 7 . The ALJ further concluded that the claimant “would be

precluded from working around moderate environmental irritants.”

-14- Id. The decision does not explain how the ALJ arrived at this

assessment of Groulx’s environmental limitations; nor does it

acknowledge that this assessment differs from that contained in

the RFC evaluation, which in turn was the basis for the

hypothetical question posed to the VE at the hearing.

This recitation is necessary to illuminate two legal errors

committed by the ALJ, both of which stemmed from the occurrence

of an additional medical study of Groulx’s respiratory impairment

conducted after the hearing. First, the ALJ inferred, without

the benefit of expert medical opinion, that the moderate airflow

obstruction revealed by the second pulmonary function study

correlated with a need to avoid moderate environmental irritants.

While this inference may have a certain semantic logic to

recommend i t , it is nonetheless a medical judgment that the ALJ

was not competent to render.

The First Circuit has consistently held that an ALJ is “not

qualified to interpret raw medical data in functional terms.”

Nguyen, 172 F.3d at 3 5 ; see also Manso-Pizarro v . Secretary of

Health and Human Servs.,

5 , 17 (1st Cir. 1996) (per

curiam); Gordils v . Secretary of Health and Human Servs.,

(1st Cir. 1990) (per curiam). Determining the

environmental restrictions that result from a moderate airflow

-15- obstruction requires “more than a layperson’s effort at a

commonsense functional capacity assessment.” Manso-Pizarro,

9 . In the present case, the ALJ should have sought

guidance from a medical expert when reassessing Groulx’s

functional capacity in light of new medical evidence showing that

Groulx suffered from a moderate -- rather than mild -- airflow

obstruction. See

. The ALJ’s failure to seek expert

advice, and the resultant lack of any support for the conclusion

that Groulx must avoid moderate exposure to environmental

irritants, constitutes sufficient basis for remand. See

at

1 9 ; see also White v . Secretary of Health and Human Servs.,

4 , 65 (2d Cir. 1990) (noting that “the failure to specify

the basis for a conclusion as to residual functional capacity is

reason enough to vacate a decision of the Secretary”).

The ALJ also erred by relying on the VE’s testimony after it

became apparent that the hypothetical posed to the VE no longer

accurately reflected the extent of Groulx’s respiratory

impairment. An ALJ is entitled to rely on the testimony of a VE

“as long as there was substantial evidence in the record to

support the description of [the] claimant’s impairments given in

the ALJ’s hypothetical to the [VE].” Berrios Lopez v . Secretary

of Health and Human Servs.,

(1st Cir. 1991)

-16- (per curiam); see also Arocho v . Secretary of Health and Human

Servs.,

(1st Cir. 1982). In the present case,

the problem is that the medical evidence of Groulx’s respiratory

impairment was supplemented after the hearing by the results of

the second pulmonary function test, which the ALJ ordered at the

hearing and credited in her decision. Therefore, while the

hypothetical the ALJ posed to the VE accurately reflected the

medical evidence of Groulx’s respiratory impairment at the time

of the hearing, it did not (and could not) take into account the

results of the second pulmonary function study, which indicated

that Groulx’s pulmonary obstruction had progressed from “mild” to

“moderate.” Because the ALJ’s hypothetical relied on an RFC

assessment that did not incorporate credited medical evidence of

the extent of Groulx’s respiratory impairment, the VE’s testimony

does not support a finding that Groulx was not disabled. See

Rose v . Shalala,

3 , 19 (1st Cir. 1994); Nguyen v .

Chater,

, 1466 n.3 (9th Cir. 1996).

While it is possible that the results of the second

pulmonary function study would not have appreciably altered

either Groulx’s functional limitations or the VE’s testimony,

neither the ALJ nor I , as laypersons, are qualified to make that

determination. In this case, the ALJ acted commendably by

-17- ordering an additional medical test in response to Groulx’s

complaint at the hearing that his respiratory impairment had

worsened. However, once the ALJ credited the results of that

test, she was obligated to seek expert advice to determine

whether the new evidence of impairment would affect either the

RFC assessment or the VE’s analysis.14

IV. CONCLUSION

Accordingly, I reverse the Commissioner’s decision and

remand for further proceedings with instructions that, in

14 The present case is distinguishable from Rodriguez v . Secretary of Health and Human Servs.,

, N o . 90-1039,

(1st Cir. Sept. 1 1 , 1990) (per curiam) (table, text available on Westlaw), in which the First Circuit rejected a claimant’s contention that the ALJ and/or the Appeals Council should have sought additional VE testimony based on medical evidence submitted after the claimant’s hearing. First, the claimant in Rodriguez was represented by counsel, who neither requested that the VE reconsider his opinion in light of the subsequent evidence nor suggested how that evidence may have affected the VE’s opinion.

at * 3 . In the present case, Groulx was not represented by counsel at either the hearing or Appeals Council stages of the process. Second, the Rodriguez Court found that the evidence submitted after the hearing was not significantly different from the evidence considered by the ALJ and VE at the hearing. See

at * 3 - 4 . As noted above, the second pulmonary function study performed on Groulx seems to suggest some change in the impairment. The extent and significance of that change is not readily apparent to a layperson. Finally, the subsequent evidence in Rodriguez came from the claimant, see

at * 2 - 3 , while the subsequent evidence in the present case resulted from testing ordered by the ALJ herself.

-18- reaching a new decision, the ALJ obtain the expert opinion

necessary to determine the functional and vocational limitations

related to Groulx’s respiratory impairment. Plaintiff’s motion

for an order reversing the decision of the Commissioner (Doc. #9)

is granted, and Defendant’s motion for an order affirming the

decision of the Commissioner (Doc. #11) is denied. Because I am

acting pursuant to sentence four of

(g), the Clerk

is instructed to enter judgment forthwith in accordance with this

order. See Shalala v . Schaefer,

(1993).

SO ORDERED.

Paul Barbadoro Chief Judge January 4 , 2000

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

-19-