Payeur v. SSA CV-01-034-JD 08/14/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas Payeur

v. Civil No. 01-034-JD Opinion No.

Larry G. Massanari

O R D E R

The plaintiff, Thomas Payeur, brings this action pursuant to

(g) seeking judicial review of the decision by

the Acting Commissioner of the Social Security Administration

denying his application for Title II social security benefits.

Payeur, who claimed a disability due to problems with his neck

and back, contends that the Administrative Law Judge ("ALJ"),

Robert S. Klingebiel, failed to properly assess his residual

functional capacity and failed to develop the record with respect

to his mental impairments. The Acting Commissioner moves to

affirm the decision. For the reasons hereinafter given, the

Commissioner's decision is reversed, and the case is remanded for

further administrative proceedings.

_________________________ 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. Sec'v of Health & Human Servs.,

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

(1989)). The court's "review is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence." Nguyen v. Chafer,

(1st Cir. 1999). The Commissioner's factual

findings are conclusive if based on substantial evidence in the

record. See

(g). Substantial evidence is "such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion." Richardson v. Perales,

(1971) (internal quotation omitted).

Background

Thomas Payeur applied for social security benefits based on

a workplace injury to his back that occurred on June 24, 1991,

when he was thirty-one years old. At the time of the accident,

Payeur was working as a concrete foundation worker. His other

previous work included being a car wash attendant, assembler,

machine operator, and a tannery worker.

Payeur began treatment for his back injury on June 27, 1991,

when the doctor found bilateral lumbar spasm and diagnosed

cervical and low back strain. He continued to experience pain

and was examined by his family practitioner. Dr. Bennett, on July

8, 1991. Dr. Bennett diagnosed spinal injury secondary to a

2 fall. He prescribed anti-inflammatory and analgesic medication.

Payeur's medical records indicate that he continued to treat with

Dr. Bennett into 1996 without resolving his back problems. The

later notes indicate problems with depression and anxiety. On

March 4, 1996, Dr. Bennett wrote a note as follows, "To whom it

may concern: Mr. Payeur had a back injury which disabled him

from any heavy work. He should be able to do light work, that

does not require lifting."

Payeur was also treated by several orthopedists. Dr.

Geppert examined Payeur in August, September, and December of

1991. In August, Dr. Geppert concluded that Payeur had a bruised

back and cervical strain without neurological deficits. He

recommended work hardening and physical therapy. He indicated in

September of 1991 that Payeur would be able to resume light duty

work without excessive bending, lifting, or other heavy

construction activities. In September, he assessed lumbar strain

with disproportionate pain and recommended physical therapy. At

the December visit. Dr. Geppert found that Payeur complained of

pain that seemed out of proportion to the injury and told him he

could return to work after he completed the work hardening

program.

Between June of 1992 and May of 1995, Payeur treated with a

chiropractor. Dr. Clark, who initially expected Payeur to be

3 released without restrictions within three weeks. He later noted

less progress. On May 1 6 , 1 9 9 5 , Dr. Clark completed a physical

capacity evaluation in which he indicated that Payeur could sit,

stand, or walk for one hour at a time in an eight hour day with

total sitting limited to three hours and standing limited to four

hours and walking limited to one hour. He also found that Payeur

should not even lift five pounds, that his use of his hands for

repetitive activities was limited, that he could bend

occasionally but should not crawl or climb, and that he should

limit his driving because of the need to turn his head.

Dr. John Welch examined Payeur on May 25, 1992. Dr. Welch

noted Payeur's complaints of chronic pain in his lower back with

headaches and neck pain. On examination, however. Dr. Welch

found no evidence of deficits or radiculopathy, neuropathy, or

myelopathy. He noted that Payeur seemed anxious and angry, but

he found nothing but chronic pain syndrome. He suggested

psychological counseling.

Payeur saw Dr. George Costello, an orthopedic surgeon, on

December 14, 1992. Dr. Costello found that Payeur's x-rays were

essentially normal confirming Dr. Welch's evaluation and results

in May of 1992. Dr. Costello's impression, based on Payeur's

complaints of pain and his less-than-optimal effort in flexion

testing, was that Payeur had cervical and lumbar strain with

4 chronic pain syndrome due to spasms. An MRI was done on March

25, 1993. Dr. Costello found that the lumbrosacral spine was

within normal limits, but the cervical spine showed a significant

disc protrusion at C6-C7 and a question of protrusion at C5-C6.

In April of 1993, orthopedic surgeon Dr. Donald Cusson

examined Payeur. He did not have the March 19 93 MRI, that Dr.

Costello interpreted to show a disc protrusion. Dr. Cusson noted

that Payeur appeared to be depressed but found no abnormalities

in his examination. Dr. Cusson found no reason for current

medical treatment and concluded that Payeur should have returned

to his usual work a long time ago.

Payeur was examined by Dr. Clinton Miller, a neurosurgeon,

on June 11, 1993. After examination and review of the x-rays and

MRI, Dr. Miller concluded that Payeur had had a significant

traumatic cervical spine injury which is now associated with

chronic neck pain and suggestive of LC-7 radiculopathy. He also

found evidence on the MRI of significant cervical disc disease at

C6-C7.

Payeur saw Dr. Miller again in September when a CT scan

showed no evidence of soft or hard disc herniation or any other

abnormality. He concluded that it was unlikely that herniation

or any other abnormality caused Payeur's pain symptoms, although

it was possible that changes within the discs might account for

5 some of his pain. Dr. Miller saw Payeur again in October of 1993

when Dr. Miller noted that the examination was difficult. After

reviewing a new MRI done in June of 1994, Dr. Miller concluded

that the MRI suggested post-traumatic disc protrusion but that

Payeur's symptoms were out of proportion with the abnormality.

Based on Payeur's attitude. Dr. Miller would not recommend

surgery.

Dr. Stephen Seeman of Psychotherapy Associates, Inc.

conducted an initial consultation with Payeur on June 21, 1994,

and saw him again in July. Dr. Seeman found Payeur's rambling

account of his history difficult to follow and contacted Dr.

Bennett for further information. Dr. Bennett reported that

because of Payeur's alcohol use, his behavior was not unusual.

At the last July session, Payeur complained of pain in his neck

and vented his frustration with the system. Payeur refused to

sign a release for treatment and did not schedule further

appointments.

In March of 1997, Dr. A. W. Campbell reviewed Payeur's

record and found that he could occasionally lift up to twenty

pounds, frequently lift up to ten pounds, and stand and/or walk

and sit for up to six hours in an eight hour day. He noted that

Payeur had limited capacity to do overhead reaching and frequent

bending and turning of the head and neck. Dr. Campbell's opinion

6 was affirmed by Dr. Burton Nault.

A hearing was held before ALJ Klingebiel on January 6 , 1998.

Payeur, who was represented by counsel, appeared and testified.

He said that his daily pain symptoms were at a level of seven or

eight, although some days were better than others. He said that

his daily activities include feeding and caring for his three

cats, doing dishes, stretching and doing his therapy, and picking

up the house.

The ALJ issued his decision on April 7, 1998. He found that

Payeur had severe degenerative disc disease of the cervical spine

and lumbar strain that did not meet or equal a listed impairment.

He found that Payeur retained the residual functional capacity

for a full range of light work, but could not return to his

previous work. Based on the Medical-Vocational Guidelines ("the

Grid"), 20 C.F.R. Part 404, Subpart P, Appendix 2, Rules 202.17

and 202.18, the ALJ concluded that Payeur was not disabled. The

Appeals Council denied his request for review.

Discussion

Payeur seeks reversal of the ALJ's decision on the grounds

that the decision is not based on substantial evidence. More

particularly, Payeur argues that the ALJ improperly found that he

was capable of a full range of light work, without distinguishing

7 the contrary opinions of the consultative doctors and his

treating doctor, and failed to develop the record with respect to

evidence of his mental impairment. The Commissioner argues that

the RFC for light work is well substantiated in the record and

that the ALJ properly considered the other evidence.

Payeur's application was denied at step five of the

sequential evaluation process set forth in

At the fifth step, the Commissioner has the burden to show that

despite the claimant's severe impairment, he retained the

residual functional capacity ("RFC") to do work other than his

prior work during the covered period and that work the claimant

can do exists in significant numbers in the relevant economies.

See Heaaartv v. Sullivan.

(1st Cir. 1991) .

"Where a claimant's impairments involve only limitations in

1 The ALJ is required to make the following five inquiries when determining if a claimant is disabled:

(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.

See

.

8 meeting the strength requirements of work, the Grid provides a

''streamlined' method by which the [Commissioner] can carry this

burden." I d . (citing Ortiz v. Sec'v of Health & Human Servs.,

890 F .2d 520, 524 (1st Cir. 1982)).

In this case, the ALJ found that Payeur was capable of doing

a full range of light work, without any restrictions or

limitations, and relied on the Grid to determine that he was not

disabled. At the hearing level, the ALJ is responsible for

assessing the claimant's RFC based upon all of the relevant

evidence of record, including the medical records and assessments

by state agency consultants. See

&

404.1545(a); SSR 96-6p,

, at *3 (July 2, 1996);

Canfield v. Apfel,

, Civ. No. 00-267-B, at *13-19

(D.N.H. Apr. 19, 2001). The ALJ is to provide a narrative

discussion of the RFC assessment in which he describes how the

record evidence supports each conclusion. See SSR 96-8p,

, at *7 (July 2, 1996); Canfield, supra, at *13-14.

The ALJ here provided a summary review of Payeur's injury

and treatment for back problems. The ALJ concluded that Payeur's

degenerative disc disease of the cervical spine and lumbar spine

limited his ability to perform basic work functions so that he

could not do work that required lifting and carrying more than

twenty pounds occasionally or more than ten pounds frequently.

9 The ALJ did not discuss the evidentiary basis for his

determination of Payeur's ability to lift and carry weight as

part of his RFC. The ALJ then reviewed Payeur's subjective

complaints of pain, found them not to be credible, and concluded

that Payeur was capable of doing a full range of light work.

As Payeur points out, the ALJ never addressed the RFC

assessments done by Dr. Campbell and affirmed by Dr. Nault and

Dr. Bennett. While those assessments concluded that Payeur was

capable of light work. Dr. Campbell added restrictions against

overhead reaching and frequent bending and turning of the neck

and Dr. Bennett limited him to work that did not require lifting.

The ALJ's assessment, that Payeur is capable of a full range of

light work, is contrary to the assessments of Dr. Campbell and

Dr. Bennett and does not explain either the evidentiary basis for

his assessment or the reason he discounted the limitations found

by the others. Therefore, the ALJ's RFC assessment, without any

restrictions, is not supported by substantial evidence in the

record nor is the assessment properly presented in the decision

as required by the cited social security rulings.

The ALJ's error does not necessarily undermine his decision

and require remand if the restrictions noted by Dr. Campbell and

Dr. Bennett would not significantly affect Payeur's ability to

perform the full range of jobs available at the light exertional

10 level. See Heqqartv,

. Reaching and bending are

non-exertional activities while lifting and carrying are

exertional. See Frustaqlia v. Sec'v of Health & Human Servs.,

(1st Cir. 1987). The work categories of

sedentary, light, medium, heavy, and very heavy exertional levels

are based on the exertional requirements for that work. See

.

Dr. Bennett's assessment that Payeur was capable of light

work that does not require lifting, could be interpreted to mean

that Payeur could not lift more than the weight limits for light

work or, in contrast, that Payeur could lift no weight at all.

If Dr. Bennett intended his restriction literally, that Payeur

could not lift at all, he would not be able to perform work at

the light exertional level. See § 404.1567(b). The note does

not indicate whether Dr. Bennett was aware of the regulatory

provisions for the exertional levels of work or what he may have

intended by the lifting restriction. Given the ambiguity of the

note and the lack of clear guidance in the record from other

physicians as to Payeur's capabilities, Bennett's assessment

cannot be given substantial weight based on the present record.2

2For example. Dr. Cusson, an orthopedic surgeon, found that Payeur was not limited in any way and was capable of returning to his previous heavy work while Dr. Clark, a chiropractor, found that Payeur was significantly restricted in both exertional and

11 See 20 C.F.R. 404.1527(d).

Dr. Campbell's restrictions on reaching, bending, and

turning are non-exertional. When a claimant is restricted in

performing a non-exertional activity, but is still capable of

performing that activity at least occasionally, the restriction

would have little effect on the claimant's ability to perform the

full range of work at the light level. See Frustaqlia,

. On the other hand, significant restrictions on non-

exertional activities might affect a large number of jobs that

would otherwise be available at the light exertional level. See

SSR 85-15,

, at *7 (1985).

Dr. Campbell found that Payeur was limited in his ability to

do overhead reaching, and that he could not do frequent bending

or turning of his head and neck. Based on Dr. Campbell's

assessment, Payeur was limited in his ability to do the cited

activities although he was not precluded from them. A vocational

expert attended the hearing, but the record does not include any

opinion from her either in the transcript of the hearing oras a

written report.

If Payeur were only restricted from frequent bending, his

non-exertional activities. In addition, the record is replete with physicians' notes that Payeur exaggerated his symptoms or that his symptoms were greater than his physical condition would suggest.

12 ability to do a full range of light work would be unaffected.

See Frustaqlia,

. Each restriction found by Dr.

Campbell, taken individually, is not a significant restriction on

that activity. However, if the restrictions as found limited

Payeur's ability to perform the full range of light work, the ALJ

could not rely on the Grid conclusively for his decision. See

Thompson v. Sullivan,

(10th Cir. 1993).

There is no evidence in the record or elsewhere, as to what

effect the combination of the three restrictions would have on

Payeur's ability to perform a full range of light work.

While Dr. Campbell's assessment provides substantial

evidence to support an exertional level of light work, the ALJ

has not shown that the non-exertional restrictions would still

permit Payeur to perform a full range of light work. As a

result, the ALJ could not rely on the Grid to satisfy his burden

of showing that jobs exist that Payeur could perform. The ALJ's

finding of not disabled is not supported by substantial evidence.

The case must be remanded for reassessment of Payeur's RFC

giving full consideration to the evidence of record, including

any necessary additional evidence. The court will not address

Payeur's second ground for challenging the ALJ's determination,

claiming that the ALJ erred in failing to develop the record with

respect to mental impairments. However, on remand it would

13 behoove the ALJ to review this matter carefully and, if

necessary, further develop the record.

Conclusion

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

(document no. 4) is granted to the extent that the Commissioner's

decision is reversed and the case is remanded for further

administrative proceedings. The Commissioner's motion to affirm

(document no. 5) is denied.

Since this is a "sentence four" remand, the clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

August 14, 2001

cc: D. Lance Tillinghast, Esquire David L. Broderick, Esquire

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