Hannaford v. SSA CV-00-224-M 01/15/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Andre B. Hannaford, Claimant

v. Civil No. 00-224-M Opinion No.

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

O R D E R

Pursuant to

(g), claimant, Andre B.

Hannaford, moves to reverse the Commissioner's decision denying

his applications for Social Security Disability Insurance

Benefits and Supplemental Security Income Payments under Titles

II and XVI, respectively, of the Social Security Act,

, 1382 (the Act). Defendant objects and moves for an order

affirming the Commissioner.

Factual Background

I. Procedural History

In the Fall of 1996, claimant filed applications for

disability insurance benefits and for supplemental security income payments under Titles II1 and XVI of the Act, alleging

that he had been unable to work since May 23, 1993, due to a back

injury and a heart problem. The Social Security Administration

denied his application initially and on reconsideration. On

January 7, 1997, claimant and his attorney appeared before an

Administrative Law Judge (ALJ) who considered the claims de novo.

The ALJ issued his order on March 25, 1998, concluding that,

although subject to some restrictions, claimant was capable of

light work and making an adjustment to work which exists in

significant numbers in the national economy. Accordingly, the

ALJ found that claimant was not disabled, within the meaning of

the Act, at any time through his decision.

Claimant then sought review of the ALJ's decision by the

Appeals Council. On March 15, 2000, the Appeals Council denied

claimant's reguest thereby making the ALJ's decision final,

subject to judicial review. On May 8, 2000, claimant filed a

timely action in this court asserting that the ALJ's decision was

not supported by substantial evidence and seeking a judicial

1Claimant last met the disability insurance reguirement on December 31, 1996.

2 determination that he is entitled to benefits. Claimant then

filed a "Motion for Order Reversing Decision of the Secretary"

(document no. 7), referencing his earlier filed "Memorandum of

Law in Support of Plaintiff's Reguest for Qualification of

Benefits under Disability Insurance and Supplemental Security

Income" (document no. 6). The Commissioner objected and filed a

"Motion for Order Affirming the Decision of the Commissioner"

(document no. 8). Those motions are pending.

II. Stipulated Fact

Pursuant to this court's Local Rule 9.1(d), the parties have

filed a detailed statement of stipulated facts which, because it

is part of the record (document no. 9), need not be recounted in

this opinion.

Standard of Review

III. Properly Supported Findings by the ALJ 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

3 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), 1382(c)(3); Irlanda Ortiz v. Secretary of Health and

Human Services,

(1st Cir. 1991).2 Moreover,

provided the ALJ's findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the claimant's

position. See Gwathev 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

2 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).

4 more than one rational interpretation."); Tsarelka v. Secretary

of Health and Human Services,

(1st Cir. 1988)

("[W]e must uphold the [Commissioner's] conclusion, even if the

record arguably could justify a different conclusion, so long as

it is supported by substantial evidence.").

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,

.

Accordingly, the court must 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)).

5 IV. The Parties' Respective Burdens

A person 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). See also 42 U.S.C. § 1382c(a)(3). 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).

6 In assessing a disability claim, the Commissioner considers

both 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 to demonstrate disability 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;

7 (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 also

. 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

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

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

decision.

8 Discussion

I. Background - The ALJ's Findings

In concluding that Mr. Hannaford was not disabled within the

meaning of the Act, the ALJ employed the mandatory five-step

seguential evaluation process described in

and 416.920. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since May 23,

1993. Transcript at 18. Next, he concluded that claimant

suffers from severe impairments: "The evidence supports a finding

that Mr. Hannaford has atrial fibrillation and degenerative disc

disease of the lumbar spine, impairments which cause significant

vocationally relevant limitations." Id. at 19. At step three of

the seguential analysis, the ALJ concluded that claimant's

impairments did not meet or egual a listed impairment. Id.

The ALJ next determined that claimant's residual functional

capacity (RFC) allows him to perform less than a full range of

light work. Accordingly, he concluded that claimant's

impairments prevent him from performing his past relevant work as

an auto body mechanic. Transcript at 28. Finally, while noting

that strict application of the Medical-Vocational Guidelines of Appendix 2 of the regulations (also known as the "Grid") was not

possible due to "non-exertional limitations which narrow the

range of work he is capable of performing," the ALJ nonetheless

concluded that there are jobs, existing in significant numbers in

the national economy, which the claimant is able to perform. Id.

at 29. Conseguently, he concluded that claimant is not disabled

within the meaning of the Act.

II. Claimant's Allegations of Error

In this appeal, claimant challenges many aspects of the

ALJ's decision. He asserts that the ALJ did not adeguately

address his allegations of pain; erred in evaluating medical

opinions, particularly the opinion of Dr. Nagel, one of

claimant's treating physician; failed to consider the combined

effects of multiple impairments; and improperly concluded that

there are jobs in the national economy that claimant can perform.

A. Claimant's Allegations of Pain

It is the province of the ALJ to determine a claimant's

credibility. Accordingly, if properly supported, the ALJ's

10 credibility determination is entitled to substantial deference

from the court. See, e.g., Irlanda Ortiz,

(1st

Cir. 1991) ("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." (internal

citations omitted)).

Once it is determined, as it was here, that a claimant has

an impairment (or impairments) that are capable of causing pain,

the ALJ must "evaluate the intensity, persistence, and limiting

effects of the [pain] to determine the extent to which the [pain]

limit[s] the individual's ability to do basic work activities."

Social Security Ruling (SSR) 96-7p (July 2, 1996) . If the

alleged intensity, persistence, and limiting effect of the pain

are not supported by the objective medical evidence, the ALJ must

look beyond the objective medical evidence and consider the

following factors:

(1) the claimant's daily activities;

(2) the location, duration, freguency, and intensity of the claimant's pain;

(3) factors that precipitate and aggravate the pain;

11 (4) type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate the pain;

(5) treatment, other than medication, the claimant receives or has received for relief of pain;

(6) any measures other than treatment the claimant uses or has used to relieve pain; and

(7) any other factors concerning the claimant's functional limitations and restrictions due to pain.

(c)(4), 416.929(c)(4); SSR 96-7p; Avery v.

Secretary of Health and Human Services,

(1st Cir.

1986). Additionally, "the lack of consistency between an

individual's statements and other statements that he or she made

at other times does not necessarily mean that the individual's

statements are not credible." SSR 96-7p. The ALJ should review

the record for any explanations regarding variations in a

claimant's statements about pain.

Here, the ALJ found "claimant's statements concerning his

impairments and their impact on his ability to work are not

entirely credible." Transcript at 26. Although he noted the

reguirement to address all the above factors, it is not clear

from the record that he went beyond consideration of the

12 objective medical evidence and pointing out inconsistencies in

claimant's statements about his activities. And, on at least one

occasion, the ALJ appears to have misread the record when he

identified a treatment note as "indicat[ing] the claimant's

current work in auto body" when the note actually indicates that

claimant had been out of work "since Sept. due to heart."

Compare Transcript at 26 (citing Exhibit 24F-20) with Transcript

at 367 (Exhibit 24F-20) (handwritten notations: "works auto body

(00W)" and "00W since Sept. due to heart") . The medical note

actually seems consistent with claimant's testimony that,

although he did try to start his own auto body service so that he

could pace himself, he had to give it up because "it just took

too long to get anything done and it caused problems . . . as far

as [his] health," see Transcript at 413 - an explanation that may

have been overlooked.

The ALJ also identified two occasions on which claimant

drove a car, and seems to have found it particularly significant

that claimant was "obviously able to drive". See Transcript at

26. While the ALJ found this fact inconsistent with claimant's

testimony that he "spends most of his day lying down,"

the

13 ALJ made no finding as to how often claimant drives, for how long

he can drive at a time, or what physical conseguences might

follow his driving activity. See Nquven v. Chater,

(1st Cir. 1999) (per curiam). On this record, it is difficult

to find the assessment of claimant's credibility to be adeguately

supported. It is not sufficiently clear that the reguisite

factors were adeguately considered, and the referenced objective

indicia of the absence of a disabling pain are not, standing

alone, dispositive.

B. Evaluation of Medical Opinions in Determining RFC

Like other credibility issues, the ALJ has significant

discretion with respect to the weight given medical opinions.

However, under the regulations, a treating physician's medical

opinion will generally be given controlling weight unless the ALJ

finds that the opinion is not well-supported by medically

acceptable clinical and laboratory diagnostic technigues, and

concludes that it is not supported by substantial evidence in the

record, in which case the opinion may be afforded less or no

weight.

(d), 416.927(d). When a treating

14 physician's opinion is not given controlling weight, the ALJ must

determine what weight, if any, to afford it after considering the

following factors:

(1) Length of the treatment relationship and the freguency of evaluation;

(2) Nature and extent of the treatment relationship;

(3) Relevant evidence provided to support the opinion;

(4) Consistency;

(5) Specialization; and

(6) Any other factors claimant or others bring to the ALJ's attention, or of which the ALJ is aware, which tend to support or contradict the opinion.

(d) (2) (i)- (d) (6), 416.927 (d) (2) (i)- (d) (6) .

See also Guvton v. Apfel,

(D. Mass. 1998).

Here, the ALJ found Dr. Nagel's evaluation of "claimant's

ability to perform work related activities sitting, standing and

walking . . . not persuasive and binding." Transcript at 27.

However, the record does not adeguately support that finding.

The ALJ describes the objective medical evidence as

supporting a diagnosis of degenerative disc disease, but

revealing that claimant exhibits normal heel-to-toe walking.

15 strength and motor function, as well as sitting, standing, and

walking. See Transcript at 27. He also notes that claimant had

a normal neurological exam and negative straight leg rising. See

The "Medical Assessment of Ability to do Work-Related

Activities (Physical)" form completed by Dr. Nagel on November

26, 1997, reveals his opinion that claimant's ability to lift is

limited to five pounds freguently, and ten pounds occasionally;

and claimant's ability to sit and stand is limited to two to

three hours, and an hour and a half hour without interruption,

respectively.3 Transcript at 275-76. The ALJ summarizes the

opinion as recommending vocational rehabilitation and finding

claimant limited in his ability to lift, carry, sit, stand, and

walk. See id. at 27. In assessing this opinion, the ALJ

"note[d] that the opinion of a treating physician need not be

assigned weight if it is not supported by objective medical

evidence or clinical findings." Id. He then went on to state

3Dr. Nagel's assessment also includes his opinion related to other limitations that the ALJ seems to have at least partly accepted. See Transcript at 277-79; see also Transcript at 30 (Findings) .

16 There are no objective medical findings that support limitations on the claimant's ability to sit, stand and walk. In fact, information contained in medical reports documenting work activity, and his ability to drive have all supported his ability to sit, stand and walk. Therefore I find that Dr. Nagel's opinion with regard to the claimant's ability to perform work related activities sitting, standing and walking is not persuasive and binding. The objective medical evidence has supported that the claimant has an ability to perform light work activities.

Transcript at 27.4

Although the lack of objective medical evidence may result

in a decision not to assign controlling weight to a treating

physician's medical opinion, a decision to assign no weight to

the opinion must follow consideration of the additional

referenced factors. See

(d)(2)(i)-(d)(6),

416.927 (d)(2)(i)-(d)(6). See also Guvton v. Apfel,

. The ALJ's decision in this case does not reflect

consideration of those additional factors. For example, it does

not discuss the fact that Dr. Nagel, a physician specializing in

orthopaedics, regularly treated claimant for his back problems

since 1994 and noted increases in pain during that time. Nor

41he findings related to claimant's apparent ability to work and drive were dealt with above and are similarly lacking support in this context.

17 does it address the fact that he consistently found claimant to

have trouble sitting and standing for prolonged periods of time.

See Transcript at 203, 206, 211, 212, 219, 275-76. It may be

that the ALJ did consider all relevant factors before assigning

no weight to Dr. Nagel's opinion, but the record is not helpful

in determining whether he did or did not. While the objective

medical evidence of record, in isolation, might undermine Dr.

Nagel's opinion, and application of the relevant factors may not

alter the weight the ALJ assigns to that opinion, this record

does not adeguately support the decision to completely disregard

Dr. Nagel's assessment of claimant's ability to sit, stand, and

walk.

C. Multiple Impairments

When assessing a claimant's RFC, the ALJ must evaluate the

severity of individual impairments. However, if multiple

impairments are adeguately identified, the combined effect must

also be assessed.

, 416.923. Here, the ALJ

clearly found that claimant suffers from "atrial fibrillation and

degenerative disc disease of the lumbar spine, impairments which

18 are severe. . . Transcript at 30. He also individually

assessed the severity and impact of each impairment. However,

there is no indication in the record that he considered the

combined effects of claimant's impairments.5 Accordingly, the

ALJ's assessment of the severity of claimant's multiple

impairments is not supported by substantial evidence.

D. Determination that Jobs Claimant Can Perform Exist in the National Economy

Finally, claimant argues that there are no jobs in the

national economy that he can perform, and that the ALJ failed to

consider the severity of his pain at step five of the seguential

analysis. Actually, claimant seems to be arguing that the ALJ

inappropriately relied on the Grid and did not account for

claimant's non-exertional limitations.

At step five, the burden is on the Commissioner to show that

jobs that claimant can perform within his limitations exist in

5For example. Dr. Nagel noted that an epidural helped claimant with radiating pain but that due to claimant's heart treatment, he (Dr. Nagel) was "reluctant" to repeat the epidural. Transcript at 389. Similarly, Dr. Nagel observed that claimant's endurance is hindered by his heart problems.

at 27 9.

19 the national economy. See Vazquez v. Secretary of Health and

Human Services,

(1st Cir. 1982). If claimant were

only limited in strength requirements, the ALJ could rely

exclusively on the Grid. See Heggartv v. Sullivan,

(1st Cir. 1991). However, when other limitations (known as

"non-exertional limitations") exist, such as an inability to bend

repeatedly or to work in extreme temperatures, the ALJ must rely

on more than just the Grid, unless the ALJ finds that the

additional limitations only marginally erode the relevant

occupational base. See

at 996 (citing Ortiz v. Secretary of

Health and Human Services,

(1st Cir. 1989)).

The most common source to turn to is a vocational expert.

Here, the ALJ found that "claimant's capacity for the full

range of light work is diminished by his inability to bend

repeatedly or work in extreme temperature." Transcript at 30.

He also acknowledged that "[s]trict application of [the Grid] is

not possible" due to these non-exertional limitations. Id. at

29. However, without indicating any other source or identifying

specific jobs, without consulting a vocational expert, and

without finding that the non-exertional limitations only

20 marginally reduce claimant's occupational base, the ALJ concluded

that claimant "retains the capacity to make an adjustment to work

which exists in significant numbers in the national economy."

Id. Based on that conclusion, the ALJ denied claimant's reguest

for benefits. Because the ALJ did not disclose the basis for his

conclusion, it cannot be sustained. See, e.g., Ortiz,

n.4 ("[W]henever an ALJ fails to take vocational

testimony, he must be deemed in reality to have relied

exclusively on the grid to show the existence of jobs claimant

could perform." (internal guotation marks and citations

omitted)).

Conclusion

For the foregoing reasons, the court finds that the ALJ's

decision denying claimant benefits is not supported by

substantial evidence in the record. Accordingly, claimant's

motion to reverse the decision of the Commissioner (document no.

7) is granted. The Commissioner's motion to affirm the decision

(document no. 8) is denied. Pursuant to sentence four of 42

(g), this matter is remanded to the ALJ for further

proceedings.

SO ORDERED,

Steven J. McAuliffe United States District Judge

February 15, 2001

cc: James W. Craig, Esg. T. David Plourde, Esg.

22