Viveiros v. SSA CV-02-255-B 04/05/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David Viveiros

v. Civil N o . 02-255-B Opinion NO.

Jo Anne Barnhart, Commissioner of Social Security Administration

MEMORANDUM AND ORDER

On February 2 3 , 2000, David Viveiros filed an application

with the Social Security Administration (“SSA”) for Supplemental

Security Income (“SSI”). Viveiros alleges that his disability

began on October 2 9 , 1999 as a result of multiple knee surgeries

and a back injury. The SSA denied Viveiros’s application on

December 6, 2000. Viveiros filed a new application for benefits

and requested a hearing before an Administrative Law Judge

(“ALJ”) without requesting reconsideration on the initial

decision. A hearing was held on August 2 3 , 2001 before ALJ

Douglas Hoban. ALJ Hoban determined on March 5 , 2002 that

Viveiros was not disabled within the meaning of the Social

Security Act (the “Act”). See

(1992 & Supp. 2002). Viveiros then

asked the Appeals Council to review the ALJ’s decision. The

Appeals Council declined to do so and, pursuant to

(g) (1991 & Supp. 2002), Viveiros filed this civil action

seeking judicial review of the denial of his application.

Viveiros argues that the ALJ’s denial of benefits is not

supported by substantial evidence or adequate findings. Among

other things, he argues that the ALJ failed to present the

correct hypothetical questions to the vocational expert (“VE”).

I. BACKGROUND1

A. Education and Work History

Viveiros was thirty-four years old when he filed his

application for SSI. Viveiros has a tenth grade education and

worked primarily in pipe line construction. He also worked as a

general laborer doing weatherproofing. (Tr. 5 5 ) . After making

his first filing in support of his application, he worked in

packaging for a door and window company for less than two months.

1 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts (Doc. N o . 13) submitted by the parties.

-2- (Tr. 4 0 ) . He left his position because of his knee problems.

From May 2001 until August 2001, Viveiros worked as a flag

person during road construction. (Tr. 4 3 ) . He left because he

was unable to perform his duties.

B. Medical Evidence

Beginning in 1996, Viveiros sought treatment from William

Spina, M.D. at Weeks Memorial Hospital (“Weeks”) for knee pain

resulting from a prior work accident. Prior to moving to New

Hampshire and seeking treatment from D r . Spina, Viveiros had

already undergone four surgeries on his right knee. In a report

dated April 1 4 , 1997, D r . Spina opined that a diagnostic

procedure was, once again, necessary because Viveiros’s right

knee was swollen and repeatedly had given out on him. Viveiros

underwent arthroscopic debridement of his right knee.

Viveiros returned to Weeks in May 1998 and was examined by

Jeffrey Johnson, M.D. Viveiros had injured his right knee after

falling through a bridge. D r . Johnson recommended Viveiros wear

a knee immobilizer and crutches. In September 1998, Viveiros

returned to D r . Johnson after falling onto a wood pile and

injuring his back. An x-ray examination was within normal

-3- limits. Viveiros was placed on Demerol and Phenergan for relief

of pain.

In November 1999, Viveiros visited D r . Spina complaining of

knee pain and swelling. He stated his left knee would catch and

give out. D r . Spina opined that Viveiros had degenerative

arthritis. Viveiros underwent arthroscopic debridement of his

left knee later that same month. In December of 1999, D r . Spina

found a golf-ball size lump on Viveiros’s left knee which he

opined was a synovial2 fluid leak. Viveiros was subsequently

prescribed Celebrex and Vicodin for swelling and pain.

In May 2000, Viveiros fell in a pit, injured his back and

began to develop spasms. He sought treatment at the Upper

Connecticut Valley Hospital. Marvin Kendall, M.D., examined

Viveiros and opined that he had a contusion to his lower back.

Two days later, Viveiros returned to Connecticut Valley Hospital

complaining of severe back pain. Viveiros was examined by Sharon

Curtis, M.D. D r . Curtis furnished Viveiros with Motrin, Valium,

and Vicodin. She opined that Viveiros had low back strain and

2 A clear fluid, the main function of which is to serve as a lubricant in a joint, tendon sheath, or bursa. Stedman’s, p . 689.

-4- noted severe muscle spasms.

Viveiros sought treatment during this same period from D r .

Spina for back spasms and pain. D r . Spina found him “unfit to

work” due to his injury. D r . Spina also opined that Viveiros had

a soft tissue mass in this lower back and osteoarthritis of both

knees. D r . Spina recommended that Viveiros receive an orthopedic

consult. On August 3 , 2000, Viveiros visited Gerrit Groen, M.D.

for the recommended consultation. D r . Groen noted that Viveiros

should not engage in heavy work and should “get going” with

vocational rehabilitation. (Tr. 2 4 1 ) . D r . Groen noted that

Viveiros should be fitted for a brace for his right leg. In

October 2000, D r . Spina, once again, performed arthroscopy on

Viveiros’s right knee.

C. Treating Physician’s Opinion3

In physician notes from March 8 , 2001, D r . Spina noted

Viveiros’s complaints of severe knee pain and his claim that he

was unable to walk any distance. (Tr. 2 4 4 ) . D r . Spina opined

that Viveiros’s knee symptoms limited his work capacity and that,

3 D r . Spina never completed an RFC assessment for Viveiros. As such, D r . Spina’s specific opinions as to Vieveiros’s limitation exist only in the form physician notes and letters to Vieveiros’s attorney.

-5- as a result, he would have difficulty with both “sedentary work

and physical labor.” (Tr. 2 4 4 ) .

In a letter dated October 2 2 , 2001, from D r . Spina to

Viveiros’s attorney, D r . Spina discussed the possibility of

Viveiros securing SSI. He opined that while Viveiros had early

onset degenerative arthritis, “the problem with David and Social

Security is that he is a very young and intelligent young man. He

is an ideal candidate for Vocational Rehabilitation and job

retraining in to a sedentary occupation. Perhaps even a career

as a driver of some type.” (Tr. 2 4 3 ) .

D. New Hampshire Disability Determination Services (“DDS”) RFC Determination

On November 2 9 , 2000, DDS non-physician examiner, Lisa Beck,

completed an RFC assessment for Viveiros. Beck reviewed

Viveiros’s medical history and found that he could engage in

light work. (Tr. 1 8 ) . Specifically, Beck found that Viveiros

was capable of lifting up to 20 pounds occasionally and ten

pounds frequently. (Tr. 2 3 2 ) . She determined that Viveiros

could walk or stand for about six hours during an eight-hour

workday and sit for about six hours during an eight-hour workday.

She determined that he had an unlimited ability to push and pull.

-6- She noted that Viveiros had postural limitations which allowed

him to only occasionally climb, balance, stoop, kneel, crouch,

and crawl. (Tr. 2 3 3 ) .

E. Hearing before ALJ

On August 2 3 , 2001, Viveiros appeared before ALJ Hoban.

Viveiros testified that he had to constantly reposition himself

because he could not sit still for long periods of time due to

knee and back pain. After sitting for a long period of time, his

back would begin to spasm. He further testified that he could

drive, but must pull over every 15 to 20 minutes to “position

[him]self.” (Tr. 3 4 ) . Viveiros indicated that he took pain and

anti-inflammatory medications. He also stated that he could sit

for only two to three hours during an eight-hour work day and

that he needed to lie down for two to three hours a day in half-

hour increments. Viveiros testified that he “tr[ied] to walk

outside [his] house” for exercise. (Tr. 5 3 ) .

The ALJ asked vocational expert (“VE”) James Parker if there

were any jobs available in the national economy for a 35 year-old

-7- person who had a tenth grade education and only heavy work

experience. Parker listed a series of jobs at the light work

level. The ALJ asked Parker to identify sedentary jobs meeting

the same requirements and Parker responded that there were three

job descriptions meeting the stated requirements. The ALJ then

asked Parker to assume that a person was not capable of the

required six hours of standing and had to adjust positions

between standing and sitting. Parker responded that two

sedentary positions remained: an automobile locater and a water

clerk, food and beverage, both of which existed in the New

Hampshire and Vermont area. The ALJ did not ask Parker to

discuss whether non-exertional limitations such as limited

reaching, pushing and pulling, climbing, balancing, kneeling,

crouching, crawling, and stooping would impact the available

sedentary jobs.

The ALJ found D r . Spina’s medical records vague and

contradictory. The ALJ ordered an orthopedic evaluation and held

the record open in the interim. He then informed Viveiros that

he would find that Viveiros was not capable of performing

sedentary work if the orthopedic consultant supported that

conclusion.

-8- On October 1 5 , 2001, Viveiros was examined by orthopedist

John Lambrukos, M.D. Viveiros described his sitting and standing

limitations to D r . Lambrukos. After observing Viveiros sitting

for approximately a half-hour, D r . Lambrukos opined that Viveiros

must avoid: extended periods of standing or walking; prolonged

riding or driving in motor vehicles; bending; squatting;

kneeling; climbing; and heavy lifting. D r . Lambrukos opined that

Viveiros could occasionally lift more than ten pounds and

frequently lift less than ten pounds. He determined that

Viveiros could stand or walk for less than two hours during an

eight-hour workday. D r . Lambrukos found that Viveiros had a

limited ability to sit for less than six hours during an eight-

hour workday and must periodically alternate sitting and standing

to relieve pain or discomfort. In addition, D r . Lambrukos found

that Viveiros could not climb, balance, kneel, or crawl. D r .

Lambrukos also indicated that Viveiros could occasionally reach

in all directions.

F. ALJ Determination

The ALJ applied the five-step sequential evaluation process

-9- under which SSI applications are reviewed.4 See

(2002). He found that Viveiros had carried his burden

through step four of the process as to his knee condition. He

found, however, that Viveiros’s back problems were not “severe”

and therefore halted analysis of his back injury at step two. At

step five, the ALJ found that Viveiros was capable of working at

jobs existing in significant numbers in the national economy.

The ALJ determined that although Viveiros was generally credible,

his testimony did not support a finding of total disability.

Instead, the ALJ determined that Viveiros was capable of working

in a sedentary job which allowed him to exercise “the stand/sit

option.” (Tr. 1 7 ) . The ALJ then applied the Medical-Vocational

Guidelines (the “Grid”), relied on the VE’s testimony and found

that Viveiros was not disabled as defined by the Act.

4 The five-step evaluation process requires the ALJ adhere to the following sequential analysis: (1) whether the claimant is performing 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 claimant is capable of performing any work that exists in significant numbers in the national economy. See

(2002).

-10- 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, this court is authorized to review the transcript

of the administrative record and enter a judgment affirming,

modifying, or reversing the Commissioner’s decision. See

(g). The court’s review is limited in scope,

however, as the Commissioner’s factual findings are conclusive

only if they are supported by substantial evidence. See id.;

Irlanda Ortiz v . Sec’y of Health & Human Servs.,

(1st Cir. 1991). The Commissioner is responsible for

settling credibility issues, drawing inferences from the record

evidence, and resolving conflicting evidence. See Irlanda Ortiz,

; Frustaglia v . Sec’y of Health & Human Servs.,

9 2 , 195 (1st Cir. 1987); see also Tsarelka v . Sec’y of

Health & Human Servs.,

(1st Cir. 1988).

Therefore, the court must “‘uphold the [Commissioner’s] findings

. . . if a reasonable mind, reviewing the evidence in the record

as a whole, could accept it as adequate to support [the

Commissioner’s] conclusion.’” Irlanda Ortiz,

-11- (quoting Rodriguez v . Sec’y of Health & 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 . Charter,

1 ,

35 (1st Cir. 1999) (per curiam) (citations omitted). If the

Commissioner has misapplied the law or has failed to provide a

fair hearing, deference to the Commissioner’s decision is not

appropriate, and remand for further development of the record may

be necessary. See Carroll v . Sec’y of Health & Human Servs.,

3 8 , 644 (2d Cir. 1983); see also Slessinger v . Sec’y of

Health & Human Servs.,

3 7 , 939 (1st Cir. 1987) (“The

[Commissioner’s] conclusions of law are reviewable by this

court.”) I apply these standards in reviewing the issues Johnson

raises on appeal.

III. ANALYSIS

Viveiros contends, among other things, that the ALJ

improperly ignored non-exertional limitations in posing

-12- hypothetical questions to the VE at the August 2 3 , 2001 hearing.

As a result, Viveiros argues, the ALJ could not rely on the VE’s

testimony that at least two jobs existed in the national economy

at the sedentary level that Viveiros was capable of performing.

At step five in the sequential evaluation process, the

Commissioner has the burden of demonstrating that Viveiros has

the RFC to work in a job that appears in significant numbers in

the relevant economy. See Seavey v . Barnhart,

, 5 (1st

Cir. 2001); Arocho v . Sec’y of Health & Human Servs.,

(1st Cir. 1982); see also

. In order

for the Commissioner to meet her burden of proof where both

exertional and significant non-exertional limitations exist, she

must look to evidence outside the Grid. See Ortiz v . Sec’y of

Health & Human Servs.,

2 0 , 524 (1st Cir. 1989). In

such cases, she can rely on the testimony of a VE to meet her

step five burden of proof. See Arocho,

; Berrios

Lopez v . Sec’y of Health & Human Servs.,

2 7 , 429-430

(1st Cir. 1991) (per curiam). In order to properly rely on a

VE’s testimony, however, the ALJ must pose hypothetical questions

to the VE that correspond to the claimant’s functional

-13- limitations as evidenced by medical authorities and testimony.

See Berrios Lopez, 950 F.2d at 429; see also Rose v . Shalala,

3 , 19 (1st Cir. 1994). An ALJ may only credit the VE’s

response to hypothetical questions if there is “substantial

evidence in the record to support the description of [the]

claimant’s impairments given to the ALJ’s hypothetical to the

VE.” Berrios Lopez, 950 F.2d at 429; see Rose,

9 .

The ALJ asked the VE to identify light duty jobs that would

be available to a younger person with a tenth grade education,

functional literacy, and only unskilled heavy labor work

experience. The VE identified several jobs. The ALJ then asked

the VE to identify any sedentary jobs with the same restrictions.

The VE identified three jobs: automobile locater; water clerk,

food and beverage; and jewelry assembler. The ALJ then added:

Assuming a person couldn’t do the walking contemplated by light or the standing, well, let’s limit it to walking. . . . Assume this individual would need to work at a workstation and would need to alternate positions hourly between standing and sitting. But otherwise could do everything else the [DDS] said in that assessment, how would that affect the jobs you’ve just described?

In response, the ALJ noted that only two light jobs would exist

and of the sedentary positions identified, only the clerk and

-14- automobile locater positions remained feasible.

The ALJ then asked:

If we take into account the testimony and your observations vocationally, could an individual who has described the imitations that M r . Viveiros has done today perform any of the jobs you’ve identified?

The VE responded:

Your honor, based on the testimony today, there is indication of a need to lay down four to six times a day. . . . And in my professional opinion, that would rule out all employment. (Tr. 60)

The ALJ ultimately concluded that Viveiros was capable of

performing the sedentary jobs listed by the V E . Viveiros

contends that certain non-exertional limitations, specifically

his postural limitations noted by the DDS report and subsequently

in D r . Lambrukos’s report, were not included in the hypothetical

question posed by the ALJ to the V E . Viveiros also contends that

the pull and push limitations that D r . Lambrukos identified also

should have been included in the hypothetical.

The ALJ determined that Viveiros did not suffer from any of

the upper extremity limitations identified by D r . Lambrukos, as

none were presented to him at the hearing or elsewhere in the

medical evidence. The ALJ did not, however, discredit findings

-15- by both DDS and D r . Lambrukos that Viveiros suffered from

postural limitations. In addition, the ALJ did not include any

of the non-exertional postural limitations in the hypothetical

questions he posed to the V E . The DDS report explicitly included

restrictions on Viveiros’s ability to climb, balance, stoop,

kneel, crouch, and crawl. Furthermore, there is evidence in the

medical record to support such limitations, especially that of

crouching and balancing. The ALJ should have asked the VE if the

two jobs identified in the sedentary work category with the

stand/sit option would still be viable with the balance and

stooping restrictions both DDS and the medical record support.

Although Social Security Ruling (“SSR”) 96-9p states that

postural limitations do not usually erode the occupational base

for sedentary work, it also states that restrictions in

“balancing” and “stooping” may significantly erode the sedentary

work base. The ALJ should have provided this information to the

VE to determine if Viveiros’s balancing and stooping restrictions

further eroded the sedentary work base so as to preclude him from

working in the two identified sedentary jobs.

Furthermore, even if the ALJ could not address the postural

limitations during the August 2 3 , 2000 hearing, he should have

-16- posed the question to the VE at a supplemental hearing after the

orthopedic consultation by D r . Lambrukos clearly indicated a

total restriction on all climbing, balancing, kneeling, crawling

and stooping. SSR 96-9p explicitly provides that “consultation

with vocational resource may be particularly useful for cases

where the individual is limited to less than occasional

stooping.” SSR 96-9p. A supplemental hearing would have allowed

the VE to take the additional balancing and stooping restrictions

into consideration. As such, I find the ALJ’s reliance on the

VE’s testimony was not proper. See Rose,

9 ; Berrios

Lopez,951 F.2d at 429. Accordingly, the ALJ’s decision was not

based on substantial evidence.

IV. CONCLUSION

For the forgoing reasons, Viveiros’s motion to reverse the

decision of the Commissioner is granted. (Doc. N o . 1 2 ) . The

Commissioner’s motion for order affirming the Commissioner is

denied. (Doc. N o . 1 4 ) . The case is remanded for further

proceedings. The clerk of court shall enter judgment accordingly

and close the case.

-17- SO ORDERED.

Paul Barbadoro Chief Judge

April 5 , 2003

cc: Francis M . Jackson, Esq. David L . Broderick, Esq. Dennis G. Bezanson, Esq.

-18-