Beatrice Johnson v . SSA CV-02-37-B 01/21/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Beatrice A . Johnson

v. Civil N o . 02-037-B Opinion N o .

Jo Anne B . Barnhart

MEMORANDUM AND ORDER

On June 8 , 2000, Beatrice A . Johnson filed an application

with the Social Security Administration (“SSA”) for Title II

disability insurance benefits (“DIB”). Johnson alleges that she

has been unable to work since April 2 0 , 1999. The SSA denied her

application initially and again on reconsideration. Johnson

filed a timely request for rehearing on which administrative law

judge (“ALJ”) Matthew J. Gormley III held a hearing on May 1 0 ,

2001. The ALJ issued an opinion dated August 1 4 , 2001 denying

Johnson’s application. Johnson appealed, but the Appeals Council

denied her request for review of the ALJ’s decision. At that

point, the ALJ’s decision became the final decision of the

Commissioner of Social Security (“Commissioner”). Johnson brings this action pursuant to

(g)

(1991 & Supp. 2002) seeking judicial review of the denial of her

application for DIB. Johnson argues, among other things, that

the ALJ failed to consider her significant non-exertional

limitations in determining whether or not she was disabled at

Step Five. I agree and therefore grant Johnson’s motion for an

order reversing the decision of the Commissioner, Doc N o . 1 4 , and

deny the defendant’s motion for order affirming the decision of

the Commissioner, Doc. N o . 1 7 .

I. BACKGROUND1

A . Education and Work History

Johnson was forty-six years old when she applied for DIB in

June 8 , 2000. She has a General Educational Development diploma

(“GED”) which is a high school equivalency certificate awarded

after passing an examination. Johnson worked primarily as an

assembly worker in the jewelry and precision bearing businesses.

Johnson left her last position as an assembly worker in 1999,

when she contends she became disabled and could no longer work.

1 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts (Doc. N o . 18) submitted by the parties.

-2- At that time, Johnson had cut her hours from eight hours a day,

five days a week, to four hours a day, five days a week. T r . at 79-80. 2

B. Medical Evidence

Johnson began to experience medical problems several years

before she left her last position as an assembly worker.

Beginning in 1994, Johnson sought medical treatment for left

wrist and left shoulder discomfort and tingling. Her initial

diagnosis was probable overuse syndrome associated with Johnson’s

position as an assembly worker. The overuse resulted in arm

strain, bursitis 3 , tendinitis4 of the left shoulder, and lateral

2 From September 2 0 , 1999 until June 8 , 2000, Johnson worked as a homemaker for a health care company. She left that position because she could no longer work. See T r . at 9 0 . The ALJ determined that there was insufficient evidence in the record to determine whether or not her position as a homemaker constituted “substantial gainful employment.” T r . 1 7 . 3 Bursitis: inflammation of a bursa (a sac or sac-like cavity filled with a viscid fluid and situated at places in the tissues at which friction would otherwise develop), occasionally accompanied by a calcific deposit in the underlying tendon. Dorland’s Illustrated Medical Dictionary, (hereinafter “Dorland’s”) 2 5 4 , 257 (29th ed. 2000). 4 Tendinitis: inflammation of tendons and of tendon-muscle attachments. Dorland’s, supra, at 1797.

-3- epicondylitis.5 T r . 3 3 7 , 3 4 2 , 343.

On January 1 5 , 1996, Johnson visited D r . Matthew J. Donovan

complaining of shoulder pain. D r . Donovan referred Johnson to a

rehabilitation institute because he felt Johnson would benefit

from some intensive rehabilitation. T r . 106. Johnson visited a

rehabilitation institute on January 2 2 , 1996 where she was

evaluated by D r . Nancy E . Johnson.6 D r . Johnson noted, among

other things, that Johnson had attended several treatments of

physical therapy for her shoulder pain. T r . 186. D r . Johnson

recommended advanced physical therapy.

On October 1 0 , 1996, Johnson visited D r . Dennis L . Swartout

for a follow-up evaluation of her neck and shoulder pain. Tr.

113. D r . Swartout referred to a computed tomography (“CT-Scan”)

of the cervical spine that revealed anterior cord compression.

Id.

5 Lateral epicondylitis: an overuse syndrome caused by continued stress on the grasping muscles (extensor carpi radialis brevis and longus) and supination muscles (supinator longus and brevis) of the forearm, which originate on the lateral epicondyle of the elbow. The Merck Manual of Diagnosis And Therapy, 505 (17th ed. 1999). 6 Johnson testified that D r . Nancy E . Johnson is her primary care physician and that she visited D r . Johnson every couple months. T r . 2 5 .

-4- On October 1 6 , 1996, Johnson underwent a Magnetic resonance

imaging (“MRI”) of the cervical spine, as ordered by D r . Johnson.

Tr 193. The MRI results showed cervical spondylosis7 with

spurring at C5-6, and more markedly, C6-7.

On November 1 3 , 1996, Johnson visited D r . Johnson for a

follow-up for Johnson’s left upper extremity symptoms. D r .

Johnson stated that x-rays revealed significant degenerative

changes in the cervical spine. An electromyogram (“EMG”), a

record of muscles at rest, had not revealed any significant

abnormalities.

Johnson was seen by D r . George W . Monlux on December 1 6 ,

1998. Based on his examination of Johnson, D r . Monlux diagnosed

Johnson with Fibromyalgia8 and moderate cervical stenosis9 as

7 Cervical spondylosis: degenerative joint disease affecting the cervical vertebrae...intervertebral disks... ligaments and connective tissue, sometimes with pain or paresthesia radiating down the arms. Dorland’s, supra, at p . 1684. 8 Fibromyalgia: pain and stiffness in the muscles and joints that is either diffuse or has multiple trigger points. Dorland’s, supra, at p . 673. 9 Stenosis: an abnormal narrowing of a duct or canal. Dorland’s, supra, at 1698.

-5- well as possible left thoracic outlet syndrome10 and bicep

tendinitis on the left bicep. D r . Monlux recommended that

Johnson not return to her former work position in her employer’s

wash system for four weeks. T r . 303. He indicated that she was

otherwise released to work at essentially the sedentary

exertional level with no restrictions on fine motor, and

occasionally climbing and reaching. D r . Monlux opined, regarding

her long term prognosis, that Johnson has fairly prominent

degenerative changes of her neck.

On March 2 1 , 1997, Johnson visited D r . Thomas J. Kleeman for

a second opinion. T r . 307-8. D r . Kleeman reported that Johnson

displayed tenderness in the middle and lower cervical spine that

was aggravated by motion. D r . Kleeman questioned the diagnosis

of fibromyalgia and attributed the symptoms to overuse and de-

conditioning. He noted that Johnson’s medical records did not

demonstrate a pathlogical basis for fibromyalgia. D r . Kleeman

10 Thoracic outlet syndrome: any of a variety of neurovascular syndromes resulting from compression of the subclavian artery, the brachial plexis nerve trunks...by thoracic outlet abnormalities such as a dropping shoulder girdle, a cervical rib or fibrous band, an abnormal first rib, or occasionally compression of the edge of the scalenus anterior muscle. Dorland’s, supra, at p . 1769.

-6- did note a tenderness over the left anterior acromion,11 as well

as tenderness over the lateral epicondyle.

On June 1 2 , 1998, D r . Johnson recommended that Johnson

receive a functional capacity evaluation. At that appointment,

Dr. Johnson noted that continuing assembly line work on a long

term basis is simply going to lead to increasing “flares of

symptoms.” T r . 252. On July 2 3 , 1998, physical therapist Maria

Gonzales evaluated Johnson’s functional capacity to assess her

ability to return to gainful employment. T r . 258. Gonzales

opined that Johnson was unable to return to her previous work,

but was capable of sedentary and light work. T r . 257-58. During

a subsequent functional capacity evaluation on December 2 , 1998,

Johnson demonstrated a work capacity for physical activity at the

light to medium exertional level.

Johnson visited D r . Catherine Hawthrone complaining of

painful neck, left shoulder, left elbow, and headaches on April

1 4 , 2000. D r . Hawthorne examined Johnson and found that she had

tenderness in her cervical spine and left elbow. D r . Hawthorne

11 Acromion: the lateral extension of the spine of the scapula, projecting over the shoulder joint and forming the highest point of the shoulder. Dorland’s, supra, at p . 2 1 .

-7- recommended, among other things, that Johnson be conscious of her

posture and body mechanics at work, limit her activities at or

above the shoulder level and avoid pushing, pulling or lifting

more than ten pounds.

During the time period between May 3 1 , 2000 and October 2 ,

2000, Johnson continued to be examined for cervical discomfort,

degenerative disk disease and left shoulder and arm pain. Johnson

had a follow-up appointment with D r . Johnson on February 2 0 ,

2001. D r . Johnson reported that Johnson continued to complain of

neck and shoulder pain. D r . Johnson noted that they had not been

successful with prescribed medications, but that physical

exercise did seem to result in an overall decrease in Johnson’s

symptoms.

D. Treating Physician’s RFC Assessment

On March 1 2 , 2001, D r . Johnson rendered an assessment of

Johnson’s ability to perform work-related activities. D r .

Johnson indicated that Plaintiff’s impairment affected her

ability to lift/carry and she was restricted to lifting a maximum

of ten pounds both frequently and occasionally. D r . Johnson,

however, considered Johnson to be unrestricted as to her

abilities to sit, stand and walk. D r . Johnson further opined

-8- that Johnson was capable of climbing and balancing frequently,

but was limited only to occasional stooping, crouching, kneeling

or crawling. D r . Johnson indicated that Johnson should not

perform any reaching above shoulder level and was limited in her

ability to push/pull. D r . Johnson also determined that Johnson

should not do anything that required prolonged neck flexion for

more than two hours per day, neck stretches of more than twenty

minutes and no “repetitive motion with both shoulders.” T r . 335.

D. Non-Treating Physician

On May 1 3 , 2000, D r . Joseph R. Cataldo completed a residual

physical functional capacity assessment of Johnson in connection

with Johnson’s application for benefits. D r . Cataldo, a medical

consultant to the New Hampshire Disability Determination Services

(“DDS”), assessed Johnson’s work capabilities after reviewing the

medical evidence of record. D r . Cataldo found that Johnson could

occasionally and frequently lift ten pounds. He determined that

she could stand and walk for about six hours in an eight hour

work day and sit for the same. D r . Cataldo found that Johnson

had unlimited push and pull abilities, but was limited in her

ability to lift and/or carry. D r . Cataldo opined that Johnson

could only occasionally climb, balance, stoop, kneel, crouch, and

-9- crawl. T r . 321. D r . Cataldo determined that Johnson’s reaching

in all directions was limited and she should avoid repetitious

overhead reaching movement of the left shoulder. T r . 322-23.

Dr. Cataldo noted Johnson’s long history of neck and left

upper extremity pain, as well the various diagnostic impressions

from her treating sources. D r . Cataldo determined, based on the

treatment notes and reported findings, that Johnson’s allegations

of symptoms were credible, but they were “not credible for her

ability to function.” T r . 326.

E. Administrative Hearing

On May 1 0 , 2001, Johnson appeared before Administrative Law

Judge Matthew J. Gormley, III (the “ALJ”). When asked to

describe her typical day, Johnson stated that she would go to the

grocery store, or visit with her daughter and children. T r . 2 6 .

She stated that she could do the chores around the house, but

that she had to do them slowly and carefully. Id. Johnson stated

that she also prepared the meals and could drive, but that she

avoided driving for more than an hour at a time. T r . 29, 30.

The ALJ asked Johnson why she was disabled and Johnson

responded that her vocational rehabilitation counselor and her

doctor had told her that she should not be working due to the

-10- condition in her neck and shoulders. She later testified,

however, that her vocational rehabilitation counselor wanted her

to get a job or go to school to learn a trade. T r . 2 3 , 2 7 . She

further stated that she was in constant pain that by the end of

the day the pain was at 9.5 on a 0-10 scale. When asked if she

could handle a nonstressful job that did not require her to use

her left shoulder for overhead lifting, Johnson replied “yes, but

I don’t know what.” T r . 2 8 . Johnson testified that she would

likely be unable to work more than four hours a day due to the

pain she experienced and because she could not “move properly.”

Tr. 2 9 .

F. ALJ’s Decision

The ALJ applied the five-step sequential evaluation process

under which disability applications are reviewed. See

(2002). The ALJ found the Johnson carried her burden

sufficiently at each of the first four steps in the process.12

At step five, however, the ALJ found that Johnson was “not

disabled” because she retained the capacity to perform work which

12 The ALJ found, at step one, that there was insufficient development in the record to determine whether Johnson’s work after April 2 0 , 1999 constituted “substantial gainful activity.” He therefore continued the sequential evaluation process.

-11- existed in significant numbers in the national economy. Tr. 1 4 ,

17. Specifically, although the ALJ found that Johnson had severe

impairments, including degenerative disc disease of the cervical

spine, and tendinitis/bursitis in the upper left extremity that

precluded her from returning to her former employment, he found

that Johnson retained the RFC to perform sedentary work. The ALJ

further found that Johnson’s non-exertional limitations were

“no[t] significant” and went on to apply Rule 201.21 of the

Medical-Vocational Guidelines (the “Grid”),

App.

2 , Subpart P, Regulation N o . 4 at 201.21. In determining that

Johnson’s claimed non-exertional limitations, including her

testimony concerning the level of pain she feels, “no[t]

significant,” the ALJ found Johnson’s statements about “her

impairments and their impact on her ability to work . . . not

entirely credible in light of the reports of the treating

physician, [Johnson’s] daily activities, and [her] history of

work since the date of alleged onset.” Tr. 15.

Based on an exertional capacity for sedentary work, the ALJ

applied the GRID and concluded that given Johnson’s age,

education, and work experience, she “has not been under a

disability . . . at any time through the date of this decision.”

-12- Tr. 18.

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 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 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) (“[W]e

must uphold the [C]ommissioner’s conclusion, even if the record

arguably could justify a different conclusion, so long as it is

-13- supported by substantial evidence.”) (citations omitted).

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,

(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.

-14- III. ANALYSIS

A. General SSA Principles

Under the Social Security Act (the “Act”), an individual

seeking DIB is “disabled” 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.”

(d)(1)(A) (1991 & Supp. 2002). The Act instructs the ALJ to

apply a five-step sequential analysis to determine whether a

claimant is disabled.13

At step five, the Commissioner must show that despite an

impairment or impairments that preclude the claimant from

returning to her past relevant work, “that there are jobs in the

national economy that [the] claimant can perform.” Heggarty v .

Sullivan,

9 0 , 995 (1st Cir. 1991) (per curiam); see

13 The five-step sequential analysis requires the ALJ to 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

(2002).

-15- also Keating v . Sec’y of Health & Human Servs.,

7 1 , 276

(1st Cir. 1988) (per curiam) (citations omitted). In making this

determination, “the standard is not employability, but capacity

to do the job; not whether claimant could actually locate a job,

but whether health limitations would prevent him from engaging in

substantial gainful work.” Keating,

(citing

Miranda v . Sec’y of Health, Education, and Welfare,

(1st Cir. 1975) (internal quotation marks omitted).

The ALJ is responsible for ensuring that “an adequate record

is developed during the disability hearing consistent with the

issues raised.” Hawkins v . Chater,

(10th

Cir. 1997). Where it is within the power of the ALJ “without

undue effort,” he must fill in an undeveloped record “where there

are gaps in the evidence necessary to a reasoned evaluation of

the claim.” Heggarty,

(citations omitted).

B. The ALJ Failed to Adequately Consider Johnson’s Non-Exertional Limitations

Johnson contends that the ALJ’s decision should be reversed

arguing, among other things, that the decision was erroneous

because the ALJ erred in evaluating Johnson’s RFC. Johnson

contends that the record demonstrates the existence of several

-16- non-exertional limitations that should have been considered when

evaluating her RFC.

An RFC determination specifies what a claimant can do in a

work setting despite his or her limitations.

(2002). The ALJ must perform a “function-by-function”

assessment of the claimant’s ability to engage in work-related

activities when determining his or her RFC. See Social Security

Regulation (“SSR”) 96-8p,

, at *3 (1996); see also

Ferraris v . Heckler,

8 2 , 586-87 (2d Cir. 1984). The

ALJ must address, not ignore, relevant evidence, especially when

that evidence supports the claimant’s cause. See Nguyen, 172

F.3d at 3 5 . In addition, the ALJ must specify the evidentiary

basis for his RFC determination. SSR 96-8p,

, at

* 7 ; see also White v . Sec’y of Health & Human Servs.,

4 , 65 (2d Cir. 1990) (An ALJ’s failure to specify a basis for

the RFC determination is a sufficient reason to vacate a decision

of the Commissioner).

As described above, the ALJ “directly applied” the Grid when

determining that Johnson was “not disabled.” Tr. 16. Johnson

urges that the ALJ’s sole reliance on the Grid was improper

because Johnson had significant non-exertional limitations that

-17- the ALJ ignored. I agree. The purpose of the Grid is to measure

exertional, or strength, limitations of the claimant in a

streamlined fashion. See

App. 2 , Subpart P,

Regulation N o . 4 at 201.21; Oritz v . Sec’y of Health & Human

Servs.,

2 0 , 524 (1st Cir. 1989). If a claimant, such as

Johnson, has other non-exertional limitations, the Grid may not

be applied unless the ALJ makes a finding that the non-exertional

limitations are “not significant.” See Heggarty,

; Oritz,890 F.2d at 524. The ALJ found that the non-

exertional limitations in this case were “not significant” and

therefore directly applied the Grid. The ALJ, however, did not

adequately specify his evidentiary basis for finding that

Johnson’s non-exertional limitations were “not significant.”

Although the ALJ found Johnson’s testimony concerning her pain, a

non-exertional limitation, “not entirely credible,” he also did

not address Johnson’s other non-exertional limitations found both

in the DDS examination by D r . Cataldo, and by her treating

physician, D r . Johnson. T r . 319-328, 331-335.

Dr. Johnson opined that Johnson had postural limitations and

should only occasionally stoop, crouch, kneel and crawl. In

addition, D r . Johnson found that Johnson had manipulative

-18- limitations in her ability to reach, push and pull.

Specifically, D r . Johnson found that Johnson cannot reach above

shoulder level. D r . Johnson opined that Johnson should not have

prolonged neck flexion and should not engage in any repetitive

motion with both shoulders. Moreover, the DDS examination by D r .

Cataldo agreed with D r . Johnson’s RFC characterization with

limitations on Johnson’s ability to stoop, kneel, crouch and

crawl. D r . Cataldo found additional postural limitations in

Johnson’s ability to climb and balance. T r . 321. D r . Cataldo

also agreed that Johnson should avoid repetitious movement of the

left shoulder and avoid overhead reaching. No medical opinions

in the record contradict the non-exertional limitations found by

Dr. Cataldo and D r . Johnson.

The ALJ references both D r . Cataldo and D r . Johnson’s

examinations in his opinion. However, he does not discuss

Johnson’s non-exertional postural and reach limitations; nor does

he discredit these opinions in finding all of Johnson’s non-

exertional limitations “not significant.” The additional non-

exertional limitations may, depending on the weight the ALJ

assigned to the medical opinions, impact the number of jobs

within the sedentary-work category that Johnson could perform.

-19- The ALJ should have either discredited the physicians’ opinions,

if he felt they lacked credibility, or called a vocational expert

to determine the extent to which the non-exertional limitations

affected her ability to perform sedentary work. Because the ALJ

did not properly explain his decision to discount Johnson’s

claimed non-exertional limitations, he could not properly use the

Grid in determining that she was not disabled.14 See Heggarty,

(Use of the Grid by ALJ improper where the ALJ

did not adequately take into consideration other non-exertional

limitations).

CONCLUSION

I conclude that because the ALJ failed to make specific

findings regarding Johnson’s non-exertional limitations and the

effect these limitations may have on her ability to work, I must

14 Johnson also argues that the Commissioner has not met his burden at step five because he did not show that Johnson can maintain employment. On remand, the ALJ should consider whether Johnson has the ability to perform sustained work activities on a regular and continuing basis, as required by the SSR. See the Social Security Regulation definition of RFC. See SSR 96-8p, (“RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.” A “regular and continuing basis” means 8 hours a day, for 5 days a week).

-20- remand Johnson’s claim for benefits to the Commissioner. On

remand, the Commissioner shall explicitly address the non-

exertional limitations and the physicians’ capacity assessments

detailing them. If any of the non-exertional limitations

identified in these assessments are deemed to be significant, the

Commissioner may not directly apply the Grid and instead shall,

consistent with SSR 96-9p, consult with a vocational expert to

determine the erosion of Johnson’s sedentary occupational base.

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

decision of the Commissioner (Doc. N o . 14) is granted, and the

Commissioner’s motion to affirm her decision (Doc. N o . 17) is

denied. I vacate the ALJ’s decision, pursuant to sentence four

of

(g), and remand this case for further

proceedings in accordance with this Memorandum and Order. The

Clerk of the Court shall enter judgment in accordance with this

order and close the case.

SO ORDERED.

Paul Barbadoro Chief Judge January 2 1 , 2003 c c : David L . Broderick, Esq. Francis M . Jackson, Esq.

-21-