Colby v . SSA CV-03-189-PB 7/27/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Roger Colby, Jr.

v. Civil No. 03-189-PB Opinion N o .

Jo Anne Barnhart, Commissioner of Social Security

MEMORANDUM AND ORDER

Roger Colby filed this action seeking a reversal of the

Social Security Commissioner’s decision to deny him Supplemental

Security Income benefits (“SSI”). He asserts, inter alia, that

the administrative law judge (“ALJ”) who heard his case

improperly determined that there were a substantial number of

jobs in the local economy that he could perform. For the reasons

that follow, I agree, and remand this case to the Commissioner

for further consideration consistent with this order. I. BACKGROUND1

A. Factual Background

Colby worked as a truck driver but successive accidents in

1994, 1995, and 1997 left him with severe back pain that

preventing him from being able to sit for long enough to continue

in that job. At some point, he attempted to work as a self-

employed carpenter, but stopped after roughly a month because of

back pain. (Tr. 2 7 , 1 2 1 ) . He later bought a tow truck and tried

to make a living as a tow truck operator, but he again had to

stop due to pain. (Tr. 28-30).

The medical records supporting Colby’s disability claim

begin in 1996, with notations from an orthopaedic exam at the

Matthews Orthopaedic Clinic. The notes reveal that Colby had

tried a variety of treatments for his back ailment such as

acupuncture and chiropractic therapy, and that he had been

evaluated by a neurosurgeon. (Tr. 1 6 7 ) . A CAT scan revealed a

mild central herniated disc. ( I d ) . An MRI after the first

1 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts (Doc. N o . 11) submitted by the parties.

-2- accident showed minor disc bulging.2 He reported significant

lower back pain, but the examination revealed very few

limitations on his range of motion, reflexes, and strength. (Tr.

167).

The next note from an office visit in the record is from

August 1 6 , 1999, when Colby saw D r . Moore for medication renewal.

(Tr. at 1 4 1 ) . Colby reported that he was using his back brace

four hours each day, walking a mile and a half each day, and

taking three or four Percoset tablets daily.3 D r . Moore renewed

Colby’s prescriptions for Percoset, Ambien, and Naprosyn.4 At

his next office visit, on November 1 1 , 1999, Colby reported that

he had further injured his back while attempting to stack wood

and had increased his Percocet usage to four tablets each day.

He also stated that although he had received funding to enter a

Spine Center Behavioral Treatment program, he could not attend

because his wife worked full-time and their five children would

2 The record does not contain this MRI or its exact results, but it is referred to in later physician’s notations. 3 Percocet is used to treat pain. Physician’s Desk Reference (“PDR”) 1245 (58th ed. 2004). 4 Ambien is used for short term treatment of insomnia; Naprosyn is used to treat arthritis. PDR at 3006, 2902.

-3- be alone if he were not home. (Tr. 1 4 2 ) . D r . Moore renewed

Colby’s Percocet and Naprosyn dosages, replaced Ambien with

Sonata, and also prescribed Monopril.5

Dr. Moore saw Colby again on February 1 , 2000. Colby

reported that his back pain was still severe, requiring at least

three Percocet tablets each day. At the next visit to a medical

provider, on May 1 5 , 2000, Colby’s lower back problems seemed

worse. He was moving slowly and had less mobility. Furthermore,

in an effort to regain his employment as a truck driver, Colby

had stopped taking all narcotics, including Percocet.

On January 2 , 2001, Colby saw D r . Moore, and reported that

he had experienced greater back pain since working. His mobility

also had decreased and he had back spasms. D r . Moore told Colby

not to work for ten days, and prescribed Flexiril and Percocet.6

On August 6, 2001, D r . Schell noted that Colby had re-injured his

back. He had been off Percocet since the 10-day prescription

5 Sonata is used for short term treatment of insomnia. PDR at 2181. Monopril is used for the treatment of hypertension. PDR online, at http://www.pdrhealth.com/drug_info/rxdrugprofiles/ drugs/mon1274.shtml 6 Flexeril is used to relieve muscle spasms. PDR at 1984.

-4- from January had run out. 7 Colby had tenderness and muscle

spasms in his lumbar spine and limited range of motion. Dr.

Schell prescribed more Percocet, Flexeril, and Naprosyn.

On September 1 3 , 2001, D r . Moore noted that Colby reported

having acute pain when he adjusted retaining straps and picked up

his tool box while working. D r . Moore described Colby’s pain as

centered in the low lumbar spine area and radiating equally

laterally to the level of sacroiliac joints.8 D r . Moore stated

that Colby had difficulty entering a car, could not walk or climb

for long periods, had to limit sitting to one hour, riding in a

car to two hours, and preferred being able to adjust his position

from seated to supine at will for pain relief. He did not limp,

but his gait was abnormal. On examination, Colby had some low

lumbar paraspinal muscle spasm and was tender over some vertebral

processes. D r . Moore concluded that Colby had a mild

7 Colby had voluntarily stopped taking narcotics for pain relief in an attempt to regain employment as a truck driver and had purchased a tow truck in furtherance of that goal. 8 The sacroiliac joint lies next to the spine and connects the bottom of the spine to the pelvis.

-5- radiculopathy,9 but there were no confirming physical findings.

He prescribed Ambien and Oxycodone,10 and recommended that Colby

have an expert occupational and rehabilitation evaluation,

rehabilitation therapy and vocational training.

Colby’s next visit to D r . Moore was on July 2 , 2002. He

moved slowly, and had marked tenderness in the his lower back,

pelvis, and buttocks. D r . Moore found that Colby’s mobility was

reduced, but that his toes and ankles had normal power. He

concluded that Colby was “functionally incapacitated,” and could

not “sit, walk, or drive for more than a few minutes at a time.”

(Tr. 1 6 1 ) .

Colby’s last visit to D r . Moore was on September 1 3 , 2001.

After that visit, Moore noted that Colby “prefer[ed] to take

short, frequent walks, change sitting and lying positions. He

[could] tolerate sitting for over an hour, [could] ride in a car

or truck cab for perhaps two hours. Prolonged walking or

climbing and even bedrest [were] uncomfortable.” (Tr. 1 4 9 ) .

9 Radiculopathy is a disorder of the spinal nerve roots. Stedman’s Medical Dictionary (Seedman’s) 1503 (27th ed. 2000). 10 Oxycodone is used for pain management. PDR at 2296.

-6- Dr. Moore completed a Medical Source Statement of Ability to

Do Work Related Activities (Physical) on August 2 3 , 2002. He

stated that Colby could lift less than ten pounds occasionally,

stand/walk for at least two hours in an eight hour day, and

needed to periodically alternate between sitting and standing.

He also determined that Colby had limited ability to push, crawl,

kneel, reach, and should never climb, crouch, stoop or be around

hazards.

Dr. Cataldo, a non-treating physician, reviewed Colby’s

records and determined that Colby could lift ten pounds

frequently, and twenty pounds occasionally, and could sit, stand,

and walk for six hours in an eight-hour day. He noted that Colby

occasionally had postural limitations.

B. Procedural History

Roger Colby first filed for SSI on August 2 4 , 1999. His

claim was denied and he did not appeal, instead attempting to

work as a self-employed carpenter. He refiled for SSI on

September 1 3 , 2001. His claim was denied, and he requested

review by an ALJ. Colby’s ALJ hearing was held on October 2 ,

2002. He testified that he could read and write fairly well,

although he had dropped out of school in the seventh grade.

-7- Regarding his physical condition, Colby said that he couldn’t

bring his fingers below his knees, that he couldn’t drive trucks

anymore because sitting in one position for too long caused pain

in his lower back, buttocks legs and calves. His feet sometimes

became numb and he occasionally blacked out from pain.

A vocational expert (“VE”) testified at the hearing. The VE

stated that Colby’s previous work as a carpenter and truck driver

were skilled labor, but that he could not continue to perform

those jobs because of his strength limitations. (Tr. 39-40).

She categorized D r . Moore’s assessment of Colby’s capabilities as

enabling him to perform “less than sedentary work.”11 She

characterized D r . Cataldo’s assessment as enabling “light work.”

She further explained that all of Colby’s previous work was

classed as “medium,” and that he therefore could not return to

any of his previous work. She then testified that if D r . Moore’s

assessment was interpreted to mean that Colby had to be able to

change his position from sitting to standing or supine at will,

there would be no work for someone with his capabilities and

restrictions in the local or national economy. However, if he

11 Sedentary work requires an ability to lift no more than 10 pounds at a time.

-8- only needed to alternate between sitting and standing on an

hourly basis, there would be work available for him in the local

and national economy. Specifically, he could perform most

sedentary and some light work with modifications, and identified

desk-based security guard, gate guard, or a cashier as light work

that could be performed at a sedentary level. She stated that

even though security work and cashier were classified as light

work, in her experience they were really sedentary and could be

performed by someone with the limitations identified by D r .

Moore. The modifications, she explained, would mean that not all

security and cashier jobs listed as available would actually be

appropriate, as he would only be eligible for those jobs that

could be modified to his physical abilities. Based on her

experience, she reduced the number of jobs for each type of work

by one half to one third to account for those jobs that could not

be modified.

The ALJ asked her if there were sedentary jobs in the local

economy, and the VE replied “printed circuit board assembler. In

the United States economy, 39,000 jobs. In our local economy,

approximately 400. Table worker. In the United States economy,

39,000 jobs. And in our local economy, approximately 340. Final

-9- assembler, in the United States economy – this is sedentary as

well – 158,000 jobs. And in our local economy, approximately

900.” (Tr. 40-41). Again, based on her experience, she

testified that if the lifting less than ten pounds limitation

were added, all of these jobs numbers would be reduced by one

half.

The ALJ issued his decision on November 2 7 , 2002. He denied

Colby’s application for SSI because he concluded that there were

substantial jobs in the local economy that Colby could perform.

He found that Colby had a severe disability of the back that did

not meet or equal any of the SSA’s listed impairments. He stated

that Colby had the following residual functional capacity

(“RFC”): lift and/or carry les[s] than ten pounds. He is able to sit for up to six hours and stand and walk for up to two hours. He needs to have the ability to change his position on an hourly basis to alternate between sitting and standing with a limited ability for pushing and pulling in his lower extremities or pushing of trolley. He has limitations on bending, climbing, stooping, crouching, kneeling and crawling. Also, the claimant is limited in his ability to work around hazards. (Tr. 1 9 ) . According to the ALJ, these capabilities allowed Colby

to perform “a significant range of sedentary work (20 C.F.R. §

-10- 416.967).” (Tr. 1 9 ) . Based on the testimony of the vocational

expert, the ALJ concluded that there were substantial jobs in the

local economy that Colby could perform, and therefore he was not

entitled to benefits. He issued his decision on November 2 7 ,

2002. On March 2 , 2003, the Appeals Council denied Colby’s

request for a reversal, and this action ensued.

I I . 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 to review the pleadings submitted

by the parties and the transcript of the administrative record

and enter a judgment affirming, modifying, or reversing the ALJ’s

decision.

(g) (2003). My review is limited in

scope, however, as the ALJ’s factual findings are conclusive if

they are supported by substantial evidence. Id.; see Ortiz v .

Sec’y of Health & Human Servs.,

(1st Cir. 1991)

(per curiam). The ALJ is responsible for settling credibility

issues, drawing inferences from the record evidence, and

resolving conflicting evidence. See Ortiz,

.

Therefore, I must “‘uphold the [ALJ’s] findings . . . if a

-11- 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 . Sec’y of Health & Human Servs.,

1 8 , 222 (1st Cir. 1981)). I apply these standards in

reviewing Colby’s case on appeal.

III. DISCUSSION

The Social Security Act defines “disability” for the

purposes of Title II as the “inability 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 which has lasted or can be expected to last

for a continuous period of not less than 12 months.”

(d)(1)(A) (2003). When evaluating whether a claimant is

disabled due to a physical or mental impairment, an ALJ’s

analysis is governed by a five-step sequential evaluation

process. See

(2003). The ALJ is required

to consider the following issues 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

-12- impairment; (4) whether the impairment prevents or prevented the

claimant from performing past relevant work; and (5) whether the

impairment prevents or prevented the claimant from doing any

other work.

(2003). An affirmative answer

at one step leads to the next step in the analysis.

If the

answer to question (3) or (5) is affirmative, the claimant is

disabled.

If the answer to any question other than (3) is

negative, the claimant is not disabled.

The claimant bears

the burden on the first four steps. At step five, the burden

shifts to the Commissioner to show “that there are jobs in the

national economy that [the] claimant can perform.”

(f) (2003); Heggarty v . Sullivan,

9 0 , 995 (1st

Cir. 1991) (per curiam); see also Keating v . Sec’y of Health &

Human Servs.,

7 1 , 276 (1st Cir. 1988) (per curiam).

The Commissioner must show that the claimant’s limitations do not

prevent him from engaging in substantial gainful work, but need

not show that the claimant could actually find a job. See

Keating,

.

In this case, the ALJ determined that Colby was not entitled

to benefits at step 5 , when he found that Colby’s residual

functional capacity allowed him to perform such jobs as “printer

-13- board assembler, a table worker, a final assembler, a gate guard

and a cashier.” (Tr. 1 9 ) . Colby argues that (1) that the ALJ’s

RFC finding is not supported by substantial evidence; (2) the

VE’s testimony was unreliable; (3) the ALJ failed to fully

develop the record; and (4) the ALJ’s credibility determinations

are not supported by substantial evidence.

Here, the ALJ’s RFC finding is supported by substantial

evidence. The ALJ found that Colby could lift or carry less than

ten pounds frequently, sit for up to six hours, and stand and

walk for up to two hours, provided that he could alternate

between sitting and standing on an hourly basis, and that he had

limitations of pushing and pulling in lower extremities or

pushing a trolley. Lastly, he found that Colby had limitations

on stooping, bending, climbing, crouching, kneeling and crawling,

and could not be around hazards. (Tr. 1 6 ) . In support of these

findings, the ALJ cited D r . Moore’s notations regarding the

activities Colby engaged i n , which at various times included

stacking wood, caring for his children, and walking a mile and a

half each day. He also noted that although Colby reported taking

three to four Percocet each day, he had voluntarily stopped

taking narcotic pain medication altogether in an attempt to

-14- perform work as a truck driver in 2002. I note also that D r .

Moore, Colby’s treating physician, stated that Colby could sit

for over an hour, and ride in a car or truck for “perhaps two

hours,” although he preferred to be able to take short, frequent

walks and change his position between standing, sitting and lying

down. (Tr. 1 4 9 ) . When asked to recount his daily activities,

Colby noted that D r . Moore had limited his lifting to 5 pounds,

that he could not put on his own socks and shoes, that he lies

down most of the day, and that his wife does all errands and

chores. (Tr. 114-18). This, coupled with D r . Moore’s Medical

Source Statement, supports the ALJ’s RFC findings, because the

RFC incorporates the limitations noted by D r . Moore and Colby

himself, i.e., that he must be able to change positions, that he

has limitations on bending, stooping, etc. I therefore conclude

that the RFC finding was supported by substantial evidence.

Colby next asserts that the VE’s testimony was unreliable

because she did not adequately explain the discrepancies between

her testimony and the Dictionary of Occupations Titles (“DOT”).

The Commissioner agrees that the VE’s testimony concerning the

availability of table worker, gate guard and printer board

assembler jobs is irrelevant because these jobs do not qualify as

-15- sedentary, the only type of work that Colby could perform. He

nevertheless argues that the ALJ appropriately rejected Colby’s

claim because he could perform both light cashier and final

assembler jobs, both of which are available in significant

numbers.

The record does not support the ALJ’s conclusion that he is

capable of working as a light cashier (DOT #211.462-010).

Although the VE testified that the job of light cashier could be

performed at a sedentary level, the ALJ is not allowed to use VE

testimony to reclassify a job’s strength level without providing

an explanation. See Social Security Ruling (SSR) 00-04p, Colby

v . Barnhart,

-M,

(D.N.H.

2004). If there is a conflict between VE testimony and the DOT

classifications for jobs, the ALJ must ask the VE to explain the

conflict and state how it was resolved on the record. Here, the

VE explained the conflict between the light classification of

cashier and the limitations provided by D r . Moore by stating

“[m]any of the job settings in the light where people typically

often work would b e , you know, for example, in a convenience

store, in there you do have to do some restocking. S o , I think

it is appropriate to reduce those numbers because it would be –-

-16- you would need to screen out the environment where there was the

lifting would be within the less than 10 pounds [sic].” (Tr.

46). The VE’s statement that an unspecified number of light

cashier jobs could qualify as sedentary is insufficient to

overcome the classification of the job in the DOT. SSR 00-04p

(“the regulatory definitions of exertional levels are

controlling”); Colby,

7 . I therefore conclude that the

VE’s testimony does not support a finding that Colby could

perform the job of light cashier.12

The other job title offered by the Commissioner is final

assembler. The VE did not provide any guidance as to whether she

meant final assembler (optical goods) (DOT # 713.687-018), final

assembler (office machines) (DOT # 706.381-018) or final

assembler (garment) (DOT # 789.687-046). Only final assembler

(optical goods) is classed as sedentary unskilled work, for which

Colby would be eligible. At the hearing, the VE testified that

there were 900 final assembler positions in the region, but she

would reduce that number to 450 to take into account Colby’s need

to change positions hourly. (Tr. 41-42, 4 9 ) . However, the VE

12 The DOT lists another cashier job, but it not unskilled labor, and he is therefore ineligible for it on that ground.

-17- did not clearly indicate whether she was aware that only optical

goods final assembler jobs are classed as sedentary. Thus, I

cannot determine from the record whether the number of jobs that

she claimed were available in this category were all optical

goods assembler jobs. Accordingly, the ALJ’s ruling cannot stand

because it was based on inaccurate and unreliable VE testimony.

IV. CONCLUSION

For the reasons described above, I remand this case to the

Commissioner for reconsideration of whether there are a

significant number of jobs available that Colby can perform

consistent with his RFC. Colby’s motion to reverse (Doc. N o . 9 )

is granted in part and denied in part. To the extent he seeks

reversal, it is denied. To the extent he seeks remand, it is

granted in accordance with the decision explained above.

SO ORDERED.

Paul Barbadoro Chief Judge July 2 7 , 2004

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

-18-