Hynes v . SSA CV-03-062-JD 01/22/04 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Charles P. Hynes

v. Civil N o . 03-62-JD Opinion N o .

Jo Anne Barnhart, Commissioner, Social Security Administration

O R D E R

The plaintiff, Charles P. Hynes, brings this action pursuant

to

(g), seeking judicial review of the decision by

the Commissioner of the Social Security Administration, denying

his application for social security benefits under Title II of

the Social Security Act. Hynes contends that the Administrative

Law Judge (“ALJ”) failed to properly assess his residual

functional capacity (“RFC”) and, as a result, the vocational

expert’s opinion does not constitute substantial evidence in

support of the decision to deny benefits. The Commissioner moves

to affirm the decision.

Background

Hynes applied for disability insurance benefits in November

of 2001, alleging disability since August of 1993, primarily due

to a back condition. After his application was denied, he

requested a hearing before an ALJ which was held on July 1 , 2002.

The ALJ issued her decision on August 7 , 2002, denying Hynes’s application based on her findings that Hynes was able to perform

work that existed in the relevant economies through his last

insured date of March 3 1 , 1996. The Appeals Council denied

Hynes’s request for review, making the ALJ’s decision the final

decision of the Commissioner.

In August of 1993, Hynes saw D r . James Benson for complaints

of low back pain following a work injury. X-rays showed no acute

injuries and only minimal degenerative changes. Although Hynes

reported less pain after physical therapy, he again complained of

pain at visits in September and October. A CAT-scan in October

of 1993 showed disc bulging at L4-5 and possibly slight nerve

encroachment. He tried oral steroids without relief and then

underwent epidural injections of steroids.

Hynes was examined on January 1 0 , 1994, by D r . Sherwin, an

orthopaedic surgeon, who diagnosed a low grade lumbar disc

prolapse. D r . Sherwin stated that he would not consider surgery

unless Hynes lost a significant amount of weight. Also in

January of 1994, Hynes reported to D r . Benson that he had re-

injured his back in a fall and later that he was feeling better.

Dr. Richard Hawkins, an orthopaedic surgeon, also saw Hynes

during January. He gave Hynes a guarded prognosis due to his

obesity and the positive CAT scan. D r . Hawkins found that Hynes

was then capable of doing work that did not involve repetitive

lifting of over thirty pounds and that also allowed him to sit,

2 stand, and walk at frequent intervals.

In April of 1994, Hynes discussed a weight loss plan with

Dr. Benson. In May of 1994, D r . Sherwin stated that Benson was

limited to lifting ten pounds and needed the ability to rest,

change position, and walk around at will. He also stated that

Hynes was not able to bend, reach, push, or pull.

In February of 1995, Hynes was tested by D r . A . M .

Drukteinis, a board certified psychiatrist and forensic

specialist. The testing indicated that Hynes’s actual perception

of pain was quite low but that he perceived pain as having a

moderate to marked impact on his ability to function. Other

testing indicated a marked degree of depression, mild to moderate

anxiety, and a mild to moderate tendency to somatization. Dr.

Drukteinis concluded that improvement in Hynes’s coping skills

and anti-depressants might help him. In March of 1995, Hynes

reported to D r . Drukteinis that Prozac was helping him

tremendously. He was then walking up to four miles a day; he was

in better spirits, and he hoped to get a light-duty job. In

April, Hynes reported much more physical activity, including

installing windows in a friend’s house. D r . Drukteinis felt that

Hynes should continue Prozac indefinitely but that he did not

need further psychological treatment. Hynes had medical care for

only minor ailments during the remainder of 1995.

In January of 1996, Hynes saw D r . Benson for a routine

3 physical examination and reported that he had no acute

complaints. D r . Benson noted elevated liver function test

results, most likely due to alcohol consumption, but no other

abnormalities other than obesity. Hynes had his Prozac

prescriptions refilled during 1996. In September of 1996, Hynes

reported renewed back pain after he fell into a ditch. X-rays

were negative, and the doctor diagnosed back strain.

In December of 2001, D r . Burton Nault, a state agency

consultative physician, reviewed Hynes’s records and concluded

that he was able to perform work at a medium exertional level

through the end of March of 1996. D r . Michael Schneider, a state

agency psychologist, reviewed Hynes’s records and concluded that

he had not established that he had any severe mental impairment

that persisted for at least twelve months. D r . Nault’s

assessment was reviewed in January 2002 and affirmed. In June of

2002, D r . Robert Johnson, who had treated Hynes since 1999,

reviewed his records and stated that he did not believe that

Hynes could have performed any type of full-time work from 1993

though 1996.

At the hearing before the ALJ, Hynes was present and was

represented by counsel. Hynes testified that before March of

1996, he spent most of the time sitting around the house, that he

tried to help his wife with housework but could only stand for

five minutes while doing the dishes, and that he had to stop

4 doing yard work because of problems with his knees and back. The

ALJ posed a hypothetical to the vocational expert describing a

person who could do light work activities and then added certain

postural limitations and limited contact with the public.

Hynes’s attorney also added limitations as to pace in the job.

In response, the vocational expert testified that jobs existed,

in the relevant communities, that a person described by the

hypotheticals could do and that even with the hypothetical jobs

as a parking lot attendant existed in the relevant economies.

In her decision, the ALJ found that before his insured

status expired on March 3 1 , 1996, Hynes had an RFC for light work

restricted only by an inability to climb. She found that he

could not do any of his past work, which consisted of work as a

concrete laborer and a form carpenter. She concluded, however,

based on the vocational expert’s testimony, that because jobs

existed that he could d o , such as a cashier, an outside

deliverer, a bottling line attendant, a parking lot attendant,

and a checker, he was not disabled.

Discussion

The court must uphold a final decision of the Commissioner

denying benefits unless the decision is based on legal or factual

error. Manso-Pizarro v . Sec’y of Health & Human Servs.,

5 , 16 (1st Cir. 1996) (citing Sullivan v . Hudson,

7 7 ,

5 885 (1989)). The Commissioner’s factual findings are conclusive

if based on substantial evidence in the record.

(g). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Richardson v . Perales,

(1971)

(quotation omitted). In making the disability determination, “[i]t is the responsibility of the [Commissioner] to determine

issues of credibility and to draw inferences from the record

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

(1st Cir. 1991).

Hynes’s application was denied at step five of the

sequential evaluation process set forth in

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

despite the applicant’s severe impairment, he retained the

residual functional capacity to do work other than his prior work

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

.

6 and that work the claimant can do exists in significant numbers

in the relevant economies. See Seavey v . Barnhart,

, 5

(1st Cir. 2001); Heggarty v . Sullivan,

9 0 , 995 (1st

Cir. 1991). The opinion of a vocational expert constitutes

substantial evidence to support the Commissioner’s decision at

step five as long as the hypothetical posed to the vocational

expert accurately reflected the claimant’s residual functional

capacity and limitations. Rose v . Sec’y of Health & Human

Servs.,

3 , 19 (1st Cir. 1994); Arocho v . Sec’y of Health

& Human Servs.,

(1st Cir. 1982).

“Ordinarily, RFC is an assessment of an individual’s ability

to do sustained work-related physical and mental activities in a

work setting on a regular and continuing basis. A ‘regular and

continuing basis’ means 8 hours a day, for 5 days a week, or an

equivalent work schedule.” SSR 96-8P,

, at *1

(July 2 , 1996). Determining a Social Security applicant’s RFC is

an administrative decision that is the responsibility of the

Commissioner.

(e)(2). In making an RFC

determination on behalf of the Commissioner, the ALJ must

consider all relevant evidence in the record, including the

opinions and statements by all medical sources.

(a) & 404.1564; SSR 96-5P,

; Fargnoli v .

Massanari,

4 , 41 (3d Cir. 2001); Newton v . Apfel,

4 8 , 456 (5th Cir. 2000). The ALJ’s RFC determination must

7 provide a clear explanation for its evidentiary basis and reasons

for rejecting medical source opinions. See SSR 96-5P; Fargnoli,

1 ; Clifford v . Apfel,

(7th Cir.

2000); Newton,

; Goatcher v . HHS,

8 8 , 290

(10th Cir. 1995).

In this case, the ALJ found that Hynes was capable of light

work with only a limitation as to climbing. She did not explain

the source of that RFC assessment. The ALJ explained that she

did not give weight to D r . Johnson’s opinion, that Hynes was

unable to lift or carry and that it would have been impossible

for him to hold a full-time job, because it was contradicted by

Dr. Benson’s contemporaneous treatment notes. In her opinion,

the ALJ also noted that both D r . Sherwin and D r . Hawkins, in

1994, limited Hynes to work that would allow him to frequently

change position between sitting, standing, and walking or to be

able to change position at will. She did not include those

limitations in her RFC, however, and she did not explain why she

excluded them. As such, the ALJ failed to clearly explain the

evidentiary basis of her RFC assessment and her reasons for

rejecting Hynes’s treating physicians’ opinions.

The ALJ’s hypotheticals to the vocational expert were based

on her RFC assessment that did not include all of the limitations

found by Hynes’s treating physicians, which the ALJ did not

properly exclude. As such, the hypotheticals were incomplete.

8 The vocational expert’s opinion, given in response to incomplete

hypotheticals, does not constitute substantial evidence to

support the Commissioner’s decision that work exists that Hynes

could d o . Therefore, the decision to deny benefits is not

supported by substantial evidence.

Conclusion

For the foregoing reasons, the plaintiff’s motion to reverse

(document n o . 8 ) is granted. The defendant’s motion to affirm

(document n o . 10) is denied. The decision of the Commissioner is

reversed, and the case is remanded for further proceedings

consistent with this order.

As this is a sentence four remand, the clerk of court shall

enter judgment accordingly and close the case.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge January 2 2 , 2004

cc: Raymond J. Kelly, Esquire David L . Broderick, Esquire

9