Johnson v. SSA 05-CV-046-SM 11/08/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Johnson, Jr., Claimant

v. Civil No. 05-CV-046-SM Opinion No.

Jo Anne B. Barnhart, Commissioner, U.S. Social Security Administration, Respondent

O R D E R

Pursuant to

(g), claimant, Robert Johnson,

Jr., moves to reverse the Commissioner's decision denying his

application for Social Security Disability Insurance Benefits

under Title II of the Social Security Act,

(the

Act). Respondent objects and moves for an order affirming her

decision. For the reasons set forth below, the Commissioner's

motion for an order affirming her decision is denied, and

claimant's motion for an order reversing the Commissioner's

decision is granted to the extent it seeks remand for further

proceedings. Factual Background

I. Procedural History.

In July of 2002, claimant filed an application for

disability insurance benefits under Title II of the Act, alleging

that he had been disabled since October 1, 2001, due to back and

neck pain, bilateral carpal tunnel syndrome, epicondylitis

("tennis elbow"), and a rotator cuff injury. The Social Security

Administration denied his application and claimant requested a

hearing before an Administrative Law Judge ("ALJ"). Following

that hearing, the ALJ denied claimant's application, concluding

that he remained able to perform a significant number of light

jobs in the national economy through April 28, 2004, the date of

the ALJ's decision. On December 23, 2004, the Appeals Council

denied claimant's request for review, thereby rendering the ALJ's

decision the final decision of the Commissioner.

In response, claimant filed this timely action, asserting

that the ALJ's decision was not supported by substantial evidence

and seeking a judicial determination that he is disabled within

the meaning of the Act. Claimant then filed a "Motion for

Reversal of the Commissioner's Decision Denying Disability

2 Benefits" (document no. 6). The Commissioner objected and filed

a "Motion for Order Affirming the Decision of the Commissioner"

(document no. 9). Those motions are pending.

II. Stipulated Facts.

Pursuant to Local Rule 9.1(d), the parties have submitted a

comprehensive statement of stipulated facts which, because it is

part of the court's record (document no. 10), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. Properly Supported Factual 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

Commissioner of Social Security, with or without remanding the

cause for a rehearing." Factual findings of the Commissioner are

conclusive if supported by substantial evidence. See

(g); Irlanda Ortiz v. Secretary of Health & Human Services.

3

(1st Cir. 1991).1 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 adverse position. See Tsarelka v.

Secretary of Health & 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."). See also

Rodriquez v. Secretary of Health & Human Services.

(1st Cir. 1981) .

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.

1 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate 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 Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts." Irlanda Ortiz.

(citation omitted). Accordingly, the court will 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 &

Human Services.

(1st Cir. 1986)).

II. The Parties' Respective Burdens.

An individual 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."

(d)(1)(A). 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 & Human Services.

(1st Cir.

1991). To satisfy that burden, the claimant must prove that his

5 impairment prevents him from performing his former type of work.

See Gray v. Heckler.

(1st Cir. 1985) (citing

Goodermote v. Secretary of Health & Human Services.

(1st Cir. 1982)). Nevertheless, the claimant is not required 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).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant's subjective assertions 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 & 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

& Human Services.

(1st Cir. 1982). If the

Commissioner shows the existence of other jobs that the claimant

6 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

required to make the following five inquiries:

(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.

. 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

7 whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d) (2) (A) .

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

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

determination that claimant is not disabled.

Discussion

I. Background - The ALJ's Findings.

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five

step sequential evaluation process described in

. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since October

2001. Next, the ALJ concluded that the medical evidence of

record indicates that claimant suffers from bilateral carpal

tunnel syndrome, degenerative disk disease of the cervical spine

and epicondylitis - impairments that are "severe" within the

meaning of the regulations. But, the ALJ determined that those impairments did not meet or medically equal one of the

impairments listed in Appendix 1, Subpart P, Regulation 4.

Next, the ALJ assessed claimant's residual functional

capacity ("RFC") and concluded that he retained the ability to

lift and carry no more than 20 pounds occasionally and 10 pounds

frequently, sit for up to six hours during an eight-hour work

day, stand for one-third of the day, and walk for two-thirds of

the day. But, the ALJ also concluded that claimant should avoid

tasks that require overhead lifting. Given those restrictions,

the ALJ concluded that claimant could not perform his past

relevant work. At the final stage of the analysis, however, the

ALJ concluded that claimant was capable of performing a

substantial number of jobs available in the national economy and,

therefore, was not disabled within the meaning of the Act through

the date of his decision.

II. Claimant's Assertions of Error.

In support of his motion to reverse or remand the ALJ's

disability determination, claimant challenges two related aspects

of the ALJ's decision. First, he says the ALJ failed to take

9 into consideration the opinion of his treating physician, who

stated that claimant had only a limited ability to reach in any

direction. Next, he says the ALJ neglected to take into account

his testimony about his inability to tolerate temperature

extremes and outdoor working conditions (at least during winter

months).

The Commissioner concedes that the ALJ failed to properly

account for claimant's limited ability to reach and acknowledges

that, when that factor is properly taken into consideration,

claimant cannot perform four of the five jobs suggested by the

vocational expert. Nevertheless, the Commissioner says that

given his limitations, and even taking into consideration his

asserted need to avoid temperature extremes, claimant can perform

the remaining job - storage facility rental clerk (69,000 jobs

nationally and 250 in New Hampshire).2

2 Parenthetically, the court notes that, in support of her motion, the Commissioner develops, in some detail, the argument that a claimant's ability to perform a single job in the national economy - at least one with 69,000 national positions and 250 local positions - is sufficient to preclude finding that the claimant is disabled. The claimant does not, however, assert otherwise. Instead, he seems to implicitly agree that if he were able to perform the exertional and non-exertional requirements of a storage facility rental clerk, he would not properly be viewed as being disabled. See Claimant's memorandum at 4-5. The sole

10 While conceding that he retains the ability to perform the

physical requirements of a storage facility rental clerk,

claimant says his need to avoid temperature extremes precludes

him from performing that job. Thus, he says that he cannot

perform any of the five jobs suggested by the vocational expert -

the four jobs the Commissioner agrees he cannot perform, as well

as the job of storage facility rental clerk. Accordingly, he

asserts that the decision of the ALJ should be reversed or, at a

minimum, that the matter should be remanded to the ALJ.

Claimant's primary care physician, Gregory D. Opritza, M.D.,

completed two "Medical Source Statement of Ability to do Work-

Related Activities (Physical)," on which claimant relies heavily

to undermine the ALJ's disability determination - particularly

with regard to claimant's limited ability to reach in any

direction. But, in both January of 2003, and again in June of

2003, Dr. Opritza opined that, to the best of his knowledge.

focus of his argument is that, since "temperature extremes also bother his chronic painful condition," id. at 5, and because the job of storage facility rental clerk involves "some exposure to the outdoors," id., he cannot perform that job and is, therefore, disabled. Thus, the court need not address the first of the Commissioner's arguments in favor of her motion to affirm her decision denying disability benefits.

11 claimant's ability to perform work-related activities was not

adversely affected by any environmental limitations, including

"temperature extremes." Transcript at 286 and 297.

Nevertheless, the record does contain evidence of claimant's

inability to tolerate temperature extremes, particularly cold

weather. Specifically, claimant testified that his pain was

worse on cold days and that he had to leave one of his prior jobs

because it involved too much exposure to the outdoors during the

winter. See Transcript at 35 (cold, rainy days are "bad days");

38 (the cold weather causes pain and interferes with sleep); 41

(cold and damp days exacerbate his pain); 46 (cold winter weather

forced him to quit his job as a gas station pump attendant).

Because the Commissioner concedes that claimant cannot

perform the exertional and/or non-exertional requirements of four

of the five jobs identified by the vocational expert, the focus

is necessarily on the sole remaining job that the vocational

expert identified: storage facility rental clerk. And, when

presented with a hypothetical from claimant's representative

which involved temperature extremes, the vocational expert seems

12 to have eliminated the rental clerk position (though his response

was sufficiently ambiguous to make the point less than entirely

clear).

REP: Thank you. Your honor. Howard, if we didn't want to expose this hypothetical worker to temperature extremes, what jobs would you eliminate?

ALJ: You're giving all the same limitations as hypothetical number one -

REP: Yes.

ALJ: -- and adding to it?

REP: Adding to it the restriction that the person should not be exposed to temperature extremes.

VE: The job of a toll collector, the job of a delivery driver, and the job of storage facility rental clerk all involve, to a greater of lesser degree, some exposure to the outdoors.

Transcript at 60-61 (emphasis supplied). Subsequently, the ALJ

asked claimant's representative for the source of the limitation

regarding temperature extremes.

ALJ: Okay. All right, I don't have any other questions, except that Mr. Reilly, where did you draw the limitation for temperature extremes?

REP: I'm sorry. Your Honor. It was based on his testimony, the temperature extremes.

13 ALJ: On his testimony, okay. All right.

Id. at 61.

In his written opinion, the ALJ generally addressed

claimant's overall credibility (particularly with regard to his

claims of disabling pain) and, in reaching his conclusion that

claimant's complaints of pain were somewhat overstated, properly

considered all the factors identified in both case precedent and

applicable Social Security regulations. The ALJ did not,

however, discuss the evidence suggesting that claimant must avoid

temperature extremes or exposure to outdoor working conditions.

And, because that non-exertional limitation, if credited, might

well be determinative of claimant's disability claim (assuming,

of course, that a vocational expert does not identify other jobs

in the national economy that claimant can perform) , the court is

persuaded that the prudent course is to remand this matter to the

ALJ and afford him the opportunity to directly address the issue.

If he deems it appropriate, the ALJ can convene another hearing

and seek additional assistance from a vocational expert.

Alternatively, of course, he can simply issue a new opinion (or

supplement his original opinion), disclosing the reasons he chose

14 not to credit claimant's testimony regarding temperature extremes

and, instead, to adopt Dr. Opritza's opinion that such

temperature extremes would not adversely affect claimant's

ability to work.

Conclusion

The court is aware that the existence of conflicting

evidence in the record - here, claimant's testimony about his

inability to tolerate temperature extremes versus his physician's

opinion that such extremes are not a limiting factor in

claimant's ability to work - does not necessarily preclude a

finding that the ALJ's disability determination is supported by

substantial evidence. But, when there is such a conflict in the

evidence, the ALJ must acknowledge that conflict and state his or

her reasons for adopting one view and rejecting the other. See

generally

. See also Social Security Ruling

96-7p, Evaluation of Symptoms in Disability Claims: Assessing the

Credibility of an Individual's Statements.

(July

2, 1996). Here, the ALJ appears to have overlooked that conflict

or, perhaps, simply forgot to include a discussion of it in his

opinion. Accordingly, remanding this matter to the ALJ for

15 further consideration seems the most appropriate course of

action.

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court concludes that the ALJ's determination that claimant was

not disabled prior to the date of the ALJ's decision is not

supported by substantial evidence in the record insofar as it

omits any discussion of claimant's asserted inability to perform

jobs that involve exposure temperature extremes and/or outdoor

working conditions.

For the foregoing reasons, the Commissioner's motion to

affirm her decision (document no. 9) is denied. Claimant's

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

6) is granted in part and denied in part. To the extent it seeks

a remand of this matter to the ALJ for further consideration, it

is granted. In all other respects, it is denied.

Pursuant to sentence four of

(g), this matter

is remanded to the ALJ for further proceedings consistent with

16 this order. The Clerk of the Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED

McAuliffe ''Chief Judge

November 8, 2 0 05

cc: Maureen R. Manning, Esq. David L. Broderick, Esq.

17