Forni v. SSA CV-05-406-PB 10/17/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Glenn L . Forni

v. Civil N o . 05-cv-406-PB Opinion N o .

Jo Anne B . Barnhart, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Glenn L . Forni challenges the Commissioner of Social

Security’s (“Commissioner”) decision denying his application for

Social Security Disability (“SSD”) and Supplemental Security

Income (“SSI”) benefits. See

(g). He argues that

the Administrative Law Judge (“ALJ”) who considered his claim

improperly failed to consider his psychiatric impairment in

combination with his physical impairments. For the reasons set

forth below, I grant Forni’s motion to reverse (Doc. N o . 8 ) and

deny the Commissioner’s motion to affirm (Doc. N o . 1 1 ) . I. Background1

A. Procedural History

Forni filed concurrent applications for Social Security

benefits. His application for SSI benefits received an oral

protective filing date of January 1 4 , 2003. T r . at 219. He

filed his application for SSD benefits on April 8 , 2003, alleging

disability since October 3 , 2002. 2 After his application was

initially denied, Forni requested a hearing by an ALJ. After the

requested hearing, the ALJ denied Forni’s applications, finding

that he remained able to perform a significant number of light

and sedentary jobs in the national economy. The ALJ’s decision

became the final decision of the Commissioner of Social Security

when the Appeals Council denied Forni’s request for review of

such decision. Forni then filed this action for review of the

Commissioner’s decision, pursuant to

(g) and §

1383(c)(3).

1 Unless otherwise noted, the background facts recited in this Memorandum and Order are drawn from the Joint Statement of Material Facts (Doc. N o . 12) submitted by the parties pursuant to Local Rule 9.1. Citations to the Administrative Record Transcript are in the form “Tr.” 2 Forni originally alleged a disability onset date of September 2 9 , 2002, but amended this date during the hearing before the ALJ.

-2- B. Education and Work History

Forni was born on November 9, 1965. T r . at 6 5 . He was 39

years old when the ALJ denied his application in May 2005. Forni

has an eighth-grade education; obtained his GED in 1998; and has

worked as a truck loader/servicer, forestry worker, machine

tender, needle grinder and floor cleaner. His last reported work

was in September 2002. For the six years prior, Forni worked

full-time as a machine tender at Lacrosse Footwear.

C. Medical History

I. Asthma

In March and October 2001, Forni was treated at the Valley

Regional Hospital Emergency Room for acute asthma symptoms. On

both occasions he was treated with Ventolin nebulizers and

received a prescription for Prednisone. He suffered sinus

troubles in the month prior to the October incident. Testing in

October 2002 showed a moderate obstructive defect of the lungs

with significant reversibility, consistent with the prior asthma

diagnosis.

By April 2003, Forni was using his inhaler properly and

having only occasional attacks. In May 2003, Forni complained to

his primary care physician, Charles J. Brenton, M.D., that pollen

-3- was aggravating his asthma. D r . Brenton reported that Forni’s

lungs were clear.

In January 2004, D r . Brenton reported that Forni’s asthma

“has been treated effectively with the usual medications and

confers no disability.” T r . at 207.

ii. Carpal Tunnel Syndrome3

On September 2 4 , 2002, Valley Family Physicians diagnosed

Forni with probable carpal tunnel syndrome and recommended

nocturnal splints. In October 2002, Forni saw Edward J.

Orecchio, M.D., F.A.A.N, a neurologist and clinic

neurophysiologist, for numbness in his hands and discomfort in

his right arm. T r . at 143, 148. Forni said he had had the

problem since 1996, but recently the pain in his right arm had

been waking him up in the night.

EMG testing showed moderately severe bilateral carpal tunnel

syndrome and a right-side conduction block. D r . Orecchio

referred Forni to John P. Houde, M.D., for a surgical

consultation. D r . Houde saw Forni several times in late 2002 and

3 Carpal tunnel syndrome is defined as “a complex of symptoms resulting from compression of the median nerve in the carpal tunnel, with pain and burning or tingling paresthesias in the fingers and hand, sometimes extending to the elbow.” Dorland’s Illustrated Medical Dictionary 1812 (28th ed. 1994).

-4- 2003 for continued numbness and tingling in his hands caused by

bilateral median nerve compression. Forni stated that the

symptoms persisted and he was frustrated with the effect that his

symptoms had on his activity level and sleep. Symptoms in his

right hand were worse than in his left. After discussing all

options, Forni decided to proceed with an open carpal tunnel

release on his right hand.

In August 2003, Forni had surgery to release the medial

nerve compression in his right hand. On October 2 2 , 2003, Forni

had improved symptoms of median nerve compression, but worsened

symptoms of ulnar nerve neuropathy.

On November 5 , 2003, D r . Orecchio, noted that Forni had

experienced fairly substantial relief from the surgery, but had

developed finger numbness after resuming weight-lifting on a

limited basis. Forni had been given clearance for limited weight

lifting, but D r . Orecchio reported that Forni “has been abusing

it a bit with the weights.” T r . at 156. EMG testing was

abnormal and showed median nerve deficits. D r . Orecchio found no

evidence of ulnar nerve pathology, but did note at least a

syndrome of ulnar nerve condition that did not appear to be of

major significance. D r . Orecchio recommended that Forni avoid

-5- stressing his hands and arms (by excess lifting of weights) to

allow time for sufficient healing.

On November 1 8 , 2003, D r . Houde again noted improved

symptoms of median nerve compression, but worsened symptoms of

ulnar nerve neuropathy. Forni was easily irritated in both the

median and ulnar nerve distributions of his right hand. Dr.

Houde felt that Forni was not then able to return to any physical

or manual labor.

In December 2003, D r . Houde noted that the carpal release

surgery had dramatically decreased Forni’s numbness and tingling

in his right thumb and index finger, but that he still had some

wrist and palm pain. Forni reported that the discomfort

increased after he moved furniture and changed a tire. He was

given a Durgesic patch to try and decrease his need for Percocet,

and was sent back to an occupational therapist for deep tissue

massage and paraffin treatments.

In January 2004, D r . Houde noted that Forni’s median nerve

compression symptoms had improved but that he continued to

experience ulnar nerve symptoms. Forni had some discomfort on

extension and flexion of the right ring and little fingers, but

no loss of wrist strength or range of motion.

-6- On February 1 0 , 2004, Forni told Antoin Hussam, M.D., a

physician at the Dartmouth Hitchcock Medical Center Pain Clinic,

that he had no hand pain when not using his hands, but developed

“overuse pain” with repetitive movements, such as those conducted

on machinery he had used at work. T r . at 214. He described his

pain as intermittent, mild to moderate, aching pain in his right

palm with radiation to his right lower arm. He told another Pain

Clinic physician, Majid Ghazi, M.D., that he had no current pain

at that time.

Also in February 2004, D r . Brenton noted that the Pain

Clinic had determined that a ganglion block would not likely help

Forni’s ulnar symptoms. D r . Brenton prescribed Percocet on a

limited basis for pain relief. On February 1 2 , 2004, Forni

called the Pain Clinic and requested further pain medication from

Jason Brokaw, M.D., who denied the request.

In April 2004, D r . Brenton observed that Forni was using his

pain medication in an appropriate manner. Forni also told D r .

Brokaw that his hand condition had not really changed since

January. He acknowledged increased pain when he handled heavy

weights and that the pain felt like a deep gnawing at the center

of his palm. D r . Brokaw felt that most of his pain complaints

-7- following the carpal tunnel release were somatic ones associated

with heavy use. D r . Brokaw did not feel Forni would be likely to

return to heavy mechanical labor. During one visit, D r . Brokaw

noted Forni’s “workman-type hands,” with lots of dirt under the

fingernails, and wondered if Forni was using his right hand more

than he was reporting. T r . at 211.

Dr. Brokaw described Forni’s hands as having good range of

motion and strength. He felt that, although Forni could not

return to the same type of work he had done previously, it was

important for him to get back to “whatever work he can do.” Tr.

at 212. D r . Brokaw recommended a functional restoration program

to get him back in the work force, but noted that Forni might be

resistant to such a course. D r . Brokaw concluded that the Pain

Clinic had nothing further to offer Forni and released his care

back to D r . Brenton.

On April 2 2 , 2004, D r . Brenton noted that the Pain Clinic

was unable to help, but that they recommended a rehabilitation

and restoration program. D r . Brenton wanted to wean Forni from

Percocet because of its addictive and abusive tendencies. He

agreed to try Bextra and Tramadol for pain relief.

-8- Forni saw D r . Brenton again in August and October 2004.

During this time, Forni decided not to have surgery on his left

hand since his primary discomfort was still in his right hand.

Dr. Brenton reported that Forni had been very conservative with

his use of Percocet.

On November 8 , 2004, D r . Brenton wrote that Forni’s ongoing

carpal tunnel syndrome had been problematic. T r . at 207. He

stated that Forni had had numerous consultations with experts in

orthopedics, neurology and pain management, as well as numerous

treatments with various medications, physical therapy, splinting

and surgery. D r . Brenton reported that Forni’s refractory pain

limited his use of both hands. He stated that Forni was unable

to do any heavy manual work or perform jobs requiring repetitive

motion of the hands, but that he thought Forni had excellent

rehabilitation potential for a variety of occupations if

resources were provided to ensure the necessary education.

In December 2004, Forni was still having trouble sleeping.

Dr. Brenton again referred him to the Pain Clinic.

ii. Depression

In April 2003, Forni told D r . Brenton that his stress levels

were high and he was having anger outbursts, centered primarily

-9- around his ex-wife and controversies over his children. He also

reported that he had been affected by the recent death of his

brother and the denial of his workman’s compensation claim. Dr.

Brenton continued Forni on Clonazepam (an anti-anxiety drug) and

gave him a prescription for Zoloft (an anti-depressant drug).

In May 2003, D r . Brenton reported that Forni was “getting

along well enough” on Clonazepam, was feeling “much more calm,”

and was not “having the tendencies he was having before,” despite

ongoing stress over his ex-wife and children. T r . at 145. D r .

Brenton stopped the Zoloft prescription at this time because it

was causing heartburn. T r . at 145.

In July 2003, Forni began therapy with Mark Linett, M.Ed,

LCMHC, LADC for complaints of depression dating back to the

deaths of his younger brother and mother the previous year.

Forni reported that his wife of thirteen years left him around

the time of his brother’s death. He admitted to irritability,

difficulty sleeping and anhedonia (total loss of feelings of

pleasure in acts that normally give pleasure). He found it

difficult to focus. M r . Linett noted that Forni seemed more

anxious than depressed, and diagnosed an anxiety disorder.

-10- On July 9, 2003, Forni told D r . Brenton that his depression

was currently worse and that he was becoming very short tempered

and having emotional outbursts. D r . Brenton decided to start

Forni on Paxil (another anti-depressant drug).

On July 1 6 , 2003, M r . Linett noted that Forni was

intermittently tearful during his therapy session and he did not

think Paxil was helpful. Forni complained of multiple stressors.

In August 2003, D r . Kline noted that Forni showed no sign of

any thought disorder, but did display some symptoms of a

generalized anxiety disorder and possible dysthymia.4 D r . Kline

determined that Forni was suffering from a generalized anxiety

disorder, noting that Forni experienced irritability, worry over

the safety of his three-year-old child, intermittent crying,

panic often, feelings of helplessness and hopelessness, as well

as memories of trauma as a child. T r . at 177.

Forni reported that as a child his mother was severely

disabled and that his two oldest siblings were unkind to him.

His older brother was very abusive and often beat him with

4 Dysthymia: a mood disorder characterized by depressed feeling and loss of interest or pleasure in one’s usual activities and in which the associated symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depression. Dorland’s at 519.

-11- studded belts, leaving big welts. Forni said that in 1984 he was

so depressed he put a gun in his mouth and considered suicide.

He was hospitalized at the State Hospital in Massachusetts for

eight days. He spoke most about the problems he was having with

his ex-wife over custody of their youngest child.

Forni claimed during his interview with D r . Kline that his

commitment to his children (then ages 1 3 , 12 and 3 ) prevented him

from ever considering suicide. His mood was euthymic (normal,

neither elated nor depressed) and his judgment appeared intact.

Dr. Kline rated Forni’s global level of functioning at GAF 6 0 ,

and prescribed Remeron (an anti-depressant drug) to help with

anxiety, depression and sleep problems.

Forni saw M r . Linett again on October 7 , 2003. Forni was

upset because of an allegation that someone had sexually abused

his three-year-old son, which was then being investigated by the

police and the Division for Children, Youth & Families (DCYF).

Forni said he passed a lie detector test regarding the

allegations, and he believed his ex-wife’s boyfriend was the

perpetrator. Forni believed this incident added to his stress

and brought up memories of his own sexual abuse. Later that week,

Mr. Linett noted that Forni complained about chronic wrist pains

-12- and emotional stressors. He wrote that Forni had difficulty

focusing and appeared agitated.

In November 2003, D r . Kline noted that Forni was doing

“pretty well” on Remeron, with no adverse side effects. His

anxiety was better controlled and he was having less difficulty

sleeping. Forni said he was doing fairly well except for the

continuing carpal tunnel pain.

In December 2003, Forni underwent a psychological

examination by Francis Warman, Ph.D. T r . at 157-60. Forni said

his primary reason for seeking disability status was his carpal

tunnel syndrome, but that he also had feelings of depression. He

was currently having difficulties with his ex-wife, but was very

interested in his children and was attempting to take good care

of them. He reported difficulties in concentration and memory,

periods of tearfulness, and poor appetite. He had been on both

Zoloft and Paxil, but did not tolerate them well and more

recently was treated with Klonipan and Remeron.

Forni seemed somewhat downcast and became tearful on one

occasion. He appeared fully oriented and reported being able to

do dishes and cleaning, as well as to drive. He did some

socializing and enjoyed building models. D r . Warman concluded

-13- that Forni had a normal ability to understand and remember

instructions, and could concentrate adequately and complete

tasks. Forni could interact appropriately and communicate

effectively with others. Despite some depression, he could cope

with the stress of most work-like settings. D r . Warman concluded

that Forni was suffering from depression. He said that, overall,

Forni’s prognosis was fair. In January 2004, M r . Linett reported

Forni was anxious and that Forni had difficulty focusing on what

he needed to change.

Forni saw D r . Brenton in December 2004. At that time, he

was having trouble sleeping and was again referred to the Pain

Clinic. D r . Brenton wrote that Forni continued to be under a

fair amount of stress and had some anger issues. He was

encouraged to stay on Klonapin.

D. Administrative Evidence

On May 1 , 2003, Forni completed a Disability Determination

Services (“DDS”) questionnaire about his daily activities. T r .

at 71-74. Forni reported he could take care of himself and his

three children, but that household chores took “awhile” and

required assistance. Id. at 71-72. Specifically, he said he

cleaned his home, took his 12- and 13-year-old children to

-14- school, cared for his 3-year-old son three-to-five days per week,

and did laundry. Id. at 7 1 . Forni reported difficulty carrying

his youngest son because his hands and arms were numb to his

elbows, and that he needed assistance carrying laundry. Id. He

reported taking sleep medications, without which he said he woke

up every night from hand numbness and/or asthma. Id. Forni

reported going out of the house often in summer, but very little

in winter because of his asthma. He also stated that his

inability to work out had changed his social activity. Id. at

72-73. Finally, he said he was unable to work because he felt

like he had an electrical cord on his arms, and had been fired

from his job after presenting a doctor’s note. Id. at 7 3 .

On December 1 9 , 2003, Forni completed a similar

questionnaire after having carpal tunnel release surgery on his

right hand. Id. at 75-78. His report was similar, except that

he said his right hand hurt more after surgery and that he was

easily distracted and prone to forgetting what he is doing. Id.

at 7 5 , 7 7 . He claimed that hand pain kept him up for the next

three nights after doing yard work. Id. at 7 8 .

On December 2 3 , 2003, state agency Disability Adjudicator

Linda Ellsworth reviewed Forni’s file and completed a vocational

-15- assessment. Ellsworth determined that Forni could occasionally

lift 20 pounds; frequently lift 10 pounds; stand or walk for six

hours in an eight-hour workday; and sit for six hours in an

eight-hour workday. Id. at 8 0 . She stated that he should avoid

both frequent fine finger movements and work in air-polluted

areas. Ellsworth opined that Forni’s Residual Functioning

Capacity (“RFC”) probably prevented him from performing his past

relevant work, but that he should be able to work as a security

guard, watchman or gate guard; automobile self-serve station

attendant; or movie theater ticket salesman. Id.

Also in December 2003, DDS psychologist Nicholas S . Kalfas,

Ph.D. reviewed Forni’s medical records and found no medically

determinable impairment. T r . at 161-163. Additionally, DDS

physician Hugh F. Farley, M.D., reviewed records of Forni’s

physical impairments and concluded he should be able to do light

work that did not involve frequent fingering and which did not

involve exposure to air pollutants in the workplace. T r . at 167-

173.

E. Forni’s Hearing Testimony

Forni, who was represented by counsel, testified at the

hearing before ALJ Edward G. Hoban on November 1 7 , 2004. T r . at

-16- 237-255. Forni testified that his hands woke him up in the

middle of the night. He claimed that he would wake up not

feeling his hands and said it felt like somebody had lain an

electrical cord on his arms. The feeling carried up to his

elbows.

He testified that the problem started when he was working at

Lacrosse; it was really bothering him in 2002; he was left-

handed; and the pain was worse in his right hand.

Forni testified he had not been lifting weights. He said he

had tried a couple times but his hands would subsequently go numb

so he stopped. He said he took care of his kids and did minor

maintenance on his car. The doctor said he could do minor things

as long as it was not all the time. He said he did a brake job

once every couple months.

Forni described the pain as an eight on a 1-10 scale. He

expressed fear of having surgery on his left hand, and said he

took pain medication just about every day.

He said he did not have money to continue counseling; that

his psychological medications made him want to sleep. He said he

had high stress due to his ex-girlfriend and was struggling with

his brother’s violent death in a car accident. Forni said he had

-17- no legal problems in the prior year, had stayed out of trouble,

and took care of his kids.

F. Vocational Expert’s Testimony

Kenneth Sutton appeared as a vocational expert (“VE”) at

Forni’s hearing. The ALJ asked Sutton to assume that Forni could

do light work (1) that did not involve repetitive fine finger

manipulation, and (2) that took place in an essentially clean

workplace without exposure to respiratory irritants. T r . at 258.

In response, the VE testified that Forni could not return to his

past work but should be able to perform the light work

occupations of parking lot attendant, photo-finishing counter

operator, gate guard and receptionist or information clerk, and

the sedentary occupations of surveillance system monitor and

telephone survey worker (or telemarketer). T r . at 259-260.

G. The ALJ’s decision

The ALJ determined at step two that Forni’s psychiatric

impairment was not severe.5 Having found this, the ALJ did not

5 The Social Security Act defines disability 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). In order to determine whether a claimant has a disability resulting from a

-18- consider Forni’s alleged depression at steps three, four or five

of the sequential analysis. In contrast, the ALJ found at step

two that Forni’s carpal tunnel syndrome and asthma were severe

impairments, and accordingly he considered both impairments

throughout the entire sequential analysis.

In assessing Forni’s RFC, the ALJ found that Forni’s

subjective allegations of carpal tunnel pain were not fully

credible. He then determined that despite his carpal tunnel and

asthma, Forni retained the ability to stand/walk for six hours in

an eight-hour day; sit for six hours; lift/carry ten pounds

frequently and twenty pounds occasionally; is restricted from

physical or medical impairment, the ALJ conducts a five-step sequential analysis.

. The claimant has the burden at each of the first four steps to show that: (1) the claimant is not engaged in substantial gainful activity; and (2) the claimant has a severe impairment; and (3) the impairment meets or equals a specific impairment listed in the SSA regulations; or (4) the impairment prevents the claimant from performing past relevant work.

§ 404.1520(a)(4)(I)-(iv). At step five, the burden shifts to the Commissioner to show “that there are jobs in the national economy that [the] claimant can perform.” Heggarty v . Sullivan,

9 0 , 995 (1st Cir. 1991). The ALJ’s conclusions at steps four and five are informed by his assessment of the claimant’s RFC, which is a description of the kind of work that the claimant is able to perform despite his impairments, including pain.

, 404.1545.

-19- concentrated exposure to excessive dust, fumes, and pulmonary

irritants; is restricted from repetitive handling/hand motions;

and is unable to perform any fine finger manipulations with

either hand. These restrictions, he found, prevent Forni from

returning to past relevant work. In light of Forni’s vocational

profile and restrictions as described above, the ALJ found that

Forni was nonetheless capable of performing a range of light work

and sedentary work that exist in significant numbers in the

national economy. Accordingly, the ALJ determined at step five

that Forni was not disabled and therefore not entitled to

benefits.

II. STANDARD OF REVIEW

Pursuant to

(g), 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. An ALJ’s factual findings are

conclusive if they are supported by substantial evidence.

(g); Ortiz v . Sec’y of Health & Human Servs.,

(1st Cir. 1991). Substantial evidence is that

which “‘a reasonable mind, reviewing the evidence in the record

-20- as a whole, could accept . . . as adequate to support [the]

conclusion.’” Ortiz,

(quoting Rodriguez v . Sec’y

of Health & Human Servs.,

1 8 , 222 (1st Cir. 1981)).

Thus, the ALJ’s decision is supported by substantial evidence if

it is reasonable.

The ALJ is responsible for settling credibility issues,

drawing inferences from the record evidence, and resolving

conflicting evidence. Id. at 769. If the ALJ’s findings as to

these matters are reasonable, I must uphold them “even if the

record arguably could justify a different conclusion.” Tsarelka

v . Sec’y of Health & Human Servs.,

(1st Cir.

1988). On the other hand, the ALJ’s findings are not conclusive

if they were “derived by ignoring evidence, misapplying the law,

or judging matters entrusted to experts.” Nguyen v . Chater,

1 , 35 (1st Cir. 1999). I apply these standards to the

arguments Forni raises in his appeal.

III. ANALYSIS

Forni argues that the ALJ erred by: (1) applying a

heightened standard at step two in finding his depression was

non-severe; (2) failing to properly consider his manipulative

-21- limitations when determining his RFC; and (3) improperly

analysing his subjective allegations of pain caused by carpal

tunnel syndrome. Although I question the ALJ’s conclusion that

Forni’s depression did not qualify as a severe impairment, I need

not resolve the case on that basis because I agree with Forni’s

broader contention that the ALJ failed to properly consider his

depression when determining his ability to work. Whether or not

Forni’s depression qualified as a severe impairment standing

alone, the ALJ was required to consider it in combination with

his other impairments when evaluating Forni’s work capacity.

Because the ALJ failed to do s o , I vacate his decision and remand

for further proceedings. I also briefly discuss Forni’s second

and third arguments in an effort to provide guidance upon remand.

A. Failure to Properly Consider Forni’s Depression

In determining whether a claimant is disabled, an ALJ must

consider “the combined effect of all of a claimant’s

impairments.” McDonald, 795 F.2d at 1126 (citing

(d)(2)(C)); see also

(a).6 It is “simply

6 See also

Multiple Impairments (“In determining whether your physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your

-22- a matter of common sense that various physical, mental, and

psychological defects, each nonsevere in and of itself, might in

combination, in some cases, make it impossible for a claimant to

work.” See McDonald, 795 F.2d at 1127. Thus, in assessing a

claimant’s ability to work, the ALJ should not disregard

individual, non-severe impairments where the claimant’s

collective impairments are severe.

Here, the ALJ did just that. Upon reviewing each impairment

individually, he determined that Forni’s mental impairment was

not severe but that his asthma and carpal tunnel syndrome were

severe. He then completely (and improperly) dropped Forni’s

depression from his analysis, thereafter analysing only the

effects of asthma and carpal tunnel on Forni’s RFC. See Loza v .

Apfel,

7 8 , 392-93 (5th Cir. 2000) (remanding for

reconsideration where ALJ erred by only evaluating consequences

impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. If we do find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process. If we do not find that you have a medically severe combination of impairments, we will determine that you are not disabled”) (emphasis added).

-23- of claimant’s mental and physical impairments individually and by

not considering their combined effects); Dunn v . Apfel, N o . 98-

591-B,

, at *8 (D.N.H. Dec. 1 0 , 1999) (finding

improper analysis at severity stage may have caused failure to

properly consider the total limiting effects of claimant’s mental

and physical impairments when determining her R F C ) ; MacLean v .

Sec’y of Health & Human Servs., N o . 93-384-SD,

, at

*2 (D.N.H. July 7 , 1994) (remanding in part to determine whether

claimant had more than one impairment, and if s o , to consider

combination of all impairments at each step of disability

evaluation process); Edmond v . Sec’y of Health & Human Servs.,

N o . 88-360-D,

, at *5 (D.N.H. Mar. 1 5 , 1989) (“ALJ

failed to properly consider whether the combination of

plaintiff’s impairments rendered him disabled”).

Because The ALJ failed to analyse Forni’s impairments in

combination throughout the sequential analysis, I find that his

decision was not supported by substantial evidence. Accordingly,

I reverse his decision and remand the case for consideration of

whether, in light of Forni’s combined mental and physical

impairments, his RFC would allow him to perform jobs that exist

in significant numbers in the economy.

-24- B. Manipulative Limitations

Forni also argues that the ALJ’s finding is inconsistent

with SSR 96-9p. This Ruling recognizes that significant

manipulative limitations may significantly reduce the number of

unskilled sedentary jobs available to a claimant. See SSR 96-9p,

SSA, at * 8 . Forni contends that because he is

unable to perform repetitive fine finger manipulations, the ALJ

improperly found that he was able to perform sedentary jobs. I

disagree.

SSR 96-9p provides that if any of the limitations identified

by treating physicians is deemed to be significant, it may be

appropriate for the ALJ to consult a V E . In such cases, the VE

may testify as to whether such limitations diminish the range of

sedentary jobs the claimant might otherwise capably perform.

See also Correll v . Barnhart,

* 2 1 . Consistent

with this rule, the ALJ obtained VE testimony in this case, which

specifically took into account Forni’s manipulative limitations.

See T r . at 258. With these limitations in mind, the VE opined

that Forni should nonetheless be able to perform specified light

and sedentary jobs. Id. at 259-260. Accordingly, I find that

the ALJ’s ruling on this discrete matter was supported by

-25- substantial evidence.7

C. Carpal Tunnel Pain Analysis

Lastly, Forni argues that The ALJ improperly discredited his

subjective testimony that he was not capable of light exertion

work, resulting in a flawed RFC assessment. In particular, he

argues that the ALJ failed to address each of the so-called

“Avery factors” when he evaluated Forni’s subjective complaints

of pain due to carpal tunnel syndrome. I conclude that the ALJ’s

Avery analysis of Forni’s carpal tunnel pain was sufficient and

his credibility determination on this matter is supported by

substantial evidence.

Assessment of the claimant’s credibility is the exclusive

province of the ALJ, who observes the claimant, evaluates her

demeanor, and considers how her testimony “fit[s] in with the

rest of the evidence.” Frustaglia v . Sec’y of Health & Human

Servs.,

9 2 , 195 (1st Cir. 1987). The ALJ’s credibility

determination is entitled to deference if it is supported by

substantial evidence.

In determining the credibility of a

7 As noted above, the ALJ should have reviewed the combination of all three impairments throughout his analysis. With respect to this specific argument, however, I find the error harmless because Forni’s manipulative limitations would not be affected by Forni’s depression.

-26- claimant’s subjective testimony, the ALJ must consider the entire

record, including objective medical evidence, the claimant’s

statements, information provided by physicians and other people,

and any other relevant evidence. SSR 96-7p,

SSA,

at * 3 .

The First Circuit has directed that in evaluating a

claimant’s subjective complaints of pain and other symptoms, the

ALJ should consider a variety of factors (sometimes known as the

Avery factors) including “(1) [t]he nature, location, onset,

duration, frequency, radiation, and intensity of any pain; (2)

[p]recipitating and aggravating factors (e.g., movement,

activity, environmental conditions); (3) [t]ype, dosage,

effectiveness, and adverse side-effects of any pain medication;

(4) [t]reatment, other than medication, for relief of pain; (5)

[f]unctional restrictions; and (6) [t]he claimant’s daily

activities.” Avery v . Sec’y of Health & Human Servs.,

9 , 28-29 (1st Cir. 1986); see also SSR 96-7p,

SSA, at * 6 - 7 . The ALJ’s decision “must contain specific reasons

for the finding on credibility, supported by the evidence in the

case record, and must be sufficiently specific to make clear to

-27- the individual and to any subsequent reviewers the weight the

adjudicator gave to the individual’s statements and the reasons

for that weight.” SSR 96-7p,

SSA, at * 4 .

Forni argues the decision is not supported by substantial

evidence because The ALJ (1) failed to recite the Avery legal

standard; (2) failed to evaluate Forni’s treatment for relief of

pain and discuss the intensity and persistence of his pain; and

(3) unfairly characterized Forni’s daily activities. I disagree

for the following reasons.

First, rote recitation of the Avery legal standard is not

required. Although detailed written discussion of the Avery

factors is desirable, see Frustaglia,

, an ALJ

complies with Avery i f , as here, he explores the factors at the

administrative hearing. See Lopes v . Barnhart,

(D. Mass. 2005) (ALJ complies with Avery where he covers

all of the factors at the hearing); Braley v . Barnhart, N o . 04-

176-B-W,

, at *17 (D. M e . June 7 , 2005) (ALJ need

not “slavishly discuss each Avery factor”). A searching review

of the hearing testimony reveals that the ALJ reviewed both

treatment of pain and intensity and persistence of pain, despite

-28- his cursory treatment of these factors in his express analysis of

pain. See T r . at 235-236, 244-245, 249, 252 (discussing

treatment of pain); 236-238, 2 4 0 , 242-243, 251 (discussing

intensity and persistence of pain).

Second, the ALJ discussed these factors thoroughly in other

portions of his ruling. See id. at 16-17 (discussing treatment

of pain, including carpal tunnel surgery; physical and

occupational therapy; Percocet prescription to manage persistent

carpal tunnel pain; Advair and Combivent prescriptions to manage

asthma; treatment by several physicians for carpal tunnel

syndrome; pain allegations substantiated by findings of abnormal

sensation indicating a conduction block of the median nerve;

continued medication and physical therapy; and Forni’s deferral

of a scheduled stellate ganglion block injection due to absence

of pain); 14-15, 17 (discussing intensity and persistence of

pain, including allegations of disabling pain; diminished

sensation and occasional numbness throughout medial fingers;

continued symptoms caused by repetitive movements and fine finger

manipulations; and increased hand pain upon lifting weights or

using certain machinery).

-29- Third, although I agree with Forni that the ALJ exaggerated

in characterizing Forni’s weight-lifting,8 a claimant’s daily

activities is but one of many Avery factors. As Forni correctly

points out in his brief, an ALJ assessing subjective allegations

of pain should review all the Avery factors and decide upon the

record as a whole. Avery,

. No single factor

is dispositive. Even assuming the true record on weight-lifting

bolsters Forni’s credibility as to pain, it still does not save

his claim.

Specific restrictions on Forni’s daily activities with

respect to pain, which were brought out during his testimony but

which the ALJ did not expressly mention, included: (1) his need

for assistance carrying laundry and lifting his three-year-old

son; (2) working at a slower pace; and (3) a pain level of eight

on a 1-10 scale. Forni also testified that his girlfriend helped

him with his chores. T r . at 248. None of this information,

8 The ALJ stated in his ruling that Forni “actively engaged in heavy weight-lifting exercises throughout the spring of 2004.” Tr. at 17-18. To the contrary, as Forni points out in his brief, the record reflects Forni’s disappointment over his inability to lift weights without pain, D r . Orecchio’s clearance of limited weight-lifting, and D r . Orecchio’s treatment notes that Forni may have abused his medial nerve “a bit” by these authorized attempts.

at 7 3 , 76-77, 153, 156, 241.

-30- however, adds any new evidence or insight. Moreover, the ALJ is

not required to refer one-by-one to each piece of evidence in the

record. See Rodriguez v . Sec’y of Health & Human Servs., N o . 90-

1039,

(1st Cir. Sept. 1 1 , 1990)(per

curiam).

“More telling than a chronicle of [Forni’s] various ailments

are his actual activities, which are incongruous with his

contention that he cannot work.” See Roe v . Chater,

7 2 ,

677-78 (8th Cir. 1996). The ALJ noted that Forni continued to

perform occasional maintenance on his car and a wide range of

childcare and household activities, including cleaning, driving

and caring for his children. T r . at 1 8 , 71-74. Given the level

of exertion required to conduct car repairs, household chores and

childcare, it was reasonable for the ALJ to infer that Forni

could perform light work. Furthermore, although the ALJ

exaggerated the extent of i t , Forni acknowledged some limited

weight-lifting.

. D r . Brokaw reported Forni had

“workman hands” with dirt under the fingernails and lacked

atrophy of the muscles, which reasonably suggested Forni might be

using his hands more than reported.

. Forni

acknowledged limiting his pain medication, which could reasonably

-31- suggest less pain than alleged.

.

Lastly, and importantly, every treating physician, reviewing

examiner and the VE concluded that Forni could perform light and

sedentary work. D r . Brenton opined that Forni was unable to do

any heavy manual work or perform jobs requiring repetitive motion

of the hands, but that he had excellent rehabilitation potential

for a variety of occupations.

. His surgeon, D r .

Houde, reported only that Forni should not perform physical or

manual labor.9

. His pain clinic physician, D r .

Brokaw, felt that it was important for Forni to get back to

“whatever work he can do,” and recommended a functional

restoration program.

. DDS disability adjudicator

Ellsworth opined that Forni should be able to work as a security

guard, watchman or gate guard; automobile self-serve station

attendant; or movie theater ticket salesman.

at 8 0 . The VE

testified that Forni should be able to do the light occupations

of parking lot attendant, photo-finishing counter operator, gate

guard and receptionist or information clerk, and the sedentary

occupations of surveillance system monitor and telephone survey

9 Forni contends that this limitation should be construed to prohibit not only physical or manual labor, but all work of any kind. I find no basis for this argument.

-32- worker (or telemarketer).

. Finally, and perhaps

most telling, Forni himself told the ALJ that he believed he

could perform a driving job.

. I conclude that the

ALJ’s decision that Forni’s complaints of carpal tunnel pain were

not fully credible is supported by substantial evidence.

IV. CONCLUSION

Pursuant to sentence four of

(g), I reverse

the ALJ’s decision and remand the case for further proceedings

consistent with the Secretary’s standards as interpreted by the

First Circuit and discussed in this order. Plaintiff’s Motion

For an Order Reversing the Decision of the Commissioner (Doc. N o .

8 ) is therefore granted, and the defendant’s Motion for an Order

Affirming the Decision of the Commissioner (Doc. N o . 11) is

denied.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

October 1 7 , 2006

cc: Jonathan P. Baird, Esq. David L . Broderick, Esq.

-33-