Cote v . Comm., SSA 11-CV-347-JD 06/07/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher R. Cote

v. Civil N o . 11-cv-347-JD Opinio n N o .

Michael J. Astrue, Commissioner, Social Security Administration

O R D E R

Christopher R. Cote seeks judicial review, pursuant to

(g), of the decision of the Commissioner of the

Social Security Administration, denying his application for

social security disability insurance benefits under Title I I .

Cote contends that the Administrative Law Judge (“ALJ”) made

several errors, including that he erred in finding that Cote

could do his past work as a warehouse operator and forklift

operator. The Commissioner moves to affirm the decision.

Background

Cote previously worked as a delivery driver and as a

forklift operator in a warehouse. He last worked on November 1 3 ,

2006, when he was injured while working. He is a high school

graduate and was thirty-seven years old when he stopped working. Before 2006, Cote had a history of surgery to repair back,

ankle, and shoulder problems. Despite those issues, he continued

to work full time although he also experienced continuing pain.

In November of 2006, Cote had arthroscopic surgery on his left

shoulder. Although he made some progress post surgery, D r .

Ricardo A . Gonzales recommended surgical repair of the left rotator cuff, which was in April of 2007.

In August of 2007, Cote aggravated his shoulder during

strength training. In November, D r . Gonzales told Cote that he

did not think further surgery would help. D r . Gonzales wrote

that Cote could do work at waist level without heavy weight.

Cote required additional treatment following a car accident

in June of 2008. In August of 2008, Cote saw M s . Morrison at a

pain clinic and explained that his primary pain was at the back

of his head and in his lower back. On examination, Cote had good range of head motion in all directions, good range of arm motion

overhead, no difficulty with walking, normal strength tests, and

normal sensation and reflexes. One test was positive for left

sacroiliac pain with a suggestion of right sacroiliac pain, and

Cote had tenderness to palpation on the left side of his back.

Cote continued to see M s . Morrison for pain treatment and had

2 sacroiliac injections for back pain. The administrative record

has no medical records from November of 2008 through November of

2010.

In January of 2009, Cote completed a report indicating that

he was in constant pain and could not lift much weight or walk or

stand for long because of ankle problems. An unsigned and undated “Disability Report Form” indicated that Cote’s job as a

forklift operator in a warehouse required driving a forklift,

loading and unloading merchandise with the forklift, standing for

eight hours and walking for one hour, handling and grasping for

four hours, and writing and handling small objects for one hour.

The form indicated that the heaviest object Cote lifted was less

than ten pounds.

Cote completed a function report in March of 2009, in which

he said that chronic back, shoulder, and ankle pain limited his ability to sleep. He said he had some difficulty dressing and in

other personal care activities due to shoulder pain. Cote said

that he prepared daily meals, did laundry, cleaned the house, and

required no help with those tasks. He went outside every day,

drove a car, and did weekly shopping. He wrote that he no longer

participated in sports because of his leg, back, and shoulder

pain. He said that he visited with friends and family but less

than before the pain began. Cote said that he could lift weight

3 up to ten pounds, could walk for one-half mile without resting,

had no problems with memory or following instructions, did not

need a cane, and handled stress as well as anyone.

On April 3 0 , 2009, D r . Hugh Fairley, a state agency

physician, reviewed Cote’s medical records for purposes of a

residual functional capacity assessment. D r . Fairley found that Cote was able to do light work without frequent overhead reaching

with his left arm, with lifting twenty pounds occasionally and

ten pounds frequently, with standing and walking for a total of

about six hours in an eight hour work day, with sitting for a

total of six hours in an eight hour work day, and with only

occasional postural activities.

In December of 2010, Cote saw D r . Ross because of pain in

his right shoulder and left ankle. Cote said that his right

shoulder pain was more significant and started a week before the appointment, apparently the result of throwing a bag of garbage.

Dr. Ross found that Cote’s shoulder motion was severely guarded

and restricted, with some mild tenderness and weakness on manual

muscle testing. Reflexes and sensation were normal. Shoulder x-

rays showed minimal irregularity, but an MRI showed a re-tear of

the rotator cuff. D r . Ross found some ankle tenderness. Cote’s

heel cord was intact, but his range of motion was guarded and

restricted, and he walked with a limp. Ankle x-rays showed

4 moderate degenerative bone formation, but the joint spaces looked

reasonably maintained, and no other abnormalities were seen.

B. Administrative Proceedings

Cote applied for disability benefits in January of 2009,

alleging an onset date of November 1 3 , 2009. His application was

denied, and he requested a hearing. An administrative hearing

was held on February 4 , 2011. Cote was represented by counsel,

and his wife and a vocational expert also testified.

At the hearing, Cote testified that he was always sore and

had limited mobility and reduced strength in his arms. He also

testified that his activities involved making breakfast and

watching television and that he did not go out unless he had an

appointment. He said his ankle problem had worsened with time so

that his ankle would give out and cause him to lose his balance.

He said that he could not even walk a quarter of a mile and could

not stand more than twenty or thirty minutes before his ankle

would begin to swell. He also said he had started wearing an

ankle brace in late 2010.

Cote testified that his shoulder had been better after

surgery in 2006 until he reinjured it during therapy. He said

that surgery in April of 2007 had not helped him to regain

strength and range of motion nor reduced pain. He said he had

5 very limited strength and range of motion in his left arm, along

with numbness and tingling, and could not even lift a gallon of

milk. Cote testified that he had lingering pain in his right

shoulder after surgery in 2000, although he could work through

i t , but then reinjured his right shoulder in December of 2010.

He was scheduled for right rotator cuff surgery after the date of the hearing. He also testified that he had back pain after the

2008 accident but that his doctors did not want to address his

back until his shoulders and ankle resolved.

Cote said that he had gained ninety pounds since 2006 and

that he could not exercise because of his other problems. He

said he might need to have gastric bypass surgery for his weight

issue. Cote also testified that he was not using prescription

pain medication, relying instead on aspirin. He said that he had

trouble sleeping despite taking Ambien. As to his daily activities, Cote said that he had trouble

getting dressed because of pain and had trouble going up and down

stairs, which he avoided. His main activity was watching

televison, and he only occasionally used the computer. He could

only read for fifteen minutes because of back pain and could only

sit for thirty to forty minutes. He did no housework or yard

work. He could not lift even five pounds repetitively. Cote’s

wife’s testimony corroborated his statements.

6 A vocational expert testified at the hearing and explained

that Cote’s previous work as a delivery driver was unskilled and

was at a medium work level and his job as a forklift operator was

semi-skilled and was performed at a light work level. The ALJ

asked the vocational expert to give his opinion about what work a

person could do who was limited to light work without frequent overhead reaching with his left arm and with only occasional

postural activities. The vocational expert responded that the

hypothetical person could do Cote’s jobs as a warehouse worker

and forklift operator as he actually performed those jobs. The

vocational expert also testified that he could do other unskilled

light jobs, such as a fast food worker, courier, mail clerk,

office helper, and cashier. He added that a sit-stand option

would eliminate the jobs of fast food worker and cashier. If the

person were limited to sedentary work with a sit-stand option, he could not do the prior jobs but could work as an eyeglass

assembler and charge account clerk. If Cote were as limited as

he and his wife described, he could not do any jobs.

The ALJ issued the decision on February 4 , 2011, in which he

found that Cote was not disabled because he retained the

functional capacity to do his past work as a warehouse operator

and forklift operator at the light work level, as he had

previously performed those jobs. The ALJ found that Cote’s

7 impairments of left shoulder tendinopathy, low back pain, and

morbid obesity were severe but did not meet or equal a listed

impairment or prevent him from doing his prior work. The ALJ

also found that Cote’s recent injury to his right shoulder did

not meet the twelve-month requirement for a disability finding.

When the Decision Review Board failed to complete review within the time allowed, the ALJ’s decision became the final decision of

the Commissioner.

Standard of Review

In reviewing the final decision of the Commissioner in a

social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v . Chater,

1 , 35 (1st Cir. 1999). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g). “Substantial evidence is more than a

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Astralis

Condo. Ass’n v . Sec’y Dep’t of Housing & Urban Dev.,

2 ,

66 (1st Cir. 2010).

Disability, for purposes of social security benefits, is

“the inability to do any substantial gainful activity by reason

8 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.”

(a). The ALJ follows a five-step

sequential analysis for determining whether a claimant is

disabled. § 404.1520. The claimant bears the burden, through the first four steps, of proving that his impairments preclude

him from working. Freeman v . Barnhart,

(1st

Cir. 2001). At the fifth step, the Commissioner determines

whether other work that the claimant can d o , despite his

impairments, exists in significant numbers in the national

economy and must produce substantial evidence to support that

finding. Seavey v . Barnhart,

, 5 (1st Cir. 2001).

Discussion

Cote contends that the ALJ erred in finding that he retained

the functional capacity to do light work, with certain

restrictions. Cote argues that the ALJ improperly relied on the

opinion of a state agency physician, improperly assessed Cote’s

credibility as to the severity of his pain, failed to credit the

testimony of Cote’s wife, failed to properly evaluate the effect

of Cote’s extreme obesity, and erroneously found that he could

return to his past work. In support of the motion to affirm, the

9 Commissioner asserts that the ALJ properly relied on the state

agency physician’s opinion, considered the effect of Cote’s

obesity, properly assessed Cote’s credibility, considered his

wife’s testimony, and properly found that he could return to his

past work.

At Step Four of the sequential analysis, the ALJ assesses the claimant’s residual functional capacity for work and whether

the claimant can return to his past work.

(e). In this case, the ALJ relied on the opinion of

the state agency consultant, D r . Fairley, to find that Cote

retained the capacity to do light work except that he should

avoid frequent overhead reaching with his left arm and should

only occasionally do postural activities. With that residual

functional capacity, the ALJ found that Cote could do his past

work as a warehouse operator and forklift operator, based on the vocational expert’s opinion.

Cote described his past work as a warehouse operator and

forklift operator to require standing for eight hours each day

and sitting for one hour. The ALJ repeated those requirements in

his finding. D r . Fairley, however, stated in his residual

functional capacity assessment that Cote could stand or walk for

only a total of six hours in an eight-hour day. The discrepancy

between D r . Fairley’s residual functional capacity assessment and

10 the requirements of the warehouse operator work as Cote performed

the job mean that Dr. Fairley’s opinion does not provide

substantial evidence to support that finding. No other medical

opinion evidence in the record supports a finding that Cote could

stand for eight hours each work day. Therefore, the ALJ’s

finding that Cote could return to his past work is not supported by substantial evidence. Although the vocational expert

testified that there were other jobs that Cote could do, the ALJ

made no findings at Step Five of the sequential analysis.

Therefore, because substantial evidence is lacking to

support the Commissioner’s decision, it must be reversed.

Conclusion

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

the decision (document no. 13) is granted. The Commissioner’s

motion to affirm (document no. 14) is denied. The case is

remanded under “Sentence Four” for further administrative

proceedings.

SO ORDERED.

___________________ Joseph United ^ a ^ D i s S c t Judge June 7, 2012

cc: Robert J. Rabuck, Esquire Jeffry A. Schapira, Esquire

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