Corchado v. SSA 12-CV-052-SM 1/29/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jose Hernandez Corchado, Claimant

v. Case No. 12-cv-52-SM Opinion No.

Michael J. Astrue, Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(c)(3), Claimant, Jose Hernandez

Corchado, moves to reverse the Commissioner's decision denying

his application for Supplemental Security Income Benefits under

Title XVI of the Social Security Act,

et seq.

Document No. 10. The Commissioner objects and moves for an order

affirming his decision (doc. no. 11).

Factual Background

I. Procedural History

On September 18, 2009, claimant filed an application for

Supplemental Security Income benefits ("SSI benefits"), alleging

that he had been unable to work since June 30, 2008. He asserts

eligibility for benefits based on disabilities due to status

post-electrocution, with burns over 70 percent of the body and

multiple skin grafts; non-healing wound behind the left knee and

status post-flap insertion; right foot drop; post-traumatic stress disorder; and depression. His application for benefits

was denied and he requested an administrative hearing before an

Administrative Law Judge ("ALJ").

Claimant, who was represented by counsel, appeared and

testified before an ALJ on October 3, 2011. An impartial medical

expert and an impartial vocational expert also testified at the

hearing. On October 28, 2011, the ALJ issued his written

decision, concluding that claimant was not disabled within the

meaning of the Act. On January 20, 2012, the Appeals Council

denied claimant's request for review. Accordingly, the ALJ's

decision became the final decision of the Commissioner, subject

to judicial review.

Claimant then filed a timely action in this court, appealing

the denial of SSI benefits. Now pending are claimant's "Motion

for Order Reversing Decision of the Commissioner" (doc. no. 10)

and the Commissioner's "Motion for Order Affirming the Decision

of the Commissioner" (doc. no. 11).

II. Stipulated Facts

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

Statement of Material Facts which, because it is part of the

court record (doc. no. 12), need not be recounted in this

opinion.

2 Standard of Review

I. Properly Supported 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.1 See

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

(1st Cir. 1991). 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 contrary 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) ("We must uphold the [Commissioner's]

findings in this case if a reasonable mind, reviewing the

i 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. Console v. Federal Maritime Comm'n .,

(1966) .

3 evidence in the record as a whole, could accept it as adequate to

support his conclusion.").

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.

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 when 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 which has lasted or can be expected to last

for a continuous period of not less than 12 months." 42 U.S.C.

4 § 423(d)(1)(A). The Act places a heavy initial burden on

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, claimant must prove that his

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, 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).

If claimant demonstrates 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). See also

(g). If the

Commissioner shows the existence of other jobs that claimant can

perform, then the overall burden to demonstrate disability

remains with claimant. See Hernandez v. Weinberger,

(1st Cir. 1974); Benko v. Schweiker.

(D.N.H. 1982).

5 In assessing a disability claim, the Commissioner considers

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

medical facts; (2) claimant's subjective claims of pain and

disability, as supported by the testimony of claimant or other

witnesses; and (3) claimant's educational background, age, and

work experience. See, e.g.. Avery v. Secretary of Health & Human

Services,

(1st Cir. 1986); Goodermote,

. When determining whether a claimant is disabled, the ALJ

is also required to make the following five inquiries:

(1) whether claimant is engaged in substantial gainful activity;

(2) whether claimant has a severe impairment;

(3) whether the impairment meets or equals a listed impairment;

(4) whether the impairment prevents claimant from performing past relevant work; and

(5) whether the impairment prevents 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 whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

6

(d)(2)(A)

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

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

decision.

Discussion

I. 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

. He first determined that claimant had not been

engaged in substantial gainful employment since his alleged onset

of disability. Next, he concluded that claimant has the severe

impairments of "status post electrocution with burns over 70

percent of the body and multiple skin grafts, non-healing wound

of the left popliteal fossa of the left knee status post flap

insertion, and right foot drop." Administrative Record ("Admin.

Rec.") 13. The ALJ found, however, that claimant did not suffer

the severe impairments of post-traumatic stress disorder or

depression. He further determined that claimant "does not have

an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments."

at 15 (citing Part 404, Subpart P, Appendix 1).

7 Next, the ALJ found that claimant retained the residual

functional capacity to perform medium work, "except that he may

require a cane to ambulate and is minimally limited in his

ability to push and pull." .Id. The ALJ determined, therefore,

that claimant "is capable of performing past relevant work in

retail sales" and "other jobs that exist in significant numbers

in the national economy." .Id. at 20.

Consequently, the ALJ concluded that claimant was not

"disabled," at any time relevant to his decision. .Id. at 22.

On appeal, claimant argues that the ALJ erred in several

respects. First, he says, the ALJ committed reversible error at

step two by finding that claimant did not suffer from the severe

impairments of post-traumatic stress disorder and depression. He

argues next that the ALJ's step three determination that his soft

tissue injuries do not meet or equal a listing was not

sufficiently explained nor supported by substantial evidence.

Finally, claimant argues that the ALJ committed several errors at

the RFC stage.

II. The ALJ's Step Two Error Was Harmless

The ALJ found that claimant has the "medically determinable

mental impairments of posttraumatic stress disorder and major

depressive disorder." .Id. at 14. He concluded, however, that,

8 for claimant, these impairments are not "severe."

Specifically, he found that claimant's mental impairments "do not

cause more than a minimal limitation in the claimant's ability to

perform basic mental work activities." .Id. Claimant challenges

that finding.

"It is well established in this circuit 'that the Step 2

severity requirement is ... to be a de minimus policy, designed

to do no more than screen out groundless claims.'" Mohammad v.

Astrue.

, at *7 (D.N.H. April 4, 2011) (quoting

McDonald v. Secretary of Health & Human Services,

(1st Cir. 1986)). Accordingly, the Commissioner may

summarily deny benefits at step two only "'to those applicants

with impairments ... which could never prevent a person from

working.'" McDonald,

(quoting Baeder v.

Heckler.

(3d Cir. 1985)).

Although the ALJ at step two discussed claimant's mental

impairments in some detail, he erred in finding that claimant had

not met the de minimus showing. The provider reports easily

carry claimant's case past the low step two threshold.

The ALJ's step two error is not grounds for reversal,

however, because he "continued through the remaining steps and

considered all of the claimant's impairments." Svms v. Astrue,

9

, at *1 (D.N.H. Sept. 8, 2011) (DiClerico, J).

After finding at step two that claimant had other severe

impairments, the ALJ proceeded through the remaining steps of the

five-part sequential analysis. At step four, he considered the

impact that claimant's mental limitations have on his functional

capacity. See Admin. Rec. at 19. The ALJ's step two error was,

therefore, harmless. See Svms,

, at *1 citing

Lewis v. Astrue,

(9th Cir. 2007) ("The decision

reflects that the ALJ considered any limitations posed by the

bursitis at Step 4. As such, any error that the ALJ made in

failing to include the bursitis at Step 2 was harmless.").

Ill. The ALJ's Step Three Error Requires Remand

At step three of his sequential analysis, the ALJ made the

following determination as to whether claimant's soft tissue

injuries met Listing 1.08:

The undersigned considered listing 1.08. Listing 1.08 cannot be met, as the claimant was not [sic] underwent continuing surgical management directed toward the salvage or restoration of major function, and such major function was not restored or expected to be restored within 12 months of onset.2

Admin. Rec. at 15.

2 The ALJ also found that claimant's right foot drop did not meet any listing "as the claimant maintained the ability to ambulate throughout the majority of the period at issue." Admin. Rec. at 15.

10 Claimant says that the ALJ's failure to provide an

explanation for his conclusory step three determination, and his

finding that claimant did not meet Listing 1.08, constitute

reversible error. Because the court finds that the ALJ's failure

to provide an adequate explanation for his step three

determination warrants remand, claimant's second argument is not

addressed.

A. Claimant's Soft Tissue Injuries and Treatment

In June of 2008, claimant was electrocuted when the metal

pole he was holding came into contact with a high tension wire.

He was in a coma for one month and remained hospitalized for nine

months with second and third degree burns over 60% of his body.

While in the hospital, he underwent seven skin graft surgeries.

Upon his release, claimant continued to suffer from an

unhealed wound behind his left knee that remained open and third-

degree in nature. Claimant used a cane to walk and a support

boot due to right foot drop. He underwent many months of focused

treatment of the open wound, which involved, among other things,

resting, elevating his leg, and offloading pressure. Four months

of wound treatment took place while claimant was incarcerated in

the Hillsboro County Department of Corrections.3 After

3 Claimant was incarcerated for four months on apparently groundless charges that were later dropped due to mistaken identity. Admin. Rec. 52, 335.

11 claimant's release from jail, the wound remained unresponsive to

additional months of conservative treatment. Claimant underwent

skin graft surgery to resolve the wound site in August of 2010.

B. Listing 1.08 Requirements

Listing 1.08 requires a claimant to demonstrate that he had

a soft tissue injury, such as burns, "of an upper or lower

extremity, trunk, or face and head" that was "under continuing

surgical management . . . directed toward the salvage or

restoration of major function, and such major function was not

restored or expected to be restored within 12 months of onset."

20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.08. " [U]nder

continuing surgical management" refers to surgical procedures and

associated treatments. 20 C.F.R., Pt. 404, Subpt. P, App. 1,

§ 1.00M.

For purposes of Listing 1.08, loss of a major function

includes the inability to ambulate effectively on a sustained

basis or the inability to perform fine and gross movements. 20

C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(a). The

regulations define "inability to ambulate effectively" as "an

extreme limitation of the ability to walk; i.e., an impairment(s)

that interferes very seriously with the individual's ability to

independently initiate, sustain, or complete activities."

20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b).

12 The regulation goes on to state that "ineffective ambulation

is defined generally as having insufficient lower extremity

functioning . . . to permit independent ambulation without the

use of a hand-held assistive device(s) that limits the

functioning of both upper extremities." .Id. But the regulation

also explains that "[t]o ambulate effectively, individuals must

be capable of sustaining a reasonable walking pace over a

sufficient distance to be able to carry out activities of daily

living." .Id. "Therefore," it states, "examples of ineffective

ambulation include, but are not limited to, the inability to walk

without the use of a walker, two crutches or two canes, the

inability to walk a block at a reasonable pace on rough or uneven

surfaces, the inability to use standard public transportation,

the inability to carry out routine ambulatory activities, such as

shopping and banking, and the inability to climb a few steps at a

reasonable pace with the use of a single hand rail." Id. The

regulation cautions that "[t]he ability to walk independently

about one's home without the use of assistive devices does not,

in and of itself, constitute effective ambulation." Id.

(emphasis added).

C. ALJ's Duty to Explain His Step Three Determination

There is no serious dispute here that claimant was under

continuing surgical management for his extensive burns for over

two years following his accident (far surpassing the listing's

13 12-month requirement). The parties disagree, however, as to

whether claimant's post-hospitalization treatments and surgery

were directed toward restoration of effective ambulation. In

other words, the parties dispute whether claimant's ability to

walk after release from the hospital was compromised so severely

that he met the definition of "ineffective ambulation."

In concluding that claimant's injuries did not meet Listing

1.08, the ALJ did not explain why he thought claimant's ongoing

treatment was not directed toward restoration of effective

ambulation. In fact, he did not mention effective ambulation in

making his Listing 1.08 determination. That was error.

The ALJ "'is generally required to . . . state reasons why

Petitioner's claim did not meet or equal the contemplated

listing.'" Stratton v. Astrue.

, at *8 (D.N.H.

May 11, 2012) (McCafferty, M.J.) (quoting Zahm v. Astrue,

, at *9 (D. Idaho Aug. 31, 2010)) . An explanation at step

three is adequate where the ALJ "'discuss[es] in detail the

requirements of [the] Listing and reference[s] specific evidence

in the record to support his step three determination.'" .Id. at

*9 (quoting Davenport v. Astrue,

, at *4 (E.D.

Wash. Mar. 7, 2011) (citations omitted)). In contrast, a

"boilerplate finding" is inadequate. Jd. (quotation and citation

omitted).

14 In Stratton, the court found the ALJ's conclusory step three

finding to be inadequate. Jd. As in that case, the ALJ here

employed boilerplate language and did not "adduce evidence from

the record to support" his conclusion. Jd. Accordingly, the

court necessarily finds that the ALJ erred at step three of his

analysis.

The Commissioner does offer a post hoc justification for the

ALJ's step three finding in an effort to save the decision. He

says that the treatment and surgery were not directed toward

restoring claimant's ability to "ambulate effectively" because

the regulation that defines "ineffective ambulation" requires

that the claimant must have been using a two-handed assistive

device. Since claimant used only a single cane, says the

Commissioner, the ALJ's step three determination, even if

deficient for lack of explanation, is nonetheless supported by

substantial evidence in the record.

Claimant counters that the regulatory definition is much

broader than the Commission posits, as it encompasses all

situations where claimant is not "'capable of sustaining a

reasonable walking pace over a sufficient distance to be able to

carry out activities of daily living.'" PI. Reply Br., doc. no.

14, at 3 (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1,

§ 100(B)(2)(b).

15 Claimant's broad reading of the regulation is supported by

decisions from the only two courts of appeal to have considered

the question. The Ninth Circuit in Dobson v. Astrue,

, at * 2 (9th Cir. Feb. 20, 2008), and the Seventh Circuit

in Moss v. Astrue,

(7th Cir. 2009), concluded

"that the use of a two-handed assistive device is not necessary

to establish ineffective ambulation under" § 1.00(B)(2)(b).

Dobson,

, at * 2. Although the "use of a two-

handed assistive device is independently sufficient to establish

ineffective ambulation," Dobson,

at * 2 (emphasis

in original), the regulation provides a "nonexhaustive list of

examples of ineffective ambulation" that do not involve the use

of two-handed devices. Moss,

.

As noted in Dobson, "the Commissioner's commentary on

effective ambulation in the Federal Register" supports this broad

reading of the regulation. See

, at *1 & n.4. The

Commissioner's commentary reads, in relevant parts, as follows:

[I]f someone who uses one cane or crutch is otherwise unable to effectively ambulate, the impairment(s) might still meet or equal a listing.

The criteria do not require an individual to use an assistive device of any kind . . . [T]he . . . explanation and examples should make it clear that this applies to anyone who cannot walk adequately.

16 [W]e recognize that individuals with extreme inability to ambulate do not necessarily use assistive devices.

"Revised Medical Criteria for Determination of Disability,

Musculoskeletal System and Related Criteria," 66 Fed. Red. 58010,

58013 (Nov. 19, 2001).

Given the broad regulatory definition of "ineffective

ambulation," the Commissioner's rationale for the ALJ's step

three determination (i.e., that substantial evidence demonstrates

that claimant did not use a two-handed assistive device), is

inconsistent with the Commissioner's own interpretation of the

regulation and cannot serve to mitigate the error. Indeed, if

the rationale offered by the Commissioner on appeal was, in fact,

the ALJ's reason for finding that claimant's injuries did not

meet Listing 1.08, that, too, would constitute reversible error.

See Dobson,

, at *2 (remanding for further step

three analysis where the ALJ did not address whether the claimant

"could (with or without a cane) 'ambulate effectively'").

It is possible, of course, that the ALJ did consider whether

claimant's ambulation was "ineffective," as defined in the

regulation. Whether the ALJ did so, however, is not discernible

from his decision. Meaningful judicial review is, therefore,

precluded. See Gabriel v. Astrue,

, at *7 (D.N.H.

Feb. 24, 2009) (lack of step three explanation may preclude

17 meaningful review). See also Alban v. Astrue,

,

at *4 (D. Conn. Dec. 6, 2012) (in the absence of an adequate step

three discussion by the ALJ, remand is warranted where the

reviewing court is unable to "'fathom the ALJ's rationale'")

(quoting Berry v. Schweiker,

(2d Cir. 1982)).

Claimant presented evidence that he could not effectively

ambulate (and, therefore, that his surgery in 2010 was targeted

toward restoring a major life function). The case is remanded

for reconsideration and an adequate step three discussion

explaining whatever decision the ALJ makes.4 See Gabriel,

, at *8 (remanded for reconsideration of conflicting

evidence where "the ALJ presented no findings or analysis to

support his step three determination").

4 The ALJ's inadequate soft tissue listing determination is not saved by his separate finding that claimant's foot drop did not meet any listing because claimant had the "ability to ambulate." Admin. Rec. at 15. For one thing, the portions of the record the ALJ cites in support of his foot drop determination (i.e., physician findings that, during examination, claimant was "ambulatory"), do not shed light on whether, in reaching his separate Listing 1.08 determination, the ALJ thought that use of a two-handed device is required under the regulatory definition of "ineffective ambulation." Moreover, in neither listing determination did the ALJ explain why (and it is not apparent from the record) a doctor's observation that claimant was "ambulatory" in the examination room establishes that claimant had the capacity to "sustain [...] a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 100(B)(2)(b). See James v. Astrue,

, at *5 (N.D. Tex. March 19, 2012) ("Nor is effective ambulation conclusively established merely because plaintiff had a normal gait and exhibited '[t]oe, heel and tandem walking' within normal limits upon examination").

18 IV. Claimant's Remaining Arguments

Because this case is being remanded for a proper step three

determination, it is unnecessary to address claimant's remaining

arguments. See

(citing Audler v. Astrue,

(5th Cir. 2007)).

Conclusion

Claimant's motion to reverse the decision of the

Commissioner (doc. no. 1.0) is granted. The Commissioner's motion

to affirm his decision (doc. no. 1JL) is denied. This case is

remanded for further proceedings. Because remand is pursuant to

sentence four of

(g), the Clerk of Court is

instructed to enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J / McAuliffe United States District Judge

January 29, 2013

cc: Raymond J. Kelly, Esq. Robert J. Rabuck, AUSA

19