UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Michael Dufresne, Claimant

v. Case No. 19-cv-636-SM Opinion No.

Andrew Saul, Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Michael Dufresne, moves to reverse or vacate the Commissioner’s

decision denying his applications for Disability Insurance

Benefits under Title II of the Social Security Act and

Supplemental Security Income Benefits under Title XVI. See

, 1381-1383c (collectively, the “Act”). The

Commissioner objects and moves for an order affirming his

decision.

For the reasons discussed, claimant’s motion is granted to

the extent he seeks a remand for further proceedings, and the

Commissioner’s motion is denied. Factual Background

I. Procedural History.

In June of 2015, claimant filed applications for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”), alleging that he was disabled and had been unable to

work since November 15, 2009. Claimant was 40 years old at the

time and had acquired sufficient quarters of coverage to remain

insured through December 31, 2014. 1 Claimant’s applications were

denied and he requested a hearing before an Administrative Law

Judge (“ALJ”).

In February of 2017, an ALJ held a hearing at which

claimant and a vocational expert testified. Two months later,

the ALJ issued his written decision, concluding that claimant

was not disabled. Claimant then requested review by the Appeals

Council. That request was granted and after review, the Council

remanded the matter to the ALJ for a new hearing and additional

findings. Admin. Rec. at 192-94 (noting that the “record

indicates that the claimant has the severe impairment of a

1 As the ALJ noted, claimant’s applications for benefits require an inquiry into his disability status during two time periods. The first, relating to his application for DIB benefits under Title II, runs from his alleged onset date through his date last insured. The second, relating to his application for SSI under Title XVI, runs from his alleged onset date through the date of the ALJ’s decision. See Admin. Rec. at 87.

2 fistula, which leaks fecal matter on an ongoing basis, but the

residual functional capacity assessment contains no limitations

that would correspond with this impairment”) (emphasis

supplied).

A second hearing was held before the ALJ on August 9, 2018,

at which claimant, a vocational expert, and two medical experts

testified. In September of 2018, the ALJ issued a second

unfavorable decision, concluding that claimant was not disabled

at any time from his alleged onset date through the date of the

ALJ’s decision. Claimant again requested review by the Appeals

Council. That request was denied. Accordingly, the ALJ’s

denial of claimant’s applications for benefits became the final

decision of the Commissioner, subject to judicial review.

Subsequently, claimant filed a timely action in this court,

asserting that the ALJ’s decision is not supported by

substantial evidence.

Claimant then filed a “Motion for Order Reversing Decision

of the Commissioner” (document no. 8). In response, the

Commissioner filed a “Motion for an Order to Affirm the

Commissioner’s Decision” (document no. 10). Those motions are

pending.

3 II. Factual Background.

A detailed factual background can be found in claimant’s

Statement of Material Facts (document no. 8-1) and the

Commissioner’s Statement of Omitted Facts (document no. 11).

Those facts relevant to the disposition of this matter are

discussed as appropriate.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

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 and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB,

(1938). Importantly,

then, it is something less than a preponderance of the evidence.

So, the possibility of drawing two inconsistent conclusions from

the evidence does not prevent an administrative agency’s finding

4 from being supported by substantial evidence. See Consolo v.

Federal Maritime Comm’n.,

(1966). See also

Richardson v. Perales,

(1971).

II. The Parties’ Respective Burdens.

An individual seeking SSI and/or DIB 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.”

(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3)(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, by a preponderance

of the evidence, that his impairment prevents him from

performing his former type of work. See Manso-Pizarro v.

Secretary of Health & Human Services,

(1st Cir.

1996); Gray v. Heckler,

(1st Cir. 1985). If

the 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, in

5 light of his age, education, and prior work experience. See

Vazquez v. Secretary of Health & Human Services,

(1st Cir. 1982). See also

, 404.1560,

416.912, and 416.960.

In assessing a disability claim, the Commissioner considers

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

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

disability, as supported by the claimant’s testimony or that of

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 v. Secretary of Health & Human Services,

(1st Cir. 1982). 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.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

6 With those principles in mind, the court reviews claimant’s

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

decision.

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

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since his alleged onset of disability: November 15, 2009.

Admin. Rec. at 15. Next, he concluded that claimant suffers

from the following severe impairments: “substance abuse,

depressive disorder NOS, panic disorder with agoraphobia,

fistula.”

Next, the ALJ concluded that if claimant stopped

his alcohol abuse, he would not have an impairment or

combination of impairments that meet or medically equal any of

the impairments listed in Part 404, Subpart P, Appendix 1.

Admin. Rec. at 16-19. Claimant does not object to any of those

findings.

Next, the ALJ concluded that if claimant stopped the

alcohol abuse, he would retain the residual functional capacity

7 (“RFC”) to perform the exertional demands of “light” work,

subject to the following limitations:

he [can] do no more than frequent climbing of ramps and stairs and never climb ladders, ropes, or scaffolds. He [can] do no more than occasional stooping, kneeling, crouching, and crawling. The claimant is limited to performance of simple, repetitive tasks. He can have no more than occasional changes in the work environment. He can have no interaction with the general public. He can have no more than occasional changes in work demands. He cannot travel to new work sites.

Id. at 19. In light of those restrictions, the ALJ concluded

that even if claimant stopped the alcohol abuse, he would not be

capable of performing any past relevant work. Id. at 24. See

also Id. at 74-75 (vocational expert’s testimony about

claimant’s work history as an assembler/fitter, order clerk,

order picker, shipping clerk, and forklift operator).

At the final step of the analysis, the ALJ considered

whether there were any jobs in the national economy that

claimant might perform – again, assuming he were to stop abusing

alcohol. Relying upon the testimony of the vocational expert,

the ALJ concluded that, notwithstanding claimant’s exertional

and non-exertional limitations, “if the claimant stopped the

substance use, he would be capable of making a successful

adjustment to work that exists in significant numbers in the

8 national economy.” Id. at 25. Consequently, the ALJ concluded

that “because the substance use disorder is a contributing

factor material to the determination of disability, the claimant

has not been disabled within the meaning of the Social Security

Act at any time from the alleged onset date through the date of

this decision.” Id.

Discussion

I. Claimant’s Assertions.

Claimant challenges the ALJ’s decision on three grounds,

asserting that he erred by: (a) failing to address three

vocational opinions that employers would not tolerate an

employee with open fistulas that leak stool and gas in the

workplace; 2 (b) giving great weight to the testimony of medical

expert Dr. Claiborn without explaining why he did not adopt Dr.

Claiborn’s opinions in their entirety; and (c) failing to

discuss or weigh the opinions of examining psychologist Dr.

Pike.

Because the ALJ did not adequately address the vocational

impact of claimant’s fistulas – that is, whether employers would

2 Dorland’s Illustrated Medical Dictionary (2005) defines “fistula” as “an abnormal passage or communication, usually between two internal organs, or leading from an organ to the surface of the body.”

9 actually hire someone with claimant’s condition – this matter

must be remanded for further consideration.

II. Claimant’s Medical Condition.

Perhaps because of his panic disorder and agoraphobia,

claimant appears to have obtained much of his medical treatment

on an emergency basis, rather than planned and effective

treatment for his physical ailments. Nevertheless, medical

records show that at least as early as 2009, claimant suffered

from sigmoid diverticulitis, with gastrointestinal bleeding.

See, e.g., Admin. Rec. at 497, 553. At some time thereafter, he

developed three or four abdominal fistulas. By June of 2015,

claimant’s medical records indicate that he had three abdominal

“wounds” to his lower abdomen, at least one of which was

draining stool. Id. at 529. Claimant reported that he obtained

treatment at an emergency room in March of 2012, but the wounds

never healed and, in fact, had gotten worse over time. Id. at

532. He told the examining advanced nurse practitioner that

“drainage fluctuates from day to day” and “he has even seen

food, rice, come out of one of the wounds.” Id. In September

of 2016, claimant again presented to an emergency room. He

underwent a CT scan and was diagnosed with a “fistula or a tract

that communicates from [his] colon to [his] skin (colocutaneous)

that is new and a continued fistula that communicates from [his]

10 colon to [his] bladder (colocesical).” Id. at 585. He was told

that his condition needs to be managed by a surgical specialist.

Id.

In September of 2016, claimant was examined by Dr. Leandro

Feo, who reported a “colocutaneous fistula with moderate to high

output that required surgical correction” in the form of “major

abdominal surgery with the possibility of a colostomy.” Id. at

854. Dr. Feo also noted that claimant’s “current condition

interferes with his lifestyle” and his “health issue has become

a priority and needs to be addressed in order for him to

maintain function on a daily basis.” Id. See also Id. at 837

(September of 2016 examination at Catholic Medical Center notes

“multiple colocutaneous fistulas” which “have been present for

about 7 years and worsened a couple of years ago.”); 590

(October of 2016, Manchester Community Health Center notes,

observing “LL abdomen with fistula leaking stool”); 1498 (March

of 2018 visit to Surgical Care Group at which it was observed

that claimant’s fistula had “moderate output with recurrent

abscess.”).

11 Prior to undergoing surgery in August of 2017, 3 claimant had

been placing toilet paper in and around his wounds in order to

contain the draining stool and suppress the attendant odor.

See, e.g., Admin. Rec. at 838 (Catholic Medical Center treatment

notes). The treating medical professional noted that “the

problem is generally described as inadequately controlled” and

advised claimant “to use either an infant scented diaper or

feminine hygiene pad to assist with odor and drainage.” Id. at

841. At the hearing conducted on February 7, 2017, claimant

testified that:

I go through a lot of toilet paper a day and I’m always going to the restroom a lot and I’m always wearing a jacket. I never take the jacket off because if I’m in a meeting and there’s people around me, I always – my stomach, it’s like if you have a bag, it’ll pass gas. My stomach will do the same thing. It’s not like, it’s not like passing gas where you can feel like you’re going to fart. This is like it just happens, so I wear a jacket and I always have it zipped up or be prepared or I’ll try and run off.

Admin. Rec. at 63-64.

3 Corrective surgery was initially recommended to claimant in or around 2012. It was, however, significantly delayed because his mental impairments made him too frightened to seek treatment. See, e.g., Admin. Rec. at 66. Then, once he was persuaded to pursue surgical treatment, he was suffering from an ongoing infection stemming from a dental abscess. He was advised that, prior to any abdominal surgery, his infection would have to be resolved. That, in turn, required the extraction of numerous teeth, including all of those on the top of his mouth. See, e.g., Admin. Rec. at 56, 70-71.

12 The problem presented here is this: the ALJ supportably

concluded that if claimant were to discontinue his alcohol

abuse, he would be capable of performing the physical

requirements of light work. But, the ALJ did not address the

impact that claimant’s fistulas would have on his employability

– that is, plaintiff is capable of substantial gainful activity

only if employers in general would actually be willing to hire

someone with the unavoidable effects and physical manifestations

of claimant’s physical condition.

To be sure, the ALJ did briefly mention claimant’s fistulas

and leaking stool. But, he dismissed them as not impacting

claimant’s ability to work, citing one of claimant’s medical

records for the proposition that “claimant noted that the

fistula did not affect his work.” Admin. Rec. at 20. The

medical record cited for that proposition relates to care that

was provided in September of 2016 – nearly seven years after

claimant had last worked. It’s evidentiary value is minimal at

best (indeed, it is entirely possible that the medical care

provider meant that claimant’s fistulas “did not affect his

ability to work” because she knew that claimant did not work).

See Admin. Rec. at 842. The ALJ also noted that claimant “was

able to perform physical activities as long as he covered his

fistulas with protective dressings.” Id. at 21. Again,

13 however, claimant’s physical abilities are not questioned. It

is his ability to secure employment despite the presence of open

fistulas that leak stool and intestinal gas in the work

environment and the availability of work to someone with that

condition.

There is certainly evidence in the record pointing to the

conclusion that, despite claimant’s physical abilities,

employers would be very reluctant (if not highly unlikely) to

actually hire him. For example, at the February, 2017, hearing,

the vocational expert testified as follows:

Question: He has open wounds on his abdomen seeping feces and I'm wondering what impact that has on the job base.

Answer: Well, I mean one -- I don't want to make a medical determination, I can only say like, you know, people with ostomies have worked in other jobs. I mean that doesn't preclude anybody from working as long as you take care of it, you know, and deal with the odor issues, so it - as long as it’s medically taken care of, it shouldn’t be a problem.

Q. Well, at this point, it’s taken care of with wads of toilet tissue, so –

A. Well, I mean I would assume that that would create a smell which could create a problem with, with maintaining employment.

Admin. Rec. at 78. Similarly, at the hearing held on August 9,

2018, a different vocational expert testified that a person with

14 fistulas that discharge fecal matter and give off an odor would

not be tolerated in the workplace:

Question: Thank you. Ms. Gerrish, I just plain forgot to ask and I apologize, we, we have if we have a hypothetical person who is otherwise capable of the light exertional hypothetical that His Honor gave but that person has a colorectal abscess, a fistula that literally exudes odors and sometimes fecal material in, in the setting of the workplace, would that be tolerated in an ordinary workplace?

Answer: I don't believe it would, Attorney Jackson.

Id. at 131-32. Finally, claimant submitted the affidavit of

David Meuse, a vocational expert. Mr. Meuse testified that

claimant’s condition precluded all work. More specifically, he

testified that those jobs originally identified by the

vocational expert as representative employment were all

explicitly excluded by, among other things, health and hygiene

concerns related to claimant’s condition:

I have been informed that the vocational expert at Mr. Dufresne’s hearing on February 7, 2017 testified that an individual with Mr. Dufresne’s limitations could perform the following jobs:

- Dishwasher/Kitchen Helper, DOT# 318.687-010 - Janitor, Cleaner/Industrial, DOT# 381.687-018 - Packer, Hand, DOT# 920.587-018 - Information Clerk, DOT# 237.367-018 - Assembler, Small Parts (specifically, Type-Bar- and-Segment), DOT# 706.684-026 - Laundry Worker, DOT# 302.685-010

15 It is my professional opinion that Mr. Dufresne’s open wounds that continually seep fecal matter preclude all work. On an ongoing basis, no employer will tolerate the smell, the necessity for frequent cleaning breaks, and the health hazard presented by his condition. In addition, there are specific problems associated with each of the positions identified by the vocational expert.

The Dishwasher position is precluded because of the risk of dishware, cookware, and silverware being contaminated by fecal matter and the associated health risks.

The Laundry position is also precluded by the risk of contaminating household articles with fecal matter and the associated health risks.

According to the DOT definition of Hand Packer, an individual in this job may package bakery items, bulk food, meat (including sausage, wieners, dried beef, and sliced bacon), and candy. Again, concerns over contamination with fecal matter and associated health risks preclude this position.

I have been told that the vocational expert testified that the Small Parts Assembler position would be precluded because of the proximity to other bench workers. I agree with this assessment. The risk of exposure to fecal matter and the odor of intestinal gas on an ongoing basis would be intolerable to the co-workers. Further, Mr. Dufresne’s social anxiety would also preclude such close interaction.

Admin. Rec. at 441, Affidavit of David W. Meuse at paras. 9-13.

That evidence was unrebutted, and it is uncontested by the

Commissioner. So, while the Commissioner is correct in noting

that an ALJ is not obligated to discuss all evidence in the

16 record, material evidence of this sort – strongly suggesting

that claimant’s condition makes him actually unemployable -

cannot be ignored. As this court has previously noted:

because the ALJ’s decision completely failed to mention any of the evidence [on which claimant relies], it is impossible to determine whether this evidence was considered and implicitly discredited or instead was simply overlooked. See Cotter v. Harris,

(3d Cir. 1981) (“[W]e need from the ALJ not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected. In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.”).

Lord v. Apfel,

(D.N.H. 2000) (emphasis

supplied).

Conclusion

In an otherwise thorough and thoughtful opinion, the ALJ

neglected to discuss substantial (and seemingly uncontroverted)

evidence suggesting that the physical manifestations of

claimant’s condition might well render him unable to secure

gainful employment (notwithstanding his physical ability to

perform a range of light work).

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

decision of the Commissioner (document no. 8) is granted to the

17 extent he seeks a remand for further proceedings. The

Commissioner’s motion to affirm his decision (document no. 10)

is denied.

Pursuant to sentence four of

(g), the

decision of the ALJ dated September 14, 2018, is vacated and

this matter is hereby remanded for further proceedings

consistent with this order. The Clerk of Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

February 18, 2020

cc: Alexandra M. Jackson, Esq. Daniel S. Tarabelli, Esq.

18