PERHAM v. BARNHART

2004 | Cited 0 times | D. Maine | June 24, 2004

REPORT AND RECOMMENDED DECISION1

This Supplemental Security Income ("SSI") appeal raises theissue whether substantial evidence supports the commissioner'sdetermination that the plaintiff, who alleges that he is disabledas a result of carpal tunnel syndrome, overuse tendonitis andpost-traumatic stress disorder, is capable of making a successfulvocational adjustment to work existing in significant numbers inthe national economy. I recommend that the decision of thecommissioner be vacated and the case remanded for furtherproceedings. Pursuant to the commissioner's sequential evaluation process,20 C.F.R. § 416.920; Goodermote v. Secretary of Health & HumanServs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative lawjudge found, in relevant part, that the plaintiff retained theresidual functional capacity ("RFC") to lift up to fifty poundsoccasionally and up to twenty-five pounds frequently, needed toavoid constant use of the upper extremities and hands and had amildly decreased ability to complete activities of daily living,maintain social functioning or sustain attention andconcentration, Finding 6, Record at 25; that transferability ofskills was not an issue in this case, Finding 10, id. at 26;that although the plaintiff was unable to perform the full rangeof medium work, he was capable of performing a significant numberof jobs in the national economy, including surveillance-systemmonitor (Dictionary of Occupational Titles § 379.367-010 (U.S.Dep't of Labor, 4th ed. rev. 1991) ("DOT"), parking-lot attendant(DOT § 915.473-010) and dispatcher (DOT § 372.167-010), Finding12, id.; and that he therefore was not under a disability atany time through the date of decision, Finding 13, id. TheAppeals Council declined to review the decision, id. at 6-8,making it the final determination of the commissioner,20 C.F.R. § 416.1481; Dupuis v. Secretary of Health & Human Servs.,869 F.2d 622, 623 (1st Cir. 1989).

The standard of review of the commissioner's decision iswhether the determination made is supported by substantialevidence. 42 U.S.C. § 1383(c)(3); Manso-Pizarro v. Secretary ofHealth & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In otherwords, the determination must be supported by such relevantevidence as a reasonable mind might accept as adequate to supportthe conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401(1971); Rodriguez v. Secretary of Health & Human Servs.,647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 5 of the sequentialprocess, at which stage the burden of proof shifts to thecommissioner to show that a claimant can perform work other thanhis past relevant work. 20 C.F.R. § 416.920(f); Bowen v. Yuckert, 482 U.S. 137,146 n. 5 (1987); Goodermote, 690 F.2d at 7. The record mustcontain positive evidence in support of the commissioner'sfindings regarding the plaintiff's residual work capacity toperform such other work. Rosado v. Secretary of Health & HumanServs., 807 F.2d 292, 294 (1st Cir. 1986).

The plaintiff contends that the administrative law judge erredin (i) failing to find him limited to occasional upper-extremityuse, (ii) omitting any limitation on reading ability, (iii)relying on jobs that the plaintiff's limitations preclude himfrom doing and (iv) mishandling the opinion of a treating source,Richard C. Flaherty, M.D. See generally Itemized Statement ofErrors Pursuant to Local Rule 16.3 Submitted by Plaintiff("Statement of Errors") (Docket No. 5). I agree.

I. Discussion

A. Upper-Extremity Limitations

At the plaintiff's hearing on January 16, 2002, theadministrative law judge crafted a hypothetical question forvocational expert Yvonne Batson based, inter alia, on "someonewho would be limited in terms of being able to use the hands andthe arms for repetitive use," excluding "jobs where both grossand fine manipulation on more than an occasional [sic] during theday." Record at 47. Batson sought clarification on the hand andarm limitations. See id. The administrative law judgeresponded: "[C]ertainly we're going to eliminate repetitive,we're going to eliminate the jobs where they would be used on aregular basis more than just occasionally during the day. . . .Looking more specific [sic] for jobs where the arms and handswould be used occasionally or even less than that if necessary."Id. Batson then testified that a person with such limitations could perform the jobs ofsurveillance-systems monitor, parking-lot attendant anddispatcher. See id. at 47-48.2

In a February 14, 2002 letter to the administrative law judge,the plaintiff's counsel argued that a person with the statedupper-extremity limitations could not perform either thedispatcher or parking-lot jobs, both of which are described inthe DOT as requiring "frequent" reaching, handling and fingering.See id. at 141-44, 147-48. Ultimately, by decision dated May30, 2002, the administrative law judge found that the plaintiffneeded only to avoid "constant" use of his upper extremities — inother words, that he was capable of "frequent" use. See Finding6, id. at 25. The plaintiff complains that the revisedupper-extremity finding is unsupported by substantial evidence ofrecord, see Statement of Errors at 2-4, and I concur.

My analysis hinges on a subtle but significant semantic point.The plaintiff's treating physician, Dr. Flaherty, recommended onSeptember 26, 2000 that the plaintiff avoid overuse of his upperextremities, including "repetitive hand motions[.]" Record at174. In similar vein, a consulting examiner, Betsy D. Buehrer,D.O., concluded in a report dated April 3, 2001 that theplaintiff "should avoid repetitive or sustained wrist flexion orextension." Id. at 181. However, the DOT does not speak interms of "repetitive" use of upper extremities; instead, itaddresses whether the need to reach, handle and finger is "notpresent," "occasionally" present (that is, occurring up to athird of the time), "frequently" present (that is, occurring fromone-third to two-thirds of the time) or "constantly" present(that is, occurring two-thirds or more of the time). See, e.g.,id. at 144, 151; DOT §§ 001.061-010, 001.261-010.

Indeed, my research indicates that the word "repetitive" (inthe context of upper-extremity use) has no universallyacknowledged and understood analogue in the vocabulary of theDOT. See, e.g., Gulo v. Barnhart, 82 Soc. Sec. Rep. Serv. 495, 505-07 & n. 7 (N.D. Ill.2002) (finding reversible error in administrative law judge'sfailure to articulate how plaintiff incapable of repetitivefingering could perform frequent but not constant fingering);Abbott v. Massanari, 77 Soc. Sec. Rep. Serv. 665, 674-76 (D.Neb. 2002) (finding reversible error in administrative lawjudge's failure to clarify with medical source whether ban onrepetitive gripping and grasping permitted frequent use of handsfor those activities).

At hearing, the administrative law judge construed therepetitive-motion limitation to preclude the plaintiff fromperforming more than "occasional" upper-extremity work. SeeRecord at 47. He was free to change his mind provided that hisdecision ultimately was supported by substantial evidence, but itwas not.

The administrative law judge described his final RFCassessment, precluding "constant use of the upper extremities andhands," as "consistent with Dr. Flaherty's statement in September2000 at which time he limited the claimant only from heavylifting, forceful hand use and repetitive hand motions." Recordat 23 (citation omitted). However, as the plaintiff points out,see Statement of Errors at 3, Dr. Flaherty made reasonablyclear in a January 31, 2002 progress note and RFC assessment(which the administrative law judge was provided, see Record at23) that he equated the words "repetitive" and "frequent" — inother words, that the plaintiff was not capable of "frequent" useof his upper extremities, see id. at 222-26. Properlyunderstood, Dr. Flaherty's opinion undercuts, rather thansupports, the administrative law judge's upper-extremity finding.

Nor is the finding of Dr. Buehrer of much help to thecommissioner. Inasmuch as appears, Dr. Buehrer was not asked toclarify her opinion, and there is no basis on which onereasonably can assume that she would or would not have found theplaintiff's limitations consistent with "frequent" use of hisupper extremities. Lawrence P. Johnson, M.D., a DisabilityDetermination Services ("DDS") non-examining consultant, didindicate in a June 13, 2001 RFC assessment that the plaintiff wasprecluded from "constant repetitive use of the hands" — aconclusion he described as not differing significantly fromtreating-source opinions on file. Id. at 202, 205. Nonetheless,Dr. Johnson did not have the benefit of the January 2002clarification by Dr. Flaherty, undercutting the weight thatproperly can be given to his opinion. See, e.g., Rose v.Shalala, 34 F.3d 13, 18 (1st Cir. 1994) ("[T]he amount of weightthat can properly be given the conclusions of non-testifying,non-examining physicians will vary with the circumstances,including the nature of the illness and the information providedthe expert.") (citations and internal quotation marksomitted).3

The administrative law judge's finding that the plaintiff wascapable of frequent use of his upper extremities is thusunsupported by substantial evidence of record.

B. Reading Ability

The plaintiff next complains that the administrative law judgeerred in failing to find a limitation on his reading ability.See Statement of Errors at 4-5. In essence, the plaintiff againcomplains that the administrative law judge got it right thefirst time (at hearing), but changed his mind after receiving theplaintiff's counsel's post-hearing letter. See id. At hearing,the administrative law judge asked Batson to assume that hishypothetical worker had a "limited education, basic understandingin terms of being able to read basic information or safety signs,or information that would be necessary actually on the job from ahazardous point of view[.]" Record at 46. In his post-hearingletter, the plaintiff's counsel argued that an individual withsuch a limitation would not be able to perform thesurveillance-system-monitor job. See id. at 141-42.4 The administrative law judge subsequentlyfound that the plaintiff had a "limited education" but made nomention of any reading or writing difficulty. See Finding 9,id. at 25.

This omission was error. Social Security regulations provide,in relevant part: (b) How we evaluate your education. The importance of your educational background may depend upon how much time has passed between the completion of your formal education and the beginning of your physical or mental impairment(s) and by what you have done with your education in a work or other setting. Formal education that you completed many years before your impairment began, or unused skills and knowledge that were a part of your formal education, may no longer be useful or meaningful in terms of your ability to work. Therefore, the numerical grade level that you completed in school may not represent your actual educational abilities. These may be higher or lower. However, if there is no other evidence to contradict it, we will use your numerical grade level to determine your educational abilities. The term education also includes how well you are able to communicate in English since this ability is often acquired or improved by education. In evaluating your educational level, we use the following categories: (1) Illiteracy. Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling. (2) Marginal education. Marginal education means ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. We generally consider that formal schooling at a 6th grade level or less is a marginal education. (3) Limited education. Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. We generally consider that a 7th grade through the 11th grade level of formal education is a limited education.20 C.F.R. § 416.964(b) (emphasis in original). The plaintiff completed seventh grade. See Record at 220-21.Thus, he properly could be categorized as having a "limitededucation" and presumed to have commensurate reading and writingskills absent evidence to the contrary. 20 C.F.R. § 416.964(b);see also, e.g., Walston v. Sullivan, 956 F.2d 768, 771 (8thCir. 1992) ("A claimant's formal education is conclusive proof ofhis educational abilities under the regulations only if no otherevidence is presented to contradict it. The record containssubstantial evidence which contradicts the ALJ's finding thatWalston's education was limited rather than marginal.") (citationomitted); Albritton v. Sullivan, 889 F.2d 640, 643 (5th Cir.1989) ("Albritton's formal schooling was no longer meaningful anddid not represent his educational abilities in the face ofuncontradicted evidence that he was functionally illiterate. Therecord otherwise lacks substantial evidence to support a findingof literacy.") (citation and footnote omitted).

The plaintiff testified at hearing that he could read basicwords but did not read much and could not read a newspaper verywell. See Record at 39-40. He adduced no recent evidence tocorroborate his claim but did produce educational records showingthat after repeating kindergarten, he was referred in secondgrade for evaluation of his low academic achievement, includinglow reading skills. See id. at 216-18. Although he was found tohave average intellectual functioning, his evaluator expected himto have "difficulty with independent assignments particularlywhen difficult reading material or an auditory stimulus ispresented and a motor response is required." Id. at 217.Inasmuch as appears, the administrative law judge rejected theclaimed reading difficulties on the basis that the plaintiff leftschool because of family problems, was found to have averageintellectual functioning when tested in second grade and producedno other records of assessment for academic or learningdifficulties. See id. at 22.

Nonetheless, the plaintiff adduced sufficient evidence to rebutthe presumption that his reading skills were commensurate with a"limited education" in the form of his own testimony and hisgrade-school materials.5 None of the facts relied on by theadministrative law judge — the plaintiff's non-academic reasonfor leaving school, his average intelligence and his lack ofcontemporaneous evidence — constitutes substantial, positiveevidence that he can in fact read at a "limited" (as opposed to a"marginal") level. The administrative law judge thus erred inpresuming the plaintiff capable of reading at the "limited"level.

C. Viability of Three Cited Jobs

In his third point of error, the plaintiff builds on his firsttwo points to argue that all three jobs on which theadministrative law judge relied were precluded by his RFC as hecontends it should have been found. See Statement of Errors at5-6. He is again correct. As discussed above, the Record does notsupport a finding that the plaintiff was able to use his upperextremities "frequently," as is required to perform theparking-lot-attendant and dispatcher jobs. See Record at143-44, 147-48. Nor is there substantial, positive evidence thathe possessed the requisite reading ability to perform thesurveillance-system-monitor and dispatcher jobs, both of whichhave a language-development level of three (i.e., a "GED," orGeneral Educational Development, level of "L3"), entailingability to "[r]ead a variety of novels, magazines, atlases, andencyclopedias" and "[r]ead safety rules, instructions in the useand maintenance of shop tools and equipment, and methods andprocedures in mechanical drawing and layout work." See id. at147, 150; Appendix C, § III to DOT.6 The administrative law judge's finding that the plaintiff wasable to perform the three cited jobs thus was not supported bysubstantial evidence of record. D. Treatment of Treating Physician

The plaintiff's first three points of error, collectively,entitle him to reversal and remand of his case. Nonetheless, forthe benefit of the parties, I address his fourth contention: thatthe administrative law judge failed to give proper weight to Dr.Flaherty's opinions that the plaintiff (i) was limited tooccasional upper-extremity use, (ii) could not work a forty-hourweek on a sustained basis and (iii) was limited to lifting andcarrying twenty pounds. See Statement of Errors at 6-8.

The opinions in question address RFC and disability — issuesreserved to the commissioner, as a result of which no "specialsignificance" is accorded an opinion even from a treating source.See 20 C.F.R. § 416.927(e)(1)-(3). Nonetheless, regardless ofthe subject matter as to which a treating physician's opinion isoffered, the commissioner must "always give good reasons in [her]notice of determination or decision for the weight [she] give[s]your treating source's opinion." Id. § 416.927(d)(2); seealso, e.g., Social Security Ruling 96-8p, reprinted in West'sSocial Security Reporting Service Rulings 1983-1991 (Supp. 2003)("SSR 96-8p"), at 150 ("The RFC assessment must always considerand address medical source opinions. If the RFC assessmentconflicts with an opinion from a medical source, the adjudicatormust explain why the opinion was not adopted.").

As discussed above, the administrative law judge committederror when he misunderstood Dr. Flaherty's opinion regarding theplaintiff's upper-extremity limitations. He made a similarmistake in rejecting Dr. Flaherty's twenty-pound liftinglimitation on the ground of unexplained inconsistency with anearlier "heavy lifting" limitation. See Record at 23. In fact,Dr. Flaherty's 2002 RFC assessment resolved the seeminginconsistency, making reasonably clear that Dr. Flaherty regardedthe twenty-pound restriction as tantamount to a restrictionagainst "heavy lifting." See id. at 223-26. Thus, no "goodreasons" were given for rejection of the twenty-pound limitation. By contrast, the administrative law judge did provide "goodreasons" for rejecting the full-workweek opinion. As he observed,see id. at 23, no such opinion was reflected in Dr. Flaherty'searlier notes, see id. at 174, and Dr. Flaherty provided noexplanation for the seeming change of heart, see id. at 222-26.The plaintiff contends that, at the least, the administrative lawjudge was obliged to recontact Dr. Flaherty to ascertain thebasis for the workweek opinion. See Statement of Errors at 7;see also, e.g., Social Security Ruling 96-5p, reprinted inWest's Social Security Reporting Service Rulings 1983-1991(Supp. 2003) ("SSR 96-5p"), at 127 ("Because treating sourceevidence (including opinion evidence) is important, if theevidence does not support a treating source's opinion on anyissue reserved to the Commissioner and the adjudicator cannotascertain the basis of the opinion from the case record, theadjudicator must make `every reasonable effort' to recontact thesource for clarification of the reasons for the opinion."). I amunpersuaded. The basis of the opinion (symptoms of overusetendonitis) is ascertainable from the Record. See Record at222, 226.

II. Conclusion

For the foregoing reasons, I recommend that the commissioner'sdecision be VACATED and the case REMANDED for furtherproceedings not inconsistent herewith.

1. This action is properly brought under42 U.S.C. § 1383(c)(3). The commissioner has admitted that the plaintiff hasexhausted his administrative remedies. The case is presented as arequest for judicial review by this court pursuant to LocalRule 16.3(a)(2)(A), which requires the plaintiff to file an itemizedstatement of the specific errors upon which he seeks reversal ofthe commissioner's decision and to complete and file a fact sheetavailable at the Clerk's Office. Oral argument was held before meon June 21, 2004, pursuant to Local Rule 16.3(a)(2)(C) requiringthe parties to set forth at oral argument their respectivepositions with citations to relevant statutes, regulations, caseauthority and page references to the administrative record.

2. Batson also testified that a person with the hypotheticallimitations could work as a greeter, see Record at 48-49;however, in a post-hearing letter to the administrative law judgethe plaintiff's counsel took issue with that assessment, seeid. at 153-54, and the administrative law judge did not rely onthe greeter job, see Finding 12, id. at 26.

3. At oral argument, counsel for the commissioner relied on aMay 1, 2001 RFC evaluation by Beth Benner, "SDM," see Record at189, in addition to the reports of Drs. Buehrer and Johnson.Inasmuch as appears, Benner, a "Single Decision Maker," see id.at 56, is not a medical source. In any event, her report, likethat of Dr. Johnson, predated Dr. Flaherty's clarification.

4. In his post-hearing letter, the plaintiff's counsel alsoargued that the plaintiff's reading limitation precludedperformance of the parking-lot-attendant job, see Record at141-42; however, he clarifies in his Statement of Errors thatthis was error and that he should have referenced the dispatcherjob, see Statement of Errors at 4 n*.

5. In addition, there is no indication that the plaintiff wasrequired to read in any of his previous jobs. See Record at112-19.

6. Indeed, as the plaintiff suggested in his Statement ofErrors, see Statement of Errors at 6, and counsel for thecommissioner conceded at oral argument, even assuming arguendothat the administrative law judge correctly found that theplaintiff's reading skills were commensurate with a "limitededucation," the Record still would not support a finding that hecould perform the dispatcher job inasmuch as (i) an individualwith a "limited education" cannot perform most skilled orsemi-skilled work, see 20 C.F.R. § 416.964(b)(3), (ii) thedispatcher job has an "SVP," or Specific Vocational Preparation,level of six, requiring more than one year (and up to two years)of specific vocational preparation, see Record at 147, 155,(iii) by contrast, "unskilled" work corresponds with an SVP levelof one or two, see Social Security Ruling 00-4p, reprinted inWest's Social Security Reporting Service Rulings 1983-1991(Supp. 2003) ("SSR 00-4p"), at 245, and is defined as work thatusually can be learned in thirty days, see20 C.F.R. § 416.968(a), and (iv) no finding was made that the plaintiffpossessed transferable skills, see Finding 10, Record at 26,which enable an individual to perform semi-skilled and skilledwork, see 20 C.F.R. § 416.968(d)(1).

Back to top