Stephens v. Barnhart

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 02-1474
EMERY STEPHENS,
Plaintiff, Appellant,
v.
JO ANNE BARNHART, COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Michael James Kelley on brief for appellant.
Michael J. Sullivan, United States Attorney, Lisa De Soto,
General Counsel, Robert J. Triba, Chief Counsel, Maria A. Machin,
Assistant Regional Counsel, and Rayford A. Farquhar, Assistant U.S.
Attorney, on brief for appellee.
November 5, 2002
Per Curiam. Emery Stephens appeals from a district court
decision upholding the Commissioner's denial of social security
disability benefits under 42 U.S.C. § 423(d). Stephens, a fifty-
five year old man with a tenth grade education, applied for
benefits on June 25, 1996, alleging an inability to work since
December 15, 1995 because of a fractured left ankle.
After a remand from the Appeals Council in 1999, the
Administrative Law Judge ("ALJ") held two hearings, at the second
of which a vocational expert ("VE") testified. The ALJ determined
that Stephens was "status post left ankle fracture," and had "a
history of alcohol abuse, and borderline intellectual functioning."
Applying the sequential analysis set forth in 20 C.F.R. § 404.1520,
see also Goodermote v. Secretary of Health and Human Servs., 690
F.2d 5, 6-7 (1st Cir. 1982), the ALJ found that Stephens suffered
from a severe impairment that was not deemed presumptively
disabling because it did not meet or equal any impairment found in
the Listings of Impairments, 20 C.F.R. Part 404, Subpart P,
Appendix 1. The ALJ also determined that, although Stephens had
certain exertional limitations, he had the residual functional
capacity ("RFC") to return to his "past relevant work as a janitor,
news salesperson and car washer," and was therefore not disabled.
Although the ALJ clearly indicated that his ruling was made at
Step Four of the sequential evaluation, he also engaged in some
Step Five analysis, further concluding that Stephens had the RFC to
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perform other work identified by the VE, which included the
positions of custodian, hotel maintenance person, packager,
assembler, security guard, counter clerk, surveillance systems
monitor, cashier and self-service gas station attendant.
We may set aside a denial of benefits only if it is not
supported by substantial evidence or if it is based on legal error.
Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). "We must uphold
the [Commissioner's] findings . . . if a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as adequate
to support h[er] conclusion." Rodriguez v. Secretary of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981); accord Irlanda
Ortiz v. Secretary of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991).
Stephens first contends that the ALJ erred in defining his
past relevant work and in concluding that he had the RFC to return
to it. We agree with Stephens on these two points. Since the ALJ
concluded that Stephens' post-onset, temporary work as a car wash
attendant and newspaper seller was too sporadic to qualify as
"substantial gainful activity," see 20 C.F.R. § 404.1575(a), those
jobs did not meet the definition of "past relevant work." See 20
C.F.R. §§ 404.1565(a). Thus, the ALJ's Step Four analysis should
have been limited to consideration of whether Stephens had the RFC
to perform his past work as a janitor. On that question, we
conclude that the ALJ's findings were insufficient to substantiate
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his determination that Stephens could return to his past work.
In considering Stephens' RFC, the ALJ concluded that Stephens'
ability to stand or walk was limited so that he could not "be on
his feet most of the day." However, the only evidence concerning
the standing or walking requirements of Stephens' past relevant job
consisted of Stephens' own statements that he was required to be on
his feet all day; the VE did not discuss, and the ALJ made no
findings concerning, the specific standing or walking requirements
for either Stephens' job as he actually performed it or for other
similar jobs existing in the economy. See Social Security Ruling
82-62 (PPS-80), Titles II and XVI: A Disability Claimant's Capacity
to Do Past Relevant Work, In General (S.S.A. 1982), available in
1982 WL 31386; Social Security 82-61 (PPS-72), Titles II and XVI:
Past Relevant Work--The Particular Job or the Occupation as
Generally Performed (S.S.A. 1982), available in 1982 WL 31387.
Moreover, the light-to-medium exertional range, within which the
ALJ concluded Stephens' past work fell, generally requires
"standing or walking, off and on, for a total of approximately 6
hours of an 8-hour workday," Social Security Ruling 83-10 (PPS-
101), Titles II and XVI: Determining Capability to Do Other Work--
The Medical-Vocational Rules of Appendix 2 (S.S.A. 1983), available
in 1983 WL 31251; see 20 § C.F.R. 404.1567; thus, the ALJ's failure
to distinguish either Stephens' particular job or his job as it is
generally performed from this norm make it impossible to conclude
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that substantial evidence supported the finding that Stephens had
the RFC to return to his past work despite his exertional
limitations. See Pinto v. Massanari, 249 F.3d 840, 844-45 (9th
Cir. 2001); Evans v. Shalala, 21 F.3d 832, 834-35 (8th Cir. 1994).
Having concluded that the ALJ's Step Four determination was
not adequately substantiated, we next consider whether, if the ALJ
had proceeded to the fifth and final step of the sequential
evaluation, a finding of not disabled would have been compelled in
any event. See Seavey, 276 F.3d at 11; Ward v. Commissioner of
Social Security, 211 F.3d 652, 656 (1st Cir. 2000). Stephens
argues that, at Step Five, the ALJ would have been required to
apply the Medical-Vocational guidelines, 20 C.F.R. Part 404,
Subpart P, Appendix 2 ("the Grids"), and that the applicable Rule
would have directed a determination of "disabled." See id., Table
2, Rule 202.01. However, this argument assumes that Stephens' RFC
was limited to light work; if he had the RFC to perform medium
work, the applicable Grid rule would result in a finding of "not
disabled." See id., Table 3, Rule 203.11. If the ALJ's finding
that Stephens was capable of some medium work is sustainable,
Stephens' RFC would fall between two exertional ranges, thereby
rendering the Grids inconclusive.1 See Thomas v. Barnhart, 278
1
We note that the ALJ suggested this case would have been
"remov[ed] . . . from the [G]rids" because of Stephens'
nonexertional impairments; although we agree with the ALJ's
5
F.3d 947, 960 (9th Cir. 2002); Social Security Ruling 83-12 (PPS-
103), Titles II and XVI: Capability to Do Other Work--The Medical-
Vocational Rules as a Framework for Evaluating Exertional
Limitations Within a Range of Work or Between Ranges of Work
(S.S.A. 1983), also available in 1983 WL 31253.
Medium work is defined as "work [that] involves lifting no
more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds. If someone can do medium work,
we determine that he or she can also do sedentary and light work."
20 C.F.R. § 404.1567(c). Here, the ALJ concluded, without much
explanation, that Stephens was capable of lifting up to fifty
pounds despite an examining physician's RFC evaluation which judged
Stephens capable of lifting only ten pounds frequently and twenty
pounds occasionally. We do not think the ALJ's reliance on
conclusory findings by non-examining Disability Determination
Services physicians, which were unsupported by any analysis or
written findings and made well in advance of the RFC evaluation,
justified his discounting of the RFC report. See Berrios-Lopez v.
Secretary of Health & Human Servs., 951 F.2d 427, 431 (1st Cir.
conclusion, this rationale appears to be inconsistent with his
finding that Stephens' nonexertional impairments were "technical"
and would not have any significant effect on the job base. Heggarty
v. Sullivan, 947 F.2d 990, 996 (1st Cir. 1991); Ortiz v. Secretary
of Health & Human Servs., 890 F.2d 520, 524 (1st Cir. 1989)
("should a nonexertional limitation be found to impose no
significant restriction on the range of work a claimant is
exertionally able to perform, reliance on the Grid remains
appropriate").
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1991).
However, from a commonsense point of view, there is sufficient
evidence in the record to provide support for the ALJ's
determination that Stephens was capable of lifting more weight than
the RFC evaluation estimated. In the first place, the RFC report
provides no explanation for the low estimation of Stephens'
capacity to lift and indicated that Stephens' prognosis was "good,"
which suggested that Stephens' condition was expected to continue
to improve. Moreover, the medical evidence indicates that (1)
Stephens' ankle fracture completely healed without complication,
(2) his pain was caused by weather rather than exertion, and (3)
his pain was controlled by over-the-counter medications. Although
Stephens suggests that reading the evidence in this way constitutes
an impermissible lay interpretation of raw medical data, see Perez
v. Secretary of Health & Human Servs., 958 F.2d 445, 446 (1st Cir.
1991), this prohibition does not apply where the medical evidence
shows relatively little physical impairment. Manso-Pizarro v.
Secretary of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996).
In such a case, "an ALJ permissibly can render a commonsense
judgment about functional capacity even without a physician's
assessment." Id.
To the extent Stephens challenges the ALJ's determination that
Stephens' complaints of disabling pain were not entirely credible,
we see no error; the ALJ's conclusion is adequately supported by
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the evidence cited above as well as Stephens' testimony admitting
that he lost his last permanent position due to a lay off rather
than his injury; that he worked subsequent to the alleged onset
date; and that he had a fairly active daily routine. The ALJ cited
this evidence and made specific findings supporting his decision to
discount Stephens' complaints. See DaRosa v. Secretary of Health
& Human Servs., 803 F.2d 24, 26 (1st Cir. 1986); Avery v. Secretary
of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986). In
light of this evidence, we think that the lack of affirmative
comment on Stephens' ability to lift suggests that no functional
limitation was apparent since, as a matter of commonsense, there is
no obvious reason why someone with a healed ankle fracture would
not be able to lift or carry fifty pounds.
Having found that the ALJ soundly concluded that Stephens was
capable of at least some medium work, the Grids are rendered
inconclusive, and we must decide whether the VE's testimony was
sufficient to support a finding that Stephens was capable of
performing other work in the economy. See Thomas, 278 F.3d at 960;
SSR 83-12. Since the VE's testimony concerning other jobs
specifically assumed a limitation on standing and walking, and the
specific occupations he identified, and which the ALJ cited in his
opinion, all allowed for a significant amount of sitting and were
predominantly in the light exertional range, we think that, under
the substantial evidence standard, the VE's testimony would compel
8
the conclusion that Stephens was capable of doing some work. See
Thomas, 278 F.3d at 960; SSR 83-12.
Accordingly, the judgment of the district court is affirmed.
See Loc. R. 27(c).
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