Hernandez Corchado v. US Social Security Administration, Commissioner

Filing 16

///ORDER granting 10 Motion to Reverse Decision of Commissioner; and denying 11 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jose Hernandez Corchado,
Claimant
v.

Case No. 12-cv-52-SM
Opinion No. 2013 DNH 010

Michael J. Astrue, Commissioner,
Social Security Administration,
Defendant
O R D E R
Pursuant to 42 U.S.C. § 1383(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, 42 U.S.C. § 1381 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 42 U.S.C. § 405(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 42 U.S.C.

§ 405(g); Irlanda Ortiz v. Secretary of Health & Human Services,
955 F.2d 765, 769 (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, 842 F.2d 529, 535 (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

Rodriguez v. Secretary of Health & Human Services, 647 F.2d 218,
222 (1st Cir. 1981) (“We must uphold the [Commissioner’s]
findings in this case if a reasonable mind, reviewing the
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(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. Consolo v. Federal
Maritime Comm’n., 383 U.S. 607, 620 (1966).
1

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
See Burgos Lopez v. Secretary

resolve conflicts in the evidence.

of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)
(citing Sitar v. Schweiker, 671 F.2d 19, 22 (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.”
(citation omitted).

Irlanda Ortiz, 955 F.2d at 769

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, 829 F.2d 192,
195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health &
Human Services, 803 F.2d 24, 26 (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.”
4

42 U.S.C.

§ 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, 482 U.S. 137, 146-47 (1987); Santiago v.
Secretary of Health & Human Services, 944 F.2d 1, 5 (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, 760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 7
(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, 530 F. Supp. 808, 810-11 (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, 683 F.2d 1,
2 (1st Cir. 1982).

See also 20 C.F.R. §§ 404.1512(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, 493 F.2d

1120, 1123 (1st Cir. 1974); Benko v. Schweiker, 551 F. Supp. 698,
701 (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, 797 F.2d 19, 23 (1st Cir. 1986); Goodermote, 690 F.2d
at 6.

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.

20 C.F.R. § 404.1520.

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

42 U.S.C. § 423(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 fivestep sequential evaluation process described in 20 C.F.R.
§ 404.1520.

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.”
Rec.”) 13.

Administrative Record (“Admin.

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.”
Id. 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.
8

He concluded, however, that,

for claimant, these impairments are not “severe.”

Id.

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, 2011 WL 1706116, at *7 (D.N.H. April 4, 2011) (quoting
McDonald v. Secretary of Health & Human Services, 795 F.2d 1118,
1124 (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, 795 F.2d at 1125 (quoting Baeder v.

Heckler, 768 F.2d 547, 553 (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.”
9

Syms v. Astrue,

2011 WL 4017870, 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.

therefore, harmless.

The ALJ's step two error was,

See Syms, 2011 WL 4017870, at *1 citing

Lewis v. Astrue, 498 F.3d 909, 911 (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.”).

III. 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.

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.
2

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 thirddegree 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

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

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

20

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, 2012 WL 1852084, at *8 (D.N.H.

May 11, 2012) (McCafferty, M.J.) (quoting Zahm v. Astrue, 2010 WL
3515912, 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, 2011 WL 839280, at *4 (E.D.
Wash. Mar. 7, 2011) (citations omitted)).
“boilerplate finding” is inadequate.
omitted).
14

In contrast, a

Id. (quotation and citation

In Stratton, the court found the ALJ’s conclusory step three
finding to be inadequate.

Id.

As in that case, the ALJ here

employed boilerplate language and did not “adduce evidence from
the record to support” his conclusion.

Id.

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.’”

Pl. 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, 2008 WL

467694, at * 2 (9th Cir. Feb. 20, 2008), and the Seventh Circuit
in Moss v. Astrue, 555 F.3d 556, 563 (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, 2008 WL 467694, at * 2.

Although the “use of a two-

handed assistive device is independently sufficient to establish
ineffective ambulation,” Dobson, 2008 WL 467694 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, 555 F.3d at 562.

As noted in Dobson, “the Commissioner’s commentary on
effective ambulation in the Federal Register” supports this broad
reading of the regulation.

See 2008 WL 467694, 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, 2008 WL 467694, 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.
precluded.

Meaningful judicial review is, therefore,

See Gabriel v. Astrue, 2009 WL 453372, at *7 (D.N.H.

Feb. 24, 2009) (lack of step three explanation may preclude
17

meaningful review).

See also Alban v. Astrue, 2012 WL 6728055,

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, 675 F.2d 464, 469 (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, 2009

WL 453372, at *8 (remanded for reconsideration of conflicting
evidence where “the ALJ presented no findings or analysis to
support his step three determination”).
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, 2012 WL 920014, 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”).
4

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 id. (citing Audler v. Astrue, 501 F.3d 446, 449

(5th Cir. 2007)).

Conclusion
Claimant's motion to reverse the decision of the
Commissioner (doc. no. 10) is granted. The Commissioner's motion
to affirm his decision (doc. no. 11) is denied. This case is
remanded for further proceedings. Because remand is pursuant to
sentence four of 42 U.S.C. § 405(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