UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Jeffrey B. Gudim

v. Civil No. 05-cv-323-JD

Jo Anne Barnhart, Commissioner,

Social Security Administration

O R D E R

Jeffrey B. Gudim brings this action under 42 U.S.C. § 405(g)

seeking judicial review of the Social Security Administration

Commissioner’s decision granting him benefits only for a closed

period. The Administrative Law Judge (“ALJ”) found that Gudim

was disabled due to morbid obesity and severe obstructive sleep

apnea from February 11, 2002, until June 30, 2003, when he

improved to the point that he could perform work at a sedentary

level except that he could not work around hazardous machinery or

in dusty environments. Gudim challenges the ALJ’s finding of

medical improvement.

Background

Jeffrey B. Gudim was thirty-one years old in October of

2003, when the ALJ issued her decision, and had completed the

twelfth grade. He was married and had two young children. He

had previously worked as an assembler and a machine operator, but

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he was laid off due to problems with tardiness, attendance, and

concentration. 

Dr. Reeves evaluated Gudim for sleep apnea in April of 2001

and also noted morbid obesity and borderline hypertension. Gudim

underwent a sleep study in April of 2001 and again in May of

2001, when he used a CPAP breathing machine. Gudim saw a

dietician in May of 2001, but could not be weighed then because

of his large size. Gudim reviewed the results of his sleep

testing with his treating physician, Dr. David Olken. They

discussed use of the CPAP unit and weight loss options. In

August of 2001, Gudim reported to Dr. Reeves that he was having

difficulty sleeping because he was knocking the CPAP mask off

during the night. He complained of daytime somnolence.

 In August of 2002, Dr. Olken reported that Gudim had “really

failed” in trying to diet and that his sleep apnea was worse. 

Gudim requested information about gastric bypass surgery. In

December of 2002, Gudim underwent pulmonary function testing. At

that time, he was six feet tall and weighed 440 pounds. The

testing showed a moderate to severe limitation in function due to

morbid obesity. In January of 2003, Dr. Olken wrote that Gudim

was unable to be gainfully employed because of his obstructive

sleep apnea and morbid obesity.

Also in January of 2003, Gudim’s medical records were

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reviewed by a state disability determination services consultant

physician, Dr. Burton Nault. Dr. Nault gave his opinion that

Gudim could lift up to twenty pounds occasionally, could lift ten

pounds frequently, could sit for six hours in an eight hour work

day, and could stand or walk for the remaining two hours. Dr.

Nault limited Gudim to only occasionally doing activities that

required climbing, balancing, stooping, kneeling, crouching, and

crawling.

Gudim was admitted to the hospital February 13, 2003, due to

shortness of breath and a reduction of oxygen supply. He

reported that he had not been using his CPAP unit, because he

could not tolerate it, that he had gained weight, and that he was

experiencing edema. Massive edema in his thighs was present when

he checked into the hospital. He weighed 528 pounds. He was

discharged on February 24, 2003, with a BIPAP breathing machine

and medication. He lost some weight while he was hospitalized,

and the edema improved. His diagnoses in the hospital were acute

bronchitis, morbid obesity with obstructive sleep apnea, chronic

hypoxia with pulmonary hypertension, and right-sided heart

failure.

Gudim returned to the dietician on March 19, 2003, for diet

counseling. He was prescribed a 2000 calorie and low fat meal

plan. He said that he was walking one mile every other day. By

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June of 2003, he had increased his walking to one and one-half to

two miles three times per week. He was also planning to have

gastric bypass surgery.

On June 30, 2003, Gudim saw Dr. Olken and reported that he

was using the BIPAP machine and was feeling better. Gudim said

he had lost 40 pounds, down to 504 pounds. Dr. Olken noted that

Gudim was motivated to diet and was getting regular exercise. On

July 10, 2003, Gudim told the dietician that he was down to 500

pounds and was walking three times a week. 

Dr. Olken completed a sleep disorders residual functional

capacity questionnaire on October 10, 2003, in which he said

Gudim had insomnia, obesity, hypertension, excessive daytime

sleepiness, sleep apnea, fatigue, and disturbance in cognitive

function, but he did not estimate the frequency or duration of

these symptoms. Dr. Olken also stated that Gudim “[m]aintains

markedly limited activities due to disease.” With respect to

Gudim’s functional capacity, Dr. Olken found that Gudim should

avoid climbing, heights, powered machines, moving machinery,

hazardous conditions, and dusty environments. He found that

Gudim could lift up to twenty-five pounds occasionally and that

he should avoid work that involved mostly standing or walking

rather than sitting. Dr. Olken indicated that Gudim’s sleep

problems limited him from performing at a consistent pace and

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from dealing with normal work stress, and would cause him to be

absent from work more than four times each month. On October 10,

2003, Dr. Olken wrote a letter in support of Gudim’s application

for social security benefits that repeated his opinion that Gudim

could not be gainfully employed because of his obstructive sleep

apnea and morbid obesity.

Gudim filed his application for social security disability

insurance benefits on October 9, 2002, alleging that he had been

disabled since February 11, 2002, due to severe sleep apnea, back

pain, swollen feet, heavy breathing, and morbid obesity. His

application was denied, and he requested a hearing, which was

held on October 21, 2003. Gudim, his wife, and a vocational

expert testified at the hearing. 

Gudim testified that he then weighed 489 pounds and that he

had weighed 544 pounds in February of 2003 when he was

hospitalized. He testified that he was still falling asleep

during the day and that he and Dr. Olken had discussed increasing

the pressure on his BIPAP machine. He said that he took care of

his two children during the day and that he could wash some of

the dishes but that he could only shop through one or two aisles

at the grocery store. He also said that his legs fell asleep

after he sat for fifteen to thirty minutes. Gudim’s wife

testified that he was sleeping better at night with the BIPAP

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machine and that he actually got a good night’s sleep. She said

that he could not do much housework because he could not stand up

for the necessary amount of time. She also said that Gudim did

well with his exercises if he used his oxygen properly.

The ALJ described a hypothetical claimant to the vocational

expert who was limited to sedentary work and could not work with

hazardous machinery, open flames, or unprotected heights. The

vocational expert testified that the claimant could not perform

Gudim’s previous light and medium duty work but could work in

assembly positions, as a cashier, and as an order clerk. Gudim’s

counsel added limitations that the claimant could not work at a

consistent pace or deal with normal work stressors. The

vocational expert said that those limitations would impact the

claimant’s ability to do the jobs he had described. When Gudim’s

counsel also added an expectation that the claimant would miss

more than four days of work each month, the vocational expert

said that he could not maintain employment in any of the

described jobs. 

The ALJ issued her decision on April 22, 2005, in which she

found Gudim had severe obstructive sleep apnea and morbid

obesity. She concluded that he had been disabled for a closed

period, from February 11, 2002, to June 30, 2003, and that he

then improved so that he was no longer disabled. She found that

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after June 30, 2003, Gudim was able to perform sedentary work

that did not require work around hazardous machinery or in dusty

environments. Based on the vocational expert’s testimony, the

ALJ concluded that there were jobs Gudim could do, despite his

impairments, so that he was not disabled.

Discussion

The court must uphold a final decision of the Commissioner

denying benefits unless the decision is based on legal or factual

error. Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d

15, 16 (1st Cir. 1996) (citing Sullivan v. Hudson, 490 U.S. 877,

885 (1989)). The Commissioner’s factual findings are conclusive

if based on substantial evidence in the record. 42 U.S.C. § 

405(g). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)

(internal quotation marks omitted). In making the disability

determination, “[i]t is the responsibility of the [Commissioner]

to determine issues of credibility and to draw inferences from

the record evidence.” Irlanda Ortiz v. Sec’y of Health & Human

Servs., 955 F.2d 765, 769 (1st Cir. 1991).

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1The medical improvement standard applies when the

Commissioner grants an application for benefits and terminates

the benefits in the same action, providing benefits for a closed

period of disability. Corrigan v. Barnhart, 352 F. Supp. 2d 32,

42-44 (D. Mass. 2004). 

8

Absent an applicable exception, the Commissioner may

terminate benefits only if there is substantial evidence to show

that the recipient can now engage in substantial gainful activity

because of medical improvement, or another listed circumstance,

that is related to his ability to work.1 42 U.S.C. § 423(f); 20

C.F.R. § 404.1594(a); Rice v. Chater, 86 F.3d 1, 3 (1st Cir.

1996). Medical improvement means “any decrease in the medical

severity of [the claimant’s] impairment(s) which was present at

the time of the most recent favorable medical decision that [he

was] disabled or continued to be disabled.” § 404.1594(b)(1). 

To determine whether medical improvement has occurred, the ALJ

must “compare the prior and current medical evidence to determine

whether there have been any such changes in the signs, symptoms

and laboratory findings associated with the claimant’s

impairment.” Rice, 86 F.3d at 2. In addition, medical

improvement must be related to the claimant’s ability to work so

that a decrease in the severity of symptoms without an increase

in functional capacity does not provide substantial evidence to

support a decision to terminate benefits. § 404.1594(b)(2).

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The ALJ found that Gudim was disabled from February 11,

2002, until June 30, 2003, due to severe obstructive sleep apnea

and morbid obesity. Those impairments caused daytime fatigue and 

shortness of breath. The ALJ also found that Gudim had medically

improved by June 30, 2003, based on Dr. Olken’s office note on

that day, indicating that Gudim had lost weight and was

successfully using a BIPAP machine that helped his nighttime

sleep. Based on that improvement, the ALJ found that Gudim was

not disabled after June 30, 2003. The ALJ concluded that Dr.

Olken’s notes and findings in October of 2003, that Gudim

continued to be impaired by an obstructive sleep disorder and

morbid obesity to the extent that he could not be gainfully

employed, were not supported by the record. 

The ALJ found, based on her review of the hearing transcript

and the medical records, that Gudim’s energy level and breathing

had improved so that he no longer fell asleep during the day. 

She concluded that Gudim’s functional capacity had improved to

the extent that he was able to work at a sedentary level, as long

as he avoided work around hazardous machines and in dusty

environments. The ALJ’s conclusions, however, are not supported

by the record.

 Although Gudim reported at his June 30, 2003, appointment

with Dr. Olken that he had lost forty pounds, he still weighed

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2According to that note, laboratory work was planned for the

end of October, 2003, but the administrative record does not

include laboratory test results.

3The residual functional capacity evaluation completed by

the state disability services consultant does not provide

substantial evidence to support the ALJ’s finding of medical

improvement because it was completed on January 10, 2003, when

the ALJ found that Gudim was disabled, contrary to that

evaluation. In addition, the consultant’s evaluation was done

before Gudim was hospitalized in February of 2003, and,

therefore, did not consider that event in the evaluation.

10

504 pounds at that time. By the time of the hearing, he weighed

489 pounds. On December 10, 2002, however, when he was found to

have a moderate to severe limitation in pulmonary function due to

morbid obesity, Gudim weighed only 440 pounds. Dr. Olken’s

office note on June 30 reports that Gudim “is making great

strides right at the moment” but does not include laboratory

findings that can be compared to the results taken during the

time Gudim was disabled.2 Further, Dr. Olken still found that

Gudim was morbidly obese in October of 2003 and that his

obstructive sleep apnea and morbid obesity would prevent him from

performing work at a consistent pace, would interfere with his

ability to deal with normal work stresses, and would likely cause

him to miss work more than four times a month.3 In addition,

contrary to the ALJ’s finding, Gudim testified at the hearing

that he still fell asleep during the day despite improvement in

nighttime breathing due to the BIPAP machine.

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Therefore, the ALJ’s finding that Gudim’s disability

terminated on June, 30, 2003, is not based on an analysis of

medical improvement that is supported by substantial evidence in

the record. On remand, Gudim’s medical records since June 30,

2003, should be reviewed to determine whether he has medically

improved, and if so, whether his functional capacity is now such

that he can work. 

Conclusion

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

the decision of the Commissioner to terminate his benefits

(document no. 8) is granted. The Commissioner’s motion for an

order affirming the decision (document no. 9) is denied.

The court shall enter judgment accordingly and close the

case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 25, 2006

cc: D. lance Tillinghast, Esquire

David L. Broderick, Esquire

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