UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Gary D. Dodge

v. Civil No. 05-cv-249-JD

Jo Anne B. Barnhart, Commissioner,

Social Security Administration

O R D E R

Gary D. Dodge brings this action pursuant to 42 U.S.C. § 

405(g), seeking judicial review of the decision by the

Commissioner of the Social Security Administration, denying his

application for social security benefits and supplemental

security income. Dodge contends that the decision must be

reversed because substantial evidence does not support the

residual functional capacity found by the Administrative Law

Judge (“ALJ”) Robert Klingebiel, due to the ALJ’s failure to

consider or understand medical evidence from Dodge’s treating

physicians, his failure to develop the record, and his failure to

pose appropriate hypothetical questions to the vocational expert. 

The Commissioner moves to affirm the decision.

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Background

Gary D. Dodge injured his back at work on April 23, 2001. 

The injury caused lower back pain and pain primarily in his right

leg and both hands. He was seen in the emergency room on May 1,

2001, because of back pain. At that time, Dr. George McLaren

noted that Dodge was morbidly obese, did not appear to be in

significant pain, and was limited by the size of his legs and

abdomen in his ability to do leg raising, while other mobility

was not limited. A subsequent x-ray showed no abnormalities.

On May 10, 2001, Dodge saw Dr. Taylor Caswell and reported

that he was taking Flexeril and Tylenol for pain in his back and

right leg. Dr. Caswell found no abnormalities on examination and

concluded that Dodge’s complaints of pain indicated a possible

herniated disc or muscular low back problems. He prescribed

medication to reduce swelling. A CT scan taken on June 1, 2001,

showed a disc bulge with no narrowing or herniation. Dr. Caswell

explained to Dodge that surgery was not needed. He subsequently

diagnosed a lumbar sprain with radiculopathy and referred Dodge

for a lumbar epidural steroid injection. Dodge had the injection

in July of 2001. At the end of July, Dr. Caswell referred Dodge

for physical therapy.

Dodge changed primary care physicians in October of 2001,

when he saw Dr. Glen Adams. Despite Dodge’s complaints of low

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back pain radiating into his legs and numbness in his left leg,

Dr. Adams found no abnormalities and only mild tenderness in his

lower back. He described Dodge’s prognosis as fair, recommended

that he continue physical therapy, and kept him out of work. 

Dodge continued with physical therapy.

Dr. Adams saw Dodge again on November 7, 2001, for

continuing complaints of low back pain radiating into his legs,

numbness in his left leg, and cramping in his feet. Dodge

reported that he had been able to unload a pickup truck load of

firewood and stack it, although the work caused him pain. He

also reported that he was uncomfortable when standing or sitting

for prolonged periods and needed to be able to change position. 

Dr. Adams noted that Dodge was very obese and found no

explanation for his complaints. He recommended that Dodge

continue with physical therapy. 

Dodge continued physical therapy and saw Dr. Adams during

2002. He was also treated at the Spine Center without

significant improvement in his symptoms. At one appointment,

Dodge complained of ringing in his left ear and was evaluated in

June of 2002 for tinnitus. His ear examination showed some

hearing loss at high frequencies but was otherwise normal. Dr.

Adams assessed Dodge as having chronic back pain.

At the request of his attorney, Dodge was examined by Dr.

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Victor Gennaro on November 11, 2002. Dodge was able to bend

forward only a few degrees but the remainder of his examination

was normal. Dr. Gennaro noted Dodge’s weight and that he

appeared to be generally deconditioned. He referred Dodge for

further testing to see if the source of his pain could be

determined. The test results were consistent with previous

findings. Dr. Gennaro told Dodge that weight loss surgery would

be a good idea because substantial weight loss and exercise would

likely resolve most of his problems. 

In January of 2003, Dodge was interviewed by a social worker

in preparation for gastric bypass surgery. The social worker

found that Dodge relied on denial about his eating habits and

obesity and was unrealistic about a successful postoperative

recovery. Dodge continued to see Dr. Adams and Dr. Gennaro

through 2003. Neither his complaints nor the doctors’

evaluations changed during that time. 

On February 7, 2003, an agency physician reviewed Dodge’s

records and completed a residual functional capacity assessment,

concluding that Dodge could perform work at the light level and

that he could sit, stand, or walk for a total of six hours in an

eight hour day with alterations in position. The agency

physician found no limitations in pushing or pulling, limited

other activities to occasional, and found that Dodge should avoid

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concentrated exposure to noise. Dodge had a formal residual

functional capacity assessment done on July 17, 2003. He

demonstrated the ability to lift up to twenty pounds occasionally

in three of five categories and fifteen pounds in the other two,

and up to ten pounds frequently, to stand and walk occasionally

for fifteen to thirty minutes at a time, and to sit for up to two

hours at a time. Lifting with his left arm was limited, but

other activities were not limited beyond being able to do them

occasionally. The evaluator noted that Dodge would be able to do

more than he had demonstrated during the test.

On December 16, 2003, Dr. Gennaro stated that Dodge could

not return to his former work as a mechanic but that he was

probably able to work at a light or sedentary level on a full

time basis if he had an opportunity to sit and rest during the

day. In February of 2004, however, Dr. Gennaro provided a more

limited assessment of Dodge’s abilities. On February 25, 2004,

Dr. Adams completed a residual functional assessment of Dodge. 

He stated that Dodge could occasionally lift only ten pounds and

could frequently lift less than ten pounds. He stated that Dodge

could stand or walk for two hours during an eight-hour work day

and that he could sit for six hours. He found that Dodge was

limited in his ability to reach and that he should avoid heights. 

In response to an inquiry from Dodge’s attorney, Dr. Gennaro

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wrote on February 27, 2005, that based on the formal assessment

done in July of 2003, Dodge would be limited to lifting fifteen

pounds or less over any significant period. He interpreted the

assessment to indicate that Dodge could walk and stand for up to

two hours in an eight hour day. He also stated that Dodge was

limited in a variety of activities, particularly overhead

reaching.

Dodge filed for social security benefits on October 22,

2002, alleging an inability to work since April 23, 2002, due to

a back injury. His application was denied and then went directly

to the hearing stage of the administrative process. ALJ

Klingebiel held a hearing on March 3, 2004. At the hearing,

Dodge testified that his pain had worsened since his injury in

April of 2001 and that he did not agree with the results of the

formal residual functional capacity assessment that was done in

July of 2003. He said that he was able to watch television,

read, make meals, and feed wild turkeys, which required him to

carry a gallon of milk or two pounds of turkey feed. He also

said that he could drive, including a four-wheeler which he used

to get to a fishing spot.

A vocational expert also testified at the hearing. The ALJ

asked what work Dodge would be able to do if he could lift no

more than twenty pounds, could not be exposed to loud noise, and

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needed a sit or stand option. The vocational expert testified

that Dodge could not return to his work as a mechanic, but that

he could do work as a bench worker, a packer, a small parts

assembler, and a machine operator and he gave the Dictionary of

Occupational Titles listing for each area of work. In response

to questions from Dodge’s counsel, the vocational expert included

the sedentary job of jewel stringer.

ALJ Klingebiel issued his decision on June 12, 2004. He

described Dodge as a fifty-four year old man, with an eighth

grade education and no skills that were transferable from his

former work. He found that Dodge could not return to his former

work but that he retained the ability to lift twenty pounds

occasionally and ten pounds frequently, and to sit, stand, and

work for a total of six hours in an eight-hour work day as long

as he had the ability to alternate positions as needed. Based on

that assessment and the jobs identified by the vocational expert

at the hearing, the ALJ concluded that Dodge was not disabled.

On appeal, the Appeals Council concluded that the ALJ’s

finding that Dodge was able to do work at the light level was

supported by substantial evidence in the record. The Appeals

Council affirmed the ALJ’s decision that Dodge was not disabled

before March 5, 2004, when Dodge turned fifty-five. Because of

his age as of March 5, 2004, however, the Appeals Council

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1Disability insurance benefits are governed by Part 404 of

Title 20 while supplemental security income is governed by Part

416 of Title 20. See Barnhart v. Thomas, 540 U.S. 20, 24 (2003);

Mills v. Apfel, 244 F.3d 1, 2 n.1 (1st Cir. 2001). 

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determined Dodge was disabled under the Medical-Vocational

Guidelines rule after that date. 

Discussion

The court must uphold a final decision of the Commissioner

denying benefits unless the decision is not supported by

substantial evidence or was based on an incorrect legal standard. 

Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001); Manso-Pizarro

v. Sec’y of Healthy & Human Servs., 76 F.3d 15, 16 (1st Cir.

1996). 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

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

Dodge’s application was denied at step five of the

sequential evaluation process set forth in 20 C.F.R. § 404.1520

and § 416.920.1 At step five, the Commissioner has the burden to

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show that despite the applicant’s severe impairment, he retained

the residual functional capacity to do work other than his prior

work and that work the applicant can do exists in significant

numbers in the relevant economies. See Seavey, 276 F.3d at 5;

Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). The

opinion of a vocational expert constitutes substantial evidence

to support the Commissioner’s decision at step five as long as

the hypothetical circumstances posed to the vocational expert

accurately reflected the claimant’s residual functional capacity. 

Rose v. Sec’y of Health & Human Servs., 35 F.3d 13, 19 (1st Cir.

1994); Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374

(1st Cir. 1982).

Dodge argues that substantial evidence does not exist in the

record to support the ALJ’s determination that he is able to do

work at the light level. In particular, Dodge points to certain

findings in the July 2003 assessment and the opinions of his

treating physicians, Dr. Adams and Dr. Gennaro, that he believes

show he was not capable of light work; he asserts that the

Dictionary of Occupational Titles descriptions of the jobs

identified by the vocational expert conflict with the ALJ’s

findings; he contends that the ALJ was obligated to contact his

treating physicians to clarify their opinions, and he contends

that the ALJ’s hypothetical to the vocational expert does not

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provide substantial evidence because it was based on an erroneous

capacity assessment. The Commissioner disputes Dodge’s

interpretation of the record.

An assessment of an applicant’s residual functional capacity

determines the applicant’s ability to do work-related activities

on a sustained basis, meaning eight hours each day and five days

each week. See Hynes v. Barnhart, 379 F. Supp. 2d 220, 224

(D.N.H. 2004) (quoting SSR 96-8p, 1996 WL 374184, at *1 (July 2,

1996)). The assessment is an administrative decision, made by

the ALJ on behalf of the Commissioner, that is based on a

consideration of record evidence, including the opinions and

statements of the applicant’s medical sources. Id. An ALJ, as a

lay person, is not permitted to interpret raw medical data but

instead must rely on the opinions of professionals unless the

record shows little impairment and would allow a commonsense

assessment. Manso-Pizarro, 76 F.3d. at 17. Therefore, if the

ALJ disagrees with a treating physician’s opinion or assessment,

the ALJ must provide a clear explanation of the evidentiary basis

of his contrary determination. See Hynes, 379 F. Supp. 2d at

224.

Dodge is correct that the opinions of his treating

physicians as to his residual functional capacity conflict with

the residual functional capacity assessment done in July of 2003

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2Although the vocational expert identified work at the

sedentary level that Dodge could do, the ALJ did not make any

findings as to Dodge’s ability to do that job. Therefore, that

evidence is not pertinent to the Commissioner’s decision. It is

unfortunate that the ALJ did not address that part of the

evidence, which might have saved the additional time and expense

of a remand where the record indicates strongly that Dodge was

not disabled.

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and with the ALJ’s finding that he was capable of work at the

light level. Although the ALJ cited the part of the

administrative record that contained the treating physicians’

opinions, he did not provide any reasons or explanation for

rejecting those opinions. As such, the ALJ’s finding on residual

functional capacity is incomplete and not supported by

substantial evidence.2 

In addition, there appears to be a conflict between the DOT

descriptions of the jobs identified by the vocational expert,

which entail at least moderate noise levels, and the ALJ’s

finding that Dodge “should avoid environments in which he would

be exposed to noise.” Decision, finding #6. At the hearing, the

ALJ limited his hypothetical to jobs that were not “in a very

noisy factory setting with a lot of loud noises, particularly if

[he] had to interact with other employees.” Trans. at 62. The

ALJ’s finding, however, was more limited, suggesting that Dodge

could not work in environments where he would be exposed to noise

at all. On remand, the ALJ must address the noise issue and

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either explain his finding in more detail to resolve the apparent

conflict or seek additional vocational expert opinion as to jobs

Dodge could do.

Conclusion

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

and remand (document no. 8) is granted. The Commissioner’s

motion to affirm (document no. 10) is denied. The case is

remanded for further administrative proceedings under sentence

four of § 405(g). The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

December 6, 2005

cc: David L. Broderick, Esquire

Karen B. Nesbitt, Esquire

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