UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Wayne Kenison

v. Civil No. 08-cv-454-JD

Opinion No. 2009 DNH 064

Michael J. Astrue, Commissioner,

Social Security Administration

O R D E R

Wayne Kenison seeks review, pursuant to 42 U.S.C. § 405(g),

of the Commissioner’s decision that he was not entitled to Social

Security disability benefits before May 25, 2004, because he was

capable until then of returning to his past relevant work. 

Kenison contends that the Administrative Law Judge (“ALJ”) erred

in failing to find that he was disabled as of January 1, 2002. 

The Commissioner moves to affirm the decision.

Background

Wayne Kenison was born in May of 1947. He is a high school

graduate. He previously worked as a furniture salesman, a farm

hand, a clerk at a hardware store, a fish processor, the owner

and operator of a floor covering store, the owner and operator of

a greenhouse, and a machine tool operator. In October of 2003,

Kenison was attending college.

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Kenison was seen by a physician’s assistant on December 11,

2000, for left shoulder and arm pain. He was prescribed Motrin

and was sent for an x-ray. Kenison saw Dr. FitzMorris on January

8, 2001, for the same shoulder and arm pain. Dr. FitzMorris

concluded that Kenison should take Vioxx, used to relieve

symptoms of arthritis, and avoid activities that made the pain

worse. On February 5, 2001, Kenison reported to Dr. FitzMorris

that the pain was essentially resolved.

In July of 2001, Kenison saw Dr. Ruediger for chronic low

back pain that began in 1995 when he hurt his back while working

in a machine shop. Dr. Ruediger found that Kenison was

experiencing some back spasms and recommended that he continue

with Ibuprofen, take Flexeril for relief of muscle spasms, avoid

lifting more than ten pounds, and avoid bending, stooping, and

twisting at the waist. A Functional Capacity Evaluation done on

July 19, 2001, found that Kenison could perform light duty work,

lifting twenty pounds infrequently and ten pounds or less

frequently, and that he should avoid twisting, rotation, and

bending. In August of 2002, Dr. Ruediger noted that Kenison was

doing fine other than some difficulty with muscle spasms.

On February 26, 2004, Kenison had an x-ray taken of his

lumbar spine that showed spurring and mild narrowing of the L4-5

disc space. An MRI done in June of 2004 also found narrowing of

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the L4-5 disc space with a small disc herniation. In July of

2004, a non-examining physician concluded that Kenison could

frequently lift ten pounds, occasionally lift twenty pounds, and

could sit, stand, and walk for six hours in an eight hour day but

that he could only occasionally engage in activities requiring

certain postures such as bending or crawling.

Kenison applied for disability benefits on October 10, 2003,

when he was fifty-six years old. His claim was denied initially,

and he sought a hearing before an ALJ. The hearing was held on

August 17, 2005. Kenison was represented by counsel and

testified at the hearing. A vocational expert also testified

about Kenison’s various past jobs. The ALJ issued his decision

on January 27, 2006. He concluded, based on the MedicalVocational Guidelines, that Kenison was disabled as of May 24,

2004. The ALJ found that prior to that time, Kenison retained

the functional capacity to perform light work and could return to

his past work as a hardware store clerk and a fish processor. 

Kenison’s request for review was denied by the Appeals Council on

September 11, 2008, making the ALJ’s decision the final decision

of the Commissioner.

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Discussion

Kenison contends that the ALJ erred in finding that he could

return to his prior work as a hardware clerk because the

vocational expert classified that job at the heavy exertional

level when the ALJ’s functional capacity assessment limited

Kenison to light work. Kenison also contends that the ALJ erred

in finding that he could return to his former work as a fish

processor because that job occurred more than fifteen years

before the hearing and was not light work. The Commissioner

argues that the ALJ properly found that Kenison could perform his

previous work as a hardware store clerk and a fish processor, in

the manner in which he actually did those jobs.

 The court’s review under § 405(g) is “limited to

determining whether the ALJ deployed the proper legal standards

and found facts upon the proper quantum of evidence.” Nguyen v.

Chater, 172 F.3d 31, 35 (1st Cir. 1999). If the ALJ’s factual

findings are supported by substantial evidence in the record,

they are conclusive, even if other evidence would support a

contrary conclusion. Id.; Tsarelka v. Sec’y of Health & Human

Servs., 842 F.2d 529, 535 (1st Cir. 1988). 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).

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A five-step process is used to evaluate an application for

social security benefits. 20 C.F.R. § 404.1520(a)(4). In this

case, the analysis concluded at step four when the ALJ found that

Kenison could return to his former work as a hardware clerk or a

fish processor, as he performed those jobs. The applicant bears

the burden through the first four steps to show that he is

disabled. Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir.

2001). 

At step four, the ALJ first assesses the claimant’s residual

functional capacity. § 404.1520(a)(4). Then, the ALJ compares

the claimant’s residual functional capacity with the physical and

mental demands of work that he has done in the past fifteen

years. 20 C.F.R. § 404.1560(b). The demands of past work may be

based on the demands of the job as it is generally performed in

the national economy or on the demands of the actual job as

described by the claimant. § 404.1560(b)(2).

In this case, the ALJ found that Kenison was capable of

light work until May 25, 2004, when worsening of his condition

restricted him to sedentary work. Light work is defined in the

social security regulations as follows:

Light work involves lifting no more than 20 pounds at a

time with frequent lifting or carrying of objects

weighing up to 10 pounds. Even though the weight

lifted may be very little, a job is in this category

when it requires a good deal of walking or standing, or

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when it involves sitting most of the time with some

pushing and pulling of arm or leg controls. To be

considered capable of performing a full or wide range

of light work, you must have the ability to do

substantially all of these activities.

§ 404.1567(b). In addition, because “frequent lifting or

carrying requires being on one’s feet up to two-thirds of a

workday, the full range of light work requires standing or

walking, off and on, for a total of approximately 6 hours of an

8-hour workday. Sitting may occur intermittently during the

remaining time.” Social Security Ruling 83-10, 1983 WL 31251, at

*5-6; accord Haynes v. Barnhart, 416 F.3d 621, 627 n.1 (7th Cir.

2005). 

Kenison described his hardware clerk work as a job in which

he worked eight hours each day in a five day week. He reported

that each day he would walk for eight hours, stand for eight

hours, and sit for two hours. The heaviest weight he lifted was

less than ten pounds. Kenison also explained that he was

relieved of work that required repetitive motion, lifting,

bending, stooping, twisting, and turning. In contrast to

Kenison’s description of his actual job, the vocational expert

classified a hardware clerk position as requiring work at the

heavy exertional level.

Kenison argues that because the vocational expert classified

a hardware clerk position as heavy work and he was limited to

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light work, the ALJ erred in finding he was able to work as a

hardware clerk until May 25, 2004. As the Commissioner points

out, however, the ALJ did not find that Kenison could work as a

hardware clerk as that job generally exists in the national

economy. Instead, the ALJ concluded that Kenison could do the

actual job he had previously.

Alternatively, Kenison contends that he could not do the

actual hardware clerk job after May of 2002 because it required

him to stand for eight hours each day, which was beyond his

capacity for light work. Although Kenison indicated in his

disability report that his hardware clerk job required walking

and standing, each, for eight hours every day and sitting for two

hours every day, he also stated that he only worked eight hours

each day. Therefore, Kenison’s description is reasonably

interpreted to mean that during an eight-hour work day, he would

walk and stand during the entire day interspersed with two-hours

of sitting. As such, Kenison’s description of the hardware clerk

job, as he performed it, is consistent with his assessed ability

to do light work before May 24, 2004, and provides substantial

evidence to support the ALJ’s finding that Kenison could return

to that previous work.

Kenison’s challenge to the ALJ’s finding that he could

return to his previous work as a fish processor appears to be

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well-taken. That issue need not be resolved here, however,

because the ALJ properly found that Kenison could return to his

previous work as a hardware clerk. Therefore, the Commissioner’s

decision that Kenison was not disabled before May 25, 2004, is

affirmed.

Conclusion

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

(document no. 12) is denied. The Commissioner’s motion to affirm

(document no. 13) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 7, 2009

cc: Karen B. Fitzmaurice, Esquire

Francis M. Jackson, Esquire

T. David Plourde, Esquire

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