Dufresne v. US Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael Dufresne,
Claimant
v. 	Case No. 19-cv-636-SM
Opinion No. 2020 DNH 021
Andrew Saul, Commissioner,
Social Security Administration,
Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Michael Dufresne, moves to reverse or vacate the Commissioner’s
decision denying his applications for Disability Insurance
Benefits under Title II of the Social Security Act and
Supplemental Security Income Benefits under Title XVI. 	See 42
U.S.C. §§ 423, 1381-1383c (collectively, the “Act”). 	The
Commissioner objects and moves for an order affirming his
decision.
For the reasons discussed, claimant’s motion is granted to
the extent he seeks a remand for further proceedings, and the
Commissioner’s motion is denied.
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Factual Background
I. 	Procedural History.
In June of 2015, claimant filed applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”), alleging that he was disabled and had been unable to
work since November 15, 2009. 	Claimant was 40 years old at the
time and had acquired sufficient quarters of coverage to remain
insured through December 31, 2014.1 	Claimant’s applications were
denied and he requested a hearing before an Administrative Law
Judge (“ALJ”).
In February of 2017, an ALJ held a hearing at which
claimant and a vocational expert testified. 	Two months later,
the ALJ issued his written decision, concluding that claimant
was not disabled. 	Claimant then requested review by the Appeals
Council. 	That request was granted and after review, the Council
remanded the matter to the ALJ for a new hearing and additional
findings. 	Admin. Rec. at 192-94 (noting that the “record
indicates that the claimant has the severe impairment of a
1 	As the ALJ noted, claimant’s applications for benefits
require an inquiry into his disability status during two time
periods. 	The first, relating to his application for DIB
benefits under Title II, runs from his alleged onset date
through his date last insured. 	The second, relating to his
application for SSI under Title XVI, runs from his alleged onset
date through the date of the ALJ’s decision. 	See Admin. Rec. at
87.
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fistula, which leaks fecal matter on an ongoing basis, but the
residual functional capacity assessment contains no limitations
that would correspond with this impairment”) (emphasis
supplied).
A second hearing was held before the ALJ on August 9, 2018,
at which claimant, a vocational expert, and two medical experts
testified. 	In September of 2018, the ALJ issued a second
unfavorable decision, concluding that claimant was not disabled
at any time from his alleged onset date through the date of the
ALJ’s decision. 	Claimant again requested review by the Appeals
Council. 	That request was denied. 	Accordingly, the ALJ’s
denial of claimant’s applications for benefits became the final
decision of the Commissioner, subject to judicial review.
Subsequently, claimant filed a timely action in this court,
asserting that the ALJ’s decision is not supported by
substantial evidence.
Claimant then filed a “Motion for Order Reversing Decision
of the Commissioner” (document no. 8). 	In response, the
Commissioner filed a “Motion for an Order to Affirm the
Commissioner’s Decision” (document no. 10). 	Those motions are
pending.
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II. 	Factual Background.
A detailed factual background can be found in claimant’s
Statement of Material Facts (document no. 8-1) and the
Commissioner’s Statement of Omitted Facts (document no. 11).
Those facts relevant to the disposition of this matter are
discussed as appropriate.
Standard of Review
I. 	“Substantial Evidence” and Deferential Review.
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 and credibility
determinations made by the Commissioner are conclusive if
supported by substantial evidence. 	See 42 U.S.C. §§ 405(g),
1383(c)(3). 	See also Irlanda Ortiz v. Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991). 	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). 	Importantly,
then, it is something less than a preponderance of the evidence.
So, the possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding
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from being supported by substantial evidence. 	See Consolo v.
Federal Maritime Comm’n., 383 U.S. 607, 620 (1966). 	See also
Richardson v. Perales, 402 U.S. 389, 401 (1971).
II. 	The Parties’ Respective Burdens.
An individual seeking SSI and/or DIB 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.” 	42
U.S.C. § 423(d)(1)(A). 	See also 42 U.S.C. § 1382c(a)(3)(A).
The Act places a heavy initial burden on the 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, the claimant must prove, by a preponderance
of the evidence, that his impairment prevents him from
performing his former type of work. 	See Manso-Pizarro v.
Secretary of Health & Human Services, 76 F.3d 15, 17 (1st Cir.
1996); Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985). 	If
the 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, in
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light of his age, education, and prior work experience. 	See
Vazquez v. Secretary of Health & Human Services, 683 F.2d 1, 2
(1st Cir. 1982). 	See also 20 C.F.R. §§ 404.1512, 404.1560,
416.912, and 416.960.
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the claimant’s testimony or that of
other witnesses; and (3) the 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 v. Secretary of Health & Human Services, 690 F.2d 5,
6 (1st Cir. 1982). 	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.
42 U.S.C. § 423(d)(2)(A). 	See also 42 U.S.C. § 1382c(a)(3)(B).
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With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm his
decision.
Background - The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory
five-step sequential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920. 	See generally Barnhart v. Thomas, 540
U.S. 20, 24 (2003). 	Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since his alleged onset of disability: November 15, 2009.
Admin. Rec. at 15. 	Next, he concluded that claimant suffers
from the following severe impairments: “substance abuse,
depressive disorder NOS, panic disorder with agoraphobia,
fistula.” 	Id. 	Next, the ALJ concluded that if claimant stopped
his alcohol abuse, he would not have an impairment or
combination of impairments that meet or medically equal any of
the impairments listed in Part 404, Subpart P, Appendix 1.
Admin. Rec. at 16-19. 	Claimant does not object to any of those
findings.
Next, the ALJ concluded that if claimant stopped the
alcohol abuse, he would retain the residual functional capacity
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(“RFC”) to perform the exertional demands of “light” work,
subject to the following limitations:
he [can] do no more than frequent climbing of ramps
and stairs and never climb ladders, ropes, or
scaffolds. 	He [can] do no more than occasional
stooping, kneeling, crouching, and crawling. 	The
claimant is limited to performance of simple,
repetitive tasks. 	He can have no more than occasional
changes in the work environment. 	He can have no
interaction with the general public. 	He can have no
more than occasional changes in work demands. 	He
cannot travel to new work sites.
Id. at 19. 	In light of those restrictions, the ALJ concluded
that even if claimant stopped the alcohol abuse, he would not be
capable of performing any past relevant work. 	Id. at 24. 	See
also Id. at 74-75 (vocational expert’s testimony about
claimant’s work history as an assembler/fitter, order clerk,
order picker, shipping clerk, and forklift operator).
At the final step of the analysis, the ALJ considered
whether there were any jobs in the national economy that
claimant might perform – again, assuming he were to stop abusing
alcohol. 	Relying upon the testimony of the vocational expert,
the ALJ concluded that, notwithstanding claimant’s exertional
and non-exertional limitations, “if the claimant stopped the
substance use, he would be capable of making a successful
adjustment to work that exists in significant numbers in the
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national economy.” 	Id. at 25. 	Consequently, the ALJ concluded
that “because the substance use disorder is a contributing
factor material to the determination of disability, the claimant
has not been disabled within the meaning of the Social Security
Act at any time from the alleged onset date through the date of
this decision.” 	Id.
Discussion
I. 	Claimant’s Assertions.
Claimant challenges the ALJ’s decision on three grounds,
asserting that he erred by: (a) failing to address three
vocational opinions that employers would not tolerate an
employee with open fistulas that leak stool and gas in the
workplace;2 (b) giving great weight to the testimony of medical
expert Dr. Claiborn without explaining why he did not adopt Dr.
Claiborn’s opinions in their entirety; and (c) failing to
discuss or weigh the opinions of examining psychologist Dr.
Pike.
Because the ALJ did not adequately address the vocational
impact of claimant’s fistulas – that is, whether employers would
2 	Dorland’s Illustrated Medical Dictionary (2005) defines
“fistula” as “an abnormal passage or communication, usually
between two internal organs, or leading from an organ to the
surface of the body.”
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actually hire someone with claimant’s condition – this matter
must be remanded for further consideration.
II. 	Claimant’s Medical Condition.
Perhaps because of his panic disorder and agoraphobia,
claimant appears to have obtained much of his medical treatment
on an emergency basis, rather than planned and effective
treatment for his physical ailments. 	Nevertheless, medical
records show that at least as early as 2009, claimant suffered
from sigmoid diverticulitis, with gastrointestinal bleeding.
See, e.g., Admin. Rec. at 497, 553. 	At some time thereafter, he
developed three or four abdominal fistulas. 	By June of 2015,
claimant’s medical records indicate that he had three abdominal
“wounds” to his lower abdomen, at least one of which was
draining stool. 	Id. at 529. 	Claimant reported that he obtained
treatment at an emergency room in March of 2012, but the wounds
never healed and, in fact, had gotten worse over time. 	Id. at
532. 	He told the examining advanced nurse practitioner that
“drainage fluctuates from day to day” and “he has even seen
food, rice, come out of one of the wounds.” 	Id. 	In September
of 2016, claimant again presented to an emergency room. 	He
underwent a CT scan and was diagnosed with a “fistula or a tract
that communicates from [his] colon to [his] skin (colocutaneous)
that is new and a continued fistula that communicates from [his]
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colon to [his] bladder (colocesical).” 	Id. at 585. 	He was told
that his condition needs to be managed by a surgical specialist.
Id.
In September of 2016, claimant was examined by Dr. Leandro
Feo, who reported a “colocutaneous fistula with moderate to high
output that required surgical correction” in the form of “major
abdominal surgery with the possibility of a colostomy.” 	Id. at
854. 	Dr. Feo also noted that claimant’s “current condition
interferes with his lifestyle” and his “health issue has become
a priority and needs to be addressed in order for him to
maintain function on a daily basis.” 	Id. 	See also Id. at 837
(September of 2016 examination at Catholic Medical Center notes
“multiple colocutaneous fistulas” which “have been present for
about 7 years and worsened a couple of years ago.”); 590
(October of 2016, Manchester Community Health Center notes,
observing “LL abdomen with fistula leaking stool”); 1498 (March
of 2018 visit to Surgical Care Group at which it was observed
that claimant’s fistula had “moderate output with recurrent
abscess.”).
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Prior to undergoing surgery in August of 2017,3 claimant had
been placing toilet paper in and around his wounds in order to
contain the draining stool and suppress the attendant odor.
See, e.g., Admin. Rec. at 838 (Catholic Medical Center treatment
notes). 	The treating medical professional noted that “the
problem is generally described as inadequately controlled” and
advised claimant “to use either an infant scented diaper or
feminine hygiene pad to assist with odor and drainage.” 	Id. at
841. 	At the hearing conducted on February 7, 2017, claimant
testified that:
I go through a lot of toilet paper a day and I’m
always going to the restroom a lot and I’m always
wearing a jacket. 	I never take the jacket off because
if I’m in a meeting and there’s people around me, I
always – my stomach, it’s like if you have a bag,
it’ll pass gas. 	My stomach will do the same thing.
It’s not like, it’s not like passing gas where you can
feel like you’re going to fart. 	This is like it just
happens, so I wear a jacket and I always have it
zipped up or be prepared or I’ll try and run off.
Admin. Rec. at 63-64.
3 	Corrective surgery was initially recommended to claimant in
or around 2012. 	It was, however, significantly delayed because
his mental impairments made him too frightened to seek
treatment. 	See, e.g., Admin. Rec. at 66. 	Then, once he was
persuaded to pursue surgical treatment, he was suffering from an
ongoing infection stemming from a dental abscess. 	He was
advised that, prior to any abdominal surgery, his infection
would have to be resolved. 	That, in turn, required the
extraction of numerous teeth, including all of those on the top
of his mouth. 	See, e.g., Admin. Rec. at 56, 70-71.
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The problem presented here is this: the ALJ supportably
concluded that if claimant were to discontinue his alcohol
abuse, he would be capable of performing the physical
requirements of light work. 	But, the ALJ did not address the
impact that claimant’s fistulas would have on his employability
– that is, plaintiff is capable of substantial gainful activity
only if employers in general would actually be willing to hire
someone with the unavoidable effects and physical manifestations
of claimant’s physical condition.
To be sure, the ALJ did briefly mention claimant’s fistulas
and leaking stool. 	But, he dismissed them as not impacting
claimant’s ability to work, citing one of claimant’s medical
records for the proposition that “claimant noted that the
fistula did not affect his work.” 	Admin. Rec. at 20. 	The
medical record cited for that proposition relates to care that
was provided in September of 2016 – nearly seven years after
claimant had last worked. 	It’s evidentiary value is minimal at
best (indeed, it is entirely possible that the medical care
provider meant that claimant’s fistulas “did not affect his
ability to work” because she knew that claimant did not work).
See Admin. Rec. at 842. 	The ALJ also noted that claimant “was
able to perform physical activities as long as he covered his
fistulas with protective dressings.” 	Id. at 21. 	Again,
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however, claimant’s physical abilities are not questioned. 	It
is his ability to secure employment despite the presence of open
fistulas that leak stool and intestinal gas in the work
environment and the availability of work to someone with that
condition.
There is certainly evidence in the record pointing to the
conclusion that, despite claimant’s physical abilities,
employers would be very reluctant (if not highly unlikely) to
actually hire him. 	For example, at the February, 2017, hearing,
the vocational expert testified as follows:
Question: 	He has open wounds on his abdomen seeping
feces and I'm wondering what impact that has on the
job base.
Answer: 	Well, I mean one -- I don't want to make a
medical determination, I can only say like, you know,
people with ostomies have worked in other jobs. 	I
mean that doesn't preclude anybody from working as
long as you take care of it, you know, and deal with
the odor issues, so it - as long as it’s medically
taken care of, it shouldn’t be a problem.
Q. 	Well, at this point, it’s taken care of with wads
of toilet tissue, so –
A. 	Well, I mean I would assume that that would create
a smell which could create a problem with, with
maintaining employment.
Admin. Rec. at 78. 	Similarly, at the hearing held on August 9,
2018, a different vocational expert testified that a person with
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fistulas that discharge fecal matter and give off an odor would
not be tolerated in the workplace:
Question: 	Thank you. Ms. Gerrish, I just plain forgot
to ask and I apologize, we, we have if we have a
hypothetical person who is otherwise capable of the
light exertional hypothetical that His Honor gave but
that person has a colorectal abscess, a fistula that
literally exudes odors and sometimes fecal material
in, in the setting of the workplace, would that be
tolerated in an ordinary workplace?
Answer: I don't believe it would, Attorney Jackson.
Id. at 131-32. 	Finally, claimant submitted the affidavit of
David Meuse, a vocational expert. 	Mr. Meuse testified that
claimant’s condition precluded all work. 	More specifically, he
testified that those jobs originally identified by the
vocational expert as representative employment were all
explicitly excluded by, among other things, health and hygiene
concerns related to claimant’s condition:
I have been informed that the vocational expert at Mr.
Dufresne’s hearing on February 7, 2017 testified that
an individual with Mr. Dufresne’s limitations could
perform the following jobs:
- 	Dishwasher/Kitchen Helper, DOT# 318.687-010
- 	Janitor, Cleaner/Industrial, DOT# 381.687-018
- 	Packer, Hand, DOT# 920.587-018
- 	Information Clerk, DOT# 237.367-018
- 	Assembler, Small Parts (specifically, Type-Bar-
and-Segment), DOT# 706.684-026
- 	Laundry Worker, DOT# 302.685-010
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It is my professional opinion that Mr. Dufresne’s open
wounds that continually seep fecal matter preclude all
work. 	On an ongoing basis, no employer will tolerate
the smell, the necessity for frequent cleaning breaks,
and the health hazard presented by his condition. 	In
addition, there are specific problems associated with
each of the positions identified by the vocational
expert.
The Dishwasher position is precluded because of the
risk of dishware, cookware, and silverware being
contaminated by fecal matter and the associated health
risks.
The Laundry position is also precluded by the risk of
contaminating household articles with fecal matter and
the associated health risks.
According to the DOT definition of Hand Packer, an
individual in this job may package bakery items, bulk
food, meat (including sausage, wieners, dried beef,
and sliced bacon), and candy. 	Again, concerns over
contamination with fecal matter and associated health
risks preclude this position.
I have been told that the vocational expert testified
that the Small Parts Assembler position would be
precluded because of the proximity to other bench
workers. 	I agree with this assessment. 	The risk of
exposure to fecal matter and the odor of intestinal
gas on an ongoing basis would be intolerable to the
co-workers. 	Further, Mr. Dufresne’s social anxiety
would also preclude such close interaction.
Admin. Rec. at 441, Affidavit of David W. Meuse at paras. 9-13.
That evidence was unrebutted, and it is uncontested by the
Commissioner. 	So, while the Commissioner is correct in noting
that an ALJ is not obligated to discuss all evidence in the
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record, material evidence of this sort – strongly suggesting
that claimant’s condition makes him actually unemployable -
cannot be ignored. 	As this court has previously noted:
because the ALJ’s decision completely failed to
mention any of the evidence [on which claimant
relies], it is impossible to determine whether this
evidence was considered and implicitly discredited or
instead was simply overlooked. 	See Cotter v. Harris,
642 F.2d 700, 705 (3d Cir. 1981) (“[W]e need from the
ALJ not only an expression of the evidence s/he
considered which supports the result, but also some
indication of the evidence which was rejected. 	In the
absence of such an indication, the reviewing court
cannot tell if significant probative evidence was not
credited or simply ignored.”).
Lord v. Apfel, 114 F. Supp. 2d 3, 14 (D.N.H. 2000) (emphasis
supplied).
Conclusion
In an otherwise thorough and thoughtful opinion, the ALJ
neglected to discuss substantial (and seemingly uncontroverted)
evidence suggesting that the physical manifestations of
claimant’s condition might well render him unable to secure
gainful employment (notwithstanding his physical ability to
perform a range of light work).
For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document no. 8) is granted to the
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extent he seeks a remand for further proceedings. 	The
Commissioner’s motion to affirm his decision (document no. 10)
is denied.
Pursuant to sentence four of 42 U.S.C. § 405(g), the
decision of the ALJ dated September 14, 2018, is vacated and
this matter is hereby remanded for further proceedings
consistent with this order. 	The Clerk of Court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
February 18, 2020
cc: 	Alexandra M. Jackson, Esq.
Daniel S. Tarabelli, Esq.
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