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THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC                                                                                                                                                                    SUPERIOR COURT
                                                                                              (FILED: JANUARY 18, 2012)
CARLOS RODRIQUEZ,                                                                             :
Plaintiff                                                                                     :
                                                                                              :                                                                                   CA No. 09-5190
V.                                                                                            :
:
RHODE ISLAND DEPARTMENT OF                                                                    :
HUMAN SERVICES,                                                                               :
Defendant                                                                                     :
DECISION
TAFT-CARTER,  J.    Appellant  Carlos  Rodriquez  (Appellant)  appeals  a  denial  of
medical  assistance                                                                           (MA)  benefits  based  on  disability  issued  by  the  Rhode  Island
Department of Human Services (DHS) on August 7, 2009.   Appellant timely filed this
appeal on September 3, 2009.   This Court has jurisdiction pursuant to R.I. Gen. Laws.
1956 § 42-35-15.
I.
Facts and Travel
On February 16, 2009, Appellant filed his initial application for MA based on
complications arising from the use of a prosthetic leg due to the amputation of his right
leg above the knee, osteoarthritis in his left knee, and carpal tunnel syndrome (CTS).
(Administrative Hearing Decision at 3.); (MA-63, March 9, 2009 at 1.)   Appellant is
currently                                                                                     35  years  old  with  a  ninth  grade  education  and  limited  work  experience.
(Administrative hearing Decision at 3; Tr. at 20.)   Appellant is able to speak English; he
can only read and write in Spanish. (AP-70, March 9, 2009 at 2.)  Other than employment




as a cashier for six months, the Appellant has been unemployed.                                  (Tr. at 20.); (AP-70,
March 9, 2009).
Appellant testified he was receiving MA from DHS before he filed his initial
application on February  16,                                                                     2009.  He  qualified for this  assistance because he was
receiving federal Supplemental Security Income (SSI). Appellant‟s federal benefits case
was closed and his benefits terminated due to excess income. Therefore, Appellant filed
the initial application for benefits with DHS.  (Def.‟s Resp. Br. in Supp. of Agency
Decision at 9.)
In support of his MA application, Appellant submitted an MA-63 physician‟s
evaluation form, an AP-70 Information for Determination of Disability form, and medical
records from Rhode Island Hospital and Capitol Hill Health Center.
Appellant‟s MA-63 form was prepared and signed by his primary care physician
Jorge Gonzalez, MD on March 9, 2009.   (MA-63, March 9, 2009 at 1.)  The MA-63 form
establishes that Appellant suffered a gunshot wound to his right leg on March 25, 1993
when he was seventeen years old.   Appellant‟s right leg was amputated above the knee as
a result of this injury and he has used a prosthetic leg to walk ever since.   Id. at 2.   His
prosthetic device was malfunctioning at the time of his application for MA, causing
increased pain and a progressively worsening condition.   Id.   Appellant was suffering
from a vascular lesion and infection in his right leg, and Dr. Gonzalez recommended
reconstructive surgery and implantation of a new prosthesis.  Id.
The MA-63 form states that Appellant also suffers from back pain and CTS. Dr.
Gonzalez reported that the back pain was caused by the deformity present in Appellant‟s
legs.   Id.   The record demonstrates that Dr. Gonzalez referred Appellant to the Rhode
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Island Hospital Orthopedic Clinic. Dr. Gonzalez also stated that Appellant was suffering
from CTS with “severe bilateral hand and upper extremity pain and numbness.”   Id.   Dr.
Gonzalez prescribed a variety of pain medication for pain management.   Id. at 3.   All of
the prescribed pain medications cause drowsiness and dizziness.  Id.
Dr. Gonzalez noted that Appellant could walk or stand for less than 2 hours out of
an 8 hour workday and that he could reach or bend occasionally.   Appellant is able to sit
for 4 out of 8 hours, lift 5 to 50 pounds and stoop and push or pull objects occasionally.
Id.   Dr. Gonzalez further noted that Appellant has moderately limited mental activities in
all categories listed on the MA-63 form.  Id.
Appellant‟s AP-70 form states he suffers from back pain as well as in his left leg
due to the amputation of his right leg. (AP-70, March 9, 2009 at 1.)   Appellant reports
that he is able to engage in routine household activities such as cooking, washing dishes,
and cleaning for short periods of time.   He occasionally requires assistance.   Id. at 3.
Appellant reports that he does not require assistance when traveling outside of his home
and that he either drives or takes a bus to get around.  Id.
The medical records submitted by Rhode Island Hospital and Capitol Hill Health
Center establish Appellant is suffering from severe tri-compartmental osteoarthritis in his
left leg.  An MRI of his left knee performed on April 21, 2008 shows that there have been
multiple degenerative changes in the left knee and that multiple loose bodies are present
in the knee.                                                                                  (Pl.‟s Br. in Supp. of Reversal, at 3; MRI Left Knee without Contrast, April
21, 2008.)   The problems with his left leg were likely caused by Appellant compensating
for the failing prosthesis in his right leg by putting most of his weight on his left leg.
(Pl.‟s Br. in Supp. of Reversal, at 3; Administrative Hearing Decision at 4.)
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During an examination at the Rhode Island Hospital orthopedic clinic, it was
noted that Appellant had “significant pain and crepitus” throughout his left knee.   The
examining physician noted that the pain Appellant experienced was reproduced by testing
maneuvers,  namely the  flexion  pinch  and  the McMurray Circumduction  Test,1  and
through range of motion testing.                                                                (Rhode Island Hospital Clinic Note, October 30, 2008,
at                                                                                              1.)                                                     Following this examination, the clinic physicians recommended arthroscopic
surgery to remove the loose bodies from Appellant‟s left knee.   Id. at  2.   Appellant
delayed the arthroscopic surgery in order to obtain cardiac clearance.   Clearance was
obtained, however, Appellant never rescheduled the surgery because he did not have
medical insurance and could not afford it.                                                      (Administrative Hearing Decision at 4-5; Pl.‟s
Br. in Supp. of Reversal, at 3-4.)
The medical records also demonstrate that Dr. Gonzalez ordered an EMG of
Appellant‟s right arm in February 2009 to evaluate whether he was suffering from CTS.
The results  of  the EMG establish  Appellant  had a  “right  distal  medial neuropathy
consistent  with  carpal  tunnel  syndrome.”                                                    (RI  Hospital  Preliminary  EMG  Results,
February 25, 2009.)
The Medical Assistance Review Team (MART)2 reviewed the forms and medical
records submitted by Appellant in support of his application.                                   (Administrative Hearing
1 The McMurray Circumduction Test requires an examining physician to rotate a patient‟s
“tibia  on  the  femur  to  determine  injury  to  the  meniscal  structures.”     MEDICAL
ECONOMICS,  PDR  MEDICAL  DICTIONARY  1780  (Marjory Spraycar et al. eds.,  1st ed.
1995).   The flexion pinch involves a flexing of the patient‟s knee to assess pain.   See id.
at 663 (defining the term “flexion.”).
2 The primary responsibility of MART is to “analyze the complete medical data, social
findings, and other evidence of disability submitted by or on behalf of the applicant” and
“issue a decision on whether the applicant meets the criteria for disability based on the
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Decision at 2.)   After considering all of this evidence, the MART concluded Appellant
was not disabled for purposes of MA. The MART noted that Appellant had several
severe impairments; notwithstanding, he was able to perform light work and could be
employed as a cashier despite the impairments.  Id.  MART issued a written denial of MA
on May 5, 2009 and Appellant filed a timely appeal on May 14, 2009.  Id. at 3.
A full hearing was held before DHS Appeals Officer Carol J. Ouellette (Ouellette)
on July 30, 2009.   Appellant was present at the hearing and spoke through a Spanish
interpreter.    He presented one witness, Maria Hernandez.    Id. at  1.    Sandra Brohan
(Brohan) appeared on behalf of DHS. Id.
Ouellette commenced the hearing by reading Appellant‟s statement from the
request for hearing form he filed with DHS on May 14, 2009.                                      (Tr. at 4-9.)   Brohan
testified that MART treated Appellant‟s case as an initial determination situation because
DHS had never made a disability determination regarding his case.3   Id. at 9.   Brohan
then testified regarding the requirements for MA eligibility based on disability.   Id. at 14.
Brohan explained that to obtain MA, an applicant must  “be aged over  65, blind or
disabled.”   Id.   In Appellant‟s case, since he was not over 65 or blind, proof that he had
“a medically determinable impairment. . . severe enough to render him incapable of any
type of work, not necessarily his past work” was required.                                       (Administrative Hearing
Decision at 2; Tr. at 15.)
evidence  submitted.”     Rhode  Island  Department  of  Human  Services  Manual                 §
0352.15.20.
3 DHS did not make a disability determination for Appellant prior to 2009 despite his
receipt of MA benefits. He only received benefits in the past because he was eligible for
SSI, which he lost prior to filing his initial application in 2009.
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Brohan  explained that MART uses the same  five step sequential  evaluation
process as SSI in the case of a disability determination.4                                   (Tr. at 15.)   She then asked
Appellant  whether  he  was  currently unemployed  and  he  replied  affirmatively.    Id.
Brohan  testified  that  MART  reviewed  the  MA-63  and  AP-70  forms  submitted  by
Appellant in rendering its decision.   Id.   The Rhode Island Hospital and Capitol Hill
Health Center records were received “post decision” and reviewed in preparation for the
July 30th hearing.  Id.  Brohan gave the following summary of the evidence,
“The MA-63 submitted with this application indicated a problem with
malfunctioning right  leg prosthesis.    The Capitol  Hill  Health records
documented issues with complaints of left knee and low back pain.   An
MRI  done  4/21/08  on                                                                       [Appellant‟s]  left  knee  showed  evidence  of
osteoarthritis,  degeneration  changes  some  meniscus  tearing  and  loose
bodies in the left kne[e].”  Id. at 16-17.
Brohan noted that  Appellant was  referred to the orthopedic clinic at Rhode Island
Hospital where plans were made to arthroscopically operate on his left knee.    She
discussed how the surgery was delayed while the surgeons awaited the requisite cardiac
clearance and how Appellant eventually decided to delay surgery until he had insurance.
Id. at 18.
MART  found  that  “[t]he  medical  records  documented  evidence  of  a  severe
impairment and [they] proceeded to Step 3.”   Id.   Step 3 requires MART to determine
whether the applicant‟s severe impairment meets or equals the Social Security listings
(SSI listings).    Id.  Brohan  testified  that  MART  considered  listings  under           1.0,  and
concluded that Appellant‟s impairment did not meet them.    Id. at  19.    MART then
proceeded to Step 4 and conducted a residual functional capacity (RFC) assessment.   Id.
Based on the evidence presented, MART concluded that Appellant had a functional
4 The five-step SSI inquiry will be outlined later in this opinion.
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restriction, but that he was still able to do light work.   Id.   Since his work as a cashier
involved light work, MART concluded he could return to his past relevant work.  Id.
Appellant testified that he was unemployed at the time of the hearing with a
limited employment history, and that he no longer qualified for SSI because he had
purchased a house, which he later lost.                                                         (Administrative Hearing Decision at 3; Tr. at 11,
15, 20.)   He testified that he had reapplied for SSI and his application had been denied.
The matter has been appealed.   (Tr. at 22-23.)
Appellant testified he could not sit for extended periods of time and that he had to
constantly change position because of his back pain.                                            (Administrative Hearing Decision
at 3; Tr. at 27.)   He explained that x-rays were taken of his back, but that he was not
under medical treatment for a spinal disorder at the time of the hearing.                       (Administrative
Hearing Decision at 3; Tr. 27-28.)   Appellant reported that he can go about his daily life
with minimal assistance and that he had applied for community free care, but had not
received a response.   (Administrative Hearing Decision at 3; Tr. at 30-33.)
After reviewing the evidence submitted by Appellant and hearing the testimony
outlined above, Ouellette made the following findings of fact:
“[1.] The appellant filed an application for [MA] on February 16, 2009.
[2.] The Agency issued a written notice of denial of MA dated May 5,
2009.
[3.] The appellant filed a timely request  for hearing received by the
Agency on May 14, 2009.
[4.] The appellant is not engaging in substantial gainful activity.
[5.] At the time of this decision, the appellant had the following severe
impairments: right lower extremity amputation, left knee osteoarthritis,
and carpal tunnel [syndrome].
[6.] At the time of this decision, the appellant did not have an impairment
or combination of impairments that met or medically equaled any of the
listed impairments in the Social Security listings.
[7.] The appellant was born on May 8, 1976 and is 33 years old, which is
defined as a younger individual. (20 CFR 416.963)
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[8.] The appellant has a ninth grade education and is able to communicate
in Spanish. (20 CFR 416.964)
[9.] Transferability of job skills is not an issue in this case.  (20 CFR
416.968)
[10.] Based on the appellant‟s residual functioning, he retains the ability to
perform sedentary work.
[11.] The appellant is not disabled as defined in the Social Security Act.
[12.] The appellant is not disabled for purpose of the [MA] Program.”
(Administrative Hearing Decision at 3-4.)
Ouellette sustained MART‟s  determination that  Appellant  was  not  eligible for MA
benefits because he was not disabled in a written decision dated August 7, 2009.   She
found him not disabled at Step  5 based on his RFC for sedentary work.    Id. at  9.
Appellant timely appealed Ouellette‟s decision to this Court on September 3, 2009.   Id. at
1; (Compl. at. 3.)   He seeks reversal of Ouellette‟s decision or alternatively remand to
DHS.   (Pl.‟s Br. in Supp. of Reversal, at 20.)
II.
Standard of Review
Aggrieved parties may appeal a final decision from an administrative agency like
DHS to the Superior Court when all administrative remedies are exhausted pursuant to
Sec. 42-35-15(a).   When reviewing an action taken by DHS or another administrative
agency,
“The court shall not substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact. The court may affirm the
decision of the agency or remand the case for further proceedings, or it
may reverse or modify the decision if substantial rights of the appellant
have  been  prejudiced  because  the  administrative  findings,  inferences,
conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Clearly  erroneous  in  view  of  the  reliable,  probative,  and
substantial evidence on the whole record; or
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(6) Arbitrary or capricious or characterized by abuse of discretion
or  clearly unwarranted  exercise  of  discretion.”  Sec.                                     42-35-
15(g).
The Superior Court‟s scope of “review is circumscribed and limited to an examination of
the certified record to determine if there is any legally competent evidence therein to
support the agency‟s decision.   Nickerson v. Reitsma, 853 A.2d 1202, 1205 (R.I. 2004).
This restriction applies even when the reviewing court may have been inclined to arrive
at  different  conclusions  and  inferences  from  the  evidence  presented.                  Johnston
Ambulatory Surgical Assocs., Ltd. v. Nolan, 755 A.2d 799, 805 (R.I. 2000) (quoting
Rhode Island Pub. Telecomm. Auth. v. Rhode Island State Labor Relations Bd., 650 A.2d
479, 485 (R.I. 1994)); Barrington Sch. Comm. v. Rhode Island State Labor Relations Bd.,
608 A.2d 1126, 1138 (R.I. 1992).
Evidence is considered legally competent when “some or any evidence supporting
the agency‟s findings” is present in the record.   Auto Body Ass‟n. of Rhode Island v.
State  Dept.  of  Business  Regulations.,                                                     996  A.2d   91,   95   (R.I.   2010)   (quoting
Environmental Scientific v. Durfee,  621 A.2d  200,  208  (R.I.  1993)).   The agency is
entitled to great deference and the reviewing court cannot substitute its judgment for that
of the agency on questions of fact already decided by the agency.   Auto Body Ass‟n. of
Rhode Island, 996 A.2d at 97; Johnston Ambulatory, 755 A.2d at 805 (quoting Rhode
Island Pub. Telecomm. Auth., 650 A.2d at 485). Despite the high level of deference
afforded the agency, the Superior Court will review all questions of law de novo. Iselin v.
Retirement Bd. of Employee‟s Retirement Sys. of R.I., 943 A.2d 1045, 1049 (R.I. 2008)
(citations omitted).
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III.
The Role of DHS
DHS is an agency within the Executive Branch tasked with managing federal and
state funded public assistance programs, including the provision of MA to those who
qualify for benefits under G.L.  1956  §  40-8-3,  §  42-12-4  (stating DHS  “shall have
supervision and management of . . . [a]ll forms of public assistance under the control of
the state.”); sec. 40-8-3 (outlining eligibility requirements for MA); see G.L. 1956 § 40-
8-1  (declaration of policy).    Federal  law requires  that DHS                             “establish  income and
resource rules, regulations, and limits in accordance with Title XIX of the federal Social
Security Act, 42 U.S.C. § 1396, et seq.,” governing eligibility for MA in order to receive
federal funding. § 40-8-3; 42 U.S.C. § 1396 (mandating the payment of federal funds to
states who have had plans for MA approved by the Secretary of Health and Human
Services); see sec. 40-8-13 (empowering the DHS Director to create rules and regulations
in conformity with federal law.).   Therefore, DHS must abide by the federal definitions
and guidelines when defining the term “disabled” and creating eligibility requirements. §
1396 et seq.; 20 C.F.R. § 416.901-998.
The policy regarding eligibility for MA is outlined in the DHS Manual and
closely follows the federal provisions.  The manual states:
“To be eligible for [MA] because of permanent or total disability, a person
must have a permanent physical or mental impairment, disease or loss,
other than blindness, that substantially precludes engagement in useful
occupations . . .
A physical or mental impairment is an impairment which results from
anatomical,  physiological,  or  psychological  abnormalities  which  are
demonstrable by medically acceptable, clinical and laboratory diagnostic
techniques.”  DHS Manual § 0352.15.
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To qualify as disabled, an individual must be “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 twelve (12) months . . .                                    .”  DHS Manual § 0352.15; see
42  U.S.C.  §  1382c  (a)(3).    DHS  is  required  to  determine  whether  an  individual‟s
impairment meets the definition in § 0352.15 by looking at all of the facts of the case,
while giving primary consideration to the severity of the impairment and taking into
account the individual‟s age, education, and work experience.   DHS Manual §§ 0352.15;
0352.15.05.
DHS uses the same five-step sequential inquiry set forth in 20 C.F.R. § 416.920 to
determine whether an applicant is disabled for the purposes of MA. Compare 20 C.F.R §
416.920  with  DHS  Manual  §§  0352.15;  0352.15.05;  0352.15.15;                             0352.15.20.  This
sequential inquiry requires the hearing officer to:
1.  Ask whether the claimant is engaged in a substantially gainful activity;
2.  If applicant is not engaged in such an activity, ask whether the impairment is
severe;
3.  If the impairment is severe, the hearing officer must determine whether it meets
one of the SSI listings. If it does, the applicant is disabled and the inquiry ends;
4.  If the impairment does not meet a listing, the hearing officer must determine
whether the impairment prevents the applicant from returning to past relevant
work based on the applicant‟s RFC; and
5.  Determine whether the applicant‟s RFC when combined with applicant‟s age,
education, and work experience will allow the applicant to adjust to other work in
the national economy.
See 20 C.F.R. § 416.920.   With the exception of Step 3, a negative finding at any step
will bar a determination that an applicant is disabled. McDaniel v. Bowen, 800 F.2d
1026, 1030 (11th Cir. 1986).   The applicant bears the burden of proof for the first four
steps and the burden shifts DHS at the fifth.   Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.
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1993) (discussing the burden of proof in the five-step inquiry).   A hearing officer may
rely on the Medical-Vocational Guidelines (the Grid) or testimony of a vocational expert
(VE) when determining whether an applicant can perform other work.5   Tacket v. Apfel,
180 F.3d 1094, 1100-01 (9th Cir. 1999).
Ouellette followed this five-step inquiry in her August 7, 2009 decision and as
discussed  above  she  denied  Appellant  MA  at  step  five.                                    (Administrative  Hearing
Decision at  6-9.)    Ouellette found that Appellant was not engaging in substantially
gainful activity at the time of his application and had no work experience.6   Id. at 6.
Ouellette also found that the failing prosthesis along with the left knee and back pain
demonstrated Appellant was suffering from a severe impairment that would last for more
than twelve months.7   Id. at 7.   However, Ouellette did not find that Appellant‟s ailments
met or equaled any of the SSI listings and she continued to the last two steps.  Id. at 7.  At
Step 4, Ouellette determined that Appellant had an RFC for “sedentary work with some
postural and environmental restrictions.”   Id. at  8.   Ouellette proceeded to Step five
because the Appellant had no past relevant work experience. Then using the Grid, along
with the Appellant‟s age, education, work history, and RFC, concluded that the Appellant
was not disabled.  Id. at 9.
5 The Grid “is a chart which classifies a claimant as disabled or not disabled, based on the
claimant‟s physical capacity, age, education, and work experience.”   Walker v. Bowen,
834 F.2d 635, 640 (7th Cir. 1987).
6 It appears that Ouellette concluded Appellant‟s cashier position did not last long enough
to become substantially gainful activity as required by 20 C.F.R. §§ 416.960(b); 416.965.
7 To be eligible for MA, an applicant‟s impairment must be expected to result in death or
to last for more than twelve months.                                                             20 C.F.R. § 416.909.   This is referred to as the
durational requirement. It appears that Ouellette considered this requirement met here.
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IV
Analysis
Appellant contends that Ouellette‟s decision is arbitrary, capricious, and without
due process; is contrary to state and federal law; lacks adequate findings of fact and
conclusions of law; is clearly erroneous; and made upon unlawful procedure or other
error of law.                                                                                    (Compl. at 2.)   Specifically, it is argued that; (1) Ouellette did not apply the
controlling federal standard when determining the weight due to Dr. Gonzalez‟ medical
opinions;                                                                                        (2)  Ouellette  erred  by  not  considering  Appellant‟s  pain  at  any  step;      (3)
Ouellette  suggested  Appellant  was  non-compliant  with  treatment  without  making
sufficient findings of fact; (4) Ouellette erred in not considering Appellant‟s CTS; (5)
Ouellette failed to properly apply the SSI listings at Step 3; and (6) the findings regarding
Appellant‟s RFC are based on error of law and unsupported by substantial evidence.  Id.
DHS contends that Ouellette exercised her appropriate legal authority under the
Rhode Island Administrative Procedures Act (APA) in rendering her decision. (Def.‟s
Resp. Br. in Supp. of Agency Decision at 10.) They argue that Ouellette‟s findings are
supported by “competent, reliable and substantial evidence in the record,” and the correct
legal standards were applied to the evidence. Id.
A.
Application of the SSI Listings at Step 3
Appellant contends that Ouellette erred by not finding him disabled under the SSI
listings at Step 3. His position is that he is by definition disabled under 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Listing 1.00B.2.b2 and 1.05 because he walks with a prosthesis and two
crutches, which he argues demonstrates that he is unable to “ambulate effectively.” (Pl.‟s
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Br. in Supp. of Reversal, at 14.)   He further argues that the arthritic condition in his left
knee meets or equals listing 1.02. Id. at 15.  It is error, appellant argues, that Ouellette did
not consider his impairments as a whole, and that she did not consider CTS.    Id.
Appellant also contends that Ouellette failed to sufficiently cite to the record in support of
her findings, and that she violated 20 C.F.R. § 416.930 in basing her conclusion that the
Appellant was not disabled upon his noncompliance with treatment.  Id. at 15-16.
DHS argues that Ouellette‟s findings are based on the “whole evidence of the
record,” not on Appellant‟s non-compliance with treatment.   (Def.‟s Resp. Br. in Supp. of
Agency Decision at  18-19.)    DHS points to page  7 of the Administrative Hearing
Decision in support of their argument that Ouellette provided a thorough discussion of
the medical evidence of record and Appellant‟s impairments.   Id. at 18.   DHS contends
that Ouellette‟s discussion of the record and Appellant‟s impairments demonstrates her
finding of not disabled at Step 3 was not clear error.  Id. at 19.
SSI provides a list of impairments for each major body system that will be
considered  disabling  without  regard  to  an  individual‟s  age,  education,  or  work
experience.                                                                                        20 C.F.R. § 416.925.   Irrespective of whether an individual‟s impairments
meet one of the listings, an impairment can be found medically equivalent to one.   Sec.
416.925.  In order for an impairment to be medically equivalent, it must be “at least equal
in severity and duration to the criteria of any listed impairment.”                                20 C.F.R. § 416.926. A
DHS hearing officer must thoroughly develop the record and explain his or her reasoning
when concluding whether an applicant‟s condition meets or medically equals a listing.
See Kershaw v. R.I. Dep‟t of Human Services, No. Civ.A. 05-0632, 2005 WL 3369661,
at *5 (R.I. Super. Dec. 6, 2005).
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                                                                                                                                                         In this case, the following two listings are relevant, Listing 1.02 addressing a
                                                                                                                                                         major dysfunction of one or more of applicant‟s joints and Listing  1.05 addressing
amputation.                                                                                     20  C.F.R.  Pt.                                          404,  Subpt.  P,  App.                                                                1.  Listing   1.02  defines  a  major
dysfunction of a joint as,
“[A  condition  c]haracterized  by  gross  anatomical  deformity                                (e.g.,
subluxation,  contracture,  bony  or  fibrous  ankylosis,  instability)  and
chronic joint pain and stiffness with signs of limitation of motion or other
abnormal motion of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing, bony destruction,
or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint  (i.e., hip,
knee, or ankle), resulting in inability to ambulate effectively, as defined in
1.00B2b . . .                                                                                   . ” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.02.
Listing 1.05 provides that amputation of “[o]ne or both lower extremities at or above the
tarsal  region  with  stump  complications  resulting  in  medical  inability  to  ambulate
effectively . . . , which have lasted or are expected to last for at least 12 months” will be
disabling. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.05.   The inability to ambulate
effectively is defined as,
“[A]n 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.   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.
(2) To 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.   They must have the ability to travel without
companion assistance to and from  a place of employment or school.
Therefore, 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 ability to walk independently about one's home without the
use of assistive devices does not, in and of itself, constitute effective
ambulation.”   20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.00B2b(1)-(2).
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This Court‟s scope of review in this administrative appeal is limited and the
agency‟s factual findings may only be altered if there is a complete lack of support for
them in the record.   Auto Body Ass‟n of Rhode Island, 996 A.2d at 97.   Thus, the role of
this Court is to determine whether the agency‟s factual determinations are supported by
legally competent evidence.   Nickerson, 853 A.2d at 1205.   This Court may reverse an
agency‟s factual determinations if they are “[c]learly erroneous in view of the reliable,
probative, and substantial evidence on the whole record.”   Sec. 42-35-15(g)(5).  Here, the
factual determinations are clearly erroneous based upon the evidence contained in the
record.
The medical evidence establishes Appellant‟s right leg was amputated above the
right knee and that he is suffering from severe complications due to a malfunctioning
prosthetic device.                                                                            (MA-63, March  9,  2009, at  2.)    At the time of his application,
Appellant was suffering from a vascular lesion and infection in his right leg, and his
condition was described by Dr. Gonzalez as progressively worsening.   Id.   The medical
record clearly demonstrates these conditions interfere with Appellant‟s ability to use his
prosthetic device.
The failing prosthesis has caused Appellant to alter his gait, resulting in back pain
and degenerative changes in his left knee. Id.; (Pl.‟s Br. in Supp. of Reversal, at 3; MRI
Left Knee without Contrast, April 21, 2008.) The orthopedic doctors at Rhode Island
Hospital report that Appellant is suffering from severe tri-compartmental osteoarthritis in
his left leg and that multiple loose bodies are present in his knee. (MRI Left Knee without
Contrast, April  21,  2008.) The degeneration of Appellant‟s left knee has resulted in
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“significant pain and crepitus” throughout the joint that was reproduced by medical
testing. (Rhode Island Hospital Clinic Note, October 30, 2008, at 1.)
Appellant cites Sinin v. R.I. Dep‟t of Human Services, No. 03-5735, 2005 WL
374224 (R.I. Super. 2005) in support of his argument that he meets the relevant SSI
listings in this case.   In Sinin, the Superior Court addressed the MA denial of an above
the knee amputee who was suffering from recurring infections caused by abscesses and
thigh pain because his prosthesis did not fit correctly.                                      2005 WL 374224 at *1, *5. The
medical testimony in Sinin clearly established that the recurring infection and abscesses
prevented the MA applicant from using his prosthesis.  The applicant also testified that he
had a limited ability to wear his prosthesis.  Id. at 1, 5.
The evidence presented by the Appellant demonstrates that he meets listings 1.02
and 1.05, and the medical documentation of the degradation of Appellant‟s left knee
establishes he is suffering from chronic joint pain with a limited range of motion.   The
medical evidence further supports the conclusion that Appellant is suffering from stump
complications in his right leg that prevent him from effectively using his prosthesis.
In addition, the Appellant appeared at the appellate hearing using two crutches
instead of his prosthesis.   Ouellette assumed in her decision that Appellant chose to use
the crutches for his own comfort and not out of medical necessity.   The Court believes
this was an inappropriate conclusion.   Regardless of whether he did it out of medical
necessity or for his own comfort, it is clear that the prosthetic device is malfunctioning
and that Appellant is required to use crutches to ambulate effectively and comfortably.
When viewed as a whole, the medical evidence establishes that Appellant cannot
ambulate effectively as defined in 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.00B2b(1)-(2).
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Accordingly, the Court finds that Ouellette‟s conclusion that Appellant is not disabled at
Step 3 is clearly erroneous in light of the reliable, probative, and substantial evidence, on
the whole record.
B
Findings of Fact Regarding Appellant’s RFC
Appellant  asserts  that  Ouellette  did  not  sufficiently discuss  and  analyze  the
objective and subjective evidence presented by his application for MA when determining
his RFC. (Pl.‟s Br. in Supp. of Reversal, at 17.)   More specifically, he is arguing that
Ouellette‟s findings regarding his RFC are merely conclusory and that she relied on
generalizations while failing to point to specific medical evidence and consider all of
Appellant‟s symptoms.   Id.   He contends that Ouellette assessed his RFC based on “her
lay reading of the raw medical records.”   Id. at 18.   In response, DHS contends that
Ouellette based her RFC determination on a sufficient review of the record and that the
record supports her determination that Appellant could perform sedentary work.                  (Def.‟s
Resp. Br. in Supp. of Agency Decision at 16-17.)
Having found that Ouellette‟s conclusion was error based upon the whole record,
the Court acknowledges the issues raised by the parties, but declines to address the issue
based upon the Court‟s ruling Appellant should have been found disabled at Step 3.
C
Appellant’s Non-Compliance with Treatment
Appellant contends that a failure to comply with a recommended treatment that
“might „improve health‟” is not a sufficient ground for denial of an MA application.
(Pl.‟s Br. in Supp. of Reversal, at 12.)   He argues that in his case even if the surgery on
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his  legs  was  prescribed,  he  had  good  cause,  namely  a  lack  of  insurance,  for  not
complying with his doctor‟s prescribed course of treatment.   Id.   Appellant specifically
argues that Ouellette made insufficient findings of fact regarding his recommended and
prescribed treatments.   Id. at  13.   In response, DHS contends that it was proper for
Ouellette to consider Appellant‟s refusal to follow the course of treatment recommended
by Dr. Gonzalez and Rhode Island Hospital.                                                          (Def.‟s Resp. Br. in Supp. of Agency
Decision at 15.)   DHS further argues that a lack of insurance or an inability to pay for
treatment  is  not  good  cause  for  refusing  a  treatment  prescribed  by  an  applicant‟s
physician.  Id.
To obtain MA benefits, applicants must follow any medical treatment prescribed
by  their  physician  if  the  treatment  is  likely  to  restore  their  ability  to  engage  in
substantially gainful activity.8                                                                    20 C.F.R. § 416.930(a); SSR 82-59.   A failure to follow a
prescribed treatment by an applicant will result in a denial of benefits in the case of an
initial application, or a stoppage of benefits in the case of an individual who is already
receiving them.                                                                                     20 C.F.R. § 416.930(b).   Once a hearing officer determines that an
applicant has failed to follow a prescribed course of treatment; findings must be made “as
to whether the failure to follow prescribed treatment is justifiable.” SSR 82-59.   This
directive requires development of the record and an opportunity for the applicant to
explain his or her reasons for not undergoing the treatment.  Id.
A list of acceptable reasons for not following a prescribed course of treatment
appears in Sec. 416.930(c).   Although not listed as an acceptable excuse, inability to
8 Only treatments that are “clearly expected to restore capacity to engage in any SGA (or
gainful activity, as appropriate) [and] prescribed by a treating source” will be considered
prescribed for the purposes of this rule. SSR 82-59.
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afford a prescribed treatment is considered a valid excuse for not following a treatment
plan by the Social Security Administration.   SSR 82-59.   Furthermore, the majority of
federal circuit courts have held that an applicant “cannot be denied benefits for failing to
obtain medical treatment that would ameliorate his condition if he cannot afford that
treatment.”   Gamble v. Chater, 68 F.3d 319, 320-21 (9th Cir. 1995) (compiling cases).
To justify a failure to follow a prescribed treatment plan, an applicant must show that he
or she is willing to accept the treatment and that free community resources are either
unavailable or they have been exhausted.9  SSR 82-59.
The requirements discussed above do not apply in the case of a recommended
treatment.    MA  Applicants  do  not  have  a  duty  to                                       “undergo  any  and  all  surgical
procedures suggested by (his or) her physician lest (he or) she is barred from disability
benefits.”   Schena v. Sec‟y of Health & Human Servs., 635 F.2d 15, 19 (1st Cir. 1980)
(citing McCarty v. Richardson, 459 F.2d 3, 4 (5th Cir. 1972)).   An applicant‟s refusal to
undergo a suggested course of treatment because of its inherent risks or when a treating
physician considers his or her refusal reasonable cannot be viewed as a willful refusal to
undergo treatment.  Id.   (citing Ratliff v. Celebrezze, 338 F.2d 978 (6th Cir. 1964).
Ouellette committed a clear error of law when she considered Appellant‟s non-
compliance with the course of treatment suggested by Dr. Gonzalez and the orthopedic
clinic at Rhode Island Hospital.    It is not clear from her decision whether Ouellette
considered the suggested course of treatment to be prescribed or merely recommended.
Notwithstanding, this difference is irrelevant.    If Ouellette considered the suggested
9  The applicant is required to provide documentation of his or her contacts with all
possible free resources.   Furthermore, the applicant must explore all available resources,
such as clinics as well as charitable and public assistance agencies.  SSR-82-59.
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course  of  treatment  recommended,  Appellant  did  not  have  a  duty  to  undergo  the
treatment to be eligible for benefits.  It was error for her to consider the failure to undergo
treatment. In the event she considered it prescribed, Ouellette erred by her failure to
consider  whether  there  was  good  cause  for  not  following  the  suggested  course  of
treatment.
The directive of the Social Security Administration regarding an  applicant‟s
inability to afford treatment is clear.   It is a valid excuse for not following a prescribed
treatment when one is willing to accept it, and free community resources are unavailable
or  have  been  exhausted.    SSR  82-59.    Therefore,  before  Ouellette  could  consider
Appellant‟s non-compliance with treatment pejoratively, she was required to develop the
record and make findings of fact on his ability to afford the treatment.
The weight of the evidence establishes that Appellant is willing to undergo the
treatment, but that he is unable to afford it.   This is a valid reason for not undergoing a
prescribed treatment, and therefore Ouellette‟s decision is contrary to the evidence of the
whole record and is clearly erroneous.
D
Weight Assigned to Dr. Gonzalez’ Medical Opinion
Appellant contends Ouellette impermissibly rejected the medical opinion of Dr.
Gonzalez without sufficiently articulating the elements set forth in 20 C.F.R. § 416.972.
Appellant argues that Ouellette did not afford Dr. Gonzalez‟ opinion controlling weight,
and it was an error for her to rule that Appellant was not limited in his ability to sit or
stand for less than two hours.                                                                    (Pl.‟s Br. in Supp. of Reversal, at 7.)   DHS argues that
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Appellant‟s arguments are not supported by the record.                                        (Def.‟s Resp. Br. in Supp. of
Agency Decision at 10.)
The rules governing the evaluation of medical opinion submitted in support of an
MA application are found in 20 C.F.R. § 416.972.   This section defines medical opinion
as “statements from physicians and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity of  [an applicant‟s] impairments,
including . . . symptoms, diagnosis and prognosis, what [an applicant] can still do despite
impairment(s), and [the applicant‟s] physical or mental restrictions.”   Sec. 416.972(2).
When determining whether an applicant is disabled, the hearing officer must consider all
medical opinions submitted along with the rest of the relevant evidence in the record.
Sec. 416.972(2)(b).
Hearing officers must evaluate all of the medical opinions presented to them and
afford  each  opinion  an  appropriate  weight  in  the  decision-making  process.    Sec.
416.927(d).   If a medical opinion is rendered by a treating source, that opinion will be
entitled to controlling weight if it is supported by “medically acceptable clinical and
laboratory diagnostic techniques,” and consistent with the rest of the evidence.   Sec.
416.927(d)(2).                                                                                A  treating  source  is  defined  as  an  applicant‟s   “own  physician,
psychologist, or other acceptable medical source who provides [the applicant], or has
provided [the applicant], with medical treatment or evaluation and who has, or has had,
an ongoing treatment relationship with [the applicant].”                                      20 C.F.R. § 404.1502.   The
medical  opinion of a treating source will  not  always  be dispositive.                      20  C.F.R.  §
404.1527(d)(2).    A physician will not be considered a treating source if his or her
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relationship with an applicant is based on the need to obtain a report in support of the
applicant‟s disability claim rather than a need for treatment.                                3 Soc. Sec. LP § 37:77.
If  a  hearing  officer  finds  a  treating  physician‟s  opinion  is  not  entitled  to
controlling weight, the officer should give good reasons in the decision for the weight
afforded.                                                                                     20 C.F.R. § 416.927(d).   The explanation of the hearing officer‟s reasoning
“must be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source‟s medical opinion and the reasons for that weight.”
SSR  96-29.    The hearing officer does not have to mention every piece of evidence
presented  or  explain  his  or  her  reasoning  regarding  the  weight  afforded  to  each
evidentiary item.  The factors the hearing officer should consider include:
(1)  The                                                                                      “[l]ength  of  the  treatment  relationship  and  the  frequency  of
examination,” as well as the “[t]he nature and extent of the treatment
relationship;”
(2)  The amount of medical evidence presented in support of the medical
expert‟s opinion;
(3)  The consistency of the medical opinion with the rest of the record;
(4)  Whether the medical opinion was given by a specialist in his or her
field of expertise; and
(5)  Any factors an applicant brings to the hearing officer‟s attention. 20
C.F.R. § 416.927.
If a single source provides multiple medical opinions, it is permissible for a hearing
officer to address each of these opinions separately.   SSR 96-2p                             (“Adjudicators must use
judgment based on the facts of each case in determining whether, and the extent to which,
it is necessary to address separately each medical opinion from a single source.”).
In  the  case  before  this  Court,  the  medical  opinion  evidence  includes  Dr.
Gonzalez‟ statements on the MA-63 form, the diagnosis of osteoarthritis in Appellant‟s
left knee, and CTS in his right arm as found in the medical records submitted by
Appellant.    The  MA-63  form  offers  Dr.  Gonzalez‟  opinion  regarding  applicant‟s
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impairments and the severity of those impairments.                                            (MA-63, March 9, 2009 at 2.)   He
also opined on the limitations these impairments imposed on Appellant.   Id. at 3.   Dr.
Gonzalez‟ reports that Appellant is suffering from complications due to his above the
knee amputation on his right leg  (namely a failing prosthesis), back pain from the
deformity caused by his failing prosthesis, and CTS in his right arm.  Id. at 2.
Dr. Gonzalez reports that Appellant has moderately limited mental abilities and
that he has limitations on his physical abilities.   Id. at 3.   According to Dr. Gonzalez‟
medical opinion Appellant can walk or stand for less than two hours out of an eight-hour
day, sit  for  four out  of eight  hours  and reach, bend, or lift between                    5-50 pounds
occasionally.  Id.  Appellant can also bend or stoop, and push and pull occasionally. Id.
The medical records from Capitol Hill Health Center and Rhode Island Hospital
establish that Appellant is suffering from severe impairments in his knee and that he
likely has CTS in his right arm.   None of these records contain opinions regarding the
functional  limitations  these impairments  cause.    Therefore, the only expert opinion
present in this case regarding Appellant‟s functional limitations lies in the statements of
Dr. Gonzalez on the MA-63 form.
The record establishes that Dr. Gonzalez is Appellant‟s primary doctor and that he
has  had  an  ongoing  treatment  relationship  with  Appellant.  Dr.  Gonzalez  provided
Appellant extensive medical treatment and evaluation.   Based upon the record, the Court
finds that Dr. Gonzalez is Appellant‟s treating source as defined under the federal
standards.
Ouellette applied an incorrect legal standard when she considered Dr. Gonzalez‟
medical opinion.   As a treating source, Dr. Gonzalez‟ medical opinion was entitled to
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controlling weight if it met the standard set forth in 20 C.F.R. § 416.927(d)(2).   This
standard requires hearing officers to consider whether the opinion “is well supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [an appliant‟s] case record.”   Sec. 416.927 (d)(2).
Ouellette devoted one paragraph of her decision to Dr. Gonzalez‟ opinion:
“In order to be eligible for benefits, an individual must follow physician
recommended treatment if that treatment can restore the ability to work.
Dr. Gonzalez, is the treating source who has expressed medical opinion
regarding the impact of the appellant’s conditions on functioning. He does
not significantly limit lifting, carrying, reaching, bending, stooping or
pushing and pulling with the upper extremities.   Although walking and
standing are restricted to less than 2 hours, the physician is not specific
about the actual amount of time.   The record, however, demonstrates that
although it may be somewhat less than two hours, it is not significantly
less, as he is able to perform ADLs with some proficiency.   There is no
support in the medical evidence that would definitively limit sitting.”
(Administrative Hearing Decision at 5.)   (Emphasis added).
Ouellette‟s discussion fails to apply the standard set forth in  § 416.927(d)(2).
Ouellette notes that Dr. Gonzalez is the treating source and discusses the limitations
reported by the doctor.   Ouellette then considers the issue of supportability.   Although
supportability is a consideration set forth in § 416.927(d)(3), it does not become relevant
until after the hearing officer concludes that controlling weight will not be afforded to a
physician‟s medical opinion.  Before Ouellette should have considered this issue, she first
had to assess whether Dr. Gonzalez‟ opinion was supported by medically acceptable
evidence.  This requirement was not met.
The record contains sufficient evidence supporting the doctor‟s opinion relative to
Appellant‟s limitations in both standing and sitting.   This evidence is based on medically
acceptable laboratory and diagnostic techniques.   Based upon the evidence presented,
Ouellette‟s failure to afford Dr. Gonzalez‟ opinion controlling weight was an error of
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law. In addition, she committed a clear legal error by applying the wrong standard under
the federal guidelines.
E
Consideration of Appellant’s Pain
Appellant contends that Ouellette erred by failing to articulate the standards set
forth in 20 C.F.R. § 419.929 governing the assessment of an MA applicant‟s symptoms,
including pain.                                                                                  (Pl.‟s Br. in Supp. of Reversal, at                                   10-11.)    Specifically, Appellant
contends that she did not make findings of fact on all of the evidence regarding his pain
symptoms or “determine whether the severity of [his pain] was reasonably consistent
with the evidence.”   Id. at 11.  He further alleges that Ouellette did not make the requisite
credibility determination regarding his subjective statements of pain and that she erred by
considering his ability to do household activities in making her decision.   Id.   He also
contends that she erred by not considering his pain symptoms in her analysis at steps 2-5.
Id. at 12.   In response, DHS contends that Ouellette considered Appellant‟s statements
and evaluated them in light of all the medical evidence presented as required by the
relevant federal standards.                                                                      (Def.‟s Resp. Br. in Supp. of Agency Decision at 17.)
When making a disability determination, hearing officers must consider all of an
applicant‟s  symptoms                                                                            “including  pain,  and  the  extent  to  which                        [the  applicant‟s]
symptoms can reasonably be accepted as consistent with the objective medical evidence,
and  other  evidence.”                                                                           20  C.F.R.  §  416.929(a).    Hearing  officers  will  consider  an
applicant‟s subjective description of pain symptoms and the impact they have on his or
her daily functioning or ability to work.  Sec. 416.929(a).  Descriptions of pain symptoms
-26-




and their impact from an applicant‟s healthcare provider will also be considered.   Sec.
416.929(a).  However, these statements alone are insufficient:
“[S]tatements about your pain or other symptoms will not alone establish
that you are disabled; there must be medical signs and laboratory findings
which  show  that  you  have  a  medical  impairment(s)  which  could
reasonably be expected to produce the pain or other symptoms alleged and
which,  when  considered  with  all  of  the  other  evidence                                 (including
statements  about  the  intensity  and  persistence  of  your  pain  or  other
symptoms  which  may  reasonably  be  accepted  as  consistent  with  the
medical signs and laboratory findings), would lead to a conclusion that
you  are  disabled.  In  evaluating  the  intensity and  persistence  of  your
symptoms, including pain, we will consider all of the available evidence,
including your medical history, the medical signs and laboratory findings
and statements about how your symptoms affect you.”   Sec. 416.929(a)
(emphasis supplied).
An applicant‟s symptoms, including pain, “will not be found to affect [his or her]
ability to do basic work activities unless medical signs or laboratory findings show that a
medically determinable impairment is present.”   Sec. 416.929(b).   Again,  “all of the
available evidence, including [an applicant‟s] medical history, . . . medical signs and
laboratory findings, and statements from  [the applicant],  [the applicant‟s] treating or
examining physician . . . or other persons about how [the applicant‟s] symptoms affect
[him or her]” will be considered. Sec. 416.929(c).   Several additional factors will be
considered by a hearing officer when making a disability determination. These factors
include:
“(i) [Applicant‟s] daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
you take or have taken to alleviate your pain or other symptoms;
(v) Any measures you use or have used to relieve your pain or other
symptoms . . . ; and
(vii) Other factors concerning your functional limitations and restrictions
due to pain or other symptoms.” Sec. 416.929(c)(3).
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A  hearing  officer  will  also                                                                  “consider  whether  there  are  any inconsistencies  in  the
evidence  and  the  extent  to  which  there  are  any conflicts  between                        [an  applicant‟s]
statements and the rest of the evidence . . .                                                    . ” Sec. 416.929(c)(4).
The credibility determinations of a hearing officer when examining an applicant‟s
subjective statements of pain or other symptoms in light of the medical evidence are
entitled to great deference by a reviewing court.   Tyra v. Sec‟y of Health and Human
Servs.,                                                                                          896 F.2d  1024,  1030  (6th Cir.  1990)                        (“[T]he reviewing court should show
deference to the decision of the administrative law judge in assessing credibility.”);
Martinez v. Shalala, 911 F. Supp. 37, 42 (D. Mass. 1996); Pratt v. R.I. Dept. of Human
Servs., No. 96-5490, 1998 WL 64190, at *9 (R.I. Super. Feb. 10, 1998).   A hearing
officer‟s  credibility  determinations  will  generally  not  be  disturbed  unless  they  are
“patently wrong in view of the cold record.”  Pope v. Shalala, 998 F.2d 473, 487 (7th Cir.
1993) (quoting Imani v. Heckler, 797 F.2d 508, 512 (7th Cir. 1986)).   Therefore, if a
reviewing court finds substantial support on the record for a hearing officer‟s credibility
determination, it must be upheld.  Id.; Pratt, 1998 WL 64190, at *9-10.
After reviewing the record present in this case, the Court finds that Ouellette
failed to sufficiently develop the administrative record on the issue of pain. Ouellette did
address the first requirement of the § 416.929 analysis by finding that Appellant had a
medically determinable impairment that could reasonably be expected to cause pain.
(Administrative Hearing Decision at 5.)  She failed to assess the credibility of Appellant‟s
subjective statements of pain found in his AP-70 form, in the Rhode Island Hospital and
Capitol Hill Health Center records, and in his testimony during the administrative hearing
on July 30, 2009.
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The federal standards mandate that hearing officers evaluate the credibility of an
applicant‟s subjective statements of pain and evaluate the described symptoms in light of
all of the evidence on record and in light of the factors found in § 416.929(c)(4).   In this
instance, Ouellette did not abide by these standards. Rather, she dismissed Appellant‟s
complaints of pain as being “not well documented.”   Id.   In addition, she failed to discuss
Appellant‟s pain symptoms during steps 2-5 of the five step inquiry as required by the
federal standards.
Appellant‟s medical records from the Capitol Hill Health Center and Rhode
Island  Hospital,  the  MA-63  form,  and  the  AP-70  form  all  contain  descriptions  of
Appellant‟s pain symptoms.   These records establish that Appellant is taking a variety of
pain medications to control his pain and that his pain imposes significant limitations on
his ability to complete daily activities.   The Court cannot discern any evidence in the
record to support Ouellette‟s rejection of Appellant‟s statements of pain.   Therefore, the
Court finds Ouellette committed a clear error or law in failing to develop the record on
this issue.   The weight of the evidence clearly demonstrates that Appellant made credible
reports of pain and that the pain he experiences impacts him severely.
F
Consideration of CTS
Appellant argues that Ouellette erred by not considering the combined effects of
his CTS with the impairments in his legs during all five steps of the sequential inquiry.
(Pl.‟s Br. in Supp. of Reversal, at 13.)   He contends that the EMG testing ordered by Dr.
Gonzalez in February 2009 establishes the existence of CTS and that this diagnosis was
not refuted by the evidence or another physician.   Id. at 13-14.  DHS responds by arguing
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that Ouellette did consider CTS, but that she properly concluded the evidence supporting
its effects on Appellant was insufficient.                                                     (Def.‟s Resp. Br. in Supp. of Agency Decision
at 18.)
When an MA applicant alleges multiple impairments as a basis for his or her
application,  the  hearing  officer  must  consider  the  combined  effect  of  all  of  the
impairments regardless of whether the individual impairments would alone be sufficient
to render the applicant disabled.                                                              20 C.F.R. § 416.923; Jamison v. Bowen, 814 F.2d 585,
588 (11th Cir. 1987); Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985).   If a
“medically severe combination of impairments” is found, the combined impact of the
impairments will be considered throughout the analysis.    Sec.  416.923.    A medical
diagnosis of an impairment without any additional evidence is insufficient to establish
that an impairment is severe.   Choquette v. Comm‟r of Social Security, 695 F. Supp. 2d
1311,                                                                                          1326  (M.D.  Fl.  2011).    Applicants  bear  the  burden  of  establishing  through
substantial  evidence  that  an  impairment                                                    “has  more  than  a  minimal  effect  on                                               [the
applicant‟s] ability to perform basic work activities.”  Id.
In this case, the only evidence Appellant produced regarding CTS is the EMG of
his right arm taken in February 2009 and Dr. Gonzalez‟ statements on the MA-63 form.
(RI Hospital Preliminary EMG Results, February 25, 2009; MA-63, March 9, 2009 at 1.)
Although the EMG report establishes that Appellant had a “right distal medial neuropathy
consistent with carpal tunnel syndrome,” this  alone is not enough  to  establish that
Appellant‟s CTS was a severe impairment.                                                       (RI Hospital Preliminary EMG Results,
February 25, 2009.)   Appellant had the burden of producing substantial evidence proving
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his CTS had a significant impact on his ability to work.   Choquette, 695 F. Supp. 2d at
1326.  Here, the Appellant failed to meet his burden on this issue.
Ouellette considered all of the evidence Appellant produced regarding CTS and
noted that Appellant was likely suffering from the condition.                                  (Administrative Hearing
Decision at  5.)    However, she went on to note that Appellant did not produce any
evidence establishing what restrictions his CTS caused or what the duration of the
symptoms was expected to be.  Id.
The Court finds that Ouellette did not err by refusing to consider Appellant‟s
CTS.   Her dismissal of CTS as a contributing factor to Appellant‟s condition was based
on substantial and competent evidence in the record, namely that Appellant failed to meet
his burden of proof.   Therefore, Ouellette‟s decision not to consider CTS along with
Appellant‟s other impairments will not be disturbed.
Conclusion
After a review of the entire record, this Court finds Ouellette‟s decision was
clearly erroneous in light of the reliable, probative, and substantial evidence. Ouellette‟s
legal errors in this case have resulted in substantial prejudice to the rights of Appellant.
Accordingly, the decision of DHS to deny Appellant MA benefits is REVERSED.
Counsel shall prepare an appropriate order for entry.
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Rhode Island Law