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Christopher R. Cote v. Michael J. Astrue

June 7, 2012


The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge

Opinion No. 2012 DNH 099


Christopher R. Cote seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Commissioner of the Social Security Administration, denying his application for social security disability insurance benefits under Title II. Cote contends that the Administrative Law Judge ("ALJ") made several errors, including that he erred in finding that Cote could do his past work as a warehouse operator and forklift operator. The Commissioner moves to affirm the decision.


Cote previously worked as a delivery driver and as a forklift operator in a warehouse. He last worked on November 13, 2006, when he was injured while working. He is a high school graduate and was thirty-seven years old when he stopped working.

Before 2006, Cote had a history of surgery to repair back, ankle, and shoulder problems. Despite those issues, he continued to work full time although he also experienced continuing pain. In November of 2006, Cote had arthroscopic surgery on his left shoulder. Although he made some progress post surgery, Dr. Ricardo A. Gonzales recommended surgical repair of the left rotator cuff, which was in April of 2007.

In August of 2007, Cote aggravated his shoulder during strength training. In November, Dr. Gonzales told Cote that he did not think further surgery would help. Dr. Gonzales wrote that Cote could do work at waist level without heavy weight.

Cote required additional treatment following a car accident in June of 2008. In August of 2008, Cote saw Ms. Morrison at a pain clinic and explained that his primary pain was at the back of his head and in his lower back. On examination, Cote had good range of head motion in all directions, good range of arm motion overhead, no difficulty with walking, normal strength tests, and normal sensation and reflexes. One test was positive for left sacroiliac pain with a suggestion of right sacroiliac pain, and Cote had tenderness to palpation on the left side of his back. Cote continued to see Ms. Morrison for pain treatment and had sacroiliac injections for back pain. The administrative record has no medical records from November of 2008 through November of 2010.

In January of 2009, Cote completed a report indicating that he was in constant pain and could not lift much weight or walk or stand for long because of ankle problems. An unsigned and undated "Disability Report Form" indicated that Cote's job as a forklift operator in a warehouse required driving a forklift, loading and unloading merchandise with the forklift, standing for eight hours and walking for one hour, handling and grasping for four hours, and writing and handling small objects for one hour. The form indicated that the heaviest object Cote lifted was less than ten pounds.

Cote completed a function report in March of 2009, in which he said that chronic back, shoulder, and ankle pain limited his ability to sleep. He said he had some difficulty dressing and in other personal care activities due to shoulder pain. Cote said that he prepared daily meals, did laundry, cleaned the house, and required no help with those tasks. He went outside every day, drove a car, and did weekly shopping. He wrote that he no longer participated in sports because of his leg, back, and shoulder pain. He said that he visited with friends and family but less than before the pain began. Cote said that he could lift weight up to ten pounds, could walk for one-half mile without resting, had no problems with memory or following instructions, did not need a cane, and handled stress as well as anyone.

On April 30, 2009, Dr. Hugh Fairley, a state agency physician, reviewed Cote's medical records for purposes of a residual functional capacity assessment. Dr. Fairley found that Cote was able to do light work without frequent overhead reaching with his left arm, with lifting twenty pounds occasionally and ten pounds frequently, with standing and walking for a total of about six hours in an eight hour work day, with sitting for a total of six hours in an eight hour work day, and with only occasional postural activities.

In December of 2010, Cote saw Dr. Ross because of pain in his right shoulder and left ankle. Cote said that his right shoulder pain was more significant and started a week before the appointment, apparently the result of throwing a bag of garbage. Dr. Ross found that Cote's shoulder motion was severely guarded and restricted, with some mild tenderness and weakness on manual muscle testing. Reflexes and sensation were normal. Shoulder x-rays showed minimal irregularity, but an MRI showed a re-tear of the rotator cuff. Dr. Ross found some ankle tenderness. Cote's heel cord was intact, but his range of motion was guarded and restricted, and he walked with a limp. Ankle x-rays showed moderate degenerative bone formation, but the joint spaces looked reasonably maintained, and no other abnormalities were seen.

B. Administrative Proceedings

Cote applied for disability benefits in ...

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