Moody v . HHS CV-92-657-B 03/31/94 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jacqueline Moody v. Civ. N o . 92-657-B

Secretary of Health and Human Services

O R D E R

Jacqueline Moody challenges a final determination by the

Secretary of Health and Human Services (the "Secretary") denying

her application for Social Security disability benefits. This

Court has jurisdiction pursuant to

(g) (West

Supp. 1993). Before me are Moody's motion to reverse the Secretary's decision and the Secretary's corresponding motion to

affirm. For the reasons that follow, I remand the case for

further consideration by the Secretary.

I. BACKGROUND

Moody is a 57 year old woman with a high school education

and a semi-skilled work history as a receptionist and PBX

operator. She alleges that she became disabled on December 3 1 , 1990 1 due to a combination of allergies, foot problems, urinary

frequency and mental stress. I detail these medical problems

seriatim and then briefly outline the testimony of the

Secretary's vocational expert and the substance of the ALJ's

decision.

A. Medical History

1) Allergies

Medical evidence indicates that Moody has allergic reactions

to a wide range of substances, including plants, trees, grass,

mold and fumes. She also alleges that she is allergic to such

things as paper, printers' ink, money, perfume, jewelry and air

conditioning. She tries to avoid all of the above substances,

which she claims cause her sinus pain, chest pains that radiate down her arms, numb hands and pain in her legs and feet. During

the hearing, she stated that she had chest pains and her sinuses

had become stuffy.

Dr. Siegel, an allergist who tested Moody in 1980 to

determine what substances she was allergic t o , believed that the

pain Moody experienced was not related to her allergies, but to

1 Moody has applied for, and has been receiving, unemployment insurance from that date.

2 mental stress related to her personal life.2 Moody's family

physician concurs in this diagnosis. Moody's records also

indicate the allergies themselves may be treatable, but that she

refuses treatment for fear of increased symptoms.3

2) Foot Problems

Moody has hammertoes on the second and fifth toes of each

foot that make her toes hit the tops of her shoes. She has

undergone surgery on one toe, but she states that it actually

made the toe more painful. As a result, she refuses surgery on

the other toes.

In addition to her hammertoes, Moody has bunions which cause

her feet to grow callouses. She asserts that she can only afford

to get them removed once every few months, however, after they

are removed, Moody states that she can walk relatively comfortably for two or three weeks.

2 He recommended hospitalization at a psychiatric institution but Moody refused. 3 Moody stated at the hearing that she had previously sought treatment in 1979, but that the treatment caused her condition to worsen. She "found that [she] was sensitive to more and more different things", and after three months of treatment, could hardly function.

3 The pain from her hammertoes and callouses4 prevents Moody

standing or walking for prolonged periods of time. She i s ,

however, able to clean her home, fix meals for herself and her

husband, and go grocery shopping. She frequently takes breaks

from her chores to put her feet u p . She also leaves the heavy

chores for her husband.

3) Urinary Frequency

During her waking hours, Moody feels chronic pressure in her

lower extremities that causes her to need to urinate

approximately every 30 minutes. She stated that she usually

urinates five or six times before leaving her home, and then

immediately upon arrival at her destination. Her frequent need

to urinate also makes it difficult for her to sleep. Although

she is not incontinent and testified that she can wait for up to

an hour if going to the bathroom would be inconvenient, her

frequency increases with stress.

Moody's treating physician, D r . Riotta, feels that her

symptoms may be caused by a large vaginal wall "prolapse."5

4 Dr. Kazofsky, her treating physician, has not been able to explain why her callouses cause her pain. 5 A prolapse is the inward sagging of an organ's walls.

4 However, he has told her that surgical correction of this

anatomical problem may not correct her urinary frequency, which

is essentially physiological. As a result, Moody has not yet

consented to surgery.

4) Mental Stress

Moody has been diagnosed as having an anxiety/adjustment

disorder with "mixed emotional features." Moody's disorder

stems from a dependent personality and years of involvement in

emotionally traumatic familial and marital relationships. Over

the last few years the emotional pressures of these relationships

have increased, causing Moody to breakdown more frequently.

While treatment has improved her condition somewhat, her current

counselor, Reverend Westhaven has stated that her problems "will

not be corrected in a short duration."

Moody can "function appropriately and with independence" and has an active social life. However, bouts of anxiety and

depression impair her task performance and "diminish her ability

to stay on task." Moreover, stressful situations exacerbate her

baseline disorder, "resulting in limitation of all aspects of

coping and performance," as well as exacerbating her physical

problems.

5 Moody testified that, as a direct result of her disorder,

she was dismissed from her last three jobs for poor performance.6

She stated that she would often get upset and cry, and that her

emotional strain showed on her face. Moreover, she often had to

leave her station for brief periods, or leave the office entirely

and go home. On one occasion, her employer had to take her to

the hospital because she was suffering from a panic attack.

Finally, her emotional state would often cause her to be curt or

unhelpful with customers. As a result of the above, Moody feels

that "accumulated stress" prevents her from doing her old job.

Reverend Westhaven and D r . Politz, the psychiatrist who

supervises him, agree that Moody's disorder leaves "her work

performance . . . severely impaired." However, D r . Robert

Rainie, a doctor hired by the Secretary to evaluate Moody, has

concluded that Moody's adjustment disorder only slightly impairs her daily routines, social interactions and ability to stay on

task.

6 She worked as a receptionist at Hudson Bus Lines from 9/17/90 - 12/31/90; as a receptionist with Dyer Technologies from 2/14/89 - 2/14/90; and as a receptionist with Camelot Financial Services from 9/27/88 - 3/3/89.

6 B. Vocational Expert's Testimony

At the hearing, the vocation expert testified that the bulk

of Moody's employment has been sedentary and semi-skilled. He

also testified that, except for the receptionist's position, all

of Moody's previous jobs (i.e., reservations clerk, mail clerk,

PBX operator) were at the low end of the range of semi-skilled

professions.

Before questioning the vocational expert about Moody's

employability, the ALJ asked the expert to assume the following: We're dealing with a potential worker who is currently 55 years of age. We're dealing with a potential worker who does have a high school education and a past semiskilled work background as you have indicated. If we're dealing with someone who is physically capable of doing the lifting requirements of -- and, and carrying requirements of up to 20 pounds during the work day. If we're dealing with someone, however, who would be unable to do any longer standing or walking, let's say in excess of one hour, uninterrupted during the day. . . . If we're dealing with individuals who are unable t o , to work in environments where there would be excessive dust or fumes or gasoline or diesel odors or extremely poor ventilation and, and also if we're dealing with individuals that would be better suited to work in positions where they, were it was not an intensely stressful work environment . . . or where there was a constant or repetitive dealing with, with public, public with questions or public with problems in that aspect.

Based on these assumptions, the vocational expert opined that,

assuming no debilitating environmental pollutants, Moody's

7 ability to return to her past work depended on the level of

public interaction the work involved. The ALJ then provided some parameters:

[i]f an individual in terms of dealing with the public i s , is capable of interacting socially in a very responsible way. Is able to deal with people and to be polite with people as they would in their own personal life. But would be unable to deal with very stressful situations where they had to make quick decisions, where they had to have irate customers. . . .

Based upon these limitations, the expert concluded that

Moody could return to her past work as a receptionist because she

could pass customer complaints and other stress-producing

problems on to someone higher up in the chain of authority.7

However, he admitted that most employers would not retain a

person who constantly broke down in front of customers, or if his

or her emotional problems negatively affected the employee's work product.

7 The expert also stated that such jobs existed in significant numbers in the national and New England economies.

8 C. The ALJ's Decision8

In evaluating Moody's disability claim, the ALJ applied the

five part sequential process set out in

(1993). At step four, the ALJ found that Moody could return to her past relevant work and therefore concluded that she was not

disabled. More specifically, he found that:

1. The claimant met the disability insured status requirements of the Act on December 3 1 , 1990, the date the claimant stated she became unable to work, and continues to meet them through December 3 1 , 1994.

2. The claimant has not engaged in substantial gainful activity since December 3 1 , 1990.

3. The medical evidence establishes that the claimant has an adjustment disorder with mixed emotional features, bunion deformity with hammertoes of her feet and some allergy difficulties, but that she does not have an impairment or combination of impairments listed in or medically equal to one listed in Appendix 1 , Subpart P, Regulations N o . 4 . 4. The claimant has the residual functional capacity to perform work related activities except for work involving lifting over 20 pounds occasionally and 10 pounds frequently, prolonged walking and standing for longer than one hour at a time, work requiring intense amounts of stress or work in excessive dust, fumes or

8 Moody filed an application for disability benefits on January 2 3 , 1991. The Social Security Administration ("SSA") initially denied her claim on March 2 0 , 1991. He request for reconsideration was denied on June 1 8 , 1991. She then requested and received a hearing before an Administrative Law Judge ("ALJ").

9 chemicals (

). 5. The claimant's past relevant work as a receptionist did not require the performance of work related activities precluded by the above limitations(s) (

). 6. The claimant's impairments do not prevent the claimant from performing her past relevant work.

7. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision (

(e)).

On November 2 , 1992, the Appeals Council declined to review the

ALJ's decision, thereby rendering it subject to judicial review

as a final decision of the Secretary. See

(g).

III. DISCUSSION Moody primarily attacks the ALJ's decision on the grounds that the ALJ misconstrued the record evidence and did not adequately explain his reasons for rejecting Moody's subjective pain complaints, her own descriptions of her physical limitations and the opinions of certain of her health care providers regarding the extent of her disability.9 Before addressing

9 Moody also alleges that Secretary did not carry her burden of proving that Moody retained the residual functional capacity ("RFC") to engage in substantial gainful activity. See

(1993). In other words, she argues that, assuming her challenge to the ALJ's "no disability" conclusion at step four is successful, the ALJ's alternative finding of "no disability" at

10 these arguments, I set out the legal standards governing my

review.

A. Standard of Review Pursuant to § 405(g), district courts are empowered to

"enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Secretary, with or without remanding the cause for a rehearing."

In reviewing a Social Security decision, the Secretary's factual

findings "shall be conclusive if supported by 'substantial

evidence.'" Irlanda Ortiz v . Secretary of Health & Human

Services,

(1st Cir. 1991) (quoting § 405(g)).

The Secretary's findings must be upheld "if a reasonable mind,

reviewing the evidence in the record as a whole, could accept it as adequate to support [the Secretary's] conclusion.'" Id.

(quoting Rodriquez v . Secretary of Health & Human Services,

1 8 , 222 (1st Cir. 1981)). It is the Secretary's

responsibility to "determine issues of credibility and to draw

inferences from the record evidence." Irlanda Ortiz, 955 F.2d at

step five is also unsupported by substantial evidence. I do not reach this argument because I find that the ALJ committed an error of law in calculating Moody's RFC at step four.

11 769. Moreover, "the resolution of conflicts in the evidence is

for the Secretary, not the courts."

With these principles

in mind, I now turn to the specific arguments which Moody raises.

B. Substantial Evidence

At step four in the disability analysis, the ALJ must

determine whether the claimant's impairment prevents her from

returning to her past relevant work.

(a)

(1993). The burden is on the claimant to establish that she

lacks the RFC to return to such work. Gray v . Heckler,

, 3 7 1 , 372 (1st Cir. 1985); Curtis v . Sullivan,

(D.N.H. 1992). Here, the ALJ found that, while Moody

presented evidence that she suffered from physical and mental

impairments which significantly interfered with her ability to perform basic work activities, she retained the RFC to return to

her past work as a receptionist. Moody essentially alleges that

the ALJ's conclusion misconstrues the record; consequently, she

argues that his overall conclusion -- no disability -- was not

supported by substantial evidence. I disagree.

12 1. Physical Impairments

Moody contests the ALJ's conclusions regarding the severity

of each of her three physical impairments. First, she contends

that, contrary to the ALJ's findings, her allergies imposed

limits on her physical abilities beyond merely precluding work in

office environments polluted by fumes, chemicals, dust or other

serious pollutants. The following facts, however, support the

ALJ's contrary conclusion: (1) there was absolutely no objective

medical evidence supporting Moody's assertion that she was

allergic to such office regulars as paper, ink and air

conditioning; (2) Moody began having allergic attacks in 1979,

yet continued to work as a receptionist for over ten years; and

(3) Moody has not sought treatment for her allergies since 1980.

Given the above facts, substantial evidence supports the ALJ's conclusion as to the effect of Moody's allergies on her residual

functional capacity.

Second, Moody argues that the ALJ erred in concluding that

she could perform light work requiring walking or standing for up

to one hour at a time. However, there is substantial record

evidence to support this conclusion as well. Moody could go

grocery shopping, cook meals, do light cleaning and loads of

13 laundry and otherwise perform tasks that might often take at

least an hour. While Moody did testify that she rested quite

often and put her feet up while at home, the time a typical

receptionist spends sitting would provide similar opportunities

for Moody to rest her feet. Indeed, despite having foot problems

for some time, the record reveals only one day on which these

problems caused her to miss work.10 Thus while the ALJ

recognized that her feet were undoubtedly painful, he also

reasonably concluded that this pain did not preclude her from

standing for the short periods of time usually required of a

receptionist.

Finally, Moody claims that the ALJ incorrectly concluded

that her urinary problem was not "ongoing" and "did not require

treatment," and that she only needed to go to the bathroom six or

seven times in a typical day. This argument essentially treats inartful phraseology as error. When viewed in context, however,

the import of the ALJ's statements are clear. First, in stating

that Moody's bladder condition was "not ongoing" and did not

require treatment, the ALJ was merely stating that her bladder

10 Moody had her callouses removed that day, and her feet were too tender to walk the long distance from where she parked her car to her work station inside her office building.

14 condition would not respond to ongoing treatment and was not

severe enough to force Moody to consent to immediate surgery.

Both of these conclusions are supported by substantial medical

evidence and by Moody's own testimony.

Second, in stating that Moody's "frequency is only of about

six or seven times a day", the ALJ obviously meant an eight-hour

workday. Moody explicitly stated that she could wait for up to

an hour before going to the bathroom if necessary, and the

vocational expert stated that Moody would be able to hold a

receptionist's position despite taking two or three unscheduled

breaks a day. Based on this evidence, the ALJ could reasonably

conclude that Moody could limit her frequency to six or seven

times per workday, and that, with lunch and other scheduled

breaks, she could accommodate these needs without endangering her

job. Indeed, despite her urinary difficulties, Moody has worked as a receptionist for years. Her very ability to do the job

despite her urinary frequency supports the ALJ's determination.

2. Mental Impairment

Moody alleges that the ALJ's "most flagrant violation of

logic and common sense" is his determination that, while Moody's

task performance might be somewhat impaired by anxiety associated

15 with her family and marital difficulties, these difficulties are not "work-related" and thus require only that she avoid intensely stressful jobs that might exacerbate her base stress levels. Moody claims that the ALJ's reasoning is fundamentally flawed because he fails to account for the fact that, irrespective of the source of Moody's difficulties, their effect is to preclude her from holding a job.

Substantial record evidence supports the ALJ's determination that Moody's emotional problems pose no limitation on her ability to perform the job tasks required of a typical receptionist. Admittedly, two of Moody's treating health care providers reached a contrary conclusion. However, where a treating physician's testimony is inconsistent with other substantial record evidence, this testimony is not entitled to controlling weight.

(d)(2); Sitar v . Schweiker,

9 , 22 (1st Cir. 1982). In disregarding Westhaven and Politz's opinions, the ALJ reasonably relied upon (1) D r . Rainie's statement that Moody's disorder only slightly impairs her daily routines, social interactions and ability to stay on task; (2) Moody's long work history; and (3) her range of daily activities.11 Moreover,

11 Besides performing typical household tasks, the ALJ found that Moody also functions well outside her home. For example,

16 based in part on evidence provided by Westhaven and Politz, the

ALJ reasoned that Moody's adjustment disorder and related

emotional outbursts were traceable primarily to her home

situation, not work-related stresses. Given the above, there is

substantial record support for the ALJ's conclusion that, while

Moody could not work in a job which itself would unduly increase

her baseline anxiety level, her mental impairments did not

preclude her from performing the tasks required of a typical

receptionist. See Irlanda Ortiz,

(consistent

with SSR 85-15, mental impairment not disabiling if claimant

remains able to cope with demands of work environment, such as

need to be punctual, to attend work regularly and for the entire

workday, and to accept supervision).

This conclusion, however, does not end the inquiry. A

"finding that a claimant is able to engage in substantial gainful activity requires more than a simple determination that the

claimant can find employment and that he or she can physically

perform certain jobs; it also requires a determination that the

claimant can hold whatever job he or she finds for a significant

period of time." Singletary v . Bowen,

1 8 , 822 (5th

she is very involved with her choir at church.

17 Cir. 1986); Thomas v . Sullivan,

(8th Cir.

1989). As a result, if a claimant presents facts raising this

issue, the ALJ must make a finding not only that a claimant can

obtain employment, but that he or she can maintain i t .

Singletary,

. See also Moore v . Sullivan,

(5th Cir. 1990); Curtis,

.

Here, Moody has introduced evidence that she was fired from

three receptionist jobs in two years for the same reason -- her

emotional problems prevented her from being able to carry out her

duties in a satisfactory manner. She has thus raised the issue

of her ability to maintain a receptionist's position if she were

hired. While there is substantial evidence indicating that she

could maintain such a position, the ALJ did not make a specific finding on this issue. Thus, I cannot determine whether the ALJ

employed the correct legal standard in determining that Moody was

able to return to her past relevant work. I therefore remand the

case to give the ALJ the opportunity to clarify this issue. To

further narrow the issue that the ALJ must address on remand, I

go on to address Moody's final step four argument.

3. Subjective Pain Complaints

18 Based on Avery v . Secretary of Health & Human Services,

(1st Cir. 1986), Moody alleges that the ALJ incorrectly

discounted her subjective pain complaints relating to her

allergies and feet.12 I disagree.

In determining the weight to be given to a claimant's

allegations of pain, the First Circuit has stated that

"complaints of pain need not be precisely corroborated by

objective findings, but they must be consistent with medical

findings." Dupuis v . Secretary of Health & Human Services.,

2 2 , 623 (1st Cir. 1989) (citing Avery,

1 ) .

Moreover, "[t]he credibility determination by the ALJ, who

observed the claimant, evaluated his [or her] demeanor, and

considered how that testimony fit in with the rest of the

evidence, is entitled to deference. . . ." Frustaglia v .

Secretary of Health & Human Services., 829, F.2d 1 9 2 , 195 (1st Cir. 1987).

Here, the ALJ carefully considered Moody's pain complaints

12 Moody also argues that the ALJ did not accord adequate weight to Moody's account of the number of times she must urinate during the day or to the opinions of D r . Politz and Reverend Westhaver regarding the severity of Moody's adjustment disorder and associated emotional problems. These claims, however, are merely a confused restatement of arguments I have already addressed. See Section II.B.1-2, supra.

19 as well as the relevant medical evidence concerning her allergies

and foot problems. He identified the specific record evidence he

relied upon to conclude that Moody's foot pain was not

debilitating -- her activity level, her ability to go without

treatment for almost two months at a time, and the relief she

gets from sitting down for short periods. Moreover, Moody's

doctor could not find objective medical support for the symptoms

she allegedly suffered.

With respect to Moody's allergies, the ALJ explicitly

discounted her pain complaints because, inter alia, he found her

assertions of allergies to paper, ink and air-conditioning to be

unsupported by any objective medical findings and otherwise

incredible.13 Moreover, although Moody claimed at the hearing to

be suffering from shooting pains, the ALJ saw no visible evidence

of this. Given the above evidence, I see no reason to question the ALJ's findings.

13 These findings are borne out by evidence Moody introduced subsequent to the ALJ's decision. This evidence -- records from Moody's allergist of a decade ago -- indicate that she has never been tested for allergies to paper, ink, jewelry and air- conditioning. More importantly, the records indicate that the pains which Moody associates with her allergies is probably psychological and may result from stress.

20 III. CONCLUSION

For the foregoing reasons, I grant Moody's motion for

reversal of the Secretary's decision denying her disability

benefits (document n o . 7 ) and remand the case for further

consideration in light of this Order. The Secretary's motion to

affirm its decision is denied (document n o . 8 ) .

SO ORDERED.

Paul Barbadoro United States District Judge

March 3 1 , 1994

cc: Elizabeth R. Jones, Esq. Gretchen Leah Witt, Esq.

21