Dow v . HHS CV-93-76-B 03/31/94

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Forrest J. Dow

v. Civil N o . 93-76-B

Secretary of Health and Human Services

O R D E R

Forrest Dow brings this action pursuant to

(g) (West Supp. 1993), challenging a final determination by

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

his application for Social Security disability benefits.

Presently before the court are Plaintiff's Motion to Admit New

Evidence, Plaintiff's Motion to Reverse the Decision of the

Secretary, and Defendant's Motion for Order Affirming the

Decision of the Secretary.

I. STANDARD OF REVIEW

Pursuant to

(g), the court is empowered to

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

judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing."

In reviewing a Social Security decision, the factual findings of

the Secretary "shall be conclusive if supported by 'substantial

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

(1st Cir. 1991) (quoting

(g)). 1

Thus the court must "'uphold the Secretary's findings . . . if a

reasonable mind, reviewing the evidence in the record as a whole,

could accept it as adequate to support [the Secretary's]

conclusion.'"

(quoting Rodriguez v . Secretary of Health &

Human Serv.,

1 8 , 222 (1st Cir. 1981)). Moreover, it is

the Secretary's responsibility to "determine issues of

credibility and to draw inferences from the record evidence," and

"the resolution of conflicts in the evidence is for the

Secretary, not the courts." Irlanda Ortiz,

(citing Rodriguez, 647 F.2d at 2 2 2 ) .

II. BACKGROUND

Claimant was born on February 4 , 1953. He has a fifth or

1 The Supreme Court has defined 'substantial evidence' as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v . Perales, 91 S . C t . 1420, 1427 (1971). "This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v . Federal Maritime Comm'n, 86 S . C t . 1018, 1026 (1966). sixth grade education and can read simple words and write his

name. His job history includes positions as a shoe laster, a

general laborer, and a carpenter. Claimant asks this court to

review the findings and determinations of the Secretary, and the

new evidence he seeks to admit to the court, and either remand

for further hearing or rule that he is entitled to benefits from

June 1 4 , 1990 to date.

A. Medical History

Claimant's medical records indicate that he suffered a work

related accident on August 2 6 , 1988 while lifting a heavy door.

He was treated by D r . David Glazer, an orthopedic surgeon, for

complaints of back pain radiating down his left buttock and leg.

Initial x-rays revealed spondylolisthesis at L5-S1. A CAT scan showed a question of a disc herniation at L4-L5, but a myelogram

was negative. Physical therapy was prescribed, which improved

claimant's condition minimally, and D r . Glazer recommended

surgery. The claimant declined surgery, and sought a second

opinion. D r . William Lipman reviewed claimant's previous test

results and confirmed the diagnosis of a herniated disc at L4-5,

but felt that because the herniation was so small, the claimant

was a better candidate for an epidermal steroid injection or

3 percutaneous suction discectomy rather than surgery. Claimant

declined both treatments and continued with physical therapy.

Claimant sought psychological help at the Seacoast Mental

Health Center in March 1989, where he complained of sleeping

problems, nervousness, and headaches. The psychologist felt that

claimant's problems stemmed from a need to work through the loss

of his daughter, who was violently murdered. She recommended

short term therapy to help claimant work through his anger and

helplessness.

Complaining of left chest and shoulder pain, claimant was

admitted to Catholic Medical Center in June 1989. On admission

claimant's EKG was normal, serial cardiac enzymes showed no

evidence of myocardial infarction, and telemetry monitoring

showed no significant arrhythmias. D r . James Clayburgh treated

claimant with a cardiac catheterization, which revealed a high grade 90% stenosis of the left anterior descending artery with

otherwise normal coronary circulation. D r . Clayburgh reported

that the claimant tolerated the procedure well and recovered

uneventfully.

Claimant returned to physical therapy in August, 1989, when

Dr. Lipman indicated that although his herniated disc had

resolved, he did not feel that M r . Dow could return to manual

4 labor and instead must be retrained. A visit in September

revealed that the claimant was continuing to improve with pain in

the morning which sometimes extended down his left leg. In

February 1990, claimant received a epidural steroid injection for

inflammation, and was started on Talwin NX and Indocin SR.

Claimant continued to be treated for back pain, but declined a

suction discectomy, preferring an operation if his condition

worsened.

Claimant was admitted for a second coronary angiography and

angioplasty in December 1989, and was successfully treated by D r .

John O'Meara. Follow-up visits with D r . Clayburugh revealed that

claimant had a minimal luminal irregularity in the left anterior

descending artery, however his other coronary arteries were

normal, with excellent post-angioplasty recovery. Claimant had a

normal chest x-ray and EKG. Claimant was examined by D r . Clinton Miller, a neurosurgeon,

in March of 1990. He complained of a sharp sudden pain in his

left buttock which progressed into his left calf and the heel of

his foot, and eventually his entire left leg and hip ached,

restricting his walking and standing activity. He received a

Medrol Dosepak and a course of epidural steroid injections,

however they did not help his symptoms. He also complained of

5 numbness and tingling in his foot and toes. Lumbosacral x-rays

showed spondylolisthesis at L5-S1 with a minimal anterior

slippage of L5 forward over the sacrum. A CAT scan showed some

disc herniation with left protrusion of soft tissue with L4-L5

encroaching on the left nerve root. D r . Miller opined the

claimant was totally disabled at the time and recommended a L4-L5

hemi-laminotomy and discectomy. This surgery was scheduled, but

had to be cancelled due to an insurance problem. In May, 1990

Dr. Lipman noted that claimant showed much improvement, with easy

heel and toe walking and no weakness. No surgery was scheduled

and claimant said that he would call if he got worse. D r . Lipman

noted that he felt M r . Dow was capable of returning to light work

as of June, 1990.

Claimant continued to be treated by D r . Lon Sherman, a

cardiologist, from May through September, 1990. Claimant complained of chest pain in May, but cardiac ultrasound and

echodoppler testing yielded normal results, with no evidence of

wall motion abnormalities, no chamber enlargement, or chamber

hypertrophy. Claimant saw D r . Sherman in August, 1990, and

complained of chest pain which was not relieved by medication.

Dr. Sherman advised claimant of the possibility of another

catheterization if his symptoms continued, and stated that the

6 possibility of restenosis could not be ruled out. In September,

claimant went to the emergency room, complaining of chest

palpitations which lasted for 20 minutes. He also reported

symptoms of throat pain but no dizziness, nausea or shortness of

breath. A physical examination yielded normal results, and he

was released with a recommendation to visit his doctor the

following day. D r . Sherman saw claimant two additional times

between September and December, 1990, at which time he complained

of general fatigue, and vague, migratory chest pains, not typical

of angina. D r . Sherman indicated in January, 1991, that he

believed claimant was physically well at that time, and he placed

him on a limited medical regimen for his hypertension.

In January, 1991, claimant returned to the Seacoast Medical

Center complaining of sleep difficulties, anger, and a strong

sense of hopelessness and not caring about anything. Valium was prescribed. The doctor at the clinic opined that claimant

suffered from post-traumatic stress disorder, which rendered

claimant totally disabled, inhibiting his ability to follow

doctor's orders, and caused claimant's physical problems.

Claimant underwent hemi-laminectomy and disk excision surgery in

June, 1991, and made a good recovery with minimal leg pain. He

had normal EKG and chest x-rays at the time. Within a month

7 after surgery, D r . Lipman observed claimant to be moving freely

with no tenderness to palpitation, no calf pain, and a full range

of motion. Claimant was again referred to physical therapy.

In December, 1991, D r . Schneller, of the Seacoast Medical

Center opined that claimant was totally disabled due to his post-

traumatic stress disorder, major depression, and passive

aggressive personality disorder. D r . Schneller indicated that

claimant's emotional problems had a multiplier effect on his

physical problems.

B. Procedural History

Claimant filed an application for disability insurance

benefits on or about May 7 , 1990. The claim was denied on

October 2 5 , 1990. His request for reconsideration was likewise denied on June 1 3 , 1991. Claimant then requested, and received,

a hearing before an Administrative Law Judge (ALJ) on November

1 9 , 1991. The ALJ found that:

1. The claimant met the disability insured status requirements of the Act on August 2 6 , 1988, the date the claimant stated he became unable to work, and continues to meet them through September 3 0 , 1993.

2. The claimant has not engaged in a substantial gainful activity since September 2 6 , 1988.

3. The medical evidence establishes that the claimant has

8 severe depression, cardiac problems and L4-5 radiculopathy status post-disc excision with low back pain, but that he 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's hearing testimony was relating to the period between August 2 6 , 1988 and June 1 4 , 1990 was generally consistent with the medical information documented in the record and is found credible. However, the claimant's hearing testimony regarding the period after June 1 4 , 1990 was not entirely credible with respect to his allegations of pain because as analyzed on the criteria of Social Security Ruling 88-13 and the Avery court order, the allegations did not consistently support a finding of disability. Rather they supported a determination that the claimant had sufficient residual functional capacity for work activity in the sedentary range.

5. During the period August 2 6 , 1988 to June 1 4 , 1990, the claimant had the residual functional capacity to perform the physical exertional requirements of work except for the exertional requirements of very heavy, heavy, medium, light and the full range of sedentary work. As of June 1 4 , 1990, the claimant could perform all of the requirements except for the exertional requirements of very heavy, heavy, medium and light work and the nonexertional limitations of only minimal bending, no running, jumping, frequent squatting or getting in unusual or tight positions (

).

6. The medical evidence establishes that there has been improvement in the claimant's medical impairment since August 2 6 , 1988, the alleged onset of disability.

7. This medical improvement is related to the claimant's ability to work (

).

8. The claimant is unable to perform his past relevant work as a carpenter.

9. Prior to June 1 4 , 1990, the claimant had the residual functional capacity for less than the full range of

9 sedentary work. On and after June 1 4 , 1990, the claimant regained the residual functional capacity to perform the full range of sedentary work (

). 10. The claimant is currently 38 years old, which is defined as a "younger person" (

).

11. The claimant has less than a limited (sixth grade) education (

).

12. The claimant does not have any required work skills which are transferable to the skilled or semi-skilled work functions of work (

).

13. Section 404.1569 of Regulations N o . 4 and Rules 201.24, 201.25 and 201.26, Table N o . 1 of Appendix 2 , Subpart P, Regulations N o . 4 , direct a conclusion that the claimant, considering his residual functional capacity, age, education, and work experience, was not disabled between August 2 6 , 1988 and June 1 4 , 1990. Considering the claimant's nonexertional limitations, vocational testimony establishes that there were not a significant number of jobs in the national economy which the claimant could have performed between August 2 6 , 1988 and June 1 4 , 1990.

14. Section 404.1569 of Regulations N o . 4 and Rules 201.24, 201.25 and 201.26, Table N o . 2 , Appendix 2 , Subpart P, Regulations N o . 4 direct that considering the claimant's residual functional capacity, age, education, and work experience, he be found not disabled commencing June 1 4 , 1990.

15. The claimant was under a "disability", as defined in the Social Security Act, during the period August 2 6 , 1988 to June 1 4 , 1990 but not thereafter (

(f)).

A request for review made to the Appeals Council was denied on

December 1 4 , 1992. Claimant filed the instant appeal on or about

February 5 , 1993.

10 III. DISCUSSION

A. Issues

Claimant asks this court to admit new evidence not submitted

to the ALJ or the Appeals Council. He argues that this evidence

was unavailable at the time of the hearing before the ALJ.

Claimant further contends that the evidence could affect the

ALJ's decision if he were given the opportunity to consider i t .

He therefore requests that I remand the case to allow this

evidence to be considered. Claimant alternatively seeks to have

the ALJ's decision denying him benefits from June 14 1990 to date

reversed because he contends that the ALJ relied on incorrect

legal standards when reaching his conclusion. I consider these

arguments in turn.

B. Analysis

1. Motion to Admit New Evidence

Pursuant to

(g), this court has the authority

to "order additional evidence to be taken before the Secretary,

but only upon a showing that there is new evidence which is

material and that there is good cause for the failure to

incorporate such evidence into the record in a prior proceeding."

11

(g). Remand on the basis of new evidence is

appropriate if the Court concludes that the Secretary's decision

might reasonably have been different had the new evidence been

before the Secretary at the time of his or her decision.

Evangelista v . Secretary of Health and Human Services,

(1st Cir. 1987); Falu v . Secretary of Health and Human

Services,

4 , 27 (1st Cir. 1983). It is well

established that information which only duplicates or

reinterprets evidence previously submitted at an administrative

hearing will not constitute sufficient grounds for remand.

Evangelista,

(citing Teal v . Mathews,

7 4 , 481 (D. Md. 1976)).

The First Circuit has clarified § 405(g), stating that "to

qualify under the new/material standard, the discovered data must

be meaningful--neither pleonastic nor irrelevant to the basis for the earlier decision." Evangelista,

. Further,

"good cause" exists where "the evidence surfaces after the

Secretary's final decision and the claimant could not have

obtained the evidence during the pendency of that proceeding."

Perry v . Shalala,

at *2 (D.N.H. Sept. 2 3 , 1993)

(quoting Lisa v . Secretary of Health and Human Services,

0 , 44 (2d Cir. 1991)).

12 Claimant seeks to admit an evaluation performed by D r . Frank

Graf, an orthopedic surgeon, who treated him from September 10

through November 2 5 , 1992. Claimant asserts that this evidence

is new and material because D r . Graf evaluated him as being

unable to return to even sedentary work. The Secretary asserts

that this assessment alone is insufficient to merit a remand

because the evaluation is based on medical evidence substantially

the same as the medical evidence already in the record, and that

claimant has failed to demonstrate good cause for not submitting

the evidence to the Appeals Council. Because I find that

claimant has failed to assert that he has good cause for not

submitting the report to the Appeals Council prior to the

Secretary's final decision, it is unnecessary to determine

whether the evidence claimant wishes to submit is new and/or

material. Dr. Graf's assessments are contained in letters dated

October 2 , 1992 and November 2 5 , 1992. The Appeals Council

rendered its decision on December 1 4 , 1992, thus making the

Secretary's decision final as of that date. Because claimant

offers no explanation for failing to submit D r . Graf's reports to

the Appeals Council, I find that he has failed to establish good

cause for failing to submit the evidence to the Secretary prior

13 to a final decision. I therefore deny claimant's request to

admit this evidence.

2 . Motion to Reverse

Claimant contends that the Secretary's decision denying him

benefits from June 1990 to the present date was not supported by

substantial evidence because: 1 ) the ALJ failed to consider the

effects of claimant's physical and psychological impairments, 2 )

the ALJ put excessive weight on D r . Lipman's opinion of

claimant's work capacity, 3 ) the ALJ did not fully and accurately

describe claimant's limitations in posing hypothetical questions

to the V E , and 4 ) the ALJ failed to make specific credibility

findings concerning claimant's pain testimony. I consider these

arguments in turn.

a. The Combined Effects of Claimant's

Physical and Psychological Impairments Claimant contends that the ALJ erred as a matter of law

because he did not assess the combination of claimant's physical

and psychological impairments in assessing his residual

functional capacity ("RFC"). This contention is completely

without merit.

The ALJ's decision detailed his findings of both the

claimant's physical and mental impairments and their effect on 14 his functional capacity. First, he evaluated the claimant's

physical condition as a result of his back and heart problems,

detailing the medical evidence extensively. He noted the

symptoms and complaints that claimant had expressed to his

doctors after the accident in 1988 through July 1991. He also

noted the significant improvement in claimant's back condition as

reported by D r . Lipman in September 1990, which continued to

improve through July 1991. He noted claimant's extensive medical

history related to his heart condition, including claimant's two

significant operations and symptoms between August 1988 through

June 1990. The ALJ also noted claimant's improved status as

reported by his doctors on August 1990, the diagnosis by one

doctor that claimant was limited by his heart disease rather than

completely disabled, and another doctor's vague diagnosis that

claimant was "probably disabled." Finally, the ALJ noted claimant's extensive psychological history and, as reported by

his doctors, the improvement in this condition over time. It was

only after considering all of these factors that the ALJ assigned

claimant the RFC for sedentary work.

The findings of the Secretary are conclusive if supported by

substantial evidence and should be upheld even in those cases in

which the reviewing court, had it heard the same evidence de

15 novo, might have found otherwise. Lizotte v . Secretary of Health

and Human Services,

2 7 , 128 (1st Cir. 1981). Because a

review of the medical record in this case reveals that the

Secretary's conclusions in assessing claimant's RFC clearly

included analysis of all of claimant's disabilities I find that

his conclusion was supported by substantial evidence, and it

should therefore be affirmed. b. The ALJ put excessive weight on D r . Lipman's opinion of claimant's work capacity.

Claimant next contends that the ALJ gave excessive weight to

Dr. Lipman's opinion of the claimant's work capacity. He

contends that the ALJ ignored all of the evidence except D r .

Lipman's opinion when determining that the claimant had a

capacity to perform sedentary work. This argument is also completely without merit.

The regulations give the ALJ wide discretion in weighing

evaluations by treating physicians. They require that a treating

physician's opinion be "well-supported by medically acceptable

clinical and laboratory diagnostic techniques and [not]

inconsistent with other substantial evidence in [the] case

record."

(d)(2). It is firmly established

that the ALJ is not required to accept the conclusions of any

16 particular physician on the ultimate issue of disability. See

Arroyo v . Secretary of Health and Human Services,

(1st Cir. 1991).

Claimant's assertion that the ALJ did not consider other

evidence besides D r . Lipman's assessment can be easily refuted by

a reading of the ALJ's opinion. As detailed above, the

assessment of claimant's RFC came only after a careful

examination of all three of claimant's medical problems and

history. This examination included an assessment of not only D r .

Lipman's opinion, but all of the medial results and D r . Miller's

assessment regarding claimant's back problems. It is clear from

a review of the record that the Secretary's determination of

claimant's RFC was based on substantial evidence in addition to

Dr. Lipman's opinion.

c. Hypotheticals Posed to the VE Claimant next contends that the ALJ did not fully and

accurately describe claimant's limitations in posing hypothetical

questions to the VE because he did not consider claimant's

depression and did not consider claimant's medication side

effects. I disagree.

In determining whether a significant number of jobs exist in

the economy that plaintiff could perform, the ALJ may rely on VE

17 testimony in conjunction with the Medical-Vocational Guidelines

("the Grid"). See Ortiz v . Secretary of Health and Human

Services,

(1st Cir. 1989).

(1) claimant's depression

In the first hypothetical posed to the VE the ALJ included

the following restrictions: [A] worker is 38 years of age and has a sixth grade education. And does not have proficiency in reading and writing. Can, read minimally, but writing i s , i s , is not a skill. . . . Claimant was limited to a sedentary work function, and at a minimal could not perform a job unless there was minimal bending, no running, jumping, frequent squatting or getting in unusual or tight positions.

In his second hypothetical the ALJ included the restriction

"that the claimant would need a low stress job requiring little

or no contact with fellow employees or supervisors." This restriction is supported by the medical evidence as given by D r .

Schneller from the Seacoast Mental Health Center who expressed

concern that claimant's personality problems could cause claimant

to become involved in confrontations with co-workers or

supervisors. Although D r . Schneller opined that he believed

claimant to be totally disabled from gainful employment, he

identified no other evidence to support this conclusion. The ALJ

is not required to blindly accept the conclusions of the

18 claimant's treating physicians on the ultimate issue of

disability, Arroyo v . Secretary of Health and Human Services,

(1st Cir. 1991), and instead may weigh the medical

evidence in the case record and come to his or her own

conclusion. So long as that conclusion is supported by

substantial evidence, I am required to uphold i t . See Irlanda

Ortiz,

(upholding ALJ's determination that

claimant's mental condition did not substantially reduce his

ability to perform a full range of work).

Here the ALJ's determination not to credit D r . Schneller's

unsupported assertion that the claimant was totally disabled from

gainful employment is adequately supported by the record. In

coming to his conclusion, the ALJ noted that the only specific

limitation on plaintiff's functional capacity identified by D r .

Schneller was that plaintiff should be restricted from contact with supervisors and fellow employees. The ALJ further accepted

these facts and incorporated them into the second hypothetical.

This restriction is supported by numerous reports of claimant's

doctors. Hence, I find it to be supported by substantial

evidence. Because the VE testified that a person with a

restriction as listed in hypothetical two would be able to

perform a surveillance job, which numbered 700 in New Hampshire

19 and about 170,000 nationwide, the Secretary had substantial

evidence to support the conclusion that there were a significant

number of jobs in the economy which the plaintiff was capable of

performing.

(2) side effects of claimant's medication

Claimant also contends that the ALJ did not consider the

side effects of claimant's medications. When the VE was asked

what effect dizziness or drowsiness would have on the

surveillance job, the VE responded that the dizziness would only

effect the job if the dizziness blurred one's vision so that one

could not see the image clearly. Claimant's testimony concerning

the side effects of his medication were that it "left him a

little bit fuzzy." Claimant gave no testimony that his vision

was significantly blurred. Thus the ALJ's decision that claimant

would be capable of performing this job was supported by substantial evidence, and his finding is upheld on this issue.

d. The ALJ failed to make specific credibility findings concerning the credibility of claimant's pain testimony.

Claimant's final claim is that the ALJ failed to make

specific findings to support his conclusion that claimant's pain

complaints after June 1 4 , 1990 lacked credibility. I disagree.

20 21 In determining the weight to be given to 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 and Human Services,

2 2 , 623 (1st Cir. 1989)

(citing Avery v . Secretary of Health and Human Services,

9 , 21 (1st Cir. 1986)). Further, "[w]hen there is a claim of

pain not supported by objective findings, the adjudicator is to

`obtain detailed descriptions of daily activities by directing

specific inquiries about the pain and its effects to the

claimant, his/her physicians . . . and other third parties . . .

.'" Avery,

(quoting Program Operations Manual

System (POMS), DI T00401.570). If the ALJ has followed this

directive, "[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, especially when supported by

specific findings." Frustaglia v . Secretary of Health and Human

Services,

9 2 , 195 (1st Cir. 1987).

Here the ALJ accepted claimant's complaints regarding the

time period of August 1988 to June 1 4 , 1990, but found that

claimant's complaint of constant pain after that time period was

22 not supported by the record. In response to the ALJ's questions,

claimant testified that his biggest problem was his back, which

would ache and cause his leg to ache. He testified that he had

this ache every day, but if he stood, it would go away for 20

minutes to an hour. He testified that he spent his day "doing

what he could around the house" and watching T.V. He asserted

that he was only able to do little things around the house, and

only for brief periods of time before his back began to bother

him and he had to sit or lay down. He testified that the

furthest trip he had taken was the 40-mile trip to the hearing,

which required him to stop after 20 minutes of driving. He

further testified that he walks around malls to get exercise and

that he visits his sisters, who live within one mile of his

house, "every now and then." He testified that he could lift a

gallon of milk, that stairs do not bother him, that he could make a fist, hold a coffee or teacup, turn a doorknob, and put his

arms out for short periods of time without trouble. He stated

that he went into town every day, either to the store, for

coffee, or to the Post Office.

In response to questions from his attorney, claimant

testified that he could only stand for 20 minutes and that he was

required to lay down two to three times each day. He also

23 testified that prior to his angioplasties, his shoulder would

ache whenever he walked, but that now it usually only ached when

he overexerted himself, but that it hurt the previous night for

no reason at all. He further testified that when he performed

activities that required repetitive motion of his arms it caused

them to ache. He asserted that he did not feel that he would be

capable of performing a small assembly job for eight hours a day

because after 4-5 hours, he would experience shoulder pain.

The ALJ determined that claimant's allegations of pain after

June 1 4 , 1990 were not entirely credible "because as analyzed on

the criteria of Social Security Ruling 88-13 and the Avery court

order, the allegations did not support a finding of disability.

Rather, they supported a determination that the claimant had

sufficient residual functional capacity for work activity in the

sedentary range." As I determine that this specific finding is supported by substantial evidence, I reject the claimant's

argument.

III. CONCLUSION

Plaintiff's Motion to Admit New Evidence (document #9) is

denied. Plaintiff's Motion to Reverse the Decision of the

Secretary (document #8) is denied. Defendant's Motion for Order

24 Affirming the Decision of the Secretary (document #7) is granted.

SO ORDERED.

Paul Barbadoro United States District Judge

March 3 1 , 1994

cc: Raymond J. Kelly, Esq. Gretchen L . Witt, Esq.

25