Edwards v . HHS CV-92-618-B 02/18/94

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Florence A . Edwards

v. Civil N o . 92-618-B

Secretary of Health and Human Services

O R D E R

In this action, Florence Edwards, ("claimant") challenges a

final determination by the Secretary of Health and Human Services

("Secretary") denying her application for Social Security

disability benefits. The court has jurisdiction pursuant to

(g) (West Supp. 1993). Currently before the court are Plaintiff's Motion to Reverse Decision of the Secretary and

Defendant's Motion for Order Affirming the Decision of the

Secretary. For the following reasons I affirm the Secretary's

decision.

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 disability 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 ) .

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).

2 III. BACKGROUND

Claimant was born on August 1 2 , 1952, and currently resides

in Manchester, New Hampshire. She has an eighth grade education,

and has previously worked in the shoe manufacturing industry as a

stamper and a heat set operator. Claimant seeks disability

benefits from "[f]ebruary 2 6 , 1988 up through and including the

present date, due to chronic back pain and a severe foot injury."

A. Medical History

Claimant's medical records indicate that in February 1988,

she sustained significant injuries when she was forced to jump

from a second story window during a fire in her apartment

building. Claimant fractured both her feet, and suffered a

compression fracture of her vertebrae. As a result of these

injuries she was hospitalized for approximately one month. Claimant remained under the care of D r . Thomas J. Kleeman, M.D.,

an orthopedic surgeon, and received physical therapy on an

outpatient basis. Over the course of her therapy, claimant's

left foot and ankle healed, but sustained a "flattening of

Bohler's angle," and the bones of her foot were determined to be

"diffusely osteoporotic."

With her doctor's support, claimant attempted to return to

work at the Klev-Bro Shoe Company in September 1988. She was

3 laid off in December 1988, but claimant testified that were it

not for the lay off, she would have had to leave the job because

her injuries made it impossible to continue working. D r . Kleeman

subsequently ordered the claimant to stop driving because she

could not operate the pedals of her car.

In April 1989, D r . Kleeman performed a subtalor fusion of

the claimant's left foot. D r . Kleeman's office notes indicate

that the claimant was walking with a cane, but her feet were

still significantly deformed and he speculated that she might

continue to have difficulty walking. Eventually, D r . Kleeman

performed the same operation on her right foot as well.

Claimant was admitted to the hospital in September 1990 with a

diagnosis of degenerative arthritis right subtalor joint

secondary to a calcaneal fracture. A CT scan showed a

degenerative change in the subtalor joint of her right foot, and claimant was prescribed Demerol. Upon discharge claimant was

prescribed Tylenol # 4 .

Claimant suffered another injury in February 1992, when she

fell to her knees. She complained of pain in her neck,

shoulders, and lower back. Her physician prescribed Flexoril and

Voltaren for pain relief and one month of physical therapy.

4 B. Procedural History

Claimant filed an application for disability insurance

benefits on or about May 1 8 , 1989. The claim was initially

denied on June 1 9 , 1989. Her request for reconsideration was

likewise denied on November 2 , 1989. Claimant then requested,

and received, a hearing before an Administrative Law Judge (ALJ)

on July 3 1 , 1990. The ALJ found that claimant was not entitled

to disability benefits, and a request for review was made to the

Appeals Council on September 1 3 , 1990.

In an Order dater May 1 3 , 1991, the Appeals Council vacated

the ALJ's decision and remanded the matter to the ALJ to obtain

evidence as to the claimant's foot condition following her 1989

surgery. The ALJ held a hearing on March 5 , 1992 and heard

testimony from both claimant and a vocational expert ("VE"). Claimant spoke at the hearing about pain that she continued to

experience, her medications and their side effects, her

functional abilities, and about the injury she sustained in

January 1992. She also testified about her last work experience

at the Klev-Bro Shoe Company. The VE testified that claimant's

past jobs were unskilled and involved both medium and light

exertion. In response to various hypothetical questions, the VE

also testified that a person with claimant's assumed limitations

5 would not be able to return to her past work, but that there were several "unskilled sedentary positions" which would accommodate the restrictions.2

The ALJ left the record open to give claimant's attorney the opportunity to submit materials including an additional work

assessment which would encompass claimant's shoulder injury.

After evaluating the documents identified in the record and

considering the testimony and arguments presented, the ALJ

rendered his decision on May 1 5 , 1992, denying claimant's

application for disability benefits. The ALJ found:

1. The claimant met the disability insured status requirements of the Act on February 2 8 , 1988, the date the claimant stated she became unable to work, and continues to meet them through December 3 1 , 1992.

2. The claimant engaged in substantial activity from October 1988 through December 2 , 1988 but not thereafter or prior thereto.

3. The medical evidence establishes that the claimant has severe status post-bilateral ankle fractures with fusion operations, including residual arthritis; hypertension; obesity and complaints of historic chronic lower back pain, but that she does not have an impairment of combination of

2 These jobs included (1) machine operation jobs such as grinding, buffing and polishing; (2) manual assembly; (3) inspection; (4) cashier; and (5) ticket seller.

6 impairments listed i n , or medically equal to one listed in Appendix 1 , Subpart P, Regulations N o . 4 . 4. The claimant's testimony and allegations regarding her subjective complaints, including pain, were not fully credible [ ] .

5. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for sitting, standing and/or walking for prolonged periods of time without being given the opportunity to change position; lifting and/or carrying more than ten to fifteen pounds occasionally; performing climbing except on a rare basis; performing repetitive balancing, stooping, crouching, crawling and kneeling; performing more than moderate bending and performing work involving some types of moving machinery, heights, temperature extremes, chemicals, humidity and vibration. There are no mental nonexertional limitations due to pain or side-effects of medications (20 CFR 404.1545 and 416.945).

6. The claimant is unable to perform her past relevant work as a machine operator, a splitter and a stamper in shoe manufacturing companies. 7. The claimant's residual functional capacity for the full range of sedentary work is reduced by her limitations.

8. The claimant is a younger individual, having been 36 years old on her alleged onset date (20 CFR 404.1563 and 416.963).

9. The claimant has an eighth grade education (20 CFR 404.1564 and 416.964). 10. The claimant does not have any work skills which are transferable to the skilled or semi-skilled work functions of other work (20 CFR 404.1568 and 416.968).

7 11. Based on an exertional capacity for sedentary work and the claimant's age, education, and work experience, Section 404.1569 of Regulations N o . 4 and Section 416.969 of Regulations N o . 16 and Rule 201.24, Table N o . 1 , of Appendix 2 , Subpart P, Regulations N o . 4 would direct a conclusion of "not disabled" unless the range of sedentary work was significantly compromised. 12. Although the claimant's limitations do not allow her to perform the full range of sedentary work, using the above-cited rule as a framework for decision-making, there is a significant number of jobs in the national economy which she could perform. Examples of such jobs are: a machine operator, an assembler, an inspector and a cashier/ticket seller. These jobs exist in minimum numbers of 67,500 in the national economy which is a significant number.

13. The claimant was not under a "disability," as defined in the Act, at any time through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

The Appeals Council denied claimant's request for review on October 1 3 , 1992. Claimant filed the instant appeal on or

about December 7 , 1992.

II. DISCUSSION

A. Issues

Claimant raises several issues in her motion for reversal.

She asserts that: 1 ) the ALJ failed to obtain medical evidence

from her primary treating physician; 2 ) the ALJ failed to

8 properly consider claimant's subjective pain complaints,

medication side effects and the severity of claimant's

psychological problems; 3 ) the ALJ did not fully and accurately

describe claimant's physical limitations in posing hypothetical

questions to the V E ; and 4 ) the ALJ wrongly concluded that

claimant was capable of performing a number of jobs that were

available in the national economy in significant numbers.3 I

address each argument in turn.

B. Analysis 1. The Secretary's Duty to Develop an Adequate Record

Claimant first contends that the ALJ failed to obtain

certain office notes from her treating physician that were

necessary to allow the ALJ to evaluate her claim. I disagree. The Secretary has a duty to insure that disability

determinations are made on an adequate record. However, this

duty is not absolute. As the First Circuit Court of Appeals has

3 Claimant also argues that the ALJ erred in failing to accept her contention that her effort to return to work after being injured in 1988 was "an unsuccessful work attempt." I do not address this claim because it has no bearing on the ALJ's determination that claimant is not entitled to disability benefits. For the same reason, I also need not address claimant's contention that the ALJ wrongly failed to reopen a prior application for benefits for the same injuries.

9 observed, the Secretary's duty to ensure that an adequate record

is produced is heightened "where the [claimant] is unrepresented,

where the claim itself seems on its face to be substantial, where

there are gaps in the evidence necessary to a reasoned evaluation of the claim and where it is within the power of the

administrative law judge, without undue effort, to see that the

gaps are somewhat filled. . . ." Heggarty v . Sullivan,

(1st Cir. 1991) (quoting Currier v . Secretary of Health,

Ed. and Welfare,

9 4 , 598 (1st Cir. 1980)).

Applying this standard here, I find no circumstances which

would justify any heightening of the Secretary's duty to develop

the record. Nor is this a case where the missing office notes

were necessary to permit the ALJ to fairly evaluate the claim.

First, claimant was represented by competent counsel at the administrative hearing and counsel was given ample opportunity to

produce a complete record. Second, the ALJ's decision is well

supported by the evidence that was produced. Thus, I cannot

conclude that the claim is substantial on its face. Third, I

have been presented with no evidence suggesting that the missing

office notes were essential to a reasoned evaluation of the

claim. I am unwilling to remand this case on the speculation

that the missing office notes will be discovered and prove so

10 important that they will cause the ALJ to reconsider his

decision. In short, I conclude that the ALJ did not breach his

duty to take reasonable steps to insure that his decision was

based on an adequate record. 2. Pain Complaints, Medication Side Effects, and Psychological Problems

Claimant next contends that the ALJ ignored her subjective

pain complaints, medication side effects, and the severity of her

psychological problem. This argument is also without merit.

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. 1980)). Further, "[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).

11 Here the ALJ carefully considered the claimant's pain

complaints as well as the relevant medical evidence concerning

her condition from three doctors. He identified specific

evidence in the record to support his conclusion that claimant's

subjective pain complaints were not fully credible. I find no

reason to question the ALJ's findings concerning the claimant's

pain complaints.

Contrary to claimant's assertions in this court, the ALJ

also carefully considered the potential that prescribed

medications could have had disabling side effects. The only

evidence of a medication side effect in the record is claimant's

contention that she felt drunk when she took Flexoril. However,

as the ALJ observed, claimant dealt with this side effect by

taking the medication at night. Moreover, there was substantial

evidence in the record to support the ALJ's conclusion that the other medications claimant took were reasonably effective in

addressing claimant's pain complaints without serious side

effects.

Finally, the ALJ correctly noted that there was no medical

evidence suggesting that the claimant suffered from a severe and

persistent mental limitation and, in fact, claimant did not

allege a disability because of one. In sum, all of the ALJ's

12 findings regarding claimant's subjective pain complaints,

medication side effects, and the severity of claimant's

psychological problems, were supported by substantial evidence in

the record.

3. Hypothetical Questions

Claimant next contends that the hypothetical questions posed

to the VE by the ALJ did not fully and accurately describe her

physical and non-exertional limitations. I disagree.

The Secretary concedes that once the claimant has proven

that she is incapable of returning to her prior jobs, as she did

here, the Secretary has the burden of coming forward with

evidence of specific jobs in the national economy that the

claimant is capable of performing. Arocho v . Secretary of Health

and Human Services,

7 4 , 375 (1st Cir. 1982). The

Secretary can meet her burden of proof on this issue by relying on the testimony of a vocational expert, but in order for the

VE's answer to the hypotheticals posed to be adequate, "the

inputs into that hypothetical must correspond to conclusions that

are supported by the outputs from the medical authorities."

Here the ALJ relied on the medical reports of two of claimant's

examining physicians, Drs. Shea and Wachs, to form his

hypothetical questions.

13 First, the ALJ found that D r . Shea made specific findings

which were helpful in evaluating claimant's condition even though

he did not fill out RFC forms. D r . Shea determined that the

claimant could sit without difficulty so long as she was allowed

to shift positions occasionally, but that her ability to stand

and walk were "significantly limited." He found that claimant's

ability to lift and bend was moderately limited, and that her use

of a cane was justified. These limitations were the basis for

the ALJ's second hypothetical: Walking is significantly limited. Need to change a position from sitting and lifting and bending are moderately limited. Now, I realize that I haven't given you really any limitations here, so I'm going to have . . . to try to the best of my ability here, try to interpret what those limitations mean. With, with walking, standing and sitting of limited, and need to change position . . . I would make all those three considerations that the claimant needs to change of position at will, which would b e , you know, as needed rather than significantly limited . . . And lifting and bending is moderately limited, that would I think allow for, for a sedentary work function. So the main thing is that I'm kind of interpreting this... to mean a change of position at will.

Although D r . Shea's assessments were considered "nebulous"

by the ALJ because they were not specifically tailored to the

usual RFC form, he gave the VE D r . Shea's own limitations on

walking, bending, and lifting, and interpreted the sitting

limitations as an ability to change position at will; a fair,

14 even generous assessment of her limitation as described by the

doctor. Even with D r . Shea's assessment in mind, the VE

testified that the claimant was able to perform jobs that were

available in the national economy in significant numbers.4

Dr. Wachs examined claimant in November 1991. He used the

RFC form to indicate that claimant had limitations of being able

to sit for only 30 minutes at a time, 2-3 hours per day. He

indicated that she could walk for a total of 1-1 & 1/2 hours

without interruption in an 8 hour day, that lifting and carrying

was limited to 10-15 pounds occasionally, that she could only

rarely climb, and balancing, crouching, and that stooping could

be performed only occasionally. He gave further limitations on

exposure to certain hazards in the workplace, such as chemicals,

temperature extremes, and some types of moving machinery. All of

these limitations were included in the ALJ's hypothetical question to the V E : [C]lamaint was limited to a sedentary work function with the following medical limitations. Lifting and carrying is effected. The claimant could lift and carry 10 to 15 pounds occasionally throughout the 1/3 of an 8 hour day. And occasionally maximum frequency 1/3 to 2/3 of an 8 hour day. Standing and walking is

4 These jobs included (1) machine operation jobs such as grinding, buffing and polishing; (2) manual assembly; (3) inspection jobs; (4) cashier; and (5) ticket seller.

15 effected by the impairment. In an 8 hour day the claimant could, could walk a total of 1 to 1-1/2 hours without interruption. Sitting is also effected. In an 8 hour work day the claimant could sit for a total of 2 to 3 hours probably, and without interruption 1/2 hour. Could rarely climb stairs -- in parenthesis, could occasionally balance, stoop, crouch, kneel and crawl. Apparently reaching, handling, feeling, pushing, pulling, seeing, hearing, and speaking are not effected at that particular time. After the ALJ also included the appropriate environmental factors

such as no humidity and vibration, the VE testified that despite

these limitations, claimant was capable of performing jobs which

were available in the national economy in significant numbers.5

The record clearly demonstrates that the hypotheticals posed

by the ALJ were based on the medical evidence supplied by Drs.

Shea and Wachs. Thus, they included the necessary limitations as

provided by claimant's medical evidence, and as such they were sufficient in describing her medical condition. Cf., Arocho,

.

4. Defining "Significant"

Claimant's final contention is that the number of available

jobs identified by the VE in response to these hypothetical

questions were too small to qualify as "significant." In order

5 These jobs were the same as listed in footnote 4 , with reductions in the percentage of the jobs that claimant would be able to perform.

16 to establish that a significant number of jobs exist in the

national economy, "the Secretary must show that compatible work

exists in one or more occupations and in significant numbers (not

isolated jobs) in the region where the claimant lives or in

several regions of the country." Keating v . Secretary of Health

and Human Services,

7 1 , 276 (1st Cir. 1988) (citing

(d)(2)(A); 20 C.F.R. 404.1566(b)(1993)). No precise

formula is given, and what constitutes a "significant" number

greatly depends on the facts of the case. See Barker v .

Secretary of Health and Human Services,

(9th Cir. 1989) (1,266 jobs a significant number); Jenkins v .

Bowen,

(8th Cir. 1988) (500 jobs is

significant number); Hall v . Bowen,

7 2 , 275 (6th Cir.

1988) (1,350 jobs a significant number)). Factors to be

considered in making the determination include: "the level of claimant's disability; the reliability of the vocational expert's

testimony; the reliability of the claimant's testimony; the

distance claimant is capable of travelling to engage in the

assigned work; the isolated nature of the jobs; the types and

availability of such work, and so on." Hall,

.

However, "[t]he decision should ultimately be left to the trial

judge's common sense in weighing the statutory language as

17 applied to a particular claimant's factual situation."

In the instant case, there was substantial evidence produced

in the record to support the ALJ's conclusion that there were

well in excess of 50,000 jobs available in the national economy

that the claimant was capable of performing despite her physical

limitations. This plainly satisfies the Secretary's burden to

show that available jobs exist in significant numbers.

III. CONCLUSION

Plaintiff's Motion to Reverse Decision of the Secretary

(document n o . 10) is denied. The Secretary's decision is

affirmed (document n o . 1 1 ) .

SO ORDERED.

Paul Barbadoro United States District Judge

February 1 8 , 1994

cc: Raymond J. Kelly, Esq. Patrick M . Walsh, Esq., AUSA

18