Gambino v. HHS CV-93-592-B 02/09/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carol Gambino

v. No. 93-592-B

Donna E. Shalala, Secretary of Health and Human Services

O R D E R

Carol Gambino challenges a decision by the Secretary of

Health and Human Services denying her application for disability

benefits. She contends that the Administrative Law Judge's

("ALJ") determination at Step Five of the seguential analysis,

finding that she was not disabled, is not supported by

substantial evidence. Because I find substantial evidence in the

record supporting the Secretary's decision that the claimant was

not disabled during the period of her insurance coverage, I

affirm the decision.

I. BACKGROUND1

Gambino injured her back at work on September 23, 1985. She

1 Unless otherwise indicated, the facts are taken from the stipulated facts filed jointly by the parties in response to the court's order. was diagnosed with disc herniation and underwent surgery in

December 1985. Following surgery, she continued to suffer bouts

of back pain, occasional back spasms, loss of strength, and

numbness in her right leg.2

Gambino originally filed an application for disability

benefits in 1987, which was denied.3 She filed the present

application on March 9, 1992, alleging that she had been unable

to work since her back injury in September 1985. Her application

was denied by the Social Security Administration and was denied

again after a de novo hearing and reconsideration by the ALJ.

Her reguest to reopen the prior adverse determination on her 1987

application was also denied for lack of good cause. In the

2 Gambino's eligibility for disability insurance coverage expired on March 31, 1991. In April 1991, she was diagnosed with disseminated lymphoma. Because her treating oncologist could not date the start or the effects of the lymphoma before her eligibility for disability insurance coverage expired, only the effects of her back injury, and not the lymphoma are relevant to a determination of her application.

3 The ALJ denied Gambino's reguest to reopen the original application. Nevertheless, he ruled on her current application covering the same period after considering all of the relevant evidence and without giving preclusive effect to the decision denying the original application. Accordingly, the ALJ's refusal to reopen the original application, even if it wasincorrect, had no effect on Gambino's entitlement to benefits. Thus, I need not consider Gambino's claim that the ALJ erred by refusing to reopen the original application.

2 evaluation process, the ALJ found that Gambino's impairment,

although severe, did not meet or equal any impairment found in

the Listings of Impairments, 20 C.F.R. Part 404, Subpart P,

Appendix 1, and was therefore not presumptively disabling under

§ 404.1520(d). The ALJ also found that Gambino's residual

functional capacity would allow her to perform sedentary work in

a clean environment requiring low degrees of concentration to

accommodate her pain levels, if she could change position every

thirty minutes. With those requirements and based on the

vocational expert's testimony, the ALJ determined that Gambino

would not be able to return to any of her past work, but would be

able to perform other jobs, such as an unskilled sedentary

security guard position. The ALJ found that a significant number

of jobs which Gambino could perform existed in the national

economy and that she was not disabled. The Appeals Council

denied her request for review, making the Secretary's decision

final. Gambino asks that I reverse and remand, contending that

the Secretary's decision is not supported by substantial

evidence.

II. STANDARD OF REVIEW

Pursuant to

(g), the court is empowered to

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

3 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.'" Ortiz v. Secretary of HHS,

(1st

Cir. 1991) (guoting

(g)). 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 adeguate to support [the Secretary's] conclusion.'"

(guoting Rodriquez v. Secretary of Health & Human Servs.,

(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."

Ortiz,

. If the facts would allow different

inferences, the court will affirm the Secretary's choice unless

the inference drawn is unsupported by the evidence. Rodriquez

Pagan v. Secretary of Health & Human Servs.,

(1st

Cir. 1987), cert, denied,

(1988).

III. DISCUSSION

The Secretary concluded that Gambino was not disabled at

4 Step Five of the sequential evaluation process as provided by

. At Step Five, the Secretary has the burden of

showing that, despite the severity of claimant's impairments and

inability to return to past relevant work, she retains the

residual functional capacity to do alternative work in one or

more occupations that exist in significant numbers in the region

where the claimant lives or in the national economy. Heggartv v.

Sullivan,

(1st Cir. 1991); Keating v. Secretary

of Health & Human Servs.,

(1st Cir. 1988)

(citing

(d)(2)(A) and

(b)).

The Secretary must show that claimant's limitations do not

prevent her from engaging in substantial gainful work, but she

need not show that claimant could actually find a job. Keating,

("[t]he standard is not employability, but

capacity to do the job"). Gambino argues that the ALJ erred in

making a determination of no disability because (1) he improperly

discounted Gambino's subjective complaints of pain, causing him

to overestimate her residual functional capacity ("RFC"), and

(2) the ALJ erroneously concluded that Gambino's RFC allowed her

to work in a security guard job identified by the vocational

5 expert. I address each of these arguments in turn.4

A. Subjective Pain Complaints

Subjective complaints of pain are evaluated in light of all

of the evidence.

(d) (5) (A);

(c)(4); Avery v. Secretary of Health & Human Serv., 7

(1st Cir. 1986). In determining the weight to be

given to allegations of pain, "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 Serv.,

(1st Cir. 1989). If the ALJ has

considered all relevant evidence of claimant's pain, including

both objective medical findings and detailed descriptions of the

effect of pain on claimant's daily activities, "[t]he credibility

determination by the ALJ, who observed the claimant, evaluated

[her] demeanor, and considered how that testimony fit in with the

rest of the evidence, is entitled to deference, especially when

4 Gambino also contends that a significant number of security guard jobs do not exist in New Hampshire. However, since she has not attempted to develop this contention, I deem it waived. United States v. Zannino,

(1st Cir.) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones."), cert. denied,

(1990).

6 supported by specific findings." Frustaqlia v. Secretary of

Health & Human Servs.,

(1st Cir. 1987).

Here, the ALJ determined that Gambino's complaints of

disabling pain were inconsistent with the medical evidence in the

record. Specifically, although the ALJ acknowledged Gambino

experienced pain resulting from her condition, he found that the

reports from Gambino's treating physicians showed she had made

"satisfactory progress following her surgery on December 18,

1985" and that Gambino testified that she was able to sit and

stand for durational periods of up to thirty minutes. The ALJ

also found that Gambino's then current level of fatigue was due

to her treatment for lymphoma which began after her last insured

date. The ALJ also partially took account of Gambino's pain

complaints by concluding that her RFC reguired work

accommodations allowing her to change from sitting to standing

every thirty minutes, a clean environment, and low degrees of

concentration to accommodate intermittent distraction from pain

and the side-effects of occasional use of pain medication.

Evaluating a claimant's credibility and resolving conflicts

in the evidence is the ALJ's province. See Evangelista v.

Secretary of Health & Human Servs.,

(1st Cir.

1987). Granting the ALJ's credibility and evidentiary

7 determinations the proper deference, I find sufficient

substantial evidence in the record to sustain his evaluation of

Gambino's subjective pain complaints.

B. The Security Guard Job

Gambino argues that the RFC followed by the ALJ in the

hypothetical question which elicited the security guard position

was unsupported by medical evidence in the record. I disagree.

Although the reports and medical evidence from Gambino's treating

physicians would require a more restricted RFC, the non-examining

physician's assessment, affirmed by a second non-examining

physician, requires fewer restrictions than the ALJ imposed.

First Circuit law does not require that an ALJ give greater

weight to a treating physician's opinion. Arroyo v. Secretary of

HHS,

(1st Cir. 1991). In this case, the ALJ did

not ignore all of the medical evidence and, in effect, substitute

his own judgment of Gambino's RFC in place of uncontroverted

medical opinion. C f . Rosado v. Secretary of Health & Human

Servs.,

(1st Cir. 1986) (holding that ALJ is

not qualified to make his own RFC assessment from medical

findings). I find that the RFC used by the ALJ was supported by

substantial evidence in the record from the opinions of Gambino's

treating physicians and from the non-examining physicians, and from Gambino's testimony.

Gambino also contends that her pain limitations would

prevent her from performing the duties of a security guard. She

argues that working as a security guard reguires prolonged

sitting, which she cannot do. Also, analogizing a security guard

position to the conditions present in her former work, which the

ALJ determined she could no longer perform, she concluded that

she was unable to work in a security guard position. In essence,

Gambino invites another reevaluation of her credibility and the

record evidence by challenging the components of the ALJ's

hypothetical guestion to the vocational expert.

If the hypothetical posed to the vocational expert

accurately reflects the claimant's abilities and limitations, the

vocational expert's response constitutes substantial evidence to

sustain the Secretary's burden of proof at Step Five. See Arocho

v. Secretary of Health & Human Servs.,

(1st Cir.

1983). Here, the ALJ provided a hypothetical individual with

ability to do sedentary work, but reguiring a change of position

every thirty minutes, a need to avoid an unclean atmosphere, and

limited to low-level concentration work. As discussed above,

although Gambino disagrees, the record supports her abilities and

limitations as described by the ALJ's hypothetical. Hence, the vocational expert's opinion that she could work as a security

guard adequately supports the Secretary's conclusion that Gambino

was not disabled as of March 1991.

IV. CONCLUSION

For the foregoing reasons, claimant's motion to reverse and

remand the Secretary's decision (document no. 9) is denied and

the Secretary's motion to affirm (document no. 8) is granted.

SO ORDERED.

Paul Barbadoro United States District Judge

February 9, 1995

cc: Patrick Walsh, Esq. Raymond Kelly, Esq.

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