Starkweather v. HHS CV-94-100-B 2/21/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Harrison H. Starkweather

v. No. 94-10 0-B

Donna E. Shalala, Secretary of Health and Human Services

O R D E R

Harrison Starkweather challenges a decision by the Secretary

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

application for supplemental social security income. He contends

that the Administrative Law Judge's ("ALJ") determination that

his residual functional capacity ("RFC") would allow him to

perform substantial gainful activity at a light exertional level

was not supported by substantial evidence. He also asks that his

case be remanded for consideration of new medical evidence. For

the following reasons, I affirm the Secretary's decision.

I. BACKGROUND1

Starkweather suffers from heart disease and has been

1 Unless otherwise indicated, the facts are taken from the stipulated facts filed jointly by the parties in response to the court's order. unemployed since June 1992. After experiencing symptoms of heart

attack in June 1992, Starkweather was tested and diagnosed with

recurrent angina. Following a left heart catheterization that

revealed coronary artery disease. Starkweather underwent coronary

artery bypass graft surgery of four arteries on July 6, 1992.

Soon after surgery, he began experiencing chest and left arm

pain. On July 27, he had a percutantious transluminal coronary

angioplasty in which a balloon catheter is used to dilate

particular blood vessels in order flatten plague against the wall

of the blood vessel. The procedure showed obstruction in three

vessels, two of which were significantly improved by the

angioplasty procedure, and also revealed severe disease in one of

the vein grafts. Starkweather progressed well at first, but

again began to experience chest pain which was treated with

medication. His physical examinations during the period were

essentially normal, and he performed adeguately on a variety of

stress and exercise tests.

After another severe episode of chest pain. Starkweather

underwent catheterization again which revealed some occlusion but

showed normal left ventricular function. The cardiologist

determined that Starkweather was "well vascularized" and that the

test showed no evidence that a significant area was ischemic,

2 that is restricted in blood flow. Starkweather was referred to

his internist to determine alternative causes for his chest pain.

In March 1993, Starkweather was again treated for left arm

and chest pain. A third catheretization in April disclosed

coronary artery disease, but little threat to the heart muscle.

The cardiologist recommended conservative treatment with

medications but not surgery. The cardiologists treating

Starkweather expected that he would continue to experience the

same symptoms although they could not diagnose the cause because

of the lack of medical evidence that his heart disease caused his

symptoms. He was advised to continue his daily activities and to

exercise as much as possible.

Starkweather applied for supplemental security income

benefits on September 17, 1992. His application was denied

initially and upon reconsideration by the Social Security

Administration. After a hearing, the ALJ determined that

Starkweather was not disabled and denied benefits in a decision

dated August 23, 1993. Starkweather filed for review with the

Appeals Council, reguested that the record remain open for ninety

days for additional evidence, and filed additional medical

evidence during that period. On January 6, 1994, the Appeals

Council denied Starkweather's reguest for review without

3 considering his additional evidence. Therefore, the

administrative decision of August 23, 1993, became the final

decision of the Secretary.

II. 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.'" 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

4 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). However, the

district court "may at any time 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 . . . ."

(g) (West Supp.

1994). The statute thus imposes three reguirements -- newness,

materiality, and good cause -- that must be satisfied before a

district court may remand a case to the Secretary to obtain

additional evidence. Evangelista v. Secretary of Health & Human

Servs.,

(1st Cir. 1987).

III. DISCUSSION

Starkweather first argues that the ALU's determination that

he is not disabled under the applicable regulations is not

supported by substantial evidence. He also asks that his case be

remanded to the ALJ to consider his new medical evidence, and he

challenges the Appeals Council's decision not to review his case.

I begin by addressing Starkweather's reguest for review of the

5 Appeals Council's decision and then turn to the other issues.

A. Appeals Council Decision

When the Appeals Council decided not to review

Starkweather's case, the ALJ's decision of August 23, 1993,

became the final decision of the Secretary.

(g);

. Compare Grace v. Sullivan,

(8th Cir. 1990) (holding that Appeals Council's

substantive decision, which modified ALJ's decision, was the

final decision of the Secretary and was the only decision subject

to judicial review). Because this court has authority to review

only final decisions of the Secretary, I lack jurisdiction to

review the Appeals Council's administrative decision not to

review claimant's case. See Browning v. Sullivan,

(8th Cir. 1992). In addition, because the Appeals Council

declined to review the new evidence submitted by Starkweather, it

remains new evidence in this case and must be considered under

the appropriate standard.

B. New Evidence

This court may order that additional evidence 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

6 proceeding . . .

(g). Therefore, to justify

a remand. Starkweather must show that the medical evidence he has

submitted meets three reguirements: newness, materiality and

good cause. Evangelista,

.

Additional evidence is new if it is non-cumulative, factual,

and has not been previously presented to the ALJ.

.

There is no dispute that the proffered evidence is new because

Starkweather's medical records concern events that occurred after

the ALJ rendered his decision on August 23, 1993. Similarly,

"good cause" exists for Starkweather's failure to incorporate the

evidence in the administrative record because the events

precipitating the medical records had not occurred at thetime of

the hearing and the ALJ's decision in August 1993. See

Evangelista,

; Bilodeau v. Shalala,

(D. Mass. 1994).

Evidence is material in this context if its inclusion inthe

record is necessary to afford the claimant afair hearing

because, if the evidence had been considered, the ALJ's decision

might reasonably have been different. Heggartv v. Sullivan,

(1st Cir. 1991); Evangelista,

. The

Secretary argues, in essence, that the medical records are not

material because they pertain only to Starkweather's condition

7 after the decision date. Starkweather contends that the new

records are material because they demonstrate both the

continuation and the seriousness of his condition.

To be material, the new evidence must pertain to

Starkweather's condition at the time the ALJ made his disability

determination and cannot concern a subsequent injury or disease.

(1)(2)(G); Bradley v. Bowen,

(5th Cir. 1987). The new evidence offered by Starkweather

consists of records of three hospital admissions and treatment:

(1) September 26 to 30, 1993, for gastro-intestinal disturbance

with bleeding diagnosed as duodenitis with hemorrhage; (2)

October 7 to 15, 1993, for chest and arm pain diagnosed as "acute

lateral non-transmural myocardial infarction secondary to acute

occlusion of circumflex Y-graft to single circumflex margin"; and

(3) January 15 to 18, 1994, for acute prolonged angina.

Starkweather argues that the ALJ might alter his conclusions

if he were presented with this evidence because it suggests that

Starkweather was more seriously impaired when he applied for

benefits than the ALJ recognized. Standing alone, however, this

new evidence is insufficient to permit any reasonable person in

the ALJ's position to alter his decision. What is missing is any

evidence demonstrating that the subsequent hospitalizations are new evidence of a prior disability rather than evidence of an

exacerbation or recurrance of a non-disabling prior impairment.

Since a lay person is not qualified to interpret the evidence

Starkweather relies on and he has not produced qualified medical

opinion testimony to support the proposed interpretation, I

conclude that Starkweather has not demonstrated that the new

evidence is material. C f . Geigle v. Sullivan,

(8th Cir. 1992); Lisa v. Secretary of HHS,

, 44-

45 (2d Cir. 1991); Borders v. Heckler,

(4th

Cir. 1985); Wilson v. Secretary of Health & Human Servs.,

(6th Cir. 1984); Bilodeau,

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C. The Disability Determination

The ALJ applied the five-step sequential evaluation process

required for an initial disability determination,

(1993), and made the following findings: (1) Stark­

weather had not engaged in substantial gainful activity since

June 1, 1992; (2) he has a severe cardiac impairment; (3) his

impairment is not listed in or medically equivalent to an

impairment in Appendix No. 1, Subpart P, Regulations No. 4; (4)

he is unable to perform his past relevant work as a mechanic and

motel maintenance person; (5) given his limitations, Starkweathe

can perform jobs such as a security guard, fast-food order clerk auto photo finisher, toll collector, cashier, or assembler, which

exist in number in excess of four million in the national

economy. The ALJ concluded that Starkweather was not disabled

within the meaning of the applicable regulation.

Starkweather's appeal focuses on the fifth step of the ALJ's

evaluation process. He argues that substantial evidence does not

support the ALJ's determination of his RFC to perform the jobs

she listed because she failed to properly assess the incapaci­

tating effects of his pain. In particular, he contends that the

ALJ did not give sufficient consideration to the location,

duration, freguency, and intensity of his pain. See 20 C.F.R.

416.929 (1993) .

For the ALJ to find that pain has a significant effect on a

claimant's capacity to work, the record must show evidence of a

medically determinable impairment which could reasonably be

expected to cause pain of the intensity reported. 20 C.F.R.

416.929(b) (1993); Avery v. Secretary of Health & Human Servs.,

(1st Cir. 1986). Subjective complaints of pain

and fatigue are evaluated in light of all the evidence. 20

C.F.R. 416.929(a); Avery,

. In determining the

weight to be given to a claimant's testimony, "complaints of pain

need not be precisely corroborated by objective findings, but

10 they must be consistent with medical findings." Dupuis v.

Secretary of Health and Human Servs.,

(1st Cir.

1989). Factors to be considered in evaluating a claimant's

testimony of pain include:

(i) [Claimant's] daily activities; (ii) The location, duration, freguency, and intensity of [his] pain and other symptoms; (ill) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication [claimant] takes or [has] taken to alleviate [his] pain or other symptoms; (v) Treatment, other than medication, [claimant] receives or [has] received for relief of [his] pain or other symptoms; (vi) Any measures [claimant] uses or [has] used to relieve [his] pain or other symptoms (e.g., lying flat on [his] back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other factors concerning [claimant's] functional limitations and restrictions due to pain or other symptoms.

(c)(3). If the ALJ has considered all

relevant evidence of claimant's pain, "[t]he credibility

determination by the ALJ, who observed the claimant, evaluated

his 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 & Human Servs.,

(1st Cir. 1987).

The ALJ found that Starkweather's testimony about his

limitations, including pain, was generally credible. She

11 accepted his report that he could walk but would have to take

medication if he walked for long periods and that he could not

climb or engage in repetitive overhead reaching. She also

credited his need to be able to sit and rest at will due to

fatigue. Based on Starkweather's own testimony and that of his

wife concerning his daily activities and his limitations, the ALJ

determined that while Starkweather was unable to do strenuous

physical activities, he was able to perform lighter activities of

daily life such as laundry, light cooking, shopping for

groceries, and driving in a car. Because Starkweather did not

report deleterious side effects from his medications, the ALJ

concluded that his medication regimen was effective in

controlling his symptoms without affecting his work capacity.

Starkweather now argues that he experiences severe chest

pain attacks at least two or three times a day that prevent him

from focusing on events occurring around him and reguire him to

lie down to rest after each episode. He contends that because of

the severity of his episodes of pain and need to rest, he is

disabled from all work and that the ALJ erred in not crediting

his complaints of pain. Thus, he challenges the ALJ's reliance

on the hypothetical to the vocational expert that Starkweather's

RFC allowed him to perform light work with no repetitive overhead

12 reaching, no prolonged walking, no climbing, minimal report

writing and the opportunity to sit at will. Starkweather

contends that another hypothetical posed by the ALJ was more

appropriate because it included a restriction that he be allowed

to rest two times a day for a period of fifteen to forty-five

minutes on an unpredictable basis. On that hypothetical, the

vocational expert testified that none of the jobs would be

available.

Substantial evidence exists in the record to support the

ALJ's reliance on the first hypothetical allowing Starkweather to

sit at will but without the longer rest component. Starkweather

testified that the night before the hearing in August 1993 he

experienced chest pain while cooking hamburgers and was able to

control the pain by taking a nitroglycerin pill and sitting down.

He said that most of his pain episodes were of medium intensity

and passed within five to six minutes of taking medication. He

also said that he had fewer episodes when he stayed at home just

reading the paper or watching television. When asked what would

prevent him from performing a job like that of a sedentary

security guard. Starkweather responded that just sitting would be

hard on his nerves. At the hearing. Starkweather did not

indicate that his chest pain episodes would interfere with that

13 type of work. Instead, the only evidence in the record

suggesting that Starkweather needed to lie down to rest after a

pain episode related to a brief period in August 1992 following

his heart surgery in July 1992.

The ALJ found Starkweather's allegations of fatigue and pain

were generally credible but that his allegations did not

establish that he was disabled by his condition. She concluded

that his RFC would allow him to perform light work without

reguirements for prolonged walking or climbing, repeated over­

head reaching or more than minimal report writing, but would

permit him to sit at will. Based on Starkweather's age,

educational background, and physical limitations, the vocational

expert identified jobs, which he could do, that existed in

significant numbers in the national economy. The ALJ concluded

that Starkweather was not disabled within the statutory

definition. I find substantial evidence in the record to support

the ALJ's conclusion.

IV. CONCLUSION

For the foregoing reasons the government's motion to affirm

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

14 claimant's motion for order reversing or remanding the decision

(document no. 8) is denied.

SO ORDERED.

Paul Barbadoro United States District Judge

February 21, 1995

cc: David Broderick, Esg. Ellen Musinsky, Esg.

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