Follensbee v. HHS CV-94-177-JD 03/28/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elizabeth Follensbee

v. Civil No. 94-177-JD

Secretary, Health and Human Services

O R D E R

The plaintiff, Elizabeth Follensbee, brings this action

pursuant to § 205(g) of the Social Security Act ("Act")a

(g), seeking review of a final decision of the

defendant. Secretary of Health and Human Services ("Secretary"),

denying her claim for a period of disability and disability

insurance benefits under the Act. Before the court are the

plaintiff's motion to reverse the decision of the Secretary

(document no. 5) and the defendant's motion to affirm the

decision of the Secretary (document no. 10).

Background

The plaintiff, born on October 7, 1947, was forty-five years

old when the Secretary conducted the administrative hearing.

Transcript of Administrative Record ("Tr.") at 40. The plaintiff

has completed high school.

. Her vocational history

includes employment as a seamstress, shirt presser, newspaper inserter, and a bearings inspector in a factory.

.

The plaintiff has not worked since January 1991 due to Meniere's

Syndrome.

.1

1. Medical Evidence2

The plaintiff was examined in December 1988 and January 1989

by Dr. Glenn Johnson, an otolaryngologist affiliated with the

Dartmouth-Hitchcock Medical Center. Tr. at 120-21. She com­

plained of vertigo, ear pain and tinnitus.

Dr. Johnson

diagnosed right-sided atypical Meniere's disease and recommended

corrective surgery known as a vestibular nerve section.

. The surgery was performed in February 1989 and, in a March

2, 1989, medical note Dr. Johnson reported that the plaintiff

only suffered unsteadiness when tired.

.

On September 26, 1989, the plaintiff was examined by Dr. J.

Oliver Donegan, another physician associated with the Dartmouth-

Hitchcock Medical Center. Tr. at 128. She complained of

lightheadedness and some altered sensation on the right side of

1Meniere's disease is hearing loss, tinnitus, and vertigo resulting from nonsuppurative disease of the labyrinth with distention of the membranes labyrinth. Stipulation of Facts at n.l (guoting Dorland's Medical Dictionary, 26th ed. (1981) at 795) .

2The plaintiff's medical history is drawn largely from the stipulation of facts filed jointly by the parties.

2 her face.

. Dr. Donegan noted in the medical record

that, upon examination, the plaintiff appeared stable and that he

could not determine the etiology of her symptoms.

.

On July 30, 1990, the plaintiff was examined by Dr. Johnson.

Tr. at 130. She complained of pain in the area of the

craniectomy, aggravated by her head-bent position as an

inspector.

Dr. Johnson noted in the medical record that the

plaintiff's balance is "doing great" and that the surgical wound

had healed but was still tender.

On September 4, 1990, the plaintiff's ovaries were

surgically removed due to pelvic pain caused by adhesions. Tr.

at 132-34.

On December 6, 1990, the plaintiff was examined by Dr.

Johnson. Tr. at 134. She complained of fluid retention and

increasing difficulties with imbalance.

Dr. Johnson

prescribed physical therapy, a restricted diet and medication

(Dyazide).

On March 5, 1991, the plaintiff was examined by Dr. Johnson.

Tr. at 135. She complained of increased lethargy and near

constant unsteadiness aggravated by motion.

Dr. Johnson

recommended central auditory studies.

Auditory testing was performed in March 1991 and revealed a

slight decrease in the plaintiff's hearing. Tr. at 136. The

3 results showed a decrease in pattern performance which requires

intact hemispheric and interhemispheric pathways.

The

auditory brainstem response test was normal.

The

audiologist recommended a repeat audiogram including bone

conduction.

An MR scan of the plaintiff's head was performed in April

1991. Tr. at 137. The scan was normal and did not reveal

evidence of either an acoustic neuroma or a demyelinating

disorder.

On June 11, 1991, the plaintiff was examined by Dr. Johnson.

Tr. at 139. She complained of unsteadiness.

Dr. Johnson

noted in the medical record that the plaintiff was participating

in physical therapy.

On the same day, the plaintiff

underwent additional audiological testing, the results of which

were borderline normal.

. The audiologist noted in

the medical record that although the testing did not reveal "any

strong suggestion" of central involvement, a "very slight

problem" could not be ruled out.

On March 5, 1992, Dr. Margo Krasnoff, a physician associated

with the Hitchcock Clinic, examined the plaintiff. Tr. at 144.

Dr. Krasnoff diagnosed the plaintiff with gallstones and, in

April 1992, the plaintiff's gallbladder was surgically removed.

.

4 On July 6, 1992, the plaintiff was examined at the

Dartmouth-Hitchcock Medical Center after complaining of lower

back pain on her left side. Tr. at 147. Her x-rays were

considered normal and a CT scan revealed a bulging disc at L5-S1

with a lateral herniated disc of the left L4-L5 interspace.

.

In an October 13, 1992, letter Dr. Johnson wrote that the

plaintiff experienced periods of motion-related vertigo, nausea,

and unsteadiness. Tr. at 150-51. Dr. Johnson noted that the

plaintiff's unemployment benefits had run out and that she could

resume work under certain restrictions.

.

Specifically, Dr. Johnson wrote that

[b]ecause of her problems with instability and motion intolerance, she should not be working in an area where she needs to be climbing ladders, working on scaffolding, or working around moving parts . . . she should not be in a situation where she is freguently exposed to a lot of visual movement . . . . [S]he would need to be able to get to work and home from work without having to drive in the dark. Fatigue also plays a role in her performance, and an ideal job would allow her some flexibility in taking breaks to help minimize the fatigue factor.

. Dr. Johnson added that it would be beneficial for

the plaintiff to have steady employment.

On October 14, 1992, Dr. Krasnoff summarized the plaintiff's

condition in the medical record. Tr. at 152-53. Dr. Krasnoff

noted that the plaintiff's condition had improved and that the

5 Meniere's disease was under fairly good control.

. A

complete medical exam revealed the plaintiff's condition to be

essentially normal.

. In a November 11, 1992, letter

written at the plaintiff's request. Dr. Krasnoff agreed with Dr.

Johnson's assessment of the plaintiff's vocational restrictions

by essentially adopting the recommendations in Dr. Johnson's

letter of October 13, 1992.

.

On January 7, 1993, a state agency physician reviewed the

plaintiff's medical records and evaluated her residual functional

capacity. Tr. 77-84. The physician concluded that the plaintiff

should not climb ramps, stairs, ladders, ropes or scaffolds but

did not require any other postural limitations.

. On

March 25, 1993, a second state physician reviewed the evidence

and affirmed the residual functional capacity evaluation.

II. Claimant Questionnaire

On December 8, 1992, the plaintiff completed a questionnaire

describing her daily routine. Tr. 105-108. On an average day

she reads, does crafts and needlework, prepares meals with her

husband and washes laundry and dishes.

. She goes

shopping with her husband for groceries and other items when the

stores are not busy.

. The plaintiff reads, listens

to the radio and watches television programs that do not depict

6 "alot [sic] of visual movement."

. She drives during

daylight hours, visits friends or family about once a week to

talk and generally gets out of the house three or four times each

week.

The plaintiff suffers from stress, which amplifies

her difficulty with dizziness, balance and concentration. I_d. at

107. She dropped out of vocational school because of stress-

induced dizziness and imbalance,

, and encounters

difficulty completing tasks when tired.

. The

plaintiff wrote that she cannot tolerate environments that are

noisy or include excessive visual movement.

.

III. Procedural History

The plaintiff filed the current application for a period of

disability and for disability insurance on November 20, 1992,

claiming an inability to work since January 9, 1991. Tr. at 75.

The application was denied initially,

, and following

reconsideration by the Social Security Administration.

. An administrative law judge ("ALJ"), before whom the

plaintiff, her attorney, her husband, and a vocational expert

("VE") appeared, considered the matter de novo and on October 28,

1993, ruled that the plaintiff was not entitled to the reguested

benefits.

. The Appeals Council denied the

7 plaintiff's request for review on March 11, 1994, rendering the

ALJ's decision the final decision of the Secretary.

.

At the administrative hearing, the plaintiff further

described her personal history, vocational experience, medical

history, symptomatology, daily activities and physical capabili­

ties. She elaborated on comments made on the questionnaire,

noting that she is most likely to experience dizziness and

vertigo after observing moving objects which turn. Tr. at 46.

The plaintiff also testified that her condition is not treated by

medication,

, and is exacerbated by stressful

situations, such as a fight with a family member.

, 54-

56. In response to questions posed by her attorney, she

indicated that she has trouble sleeping and often takes naps, has

difficulty concentrating and sometimes is forgetful.

at 56-

57. The plaintiff testified that, aside from these complaints,

she generally is in good health.

.

The ALJ also heard testimony from Richard Phillips, a

private rehabilitation consultant who appeared as an impartial

vocational expert ("VE"). Based on information provided by the

Secretary on the plaintiff's vocational history, Phillips

reported that the plaintiff's prior jobs are considered "low end

semi-skilled" or unskilled in nature, and involve exertional

levels ranging from light to medium.

. Phillips also testified in response to a hypothetical

question posed by the ALJ in which he was to assume a forty-five

year old claimant with the plaintiff's education and work

experience and a functional capacity for sedentary work reduced

by a need for "[f]lexible hours and flexibility in taking breaks

to help minimize the fatigue factor."

. He was to

further assume the hypothetical claimant could not be "frequently

exposed to a lot of visual movement" and "should not be at a job

that requires the climbing of ladders, working on scaffolding and

working around moving parts."

. Phillips responded

that an individual with the capabilities of the hypothetical

claimant would be incapable of performing any of the plaintiff's

prior jobs.

The following colloquy took place:

ALJ: Would she have any transferable skills? Any sedentary job that would allow for these restrictions ?

VE : N o, s1r .

ALJ: How about unskilled sedentary job? [sic]

VE: Your Honor, I honestly can't identify a sedentary position which does not involve at least a significant amount of visual stimulus.

ALJ: Um-hum.

VE: I think any job that's sedentary is going to require use of the eyes such as assembly or cashier work. There'd be people coming and going. Receptionist, possibly. You'd be in an office environment where there'd be people going back and forth.

. The ALJ next commented that one of the plaintiff's

physicians. Dr. Krasnoff, cautioned against "freguent" exposure

to a lot of visual movement.

. The ALJ then re­

examined the plaintiff, who testified that she did not experience

discomfort while sitting in the hearing room but "cannot be in a

crowded situation."

. The following colloguy ensued:

ALJ: Does that help you, Mr. Phillips?

VE: Well, let me -- I can speak to theissue of freguent. The definition of that is 66 percent of the time or greater with reference to a particular job.

ALJ: Um-hum.

VE: I can say that receptionist job comes in below that. You need occasional, [sic] all the visual reguirements of receptionist work in the sedentary range are classified as occasional which is 33 percent of the time. So based on that alone, a very technical definition, I would say the reception work could be possible. I'm not able to identify any other sedentary positions.

. Likewise, Phillips testified later in the hearing

that hedoesn't "consider receptionist work, sedentary work, as

reguiring or as being exposed to a lot of visual movement."

. Phillips testified that there are 830,000 such recep­

tionist jobs in the national economy with 850 in New Hampshire.

.

10 The plaintiff's attorney also questioned the VE about the

hypothetical claimant's ability to work as a receptionist given

the need for flexibility in taking breaks due to fatigue.

at

67 .

ATTY: Again, I'm just referring to the hypothet­ ical. I assume a break from, from the work task. If it's a receptionist, that would be a break from answering the telephone, I guess.

VE : If posed that way, I think if a person were away from the task, then that generally precludes employment if it happens more than once or twice a day. •k -k -k -k

VE : It would depend on how often it happened. You know, there's a certain amount of flexibility there. If it were for longer than five or 10 minutes and happened more than, say, you know, twice in the morning and once in the afternoon or three times throughout the course of the day, I think then it would become problematic and most employers would have a hard time tolerating it.

.

The ALJ applied the five-step sequential process applicable

to a claimant's disability application.

,

416.920 (1994).3 The ALJ found (1) the plaintiff has not engaged

31he ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant presently is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment:

11 in substantial gainful activity since January 9, 1991; (2) the

medical evidence establishes that the plaintiff has severe

meniere disease; (3) the plaintiff does not suffer from an

impairment or combination of impairments listed in Appendix 1,

Subpart P, Regulations No. 4; (4) the impairment prevents the

plaintiff from performing her past relevant work; and (5) there

are a significant number of jobs in the national economy which

the plaintiff could perform, notwithstanding her impairment.

. The ALJ found that the plaintiff's residual functional

capacity ("RFC") would allow her to

perform the nonexertional reguirements of work for jobs that would not reguire freguent exposure to visual movement, climbing ladders or scaffolding or be around moving objects due to her unsteadiness or work that would not allow the flexibility to take breaks to relieve her pain. There are no exertional limitations.

.

In addition, the ALJ found the plaintiff's claim that

vertigo and unsteadiness prevent her from working at any job not

to be credible because it was clearly unsupported by the clinical

findings.

. The ALJ further concluded that the

plaintiff's complaints of disability are contradicted by her

(3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; (5) whether the impairment prevents the claimant from doing any other work.

.

12 ability to perform her daily routine and by the fact that her

collection of unemployment benefits through November 1992

indicated that she "felt she had the ability to return to

employment."

. Based on these findings, the ALJ

determined that the plaintiff was not under a "disability" as

defined by the Act at any time through the date of decision.

at 24 .

The plaintiff filed this action on April 7, 1994, seeking a

reversal of the Secretary's decision.

Discussion

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.1" Irlanda Ortiz v. Secretary of Health

and Human Servs.,

(1st Cir. 1991) (guoting

(g)).4 The court "'must uphold the Secretary's

Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion.1" Richardson v. Perales,

(1971) (citing Consolidated Edison Co. v. NLRB,

(1938)). "This is something less than the weight of the

13 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 and Human Servs.,

(1st Cir.

1981)); accord Richardson,

. The record must be

viewed as a whole to determine whether the decision is supported

by substantial evidence. Frustaqlia v. Secretary of Health and

Human Servs.,

(1st Cir. 1987); Rodriquez,

. Moreover, "[i]t is the responsibility of the

Secretary to determine issues of credibility and to draw

inferences from the record evidence. Indeed, the resolution of

conflicts in the evidence is for the Secretary, not the courts."

Irlanda Ortiz,

(citing Rodriquez,

); see also Burgos Lopez v. Secretary of Health and Human

Servs.,

(1st Cir. 1984). The ALJ must also

consider the plaintiff's subjective complaints of pain if he has

"a clinically determinable medical impairment that can reasonably

be expected to produce the pain alleged." 42 U.S.C. §

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,

(1966); Benko v. Schweiker,

(D.N.H. 1982).

14 423(d)(5)(A); Avery v. Secretary of Health and Human Servs., 797

F .2d 19, 21 (1st Cir. 1986);

.

In her motion, the plaintiff raises several arguments to

support her contention that the Secretary's denial of benefits

was incorrect. The defendant responds that its decision should

be affirmed as the record contains substantial evidence to

support its denial of benefits. The court addresses the

arguments seriatim.

_____ The plaintiff first asserts that the ALJ erred in his

finding that she can work as a receptionist, a semi-skilled job,

because the VE did not identify transferable skills "nor had the

issue of transferable skills been discussed at her hearing."

Plaintiff's Motion at 5 3. The argument fails because the record

contains uncontroverted evidence of the plaintiff's education, a

legitimate "vocational factor" under the regulations. See

. The plaintiff testified that she has

completed high school, Tr. at 41-42, and the ALJ explicitly asked

the VE to consider this level of educational experience in the

context of the hypothetical guestion. Tr. 61-61.

The plaintiff next asserts that her "non-exertional

impairments" have reduced her functioning level and preclude the

performance of the full range of sedentary work. Plaintiff's

Motion at 5 4. The court finds that the ALJ recognized the non-

15 exertional impairments and explicitly instructed the VE to

consider the fatigue and visual movement limitations. Tr. at 61.

The court finds it irrelevant that the plaintiff may be unable to

perform the "full range" of all sedentary jobs given the V E 's

conclusion that a hypothetical claimant with the plaintiff's

limitations can work as a receptionist, a sedentary job which

exists in significant numbers in the economy.

The plaintiff next asserts that the "ALJ did not follow the

treating physician's recommendation that [she] only could perform

a greatly restricted range of sedentary work at her home . . . ."

Plaintiff's Motion at 5 5. The plaintiff further asserts that

the ALJ did not include the restrictions suggested by Dr. Johnson

in the hypothetical guestion considered by the VE and that the

ALJ "minimized her treating source reports (e.g. Dr. Johnson)."

at 55 5, 10.

The plaintiff's argument is unavailing as it rests on an

incorrect statement of the law and, in any event, misrepresents

the substance of the administrative record. The ALJ enjoys wide

discretion and considers a host of factors when evaluating a

claimant's medical condition. See

. The

First Circuit has made clear that the ALJ is neither reguired to

accept the conclusions of any particular physician nor give

greater weight to conclusions advanced by treating physicians.

16 Arrovo v. Secretary of Health and Human Servs.,

(1st Cir. 1991) (quoting Tremblay v. Secretary of Health and

Human Servs.,

(1st Cir. 1982)); Keating v.

Secretary of Health and Human Servs.,

(1st

Cir. 1988) (quoting Barrientos v. Secretary of Health and Human

Servs.,

(1st. Cir. 1987)). Provided that the

Secretary's decision is supported by substantial evidence, the

failure to rely on the opinion of a treating physician is not an

appropriate grounds upon which the court may reverse. See

Irlanda Ortiz,

; Arrovo,

.

In this case, the ALJ did consider the opinions of the

plaintiff's treating physicians and even incorporated verbatim

Dr. Johnson's recommendation that the plaintiff should not "be

climbing ladders, working on scaffolding, or working around

moving parts" into a hypothetical question posed to the V E .

Compare Tr. at 60-63 (hypothetical question) with Tr. at 150

(text of Dr. Johnson's recommendation). The court finds that the

ALJ did not commit reversible error in his evaluation of the

medical record.

The plaintiff next asserts that the V E 's testimony that a

hypothetical claimant with the plaintiff's abilities could work

as a receptionist was "equivocal at best . . . since he could not

identify a sedentary position 'which does not involve at least a

17 significant amount of visual stimulus.'" Plaintiff's Motion at 5

6 (citing Tr. at 61). However, the court notes that after

further guestioning by the ALJ and additional testimony from the

plaintiff, the VE did conclude that a hypothetical claimant with

the plaintiff's intolerance of freguent visual movement could

work as a receptionist. Tr. 62-63.

The court notes that the V E 's testimony arguably lends

itself to more than one interpretation. However, the existence

of eguivocal testimony does not constite reversible error under

the substantial evidence standard of review. A "reasonable mind,

reviewing the evidence in the record as a whole, could accept

[the V E 's testimony] as adeguate" to support the finding that the

plaintiff is capable of receptionist work notwithstanding her

difficulty with freguent visual stimulus. See Irlanda Ortiz,

. The fact that another reasonable mind could arrive

at a contrary interpretation of the V E 's testimony is not grounds

for reversal as it is the ALJ's responsibility to resolve

conflicts in the evidence. See Irlanda Ortiz, 922 F.2d at 769.

The plaintiff next asserts that the VE "relied on the

technical definition of receptionist and how much movement one

could anticipate, it was significantly less than his testimony

based on experience, an element the . . . regulations require

when they are faced with difficult and complex placement and

18 suitability issues on identifying work . . . " Plaintiff's Motion

at 5 7 (citing

(e)) (emphasis supplied).

The argument fails because it is not supported by the cited

authority. The cited subsection of the federal regulations

provides:

If the issue in determining whether you are disabled is whether your work skills can be used in other work and the specific occupations in which they can be used, or there is a similarly complex issue, we may use the services of a vocational expert or other specialist. We will decide whether to use a vocational expert or other specialist.

(e) (emphasis supplied). Contrary to the

plaintiff's assertion, the regulation does not reguire the ALJ to

solicit testimony from a VE, even though this may be a common

practice. See

Moreover, the regulation does not distinguish

between "technical" knowledge and "experience" as a basis for a

V E 's opinion, should the Secretary elect to call a VE to testify.

See

The plaintiff next asserts that the ALJ did not properly

take into account the plaintiff's "significant sit and stand

intolerance" as described by Dr. Johnson in his July 1992 note

and by Dr. Krasnoff in her October 14, 1992, note. Plaintiff's

Motion at 5 8.

The stipulation of facts filed jointly by the Secretary and

the plaintiff does not note a significant sit and stand

19 intolerance. See Stipulation of Facts. Likewise, neither Dr.

Johnson's correspondence of October 13, 1992, nor Dr. Krasnoff's

correspondence of November 11, 1992, mention a sit and stand

intolerance, although both letters purport to describe the

plaintiff's workplace restrictions and do, in fact, list several

other physical limitations. Finally, neither of the physicians

who undertook a residual functional capacity evaluation on behalf

of the state have suggested that the plaintiff suffered from this

additional physical limitation. The Secretary's findings are

supported by the medical record as a whole as stipulated by the

parties notwithstanding the ALJ's alleged failure to consider the

scantly documented sit and stand limitations. See Frustaqlia,

.

The plaintiff next asserts that the ALJ failed to properly

consider a variety of subjective complaints, including those of

fatigue and dizziness, the "effect of passive and active motion

around her," "day long unpredictable dizziness and fatigue

attacks," and "the effect of stress on her symptoms."

Plaintiff's Motion at 55 9-12, 14.

The ALJ is reguired to consider the subjective complaints of

pain or other symptoms by a claimant who presents a "clinically

determinable medical impairment that can reasonably be expected

to produce the pain alleged."

(d)(5)(A); Avery,

20 797 F.2d at 21;

. "[C ]omplaints 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 Servs.,

(1st Cir. 1989);

see Bianchi v. Secretary of Health and Human Servs.,

(1st Cir. 1985) ("The Secretary is not reguired to take the

claimant's assertions of pain at face value.") (guoting Burgos

Lopez v. Secretary of Health and Human Servs.,

(1st Cir. 1984)). Once a medically determinable impairment is

documented, the effects of pain must be considered at each step

of the seguential evaluation process.

(d).

A claimant's medical history and the objective medical evidence

are considered reliable indicators from which the ALJ may draw

reasonable conclusions regarding the intensity and persistence of

the claimant's pain. Avery, 797 F.2d at 23;

(c)(3). However, situations exist in which the reported

symptoms of pain suggest greater functional restrictions than can

be demonstrated by the medical evidence alone.

When a claimant complains that pain or other subjective

symptoms are a significant factor limiting her ability to work,

and those complaints are not fully supported by medical evidence

contained in the record, the ALJ must undertake further

exploration of other information. Avery, 797 F.2d at 23. The

21 ALJ must consider the claimants's prior work record; daily

activities; location, duration, frequency and intensity of pain;

precipitating and aggravating factors; type, dosage,

effectiveness and side effects of any medication taken to

alleviate pain or other symptoms, past or present; treatment,

other than medication, received for relief of pain or other

symptoms, past or present; any measures used, past or present, to

relieve pain or other symptoms; and other factors concerning

functional limitations and restrictions due to pain.

(c)(3); Avery, 797 F.2d at 23; SSR 88-13. Moreover, when

assessing credibility the ALJ may draw an inference that the

claimant would have sought additional treatment if the pain was

as intense as alleged. See Irlanda Ortiz,

. If

the complaints of pain are found to be credible under the

criteria, the pain will be determined to diminish the claimant's

capacity to work.

(d);

(c)(4). Finally, the court gives deference to

credibility determinations made by the ALJ, particularly where

the determinations are supported by specific findings.

Frustaqlia,

(citing DaRosa v. Secretary of Health

and Human Servs.,

(1st Cir. 1985)).

The ALJ announced findings of fact which support his

conclusion that the plaintiff's subjective complaints were not

22 credible. First, the plaintiff's treating physicians have

released her to work with certain restrictions, each of which was

posed to the VE in the form of a hypothetical question. See Tr.

at 21-22. Second, the plaintiff's complaints of visual

limitations associated with watching television or viewing

spinning objects were also considered by the V E .

Third, the

ALJ found that the plaintiff's daily activities, as reported on

the claimant questionnaire and described at the administrative

hearing, "belie her complaints of disability." Id. at 22.5

5Ihe plaintiff argues that Lancellotta v. Secretary of Health and Human Servs.,

(1st Cir. 1986), requires the ALJ to include her subjective complaints of stress in a hypothetical question to the V E . Plaintiff's Motion at 5 14. The argument is unavailing. In Lancellotta the ALJ, while acknowledging a severe mental impairment, did not make findings concerning the nature of the claimant's stress and its potential vocational impact even though the record contained medical reports detailing a variety of ailments, including anxiety and depression.

. The First Circuit vacated and remanded.

. In contrast, the plaintiff in this case has presented no medical evidence of a mental, anxiety or stress disorder beyond the subjective complaints such as those described in her questionnaire and in the following colloquy:

Claimant: When I get stressed out and dizzy, I cannot sleep. ALJ: Stressed out, you say? Claimant: Yeah. ALJ: What makes people -- what makes you stressed out? Do you know? Claimant: Normal life, II [sic] guess.

Tr. at 48-49; see Stipulation of Facts (no mention of stress or related disorder other than comment that "plaintiff noted that her balance and dizziness bother her when she gets stressed . . ."). The plaintiff has not advanced authority for her

23 The ALJ considered the Avery factors and, in so doing, made

credibility determinations based on specific findings supported

by the record. The ALJ also had the opportunity to observe the

plaintiff's demeanor at the hearing and was entitled to draw

inferences based on those observations. Given the deferential

standard of review, the court concludes that the specific

findings along with the overall record in this case demonstrate

that the ALJ's conclusion that the subjective complaints were not

credible is supported by substantial evidence.

As her final grounds for reversal, the plaintiff asserts

that the ALJ improperly considered her prior receipt of unem­

ployment benefits when assessing her credibility. Plaintiff's

Motion at 5 13 (citing Kinsella v. Schweiker,

(6th Cir. 1983) (dissenting opinion); Flores v. Secretary of

Health, Educ. and Welfare,

(S.D.N.Y. 1978)).

The plaintiff objects to the ALJ's finding that "[i]n addition,

the claimant testified at the hearing that she collected

unemployment benefits through November, 1992 which would indicate

proposition that subjective complaints of stress of this nature, where unsupported by the medical record, must be adopted by the ALJ or presented as a limitation to the VE in a hypothetical guestion. The court finds that the ALJ's failure to place weight to such subjective complaints does not constitute reversible error.

24 that the claimant felt she had the ability to return to

employment." Tr. at 22.

The First Circuit has addressed this issue:

[Plaintiff] also criticizes the Secretary for con­ sidering the fact that he collected unemployment benefits . . . while allegedly disabled. . . . In his opinion, the ALJ said the fact that [the plaintiff] collected unemployment benefits indicated [the plain­ tiff] was "ostensibly ready, willing, and able to work." It is not clear that the ALJ saw [the plain­ tiff] 's collection of unemployment benefits as positive evidence he could work; it may be that the ALJ thought the evidence affected [the plaintiff]'s credibility. In any event, although we have reservations about the significance of such evidence, we are reluctant to say that a claimant's decision to hold himself out as able to work for the purpose of receiving unemployment bene­ fits may never be considered on the issue of disabil­ ity. At least where there was medical and vocational evidence supporting the denial of benefits and claimant's receipt of unemployment benefits does not appear to have been the decisive factor in the denial of benefits, we are not inclined to overturn the Secretary's decision.

Perez v. Secretary of Health, Educ. and Welfare,

(1st Cir. 1980) (citations omitted). The First Circuit also

distinguished Flores, a case upon which the instant plaintiff

relies, because that decision involved a situation where the "ALJ

relied almost exclusively on claimant's receipt of unemployment

benefits."

The ALJ's findings relative to the prior receipt of

unemployment benefits were plainly made in the context of his

assessment of the plaintiff's credibility. See Tr. at 22.

25 Moreover, the record contains a variety of vocational and medical

evidence supporting the Secretary's denial of benefits and, thus,

the receipt of unemployment benefits cannot be considered a

"decisive factor" in the ALJ's ruling. See Perez,

.

The court finds that the incidental reliance of the receipt of

unemployment benefits to have been proper in the context of the

ALJ's credibility determination.

Conclusion

Based on the foregoing analysis, the court finds that the

Secretary did not commit reversible error as alleged by the

plaintiff. The defendant's motion to affirm the decision of the

Secretary (document no. 10) is granted. The plaintiff's motion

to reverse the decision (document no. 5) is denied. This order

resolves the underlying dispute between the parties and the clerk

is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge March 27, 1995

cc: Raymond J. Kelly, Esguire David L. Broderick, Esguire

26