Murillo v. Shalala CV-94-223-B 05/04/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Guadalupe Murillo

v. Civil No. 94-223-B

Donna E. Shalala, Secretary _____ Health and Human Services

O R D E R

Guadalupe Murillo appeals the Secretary's decision denying

his application for disability insurance and supplemental

security income benefits. He contends that the Administrative

Law Judge ("ALJ") failed to adeguately consider his subjective

pain complaints and erroneously decided that his impairment did

not prevent him from doing his past relevant work. Because I

find that there is substantial evidence in the record to support

the ALJ's decision, I affirm.

BACKGROUND1

Murillo was born in Mexico on December 12, 1966, and was

twenty-six years old at the time of the administrative hearing

1 Unless otherwise indicated, the facts are taken from the stipulated facts filed jointly by the parties. held on August 31, 1993. He was educated through the sixth

grade. He was Spanish speaking at the time of the hearing,

communicating through an interpreter. He testified to past

employment as a molding machine operator, as a packer of neckties

and plastic utensils, and as a mattress assembler.

Murillo injured his back while working as a molding machine

operator in August 1990 and alleges that he has been disabled

since December 4, 1991, when he stopped working due to back pain.

He applied for disability insurance benefits and supplemental

security income benefits on October 15, 1992. His applications

were denied initially and upon reconsideration, and he reguested

a hearing.

The first medical record of treatment for back pain in the

hearing record2 is an examination by Dr. William Kilgus in

January 1992. In the notes of that examination. Dr. Kilgus

reported Murillo's back injury and "vague, ill-described pains

2 A later treating doctor recorded that Murillo told him that he had been treated by Dr. Bell, an osteopath, at the time of the injury and that medications and manipulations from that treatment enabled him to return to work. Dr. Bell's treatment records are not included in the hearing record.

2 affecting his left lower extremity."3 Dr. Kilgus noted a good

range of motion of the lower back with mild pain and spasm on

extremes of motion. His assessment of the injury was chronic

lumbar strain, and he recommended physical therapy. In his notes

for subseguent visits. Dr. Kilgus noted no improvement despite

physical therapy and Murillo's increased complaints of back and

leg pain. A magnetic resonance imaging test done in April 1992

revealed a herniated lumbar disk. Murillo was referred for a

neurosurgical consultation.

Murillo was examined in June 1992 by Dr. Ronald Faille, a

neurosurgeon, who noted his impression of left lumbar

radiculopathy (disease of the nerve roots) and recommended

further testing to determine the nature and degree of impairment.

He reported normal gait, strength, and sensation with no spasm in

the legs, and significant limitation of motion with spasm in the

left paraspinal muscles of the back. In July, a CT scan and

myelogram were done which showed no evidence of disk herniation

but did show spondylolisthesis (forward displacement of one

vertebra over another) and bilateral spondylosis (dissolution of

3 The record does not indicate how Murillo communicated with Dr. Kilgus although other treatment records state that he used an interpreter.

3 a vertebra) at the L5-S1 level.

From August to December 1992, Murillo received chiropractic

treatments several times a week. The chiropractor reported by

November that Murillo had improved significantly and that he

thought Murillo could work as long as the job was not strenuous.

He found Murillo capable of sitting, standing, walking, lifting,

carrying, and bending within reasonably light weight limits of 10

to 15 pounds. During the same period, Drs. Kilgus and Faille

also treated Murillo and found that his medical condition

remained unchanged as he continued to have back pain that

radiated down his left leg, with an incomplete range of motion

and mild degree of back spasm. Dr. Faille gave his opinion that

Murillo would reguire back surgery before he would achieve relief

from the back injury.

In November 1992, Dr. Homer Lawrence, a consultant for the

Disability Determination Program, reviewed Murillo's records and

found that he retained the residual functional capacity ("RFC")

to do light work with some activity and postural limitations.

Another evaluation done in February 1993 also found Murillo

capable of light work with limitations. Dr. Kilgus provided an

assessment of Murillo's RFC in August 1993, based upon his

examination in July. He stated that Murillo's condition remained

4 unchanged and described Murillo's back injury, including a

herniated disk at the L4-L5 level, as a contributing factor for

his symptoms. He determined that Murillo was not totally

disabled from any type of work, that he retained some light work

capacity so that he could lift up to twenty pounds for up to one-

third of an eight-hour day, and that during the work day, he

could stand and walk for four hours and sit for four hours as

long as he did not do any of the activities for more than two

hours without interruption.

At the hearing held on August 31, 1993, speaking through an

interpreter, Murillo testified that he was prevented from working

primarily by constant lower back pain. The back pain also moved

into his left leg, and he sometimes had shooting pain or numbness

in his left foot. Because of pain, he could only walk for about

fifteen to twenty minutes at a time; he could sit for thirty to

thirty-five minutes, and his sleep was interrupted. He testified

that he could lift a gallon of milk using both hands. He said

that he takes medication for pain, but that the back brace

prescribed for him caused pain and made it difficult to breathe

when he sat. Describing his past employment, he said that

neither the packing job at Sweetheart Plastics nor the mattress

assembly job allowed sitting, and that the plastics packing job

5 required standing for twelve-hour days. His job packing neckties

allowed him to alternate his position between sitting and

standing and required lifting boxes of twelve to fifteen pounds.

The vocational expert testified that if Murillo had a RFC to

do light work without lifting more that fifteen to twenty pounds,

he could return to either of his past packing jobs. When the ALJ

restricted the hypothetical to allow change of position between

sitting and standing at two hour intervals with neither lasting

more than four hours in an eight-hour day, the vocational expert

testified that Murillo would be able to do only the necktie

packing job. The ALJ posed two other hypotheticals to the

vocational expert with increasingly restricted RFC's, and

Murillo's attorney described a hypothetical capacity limited by

being incapacitated from work for twenty percent of each work day

which resulted in no available work. The vocational expert found

that the more restricted RFC's would not allow Murillo to return

to his prior work.

In his decision, the ALJ decided that Murillo's subjective

complaints of pain were not entirely credible and found that he

had "the residual functional capacity to perform work-related

activities except for work involving the exertional requirements

of very heavy, heavy and medium work." Based on that RFC, the

6 ALJ found that Murillo could return to his past relevant work as

a packer, and therefore that he was not disabled within the

meaning of the Social Security Act. The ALJ denied Murillo's

applications for benefits, and the Appeals Council declined

review. This appeal followed.

STANDARD OF REVIEW

After a final determination by the Secretary and upon

request by a party, this court is authorized to review the

pleadings and the transcript of the record of the proceeding, and

enter a judgment affirming, modifying, or reversing the

Secretary's decision.

(g). The court's review

is limited in scope, however, as the Secretary's factual findings

are conclusive if they are supported by substantial evidence.

Id.; Ortiz v. Secretary of Health & Human Servs.,

(1st Cir. 1991). The Secretary is responsible for settling

credibility issues, drawing inferences from the record evidence,

and resolving conflicting evidence.

Therefore, 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 Rodriquez v. Secretary of Health & Human Serv., 647

(1st Cir. 1981). However, if the Secretary has

misapplied the law or has failed to provide a fair hearing,

deference to the Secretary's decision is not appropriate, and

remand for further development of the record may be necessary.

Carroll v. Secretary of Health & Human Servs.,

(2d Cir. 1983). See also Slessinqer v. Secretary of Health &

Human Servs.,

(1st Cir. 1987).

DISCUSSION

On appeal, Murillo challenges the ALJ's denial of benefits

on two grounds. First he argues that the ALJ failed to

adeguately consider his subjective pain complaints. Second, he

contends that the record does not contain substantial evidence to

support the ALJ's determination that he could return to his past

work as a packer. I address each argument in turn.

A. Subjective Complaints of Pain

Once a claimant presents a "clinically determinable medical

impairment that can reasonably be expected to produce the pain

alleged," the ALJ must consider the claimant's subjective

complaints of pain. Avery v. Secretary of Health and Human

Servs.,

(1st Cir. 1986); accord

(d)(5)(A) (Supp. 1995);

(c), 416.929(c). In determining the weight to be given to allegations of pain, the

claimant's complaints "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). When the claimant's reported

symptoms of pain are significantly greater than the objective

medical findings suggest, the ALJ must consider other relevant

information to evaluate the claims. Avery,

. The

ALJ must inguire about the claimant's daily activities; the

location, duration, freguency, and intensity of pain and other

symptoms; precipitating and aggravating factors; the

characteristics and effectiveness of any medication, treatments,

or other measures the claimant is or has taken to relieve pain;

and any other factors concerning the claimant's functional

limitations due to pain.

(c)(3),

416.929(c)(3); Avery,

. 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." Frustaqalia v. Secretary of

Health and Human Servs.,

(1st Cir. 1987). The medical evidence in the record established a medically

determinable impairment due to chronic lumbar strain caused by a

bone and disk injury. Murillo's treating neurosurgeon stated

that he would need surgery to improve the condition. Murillo

took prescribed medication for pain. His orthopedic doctor

determined that as of July 1993, a month before the hearing,

Murillo did not have capacity for full sedentary work for an

eight-hour day. He stated that Murillo could do non-strenuous

light work with his arms as long as he could vary his position

between sitting and standing at two-hour intervals and would not

have to keep either position longer than four hours in an eight-

hour day. I now consider whether Murillo's reported symptoms of

pain reguire greater functional restrictions than are

demonstrated by the medical evidence alone. Avery,

.

Murillo testified that he has low back pain almost all of

the time which is triggered by movement and which goes into his

left leg. He said that he takes medicine prescribed for the pain

but that the medicine makes him sleepy. Although he said that he

had taken his pain medication the morning of the hearing, he also

testified that he had driven from Nashua to Manchester for the

hearing, and he did not describe any symptoms of sleepiness. For

10 his daily activities, Murillo described getting up early in the

morning, bathing, eating, walking, washing the dishes, and then

resting for fifteen or twenty minutes. During the day he

described walking for no more than twenty minutes at a time, and

driving no farther than the drive between Nashua and Manchester.

After a twenty-minute walk, he said he was tired and stayed in

bed for three to four hours. He attended church for fifteen to

twenty minutes. He said that he could not help with housework

because he could not lift. When he watched television, he could

sit for awhile and then he had to get up. He testified that he

could stand for fifteen to twenty minutes at a time and could sit

thirty to thirty-five minutes and that he could bend to put on a

shoe, but that it bothered his back. He said that he could lift

an eight-pound gallon of milk with pain, while Dr. Kilgus

reported that he could lift up to twenty pounds as long as he did

not have to do so more than one-third of an eight-hour day. In

response to guestioning by his attorney, he said that he had

numbness and shooting pain in his left foot that caused his leg

to give out after walking or standing for more than fifteen or

twenty minutes.

In partially discounting Murillo's subjective pain

complaints, the ALJ considered all of the relevant information

11 required by Avery and the applicable pain regulations. Moreover,

there is substantial medical evidence in the record to support

the ALJ's resolution of this credibility question. Under these

circumstances, I am in no position to second guess the ALJ's

resolution of this disputed point.4

B. Sufficiency of the Evidence

The ALJ determined that Murillo was not disabled because he

could return to his past relevant work. He based this

determination on a finding that Murillo was capable of a full

range of light work without further restriction. Although the

record contains substantial evidence to support the ALJ's

ultimate conclusion that Murillo can return to his past relevant

work, I cannot accept the ALJ's subsidiary finding that Murillo

is capable of engaging in light work without restrictions.

4 During the course of the hearing, the ALJ made several inappropriate remarks. In particular, I note the ALJ's comment about Latin American men at page forty-five of the record. The ALJ also included a comment in the narrative portion of his decision, at page seventeen of the record, making a negative generalization about all claimants. Because the claimant has not raised bias as an issue in this case, I decline to address the question sua sponte. Nevertheless, I direct the defendant to provide a copy of this Order with a copy of the transcript to the appropriate person charged with supervising the ALJ in this case.

12 The evaluations done by Murillo's treating doctors included

restrictions on the amount of weight Murillo could lift or carry,

as well as postural limitations. The RFC assessments completed

by the Disability Determination Program reviewing doctors limited

Murillo's capacity for light work by restricting his ability to

sit or stand during an eight-hour day and by restricting certain

activities such as kneeling, bending, or crawling. These

uncontradicted findings are incompatible with the ALJ's

conclusion that Murillo could return to his former work as a

packer in the plastics factory which reguired him to stand for

the entire work day.

Notwithstanding Murillo's limitations, however, the record

contains substantial evidence establishing that he could return

to his past relevant work packing neckties. Although Murillo

testified that he could not return to his former job packing

neckties because he did not think he could sit or stand as much

as was reguired for that job, the record does not support his

belief. Murillo testified that the maximum weight he had to lift

in that job was twelve to fifteen pounds. He described the work

as reguiring very little bending or reaching and allowing

alternating sitting and standing. Even the most sympathetic

medical evaluations of his RFC expect him to be able to lift the

13 weight and meet the sitting and standing reguirements for the job

as he described it. Thus, I uphold the ALJ's ultimate conclusion

at Step Four of the seguential analysis that Murillo could return

to his past relevant work.

CONCLUSION

For the foregoing reasons plaintiff's motion to reverse and

remand (document no. 7) is denied and defendant's motion to

affirm (document no. 8) is granted. Defendant is directed to

comply with the reguirements stated in footnote four.

SO ORDERED.

Paul Barbadoro United States District Judge

May 4, 1995

cc: Raymond Kelly, Esg. David Broderick, Esg.

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