Thompson v. Shalala CV-94-88-B 05/02/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Amber Thompson

v. Civil No. 94-88-B

Donna E. Shalala, Secretary of _____ Health and Human Services

O R D E R

Amber Thompson challenges the decision by the Secretary of

Health and Human Services to deny her disability insurance and

supplemental security income benefits. Thompson contends that

the Administrative Law Judge ("ALJ") agreed to suspend her

benefits hearing to allow her to submit additional evidence, and

then improperly closed the record without notice and without

first allowing Thompson's counsel to cross-examine the vocational

expert further in light of the evidence submitted after the

hearing. Thompson also argues that the record does not support

the ALJ's decision. Because the ALJ did not err in not reopening

the hearing and the record contains substantial evidence to

support the decision, I affirm. BACKGROUND

Amber Thompson filed concurrent applications for

supplemental security income and disability insurance benefits on

November 18, 1991, alleging disability due to asthma and

depression related to transsexualism since November 5, 1990. At

the time of her application for disability benefits on November

18, 1991, she was thirty-eight years old. She had a high school

education with additional vocational training in electronics.

Following denial of her application and reguest for

reconsideration, she filed for an administrative hearing,

asserting an additional impairment due to knee pain. A hearing

was held on June 16, 1993.

Thompson's last gainful employment, as a motel manager,

ended on November 5, 1990, when the motel went bankrupt. Prior

to that time, she had worked for three and a half years as a

solderer and had been trained in still photography while serving

in the army. Thompson testified that at the time of the hearing

in June 1993, and for the year and a half prior to that time, she

had been most disabled from work by her knee pain. She testified

that she experienced constant discomfort due to knee pain.

Thompson's medical records during the period between

November 1990 and the hearing in June 1993 show that she was

2 treated several times for complaints of pain in her knees. Each

doctor reported that she had a reasonably good range of motion

and that her knees showed no signs of inflammation or swelling.

In her most recent evaluation in March 1993, the doctor noted

that her reported pain was somewhat out of proportion to the

physical findings, but suggested an orthopedic examination to

check for arthritis and ligament damage.

Thompson also testified that she experienced episodes of

asthma from exertion or emotional stress and that she took

medication, Alupent, as necessary to control her asthma. She

submitted the results of a pulmonary function test she took in

January 1992 that reported as a diagnostic conclusion that the

tests indicated a moderate restriction which was markedly

improved by using a bronchodilator. In November 1992, Thompson's

treating doctor concluded that her asthma was stable.

Thompson was first diagnosed with dysthymia1 related to

transsexualism2 in 1984. After several years of not being

1 Dysthymia is defined as "[a]ny disorder of mood." Stedman's Medical Dictionary 481 (25th ed. 1990).

2 Transsexualism is defined as: "The desire to change one's anatomic sexual characteristics to conform physically with one's perception of self as a member of the opposite sex." Id. at

3 treated, Thompson again sought treatment at the Nashua Community

Council ("NCC") in June 1990 to satisfy her treating doctor's

reguirement that she receive psychotherapy as a prereguisite for

prescribing hormones for her transsexual lifestyle and to relieve

stress and depression. The primary therapist recorded his

diagnostic impression as (1) adjustment disorder, depressed mood;

(2) dysthymic disorder; and (3) transsexualism. Her records of

psychotherapy and psychological evaluation during the period

shows that her primary purpose for engaging in psychotherapy was

to fulfill the prereguisite for obtaining hormone treatment and

to be evaluated for disability eligibility. In the most recent

evaluations in March 1993, the diagnosis remained essentially the

same, dysthymic disorder, transsexualism, and a possible

personality disorder. The psychotherapist found that Thompson

did not present a depressive picture and that she was well

oriented with good memory. The psychiatrist noted that she was

lucid and well-organized without thought disorder and that she

should be encouraged to regain employment.

Thompson testified that her depression made it harder to

care about doing anything. She also testified that she did not

1625.

4 take, and did not want to take, antidepressant medication.

Despite the physical and emotional problems she described, she

testified that she could do the motel manager's job, which she

held until November 1990, as long as she did not have to do any

maid service. The ALJ posed hypotheticals to the vocational

expert limiting functional capacity to light work with additional

restrictions reflecting Thompson's testimony about her capacity

for walking, standing, sitting, kneeling, and adding mild

depression.

Because Thompson's attorney anticipated collecting and

submitting additional evidence, the ALJ agreed to keep the record

open to receive additional records. Thompson's attorney and the

ALJ discussed the possibility of new issues arising from

additional records that would reguire further guestioning of the

vocational expert. While the record remained open, Thompson's

attorney sent additional medical and psychiatric records for

consideration by the ALJ.

The ALJ issued his decision denying Thompson benefits on

September 13, 1993. He found that Thompson met the disability

insured status on the date of her alleged disability; that she

had not engaged in substantial gainful activity since that date;

that her claimed impairments, while severe, were not listed in or

5 medically equal to an impairment listed in the regulations. He

determined that Thompson's testimony at the hearing about her

degree of pain was not entirely credible and that the evidence

showed that she had capacity for work activity in the light

range. He found that her capacity to perform light work was

limited by exertional restrictions, and non-exertional

restrictions from bending, stooping, climbing, crawling, no

exposure to asthma irritants, and a psychiatric limitation due to

mild depression. Based on those findings, the ALJ concluded that

Thompson was able to return to her past relevant work as a still

photographer or a motel desk clerk or manager. Consequently, the

ALJ decided that Thompson was not disabled. Thompson appealed to

the Appeals Council, who declined review, and Thompson appealed

to this court.

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

6 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 adeguate to support [the Secretary's] conclusion.'"

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

(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, Thompson contends that the ALJ erred in closing

the record without notice, without receiving all the necessary

evidence, and without allowing her attorney to guestion the

vocational expert in light of the evidence that was submitted

7 after the hearing. Thompson concludes that the ALJ's actions

deprived her of a fair hearing. She also challenges the

sufficiency of the evidence to support the ALJ's decision denying

her benefits.3 I address each issue separately.

A. Fair Hearing

In every disability proceeding, the ALJ has a duty to

develop a full and fair record on which to make a determination.

, 416.1444 (1994). The ALJ has a duty to

obtain additional evidence if necessary to fill a gap in the

record. Heggartv v. Sullivan,

(1st Cir. 1991).

Also, the ALJ may stop the hearing temporarily and reopen it at a

later time if he or she believes that material evidence is

missing.

, 416.1444. A claimant is entitled

by due process to a fair hearing including an opportunity for

cross-examination. Tanner v. Secretary of Health and Human

Servs.,

(5th Cir. 1991); see generally

Richardson v. Perales,

(1971). Thus, a

guestion of due process might arise if the ALJ had relied on a

3 Thompson focuses on disabilities due to knee pain and depression, but no longer pursues her claim based on asthma. The medical records support the ALJ's conclusion that Thompson's asthma was sufficiently controlled by medication not to be disabling. report or evidence unknown to Thompson without providing an

opportunity to refute the evidence or cross-examine the source of

the report. See, e.g., Allison v. Heckler,

(10th Cir. 1983). Thompson acknowledges that the ALJ offered

her attorney an opportunity to cross-examine the vocational

expert at the hearing. She argues, however, that the ALJ

suspended the hearing to get additional evidence and agreed

either to resume the hearing or to schedule a consultative

psychiatric examination and allow her attorney to cross-examine

the vocational expert at a later date. Then, Thompson argues,

after she submitted additional medical evidence, the ALJ closed

the record and issued his decision without further notice and

without allowing her attorney cross-examination. I reject these

claims because the hearing transcript does not support Thompson's

interpretation of the ALJ's remarks.

After the vocational expert's testimony, the ALJ and

Thompson's attorney discussed submitting additional evidence for

the record as follows:

ALJ: Obviously, attorney Kelly, if we receive any additional reports concerning any, any psychiatric issues, we do not have those for purposes of the hypothetical that's been given. Do you have any guestions of, of the vocational expert?

ATTY: I'd like to reserve those until I get the, the psychiatric.

ALJ: What we'll do is in the event -- I think that would be appropriate. What I would ask you do. I'd ask you to keep your records [vocational expert] thank you for testifying. And in the event that any additional reports are received that requires a consideration of different factors in a hypothetical, then again we could pose them either by way of interrogatories or it may be necessary to, to reschedule dependent upon the nature of the, of the additional questions that may be raised. Is there anything you'd like to say in closing, attorney Kelly? Do you wish to leave the record open until we receive this additional --

ATTY: Yes, Your Honor. And then if I could comment in writing.

ALJ: I certainly will leave the record open. How much time do you think you'll need for the additional --

ATTY: Thirty days.

ALJ: The -- now, what specifically are we, are we anticipating that we're going to receive?

ATTY: I'm going to get -- attempt to get an RFC-mental from Joyce Eldridge -- treating psychiatrist is at the Community Council. There also appears to have been an APTD psychological evaluation done separate and distinct from that of the Community Council so I'm going to try to get that. Dr. Wagner's orthopedic evaluation which was done for city welfare. And then I'm going to contact Dr. Eisen's office since he has the longitudinal --

ALJ: Well, I'm considering whether it would be appropriate at this time to consider the, consider the, the need to try to find a consultative examiner who has had a history of treatment, consider him to be an appropriate person to conduct a current evaluation and to provide a, provide a current consultative exam as opposed to using a stranger to do the function --

10 ATTY: That certainly would be preferable, and if the Court felt that was advisable I would, I would certainly request it.

ALJ: What I will do is I'll leave the record open and if, if I feel that that is necessary when you have submitted additional documents as soon as I receive those documents, it may require, it may require some additional delay, would definitely require additional delay. I'll leave the, the issue of closinq the record when it's appropriate at that time.

At the end of the hearinq, the ALJ explained to Thompson what he

anticipated would happen next:

ALJ: . . . your attorney is qoinq to be submittinq additional evidence as he receives it. At some point in time the record will close. And it may be that I, I need even additional evidence after the documents that he submits which may require even a more substantial delay by, by havinq an examination done. In any event, at some point in time the record closes. When it does, I review all the evidence at that time, I render a decision. . . . So, if there's nothinq further I reserve riqht of counsel to, to make arquments in writinq when the additional documents are in.

Althouqh the conversation is not as well-focused as one

miqht wish, the ALJ's intent is sufficiently clear. It is

apparent that the ALJ aqreed to leave the record open to receive

additional evidence from Thompson's attorney who asked for thirty

days to submit the documents. The ALJ reserved an opportunity

for Thompson's attorney to make arquments in writinq when he

submitted the additional documents. The ALJ intended to review

the submitted documents and, if necessary, he would consider a

11 consultative psychiatric examination of Thompson, or if new

psychiatric issues were raised by the evidence, he would order

further questioning of the vocational expert. In other words,

the ALJ anticipated making further decisions about whether

additional evidence would be necessary depending on the nature of

the evidence that was submitted by Thompson. The ALJ did not

commit to a psychiatric examination of Thompson, nor did he

continue the hearing pending receipt of the additional records.

After the hearing, Thompson submitted her psychiatric and

medical treatment records from the Community Council dated 7/9/90

to 7/1/92 and 3/23/93 to 4/22/93 and from the Hitchcock Clinic

dated 10/22/92 to 4/28/93.4 The ALJ rendered his decision on

September 13, 1993, almost three months after the hearing. The

ALJ did not ask for a consultative examination or provide for

additional examination of the vocational expert.

The psychiatric records submitted after the hearing show

4 Thompson's attorney submitted more medical records to the Appeals Council after the ALJ issued his decision. Although those documents are included in the record here, evidence that was submitted only to the Appeals Council, who declined to review Thompson's case, is not considered as part of the record before this court on appeal from the Secretary's decision. See Eads v. Secretary of Secretary of Health & Human Servs.,

(7th Cir. 1993) .

12 that Thompson suffered from dysthymic mood disorder due to

transsexualism with mild depression and from intermittent knee

pain caused by osteoarthritis. Her psychiatric evaluations from

March and April 1993 diagnosed dysthymic disorder and

transsexualism, and note that Thompson was lucid, without thought

disorder, manifesting reasonable judgment and that she did not

present a depressive picture. In the most recent medical report

from March 1993, Thompson told the doctor that she could walk for

one-half to one mile at a time, but that she was using a cane to

walk. The doctor found that she had a reasonably good range of

motion with some pain and stiffness, and that her reported pain

was somewhat out of proportion to the physical findings. He

nevertheless concluded that there was a significant possibility

of arthritis.

The records submitted after the hearing are consistent with

the medical and psychiatric evidence presented to the ALJ at the

hearing. The original evidence provided at the hearing made the

same psychiatric and physical examination diagnoses. Thus the

additional evidence submitted by Thompson's attorney did not

raise any new issues that reguired further evidence, or different

hypotheticals for the vocational expert. In addition, the

testimony and records provided a complete picture through the

13 application period of Thompson's claimed impairments and

treatment. Compare Heggartv,

(holding that ALJ

had a duty to further develop the record if additional evidence

is necessary to make a reasonable decision particularly when

claimant was unrepresented and the ALJ told claimant that he

would obtain records). Because Thompson submitted additional

medical and psychiatric records, and her attorney could have

submitted additional arguments in writing with the records, she

was not prejudiced by a decision based upon new, unknown, and

unchallenged medical evidence. Compare Allison,

-

47 (remanding because determination based on medical report

received after hearing when claimant had no notice of report, no

opportunity to cross-examine doctor, and no opportunity to offer

evidence in rebuttal). Due process did not reguire any further

development of the record in this case.

Conseguently, the ALJ did not err as a matter of law by not

reopening the hearing for further evidence or for cross-

examination of the vocational expert.

B. Sufficiency of the Evidence

The ALJ uses a seguential five-step analysis to determine

whether a claimant is disabled in social security cases.

, 416.920 (1994); Goodermote v. Secretary of

14 Health & Human Servs.,

(1st Cir. 1982). The ALJ

found that Thompson was able to return to her previous relevant

work as either a photographer or a motel manager or desk clerk.

Thus, the ALJ determined that Thompson was not disabled at step

four of the analysis. Thompson contends that the evidence in the

record did not support the ALJ's determination.

1. Depression

First, Thompson argues that the ALJ's reliance on her past

relevant work was misplaced. Thompson notes that the vocational

expert testified that she could not perform either of her past

relevant jobs if she suffered from a moderate concentration

deficit due to depression. Thompson, however, has not pointed to

any evidence in the record that demonstrates that she suffered

from a moderate concentration deficit at the time of the hearing

or at any relevant time prior to the hearing.5

Instead, her psychiatric records show that while she

suffered from dysthymic mood disorder due to transsexualism and

some depression related to her inability to find employment, she

5 Thompson bore the burden of proving that she was impaired and that her impairments prevented her from performing her previous work. See Gray v. Heckler,

(1st Cir. 1985) .

15 was not disabled in the opinion of the examining psychiatrists.

The psychiatric records describe Thompson as lucid, with good

concentration and memory, reasonable judgment, and depression at

a level that would not prevent consistent work. In addition,

Thompson acknowledged and the records confirm that she

consistently refused anti-depressant medication that was

suggested by her therapists. Several therapists report that

Thompson used therapy sessions only as a means for obtaining

hormone treatments to maintain her transsexual lifestyle, that

her depression was primarily related to her lack of success in

obtaining employment, and that she had a manipulative guality of

trying to avoid her current situation by an award of long-term

disability. Finally, Thompson testified that her problem with

depression made it difficult for her to care about doing

anything, but she also testified that the pain in her knees was

the primary reason that she was not working.

The ALJ found that Thompson's work capacity was limited

based upon a diagnosis of mild depression. Relying on the

testimony of the vocational expert responding to a hypothetical

adding a slight limitation in concentration due to depression,

the ALJ determined that Thompson could return to her past

relevant work as a motel clerk or manager or a photographer.

16 Substantial evidence at the hearing supports the ALJ's

determination, and there was no evidence that Thompson suffered

from a more severe impairment in concentration.

2. Knees

Thompson also contends that the ALJ improperly evaluated the

medical evidence pertaining to her impairment due to knee pain.

She argues that the records of her examinations by Dr. Jesse

Wagner between November 1992 and March 1993 show that medical

evidence existed to support her subjective complaints of knee

pain. I disagree.

Subjective complaints of pain are evaluated in light of all

of the evidence.

(d) (5) (A); Avery v. Secretary

of Health & Human Servs.,

(1st Cir. 1986) . In

his final examination note in March 1993, Dr. Wagner reported

that Thompson was experiencing severe pain and using a cane but

that she could walk for one-half to one mile at a time. He found

no swelling, inflammation, warmth or local tenderness in her

knees. He also found a good range of motion in her knees with

some pain and stiffness in certain motions. He concluded that

her reported pain was somewhat out of proportion to the physical

findings of the examination, but that a significant possibility

of arthritis or ligament damage existed and recommended an

17 evaluation by an orthopedic doctor.

At the hearing in June 1993, Thompson testified that she had

stopped riding her bicycle during the winter of 1992 to 1993

because of her knee pain. She also testified that she

occasionally did her own laundry and sometimes asked a friend to

do it for her. She said that she ate supper at the soup kitchen

but that she made some meals in her apartment, did some grocery

shopping about once a month, and tried to do her own

housekeeping. She testified that stairs or a high curb bothered

her knees but that she could walk on a flat surface for twenty to

twenty-five minutes and could stand for ten or fifteen minutes.

Bending over to pick something up off of the ground and kneeling

caused problems with her knees, but she could pick up and carry

something weighing no more than twenty pounds. She said that she

could sit for forty to forty-five minutes at a time and then

could return to sitting after moving around or after taking

something for pain.

In the hypothetical to the vocational expert, the ALJ

limited Thompson's capacity for work to light work including

sedentary work without standing for more than fifteen minutes at

a time, walking for no more than twenty-five minutes at a time,

sitting for no more than forty-five minutes at a time. The ALJ

18 also required that she have freedom to rest and change position,

and that the work be limited as to bending and stooping, and

avoid climbing or crawling. These are the restrictions indicated

by Thompson's testimony at the hearing. Only when the ALJ added

a restriction to only sedentary jobs did the vocational expert

rule out Thompson's prior relevant work. Thompson presented no

evidence that she would require only sedentary work.

Substantial evidence, including Thompson's testimony, the

medical evidence, and the vocational expert's evidence, supports

the ALJ's determination that Thompson could return to her past

relevant work as a motel clerk or manager, or a photographer.

Therefore, the ALJ properly determined that Thompson was not

disabled.

CONCLUSION

For the foregoing reasons plaintiff's motion to reverse and

remand (document 11) is denied and defendant's motions to affirm

the Secretary's decision (documents 10 and 12) are granted.

SO ORDERED.

Paul Barbadoro United States District Judge

May 2, 1995

19 cc: David Broderick, Esq. AUSA Raymond Kelly, Esq.

20