McCarthy v. HHS CV-94-288-JD 08/09/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gary McCarthy

v. Civil No. 94-288-JD

Secretary, Health & Human Services

O R D E R

The plaintiff, Gary McCarthy, 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 his claim for

benefits under the Act. Before the court are the plaintiff's

motion to reverse the Secretary's decision (document no. 9) and

the defendant's motion to affirm the Secretary's decision

(document no. 11).

Background1

The plaintiff, born on July 24, 1956, was thirty-seven years

old when the Secretary conducted the administrative hearing.

Transcript of Administrative Record ("Tr.") at 47. The plaintiff

has a tenth grade education, and his vocational history includes

1The court's recitation of the procedural and factual background of this case is drawn from the stipulation of facts filed jointly by the parties. work as a roofer, a cleaner, and a fence erector. I d . at 173.

The plaintiff alleges disability due to a broken ankle, nerve and

ligament damage, lower back pain, and alcohol abuse.

I. Medical Records

On October 31, 1990, the plaintiff fell off a ladder while

working on a roof, landing on and fracturing his right heel bone,

known as the calcaneus. Tr. at 248, 249. The following day, the

plaintiff was examined by Mary Sole, a physician with the

Hitchcock Clinic, who placed him in a short leg cast and

recommended that he elevate the foot, use crutches, and avoid

placing weight on the foot. I d . at 249. Dr. Sole noted that the

plaintiff appeared somewhat intoxicated at the time of

examination.

During a follow up examination on November 30,

1990, the plaintiff reported increasing pain and irritation deep

within the ankle.

On December 17, 1990, Dr. Sole removed the cast and noted

that the plaintiff had a 75% range of motion, mild tenderness

over the fracture site, and minimal swelling. Tr. at 250. The

doctor also noted evidence of healing, recommended that the

plaintiff place weight on the ankle, reduce his use of crutches,

and undergo physical therapy.

X-rays taken at that time

2 revealed that the fracture was hardening and healing. I d . at

252 .

On January 1 4 , 1991, Dr. Sole again examined the plaintiff

and noted significant heel pain, improved swelling, and a

markedly improved range of motion. Tr. at 250. The plaintiff

had decreased his use of crutches.

X-rays revealed disuse

osteoporosis and increased healing.

Dr. Sole observed

continued healing of the fracture with slow recovery and

recommended that the plaintiff continue physical therapy to

improve his range of motion, decrease the use of crutches, and

increase physical activity.

On February 11, 1991, Dr. Sole again examined the plaintiff,

who continued to complain of significant pain in the lateral

aspect of the foot and ankle, which the doctor related to marked

heel valgus and foot pronation and lack of arch. Tr. at 254.

The doctor also noted that the pain may be attributed to

displaced fracture fragments in the lateral subtalar joint.

The plaintiff's range of motion had continued to improve and the

doctor prescribed arch supports, ordered a CT scan, and indicated

that the plaintiff might benefit from a subtalar fusion.

On February 25, 1991, Dr. Sole again examined the plaintiff,

who was tender at the lateral heel and tendons. Tr. at 254. The

CT scan revealed early degenerative joint disease and

3 degenerative changes in the lateral aspect of the subtalar joint,

along with the comminution, or breakdown, of the subtalar joint.

Dr. Sole noted ankle pain secondary to scarring over the

tendons around the callous, compromised by some early

degenerative changes and she proposed cortisone injections if the

plaintiff did not improve in three weeks.

On March 18, 1991, Dr. Sole again examined the plaintiff,

who demonstrated an improved range of motion with decreased pain

and increased weight bearing. Tr. at 255. However, the

plaintiff expressed considerable frustration as he still suffered

significant pain in the ankle and could not walk for prolonged

periods without the use of crutches.

He was tender over the

peroneal tendons and lateral subtalar joint. The doctor noted

the continued improvement and prescribed physical therapy and

decreased use of crutches.

On April 8, 1991, Dr. Sole again examined the plaintiff and

noted little change in his condition. Tr. at 255-54. The doctor

further noted an impression of right calcaneus fracture with

residual loss of subtalar motion and evidence of inflammation

around the peroneal tendon sheath.

The plaintiff enjoyed

immediate pain relief from a cortisone injection into the

peroneal sheath.

4 On May 9, 1991, Dr. Sole again examined the plaintiff and

noted increased pain which she attributed to increased weight­

bearing and ambulation and, in particular, to pronounced

pronation at mid-foot placed pressure on the lateral subtalar

joint. Tr. at 256. The plaintiff discontinued physical therapy

because the increased pain prevented his participation. I d . at

256, 277 (physical therapy note). Dr. Sole diagnosed status-post

calcaneal fracture, healed but with subtalar joint irritation and

probable peroneal tendon scarring.

She placed the plaintiff

back in a short walking cast in an effort to reduce inflammation

and noted that if this were successful a subtalar fusion would

probably be necessary.

On May 31, 1991, Dr. Sole again examined the plaintiff, who

reported less pain. Tr. at 257. The cast was removed and the

plaintiff exhibited some limitation of motion in the subtalar

joint but otherwise displayed a fairly good range of motion in

the ankle.

On June 18, 1991, Dr. Sole again examined the plaintiff and

noted no change in his condition. Tr. at 257-58. He continued

to use crutches to ambulate long distances, complained of pain in

the lateral heel and ankle, and reported a pop and catch of the

peroneal tendons along the lateral malleolus.

The plaintiff

continued to walk with marked heel valgus and barefoot and

5 midfoot pronation.

Dr. Sole noted tenderness, with a fairly

good range of motion but painful subtalar motion.

X-rays

were interpreted to show some irregularities in the posterior

talocalcaneal joint and marked demineralization, which Nancy

Beaurivage, a radiologist with the Hitchcock Clinic, suggested

might be reflex sympathetic dystrophy. I d . at 258, 261. Dr.

Beaurivage also considered a relatively minor tendon release

operation.

Dr. Sole examined the plaintiff twice in July 1991. Tr. at

262 (notes of July 25, 1991), 263 (notes of July 29, 1991). At

that time she diagnosed him with cellulitis accompanied by

increased pain and swelling.

The condition was treated by

seven days of antibiotics and Ansaid medication, foot elevation,

and hot soaks.

Dr. Sole noted her impression of right

subtalar arthritis secondary to calcaneal fracture, severe, in

need of a probable subtalar fusion.

She also indicated that

the plaintiff ultimately would need surgery but that such

treatment could be postponed until he had some kind of insurance.

Dr. Sole next examined the plaintiff on February 5, 1992, at

which time she noted that he had no change in his symptoms, could

not walk distances greater than fifty feet because of pain, and

continued to use crutches or a cane to ambulate long distances.

6 Tr. at 264. The plaintiff complained of pain even when not

weight-bearing, exhibited little swelling, had a limitation of

motion and tenderness at the inframalleolar and subtalar joints,

and mild discomfort in the ankle.

The doctor further noted

that diffuse burning pain accompanied all ankle motion.

Dr.

Beaurivage interpreted the X-rays to reveal some irregularities

in the posterior talus and talar calcaneal joints with no

evidence of significant arthritis in other joints. I d . at 265.

Based on these findings and the fact that the plaintiff

complained of pain levels disproportionate to the clinical

findings. Dr. Sole indicated that the plaintiff may suffer from

reflex sympathetic dystrophy ("RSD").

The doctor

recommended a lumbar sympathetic block which she expected would

assist the plaintiff if, in fact, he did have RSD.

However,

the doctor noted that such treatment would not be helpful if the

plaintiff's diffuse osteoporosis was due to disuse, and not RSD,

in which case subtalar fusion would be a more beneficial

treatment.

The plaintiff underwent the lumbar block and Dr. Sole noted

marked initial improvement during a February 19, 1992,

examination. Tr. at 266. The medical record indicates that the

plaintiff was able to walk without particular pain in the ankle

but with some stiffness.

Dr. Sole suggested that should the

7 symptoms return additional lumbar blocks might be necessary for

the plaintiff to resume his normal activities.

On February 2 8 , 1 9 9 2 , Dr. Sole diagnosed the plaintiff with

a second episode of cellulitis and attendant pain and redness,

which she attributed to poor circulation. Tr. at 267. The

doctor, who also noted erythema on the foot, mild edema and very

exguisite tenderness, prescribed antibiotics.

The plaintiff returned to the Hitchcock Clinic on March 6,

1992, at which time he reported to Brian Kimball, a physician's

assistant, that two days earlier someone had fallen on his right

foot during a minor altercation in a bar. Tr. at 268. The

plaintiff also reported that his symptoms had not improved and,

in fact, that he noticed increased swelling below the medial and

lateral malleolus.

The physician's assistant noted that the

plaintiff was instructed to continue with the antibiotics, to

elevate his foot, and to apply ice compresses.

On March 11, 1992, Dr. Sole again examined the plaintiff,

who reported good pain relief, and minimal swelling with use of

Ansaid. Tr. at 270. The doctor noted normal flexion and

extension of the ankle, with no inversion or eversion, and no

tenderness in the foot.

Dr. Sole noted her impression of

status-post mild cellulitis on the dorsum of the right foot,

resolved, with ecchymosis secondary to contusion, which was improving.

Dr. Sole instructed the plaintiff to schedule

another lumbar block as the first one appeared to be wearing off.

On October 20, 1992, the plaintiff was examined by James

Shea, an orthopedic surgeon hired by the state office of

disability determinations to conduct an orthopedic consultation.

Tr. at 279-81. At the time the plaintiff, who was limping,

complained of pain in his lower back related to the 1988 fall

from the ladder, as well as pain in his right foot and ankle.

The plaintiff further complained of recent, nonspecific neck

discomfort but otherwise indicated that his health was good.

Dr. Shea noted that the plaintiff was well nourished, with a

normal gait and slow pace.

The physical examination

revealed an unremarkable cervical spine, and a full range of

motion with hesitation and complaints of discomfort but without

muscle spasm.

Dr. Shea noted moderate tenderness at L3 to

L5, definite atrophy of the right lower extremity, and that the

plaintiff refused to walk heel to toe on the right.

The

doctor further noted a limitation of motion in the right ankle

and his right calcaneus was clinically widened, especially under

the lateral malleolus.

Dr. Shea diagnosed a lumbar strain,

and a healed calcaneal fracture of the right foot with secondary

significant atrophy of the right leg.

Dr. Shea noted that the plaintiff's ability to stand and walk was markedly limited,

that his ability to sit was not limited, and that his ability to

lift, carry, and bend was moderately limited.

On January 29, 1993, the plaintiff underwent a consultative

psychological evaluation conducted by William Jamieson, a

clinical psychologist practicing in Manchester. Tr. at 283-85.

Dr. Jamieson noted that the plaintiff was poorly groomed and

dressed, appeared much older than his age, and stated that he had

consumed a six pack of beer in the three hours preceding the 1

p.m. appointment.

The psychologist observed that the

plaintiff was somewhat labile, alert, oriented, displayed

adeguate attention and cooperation, with good cooperation and

effort.

The plaintiff reported that he injured his ankle

and back when he fell through a roof in 1987.

He also

complained of boredom and indicated that he spent all of his time

at home or going to clubs and stated that he drank daily in order

to sleep.

Dr. Jamieson administered testing despite the

plaintiff's earlier consumption of alcohol "with the expectation

that whenever the patient would be have been seen, he would be

under the influence of some alcohol." I d . at 284. The Rorschach

testing was not suggestive of thought disorders and the other

testing was not suggestive of either a major depressive disorder

or of disabling anxiety. I d . at 283-85. Dr. Jamieson diagnosed

10 the plaintiff with a generalized anxiety disorder with an

underlying personality disorder and with a significant element of

impulse control difficulty.

Dr. Jamieson further indicated

that the plaintiff had limited insight, marginal judgment, was

easily influenced by emotional arousal, possibly related to

alcohol consumption, and was minimally capable of managing his

funds.

On July 31, 1993, Dr. Sole prepared an RFC assessment of the

plaintiff, indicating that he was capable of lifting and carrying

objects weighing up to ten pounds freguently and up to twenty

five pounds occasionally, could sit without limitations, and

could stand up to one hour in an eight hour day, in fifteen

minute increments. Tr. at 299-303. Dr. Sole attributed these

limitations to a right subtalar joint advanced post-traumatic

arthritis and probable right lower extremity RSD.

Dr. Sole

indicated that the plaintiff should avoid climbing, balancing and

temperature extremes but would not encounter difficulty with fine

manipulation.

On August 1, 1993, Dr. Sole indicated that the plaintiff had

an increased tendency to have right foot cellulitis due to

chronic lymphedema because of his condition. Tr. at 304-307.

She further indicated that the plaintiff needed a repeat

11 sympathetic block and that the symptoms of his chronic cellulitis

were relieved with antibiotics.

The plaintiff was examined on August 6 , 1993, by John

Blowen, a nurse practitioner practicing in Manchester. Tr. at

309. At the time the plaintiff complained of a sore ankle and

recounted a history of many and varied injuries, several related

to fights, and problems related to alcohol and tobacco use.

The plaintiff was not taking prescription medication.

The

physical examination revealed a runny nose, sore throat, very bad

teeth and gums, and alcohol on the breath.

The nurse

diagnosed the plaintiff with substance abuse, post-traumatic

arthritis right ankle, chronic low back pain, possible

sinobronchitis, and gingivitis.

The nurse indicated that

the plaintiff was unemployable mostly due to musculoskeletal

problems, exacerbated by alcoholism.

The plaintiff was

prescribed Naprosyn for pain and Suprax for the bronchitis.

II. Procedural Background

The plaintiff filed the current applications for benefits on

September 8, 1992, claiming an inability to work since October

31, 1990. Tr. at 132 (application for disability insurance

benefits); 221 (application for supplemental security income).

The applications were denied initially, i d . at 146-48, 236, and

12 following reconsideration by the Social Security Administration.

I d . at 164-66, 242-44. An administrative law judge ("ALJ"),

before whom the plaintiff, his attorney and a vocational expert

("VE") appeared for a hearing, considered the matter de novo and,

on November 19, 1993, ruled that the plaintiff was not entitled

to either disability or SSI benefits. I d . at 10-24, 25-27

(decision of Klingebiel, J.).

At the administrative hearing, the plaintiff testified about

his personal history, vocational experience, medical history,

symptomology, daily activities and physical capabilities. The

plaintiff testified that in the past he had worked as a roofer,

laborer and cleaner, Tr. at 47, and he had injured his back

initially when he fell through a roof in 1988 but had

subseguently returned to work. I d . at 58, 60. In reference to

his 1990 injury, the plaintiff testified that he shattered his

ankle and heel by falling ten feet off a ladder. I d . at 49-50.

The plaintiff described his ankle pain as sharp with a

severity of ten on a scale of one to ten. Tr. at 67. He rates

his physical impairments in descending order of severity as his

ankle, back, and shoulder. I d . at 60. The plaintiff testified

that his right shoulder bothers him when he lifts it, i d . at 61,

and that he experiences lower back pain which runs down his legs.

13 I d . at 62. At night the plaintiff hangs his leg over the end of

the bed. I d . at 57.

The plaintiff testified that he has been treated by

physicians and physical therapists but continues to suffer severe

and sharp ankle pain while sitting and standing. Tr. at 50-51.

The treatment included a special sling or wrap which the

plaintiff wears on his ankle at all times. I d . at 57. The

plaintiff testified that he is limited to light duty with no

lifting, no prolonged walking, no bending, no kneeling, and no

sguatting. I d . at 61-62. The plaintiff stated that prolonged

sitting and stretching would bother his back, i d . at 62, and that

these symptoms would prevent him from working in a sitting job as

a small parts assembler.

The plaintiff testified that his treating physicians would

not prescribe pain medication because of his alcohol use, Tr. at

52, but that he has received cortisone shots for the ankle pain

in 1991, which were not particularly helpful, and a sympathetic

lumbar block in order to reduce the nerve pain in the foot.

. The plaintiff self-medicates with alcohol in an effort to

reduce his pain and may consume up to three, six-packs of beer a

day but does not drink hard liguor. I d . at 52. The plaintiff,

who did not drink the day of the hearing, i d . at 55-56, testified

that there are periods of time in which he would go a day or two

14 without drinking. I d . at 71. The plaintiff drank heavily for a

"long time" before his 1990 injury. I d . at 52. The plaintiff

reported blackouts and memory problems because of his drinking,

i d . at 55, and, prior to his ankle injury, experienced

hallucinations about seeing people. I d . at 65-66. At the time

of the hearing the plaintiff testified that his beer consumption

had increased so that he could fall asleep but that the pain

wakes him up at all hours nonetheless. I d . at 66-67. The

plaintiff often relies on his friends to purchase alcohol for him

at area bars. I d . at 70. The plaintiff testified that his

brothers "always ask[] me, you know, guit drinking. I say what

the hell for."

.

The plaintiff testified that he receives $111.00 worth of

foodstamps each month and that the City of Manchester contributes

$300 a month towards his rent. Tr. at 48. While on welfare, the

city attempted to reguire the plaintiff to separate newspapers

into piles at a recycling center but his job performance was so

inadeguate that he was sent home by his supervisors. I d . at 54.

The ALJ also heard testimony from Christopher Wood, a

private disability case manager who appeared as an impartial

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

Secretary on the plaintiff's vocational history. Wood reported

that the plaintiff's prior job as a roofer, as the plaintiff

15 performed it, is considered semi-skilled at a medium exertional

level, Tr. at 74, and that the prior job as a fence erector is

considered skilled at a heavy exertional level.

Wood also testified in response to hypothetical questions

posed by the ALJ in which he was to assume a thirty-seven year

old claimant with the plaintiff's education and work experience

and a functional capacity limited by an inability to stand or

walk for more than fifteen minutes at a time and an inability to

bend, stoop, kneel, crouch, crawl, and perform other postural

activities with any frequency durinq the day. Tr. at 75. He was

to further assume a hypothetical claimant "who perhaps would be

able to lift up and carry 20 pounds maximum but . . . would not

be able to handle anythinq more than 20 pounds."

Wood

responded that an individual with the capabilities of the

hypothetical claimant would be incapable of performinq any of the

plaintiff's prior jobs. I d . at 75-76. However, he testified

that the hypothetical claimant could perform unskilled jobs at

the sedentary level, i d . at 7 6, and that such jobs would include

bench assembly, hand packaqinq, polishinq, buffinq, qrindinq,

hand coatinq and paintinq.

Specifically, Wood stated that

there are approximately 5,600 bench assembly positions in New

Hampshire with 200,000 in the national economy and, of these

jobs, 500 in New Hampshire constitute sittinq down, sedentary

16 positions with the remaining 5,100 constituting light duty

positions which would reguire prolonged periods of standing.

. With regard to the packaging position. Wood testified

that there exist approximately 300 sedentary jobs in New

Hampshire with 70,000 in the national economy. I d . at 78. With

regard to the polishing, buffing, and grinding positions. Wood

testified that there exist approximately forty-five to fifty

sedentary jobs in New Hampshire with 33,000 in the national

economy.

With regard to the hand coating and painting

positions. Wood testified that there exist approximately 4,700

sedentary jobs in the national economy and, although he could not

offer a specific number, the incidence of such jobs in New

Hampshire "would really be insignificant." I d . at 78-79. Wood

further testified that there are less than 100 "sit-down monitor

or security guard types of jobs" in the New Hampshire. I d . at

79.

The ALJ next modified the hypothetical and the following

colloguy took place:

ALJ: Now, in regard to these jobs that are, as you've indicated, mostly sitting or sit-down types of jobs, if in addition to that limitation of not being able to be on their feet for more than 15 minutes or so an individual had to get up from time to time from the sitting position, that is, had to stand up and perhaps make themselves comfortable for a couple of minutes before sitting back down again, would these jobs

17 accommodate someone being able to get up, let's say every 30 minutes or every, somewhere between 30 minutes and an hour, before sitting down again or would someone have to be sitting down without any ability to interrupt the sitting position during the day?

VE: I think that in some of the positions such as the polishing, buffing, grinding and the hand coating and painting that the production reguirements might preclude changing of position. Sometimes with the packaging, the lighter packaging, there's enough of an opportunity for change of position that just occurs naturally in the course of the job because they're, they're packaging and taking what they packaged to another station.

T r . at 7 9-80.

The plaintiff's attorney next examined the VE and posed a

hypothetical:

If in the moving and making comfortable the worker has to leave the work station twice an hour, which means 12 or 13 times during the workday, and by moving and making comfortable I mean he just doesn't stand up like this, he has to walk away from the station and maybe walk 10 or 15 feet one way or another to sort of maybe get the kinks out of the leg or the problem he's having with the back, would that seriously compromise his ability to do the jobs that you've identified as far as the bench assembly or the hand packaging?

Tr. at 80. Wood responded yes, acknowledging that such

additional limitations would significantly erode the number of

jobs the hypothetical claimant could perform. I d . at 81. The

plaintiff's attorney next asked guestions about the nature and

source of the V E 's statistical data, which Wood explained is

18 based on census data and the characteristics of the national

labor forces.

Wood further testified that the sedentary

bench assembly position constitutes less than one half a percent

of all domestic jobs, i d . at 81-82, and that the sedentary,

sitting-down bench assembly position accounts for 500 jobs in New

Hampshire, or approximately one tenth of one percent of all jobs

in the state. I d . at 82-84.

The ALJ applied the five-step sequential process applicable

to a claimant's disability application.

,

416.920 (1994) .2 The ALJ found (1) the plaintiff has not engaged

in substantial gainful activity since October 31, 1990; (2) the

plaintiff satisfied the disability insured status requirements of

the Act on October 31, 1990, and continued to satisfy those

requirements until December 30, 1992; (3) the medical evidence

establishes that the plaintiff has severe

2The 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: (3) whether the impairment meets or equals 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.

.

19 impairments, including lower back pain and post-traumatic

arthritis of the right ankle, but that he does not suffer from an

impairment or combination of impairments listed in, or medically

egual to one listed in. Appendix 1, Subpart P, Regulations No. 4;

(4) the plaintiff does have a reported history of alcohol abuse

but that this is not a severe impairment because he has not been

identified as having an alcohol problem which would in any way

interfere with his ability to perform basic work related

activities since his alleged onset date; (5) the impairment

prevents the plaintiff from performing his past relevant work;

and (6) there are a significant number of jobs in the national

economy which the plaintiff could perform, notwithstanding his

impairment. I d . at 23-24. The ALJ found that the plaintiff's

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

perform the physical exertion and nonexertional reguirements of work except for lifting greater than 20 pounds, and is limited to positions which would reguire mostly sitting, no more than minimal standing and walking and which would allow for his need to get up approximately once each hour to change positions to relieve any discomfort which he may experience.

I d . at 23 .

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

disabling pain to be inconsistent with the medical evidence,

contradicted by his daily activities and functional activities as

reported by his treating and examining sources, and not credible

20 under the criteria announced in Avery v. Secretary of Health and

Human Servs.,

(1st Cir. 1986). Tr. at 23. 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 the decision. I d . at 24.

The Appeals Council denied the plaintiff's reguest for

review on April 22, 1994, rendering the ALJ's decision the final

decision of the Secretary. Tr. at 4-5. The plaintiff filed this

action on May 31, 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)).3 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. NLR B ,

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

21 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.'" I d . (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).

22 423(d)(5)(A); Avery v. Secretary of Health and Human Servs., 797

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

.

In his motion, the plaintiff raises three separate arguments

to support his 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.

I. Subjective Complaints of Pain

The plaintiff first asserts that the ALJ did not properly

evaluate his subjective complaints of pain and, in particular,

the debilitating pain attacks allegedly related to the

plaintiff's diagnosis with reflex sympathetic dystrophy ("RSD").

Plaintiff's Memorandum in Support of Motion to Reverse and Remand

("Plaintiff's Memorandum") at 16, 18.

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,

;

. "[C ]omplaints of pain need

not be precisely corroborated by objective findings, but they

must be consistent with medical findings." Dupuis v. Secretary

23 of Health and Human Servs.,

(1st Cir. 1989);

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

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

claimant's assertions of pain at face value.") (quoting 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 sequential 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,

;

(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 his 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,

. The

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

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

precipitating and aggravating factors; type, dosage, effective­

24 ness 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,

; 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. 42 U.S.C. 423(d); 20 C.F.R. 404.1529(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

credible. First, the ALJ noted that the plaintiff reported in

disability reports that he performs household tasks, such as

cooking and cleaning, and attends private clubs in the Manchester

25 area in order to socialize with others. Tr. at 19-20. Second,

when assessing the credibility of the allegations of pain the ALJ

explicitly relied on the reports of the plaintiff's treating

physician. Dr. Sole, i d . at 20, who submitted an RFC assessment

based on a diagnosis of "probable right lower extremity reflex

sympathetic dystrophy." I d . at 299. Thus, contrary to the

plaintiff's assertion, the ALJ did consider the effect of the RSD

diagnosis by explicitly relying on a treating physician

assessment based on that diagnosis. See i d . at 20. Third, the

ALJ found the plaintiff's testimony at the hearing concerning

shoulder pain and persistent pain radiating into his lower left

extremity to be inconsistent with the bulk of his written medical

history in which he complained primarily of pain in his right

ankle. I d . at 20. The ALJ accurately observed that

[i]t was only for purposes of his disability evaluation that he noted to Dr. Shea that he had persistent back pain since falling through a roof many years previously. Upon examination by Dr. Shea, the claimant specifically noted that he had never had any radiation of his back pain into his lower extremities and had never had weakness or paresthesia of his legs. Nevertheless, at the hearing, the claimant testified that his back pain has been persistent with radiation into the left lower extremity.

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

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

inferences based on those observations. The court acknowledges

that the record contains some evidence which may suggest levels

of pain greater than that found by the ALJ, such as the written

assessment of Nurse Blowen who, following a single examination,

noted that the plaintiff suffers chronic low back pain. I d . at

309. Nonetheless, the fact that the record is not eguivocal in

all respects does not compromise the ALJ's credibility assessment

because conflicts in the record are necessarily resolved by the

Secretary and not on appeal to federal court. See Irlanda Ortiz,

. 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.

II. Alcohol Consumption

The plaintiff next asserts that the record does not contain

substantial evidence to support the ALJ's conclusion that his

alcohol consumption does not constitute an addition non-

exertional limitation. Plaintiff's Memorandum at 24-27.

A claimant may gualify as disabled under the Act by

demonstrating that their use of alcohol has resulted in

27 behavioral or physical changes which satisfy any one of the nine

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1,

Section 12.09 ("substance addiction disorders"). See Arroyo, 932

F.2d at 86, n.8.4 Proof that a substance addiction disorder has

resulted in a condition that meets, or equals, one ofthe nine

listed impairments will establish that the claimant isdisabled

at step three of the sequential process. Arroyo, 932 F.2d at

n.8; Calvert v. Secretary of Health and Human Servs., No. 91-291-

D,slip op. at 15, n.2 (D.N.H. Jan. 22, 1992).

In addition to analysis under part 404, the First Circuit

has announced an alternative basis upon which a claimant may

establish a disability based on their consumption of alcohol:

Substantial authority holds that a claimant who seeks disability benefits on grounds of alcoholism must prove that he is addicted to alcohol and has lost the ability to control his drinking. In addition, the claimant must show that his alcoholism precludes him from engaging in substantial gainful activity.

We agree that alcoholism can constitute a compensable disability under this test. But we emphasize that even though alcoholism, by definition, imports a certain lack of control, evidence that a claimant has been diagnosed a chronic alcoholic is not sufficient to establish that the claimant has lost the ability to control his consumption of alcohol. This inquiry requires that we determine whether claimant has so far lost the capacity for self control that he has

4The impairments listed are: Organic Mental Disorders; Depressive Syndrome: Anxiety Disorders; Personality Disorders; Peripheral Neuropathies; Liver Damage; Pancreatitis; and Seizures. 20 C.F.R. Part 404, Subpart P, A p p . 1, § 12.09 (1994).

28 been "rendered impotent to seek and use means of rehabilitation." . . . This result is consistent with the requirements for evaluating all disability claims, and reflects the reality that many alcoholics work.

Arroyo, 932 F.2d at 86-87 (extensive citations and quotations

omitted). The fact that a claimant was able to remain employed

during a time period in which he was drinking heavily supports

the conclusion that the claimant had not lost the ability to

control his drinking. I d . at 87. Finally, the Secretary's

failure to consider this alternative basis for disability on

account of alcoholism requires the court to remand consistent

with the Arroyo analysis. See Calvert, slip op. at 19.

The ALJ addressed in some detail the issue of the

plaintiff's alcohol consumption in his written decision and, in

so doing, performed an analysis consistent with that outlined by

the First Circuit in Arroyo. See Tr. at 17-21.5 The ALJ found

that although the plaintiff testified that he has a history of

alcohol abuse, "his testimony also indicated that he does not

consume alcohol on a daily basis and did not suggest that he

would be unable to stop the use of alcohol consumption." I d . at

17. The ALJ further found that

[t]he claimant has not required any psychological or psychiatric treatment and has not exhibited

5Ihe plaintiff does not assert that he has satisfied one of the nine impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.09.

29 deficiencies in his activities of daily living as a result of alcohol abuse. There is no evidence that the claimant's use of alcohol affects his ability to function in a work environment.

I d . at 18.

The court considers whether the ALJ's findings relative to

the plaintiff's alcoholism are supported by substantial evidence.

In his brief, the plaintiff has accurately summarized the

substantial body of evidence indicating that he does, in fact,

abuse alcohol, see Plaintiff's Memorandum at 26-27, and the court

recognizes that this consumption has interfered with his life in

great measure. The court further recognizes that the medical

records indicate reliance on alcohol, see, e.g., Tr. at 283-85,

309, and that the plaintiff's testimony at the hearing manifests

an unwillingness to guit or curtail his drinking. I d . at 71.

However, the record also contains evidence that the plaintiff

does not drink every day, i d . at 71, did not drink the day of the

hearing, i d . at 55-56, and has been a heavy drinker for a "long

time" before his first injury in 1990 -- a period of time during

which he maintained steady employment. I d . at 52. Moreover, the

reports of Dr. Jamieson, who examined the plaintiff while

intoxicated, and the report of Dr. Rauter, explicitly take into

account the alcohol dependence but do not suggest that this

condition would prevent the plaintiff from working. See i d . at

152-163 (Rauter noting inter alia moderate limitations in ability

30 to complete workday, slight restriction of daily activities, and

"impairment(s) not severe"); 283-85 (Jamieson noting inter alia

no underlying thought disorder, no major depressive disorder, no

disabling anxiety, but noting limitations related to insight,

judgment, and anxiety). Finally, the plaintiff's treating

physician of several years. Dr. Sole, does not even mention

alcohol use or abuse in her RFC assessment. See i d . at 299-307.

Under Arrovo the plaintiff bears the burden of establishing

not only that he is an alcoholic, but also that this condition

prevents him from engaging in substantial gainful activity. See

932 F.2d at 86-87. The court finds that the record contains

substantial evidence to support the conclusion that the

plaintiff's alcohol consumption does not interfere with his

ability to perform basic work-related activities. Of course, the

fact that the record may also support a contrary conclusion, i.e.

that the alcohol consumption precludes the plaintiff from

working, "does not prevent [the ALJ's] finding from being

supported by substantial evidence." Consolp,

.

Accordingly, the plaintiff did not satisfy his burden under

Arrovo and the court finds that the Secretary's rulings relative

to the alcoholism do not constitute reversible error.

31 III. Step Five Analysis

The plaintiff next asserts that the testimony of the

vocational expert supported a finding of disability and that, as

a result, the ALJ erroneously concluded at step five of the

sequential analysis that the plaintiff can perform employment

which exists in significant numbers in the national economy.

Plaintiff's Memorandum at 27-29. The plaintiff argues that when

the ALJ revised his initial hypothetical to include the

additional restrictions of not being able to stand for more than

fifteen minutes and the need to change positions every thirty

minutes, the VE "felt all of the jobs he identified would be

excluded with the exception of the sedentary packager." I d . at

28 (citing Tr. at 80). The plaintiff further argues that the job

of packager is not considered a sedentary job and, thus, the

Secretary has not satisfied her burden of coming forward with

evidence of a specific job that the claimant is capable of

performing. I d . at 29.

The argument fails as it is based on a misreading of the

hearing transcript. The plaintiff is correct that once the ALJ

revised the hypothetical, the VE responded that "some of the

positions" he had previously testified the hypothetical claimant

could perform would no longer be appropriate given the additional

limitations of not being able to stand for more than fifteen

32 minutes at a time and the need to switch positions every thirty

minutes. Tr. at 7 9-80 (emphasis supplied). However, the VE

qualified his response, noting that "some of the positions such

as the polishing, buffing, grinding and the hand coating and

painting that [have] . . . production requirements [which] might

preclude changing of position." I d . at 80. The VE did not

include the position of bench assembler in the list of those

positions which the hypothetical plaintiff could perform under

the original hypothetical but could not perform under the more

restrictive, revised hypothetical. Compare i d . at 76 (list of

positions in response to original hypothetical) with i d . at 80

(list of positions excluded by the additional restrictions of

revised hypothetical). Thus, contrary to the plaintiff's

assertion, the VE did testify to the numerical availability of at

least one specific position suited to the plaintiff's

capabilities and, as such, the record contains substantial

evidence to support the ALJ's finding that:

Although the claimant's additional nonexertional limitations do not allow him to perform the full range of light work . . . there are a significant number of jobs in the national economy which he could perform. Examples of such jobs are: a bench assembler with 500 jobs in the State of New Hampshire and 200,000 jobs in the national economy . . . .

33 I d . at 24.6

The plaintiff also asserts that the ALJ erred by failing to

properly credit the V E 's response to a hypothetical question

posed by the plaintiff's attorney. Plaintiff's Memorandum at 28.

The plaintiff further asserts that the ALJ's hypothetical

questions did not include the plaintiff's complaints of "a

frequent need to lie down to relieve his ankle pain."

The plaintiff correctly notes that, in response to a

question posed by his attorney, the VE testified that the

hypothetical claimant's ability to perform the bench assembly or

hand packaging position would be seriously compromised by a need

to leave the work station twice an hour to walk around ten or

fifteen feet and to "get the kinks out of the leg or the problem

he's having with the back." Tr. at 80. Likewise, the court

recognizes that the ALJ did not include each of the plaintiff's

subjective complaints in the hypothetical questions presented to

the V E . However, neither of these correct assertions constitute

reversible error as it is the role of the ALJ to "determine what

evidence he credits in order to pose a hypothetical which will be

6Given the correctness of the ALJ's finding that the plaintiff can perform the bench assembly position and that this position exists in sufficient numbers for purposes of the step five analysis, the court need not consider the plaintiff's argument that the VE erroneously testified that the hand packaging position is considered sedentary. See Plaintiff's Memorandum at 28-29.

34 relevant and helpful." Torres v. Secretary of Health and Human

Servs.,

(1st Cir. 1989) (citing Arocho v.

Secretary of Health and Human Servs.,

(1st Cir.

1982)). The hypothetical questions specifically incorporate the

limitations noted in the RFC assessment submitted by the

plaintiff's own treating physician, see Tr. at 299-307 (report of

Dr. Sole), as well as other medical evidence contained in the

record. See, e.g., i d . at 279-81 (report of Dr. Shea), 283-85

(report of Dr. Jamieson), 20 (decision of A L J ) . Because "the ALJ

was entitled to credit the vocational expert's testimony as long

as there was substantial evidence in the record to support the

description of claimant's impairments given in the ALJ's

hypothetical," Berrios Lopez v. Secretary of Health and Human

Servs.,

(1st Cir. 1991), the court finds no

error in the failure to include additional limitations in the

hypothetical questions, including limitations based in part or

whole on subjective complaints of pain found not entirely

credible by the ALJ following analysis under Avery and SSR 88-13.

See T r . at 2 0.

Conclusion

Based on the foregoing analysis, the court finds that the

Secretary did not commit reversible error as alleged by the

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

Secretary (document no. 11) is granted. The plaintiff's motion

to reverse the decision (document no. 9) 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 August 9 , 1995

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

36