Hills v. HHS CV-94-214-SD 04/06/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Michael Hills

v. Civil No. 94-214-SD

Secretary of Health and Human Services

O R D E R

Presently before the court is a review, pursuant to section

20 5 (g) of the Social Security Act (Act), codified as amended at

(g), of the final decision reached by the

Secretary of Health and Human Services (Secretary) .

Claimant Michael Hills filed an application for disability

insurance benefits (DIB) on January 5, 1993. Hills also filed an

application for supplemental security income (SSI) benefits on

December 31, 1992, which the agency assigned a protective filing

date of January 1, 1993. Both applications are predicated upon

the allegedly disabling low back condition which Hills claims

forced him to cease working as of December 4, 1992. Claimant's

applications were denied initially and after reconsideration by

the Social Security Administration.

Upon claimant's reguest, a hearing was held before an Administrative Law Judge (ALJ) on September 30, 1993. The ALJ

conducted a de novo hearing and received testimony from the

claimant, claimant's wife, claimant's attorney, and an impartial

vocational expert. On December 16, 1993, the ALJ issued his

written findings, indicating that claimant was not under any

disability during the time in guestion. Thereafter, claimant

filed a reguest for review by the Appeals Council, which was

denied on April 2, 1994, thus rendering the December 16, 1993,

decision of the ALJ the final decision of the Secretary. Hills

subseguently filed this motion to review the Secretary's

decision.

Background

1. Education and Work History

Michael Hills was born on May 15, 1962, and currently

resides in Derry, New Hampshire. Transcript (Tr.) 41-42. At the

time of the hearing before the ALJ, Hills was 31 years old. Tr.

42. In addition to completing high school, claimant subseguently

obtained a certificate from the Andover Tractor Trailer School in

September 1980.

At the time of the onset of his alleged disability, claimant

was employed by the Sea Coast Learning Center as a bus driver for

handicapped students. Tr. 42, 108, 132. Previous work

2 experience includes positions as a gas station/convenience store

cashier, Tr. 42, 65-66, 108; an assistant manager of a

restaurant, Tr. 42, 58-59, 108; a receiving department clerk for

a window manufacturing plant, Tr. 64-65, 108; and a meat packer

for a supermarket, Tr. 66, 108.

Claimant Hills has not been employed or sought employment

since December 1992, Tr. 42, but rather spends his time at home

reading, watching television, and doing needlework, Tr. 55, 119.

He performs household chores with his wife, including washing the

dishes and vacuuming the living room, and takes part in shopping

for groceries. Tr. 60.

2. Medical History

a. Treating/Examining Physicians

Beginning about November 1992, Hills sought a course of

treatment for alleged lower back pain. Tr. 44, 161. After

seeing his family physician. Dr. Joseph Cataldo, and a physical

therapist. Hills was referred to Dr. William Price, an

orthopaedic surgeon. Tr. 44. Dr. Price's medical notes indicate

that claimant's back condition first became apparent within the

six months prior to November 1992 and that the pain associated

with said condition "is increased with sitting [and] . . .

[d]ecreased with standing [and] . . . with lying." Tr. 161. Dr.

3 Price also noted that claimant "has a normal heel and toe gait

although slightly antalgic."1

In light of his findings. Dr.

Price ordered a Magnetic Resonance Imaging (MRI) scan of

claimant's back and spine. Tr. 44, 161.2

An MRI was conducted on December 1, 1992, and revealed a

"small, right [herniated nucleus pulposus] of the L5-S1

intervertebral disc" as well as " [d]iffuse posterior bulging of

the L3-4 and L4-5 intervertebral discs." Tr. 153. Claimant

returned to Dr. Price on December 4, 1992, the alleged onset of

disability, complaining of "[s]evere back pain and bilateral leg

pain . . . with numbness into the feet." Tr. 162. Hills stated

to Dr. Price that he "cannot deal with his pain any more" but

deferred making a decision regarding surgery pending the outcome

of chiropractic care.

On December 17, 1992, Hills was examined by Michael Guidi,

an osteopathic physician in Massachusetts, who noted that

claimant "gets sciatic pain on a daily basis . . . [which] runs

down both legs to the knees and then with a cramping sensationin

the lower legs." Tr. 164. Dr. Guidi recommended that claimant

1"Antalgic" is defined as "counteracting or avoiding pain, as a posture or gait assumed so as to lessen pain." D o r l a n d 's I l l u s t r a t e d M e d i c a l D i c t i o n a r y 90 (28th ed. 1994) .

2At this point, claimant inguired whether he could return to work, to which Dr. Price opined, "I thinkhe can, however it may give him some additional pain." Tr. 161.

4 get "bed rest as much as possible" and that he seek further care

from the New England Baptist Hospital.

Dr. Cataldo corroborated the MRI diagnosis at a December 23,

1992, appointment, indicating that claimant suffered from a

"small" herniated nucleus pulposus L5-S1 and asserted that said

condition could be controlled or improved with "physical therapy

and possible surgery." Tr. 154. Although limited by "no ability

for long periods of standing," Dr. Cataldo felt that, at most, a

"Back program or Surgery would allow up to 6 mo[nths]

disability."

In light of these limitations. Dr. Cataldo

recommended vocational rehabilitation.

Claimant returned to Dr. Price on January 6, 1993. Although

he felt Dr. Guidi "did not actually do that much for him,"

claimant expressed an interest in seeing a second osteopath. Tr.

162. Since Hills wanted to "continue conservative care," Dr.

Price recommended he begin to see Dr. David Lewis at the Spine

Center in Manchester, New Hampshire. Id.3

On January 8, 1993, claimant's wife Wendy telephoned Dr.

Guidi and indicated that claimant continued to have pain and

numbness in his feet upon ambulation, but that such numbness

3Despite its thorough review of the administrative record, the court notes that none of the medical notes contained therein are attributed to said Dr. Lewis, and thus it is unclear whether claimant ever sought treatment from same.

5 decreased with bed rest. Tr. 164. When asked by Wendy Hills

to provide an "out of work note" for her husband. Dr. Guidi

deferred, recommending that claimant speak with Dr. Cataldo about

such a note.

Although claimant was referred to a Dr. Lewis, it appears

from the record that he received further osteopathic treatment

from a Dr. William Kirmes instead. Tr. 184. Specifically, Hills

visited Dr. Kirmes at his office on January 15 and 25, 1993, and

February 9, 1993. Tr. 182-84. As of the February 9 office

visit. Dr. Kirmes noted that Hills was "getting gradually

better." Tr. 184.4

Claimant sought further chiropractic care from Londonderry

Chiropractic between March and August 1993. Tr. 186-89. During

the March 17, 1993, visit, claimant indicated that he had

difficulty "sitting, sleeping, [and] standing" as well as lower

back and leg pain. Tr. 188. At his June 16, 1993, visit,

claimant stated that his lower back was "very sore" and that he

had "difficulty getting up."

The final entry in Londonderry

Chiropractic's records are for an August 9, 1993, visit wherein

Claimant's attorney wrote to Dr. Kirmes in September 1993 and reguested a "Medical Assessment of Ability to Do Work Related Activities." Dr. Kirmes did "not feel comfortable" filling out such a form given the fact that "such a long period of time has passed since [Hills] was last here." Tr. 184. Kirmes further indicated that given his impression of claimant's condition at the February 9, 1993, office visit, he "assumed, having not seen [Hills] for follow up again, that he was doing all right."

6 claimant again complained of lower back pain.

During September and October of 1993, claimant received

additional osteopathic treatment from Dr. David I. Steinberg.

Tr. 47-48.5 Dr. Steinberg first examined claimant on

September 9, 1993, and noted the following:

[Hills] is alert and in no acute distress. He does exhibit a moderate amount of pain behavior. His gait on a flat surface is normal. He is able to toe and heel walk but does complain of increased pain across the low back. Examination of the LS spine reveals moderate tenderness on very light palpation in the entire bilateral lumbosacral paravertebrals without spasm or trigger points . . . . Motor exam reveals normal symmetric bulk and tone without evidence of focal motor weakness.

September 9, 1993, treatment notes of Dr. David I. Steinberg at 2

(attached as Attachment A to Claimant's Motion to Reverse and

Remand). During the course of this examination. Hills indicated

that " [h]is weekly routine includes walking one day a week and

riding a bicycle 1 day a week."

Hills further indicated

that a "typical day involves sitting for 4 hours."

In

addition. Hills informed Dr. Steinberg that "[h]e is independent

5The court notes that the administrative record does not contain the treatment notes of Dr. Steinberg. However, claimant indicates that these materials were sent to the Appeals Council, Motion to Reverse and Remand at 4, and has provided copies of said notes as Attachment A to his Motion to Reverse and Remand. The court assumes, therefore, that their absence from the complete administrative record is due to inadvertence or oversight and will consider such notes in its review.

7 in all his [activities of daily living] and self care." Id.6

Dr. Steinberg concluded from the examination that claimant

suffers from " [m]echanical low back pain superimposed on probable

[Degenerative Disc Disease] and compounded by exogenous

obesity,"7

and thus prescribed outpatient physical therapy,

At an October 4, 1993, visit. Hills indicated that he "had

been participating in an active [physical therapy] program . . .

[but] noted minimal improvement in his symptoms." Steinberg

Notes at 4. The physical therapy sessions left claimant "sore

for several days" thereafter and "then his symptoms return to

6The court pauses here to note that claimant's testimony before the ALJ, only three weeks after this initial examination by Dr. Steinberg, completely contradicts this prior admission:

Q Is there anything else Mr. Hills that you feel is important before we turn to other testimony that we haven't asked you about your condition? A No, not really. I just wanted just to make it clear that, you know, I do have a lot of problems with like personal things like going to the bathroom and wiping yourself afterwards. I have a hard time doing that.

Tr . 5 9.

7Hills is approximately 5'9" tall and has regularly weighed between 245 and 270 pounds. Tr. 54. All of claimant's treating/ examining physicians have suggested a weight reduction plan as part of his overall therapy,

and the nontreating/nonexamining physicians have identified obesity as a secondary diagnosis to claimant's degenerative disc disease, Tr. 76, 84, 137. base line."

Although Hills continued to complain of "pain

across the low back with intermittent radiation into the

bilateral buttocks regions," he was not taking any medication at

that time.

Further, although Hills appeared alert, in no

acute distress, and walked with a normal gait, he did so "with

the trunk forward flexed 45°" and indicated that he could not

straighten up.

Hills saw Dr. Steinberg for the last time on October 18,

1993. As of that date. Hills had completed formal outpatient

physical therapy "after achieving all his goals." Steinberg

Notes at 5. Hills had been instructed regarding an independent

exercise program and indicated to Dr. Steinberg that he

"continues with this program on a daily basis." Id.8 Although

Hills continued to "complain of pain across the low back with

intermittent radiation into the bilateral buttocks regions," he

undertook "walks 3-4 days per week for 10 minutes" and was

observed by Dr. Steinberg as "alert and in no acute distress."

Further, he was "ambulatory in a neutral position today,"

and was not walking "with the trunk forward flexed as he had

been previously observed to do,"

Dr. Steinberg thus

terminated his formal treatment of claimant, opting instead to

8Hills further related that he was "waiting for social security to go through" and thus remained unemployed without any present vocational goals. Steinberg Notes at 5. see him as circumstances may require and noting that he "asked

Mr. Hills to continue to increase his aerobic conditioning and to

consider swimming at the Y or other facility and to continue on

weight reduction."

b. Nonexamininq/Nontreatinq Physicians

Dr. Burton A. Nault, a Disability Determination Services

medical consultant, examined claimant's medical records on

January 29, 1993, and estimated that claimant had the residual

functional capacity to lift and carry up to twenty (20) pounds

occasionally and up to ten (10) pounds frequently; to stand, sit,

or walk for up to six hours in an eight-hour day; and to push or

pull without limitation. Tr. 79. Although claimant was under no

manipulative, visual, communicative, or environmental

limitations. Dr. Nault did conclude that claimant experienced

occasional postural limitations regarding climbing, stooping,

kneeling, crouching, and crawling. Tr. 80. Based on the

foregoing. Dr. Nault found that

the claimant is considered to be totally disabled while undergoing physiotherapy for an acute low back process, now chronic. Improvement is anticipated and ongoing at the present time. A Listings level impairment is not supported. It is reasonable to assume that the claimant will return to at least a light work activity within 12 months of his AOD [alleged onset date].

10 Tr. 84.

Discussion

1. Standard of Review

This court is empowered, pursuant to

(g), 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."

(g) (Supp. 1994).

When reviewing a Social Security disability determination,

the factual findings of the Secretary "shall be conclusive if

supported by 'substantial evidence.'" Irlanda Ortiz v.

Secretary,

(1st Cir. 1991) (guoting

(g)). The Supreme Court has instructed that the term

"substantial evidence" means "'more than a mere scintilla. It

means such relevant evidence as a reasonable mind might accept as

adeguate to support a conclusion.'" Richardson v. Perales,

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

(1938)); Rodriquez v. Secretary,

(1st Cir. 1981).

However, substantial evidence "is something less than the

weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent an

11 administrative agency's finding from being supported by

substantial evidence." Consolo v. Federal Maritime Comm'n,

(1966) (citing NLRB v. Nevada Consolidated Copper

Corp.,

(1942)). Moreover, the decision of the

Secretary must be affirmed, "even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence." Rodriguez Pagan v. Secretary,

(1st Cir. 1987), cert, denied,

(1988) (citing

Lizotte v. Secretary,

(1st Cir. 1981)).

It is incumbent on the Secretary "to determine issues of

credibility and to draw inferences from the record evidence."

Irlanda Ortiz, supra,

(citing

). Moreover, "the resolution of conflicts in the

evidence is for the Secretary, not the courts." Id.; Evangelista

v. Secretary,

(1st Cir. 1987); see also Sitar

v. Schweiker,

(1st Cir. 1982); Burgos Lopez v.

Secretary,

(1st Cir. 1984).

Since determinations regarding factual issues and the

credibility of witnesses are entrusted to the Secretary, whose

findings should be accorded great deference, see, e.g.,

Frustaglia v. Secretary,

(1st Cir. 1987), the

court "'must uphold the Secretary's findings . . . if a

reasonable mind, reviewing the evidence in the record as a whole.

12 could accept it as adequate to support his conclusion.'" Irlanda

Ortiz, supra,

(quoting

).

2. The ALJ's Findings

In his written report dated December 16, 1993, the ALJ made

the following findings:

2. The claimant has not engaged in substantial activity since December 4, 1992. 3. The medical evidence establishes that the claimant has severe small L5-S1 herniated nucleus pulposus at L3-4 and L4-5 intervertebral discs, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. 4. The claimant's hearing testimony was not entirely credible with respect to his allegations of pain because as evaluated under the criteria of Social Security Ruling 88-13 and the Avery court order, the allegations supported a determination that the claimant had sufficient residual functional capacity for work activity in the light range. 5. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for the exertional requirements of very heavy, heavy, medium, and the full range of light work and the nonexertional limitations of no bending or performing postural activities and no sitting, standing or walking for more than 30 minutes (20 CFR 404 .1545 and 416.945) . 6. The claimant is unable to perform his past relevant work as a bus driver for the handicapped.

13 7. The claimant's residual functional capacity for the full range of light work is reduced by no bending or performing postural activities and no sitting, standing or walking for more than 30 minutes.

Tr. 17-18.

In light of the above, the ALJ concluded that "[s]ince there

are a significant number of light jobs existing in the national

economy that the claimant could perform, the undesigned therefore

finds the claimant not disabled within the meaning of the Social

Security Act." Tr. 16. Claimant raises two issues with respect

to the ALJ's determination; namely, (1) that the ALJ

impermissibly inferred a light work residual functional capacity

(RFC) from the medical evidence and (2) the testimony of the

vocational expert (VE) does not support a Step 59 denial.

a. The Light Work RFC

Based on "the clinical findings and functional assessments

of the claimant's treating physicians," the ALJ concluded that

"the claimant can do light work." Tr. 15.10 Claimant contends

9For an overview of the five-step seguential evaluation process employed in determining disability status, see infra note 14 .

10The regulations define light work as follows:

Light work involves lifting no more than 20 pounds at a time with freguent lifting or carrying of objects weighing up to 10 pounds.

14 that " [a] review of the medical records . . . provided show that

none of the various treating physicians felt [I] could return to

work," Plaintiff's Motion to Reverse and Remand at 10, and

further, "this failure [by the ALJ] to identify what medical

records and what residual functional capacity assessment

supported his finding deprives his decision of substantial

evidence," id. at 10-11.

Although the "ALJ is not gualified to interpret raw medical

data in functional terms," Perez v. Secretary,

(1st Cir. 1991) (per curiam) (citations omitted), "[t]his

principle does not mean . . . that the Secretary is precluded

from rendering common-sense judgments about functional capacity

based on medical findings . . . ." Gordils v. Secretary,

(1st Cir. 1990). Such "common-sense judgments

Even though the weight lifted may be very little, a job is in this category when it reguires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

(b) (1994).

15 about functional capacity" are permissible "as long as the

Secretary does not overstep the bounds of a lay person's

competence and render a medical judgment."

at 32 9.

In ascribing a "light work" RFC to the claimant, the ALJ did

not merely rely on his own "common-sense" judgment of the medical

evidence, but also considered the RFC assessment completed by Dr.

Nault, as well as other evidence in the record.11 Although

"written reports submitted by non-testifying, non-examining

physicians cannot alone constitute substantial evidence," Rose v.

Shalala,

(1st Cir. 1994), the First Circuit has

noted that "this is not an ironclad rule,"

(citing Berrios

Lopez v. Secretary,

(1st Cir. 1991) (per

curiam); Gordils, supra,

). Furthermore, "the

amount of weight that can properly be given the conclusions of

non-testifying, non-examining physicians '"will vary with the

circumstances, including the nature of the illness and the

information provided the expert."'"

(guoting Berrios Lopez, supra, 951 F.3d at 431 (guoting Rodriguez

v. Secretary,

(1st Cir. 1981))).

Supplementing the Nault RFC is the medical opinion of Dr.

11Indeed, claimant's ability to meet the lifting reguirements of the light work classification is perhaps best evidenced by the claimant's indication that his contribution to overall household maintenance is satisfied, at least in part, by removing small bags of trash. Tr. 107.

16 Cataldo, claimant's own physician, who reported on January 4,

1993, after examining Hills on December 23, 1992, that the only

limitation affecting claimant was a prohibition against long

periods of standing. Tr. 154. The March 7, 1994, statement of

Dr. Albert C. Northcutt12 that "at this point in time Mr. Hills

is not capable of performing any activity that he is trained

for," Tr. 204, is of no moment.

As an initial matter, such conclusory statements regarding

disability are insufficient to undercut the evidentiary

significance of the findings of nontestifying, nonexamining

physicians. See Tremblay v. Secretary,

(1st Cir.

1982) (per curiam) (affirming the Secretary's adoption of the

findings of a nontestifying, nonexamining physician, and

permitting those findings by themselves to constitute substantial

evidence, in the face of treating physician's conclusory

statement of disability).

Secondarily, yet of egual relevance, the finding of a light

work RFC and the opinions of the examining physicians are in no

way inconsistent. Dr. Cataldo indicated that claimant should be

referred to vocational rehabilitation. Tr. 154. Likewise, Dr.

Northcutt merely opined that claimant remains unable to perform

12Dr. Northcutt practices at the Derry Medical Center and seems to have taken the place of Dr. Cataldo as claimant's family physician.

17 "any activity that he is trained for." Tr. 204. What both

opinions implicitly recognize is that, rather than being

completely disabled as that term is defined under the Act,

claimant remains capable of performing work that exists in the

national economy, but entry into such fields reguires some degree

of vocational retraining.

In conseguence thereof, the court hereby finds the ALJ's

determination of a light work RFC to be supported by substantial

evidence, and thus said determination is accordingly affirmed.13

b. Step 5 Denial

Disability is defined under the Act as the "inability to

engage in any substantial gainful activity by reason of any

13Furthermore, the court notes that it is not necessary to find substantial evidence to support a finding that claimant could perform light work in order to affirm the ALJ's ultimate determination of "not disabled." Claimant was found not disabled based on both Rule 202.21 and Rule 202.22 of the light work grid, which encompasses subsidiary findings that claimant was below forty-nine years old, had a high school education or more, had done skilled or semi-skilled work that either was transferable or not, and could perform light work. Claimant only takes issue with the last finding. However, if the court substituted a capacity to perform sedentary work for light work, the result under the grid remains unchanged. See Rules 201.28 and 201.29 (indicating a finding of "not disabled" under the sedentary work grid). Thus, the court's conclusion "that there is substantial evidence to support a finding that claimant's exertional impairment[s] [do] not preclude performance of the full range of sedentary work is adeguate to sustain the Secretary's determination under the grid." Gordils, supra,

- 30 .

18 medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12

months . . .

(d)(1)(A); see also Bowen v.

Yuckert,

(1987). Further, the Act provides

that an individual

shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d) (2) (A) .

In view of this legislative mandate, the Secretary has

established a five-step seguential evaluation process which first

considers the disability claimant's medical impairment and then

whether that impairment precludes him from engaging in

"substantial gainful activity." See

(b)- (f)

(1994); see also

; Goodermote

v. Secretary,

(1st Cir. 1982),14 If the claimant

14This five-step analysis considers the following:

(1) is claimant engaged in substantial gainful activity?; if so, a not disabled determination automatically ensues;

19 has established the threshold disability requirement, the burden

then shifts to the Secretary to prove that other work is

available in the national economy which the claimant could do.

See Dudley v. Secretary,

(1st Cir. 1987) (per

curiam) (citing

). Should the

ALJ, after adhering to the sequential analysis set forth in the

regulations, reach a conclusion that is supported by substantial

evidence, such a finding is then considered conclusive. See

; see also

(g) .

At Step 5 of the sequential analysis, the ALJ concluded

that the claimant's allegations of pain are not entirely credible when measured under the criteria of Avery and Social Security Ruling 88-13 and leaves the claimant with the residual functional capacity for light work as that work is defined at 20 CFR 404.1567(b) and 20 CFR 416.967(b). The undersigned further finds that the claimant would be

(2) does claimant have a severe impairment--an impairment which significantly limits his physical or mental capacity to perform basic work-related functions?; if not, the claimant is automatically not disabled; (3) does the impairment meet or equal an impairment indicated in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1?; if so, claimant is automatically disabled; (4) does the impairment prevent claimant from performing past relevant work; if not, claimant is considered not disabled; and (5) whether the impairment prevents claimant from doing any other work that exists in the national economy?; if not, claimant is determined to be not disabled.

(b)- (f);

.

20 required to avoid bending and performing postural activities and is limited to sitting, standing or walking for no more than 30 minutes.

Tr. 15. Applying these criteria alone to the Medical Vocational

Guidelines contained in 20 C.F.R., Appendix 2, Subpart P,

resulted in a "not disabled" finding pursuant to Rules 202.21 and

202.22 of the light work grid. However, because these rules do

not take into account the claimant's nonexertional impairments,

these rules can only be used as a framework in determining the

claimant's disability. See

; see also

Sherwin v. Secretary,

(1st Cir. 1982) ("Grid will

offer only guidance--!! will not determine 'disability'--in

borderline cases or where nonexertional, or additional,

disabilities are at issue."), cert, denied sub nom., Picard v.

Secretary,

(1982).

Further evaluation of claimant's condition, and the

availability of other work in the national economy, was conducted

by the ALJ through his examination of the V E . In the

hypotheticals posed to the VE, the ALJ depicted a younger worker,

age thirty-one, with a high school education whose past work

experience included both skilled and semi-skilled positions. Tr.

66-67. Said individual was further constrained by the following

exertional limitations: (1) could not lift and carry more than

twenty (20) pounds at any one time; (2) unable to bend at waist

21 to pick up objects off the floor; (3) could not climb ladders,

nor stoop, kneel, crouch, or crawl; and (4) had difficulty

remaining in one position for a long period of time without the

opportunity to change position. Tr. 67.

Assuming the above, the ALJ added the further limitation

that said individual would only be able to either sit or stand

for thirty (30) minutes at any one time before needing to

alternate his position. Id. The VE testified that although

there were no skilled or semi-skilled positions available to an

individual so limited, three unskilled positions, listed as

follows, existed: (1) toll collector, 160 positions in southern

New Hampshire, 14,000 nationally; (2) security guard, 165

positions in southern New Hampshire, 87,000 nationally; and (3)

fast food order clerk, 240 positions in southern New Hampshire,

84, 000 nationally. Tr. 68-69.15

Changing the hypothetical, the ALJ then posited an

individual who, in addition to the limitations hereinabove set

forth, was further limited by the need to "lie down or change

their position so that they could recline as well as being able

to get up and down . . . ." Tr. 69. This period of reclining

15The court notes that with respect to the occupations identified by the VE, the toll collector position is classified at the light exertional level, whereas both the security guard and fast food order clerk are classified at the sedentary level. T r . 68-69.

22 might last anywhere from thirty to forty-five (30-45) minutes at

a time and might unpredictably occur in either the morning or the

afternoon, or both. Id. An individual burdened with these

limitations, according to the VE, would not be able to perform

the reguirements of the three aforementioned occupations. Id.

In light of the lack of medical evidence to suggest an

objective basis for totally disabling pain, the ALJ, who observed

claimant's demeanor at the hearing, was entitled to make a

credibility determination regarding claimant's pain. Da Rosa v.

Secretary,

(1st Cir. 1986) (per curiam), and

further to conclude that his pain did not disable him from

performing sedentary to light exertional activities,

. As noted previously, issues of fact and

witness credibility are entrusted to the Secretary, and such

findings are appropriately accorded great deference. See

Frustaglia, supra,

.

This court is empowered to scrutinize the record and

complete an independent assessment of the evidence. See

(g). Pursuant to such review, the court finds that

"'a reasonable mind . . . could accept [the ALJ's findings] as

adeguate to support his conclusion.'" Irlande Ortiz, supra,

(guoting

). In

light of the court's further finding that the ALJ's conclusions

23 are supported by substantial evidence on the record, claimant's

motion to reverse and remand is accordingly denied.

Conclusion

For the reasons set forth herein, the court grants

defendant's motion to affirm the decision of the Secretary

(document 13) and denies the claimant's motion to reverse

(document 10).

SO ORDERED.

Shane Devine, Senior Judge United States District Court

April 6, 1995

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

24