Vance v. SSA CV-96-330-SD 06/18/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Edwin Vance

v. Civil No. 96-330-SD

Shirley Chater, Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), plaintiff Edwin Vance seeks

judicial review of a final decision of the Commissioner of the

Social Security Administration denying his claim for disability

insurance benefits. Presently before the court is plaintiff's

motion to reverse the Commissioner's decision on the ground that

the Commissioner's findings are not supported by substantial

evidence. Defendant has moved to affirm. For the reasons stated

below, the court affirms.

Administrative Proceedings

On March 1, 1994, plaintiff filed an application for a

period of disability and supplemental security income benefits

alleging an inability to work as of August 15, 1986, due to recurring back pain. Administrative Transcript (Tr.) 21. The

application was denied on April 11, 1994, Tr. 84, and upon

reconsideration was again denied on June 15, 1994, Tr. 88-89.

After Vance filed a timely reguest, a hearing was held on

November 30, 1994, before an Administrative Law Judge (ALJ). The

ALJ heard testimony from Vance, who was represented by counsel,

and from a vocational expert (VE). On February 7, 1995, the ALJ

ruled that although the plaintiff's impairments precluded him

from performing his previous job as a foundry worker, he was not

disabled.

The ALJ found that (1) Vance had not engaged in substantial

gainful activity since August 15, 1986; (2) Vance had "an

impairment of recurrent strain-sprain of the lumbosacral spine,"

Tr. 25; (3) Vance's impairment alone or in combination with

others was not medically eguivalent to one listed in 20 C.F.R.

404, Subpart P, A p p . 1; (4) Vance's impairment prevented him from

performing his past relevant work as a foundry worker; (5) Vance

has a residual functional capacity (RFC) to perform light work,

except that involving prolonged standing, walking, and sitting;

working without having the opportunity to sit or stand at will;

bending; stooping; performing repetitive reaching above the

2 shoulder; pushing and pulling; and working around machines and

being exposed to marked changes in temperature and humidity; and

(6) despite Vance's physical restrictions, a significant number

of jobs he could perform exist in the national economy, such as

cashier, packer, assembler and food preparer.

The Appeals Council denied plaintiff's reguest for review on

February 7, 1996, thereby rendering the ALJ's decision the final

decision of the Commissioner and subject to judicial review.

Factual Background

Pursuant to Local Rule 9.1(d), the parties submitted a Joint

Statement of Material Facts, attached hereto as Appendix A. In

summary, Edwin Vance was born on August 11, 1947, Tr. 70, has an

eighth grade education, Tr. 39, 98, and worked as a foundry

worker at Joy Manufacturing until being laid off, Tr. 43, 61,

171. Vance reportedly injured his lower back in 1984 and worked

on and off until 1986. Tr. 171. In April 1988, after a series

of evaluations by different doctors, Vance visited Steven Pena,

D.C., a chiropractic physician, to whom he complained of lower

back pain, numbness in the arms, legs and hands, nervousness,

generalized weakness, tremors, and a painful tailbone. Tr. 156.

3 Dr. Pena opined that Vance was suffering from a disc pathology.

T r . 159.

On November 14, 1989, Vance was evaluated for his work

capacity at the Industrial Rehabilitation Center at Dartmouth-

Hitchcock Medical Center. Tr. 161-77. An industrial rehabilita­

tion specialist concluded that Vance could perform light work, so

long as it did not involve lifting from below the knuckle level

or prolonged sitting or standing. Tr. 176. Mordecai Berkowitz,

M.D., an orthopedic surgeon, reviewed and commented on Vance's

medical record in November 1991. Tr. 140-45. Dr. Berkowitz's

diagnosis was "recurrent sprain, lumbosacral spine, with right

sciatica," with an overall prognosis of favorable. Tr. 143, 144.

Rex Carr, M.D., examined Vance in March 1994, revealing good

flexion despite the presence of myofacial pain syndrome. Tr.

147-49.

At his hearing in November 1994, Vance testified that his

physical capacity was impaired somewhat by his lower back pain.

Tr. 40. Although his ability to walk is not substantially

affected, his condition limits the amount of time he is able to

drive, perform house and yard work, and engage in hobbies such as

recreational hunting and fishing. Tr. 41, 42, 46-47, 58-59.

4 Vance testified that to relieve his pain he often takes Tylenol

or Advil or lies down. Tr. 43, 50.

Discussion

1. Standard of Review

A federal district court may "enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or

reversing the decision of the [Commissioner], with or without

remanding the cause for a rehearing."

(g).

A denial of social security disability benefits should be

upheld unless "'the [Commissioner] has committed a legal or

factual error in evaluating a particular claim.'" Manso-Pizarro

v. Secretary,

(1st Cir. 1996) (guoting Sullivan v.

Hudson,

(1989)).

The factual findings of the Commissioner "shall be

conclusive if supported by 'substantial evidence.'" Irlanda

Ortiz v. Secretary,

(1st Cir. 1991) (guoting

(g)). "[Substantial evidence" reguires "'more than

a mere scintilla. It means such relevant evidence as a reason­

able mind might accept as adeguate to support a conclusion.'"

Richardson v. Perales,

(1971) (guoting Consoli-

5 dated Edison Co. v. NLRB,

(1938)); Rodriquez v.

Secretary,

(1st Cir. 1981). 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 administrative agency's finding from

being supported by substantial evidence." Consolo v. Federal

Maritime Comm'n,

(1966) (citing NLRB v. Nevada

Consol. Copper Corp.,

(1942)).

The decision of the Commissioner must be affirmed, "even if

the record arguably could justify a different conclusion, so long

as it is supported by substantial evidence." Rodriquez Pagan v.

Secretary,

(1st Cir. 1987).

The Commissioner should determine issues of credibility and

draw inferences from the record evidence. Irlanda Ortiz, supra,

. Any conflicts in the evidence should be

resolved by the Commissioner, not the courts.

The court

"'must uphold the [Commissioner's] findings . . . if a reasonable

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

accept it as adeguate to support his conclusion.'"

at 7 69

(guoting Rodriquez, supra,

) .

6 2. Use of a Hypothetical Question

A claim for disability benefits is governed by a five-step

evaluation process.

(b-f), 416.920 (b-f) .

During the first four steps, the burden is upon the claimant to

prove that he has an impairment so severe as to prevent him from

returning to his former employment. Goodermote v. Secretary of

Health & Human Services,

(1st Cir. 1982) . The

claimant must use objective medical evidence to prove his dis­

ability.

(a)- (b), 404.1513(d); Johnson v.

Shalala,

(9th Cir. 1995) . Once the claimant

has demonstrated his inability to return to his job, the burden

shifts to the Commissioner to prove that other jobs exist in the

national economy which the claimant can perform.

(f); Ortiz v. Secretary of Health & Human Services, 8

(1st Cir. 1989); Sherwin v. Secretary of Health &

Human Services,

(1st Cir. 1982), cert, denied

(1983) .

Plaintiff challenges the ALJ's determination at step five--

that plaintiff had the residual functional capacity (RFC) to

perform work existing in the national economy and was therefore

7 not disabled as defined by

(a).1

To meet its burden, the Commissioner may rely on the grid at

, Subpart P, Appendix 2, unless the plaintiff has

a nonexertional impairment that significantly reduces the range

of jobs he might otherwise be able to perform. Burgos Lopez v.

Secretary of Health & Human Services,

(1st Cir.

1984). In such a case, the ALJ must rely on other evidence to

prove that alternative gainful employment exists. Gagnon v.

Secretary of Health & Human Services,

(1st Cir.

1981). One such means is the method of supplying a hypothetical

guestion to a vocational expert.

(e);

Heggartv v. Sullivan,

(1st Cir. 1991) .

When posing the hypothetical, the ALJ presents all of the

claimant's significant functional limitations to the vocational

expert, including mental and physical impairments, as well as the

claimant's age, educational level, and transferrable work skills,

and asks whether a similar person would be able to find gainful

employment. In order for a vocational expert's answer to be

relevant, the hypothetical must set out all of the claimant's

1The ALJ held that the plaintiff was unable to return to his former employment as a foundry worker, primarily because such work reguired heavy exertion which the claimant could not accomplish. Tr. 23. impairments that are supported by the medical evidence. Arocho

v. Secretary of Health and Human Services,

(1st

Cir. 1982). The hypothetical must also clearly convey the para­

meters of the claimant's limitations. Keating v. Secretary, 848

F .2d 271, 274 (1st Cir. 1988).

The ALJ posed the following hypothetical to the vocational

expert:

Assume that we're discussing an individual with the same age, education, and past work of the claimant, and assume that the individual has the ability to lift and carry, push and pull 20 pounds occasionally, ten pounds freguently, but is restricted by the following. An inability to do repetitive, above shoulder reaching. Repetitive pushing and pulling with hands or feet. No bending or stooping. An inability to do prolonged standing, walking, or sitting, but has the option to sit, stand, walk at will. The individual would have to avoid a work environment with marked changes in temperature and humidity.

Tr. 62. In response, the vocational expert testified that there

were over 600,000 jobs available in the national economy that a

person with such limitations could perform, including those of

cashier, food preparation worker, assembler and packer. Tr. 63.

Vance argues that the hypothetical was defective because it did

not include (1) that the claimant was restricted to only

occasional horizontal reaching and (2) that he was totally restricted from lifting below the knuckle level.

The hypothetical sets forth Vance's impairments as found by

the ALJ in his decision. See Tr. 25. These impairments are

supported by substantial evidence in the record. Although the

limitation on horizontal reaching was not included in the hypo­

thetical, the ALJ was free to disregard it. The plaintiff relies

on a work assessment conducted and written up by an industrial

rehabilitation specialist at Dartmouth-Hitchcock Medical Center

in November of 1989. Tr. 23; 161-77. The specialist witnessed

Vance performing overhead reaching and recorded that Vance stated

he could "feel it" in his back. Tr. 167. No other reaching

activity was performed. The specialist concluded that Vance was

restricted to occasional above-the-shoulder reaching and occa­

sional horizontal reaching.2 Tr. 175. However, the conclusion

on horizontal reaching was not supported by objective (or subjec­

tive) evidence.

See

(d)(3). The

opinion on horizontal reaching is also contradicted by a residual

functional capacity assessment completed by a Disability Deter­

21he industrial rehabilitation specialist appears not to have placed great importance on his conclusions concerning Vance's reaching capabilities, given that he ultimately concluded that Vance could perform light work, with certain lifting, sitting, and standing restrictions, and did not even mention a reaching restriction. Tr. 176.

10 mination Services (DDS) physician, who found no horizontal

reaching restriction. Tr. 78. Although the DDS physician did

not examine Vance, he based his conclusion on a review of his

medical history, including orthropedic and chiropractic evalua­

tions indicating good back motion and normal gait. Thus,

although there are some inconsistencies in the record, the ALJ's

findings were supported by substantial evidence.

As for Vance's argument that the hypothetical should have

included that he was totally restricted from lifting below the

knuckle level, such position is belied by basic common sense.

The hypothetical included that the claimant could do no bending

or stooping. This restriction would preclude the claimant's

performing a broad range of activities, obviously including

lifting below the level of his knuckles.

Accordingly, as the hypothetical posed by the ALJ clearly

sets forth all of Vance's functional limitations that were

supported by substantial evidence, the court must deny

plaintiff's motion to reverse the decision of the Commissioner.

3. Conclusion

The decision of the Commissioner is affirmed. The clerk of

11 court shall enter judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 18, 1997

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

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