Foster v. SSA CV-96-628-SD 12/16/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sally Foster

v. Civil No. 96-628-SD

John J. Callahan, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), plaintiff Sally Foster seeks

judicial review of a final decision of the Commissioner of the

Social Security Administration (SSA) denying her 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.

Background

I . Administrative Proceedings

Foster filed an application for disability insurance

benefits on December 16, 1993. The SSA denied the application

initially, and again upon reconsideration. Foster reguested and

received a hearing before an Administrative Law Judge (ALJ),

which was held in Manchester, New Hampshire, on February 14, 1995. Foster and her attorney appeared before the ALJ on that

date. Peter Clarke, a vocational counselor, also testified on

Foster's behalf. Dr. Christopher Wood also appeared and

testified as an impartial vocational expert.

On May 26, 1995, the ALJ issued a decision applying the

five-step process prescribed by

(1997).1

The ALJ found that 1) Foster had not engaged in substantial

1 To determine whether an individual is disabled, the ALJ must apply the following five steps:

(1) First, the ALJ ascertains whether the applicant currently is working; if so, the claim is denied. (2) Second, the ALJ determines, solely on the basis of medical evidence, whether the claimed impairment is "severe", that is, of a magnitude sufficient to limit significantly the individual's "physical or mental ability to do basic work activities"; if it is not, the claim is denied. (3) Third, the ALJ decides, again using only medical evidence, if the impairment eguals or exceeds in severity certain impairments described in Appendix 1 of the regulations; if it does, the claimant automatically is awarded disability benefits. (4) Fourth, the ALJ considers whether the applicant has sufficient "residual functional capacity"--defined as what an individual "can still do despite [his] limitations"--to perform his past work; if so, the claim is denied. (5) Finally, the ALJ adjudicates, on the basis of the claimant's age, education, work experience, and residual functional capacity, whether the applicant can perform any other gainful and substantial work within the economy.

1 H a r v e y L. M c C o r m i c k , S o c i a l S e c u r i t y C l a i m s a n d P r o c e d u r e s § 410 (4th ed. 1991) (citations and internal references omitted).

2 gainful activity since her alleged onset of disability; 2) the

impairment caused by a compressed radial nerve in Foster's right

arm was severe enough to limit her ability to perform the

physical functions of work; 3) Foster's impairment did not meet

or egual the severity of any impairment listed in

, A p p . 1, Subpt. P, Table No. 1; 4) Foster's impairment

precluded her from performing her past relevant work as a

hairdresser and glue machine operator; and 5) based upon her

residual functional capacity, age, education, and work

experience, Foster was not disabled because there were a

significant number of jobs in the national economy that she could

perform.

The Appeals Council denied Foster's reguest for review,

thereby rendering the ALJ's decision the final decision of the

Commissioner and subject to judicial review.

II. Facts

_____ The following facts can be gleaned from the Joint Statement

of Material Facts the parties filed pursuant to Local Rule

9.1(b) .

Foster, who was 47 at the time of her hearing, received a

high school graduate eguivalency degree from Bangor Community

College. She has work experience as a hair salon owner and

3 stylist, a cocktail waitress, a glue machine operator, a cashier

and meat wrapper, and an apple picker.

On October 3, 1989, Foster saw Dr. John Lawlis III, an

orthopedic surgeon. Foster reported that for several months she

had been experiencing pain in her right wrist and hand. Dr.

Lawlis diagnosed right carpal tunnel syndrome as the cause of

Foster's pain. Foster agreed to a right carpal tunnel release,

which was performed on October 10, 1989. The surgery, however,

failed to provide any lasting relief from the pain.

Nerve conduction studies performed in February 1990 proved

normal, and Foster improved with occupational therapy. After

returning to work however, Foster complained of increased pain.

In the fall of 1990, Foster sought treatment at the Neurology

Clinic of the University of Massachusetts Medical Center. Dr.

Catherine Phillips recommended a course of conservative treatment

and advised Foster to avoid using her arm for strenuous

activities.

On March 18, 1991, Dr. Robert Walton examined Foster and

diagnosed radial nerve compression. He recommended surgical

decompression, and Foster agreed to the surgery. Foster had the

operation on April 2, 1991, and reported considerable relief

shortly after the procedure. Her condition, however, was

aggravated when someone grabbed her arm at a reunion party.

4 Thereafter Foster complained of burning and pain in her forearm.

Physical examination revealed full range of motion and normal

sensibility, however. Foster continued on a course of

conservative treatment, but still complained of aching and

hypersensitivity. On August 16, 1991, Dr. Walton expressed the

opinion that her symptoms were consistent with Waardenburg's

Syndrome. The doctor recommended a second radial nerve

decompression, to which Foster agreed.

On August 23, 1991, Foster again underwent surgery, and

seventeen days later reported complete abatement of the aching.

On October 28, 1991, Dr. Walton reported that Foster was

completely asymptomatic. At this time, he also noted that Foster

had excellent pinch and grip strength. Dr. Walton advised that

Foster could perform light activities, but should avoid

activities reguiring repetitive pronation and supination, such as

hairdressing.

In December 1991, Foster reported swelling and pain after

twisting her arm while caring for a small child. Dr. Walton

recommended a course of nonsteroidal anti-inflammatory medication

and the use of a forearm strap when engaging in vigorous

activities. Subseguent progress notes do not indicate any

worsening of Foster's condition. Dr. Walton doubted that Foster

would be able to return to work as a hairdresser, but encouraged

5 her to engage in other types of work that did not involve

repetitive pronation and supination.

In October 1992, Dr. Kenneth O'Neil conducted an independent

medical evaluation and concluded that Foster had a radial nerve

entrapment and could not work as a hairdresser, but was capable

of light to moderate work.

Foster continued to have pain and began seeing a

physiatrist. Dr. William Kois, on November 30, 1993. Dr. Kois

indicated that Foster had chronic medial and lateral

epicondylitis (tennis elbow), and a possible cervical

radiculopathy. A subseguent CT scan showed no evidence of a

herniated disc, and only minimal bulging. Dr. Kois recommended

physical therapy and splinting. Dr. Kois's subseguent notes

indicate continued complaints, without documenting any

significant worsening of Foster's physical condition.

Dr. O'Neil conducted a second independent medical evaluation

on March 10, 1994. At this time Foster reported difficulty with

housework, but Dr. O'Neil concluded that she remained capable of

performing light work.

On June 1, 1994, Foster underwent a psychological

examination by Dr. W.W. Lothrop. Foster indicated that she had

been in therapy for nine months and was taking Zoloft for

depression. Dr. Lothrop noted that depression was not evident in

6 the evaluation, and did not indicate any functional limitations

attributable to Foster's psychological condition. In the course

of her administrative proceedings, Foster never submitted reports

of the ongoing therapy or opinion evidence regarding her

psychological condition.

At the administrative hearing, Foster described her

symptomatology. She indicated that her pain was constant and

compared it to a "nagging toothache that doesn't go away." Tr.

at 7 0.

Dr. Wood, the impartial vocational expert, testified at the

hearing that Foster's previous positions as a hairdresser and

glue machine operator were performed at the light exertional

level and were skilled and semiskilled, respectively. In

response to a hypothetical. Dr. Wood opined that a younger

individual with a high school eguivalency who was capable of

light work, but precluded form using her right hand for

repetitive action, lifting above the shoulder, or writing would

be unable to perform Foster's previous jobs. However, Dr. Wood

identified other work that such an individual could perform and

gave retail sales and ushering as examples. He testified that as

of 1990, there were 28,000 usher jobs in the national economy and

212 in New Hampshire. Although Dr. Wood testified that there

were 19,873 retail sales jobs in New Hampshire alone, he felt

7 that Foster would be limited to those positions that did not

require regular writing. Dr. Wood estimated that 100 retail

positions in New Hampshire and 38,000 nationwide did not require

a substantial amount of writing.

Discussion

I . Standard of Review

After a final determination by the Commissioner and upon

request by a party, the court is empowered "to enter, upon the

pleadings and transcript of the record, a judgment affirming,

modifying, or reversing the decision of the Commissioner of

Social Security, with or without remanding the cause for a

rehearing."

(g) (1994 & Supp. 1997). The

Commissioner's factual findings are conclusive as long as

supported by substantial evidence. Id.; Irlanda Ortiz v.

Secretary of Health & Human Servs.,

(1st Cir.

1991). Substantial evidence is "'such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.'" Richardson v. Perales,

(1971)

(quoting Consolidated Edison Co. v. NLRB,

(193 8)); see also Rodriguez Pagan v. Secretary of Health & Human

Servs.,

(1st Cir. 1987).

In making factual findings, the Commissioner must weigh and resolve conflicts in the evidence, settle credibility issues, and

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

. The court will defer to the ALJ's credibility

determinations, particularly where those determinations are

supported by specific findings. Frustaqlia v. Secretary of

Health & Human Servs.,

(1st Cir. 1987) .

Accordingly, the Commissioner's decision to deny benefits will be

affirmed unless it is based on a legal or clear factual error.

Manso-Pizarro v. Secretary of Health & Human Servs.,

(1st Cir. 1996).

II. The Commissioner's Determination

Foster challenges the ALJ's decision at step five of

's process for disability determinations.

Foster claims that the ALJ erred in determining that there was

work Foster could perform because her pain and depression make it

impossible for her to perform the positions suggested by the

vocational expert. Further, Foster claims that even if she could

perform these jobs, there are not a significant number of such

positions in the economy.

The ALJ found that Foster was able to perform work at the

light exertional level, with the further restriction that such

work not include repetitive right arm movements. Based on her age, education, and experience, had Foster been able to perform a

full range of light work 20 C.F.R. Pt. 404, Subpt. P, App.2,

Table 2, Rule 202.21 (the Grid) would have reguired the ALJ to

enter a finding of not disabled. However, because Foster was

unable to perform some light work, the ALJ was reguired to make

an independent determination using the Grid as a framework.

The court finds that the ALJ's decision was based upon ample

evidence from the record. Foster's treating physicians. Dr.

Walton and Dr. Kois, and the doctor who conducted the independent

medical consultation agreed that Foster was capable of work at

the light exertional level.

Furthermore, the ALJ considered Foster's pain and concluded

that, although the record reveals a medical basis for her

complaints, "the claimant's testimony is not credible with

respect to the extent of her pain. . .." Administrative Record

(A.R.) at 25. The court will defer to the ALJ's credibility

determination because that determination was supported by

specific findings. Specifically, the ALJ found minimal medical

evidence to support Foster's allegations of constant severe pain.

The ALJ noted that Foster's physicians reported normal EMG tests

and good strength and motor function. The ALJ also considered

Foster's testimony that she performed daily activities such as

shopping, cooking, and driving, and that she occasionally worked

10 in her hairdressing shop.

Foster's contention that the ALJ erred by failing to

consider the effect of her depression on her ability to perform

the identified positions is incorrect. The ALJ did not consider

her depression during the step five evaluation of Foster's

ability to perform alternative work because he had already

determined at step two that her depression was not severe. The

ALJ's decision was supported by the evidence. Specifically, the

ALJ found the record "devoid of supporting objective clinical

evidence documenting symptoms of a severe mental impairment. In

addition, the claimant fail[ed] to testify to any functional

limitations attributable to this condition." A.R. at 16.

Based upon the finding that Foster could perform light work

provided it did not involve repetitive hand movements, the ALJ

concluded that the national economy contained a significant

number of jobs that Foster could perform. Substantial evidence

supports this conclusion. Specifically, the ALJ relied upon the

vocational expert's testimony. See Cruze v. Chater,

(8th Cir. 1996) ("Testimony from a VE based on a

properly phrased hypothetical guestion constitutes substantial

evidence."); Kelley v. Chater,

(10th Cir. 1995).

Foster's contention that she cannot perform the light retail

sales position identified by the vocational expert ignores the

11 fact that the expert considered her inability to write

frequently. The expert testified that there are 4,000,000 retail

positions nationwide and acknowledged that the majority of these

require writing that exceeds Foster's capability. Dr. Wood

conservatively estimated that 38,000 of these jobs would require

less frequent writing and therefore could be performed by someone

with Foster's limitations.

Furthermore, Foster's argument that the identified jobs do

not exist in her immediate area is misplaced. The relevant

statute specifically states, "[a]n individual shall be determined

to be under a disability only if he . . . cannot . . . 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 . . . ."

(d)(2)(A) (1994 & Supp. 1997) (emphasis added).

Conclusion

For the aforementioned reasons, the plaintiff's motion for

reversal (document 7) is denied and the defendant's motion

(document 11) is granted. The court hereby affirms the

Commissioner's decision.

12 SO ORDERED.

Shane Devine, Senior Judge United States District Court

December 16, 1997

cc: Bradley M. Down, Esq. David L. Broderick, Esq.

13