Swanick v . SSA CV-99-293-M 07/25/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Thomas J. Swanick, Plaintiff

v. Civil N o . 99-293-M Opinion N o .

Kenneth S . Apfel, Commissioner, Social Security Administration, Defendant

O R D E R

Claimant Thomas J. Swanick moves pursuant to

(g) to reverse the Commissioner’s decision denying his

application for Social Security Disability Insurance benefits

under Title II of the Social Security Act (the “Act”),

, and Supplemental Security Income disability payments under

Title XVI of the Act,

The Commissioner moves

for an order affirming the Commissioner’s decision. For the

1 The “standards for determination of disability and for judicial review in cases under

and 42 U.S.C. § 1382c(a)(3) are identical;” therefore, the court will not differentiate between Title II and Title XVI decisions when citing cases in this order. Donato v . Secretary of the Dep’t of Health and Human Servs.,

, 418 n.3 (2d Cir. 1983). reasons that follow, the decision of the Commissioner is

affirmed.

Standard of Review

I. Properly Supported Findings by the Administrative Law Judge (“ALJ”) are Entitled to Deference.

Factual findings of the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3); Irlanda Ortiz v . Secretary of Health and Human

Services,

(1st Cir. 1991). 2 Moreover, provided

the ALJ’s findings are supported by substantial evidence, the

court must sustain those findings even when there may be

substantial evidence supporting the claimant’s position. See

Gwathney v . Chater,

, 1045 (8th Cir. 1997) (The

court “must consider both evidence that supports and evidence

2 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison C o . v . NLRB,

(1938). It 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).

2 that detracts from the [Commissioner’s] decision, but [the court]

may not reverse merely because substantial evidence exists for

the opposite decision.”); Andrews v . Shalala,

, 1039-

40 (9th Cir. 1995) (The court “must uphold the ALJ’s decision

where the evidence is susceptible to more than one rational

interpretation.”).

It is “the responsibility of the [Commissioner] to determine

issues of credibility and to draw inferences from the record

evidence. Indeed, the resolution of conflicts in the evidence is

for the [Commissioner] not the courts.” Irlanda Ortiz,

(citation omitted). Accordingly, the court will give

deference to the ALJ's credibility determinations, particularly

where those determinations are supported by specific findings.

See Frustaglia v . Secretary of Health & Human Services,

(1st Cir. 1987).

II. The Parties’ Respective Burdens.

An individual is disabled for purposes of both Title II and

Title XVI if he or she is unable “to engage in any substantial

3 gainful activity by reason of any 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 [twelve (12)] months.”

(d)(1)(A) (West Supp. 2000) & 1382c(a)(3)(A) (West Supp.

2000). When determining whether a claimant is disabled, the ALJ

is required to conduct a five-step sequential analysis by making

the following inquiries:

(1) whether the claimant 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; and

(5) whether the impairment prevents the claimant from doing any other work.

& 416.920.

The claimant bears “the initial burden of proving that [his]

impairments prevent [him] from performing [his] former type of

work.” Gray v . Heckler,

(1st Cir. 1985). Once

4 the claimant has shown an inability to perform his previous work,

the burden shifts to the Commissioner to show that there are

other jobs in the national economy that he can perform. See

Vazquez v . Secretary of Health and Human Services,

, 2

(1st Cir. 1982). If the Commissioner shows the existence of

other jobs which the claimant can perform, then the overall

burden remains with the claimant. See Hernandez v . Weinberger,

(1st Cir. 1974); Benko v . Schweiker,

(D.N.H. 1982).

Ultimately, a claimant is disabled 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 . . . .

(d)(2)(A) (West Supp. 2000) & 1382c (a)(3)(B)

(West Supp. 2000).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm his

decision.

5 Background

This case is being reviewed for the second time. By order

dated May 1 8 , 1998, the prior decision of the Commissioner was

reversed because the ALJ erred by making his disability

determination without first obtaining the opinion of a vocational

expert (in other words, by relying on the Medical Vocational

Guidelines, or the “Grid”). 3 The case was remanded to permit

testimony by a vocational expert. Having been denied benefits on

remand, claimant seeks review.

Pursuant to this court’s Local Rule 9.1(d), the parties have

filed a Joint Statement of Material Facts, which is part of the

court’s record. In addition, a recitation of the pertinent facts

was provided in the court’s May 1 8 , 1998, order. Therefore, as a

3 The May 1 8 , 1998 order, which is docketed under Civil N o . 97-343-M, may also be found at pages 335 to 350 of the official Social Security Administration (“SSA”) record filed with the court in this case. (Cites to the record in this order are indicated by “R. at ___.”)

6 detailed factual statement need not be repeated in this order,

only the facts relevant to the court’s decision are noted here.4

I. Claimant’s Background and Medical Condition

Claimant was forty-seven years old at the alleged onset of

his disability and fifty-one at the time the ALJ rendered the

decision under review. He has either a tenth or twelfth grade

education5 and worked for twenty-four years in the construction

4 These fact are taken from the Joint Statement of Material Facts as supplemented by the record. 5 The parties’ joint statement of material facts stipulates that claimant has a twelfth grade education. The ALJ’s decision, however, states that claimant has a tenth grade education. The record shows that at times claimant testified that he had completed twelve years of education and graduated from high school, while at other times, he appears to have told his examining physicians that he quit high school in the tenth grade and either never got his GED or got it while in the service. The court need not resolve this discrepancy, however, in order to reach its decision.

7 industry as a masonry pipe-layer/pipe-fitter.

Claimant alleges that he became unable to work on February

1 , 1994. He testified that he was working in Arizona at the time

and, while at home preparing to go to work he felt a numb,

tingling sensation in his left foot that traveled up the entire

left side of his body. Claimant first sought medical attention

after returning to New Hampshire approximately three months

later. He presented at the Veterans Administration (“VA”)

hospital on May 1 3 , 1994, reporting that he thought he had

suffered a stroke three months earlier and complaining of

persistent numbness and weakness on his left side. On physical

examination, the attending physician noted that claimant’s

cranial nerves and his motor and sensory systems were all intact.

Claimant’s blood pressure, however, was measured at 218/148, and

he admitted to both alcohol abuse and to smoking two packs of

cigarettes a day. Claimant was diagnosed with alcohol-related

hypertensive symptoms, for which he was prescribed Quinopril and

advised to stop drinking.

8 At a follow-up visit on May 1 6 , 1994, a CT scan of

claimant’s head was taken which revealed “an asymmetric 5 mm.

area of reduced density within the internal capsule, which is not

felt [by the reporting radiologist] to be of clinical

significance.” (R. at 207.) Claimant continued to be treated

for hypertension and to complain of left-side numbness and

weakness.

On July 2 9 , 1994, claimant was seen by Hans W . Standow,

M.D., at the request of the Social Security Administration

(“SSA”), for a psychiatric evaluation. Dr. Standow noted that

claimant walked normally, had well-preserved motor coordination

and no significant pathology in motor activity. The doctor

concluded that “[f]rom a psychiatric viewpoint, [claimant’s]

symptoms are only mild and in no way render[] him dysfunctional,”

but noted that “[h]ow disabling his physical condition is could

only be determined by a thorough neurological examination, which

would likely be indicated and helpful.” (R. at 222.)

On August 1 6 , 1994, claimant was seen by a VA practitioner

for a general medical examination. Claimant presented with no

9 complaints. His posture and gait were noted to be normal, and an

examination of his musculoskeletal systems showed no limitations

of motion. The examiner’s notes further stated: “Neurological

examination reveals motor strength is 5 out of 5 both upper

extremities and lower extremities. There is good repetitive

motion with the fingers. Reflexes of the brachioradials, biceps,

triceps, patella and ankle are approximately 3+ left and right.”

(R. at 214.)

Claimant was referred by the SSA to Robert Thies, M.D., for

a neurologic independent medical examination. Claimant saw Dr.

Thies on March 2 8 , 1995, at which time he reported no substantial

change in his symptoms since his first visit to the VA hospital.

Dr. Thies noted:

On motor examination there is clumsiness of rapid alternating movements of the left hand. There is mild downward drift of the extended left upper extremity. Reflexes are absent. The left plantar is upgoing; the right is downgoing. There is a question of a patch and impersistent decrease in appreciation of touch over the left hand as compared to the right. On gait he favors his left lower extremity slightly.

(R. at 226.) D r . Thies’ stated impression was that “[t]he

described symptoms and current examination are compatible with

10 deep right cerebral dysfunction.” (R. at 226.) Dr. Thies

observed that claimant’s hypertension made him a candidate for

lacunar stroke, and noted that “[t]he CT scan in the past [i.e.,

May 1 6 , 1998,] may well have shown a right lacunar stroke,

although the description is somewhat ambiguous.” (R. at 226.)

Dr. Thies concluded that claimant “appears to have persistent

sensory and motor difficulty with his left body secondary to the

event of February 1994.” (R. at 226.)

On April 7 , 1995, claimant was seen by Victor Gordan, M.D.,

his primary care physician at the VA. Dr. Gordan noted no

changes or new developments in claimant’s condition since his

last visit in October, 1994. His handwritten office notes appear

to describe claimant’s condition as “[status/post] stroke -

L[eft] hemiparesis/mild.” (R. at 219.)

Another neurological evaluation of claimant was conducted by

Henry D. Astarjian, M.D. on May 1 9 , 1995. Dr. Astarjian’s motor

examination of claimant showed “a definite drift in the left

upper extremity with pronation indicating weakness of the left

upper extremity.” (R. at 239) Weakness in the left lower

11 extremity was also noted, and a sensory examination revealed at

least fifty percent less feeling of a pin prick on claimant’s

left side than his right. Other sensory modalities, however,

such as vibration and proprioception, were found to be intact,

and claimant’s gait and stance were noted to be within normal

limits. The results of a head CT scan and an EEG were also

within normal limits.

Dr. Astarjian concluded his report with the following

opinion:

That the patient has had stroke involving the left body is of no doubt. There is moderate degree of weakness in the left upper and lower extremities and this combined with the long-tract signs, such as extensor plantar reflex and hyperflexia on the left side document not only the stroke, but the fact that his left-sided weakness is a hindrance for him to go back to pipe fitting or any kind of work which involves physical strength and endurance. In that sense the patient is disabled, but can he do some kind of a desk job to earn a living? [T]he answer to that question is yes.

(R. at 240.)

On July 3 1 , 1995, claimant was examined by Richard Berke,

Ph.D., at the SSA’s request. D r . Berke conducted an interview

and mental status evaluation and administered tests to determine

12 an intelligence profile. Dr. Berke noted that claimant “said

that his ‘brain works fine,’ but he has weakness in the left side

of his body, and he cannot do physical work without getting

tired, especially when he stands on his feet.” (R. at 228.)

Claimant next saw Dr. Gordan on January 1 7 , 1996. Dr.

Gordan ordered a head CT scan which showed “confirmation of a

right lacunar infarct which is essentially unchanged since

05/16/94.” (R. at 251 (emphasis omitted).) D r . Gordan also

completed a medical assessment of ability to do work-related

activities for claimant on January 1 7 , 1996. Dr. Gordan stated

that claimant could do no lifting or carrying, no standing, two

to three hours of sitting, and no climbing, balancing, stooping,

crouching, kneeling, or crawling in an eight hour day, all due to

left-side hemiparesis. Dr. Gordan also stated that claimant’s

ability to see, hear and speak were not affected by his stroke,

but his ability to reach, handle, feel and push/pull were. Dr.

Gordan also noted that claimant’s impairment necessitated

environmental restrictions as to height, moving machinery,

13 temperature extremes, noise and vibration, but not as to

chemicals, dust, fumes or humidity.

Dr. Gordan saw claimant again on July 1 6 , 1996, January 2 3 ,

1997, August 6, 1997, and January 3 , 1998, at which times no new

developments were noted. By letter dated November 1 8 , 1998, Dr.

Gordan was asked by claimant’s attorney to indicate whether the

physical limitations noted in D r . Gordan’s January 1 7 , 1996

medical assessment of claimant’s ability to do work-related

activities still existed. Dr. Gordan answered affirmatively.

14 II. The Administrative Hearing.

A hearing was held before the ALJ on November 1 9 , 1998.

When asked whether there had been any changes in his strength or

increase in weakness on his left side, claimant testified that

“[i]t seems to be more fatigue than before.” (R. at 305.) He

stated that the fatigue he experienced required him to lay down

to rest for an hour in the morning and an hour in the afternoon.

He also stated that he would occasionally walk for exercise but

had to take breaks and sit down for awhile before continuing his

walk.

The ALJ questioned the vocational expert about a

hypothetical person, aged 5 0 , with a tenth grade education and

heavy or very heavy work experience, who could lift twenty pounds

maximum, ten or fifteen pounds on a daily basis. The vocational

expert was asked to assume that hypothetical worker suffered a

stroke, resulting in the following limitations:

[I]n terms of the nondominant upper extremity limitations, the use of the left upper extremity particularly the hand and finger for repetitive, constant grasping fingering would be able to use the left hand for balancing and . . . occasional lifting of more gross objects but certainly is not going to be

15 able to do certainly keyboard activities and assembly types of activities or even repetitive gross manipulations with the upper left hand.

(R. at 322.)

The vocational expert testified that, under those

assumptions, the hypothetical worker would not be able to return

to his previous heavy-lifting jobs, but that other jobs existed

in the national and local economies that the worker could

perform, such as cashier, light exertional level (800,000 jobs

nationally/3,000 locally); cashier, sedentary (200,000/1,000);

information clerk, light exertional level (46,000/100); small

product packaging (90,000/350); office helper (80,000/200);

general clerical, light exertional level (150,000/350); general

clerical, sedentary (100,000/250); office (i.e., not postal

service) mail clerk (75,000/300); and telephone answering

(92,000/300). The vocational expert testified that an additional

limitation on standing and walking more than a short distance

might affect the ability to perform the mail clerk job, but that

the jobs listed generally would not require walking long

distances or constant standing in one position, but could be

16 performed sitting or standing and would allow the worker to

change position for a few seconds or minutes before resuming his

usual position.

Claimant’s attorney asked the vocational expert to assume

that a hypothetical worker with a limited education could not

lift or stand, could not sit for more than two or three hours in

an eight hour day, could not climb, balance, stoop, crouch,

kneel, or crawl, could not use, handle or feel with his left

upper extremity, and could not work near heights, moving

machinery, extremes in temperature, noise, fumes or vibration.

The vocational expert testified that with those limitations, the

hypothetical worker could not perform any of the jobs she had

previously identified.

Claimant’s attorney then asked the vocational expert to

return to the ALJ’s hypothetical worker and opine whether that

worker could perform any of the jobs previously identified if the

worker had to take two to three rest breaks, not part of the

normal work routine, lasting from one half to one hour each, due

17 to fatigue. The vocational expert testified that under those

assumptions, all of the jobs would be precluded.

III. The ALJ’s Decision.

The ALJ reached his decision at step five of the sequential

analysis. The ALJ disregarded Dr. Gordan’s assessment of

claimant’s physical limitations finding that “Dr. Gordon’s [sic]

assessment as to the profound physical limitations of the

claimant is inconsistent with the claimant’s activities, with

other medical assessments, and the totality of the record.” (R.

at 279.) The ALJ therefore gave Dr. Gordan’s assessment no

weight. The ALJ also found:

[T]he claimant’s statements asserting disability are out of proportion with the record as a whole and are, therefore, not entirely credible in light of the claimant’s own description of his activities and life style, the degree of medical treatment required, discrepancies between the claimant’s assertions and information contained in the documentary reports, the reports of the treating and examining practitioners, and findings made on examination.

(R. at 281.) The ALJ concluded, based on the vocational expert’s

testimony, and in light of claimant’s age, education, experience

18 and residual functional capacity (“RFC”), that while claimant

could not return to his former occupation, he could make the

adjustment to other work that exists in significant numbers in

the national economy. Accordingly, the ALJ found that claimant

was not disabled within the meaning of the Act.

Discussion

Claimant argues that the vocational expert’s opinion cannot

constitute substantial evidence in support of the ALJ’s decision

because the hypothetical question the ALJ posed to the vocational

expert did not include all of the limitations on claimant’s

ability to work.

[I]n order for a vocational expert’s answer to a hypothetical question to be relevant, the inputs into that hypothetical must correspond to conclusions that are supported by the outputs from the medical authorities. To guarantee that correspondence, the Administrative Law Judge must both clarify the outputs (deciding what testimony will be credited and resolving ambiguities), and accurately transmit the clarified output to the expert in the form of assumptions.

Arocho v . Secretary of Health and Human Servs.,

(1st Cir. 1982). Thus, if the ALJ omits a significant functional

19 limitation from the hypothetical posed to the vocational expert,

the ALJ cannot rely upon the vocational expert’s answer as the

reason for denying benefits. See Rose v . Shalala,

3 , 19

(1st Cir. 1994).

Claimant first argues that the ALJ’s hypothetical failed to

include any postural limitations - i.e., restrictions on

climbing, balancing, stooping, crouching, kneeling, and crawling.

In a related argument, claimant asserts that the ALJ erred in

rejecting his treating physician’s opinion as to his residual

functional capacity.

While the SSA generally gives more weight to the opinion of

a treating physician than that of a medical consultant, a

treating physician’s opinion is entitled to controlling weight

only if it “is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in [the] case record.”

(d)(2) and 416.927(d)(2). If those conditions are not

met, the SSA will consider a number of factors, including the

20 supportability and consistency of the treating physician’s

opinion, to determine what weight to give i t .

The court finds that the ALJ did not err in rejecting D r .

Gordan’s findings as inconsistent with the record as a whole.

With respect to postural limitations, Dr. Gordan stated that

claimant could do no climbing, balancing, stooping, crouching,

kneeling, or crawling. However, none of the physicians who

examined claimant noted any limitations of motion that would

completely limit his abilities to stoop, crouch, kneel, crawl or

climb. To the contrary, the general medical examination of

claimant conducted on August 1 6 , 1994 showed the following:

Musculoskelotal system examination shows the left and right shoulder has no limitation of motion. The left shoulder has normal abduction and normal extension and flexion, as does the right shoulder. Examination of both elbows shows no limitation of motion. Examination of the spine shows the flexion forward of 90 degrees, extension backward of 35 degrees and movement laterally left and right of 40 degrees. Examination of the hip shows no ormalities [sic; abnormalities?] Examination of the left and right knees show normal flexion and extension. There is normal ankle dorsal flexion and plantar flexion.

(R. at 214.)

21 Of course a number of physicians noted weakness and sensory

deficits on claimant’s left side, as well “clumsiness of rapid

alternating movements of the left hand.” (R. at 226.) However,

there is no suggestion that these impairments would prevent

claimant from performing the listed postural functions. Indeed,

a functional capacity assessment of claimant by a medical

consultant for the SSA, dated April 5 , 1995, indicated that

claimant could engage in all postural functions occasionally

(defined as “occurring from very little up to one-third of an 8-

hour workday (cumulative, not continuous)”). (R. at 116.)

The practitioner who examined claimant on August 1 6 , 1994,

also noted that “[t]he patient is able to walk toes and heels,”

(R. at 2 1 4 ) , which tends to contradict a finding of complete

inability to balance. Claimant did testify that he started using

a cane in 1996 for balance, as his left leg would sometimes “just

go right out from under [him].” (R. at 305.) He stated,

however, that he had not fallen while using the cane.

As Dr. Gordan’s medical assessment was inconsistent with the

record as a whole, the ALJ was entitled to disregard i t . He then

22 had in the record before him a residual functional capacity

assessment by medical consultant Burton A . Nault, M.D., dated

July 2 1 , 1994, that found that no postural limitations had been

established, and a medical consultant’s assessment dated April 5 ,

1995, that limited all postural functions to an occasional basis.

Since the ability to perform all postural functions at least

occasionally would leave the light and sedentary occupational

bases largely intact, the ALJ’s failure to include those

limitations in his hypothetical to the vocational expert does not

require reversal. See SSR 85-15,

, at *6-7 (S.S.A.

1985) (discussing climbing, balancing, stooping, crawling and

23 kneeling) 6 ; SSR 83-14,

, at *2 (S.S.A. 1983)

(discussing climbing, crouching and stooping).7

6 Limitations in climbing and balancing can have varying effects on the occupational base, depending on the degree of limitation and the type of job. Usual everyday activities, both at home and at work, include ascending or descending ramps or a few stairs and maintaining body equilibrium while doing so. These activities are required more in some jobs than in others, and they may be critical in some occupations. Where a person has some limitation in climbing and balancing and it is the only limitation, it would not ordinarily have a significant impact on the broad world of work. Certain occupations, however, may be ruled out; e.g., the light occupation of construction painter, which requires climbing ladders and scaffolding, and the very heavy occupation of fire- fighter, which sometimes requires the individual to climb poles and ropes. . . . . . . If a person can stoop occasionally . . . in order to lift objects, the sedentary and light occupational base is virtually intact. . . . [In addition,] limitations on the ability to crawl would be of little significance in the broad world of work. This is also true of kneeling . . . .

SSR 85-15,

, at *6-7

7 “Relatively few jobs in the national economy require ascending or descending ladders and scaffolding. . . . [T]o

24 With respect to exertional limitations, the ALJ could have

found Dr. Gordan’s assessment inconsistent with other substantial

evidence in the record, including claimant’s testimony as to his

daily activities. For instance, claimant consistently noted on

his activities of daily living forms that on an average day he

would take “short walks” (R. at 99 (May 3 1 , 1994); R. at 153

(June 2 3 , 1995)). He also testified as late as November 1 9 ,

1998, that he tried to “walk a little bit” for exercise, albeit

with rest breaks. (R. at 320.) The ALJ could therefore reject

Dr. Gordan’s opinion that claimant could not walk or stand at

all.

Similarly, the evidence did not support Dr. Gordan’s opinion

that claimant could not lift anything at all. Certainly the

weakness in claimant’s left side was well documented, and he

testified that his left hand would tire and become useless after

five minutes of trying to hold something, even a piece of bread.

perform substantially all of the exertional requirements of most sedentary and light jobs, a person would not need to crouch and would need to stoop only occasionally.” SSR 83-14,

, at *2

25 It was also documented, however, that claimant is right-handed

and that he could perform household chores that presumably

required some lifting. For instance, he testified on December 7 ,

1995, that he could “pick stuff up and throw it away, or

whatever,” but that he needed help with “[a]ny major thing.” (R.

at 53.) Thus, he testified that he was able to take care of the

cleaning, vacuuming and dusting of his apartment, “but as far as

moving anything around or anything, I can’t.” (R. at 53.) The

ALJ could also weigh D r . Gordan’s assessment of claimant’s

sitting ability in light of claimant’s testimony that while he

experienced numbness and ache after sitting for fifteen or twenty

minutes, he was able to relieve it by standing for a few seconds

or even by shifting his position in the chair.

Having discounted D r . Gordan’s RFC assessment as

inconsistent with other evidence, the ALJ could rely on the

assessments of the medical consultants, the most recent of which

(April, 5 , 1995) determined that claimant could lift twenty

pounds occasionally, ten pounds frequently; stand and/or walk

about six hours in an eight hour work day; sit about six hours in

26 an eight hour work day; and push and/or pull without limitation.8

See Gray,

(“[O]pinions of consulting physicians

concerning a claimant’s physical condition are entitled to

weight.”). 9 The court therefore finds no reversible error in the

ALJ’s RFC determination.

Finally, claimant argues that the ALJ’s hypothetical failed

to include a limitation for fatigue, which, once brought to the

vocational expert’s attention by claimant’s lawyer, was found to

preclude all occupations. The ALJ found it “credible that

8 An earlier assessment, dated July 2 1 , 1994, determined that claimant could lift fifty pounds occasionally, twenty-five pounds frequently; stand and/or walk about six hours in an eight hour work day; sit about six hours in an eight hour work day; and push and/or pull without limitation. 9 Claimant argues that the ALJ impermissibly substituted his opinion as to claimant’s functional limitations for Dr. Gordan’s, and that as a lay person, “‘the ALJ was simply not qualified to interpret raw medical data.’” (Claimant’s B r . at 9 (quoting Nguyen v . Chater,

1 , 35 (1st Cir. 1999).) The court finds no indication, however, that the ALJ interpreted raw medical data. Rather, although the ALJ does not explicitly cite the April 5 , 1995 medical consultant’s assessment, the court cannot help but notice that the ALJ’s RFC determination matches that assessment exactly, with the added restrictions that claimant cannot “perform rapid, alternating movements with his left (nondominant) hand and cannot walk more than one-half hour at a time.” (R. at 284.)

27 [claimant] would experience some numbness on his left side,” but

concluded that “the claimant’s statements asserting disability

are out of proportion with the record as a whole and are,

therefore, not entirely credible.” (R. at 281.)

The court finds no reversible error in the ALJ’s

determination. The ALJ focused on the inconsistency between

claimant’s allegations of disabling fatigue and his stated

activities of shopping, showering, light cleaning, preparing

meals and taking short walks. The ALJ also could have found

claimant’s alleged fatigue level inconsistent with various

portions of the medical record. For instance, in the general

medical examination conducted on August 16, 1994, claimant

underwent a cardiovascular test requiring exercise, after which

no fatigue was noted.10

10 This case may therefore be contrasted with McMillian v . Schweiker,

(8th Cir. 1983), cited by claimant, in which the court found that the claimant/stroke victim’s “complaint of fatigue was at least partially corroborated by” a doctor’s finding that the claimant’s “disability rendered him unable to tolerate a treadmill exercise test.”

28 With regard to mental fatigue, D r . Berke’s examination of

claimant revealed that his “[a]ctivity level was normal and

appropriate; persistence was observed.” (R. at 228.) Dr.

Astarjian opined after examining claimant that while he could not

perform work that required “physical strength and endurance,” he

could maintain a “desk job.” (R. at 240.) It may also be noted

that in all of the physicians’ notes in the record, there is only

one mention of a complaint of fatigue by claimant, on January 1 7 ,

1996. Since the ALJ did not err in discounting claimant’s

subjective complaints of fatigue, his failure to include that

limitation in his hypothetical question to the vocational expert

does not constitute error. See Hinchey v . Shalala,

(8th Cir. 1994) (noting that where “the ALJ found that

[claimant’s] subjective complaints of fatigue were not supported

by the record as a whole . . . he did not need to include those

factors in the hypothetical to the vocational expert”).

Conclusion

29 For the foregoing reasons, the claimant’s motion to reverse

the decision of the Commissioner (document n o . 9 ) is denied and

the Commissioner’s motion for order affirming the decision of the

Commissioner (document n o . 10) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 2 5 , 2000

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

30