Georgette Poland v. SSA CV-00-350-B 08/02/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Georgette D . Poland

v. Civil No. 00-350-B Opinion No.

William A. Halter, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Georgette D. Poland applied for Title II Social Security

Disability Insurance Benefits on November 3, 1994. Poland

alleged an inability to work since May 30, 1994, due to lower

back pain and carpal tunnel syndrome. The Social Security

Administration ("SSA") denied her application initially and on

reconsideration. Administrative Law Judge ("ALJ") Robert

Klingebiel held a hearing on Poland's claim on December 12, 1995.

In a decision dated April 17, 1996, the ALJ found that Poland was

not disabled. On July 16, 1997, the Appeals Council vacated the

ALJ's decision and remanded the case to him for a new hearing and

decision. The ALJ held a second hearing on January 27, 1998 and,

in a decision dated February 24, 1998, he again found that Poland

was not disabled. On June 12, 2000, the Appeals Council denied Poland's request for review, rendering the ALJ's decision the

final decision of the Commissioner of the SSA.

Poland brings this action pursuant to

(g),

seeking review of the denial of her application for benefits.

Poland requests that this court reverse the Commissioner's

decision and award her benefits. I conclude that Poland is not

entitled to an order awarding benefits to her. For the reasons

set forth below, however, I remand this case and direct that the

ALJ take additional evidence.

I. FACTS1

Poland was thirty-seven years old when she applied for

benefits. She worked as a custodian, child-care provider, press

operator, and, most recently, as a material handler from November

1982 until May 1994. Tr.2 at 150. Poland has not worked since

May 30, 1994, the date she claims her disability began. In

December 1997, she received her high school equivalency degree.

1 Unless otherwise noted, I take the following facts from the Joint Statement of Material Facts, Doc. No. 8, submitted by the parties.

2 "Tr." refers to the certified transcript of the record submitted to the Court by the SSA in connection with this case.

- 2 - Id. at 84.

Poland suffered neck, lower back, and wrist injuries in a

motor vehicle accident on May 30, 1994. She was taken to the

emergency room at Concord Hospital for treatment. The examining

physician. Dr. Andrew Jaffe, observed that Poland was

neurologically intact and had good range of motion in her neck.

The radiologist reported that the x-rays of her cervical spine

were normal. Dr. Jaffe diagnosed her with acute cervical strain

and prescribed Robaxin. Although he also instructed Poland to

wear a soft cervical collar, she declined to do so.

On June 1, 1994, Poland reported to Nurse Practitioner

("NP") Jody Goodrich that she had neck and lower back pain. She

also described two brief episodes of bilateral hand numbness.

Her sensory exam, however, was normal. NP Goodrich referred her

to physical therapy. Tr. at 171. Poland returned to NP Goodrich

a week later and said that her pain was "a little better." She

noted that she had numbness in her hands two to three times a day

which resolved quickly. She was diagnosed with severe cervical

strain that appeared to be resolving slowly.

On July 8, 1994, Poland complained to NP Goodrich that her

lower back was tender all the time, but stated that her condition

- 3 - improved somewhat with physical therapy. Tr. at 165. She also

reported that her neck pain was better, but that she could not

lift any objects without pain. Id. In addition, Poland stated

that she still suffered from intermittent hand numbness when she

cooked or knitted. NP Goodrich diagnosed her with persistent

lumbar strain, and they both agreed that she probably could not

go back to work.

Physician Assistant ("PA") Patrick McCarthy examined Poland

on July 22, 1994. He noted some point tenderness along Poland's

entire cervical spine, but no pain in her lumbar spine. Upon

examination, Poland had full cervical flexion and extension. Her

strength was 5/5 in the finger intrinsics and flexors, and her

upper extremity sensation was normal. PA McCarthy indicated that

Poland could engage in light-duty work, and encouraged her to

return to work.

Three days later, Poland's physical therapist reported that

Poland was slowly resolving her neck and back injury, although

her back was still somewhat sore. In addition, the physical

therapist observed that Poland's functional mobility was much

improved.

On August 31, 1994, Dr. William House, a neurologist,

- 4 - examined Poland. During her exam, Poland tested positive for

carpal tunnel syndrome ("CTS")3 during the Phalen's maneuver.4

Tr. at 205, 229. Dr. House diagnosed Poland with probable post-

traumatic bilateral CTS and prescribed Ibuprofen and wrist

splints.

NP Goodrich noted on October 25, 1994, that Poland showed

only limited progress in resolving her cervical and lumbosacral

strain symptoms. She opined that Poland could not lift more than

5 to 10 pounds and that Poland could not sit for more than an

hour without pain. She also indicated that Poland would not be

able to perform work which required significant manual labor but

she could handle a part-time job in which she did mostly desk

work with the opportunity to stand and walk frequently.

In a follow-up appointment with Dr. House, on November 30,

1994, Poland said she still experienced numbness in her hands.

3 Carpal tunnel syndrome consists of a complex of symptoms resulting from compression of the median nerve in the carpal tunnel, with pain and burning or tingling paresthesias in the fingers and hand, sometimes extending to the elbow. Dorland's Illustrated Medical Dictionary 1626 (28th ed. 1994).

4 Phalen's test or maneuver is used to detect carpal tunnel syndrome and consists of reducing the size of the carpal tunnel by holding the affected hand with the wrist fully flexed or extended for 30 to 60 seconds. Id. at 985.

- 5 - Dr. House's examination revealed no neurological abnormalities

and showed that the Phalen's test was "weakly positive or perhaps

not positive at all." Dr. House diagnosed Poland with mild CTS,

and he ordered an upper extremity electromyograph ("EMG"). The

EMG showed no evidence of active or chronic denervation, however.

Dr. House concluded that the EMG confirmed Poland's mild CTS. He

advised her to return to work and to continue with her treatment.

Dr. David Nagel, an orthopaedist, examined Poland on

February 24, 1995. Poland told Dr. Nagel that she could no

longer engage in snowmobiling and other sports. She also could

not do all of her housework, and required help with the laundry

and vacuuming. On examination, Poland exhibited almost full

range of motion in her neck, marked tenderness over the left

trapezius, and a positive Phalen's test at about 12 seconds for

the right hand and 20 seconds for the left hand. Poland's

forward lumbar flexion was moderately restricted. Dr. Nagel

diagnosed Poland with cervical strain with myofascial pain,

bilateral CTS, and lumbar strain.

In April 1995, Dr. Campbell, a medical consultant for the

state disability determination agency, assessed Poland's physical

residual functional capacity ("RFC"). He determined that Poland

- 6 - was capable of performing light work with the exception that she

should avoid rapid, repetitive movements with her hands and

fingers. Tr. at 122.

In May 1995, Poland underwent another course of physical

therapy. Her physical therapist reported that her progress was

excellent. After therapy, Poland's upper extremity elevation was

normal, her cervical range of motion improved from 50% to 75%,

and her hand pain decreased. Poland, however, still complained

of lumbosacral tightness and poor endurance when using her upper

extremity for lifting.

In July 1995, another medical consultant for the state

disability determination agency. Dr. Burton Nault, determined

Poland's RFC. He affirmed Dr. Campbell's previous RFC for light

work and also opined that Poland should avoid repetitive bending

and lifting.

In February 1996, Dr. Nagel reported that Poland's neck pain

and back pain were still severe. He noted that she was markedly

symptomatic and, as a result, had significant functional

limitations. In March 1996, Dr. Nagel opined that additional

medical intervention was not likely to cause dramatic improvement

in Poland's condition and that her functional limitations were

- 7 - not likely to change.

In July 1996, Dr. Nagel reported to an insurance company

that Poland's symptoms had reached the point of maximum medical

improvement. He opined that she would be capable of sedentary,

non-repetitive work with limited bending, twisting, and stooping.

He was unable to estimate how many hours she could work, but he

felt that with rehabilitation she could engage in part-time

sedentary work.

In December 1996, physical and occupational therapists at

the New Hampshire Center for Back Care at Concord Hospital

performed a formal Physical Capacity Evaluation ("PCE") of

Poland.5 The test results revealed: (1) that Poland can bend,

kneel, squat, stand, walk, sit, reach, drive, and perform fine

motor activities only occasionally (1-33% of the time); (2) that

she has a sedentary work capacity, which means she can lift 10

pounds occasionally and less than 5 pounds frequently; and (3)

that she cannot perform repetitive motions with her right

shoulder. Physical Capacity Summary, Doc. No. 6, at 1-2.

5 This evaluation is not part of the administrative record upon which the ALJ based his decision. Poland submitted a copy of the PCE, for the first time, with her motion to reverse the Commissioner's decision. Specifically, the PCE indicated that Poland "demonstrates a very

low weighted lifting ability at 7^-10 pounds with bilateral

activities and low lift and carry activities [and] 3-5 pounds for

unilateral reaching activities at shoulder height and above."

Physical Capacity Evaluation, Doc. No. 6, at 3. In addition, the

test results indicated that Poland could stand for 25 minutes and

sit for 60 minutes continuously. Id. The evaluation did not

estimate how many hours per day Poland could work.

In February 1997, Dr. Nagel reiterated that Poland's chronic

cervical and lumbar strains and her CTS had reached the point of

maximum medical improvement. Dr. Nagel adopted the results of

Poland's PCE and reported that she could perform sedentary work

with frequent breaks to stretch her neck, that she should avoid

prolonged neck flexion, that she should avoid repetitive use of

the arms without frequent breaks, and that she should limit any

bending activities. Dr. Nagel expected that these restrictions

would be permanent. In a letter to an insurance company in March

1997, Dr. Nagel estimated that Poland could work 4 to 6 hours per

day, 3 to 5 days per week. He also noted that she should not

engage in any repetitive grasping or pinching, she should not sit

for more than one half-hour at a time without the ability to get

- 9 - up and stretch, and she should not bend or twist repeatedly.

On April 23, 1997, Dr. Nagel rated Poland's level of

impairment according to the AMA Guide to the Evaluation of

Permanent Impairment. He assessed her cervical and lumbar range

of motion and concluded that she suffered minor impairments

(category 2) of both the cervical and lumbar spine.

In November 1998, Poland complained to Dr. Nagel about pain

in her right trapezius muscle, which radiated up into her head

and down through the shoulder. She also continued to have pain

across her lower back which was aggravated by bending. In

February 1999, Dr. Nagel reported that Poland felt better and

that her pain had "quieted down." Tr. at 291. Poland told Dr.

Nagel that she had started physical therapy again and felt that

she was making "slow but steady gains" and that the "therapy does

seem to help." Id.

II. STANDARD OF REVIEW

_____ After a final determination by the Commissioner denying a

claimant's application for benefits, and upon timely request by

the claimant, I am authorized to: (1) review the pleadings

submitted by the parties and the transcript of the administrative

- 10 - record; and (2) enter a judgment affirming, modifying, or

reversing the ALJ's decision. See

(g). My review

is limited in scope, however, as the ALJ's factual findings are

conclusive if they are supported by substantial evidence. See

id.; Irlanda Ortiz v. Sec'v of Health & Human Servs.,

(1st Cir. 1991) (per curiam). The ALJ is responsible

for settling credibility issues, drawing inferences from the

record evidence, and resolving conflicts in the evidence. See

Irlanda Ortiz,

69. Therefore, I must "uphold the

[ALJ's] findings . . . if a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate to

support [the ALJ's] conclusion."

(quoting Rodriquez v. Sec'v

of Health & Human Servs.,

(1st Cir. 1981))

(internal quotation marks omitted).

While the ALJ's findings of fact are conclusive when

supported by substantial evidence, they "are not conclusive when

derived by ignoring evidence, misapplying the law, or judging

matters entrusted to the experts." Nguyen v. Chater,

(1st Cir. 1999) (per curiam). I apply this standard in

reviewing the issues that Poland raises on appeal.

III. DISCUSSION

- 11 - The Social Security Act (the "Act") defines "disability" for

the purposes of Title II as the "inability to engage in any

substantial 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 tolast

for a continuous period of not less than 12 months."

(d)(1)(A). The Act directs an ALJ to apply a five-step

sequential analysis to determine whether a claimant is disabled.6

See

. At step four, the ALJ must determine

whether the claimant's impairment prevents her from performing

her past work. See

§ 404.1520(e). To make this

determination, the ALJ must assess both the claimant's residual

functional capacity ("RFC"), that is, what the claimant can do

despite her impairments, and the demands of the claimant's prior

employment. See id.;

(a); see also Santiago

v. Sec'v of Health & Human Servs.,

(1st Cir. 1991)

6 In applying the five-step sequential analysis, the ALJ is required to determine: (1) whether the claimant is presently 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. See

(2000).

- 12 - (per curiam). The claimant, however, bears the burden of showing

that she does not have the RFC to perform her past relevantwork.

See Santiago,

.

At step five, the burden shifts to the Commissioner to show

"that there are jobs in the national economy that [the] claimant

can perform." Heqqartv v. Sullivan,

(1st Cir.

1991) (per curiam); see also Keating v. Sec'v of Health & Human

Servs.,

(1st Cir. 1988) (per curiam). The

Commissioner must show that the claimant's limitations do not

prevent her from engaging in substantial gainful work, but need

not show that the claimant could actually find a job. See

Keating,

("The standard is not employability,but

capacity to do the job.").

In this case, the ALJ concluded at step five of the

sequential evaluation process that Poland was "not disabled."

Tr. at 42, 47, 49. The ALJ determined that Poland retains the

RFC to perform light work7 but that she should avoid work that

7 Light work involves "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds," "a good deal of walking or standing," and/or "sitting most of the time with some pushing and pulling of arm or leg controls."

(b).

- 13 - requires bending and lifting at the waist and repetitive

manipulation with her hands. Id. at 48. Ultimately, the ALJ

considered Poland's educational background, age, RFC, and the

testimony of a vocational expert when he decided that Poland can

perform jobs that exist in significant numbers in the national

economy. Id. at 47, 49.

Poland argues that the ALJ's decision was tainted by a

number of legal errors. First, Poland asserts that the ALJ

improperly rejected the opinion of Dr. Nagel, her treating

orthopedic physician, regarding her RFC. Second, Poland argues

that the ALJ did not properly evaluate her subjective complaints

of pain. Lastly, Poland argues that the ALJ improperly relied on

the testimony of the vocational expert ("VE") because the

hypothetical question posed to the VE did not fully reflect

Poland's functional limitations. I address each of these

arguments in turn and, ultimately, conclude that they lack merit.

In addition, although Poland did not raise this as a separate

ground for reversal, I also address the ALJ's failure to fully

develop the record and decide to remand the case for the taking

- 14 - of additional evidence.8

A. The ALJ's Weighing of Dr. Nagel's Opinion

Poland contends that the ALJ improperly rejected Dr. Nagel's

opinion concerning her RFC. She argues that the ALJ failed to

apply the appropriate factors for evaluating opinion evidence,

and that had he done so, he would have found that Dr. Nagel's

opinion was entitled to controlling or significant weight. On

March 3, 1997, Dr. Nagel opined that Poland retained the RFC to

engage in sedentary work, as she can lift 10 pounds occasionally

and 5 pounds frequently.9 He estimated that Poland could work 4

to 6 hours per day, 3 to 5 days per week. Tr. at 286. The ALJ

rejected Dr. Nagel's determination of Poland's RFC because

neither Dr. Nagel's notes nor NP Goodrich's notes support those

limitations. Tr. at 44.

8 Because this remand is pursuant to sentence six of

(g), I will not enter a final judgment in this case until the Commissioner files any additional findings of fact or a modified decision. See id.; Melkonvan v. Sullivan,

(1991) .

9 According to the SSA, sedentary work involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools;" occasional "walking and standing;" and frequent "sitting."

(a).

- 15 - An ALJ must give controlling weight to the medical opinion

of a treating physician where the opinion 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).

When a treating physician's medical opinion is not entitled to

controlling weight, the ALJ must still determine the appropriate

weight to give to the opinion by evaluating certain factors. See

The ALJ must consider: (i) the length of the treatment

relationship and the frequency of examination; (ii) the nature

and extent of the treatment relationship; (iii) whether and to

what extent the opinion is supported by medical signs and

laboratory findings; (iv) whether the opinion is consistent with

other evidence in the record; (v) whether the physician's opinion

concerns medical issues related to his area of specialty; and

(vi) any other factors which support or contradict the opinion.

§ 404.1527(d)(2)-(d)(6).

Dr. Nagel's opinion concerning Poland's RFC, however, is not

a medical opinion; rather it is an opinion on an issue reserved

to the Commissioner. See id. § 404.1527(e); SSR 96-5p,

, at *2 (1996). Therefore, Dr. Nagel's opinion is not

- 16 - entitled to "controlling weight or special significance."

SSR 96-5p,

, at *2; see

(e) (3).

The ALJ, however, was still required to consider the applicable

factors in

(d) when he evaluated Dr. Nagel's

opinion concerning Poland's RFC. See SSR 96-5p,

,

at *3 .

I conclude that the ALJ properly weighed the applicable

factors, although he did not explicitly address each one in his

decision. The ALJ determined that Dr. Nagel's opinion regarding

Poland's RFC was not supported by his medical notes or the

medical notes of other treating sources. Tr. at 44. This

conclusion is supported by substantial evidence in the record.10

10 Dr. Nagel fails to provide objective findings in his notes which could support his determination of Poland's RFC. Dr. Nagel's notes do reveal that Poland's range of motion is limited due to her neck and back pain. Her functional limitations, however, are not severe enough to support an RFC for part-time, sedentary work. For example, when Dr. Nagel first examined Poland in February 1995, he found that she had full range of motion in her neck, shoulder, elbow, and wrists. Tr. at 207. Poland, however, exhibited moderate restriction in forward flexion.

In addition in April 1997, Dr. Nagel assessed Poland's cervical and lumbar range of motion to determine her level of impairment according to the AMA Guide to the Evaluation of Permanent Impairment. He determined that she suffered only minor impairments of both her cervical and lumbar spine.

.

- 17 - In addition. Dr. Nagel's opinion was not consistent with the RFC

determinations of the state agency medical consultants. Dr.

Campbell and Dr. Nault determined that Poland retained the RFC to

perform light work with the additional limitations that she

should avoid rapid, repetitive movements with her hands and

fingers and repetitive bending and lifting. Tr. at 118, 126.

For the foregoing reasons, I find that the ALJ's decision to

reject Dr. Nagel's opinion was supported by substantial evidence

in the record.

B . The ALJ's Evaluation of Poland's Subnective Complaints of _____ Pain

_____ Poland argues that the ALJ failed to properly evaluate her

subjective complaints of pain. Specifically, she contends that

the ALJ did not properly analyze the Avery factors before he

determined that her subjective complaints of pain were not

credible. Poland alleges that she suffers neck and lower back

pain when she exerts herself and when she is just sitting or

standing for more than one half-hour at a time, and that the pain

ranges in severity depending on the circumstances.

1. Standards Governing an ALJ's Credibility Determination

The SSA regulations require that the ALJ consider a

- 18 - claimant's symptoms, including complaints of pain, when he is

determining whether a claimant is disabled. See

(a).11 The ALJ must evaluate the intensity, persistence,

and functionally limiting effects of the claimant's symptoms so

that the ALJ can determine how the claimant's symptoms limit his

or her capacity for work. See

§ 404.1529(c) (1); SSR 96-7p,

, at *1 (1996). The ALJ must consider all of the

available evidence, including the claimant's medical history, the

medical signs and laboratory findings, the claimant's prior work

record, and statements from the claimant, the claimant's treating

or examining physician or psychologist, or other persons about

how the claimant's symptoms affect her.

(c) (1)- (3) .

11 An ALJ must apply a two-step analysis to evaluate a claimant's subjective complaints of pain. First, the ALJ must determine whether the claimant suffers from a medically determinable impairment that can reasonably be expected to produce the pain and other symptoms alleged. See

(b); Da Rosa v. Sec'v of Health and Human Servs.,

(1st Cir. 1986) (per curiam). Then, if such an impairment exists, the ALJ must evaluate the intensity and persistence of the claimant's symptoms. See

(c). The ALJ made a specific finding regarding the first step of the analysis. He determined that Poland suffered from "neck, low back and wrist injuries ... [that] cause some pain and discomfort." Tr. at 42. Therefore, I focus on the second step of the analysis.

- 19 - _____ The Commissioner recognizes that symptoms such as pain may

suggest a more severe impairment "than can be shown by objective

medical evidence alone."

§ 404.1529(c)(3). Accordingly, the

ALJ must evaluate the claimant's complaints of pain in light of

the following factors: (1) the claimant's daily activities; (2)

the location, duration, frequency, and intensity of the

claimant's pain; (3) precipitating and aggravating factors; (4)

the type, dosage, effectiveness, and side effects of any

medication that the claimant takes or has taken to alleviate his

pain; (5) treatment, other than medication, the claimant receives

or has received for relief of his pain; (6) any measures the

claimant uses or has used to relieve pain; and (7) other factors

concerning the claimant's limitations and restrictions due to

pain. See id. § 404.1529(c)(3)(i)-(vii); see also Avery v . Sec'v

of Health & Human Servs.,

(1st Cir. 1986).

These factors are sometimes called the "Avery factors." In

addition to considering these factors, the ALJ is entitled to

observe the claimant, evaluate his demeanor, and consider how the

claimant's testimony fits with the rest of the evidence. See

Frustaqlia v. Sec'v of Health & Human Servs.,

(1st Cir. 1987) (per curiam).

- 20 - _____ In assessing the credibility of a claimant's subjective

complaints of pain, the ALJ must consider whether these

complaints are consistent with the objective medical evidence and

other evidence in the record. See

(a).

While a claimant's complaints of pain must be consistent with the

medical evidence to be credited, they need not be precisely

corroborated with such evidence. See Dupuis v. Sec'v of Health &

Human Servs.,

(1st Cir. 1989) (per curiam).

The ALJ in making a credibility determination must also make

specific findings as to the relevant evidence he considered in

deciding whether to believe a claimant's subjective complaints.

Da Rosa,

.

2. The ALJ's Assessment of Poland's Subjective Complaints of Pain

Contrary to Poland's argument, the ALJ properly analyzed the

Avery factors, and he made sufficient findings as to the relevant

evidence he considered in deciding not to credit her subjective

complaints of pain. The ALJ heard considerable testimony

regarding these factors at the hearing on January 27, 1998. Tr.

at 84-100. He considered the evidence concerning the nature,

frequency, and intensity of Poland's pain when he determined that

- 21 - "she does not have a condition which involves constant

intractable pain or other marked functional restrictions." Tr.

at 45. Substantial evidence exists in the record to support his

conclusion that Poland suffers from some pain, but that her pain

does not preclude her from performing all work. Poland testified

that her neck pain was severe enough to make her lie down only

twice a month. Tr. at 91. In addition, she could sit for 45

minutes and stand for up to an hour without any back pain.

. Furthermore, during Dr. Nagel's most recent examination

of Poland on February 9, 1999, he noted that "[r]ight now she

does feel better and her pain has quieted down." Tr. at 291.

The ALJ also made specific findings about Poland's daily

activities. Tr. at 45. Poland stated that she cooks, does light

housework, shops for groceries, cares for her basic needs, and

reads books, newspapers, and periodicals.

. She

also drives on a regular basis and visits with her grandchildren

twice a week.

. Thus, there is substantial evidence in

the record to support the ALJ's determination that because Poland

is able to engage in some daily activities, she would still be

able to engage in light work. See Roe v. Chater,

(8th Cir. 1996) ("More telling than a chronicle of [the

- 22 - claimant's] various ailments are his actual activities, which are

incongruous with his contention that he cannot work.")

In addition, the ALJ noted that Poland takes Tylenol, Somex

and Aspirin for pain relief. Tr. at 45. Poland, however, told

Dr. Nagel on November 10, 1998 that she is "not a pill taker" and

that she has been taking stronger medication only when her

symptoms worsened. Tr. at 289. Her treating nurse practitioner,

however, stated on September 18, 1997, that Poland was on no

chronic medications except for Advil. Tr. at 281. Based on this

evidence, the ALJ could find that Poland's limited use of

stronger medications suggests that her pain is not as severe as

she alleges. C f . Albors v. Sec'v of Health & Human Servs.,

(1st Cir. 1986) (per curiam) (holding that the fact

that a claimant takes no medication stronger than aspirin

supports the ALJ's discrediting of the claimant's assertions of

disabling pain).

Lastly, although the ALJ did not explicitly discuss the

"other treatment" factor, the evidence in the record supports the

proposition that physical therapy helps to alleviate Poland's

pain. On February 9, 1999, Poland told Dr. Nagel that she was

making "slow but steady gains" at physical therapy and that

- 23 - "therapy does seem to help." Tr. at 291. In addition, following

an earlier course of physical therapy, Poland's physical

therapist remarked that her progress was excellent and that her

cervical range of motion increased from 50% to 75%.

.

The fact that physical therapy can alleviate Poland's pain

suggests that her symptoms are not so debilitating as to prevent

her from engaging in all types of work.

For the foregoing reasons, I find that the ALJ's analysis of

the Avery factors was proper and that substantial evidence exists

to support his conclusion that Poland's pain is not severe enough

to preclude her from engaging in all work. Therefore, I conclude

that the ALJ's determination that Poland's subjective complaints

of pain were not entirely credible is supported by substantial

evidence and thus entitled to deference.

C. The ALJ's Reliance on Vocational Expert Testimony

_____ Lastly, Poland argues that the ALJ improperly relied on the

testimony of the VE because the hypothetical question the ALJ

posed to the VE did not fully reflect her functional limitations.

For the following reasons, I disagree.

Once a claimant proves that he is incapable of returning to

his prior jobs, the burden shifts to the Commissioner to come

- 24 - forward with evidence of specific jobs in the national economy

that the claimant is capable of performing. See Arocho v . Sec'v

of Health & Human Servs.,

(1st Cir. 1982);

(f). The Commissioner can meet his burden of

proof on this issue by relying on the testimony of a V E . See

Arocho,

; see also Berrios Lopez v. Sec'v of

Health & Human Servs.,

(1st Cir. 1991) (per

curiam).

In order to rely on the V E 1s testimony, however, the ALJ

must pose to the VE a hypothetical question that accurately

reflects the claimant's functional limitations. See Berrios

Lopez,

. That is, the ALJ may credit the VE's

response only if there is "substantial evidence in the record to

support the description of [the] claimant's impairments given in

the ALJ's hypothetical." Id.; see Arocho,

.

In this case, the ALJ's hypothetical question to the VE

included the following limitations: she is limited to lifting and

carrying no more than 20 pounds maximum; she can not use her

hands for rapid, repetitive activities; and she can not

repetitively bend, particularly at the waist, nor repetitively

lift items off the floor to put them onto a table or workbench.

- 25 - Tr. at 103-04. The VE found that an individual with those

functional limitations could perform a number of jobs including:

retail sales, teacher's aide, receptionist/information giver, and

security guard. Id. at 105-06.

Poland argues that the ALJ cannot rely on the testimony of

the VE because the ALJ failed to include the limitations that

Poland can only lift 10 pounds occasionally and 5 pounds

frequently, that she can only engage in sedentary work for 4

hours, three to five times a week, and that she can sit no more

than one half-hour at a time. These limitations embody the

limitations listed in Dr. Nagel's determination of Poland's RFC.

T r . at 110.

Poland's argument lacks merit because the ALJ discredited

these limitations when he rejected Dr. Nagel's opinion concerning

Poland's RFC. I determined earlier that the ALJ's decision to

reject Dr. Nagel's opinion is supported by substantial evidence

in the record. Therefore, because the ALJ was entitled to

discredit these limitations, he was not required to include them

in his hypothetical to the V E .

Moreover, the functional limitations the ALJ included in his

hypothetical are supported by substantial evidence. Those

- 26 - limitations are consistent with the RFC determinations of Dr.

Campbell and Dr. Nault, the state agency medical consultants, and

with Physician Assistant Patrick McCarthy's determination that

Poland could engage in light-duty work. Tr. at 118, 126, 166.

Because substantial evidence in the record supported the

description of Poland's functional limitations, I conclude that

the ALJ properly credited the VE's response to the hypothetical.

D. The ALJ's Failure to Develop the Record

Notwithstanding the fact that I conclude that Poland's

arguments lack merit, I find that the ALJ breached his duty to

develop a full and fair record from which to make a reasonable

determination regarding Poland's disability. See Heqqartv,

; Currier v. S e c ' v of Health, Educ. & Welfare,

(1st Cir. 1980). The ALJ failed to obtain a copy

of Poland's December 1996 Physical Capacity Evaluation ("PCE") ,12

The PCE could have impacted the ALJ's decision regarding Poland's

disability because the PCE determined that Poland retained the

RFC to perform only sedentary work.

12 The ALJ knew that the PCE existed at the time he rendered his second decision, as he stated that "Dr. Nagel notes that [Poland] had a physical capacity assessment with indicated a sedentary part time work capacity." Tr. at 43.

- 27 - In addition, the ALJ's duty to develop the record was

enhanced in this case because the PCE was necessary to fill a gap

in the record and the ALJ could easily obtain a copy of it. See

Heqqartv,

; Currier,

. The PCE

fills a gap in the record because it is the only physical

capacity assessment which contradicts the RFC determinations of

the state medical consultants. The PCE indicates that Poland has

a sedentary work capacity, whereas Dr. Campbell and Dr. Nault

concluded that Poland retains the RFC to engage in light work.

Tr. at 43, 119-26. This distinction is crucial because the SSA

considers light work to be more strenuous than sedentary work.

See

(a)- (b).

Because I find that the PCE could have impacted the ALJ's

decision, I direct the ALJ, pursuant to

(g), to

obtain a copy of the PCE and any other medical records relating

to the PCE. See

(g) (The district court "may at

any time order additional evidence to be taken before the

Commissioner ..., but only upon a showing that there is new

evidence which is material and that there is good cause for the

failure to incorporate such evidence into the record in a prior

proceeding."). As I discuss below, this evidence satisfies the

- 28 - three requirements of Section 405(g)-- newness, materiality, and

good cause-- that must be met before a district court may remand

a case to the Commissioner to obtain additional evidence. See

id.; Evangelista v. Sec'v of Health & Human Servs.,

(1st Cir. 1987) .

Evidence is new if it is non-cumulative and has not been

previously presented to the ALJ. Evangelista,

. Evidence is material if its inclusion in the record is

necessary to develop the facts of the case fully and to afford

the claimant a fair hearing.

Determining whether evidence

is material also requires a showing of prejudice; a showing that

if the ALJ had considered the proposed evidence, his decision

might reasonably have been different. See Faria v. Comm'r of

Soc. Sec.,

, No. 97-2421,

, at **1

(1st Cir. 1998) (per curiam) (table, text available on Westlaw);

Evangelista,

. Finally, the good cause

requirement is satisfied when the ALJ fails to adequately develop

the administrative record. See Heggartv,

;

Carrillo Marin v. Sec'v of Health & Human Servs.,

(1st Cir. 1985).

The PCE constitutes new evidence because it is non-

- 29 - cumulative: it is the only physical capacity assessment that

contradicts the RFC determinations of the state medical

consultants. Furthermore, the PCE was not previously presented

to the ALJ; it was presented for the first time to this Court.13

The PCE is also material. The PCE is necessary to fully

develop the facts of this case because the findings of the PCE

contradict the RFC determinations of the state medical

consultants, which the ALJ relied upon. See Evangelista,

. In addition, because the ALJ must consider all

allegations of physical restrictions when determining a

claimant's RFC, the PCE is essential to a fair hearing. See id.;

see also SSR 96-8p,

, at *5 (1996) (emphasizing

that the ALJ, when determining a claimant's RFC, must "consider

all allegations of physical and mental limitations or

restrictions and make every reasonable effort to ensure that the

file contains sufficient evidence to assess RFC").

Furthermore, if the ALJ had considered the PCE, his decision

13 The record contains a reference which suggests that the PCE may have been presented to the Appeals Council following the ALJ's second decision. Tr. at 12. The fact that the PCE was not made part of the administrative record, however, leaves open the possibility that the Appeals Council never received a copy of the PCE .

- 30 - might reasonably have been different. See Evangelista,

. The ALJ stated that Dr. Nagel's opinion regarding

Poland's limitations was not supported by medical notes in the

record. Tr. at 44. The ALJ, however, did not consider the PCE,

which provided support for Dr. Nagel's opinion as to Poland's

RFC.

In addition, the PCE is based on Poland's actual maximum

lifting ability, determined through graduated increases in

weight. See Physical Capacity Evaluation and Summary, Doc. No.

6. In contrast, the state medical consultants determined

Poland's RFC based solely on a review of her medical records.14

Thus, if the ALJ had evaluated the PCE he might have chosen to

adopt the findings of the PCE instead of the RFC determination of

the state medical consultants because the PCE included actual

physical testing. If the ALJ adopted the findings of the PCE in

14 The Commissioner argues that I should not remand this case for consideration of the PCE because the PCE was not conducted by an acceptable medical source. See

(a). The PCE, however, would be considered "[i]nformation from other sources [that] may also help [the Commissioner] to understand how [a claimant's] impairment affects [her] ability to work."

§ 404.1513(e). Because information from other sources is also considered medical evidence that the ALJ must consider, I reject the Commissioner's argument. See id. §§ 404.1512, 404.1513.

- 31 - his RFC determination, he consequently would need to conclude

that Poland retained the RFC to perform sedentary work, but not

light work.15 Therefore, I find that the ALJ's decision might

reasonably have been different if he had considered the PCE. See

Evangelista,

.

Lastly, I find that the ALJ's failure to obtain material

medical records that he knew existed constitutes good cause for

remand pursuant to

(g). See Carrillo Marin,

(holding that the ALJ's failure "to develop an

adequate record from which a reasonable conclusion can be drawn"

constitutes good cause for remand pursuant to § 40 5 (g)); see

also Heggartv,

.

For the foregoing reasons, remand is appropriate to permit

the ALJ to properly develop the administrative record. The ALJ

should obtain a copy of the PCE and any medical records relating

to the PCE. The ALJ should then consider the limitations

presented in the PCE and determine whether to credit those

limitations when determining Poland's RFC.

15 If the ALJ on remand were to conclude that Poland retained the RFC to perform only sedentary work, he would also need to assess anew whether Poland could still perform jobs that exist in the national economy.

- 32 - IV. CONCLUSION

Poland is not entitled to an award of benefits. I find,

however, that the ALJ failed to fully develop the administrative

record. Therefore, remand pursuant to sentence six of

(g) is appropriate to permit the ALJ to take additional

evidence. Thus, I remand this case to the Commissioner for

further proceedings consistent with this Memorandum and Order.

See Melkonvan v. Sullivan,

(1991). Following the

necessary administrative proceedings, the Commissioner should

file with the Court any additional findings of fact or modified

decision, at which time the Court will enter a final judgment.

(g); see Melkonvan,

.

SO ORDERED.

Paul Barbadoro Chief Judge

August 2, 2001

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

- 33 -