Ramos v. SSA CV-01-197-JD 04/30/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Marino Ramos

v. Civil No. 01-197-JD Opinion No.

Jo Anne B. Barnhart, Commissioner, Social Security Administration

O R D E R

The plaintiff, Marino Ramos, brings this action pursuant to

(g) seeking judicial review of the decision by

the Commissioner of the Social Security Administration, denying

his application for social security benefits under Title II of

the Social Security Act. Ramos contends that the Administrative

Law Judge ("ALJ") erred in finding that he could perform his past

work of electronics assembly, that his mental impairment was not

severe, and that his description of his limitations was not

entirely credible. The Commissioner moves to affirm the

decision.

Background

Marino Ramos applied for disability insurance benefits on

March 25, 1998, alleging a disability since December 19, 1997,

due to pain in his entire body, particularly the knees, ankles,

left arm, and low back, and a loss of feeling in his hands and feet. He was thirty-seven years old when he filed his

application. His past relevant work included factory assembly

work and inspection.

Ramos injured his left knee and ankle in an automobile

accident in 1980. The injuries required multiple reconstructive

surgeries, and Ramos continued to have various musculoskeletal

complaints thereafter. He received disability benefits

temporarily after the accident.

On March 5, 1998, Ramos reported to Dr. John B. Haggarty, a

family practitioner, that he had back and shoulder pain that

often radiated between the shoulder and elbow, occasional

numbness at the tips of his second and third fingers on his left

hand, and ankle swelling after being on his feet. Dr. Haggarty

found a normal range of motion and normal limits in testing

except tenderness and limited flexion in the L4-5 area and

decreased range of motion in the left ankle. X-rays showed

defects consistent with vertical intervertebral disc herniations,

disc space loss at L4-5 and L5-S1. Dr. Haggarty diagnosed

obesity, low back pain possibly caused by a fall, status post

knee and ankle surgeries, a possible rotator cuff problem, and

possible tissue inflamation in the left upper arm. At subsequent

visits through May, Ramos complained of pain in his left forearm,

intermittent right knee pain, diffuse low back pain, pain in his

2 left thumb and elbow, diffuse muscle pain, and foot and hand

numbness.

Ramos saw Dr. George W. Monlux, a physical medicine

specialist, on June 1, 1998. Dr. Monlux found that Ramos's pain

diagram was "very bizarre." He diagnosed impingement syndrome in

the left shoulder, possible C5-6 cervical radiculopathy,

degenerative joint disease in the left knee and ankle, and

chronic pain syndrome. He recommended medication for depression

and pain and physical therapy for the left shoulder and neck.

After other tests and examinations. Dr. Monlux commented on

August 17, 1998, that Ramos was a complex pain patient with a

somatization profile and that he suspected underlying psychiatric

problems because of the extremely bizarre pain diagram.1 Dr.

Monlux referred Ramos to Dr. Edmund B. Rowland, a hand surgeon,

due to possible carpal tunnel syndrome.

Dr. Rowland saw Ramos on September 16, 1998. He found that

Ramos had bizarre symptoms that were "all over the board, not

consistent with carpal tunnel syndrome." Tests confirmed a lack

of carpal tunnel syndrome. On October 5, 1998, Dr. Monlux stated

that there was nothing more he could do for Ramos and that there

1A somatoform disorder involves symptoms that suggest a physical origin but do not have demonstrated organic causes. See Random House Dictionary of the English Language 1818 (2d ed. 1987) .

3 was a psychiatric aspect to his complaints.

Dr. Hoke Shirley, a rheumatologist, saw Ramos on October 12,

1998, because of Ramos's complaints of joint pain. He diagnosed

post-traumatic osteoarthrosis (noninflammatory degenerative joint

disease) of the left knee and ankle. He found no cause for

Ramos's symptoms in his arms. An MRI test showed disc

herniations at C5-6 and C6-7.

Ramos next was referred to Dr. Ronald B. Resnick, a foot and

ankle surgeon, who examined him on November 2, 1998. He

diagnosed left ankle arthrosis and had Ramos wear an ankle-foot

orthosis which simulated ankle fusion. Dr. Resnick referred

Ramos to Dr. Stephen J. Fox, a reconstructive knee surgeon, who

found Ramos's osteoarthritis to be mild, making him not a

candidate for surgery. On December 14, 1998, Dr. Resnick noted

that Ramos had multiple complaints, and he added a heel lift to

the orthosis.

A week later Dr. Monlux reported that Ramos complained of

heel pain due to the lift and noted that Ramos's affect and focus

were suggestive of somatoform syndrome. He recommended that

Ramos attend a pain clinic. Ramos saw Dr. Shirley on January 14,

1999, who noted that Ramos was doing better with anti­

inflammatory medication. On January 26, 1999, Dr. Resnick

removed the heel lift because of Ramos's complaints.

4 On March 22, 1999, Dr. Monlux noted that Ramos's underlying

somatoform disorder made it difficult to treat him and that Ramos

was attending a pain management program. Ramos complained of

searing pain in his right knee and said he had had a dramatic

improvement in his range of motion in his left shoulder after

steroid injections. Dr. Monlux referred Ramos to Dr. Andree

Claire Phillips for an evaluation of musculoskeletal pain. Dr.

Phillips found Ramos's case to be extremely complicated due to

the osteoarthritis in his left knee and ankle along with chronic

pain syndrome and somatoform disorder.

Ramos was seen by Dr. Fox in May of 1999 for knee pain. Dr.

Fox then did a left knee arthroscopy procedure in July. Dr. Fox

reported improvement in the medial compartment. He did not feel

further surgery was required. He noted that Ramos seemed more

concerned with his back.

David Krueger-Andes, Ed.D., did an initial psychosocial

assessment of Ramos for purposes of pain management. He found

that Ramos had both psychological and medical conditions

associated with his pain. He diagnosed chronic pain syndrome and

depression disorder with dependent personality traits.

Subsequent medical records indicate that Ramos's doctors

suggested that he needed to focus on his self-care, should

increase physical activity, and needed a practitioner to direct

5 his care.2

Ramos had a hearing before an ALJ on July 1, 1999. Ramos

appeared at the hearing with a representative. Ramos testified

about his limitations, his daily activities, and his past work.

A vocational expert testified in response to two hypothetical

questions posed by the ALJ. The ALJ described an individual of

Ramos's age, education, and experience, who could lift twenty

pounds occasionally and ten pounds frequently but could not do

repetitive reaching at the shoulder level or above with his left

arm and could not do prolonged standing or walking. The

vocational expert responded that he could do his prior work in

electronics assembly, testing, and inspecting. The vocational

expert also found that he could do other work in cashier

positions, security positions, truck driving, other types of

assembly positions, and manufacturing inspector and checker work.

The ALJ had Ramos evaluated by Francis Warman, Ph.D., a

clinical psychologist. Dr. Warman met with Ramos on August 16,

1999. He concluded that Ramos did not meet all of the criteria

of a somatization disorder but that he had chronic pain syndrome

with both physical and psychological bases.

2The remaining medical evidence summarized in the joint factual statement was not submitted to the ALJ. Ramos has not suggested that it is the type of evidence that should be reviewed here. See Mills v. Apfel,

(1st Cir. 2001) .

6 The ALJ issued his decision on October 29, 1999. He found

that Ramos had severe chronic pain syndrome, including pain in

his left knee, ankle, and arm. He found that Ramos's

descriptions of his disabling symptoms were not entirely credible

due to "the minimal findings of objective lesions to account for

the subjective complaints, and the possibility that the claimant

is magnifying his symptoms for secondary gain or as a result of

some non-severe somatoform disorder." Rec. at 20. He also found

that Ramos had a residual functional capacity to lift up to

twenty pounds occasionally and ten pounds frequently, that he

could not stand or walk for prolonged periods, and could not make

repetitive use of his left arm at or above shoulder level. He

concluded that Ramos was capable of doing his previous work of

electronic assembly and was not disabled. When the Appeals

Council denied review, the decision of the ALJ became the final

decision of the Commissioner.

Standard of Review

The court must uphold a final decision of the Commissioner

denying benefits unless the decision is based on legal or factual

error. Manso-Pizarro v. Sec'v of Health & Human Servs.,

(1st Cir. 1996) (citing Sullivan v. Hudson,

(1989)). The Commissioner's factual findings are conclusive

7 if based on substantial evidence in the record. See § 4 0 5 (g).

Substantial evidence is "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion."

Richardson v. Perales,

(1971) (quotation

omitted). In making the disability determination, "[i]t is the

responsibility of the [Commissioner] to determine issues of

credibility and to draw inferences from the record evidence."

Irlanda Ortiz v. Secretary of Health and Human Servs.,

(1st Cir. 1991) .

Discussion

Ramos's application was denied at step four of the

sequential evaluation process set forth in

.

At the fourth step, a claimant bears the burden of showing that

he is no longer able to perform his previous work because of his

impairments. See Freeman v. Barnhart,

(1st

Cir. 2001); Manso-Pizarro v. Sec, of Health & Human Servs.,

(1st Cir. 1996). The ALJ must determine whether the

claimant's impairment prevents him from performing his past work

based on the claimant's residual functional capacity and the

demands of the claimant's past work. See §404.1520(e);

(a); see also Santiago v. Sec'v of Health & Human

Servs.,

(1st Cir. 1991) .

8 Ramos contends that the ALJ erred in determining at step two

of the sequential analysis that he did not have a severe mental

impairment due to a somatoform disorder. Ramos also challenges

the ALJ's finding that his complaints of pain were not entirely

credible and that he is capable of doing his past relevant work

of electronics assembly. The Commissioner supports the ALJ's

findings and moves to affirm the decision.

A. Severe Mental Impairment

At the second step of the sequential evaluation process, the

ALJ must determine whether the claimant has a severe impairment,

meaning an impairment or a combination of impairments that

significantly limits his ability to do work activities.

(c). The ALJ found that Ramos had severe

chronic pain syndrome which affected his left knee, ankle, and

arm. He also found that Ramos's "borderline somatoform symptoms"

did not cause a significant additional limitation on his ability

to function, and therefore, were not severe. Ramos argues that

the medical evidence shows that he has a somatoform disorder that

is severe, either alone or in combination with his other

impairments.

Dr. Warman, a clinical psychologist, evaluated Ramos and

concluded that Ramos did not meet all the criteria of a

9 somatoform disorder. Ramos does not dispute that Dr. Warman was

qualified to diagnose his mental impairments. See

(d). Although Dr. Monlux, a physical medicine

specialist, suspected a somatoform disorder because of Ramos's

bizarre pain symptoms, he was not qualified to diagnose a mental

impairment, and his opinion is entitled to less weight. Seei d .

The ALJ appropriately credited Dr. Warman's opinion that

Ramos did not have a somatoform disorder. Therefore, the record

supports the ALJ's conclusion that Ramos did not have a severe

limitation caused by a somatoform disorder either alone or in

combination with his other impairments.

B. Credibility

An ALJ is required to consider a claimant's allegations

about his own impairments, including pain, in making a disability

determination. See

(a). The ALJ must first

determine whether the claimant has a "medically determinable

impairment that could reasonably be expected to produce the

claimant's symptoms, such as pain."

(b). A

claimant's "complaints of pain need not be precisely corroborated

by objective findings, but they must be consistent with medical

findings." Dupuis v. Sec'v of Health & Human Servs.,

(1st Cir. 1989). If so, the ALJ must then evaluate the

10 intensity, persistence, and limiting effects of the symptoms,

considering the claimant's objective medical evidence along with

other evidence, to determine whether the symptoms limit the

claimant's capacity for work. See § 404.1529(c).

"The credibility determination by the ALJ, who observed the

claimant, evaluated the demeanor, and considered how that

testimony fit in with the rest of the evidence, is entitled to

deference, especially when supported by specific findings."

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

(1st Cir. 1987). Ordinarily, the ALJ's findings are conclusive

when supported with substantial evidence. See Nquven v. Chater,

172 F .3d 31, 35 (1st Cir. 1999).

The ALJ considered the medical evidence, particularly noting

Ramos's automobile accident and subsequent treatment for a

variety of symptoms. He noted that Ramos's treating physician.

Dr. Haggarty, had concluded that he suffered from "diffuse

myalgias" after diagnostic imaging did not show any spinal or

joint lesions that would cause his alleged symptoms. The ALJ

also noted that "[vjarious consulting physicians have been at a

loss to find a definitive diagnosis for Mr. Ramos' multiple

complaints."

Indeed, Ramos's medical record is replete with reports by

his physicians that his alleged symptoms were not related to his

11 physical condition. For example. Dr. Monlux noted that Ramos's

pain diagram was "very bizarre," and Dr. Rowland found that Ramos

thought his hand problem was much more significant than his

condition suggested and noted symptoms that were "all over the

board" and bizarre. Dr. Shirley found no medical causes for

Ramos's pain other than in his knee and ankle, and Dr. Phillips

found Ramos's case to be extremely complicated because of his

allegations of pain that did not fit his diagnosis.

Therefore, Ramos did not show that he suffers from a

medically determinable impairment that could reasonably be

expected to cause all of his alleged symptoms. The ALJ

appropriately credited the symptoms associated with his diagnosed

chronic pain syndrome in his left knee, ankle, and arm.

C. Ability to Do Prior Work

The ALJ determined that Ramos retained the ability to lift

and carry up to twenty pounds occasionally and ten pounds

frequently, except that he could not do work requiring prolonged

standing or walking or repetitive use of his left arm above the

shoulder. Based upon the vocational expert's testimony, the ALJ

found that Ramos could do his prior work in electronics assembly.

Ramos contests that finding on a variety of grounds.

12 1. The residual functional capacity assessment.

Ramos argues that the ALJ's residual functional capacity

assessment, which was the basis for his hypothetical question to

the vocational expert, improperly included only a limitation on

repetitive use of his left arm at or above shoulder level. He

states that the assessment done by Dr. Nault, the state agency

doctor, precluded reaching in all directions.

The page of the record cited by Ramos in support of that

finding, however, does not address Ramos's ability to reach at

all. On another page. Dr. Nault indicates that Ramos's ability

to reach is limited in that he should avoid repetitive overhead

reaching with his left arm. Dr. Nault reiterated his finding

that Ramos should avoid repetitive overhead reaching with his

left arm later in his report, but did not indicate that Ramos was

limited from all reaching. Therefore, the record does not

support Ramos's version of Dr. Nault's assessment.

2. The state agency determination.

Ramos contends that the ALJ's decision that he could return

to his prior work is in error because the state agency previously

found that he could not do any of his prior work. The ALJ based

his determination on the vocational expert's opinion. At the

hearing, the ALJ posed a hypothetical that accurately described

13 Ramos's functional capacity and limitations. The vocational

expert responded that Ramos could do his past work in electronics

assembly and inspection. As long as the vocational expert's

opinion is based upon an accurate assessment of the claimant's

abilities, her opinion constitutes relevant evidence. See Arocho

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

(1st Cir.

1982). The ALJ is entitled to resolve conflicts in the evidence.

See Irlanda Ortiz,

.

3. Prior work.

The ALJ found that Ramos's limitations did not prevent him

from returning to his past relevant work as an electronics

assembler. Ramos argues in a footnote that his prior work as an

electronics assembler was an unsuccessful work attempt and not

past relevant work. He also contends that his prior work in

electronics inspection and testing in 1983 and 1984 was not at

the light exertional level.

It appears that the vocational expert and the ALJ considered

Ramos's last job as an electronics assembler, which he held

between October and December of 1997, as past relevant work. To

be considered past relevant work, a job must have been

substantial gainful activity. See Vincent v. Apfel,

(8th Cir. 2001) . The primary consideration in

14 determining whether work was substantial gainful activity is the

claimant's earnings.

(a)(1). Earnings from

an unsuccessful work attempt, a job which the claimant is forced

to stop after a short time due to his impairment, are not

considered as constituting a substantial gainful activity. I d .;

see also Gatliff v. Comm'r of Soc. Sec. Admin.,

, 694

(9th Cir. 1999); Driskell v. Barnhart,

, 806-

07 (S.D. Iowa 2002) .

Apparently, Ramos held the electronics assembly job for less

than three months, which would suggest an unsuccessful work

attempt if he had been forced to stop due to his impairment. See

SSR 84-25. Ramos has not shown, however, that he was forced to

leave that job because of an impairment. Instead, he testified

that he was able to do the job and that he did not know anything

was wrong until he was fired. Despite the short duration of the

job, because Ramos has not shown that he was forced to leave due

to an impairment, he has not shown that the electronics assembly

job was not past relevant work.

The vocational expert also testified that Ramos could return

to his prior work as an electronics tester or inspector. Ramos

contends that the electronics inspector job that he held in 1983

and 1984, testing small transformers, required heavy lifting.

The referenced part of the record, however, shows that the tester

15 job only required him to carry weight up to five pounds. Ramos

did not designate any weight in the heaviest weight lifted

section of the form. Since the weights listed in that section

began with ten pounds, above the weight required five pounds

required in the job, his failure to indicate a weight does not

suggest that he intended to include all of the listed weights.

Therefore, the record does not support Ramos's argument that the

tester job required heavy lifting.

Conclusion

For the foregoing reasons, the claimant's motion to reverse

the decision of the Commissioner (document no. 8) is denied. The

Commissioner's motion to affirm (document no. 12) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

April 30, 2002

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

16