Christine Wilcox v . SSA CV-03-408-PB 07/28/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christine Wilcox

v. Civil N o . 03-408-PB Opinion N o .

Jo Anne Barnhart, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

On January 3 0 , 2002, Christine Wilcox filed an application

with the Social Security Administration (“SSA”) for disability

insurance benefits (“DIB”). In her application for DIB, Wilcox

alleged that she had been unable to work since December 2 0 , 2000.

The SSA denied her application and granted her request for a

hearing by an Administrative Law Judge (“ALJ”). On January 2 2 ,

2003, ALJ Frederick Harap held a hearing and in an opinion dated

April 2 3 , 2003, denied Wilcox’s request for DIB. Wilcox

appealed, but the Office of Hearings and Appeals denied her

request for review of the ALJ’s decision. At that point, the

decision of the ALJ became the final decision of the Commissioner

of Social Security (“Commissioner”). -2- Wilcox brings this action pursuant to

(g) of

the Social Security Act seeking review of the denial of her

application for benefits. She argues that the ALJ failed to

identify, inquire into, or resolve conflicts between the

vocational expert’s (“VE”) testimony and the listing in the

Dictionary of Occupational Titles (“DOT”), and that the ALJ

failed to properly consider the effect of her subjective

complaints of pain on her ability to work. For the reasons set

forth below, I conclude that the ALJ’s decision is supported by

substantial evidence. Therefore, I affirm the Commissioner’s

decision and deny Wilcox’s motion to reverse.

I. BACKGROUND1

A. Education and Work History

Christine Wilcox was 44 years old when her application for

DIB was denied by the ALJ in April 2003. She has an eighth grade

education and has worked as a factory machine operator, cashier,

dishwasher, and most recently as a factory operator and

1 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts (Doc. n o . 10) submitted by the parties.

-3- assembler.

B. Medical History

Wilcox performed hand assembly work and repetitive motion

assembly at her last job. Over time she developed pain and

numbness in her right hand along with tingling sensations in

several of her right fingers. Wilcox sought assistance from her

primary care physician, D r . Amy Schneider, who prescribed anti-

inflammatory medications and a number of different splints during

their meeting on November 2 0 , 2000. 2 After two more

appointments, and worsening pain and numbness, D r . Schneider gave

Wilcox a no-work note on December 2 0 , 2000. Physical therapy

proved to be unsuccessful and on January 9, 2001, Schneider

referred Wilcox to D r . Jeffrey Clingman, an orthopedic surgeon.

Dr. Clingman diagnosed Wilcox with right carpel tunnel syndrome

and on January 2 9 , 2001 performed right carpel tunnel release

surgery on Wilcox. After surgery, Wilcox returned to physical

2 D r . Schneider initially prescribed Ultram Tabs (50 Mg.)(centrally acting analgesic, generically known as Tramadol HCL) and Amitriptyline HCL Tabs (25 Mg.)(antidepressant/sedative) originally. In subsequent visits, she prescribed Ibuprofen Tabs (800 Mg.)(nonsteroidal anti-inflammatory) and Relafen Tabs (750 Mg.)(nonsteroidal anti-inflammatory, generically known as nabumetone). Dorland’s Illustrated Medical Dictionary, 1934, 6 3 , 903, 1219 (30th ed. 2003).

-4- therapy for a strengthening program but pain and numbness

continued despite her good progress in grip and pinch strength.

Dr. Clingman referred Wilcox to D r . Christopher Martino, a

neurologist, to undergo nerve conduction studies. D r . Martino

performed an EMG on May 1 1 , 2001, and found that Wilcox had a

mild compromise at the median nerve in her right hand and

diminished sensory functions. After an MRI on May 2 1 , 2001, D r .

Clingman concluded that Wilcox had an entrapped nerve and that

her options were to have a revision carpel tunnel release or to

do nothing. Wilcox decided against the re-release and consulted

Dr. Gary Woods, a hand specialist, for a second opinion. Dr.

Woods found the MRI to be consistent with continued nerve

entrapment and offered to re-explore the area, but Wilcox

declined.

On August 2 7 , 2002, Wilcox met again with D r . Clingman

complaining of carpel tunnel syndrome on the left side. Dr.

Clingman then referred Wilcox back to D r . Martino for further

nerve test studies. On October 1 6 , 2001, D r . Martino again

performed an EMG test and found evidence of a left-side medium

nerve compression at the wrist. Shortly after, on November 7 ,

2001, Wilcox met with D r . Arnold Miller for an independent

-5- medical evaluation. D r . Miller recommended that Wilcox be

retrained for light-duty work that did not require repetitive

motion with the right hand or wrist. Wilcox underwent left

carpel tunnel release surgery on December 3 , 2001. Wilcox was

again referred to occupational therapy following her surgery but

despite improved progress with grip strength, she continued to

have numbness in some of her fingers.

On April 1 and 2 , 2002, Wilcox participated in a Work

Capacity Evaluation that was supervised by occupational therapist

Joyce Sylvester. After assessing all 20 physical demands listed

in the DOT, Sylvester concluded that Wilcox was best suited for

sedentary work. Overall, Sylvester found that Wilcox had no

trouble sitting, standing, or walking, but that she should avoid

tasks that demand dexterity. Finally, Sylvester found that

Wilcox could perform tasks that involved brief periods of writing

and lifting, and that she would benefit from a 3-4 week

reconditioning program to build upper body strength and endurance

prior to starting a job.

By June, Wilcox had finished her therapy and on June 1 9 ,

2002, she returned to see D r . Miller for an independent medical

evaluation. D r . Miller concluded that Wilcox had a 9% impairment

-6- in both her upper right and left extremities (Tr. 2 3 5 ) . He

agreed with the recommendation of the occupational therapist

regarding work, saying that Wilcox needed to be in a light duty

job that would not require repetitive work with her hands.

C. Wilcox’s Testimony

At the January 2 2 , 2003 hearing, Wilcox testified that the

pain she experienced from both her left and right hands made it

more difficult to do chores around the house such as vacuuming,

washing dishes, dusting, doing laundry, cooking, dressing, and

showering (Tr. 24-25). Wilcox also testified that since she was

not employed, she would spend the rest of her day napping,

watching television, receiving visitors, or driving to visit

others (Tr. 27-28). When asked by her attorney if she had

difficulty concentrating, she replied “yes,” that her persistent

pain made it difficult for her to concentrate, having been “so

cooped up.” (Tr. 29.) Wilcox also responded “yes” when her

attorney asked her if she had trouble sleeping at night as a

result of her pain (Tr. 2 9 ) . Wilcox claimed that she would have

trouble sleeping as much as three times per month and, as a

result, some housework would take three to four times longer to

d o , while other housework would remain unfinished.

-7- Wilcox further testified that she took naps between 3-5 days

per week for an average of three hours (Tr. 3 3 ) . Lastly, Wilcox

testified that she believed she was incapable of holding any job

because of her constant pain. She also testified that the pain

medication she took dulled the pain but did not make it go away3

(Tr. 3 1 , 3 5 ) .

D. Testimony of VE

Howard Steinberg testified as a V E . The ALJ inquired of

Steinberg if a woman of Wilcox’s age, education, and work

experience, who had a functional capacity for sedentary work, but

had limited use of both upper extremities reaching in all

directions, handling, gross manipulation, fingering, fine

manipulation, and feeling, who needed to avoid working around

machinery and vibrating equipment, working at heights, and

frequent prolonged upper extremity grasping and lifting, could

perform any of her past relevant jobs (Tr. 38-39). Steinberg

responded that a person such as Wilcox would not be able to

perform any of her past jobs, but could work as a surveillance

3 At the time of the administrative hearing, Wilcox was taking 800 Mg. tablets of Ibuprofen and 30 Mg. tablets of Tylenol with Codeine (Tr. 3 1 ) .

-8- system monitor, of which 87,000 jobs existed in the national

economy and 280 could be found within the state (Tr. 3 9 ) . When

Wilcox’s attorney questioned Steinberg, he asked whether someone

who took naps 3-5 hours per day, 10 to 15 times per month could

perform the job of surveillance system monitor.

To this

question, Steinberg responded that with the further limitation

proposed by Wilcox’s attorney, one could not hold the job of

surveillance system monitor and that there existed no unskilled

jobs in the national economy that fit all of the functional

limitations posited (Tr. 4 2 ) . Steinberg also testified that if

someone lacked the ability to concentrate in addition to the

other limiting factors specified by the ALJ, the job of

surveillance system monitor would be “close to impossible.” (Tr.

43.)

E. The ALJ’s Decision

The ALJ followed the five-step sequential evaluation process

established by the SSA in rendering his decision of April 2 3 ,

2003. First, the ALJ found that Wilcox had not performed

substantial gainful work since December 2 0 , 2000, the date of the

alleged onset of her disability (Tr. 1 4 ) . At step two, the ALJ

determined that Wilcox’s impairment was severe within the meaning

-9- of the regulations. But, at step three, since Wilcox’s

impairment was “not severe enough to meet or medically equal one

of the impairments listed in Appendix 1 , Subpart P, Regulations

N o . 4,” the ALJ was required to continue the inquiry.

At

the fourth step of the sequential evaluation process, the ALJ

determined, based on Steinberg’s testimony, that Wilcox could not

return to any prior employment because her functional work

capacity was no longer light duty work, but sedentary (Tr. 1 6 ) .

Finally, at step five, the ALJ determined that other jobs exist

in significant numbers in the national economy that could

accommodate Wilcox’s residual functional capacity (“RFC”) and her

specific vocational limitations.

As evidence of Wilcox’s ability to work, the ALJ cited the

medical examinations of D r . Miller and the occupational

therapist, Joyce Sylvester. D r . Miller’s most recent exam

suggested that Wilcox had no swelling or discoloration in either

the right wrist or the left wrist (Tr. 1 5 ) . He also determined

that Wilcox was able to dorsiflex about 75 degrees and palmer

flex 70 degrees.

Although Wilcox had some decreased

sensation to a pinprick on some of her right fingers, there was

no pain or atrophy.

D r . Miller concluded that Wilcox could

-10- expect to have long-term problems and chronic pain in both

wrists, but that she could perform light duty work that did not

involve repetitive activities.

Sylvester‘s examination determined that Wilcox had the

ability to lift and carry 12 pounds with her left arm and 9

pounds with her right. Although Sylvester also found pain to be

a chronic problem for Wilcox, she stated that Wilcox still

maintained an RFC and that Wilcox could learn to manage her pain

through the use of rest, avoidance, and pacing.

The ALJ determined that despite Wilcox’s complaints of

chronic pain, her allegation that she could not perform any work

was not persuasive.

He found that Wilcox retained the

following RFC:

[A]n ability to lift and carry less than ten pounds on a regular and occasional basis. Further, the claimant can sit, stand and walk without limitation. M s . Wilcox can push and pull up to twenty pounds on an occasional basis. She should never crawl and she should avoid heights, ropes and scaffolding. The claimant’s ability to reach, handle and finger are limited as well to an occasional basis only. Finally, M s . Wilcox should avoid vibrating machinery and equipment and repetitive actions.

Accordingly, the ALJ concluded that Wilcox retained the

capacity for work that exists in substantial numbers in the

-11- national economy and that she did not qualify for a “disability”

as defined by the Social Security Act.

II. STANDARD OF REVIEW

Under the Social Security Act, the factual findings of the

ALJ are conclusive if supported by “substantial evidence.”

(g); see also Ortiz v . Sec’y of Health & Human

Servs.,

(1st Cir. 1991). 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.” Rodriguez v . Sec’y of Health & Human

Servs.,

1 8 , 222 (1st Cir. 1981). The ALJ’s decision is

therefore supported by substantial evidence i f , given all the

evidence, it is reasonable. It is also the function of the ALJ,

and not the courts, to determine issues of credibility, to draw

inferences from the record evidence, and to resolve conflicts in

the evidence. Ortiz,

.

The ALJ’s findings of fact are not conclusive, however,

“when derived by ignoring evidence, misapplying the law, or

judging matters entrusted to experts.” Nguyen v . Chater,

1 , 35 (1st Cir. 1999). If the Commissioner, through the

-12- ALJ, has misapplied the law or failed to provide a fair hearing,

deference to the Commissioner’s decision is not appropriate, and

remand for further development of the record may be necessary.

See Seavey v . Barnhart,

, 11 (1st Cir. 2001). I apply

these standards to the arguments Wilcox raises in her appeal.

III. ANALYSIS

Wilcox argues that the ALJ’s ruling failed to identify,

inquire into, or resolve differences between the VE’s testimony

and the definition in the DOT. Wilcox also argues the ALJ failed

to properly consider her subjective complaints of pain which

further restricted her RFC. For the reasons set forth below I

reject Wilcox’s claims and affirm the decision of the ALJ.

I. Duty to Inquire about Potential Variance

Wilcox does not dispute the ALJ’s objective determination of

her RFC, but rather points to a potential variance in the job

description of a surveillance system monitor as described by the

VE from the description of the job provided by the DOT. Wilcox

contends that the ALJ erred by not inquiring of the VE whether

the job description he provided was consistent with that in the

-13- DOT. The SSA has issued a policy interpretation ruling, which

requires the adjudicator to ask about any possible conflict

between the VE’s evidence and information provided in the DOT.

S.S.R. 00-4p,

at * 4 . The mere failure to ask

such a question, however, cannot require remand on its own.

Hogdson v . Barnhart, N o . 03-185-B-W,

, at *2 (D.

M e . June 2 4 , 2004). “Such an exercise would be an empty one if

the VE’s testimony were in fact consistent with the DOT.”

I

find this logic persuasive. The ALJ in this case asked what the

source of the VE’s testimony was concerning the job description

of surveillance system monitor, and the VE cited the DOT. Thus,

the ALJ would have no cause to believe a discrepancy existed

where the VE identified the source of his information as the DOT.

Moreover, I do not agree with Wilcox’s assertion that there

are discrepancies between the VE’s testimony and the DOT. First,

Wilcox asserts that the DOT identifies surveillance system

monitor as a “government service” job, which conflicts with the

VE’s testimony describing a private sector job. A more close

examination, however, reveals that the DOT’s industry designation

shows “in what industries the occupation was studied but does not

mean that it may not be found in others.” Dictionary of

-14- Occupational Titles, XXI (4th ed., rev. Vol. I 1991).

“Therefore, industry designations are to be regarded as

indicative of industrial location, but not necessarily

restrictive.”

Wilcox points to a second “difference” between the VE’s

testimony and the DOT. The VE did not specifically describe the

additional functions of adjusting monitor controls and pushing a

hold button to maintain surveillance where an incident is

developing, which are identified in the DOT job description.

These items, however, are not material. The VE testified that a

person with an RFC of sedentary and unskilled could perform the

job of surveillance system monitor with “limited use of hands.”

(Tr. 40.) This description conforms to Wilcox’s RFC as

identified by D r . Miller and Wilcox’s occupational therapist.

Where the ALJ found Wilcox to have the ability to reach, handle,

and finger somewhere between a limited and occasional basis, the

job of surveillance system monitor matches the ALJ’s

determination of Wilcox’s ability level. I am not persuaded

either that the VE neglected minor aspects of the job description

or that the alleged inconsistencies are material to the analysis.

-15- II. Credibility of Wilcox’s Complaints of Pain

I am also not persuaded by Wilcox’s second argument that the

ALJ failed to consider the effect of her subjective complaints of

pain on her ability to effectuate the job of surveillance system

monitor. In determining the credibility of a person’s

statements, an adjudicator must consider the entire record, which

includes the objective medical evidence, the individual’s

subjective statements about symptoms, information provided by

medical specialists, and any other relevant evidence in the

record. S.S.R. 96-7p,

at * 1 , see also Avery v .

Sec’y of Health & Human Servs.

(1st Cir. 1986). So

long as a credibility determination is supported by the evidence,

the ALJ’s determination is entitled to deference since he

observed the claimant, evaluated the claimant’s demeanor, and

considered how her testimony corresponded with the rest of the

evidence. Frustaglia v . Sec’y of Health & Human Servs.,

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

The ALJ did in fact consider Wilcox’s testimony concerning

her physical limitations and pain allegations. But despite her

claims of inability to perform any work because of her pain, the

ALJ found that Wilcox retained a sedentary work capacity. The

-16- ALJ concluded, based on substantial evidence in the record,

including the medical opinions of D r . Miller and the occupational

therapist, that Wilcox’s claim of pain was not so severe as to

preclude all work.

Dr. Miller’s examination from June 2002 found that Wilcox is

“expected to have long term problems with both wrists and with

chronic pain,” but that she “is able to perform light duty work

that does not involve repetitive activities.” (Tr. 15.)

Moreover, Wilcox’s physical therapist, Joyce Sylvester, found

that “pain was an overall factor in the claimant’s ability to

perform activities,” but that she “retains a RFC.”

As such,

I find that the ALJ adequately considered the various factors

concerning Wilcox’s condition and reached a determination of her

RFC that is supportable in the record.

IV. CONCLUSION

Since I have determined that the ALJ’s denial of Wilcox’s

benefits was supported by substantial evidence, I affirm the

Commissioner’s decision. Accordingly, Wilcox’s Motion to

Reverse (Doc. n o . 8 ) is denied, and Defendant’s Motion for an

-17- Order Affirming the Decision of the Commissioner (Doc. n o . 9 ) is

granted. The clerk shall enter judgment accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge

July 2 8 , 2004

cc: Jeffry A . Schapira, Esq. David L . Broderick, Esq.

-18-