Chartier v . Shalala, Secretary CV-94-458-L 02/21/95 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mark Chartier
v. #C-94-458-L
Donna L . Shalala, Secretary of Health and Human Services
ORDER
Plaintiff Mark Chartier seeks review, pursuant to 42 U.S.C.
§405(g), of a final determination of the Secretary of Health and
Human Services (HHS) denying his application for Social Security
benefits. Currently before the court are Plaintiff's Motion for
Order Reversing Decision of the Secretary (Doc. 5 ) and
Defendant's Motion for Order Affirming the Decision of the
Secretary (Doc. 6 ) . For the reasons set forth below, the
plaintiff's motion is denied and the defendant's motion is
granted.
BACKGROUND Plaintiff, Mark Chartier, is a 34 year-old, high school
graduate, whose past relevant work experience involves truck
driving, installing commercial air conditioning and heating and
operating machines. T r . 4 7 , 359-360.
Plaintiff last worked on October 3 1 , 1989. On this day he
fell from a ladder injuring both knees. T r . 48-49. Previous to
this injury, plaintiff had suffered a back injury. Tr. 49. The initial injury from the October 31st fall was to the left knee and the plaintiff received medical treatment for the injury. Tr. 148. Persistent pain and increased swelling forced the plaintiff to consult D r . James M . Shea, an orthopaedic surgeon, on November 1 0 , 1989. T r . 1 6 0 , 167. At that time, D r . Shea's diagnosis was internal derangement of the left knee. T r . 151. The plaintiff was admitted for arthroscopic surgery to the knee on November 1 5 ,
1989. T r . 152. Plaintiff continued to receive treatment from D r . Shea and
mild progress was noted with the left knee over the course of the following month. T r . 161. As early as five days following surgery, however, an increasing problem arose in the right knee. Tr. 161. By January 1 1 , 1990, both knees were exhibiting increased problems and pain. T r . 162. Throughout the spring of
1990, plaintiff continued to have visits with D r . Shea. On March 1 4 , 1990, plaintiff underwent arthroscopic surgery in his right knee due to increasing difficulties. T r . 164. In April, 1990, Dr. Shea indicated that plaintiff would be unable to return to his past relevant work of heating and air conditioning. T r . 165.
On April 1 6 , 1990, plaintiff's back problem flared to disability proportions and he was forced to see D r . Shea on an emergency basis. T r . 165. D r . Shea noted a previous diagnosis of spondylolysis at L5-S1 by a D r . Wachs and confirmed that diagnosis. T r . 165.
By May, 1990, plaintiff had become so discouraged with progress concerning his knees and the reliance on pain medication
2 that he sought a second opinion from D r . Thomas V . Moser, also an orthopaedic surgeon. T r . 5 3 . D r . Moser diagnosed chondrolomalacia in both the right and left knees and ACL deficit in the left knee. T r . 170. Although the plaintiff was prescribed a steroid anti-inflammatory medication, his condition worsened.
On June 2 2 , 1990 plaintiff was referred to D r . Preston Clark. T r . 172. On July 9, 1990, D r . Clark, admitting a personality conflict between himself and the plaintiff, sent a report of examination to D r . Moser, indicating he did not expect further involvement in the case. T r . 175.
On August 2 1 , 1990, plaintiff consulted orthopaedic surgeon Dr. Mark Piscopo. T r . 1 8 0 , 202. D r . Piscopo noted the plaintiff's extensive history of both bilateral arthroscopic surgery and "extensive physical therapy" without improvement. Tr. 180. D r . Piscopo prescribed Darvocet for the plaintiff. Tr. 181. Following an unsuccessful M R I , a left knee arthroscopy was performed in September, 1990, followed once again by physical therapy. T r . 181-182. While some improvement in the left knee was noted with physical therapy, the claimant's progress was "compromised" as the physical therapy aggravated plaintiff's long standing back problem. T r . 183.
By January, 1991, the plaintiff reported increased pain and difficulty standing. T r . 185. Additionally, continued physical therapy for his back had not alleviated the pain. T r . 185. Plaintiff continued to comply with D r . Piscopo's directions
3 concerning physical therapy, but as improvement was absent, the physical therapy was terminated in February, 1991. T r . 187. On April 2 3 , 1991, plaintiff's condition was so severe that Dr. Piscopo requested a review by a panel of orthopaedic surgeons. The surgeons diagnosed posterolateral rotary
instability of the knee and determined that the pain experienced by the plaintiff was consistent with this finding. T r . 189.
By June, 1991, plaintiff's condition had worsened and D r . Piscopo decided to initiate surgical reconstruction. T r . 190. At the same time, increasing effusion of the right knee was taking place. T r . 191. Although reconstruction of the left knee was performed at the end of September, 1991, the plaintiff continued to experience severe pain extending from his knee down to his foot. T r . 198. With the increasing of pain and the continued giving out of his knee, D r . Piscopo felt that additional consultation from other specialists was warranted. Tr. 201. In March, 1992, after review of plaintiff's condition, specialist D r . William W . Tomford, of Massachusetts General Hospital determined that plaintiff is "probably . . . currently disabled." T r . 277.
Plaintiff filed for social security disability benefits on March 2 4 , 1992. He was denied those benefits on July 2 7 , 1992 and again on reconsideration on August 4 , 1992. A timely request for a hearing was filed and the hearing was held before Administrative Law Judge (ALJ) Robert J. Klingebiel on May 3 , 1993.
4 In assessing the issue of whether the plaintiff is entitled
to a period of disability and to disability insurance benefits
under Sections 216(i) and 223 of the Social Security Act, the ALJ
concluded that "claimant is not entitled to a period of
disability or disability insurance benefits under sections 216(i)
and 223, respectively, of the Social Security Act." Tr. 25.
Plaintiff now contends that the decision of the Secretary
should be reversed. In support of this contention, plaintiff
asserts that the Secretary's decision, through the ALJ,
concerning his limitations and credibility is not based on
substantial evidence. Plaintiff also maintains that the opinion
of the vocational expert (VE) does not constitute substantial
evidence.
DISCUSSION
An individual seeking social security disability benefits
will be considered disabled if he is unable "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 has lasted or can be expected to last for a continuous period of not less that 12 months." 42 U.S.C. § 416
(i)(1)(A)(Supp. V 1981); 42 U.S.C. § 1382c(a)(3)(A) (1976); See
Faford v . Shalala, 856 F. Supp. 13 (D.Mass. 1994). The Secretary
of Health and Human Services will find a claimant disabled only
if the claimant's
physical or mental impairment or impairments are of such severity that he is not only unable to do his
5 previous work but cannot, considering his age, edu- cation, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 423(d)(2)(A) (1994).
The Secretary utilizes a five-step sequential evaluation set
forth in 20 C.F.R. §§ 404.1520, 416.920 in considering disability
claims. This five-step procedure is summarized as follows: First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impair- ment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocation factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant can perform.
Berry v . Schweiker, 675 F.2d 4 6 4 , 467 (2d Cir. 1982).
The scheme of the Act places a very heavy initial burden on
the claimant to establish the existence of a disabling
impairment. Bowen v . Yuckert, 482 U.S. 1 3 7 , 146-47 (1987);
6 Santiago v . Secretary of HHS, 944 F.2d 1 , 5 (1st Cir. 1991). To
meet this burden, the claimant must prove that his impairment
prevents him from performing his former type of work. Gray v .
Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v .
Secretary, 690 F.2d 5 , 7 (1st Cir. 1975)). The claimant is not
required to establish a doubt-free claim; the initial burden is
satisfied by the usual civil standard, a "preponderance of the
evidence." See Paone v . Schweiker, 530 F. Supp 8 0 8 , 810-11
(D.Mass 1982); see also 1 Unemployment Insurance Reporter (CCH)
1 2 , 679 (April 1 5 , 1985). Further, the claimant must show a
"medically determinable" impairment, and only in a rare case can
this be shown without medical evidence. Thompson v . Cellophane,
556 F.2d 616, 618 (1st Cir. 1977) (citing 42 U.S.A. §
423(d)(1)(A)); Ramirez v . Secretary of Health, Education and
Welfare, 528 F.2d 9 0 2 , 903 (1st Cir. 1976).
Once a plaintiff has shown an inability to perform his
previous work, the burden shifts to the Secretary to show that
there are other jobs in the national economy which the claimant
can perform. Vasquez v . Secretary of Health and Human Services,
683 F.2d 1 (1st Cir. 1982). In assessing a claim for disability,
the Secretary shall consider objective and subjective factors,
including the following; (1) objective medical facts; (2)
claimant's subjective evidence of pain and disability as
testified to by the claimant or other witness; and (3) the
claimant's education background, age and work experience. See
e.g., Avery v . Secretary of Health and Human Services, 797 F.2d
7 19 (1st Cir. 1986); Goodermote, 690 F.2d at 6. If the Secretary
shows the existence of such jobs, then the overall burden remains
with the claimant. Hernandez v . Weinberger, 493 F.2d 1120, 1123
(1st Cir. 1974); Benko v . Schweiker, 551 F. Supp. 6 9 8 , 701
(D.N.H. 1982).
A finding by the Secretary that a claimant has not shown
disability is conclusive if supported by substantial evidence.
42 U.S.A. §§ 405(g), 1383(c)(3); Ortiz v . Secretary of HHS, 955
F.2d 765, 769 (1st Cir. 1991). Substantial evidence i s : "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol- idated Edison C o . v . NLRB, 305 U.S. 1 9 7 , 229 (1938). "[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." NLRB v . Columbian Enameling & Stamping Co., 306 U.S. 2 9 2 , 300 (1939). This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusion from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.
Consolo v . Federal Maritime Com., 383 U.S. 6 0 7 , 620 (1966) (citations omitted).
Although it is for the Secretary to weigh and resolve
conflicts in the evidence, Burgos Lopez v . Secretary of Health & Human Services, 747 F.2d 3 7 , 40 (1st Cir. 1984)(citing Sitar v .
Schweiker, 671 F.2d 1 9 , 22 (1st Cir. 1982)), the court is
empowered to scrutinize the record as a whole and determine the
reasonableness of the decision. Ortiz, 955 F.2d at 769. Upon
review, a court must be content that the claimant has had a "full
hearing under the Secretary's regulations and in accordance with
the beneficent purposes of the Act." Gold v . Secretary of
8 Health, Education and Welfare, 463 F.2d 3 8 , 43 (2d Cir. 1972); Hankerson v . Harris, 636 F.2d 893, 895 (2d Cir. 1980). With the above principles in mind, we review the administrative transcript and plaintiff's allegations supporting his claim for reversal.
In performing a threshold review, this court is cognizant that the ALJ, in complying with the requirements of the Act, inquired whether M r . Chartier is currently working and whether an impairment significantly interferes with his ability to perform prior work activities. Although it is unnecessary to belabor every step of the ALJ's decision, the court is nonetheless convinced that the determination that the "claimant has not engaged in substantial gainful activity since October 3 1 , 1989" and he is "unable to perform his past relevant work as a machine operator, truck driver and HVAC mechanic and installer" is supported by substantial evidence. T r . 2 3 .
The next step for the ALJ was to determine whether the plaintiff's impairment was so severe as to classify the plaintiff as automatically disabled. Here again, the court concludes that the ALJ's finding that "the medical evidence establishes that the claimant has severe posterolateral injuries to both knees, but that he does not have an impairment or combination of impairments listed i n , or medically equal to one listed in Appendix 1 , Subpart P, Regulations N o . 4" is supported by substantial evidence. T r . 2 3 . Apposite to this conclusion, the reports and conclusions from the various physicians do not conclusively
9 indicate that plaintiff's condition resembles the level of motor
losses, muscle weaknesses, sensory or reflex losses and
limitations which are indicative to the conditions listed in
Appendix 1 , Subpart P, Regulations N o . 4 . T r . 129-208, 257-290.
Pertinent to the issues now presented by plaintiff, the ALJ
next considered whether the plaintiff's impairments, considering
age, education, and work experience, were of such a magnitude as
to preclude him from engaging in other forms of substantial and
gainful employment. 42 U.S.C. 423(d)(2)(A).
I. ALJ's decision concerning plaintiff's limitations and credibility is not based on substantial evidence.
Plaintiff contends the conclusions resulting from the ALJ's
review of medical evidence and plaintiff's impairments are not
supported by substantial evidence and therefore the ALJ erred in
determining plaintiff is "not disabled." To support his
insubstantial evidence argument, plaintiff offers four issues of contention.
A. Sufficiency of medical evidence
First, plaintiff asserts that the ALJ failed to consider
crucial medical evidence and testimony directly impacting upon
the plaintiff's ability to work.
In reviewing the evidence and transcript, the court is
satisfied that the ALJ, in considering plaintiff's condition, not
only gave appropriate, but in fact gave substantial consideration
to plaintiff's allegations of pain. In support of this
10 conclusion, the court notes that according to the administrative
hearing transcript both the plaintiff's lawyer and the ALJ
questioned the plaintiff in depth concerning pain and medication
taken. T r . 50-53, 62-63. Additionally, the ALJ gave significant
consideration and weight to medical opinions, reports and
evaluations, conducted by a host of doctors, which shed
considerable light on plaintiff's condition. The ALJ's
conclusion, based on the aforementioned information, was that
although the plaintiff "could not return to past forms of work,
[he] could greatly benefit from participating in rehabilitation
programs and strict strengthening programs as well as from using
anti-inflammatory medication." T r . 2 0 . Therefore, based on the
aforementioned evidence, the ALJ's conclusions regarding medical
reports and plaintiff's condition is adequately supported.
B. Consideration of x-ray films
The second argument the plaintiff offers to support his
"insubstantial evidence" assertion is that the ALJ improperly
referred to and relied on x-rays which were compiled at the time
of plaintiff's accident. Plaintiff avers that the reference by the ALJ to the dated x-rays was meaningless in that a myriad of
complications arose since those x-rays were performed.
Plaintiff's contention appears to be directly contradicted by
findings offered by the ALJ in his final decision.
Although the ALJ does refer to x-ray films that were the
product of tests performed on the date plaintiff was initially
11 injured, there is no indication that the ALJ considered the xrays compelling or of fundamental importance to his ultimate conclusion of not disabled. Furthermore, in his decision the ALJ makes significant reference to x-rays conducted at later dates. For example, the ALJ's decision indicates that as late as June 4 , 1992, D r . William Shea conducted x-rays on plaintiff. The ALJ incorporated D r . Shea's findings into his final decision by noting that these tests indicate that there was "adequate joint space without any evidence of deformity or increased sclerosis." Tr. 2 0 . Exhibit 2 0 .
Simply put, the contention that the ALJ improperly relied upon x-rays performed on the date of injury is without merit. It is apparent in his decision that the x-rays, all of which were performed over the course of years, presented a means by which the ALJ could consider, by comparison, plaintiff's limitations and medical problems. None of the x-rays, by themselves or even in concert, provided the linchpin for the ALJ's ultimate conclusion.
C. Plaintiff's complaints concerning pain and medication
In attempting to provide a third argument relating to his
contention that the decision of not disabled is not supported by
the evidence, the plaintiff alleges that the ALJ erred in his
final decision by not properly considering the full extent of
plaintiff's pain, injury and complications as well as the medical
evidence surrounding plaintiff's condition. Specifically,
12 plaintiff maintains the ALJ "mischaracterized" his testimony concerning medication side effects. Plaintiff also avers that the ALJ was not objective in his review of the testimony and medical evidence, and as a consequence plaintiff's testimony was passed off as "not credible."
As this court has the limited ability of determining whether
there is substantial evidence to support the Secretary's decision
of not disabled, Smith v . Schweiker, 520 F. Supp. 2 7 , 34 (D.N.H.
1981), the court is unwilling to subscribe to the argument that
the decision denying disability benefits is unsupported by
medical evidence and is contrary to the testimony offered by the
plaintiff. Although the plaintiff is correct in that the ALJ may
not have found his testimony entirely credible, there is ample
explanation in the final decision for this illation. As a brief
example, the ALJ reviewed the reports and evaluations conducted
by doctors Shea, Clark, Piscopo, Biletch, Warren and Tomford. It
is apparent from his final decision that the reports and
evaluations offered by these doctors did not comport with plaintiff's testimony. Further, in substantiating his decision
of giving greater weight to the doctor's reports and medical evidence, the ALJ noted in his final decision that
[t]reating physicians as well as reconstructive orthopedic specialists have limited his abilities only with respect to prolonged squatting or kneeling. While all of his phys- icians have agreed that the claimant could not return to his past work because of the climbing and crawling that was involved, they have indicated that the claimant would benefit from participating in rehabilitation programs and strict strengthening programs as well as using anti- inflammatory medications.
13 The functional capacity reported by the treating physicians clearly is not consistent with the claimant's testimony that he is unable to sit for longer than one-half hour or walk for more than 10 to 15 feet. In view of the claimant's activities, the limited restrictions placed upon him by treating sources, the objective findings of record and the lack of any serious side effects from the medication used for relief of pain, the undersigned finds that the claimant's allegation of inability to work because of pain are not entirely credible. Tr. 20-21.
Although plaintiff is seemingly troubled that greater
reliance was placed on the physicians' opinions than on his own
opinion and complaints, 20 C.F.R., § 404.1527 and § 416. 927
emphatically provide that a treating physician's opinion may be
entitled to controlling weight, but only when the opinion is
well-supported by medically acceptable diagnostic techniques.
As is the case here, as long as the ALJ articulates
sufficient reasons for questioning the credibility of a
plaintiff, the ALJ is within his discretionary power to make
determinations regarding plaintiff's testimony. Da Rosa v .
Secretary of Health and Human Services, 803 F.2d 2 4 , 26 (1st Cir. 1986). See Ortiz, 955 F.2d at 769.
D. Consideration of plaintiff's back problems
As the final block to completing his foundation questioning
whether there is substantial evidence to support the ALJ's
decision, plaintiff maintains the ALJ erred by failing to factor
into the residual functional capacity assessment certain
14 allegations of back problems. Specifically, the plaintiff
explains the significance of his back problem by emphasizing that
on April 1 6 , 1990 his back problem "flared to disability
proportions" (Doc. 5 ) and he was forced to see a doctor on an
emergency basis.
However, as the defendant correctly points out, a claimant
in a Social Security matter bears the initial responsibility of
presenting medical evidence of a severe impairment and functional
loss associated with the condition. 20 C.F.R. §§ 404.1508,
404.1512, 404.1521 and 404.1527. In short, plaintiff proffered
little medical evidence at the hearing supporting a contention
that he is unable to perform basic work activity because of his
back problems. In fact, the administrative transcript provides
indications that plaintiff did not consider his back problem to
be of major consequence or of a disabling degree.
Dialogue between ALJ and plaintiff.
Q Okay. I f , if we could just eliminate the problem with your knees today, do you feel you'd be able to work with your back"
A Yeah, I d o . Q You d o .
A I do.
Tr. 55-56.
Absent any substantial evidence by plaintiff that his back
problems constituted a limitation on his ability to perform work
related functions, the court opines that the ALJ was not com-
15 pelled or even obligated to incorporate plaintiff's back
condition in the residual functional capacity finding. Bowen v .
Yuckert, 482 U.S. 137 (1987); Gonzalez-Ayala v . Secretary of
Health and Human Services, 807 F.2d 255 (1st Cir. 1986).
In light of the well-reasoned conclusion of the ALJ,
plaintiff's contentions that the ALJ improperly considered
certain evidence, inappropriately failed to consider other
evidence, failed to apply certain evidence to the requirements of
the Act and failed to adequately explain his reasons supporting
his conclusion are simply without merit. Reflecting on the
aforementioned considerations, the court is content that the ALJ
properly determined that substantial evidence exists to support
the conclusion that M r . Chartier's exertional and non-exertional
impairments do not constitute a disability under the guidelines
of the Social Security Act. Geoffroy v . Secretary of Health and
Human Services, 663 F.2d 315, 319 (1st Cir. 1981).
II. The opinion of the Vocational Expert does not constitute substantial evidence.
Plaintiff maintains that the portion of the ALJ's decision relying on the testimony of the VE is fundamentally flawed in
that given the ability of the plaintiff to perform work only in
the "sedentary" range, the ALJ improperly considered plaintiff
capable of performing jobs in the "light" range. Specifically,
plaintiff maintains that two jobs, the cashier and parking lot
attendant positions, identified by the VE are classified as light
16 positions and therefore do not comport with the sedentary ability
offered by the ALJ.
At the outset, the court is cognizant of the defendant's
assertion that plaintiff's issue involving the vocational
expert's testimony was not presented to the Secretary and, thus,
should not now be considered. In light of that assertion, the
court is tempted to refrain from addressing issues that were not
properly pled. However, for the sake of clarification and
completeness and because this court realizes the gravity of the
situation, the court will venture across the line of restraint in
order to review and briefly address plaintiff's allegations.
Although plaintiff may be correct in his contention that the
cashier and parking lot attendant positions are jobs incapable of
performance by an individual having sedentary capabilities, the
mistake by the ALJ is not of the nature warranting a reversal or
remand.
A portion of the scheme of a social security review places a
very substantial burden on the Secretary to show that, in cases
where the plaintiff is unable to perform his previous work, there
are still other jobs in the national economy which the plaintiff
is able to perform. See Vasquez, 683 F.2d 1 . In meeting this
burden, the Secretary must establish the existence of a signif-
icant number of jobs. However, the burden does not require the
Secretary to establish a likelihood that a claimant will actually
be hired into one of the positions. See 42 U.S.C. § 423(d)(2)(A)
(1994).
17 In the case at hand, the ALJ fully met this burden by identifying other jobs which fall within the sedentary range. For example, an escort vehicle driver, surveillance system monitor, test desk supervisor, and heating and ventilation drafter are all within the sedentary range. In conjunction with identifying these positions, the VE also provided numbers which adequately establish that these jobs are available in significant numbers in the regional or national economies. T r . 2 4 . See Manchester v . Sullivan, C-90-481-L (D.N.H., March 2 8 , 1991). Thus, although the ALJ may have improperly referred to two jobs incapable of performance by the plaintiff given his residual functional capacity, the mistake turns out to have no consequence or impact on the final decision.
Related to the testimony offered by the V E , plaintiff also contends that the VE improperly relied on outdated figures in forming her conclusions. Specifically, plaintiff maintains that according to a 1994 report, five of the six named positions reported by the VE at the hearing are now no longer available in New Hampshire. Plaintiff offers that instead of relying on current projections during the hearing on May 3 , 1993, the VE relied on " . . . 1990 census figures . . . ." Doc. 5 . Tr. 7 4 .
The court considers it rather elementary that on the date of the hearing, May 3 , 1993, and on the date of the ALJ's final decision, January, 1994, neither the ALJ nor VE was obligated to rely on a report not yet in existence. Thus, as plaintiff concentrates his "outdated data" argument on a third quarter of
18 1994 report (Employment Statistics Quarterly), plaintiff is in
fact the one who relies on improper or inappropriate information.
As such, plaintiff has failed to allege any facts to support a
showing that the VE's testimony was not adequately supported.
Additionally, although the VE did testify that her information
derived from 1990 census figures, she did state that the figures
are updated quarterly and are based on U.S. Department of Labor
reports and state reports. T r . 7 4 . The court has no reason to
surmise that the numbers and statistics offered by the VE were
not up-to-date at the time of the hearing.
In sum, the court is not persuaded by plaintiff's arguments
that the decision of the ALJ is fundamentally defective as a
result of reliance on flawed testimony offered by the V E .
CONCLUSION The court has empathy for M r . Chartier, for he has no doubt suffered with certain conditions and impairments for some time. However, this court is mindful of the fact that the allegations of error, which the plaintiff now maintains, do not rise to a level warranting reversal or remand.
In light of the foregoing discussion concerning the ALJ's
careful review and prudent application, as well as the
considerations and analysis conducted by the V E , plaintiff's
Motion for Order Reversing Decision of the Secretary (Doc. 5 ) is
19 denied, and defendant's Motion for Order Affirming the Decision
of the Secretary (Doc. 6 ) is granted.
February 2 1 , 1995
Martin F. Loughlin Senior Judge John R. Mason, Esq. David Broderick, Esq.