Edwards v. SHHS

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                [NOT FOR PUBLICATION]

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No. 94-1345

FLORENCE A. EDWARDS,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                    [Hon. Paul J. Barbadoro, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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                                 ___________________

               Raymond J. Kelly on brief for appellant.
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          Paul  M.  Gagnon,  United  States  Attorney,  Patrick  M.  Walsh,
          ________________                              __________________
          Assistant   United  States  Attorney,  and  Robert  M.  Peckrill,
                                                      ____________________
          Assistant  Regional  Counsel,   Department  of  Health  &   Human
          Services, on brief for appellee.

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                                  September 2, 1994
                                  __________________

Per Curiam.   Claimant Florence  Edwards appeals  a
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            district court order affirming a decision of the Secretary of

            Health  and  Human  Services  that  denies  social   security

            disability benefits.  We affirm.

                      The background facts are thoroughly detailed in the

            decisions below.  Briefly,  claimant alleges a disability due

            to  injuries she  sustained on  February 28,  1988,  when she

            jumped from  a second  story window  to escape  a fire.   She

            suffered significant  fractures to both feet  and a fractured

            vertebrae.    After  a month  in  the  hospital and  physical

            therapy on an outpatient basis, she returned to her work at a

            shoe company  in September, 1988.   Adjustments were  made in

            her work duties to  accommodate her new mobility limitations,

            and  she  remained  at her  job  until  the  plant closed  in

            December,  1988.    For  a  period  thereafter  she  accepted

            unemployment  benefits.    In  April, 1989  she  underwent  a

            subtalor fusion of the  left foot.  At the time  the treating

            orthopedist  noted that as a result of her fractures her feet

            were  significantly deformed,  with residual  arthritis.   In

            July,  1990, a similar  subtalor fusion was  performed on her

            right foot.   It is  not disputed that  claimant relies on  a

            cane, walks with difficulty, and apparently suffers permanent

            limitations on  her ambulatory  abilities.  She  also suffers

            from hypertension and obesity, and complains of chronic lower

            back pain.  

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There  were two  hearings before  an Administrative

            Law Judge  (ALJ)  on claimant's  application  for  disability

            benefits.   Claimant was represented  by the same  counsel at

            both hearings.   A decision denying benefits  after the first

            hearing was  vacated by the  Appeals Council, and  the matter

            remanded to  the ALJ for  the taking  of additional  evidence

            relating to claimant's post- operative condition.  The second

            hearing also resulted in a decision to deny benefits, and the

            Appeals  Council  denied review.    On  cross-motions by  the

            parties, the district court affirmed the Secretary's decision

            in a lengthy memorandum opinion. 

                      The  ALJ's  second   decision  found  claimant  not

            disabled  at step  five of  the familiar  sequential analytic

            process, in that  claimant had a residual functional capacity

            to perform a limited range of unskilled sedentary  jobs which

            exist in  significant numbers  in the  national economy.   20

            C.F.R.     404.1520(f), 404.1561, 404.1566.   Claimant renews

            in this  court several of  the multiple assignments  of error

            she urged below, and attempts to add a new one  for the first

            time on appeal.               First   claimant   argues,   as

            below,  that the  ALJ failed  to develop  an adequate  record

            relating  to  her residual  functional  capacity,  because he

            violated an "explicit order from  the Appeals Council to have

            the examining physician [Dr.  Shea] complete a specific form.

            . . "  According to claimant, Dr. Shea should have filled out

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the very same  preprinted form  that was  used by  claimant's

            treating doctor, Dr. Wachs.

                      Claimant's reading  of the Appeals  Council's order

            is questionable,1  but we  need  not tarry  over this  detail

            because the record developed below  is clearly adequate.  The

            ALJ had before him  a thorough residual functional assessment

            from Dr.  Wachs, who was associated  with claimant's treating

            orthopedist.   In  addition,  there was  a full  consultative

            examination  by Dr.  Shea,  who was  also  familiar with  the

            claimant, having  evaluated her in  connection with  previous

            applications.      Dr.   Shea's   report   contains  detailed

            assessments  of   appellant's  range  of   motion,  reflexes,

            flexion,  walking, sitting,  and  standing  abilities.   Both

            doctors  reported  substantial   limitations  on   claimant's

            functional abilities,  reducing the  range of work  which she

            might perform to less  than the full range of  sedentary jobs

            available.

                      It  is true  that the  two doctors' reports  are in

            different formats, but we  fail to see any prejudice  in this

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            1.    The Appeals Council instructed  the ALJ to obtain, with
            the  cooperation  of  claimant's attorney,  medical  evidence
            relating to claimant's post-operative condition,  
                 [F]rom   the   claimant's  treating   sources   .  .   .
                 a medical assessment  of the claimant's ability  to
                 perform  work-related  activities (20  CFR 404.1513
                 and  416.913).   Further the  [ALJ] will  obtain an
                 orthopedic consultative examination with  a medical
                 assessment  in order  to  resolve the  [severity of
                 claimant's limitations]. 

                                         -4-

asymmetry.    Each  report formed  the  basis  of a  separate

            hypothetical question  propounded  to the  vocational  expert

            (VE).   The VE  identified approximately  67,500 jobs  in the

            national economy  which claimant  might  perform despite  the

            functional  limitations reported  by Dr.  Wachs,  and 135,000

            jobs despite  the limitations observed  by Dr.  Shea.2   Even

            the  lower of  these two  estimates sufficed  to  satisfy the

            Secretary's  burden  of  showing  "significant   numbers"  of

            suitable jobs  in the national economy. 20 C.F.R.   404.1566;

            see  also Keating v. Secretary of HHS, 848 F.2d 271, 276 (1st
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            Cir.  1988) (to show that work exists in significant numbers,

            the Secretary must show significant, not isolated, numbers of

            jobs which a claimant can perform).3  

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            2.   The numbers in the text are the adjusted totals computed
            by the ALJ.   The ALJ adjusted the VE's raw  figures downward
            using  percentage  decreases  which  the VE  had  said  would
            account for claimant's various  limitations.  Our own reading
            of the transcript suggests that the ALJ's adjusted figure may
            be  lower than the VE intended, as we glimpse the possibility
            of a double deduction, but since any mistake is in claimant's
            favor, we need not explore the matter further.  

            3.   While  claimant urges  that the meaning  of "significant
            numbers"  varies with the facts  of each case,  she points to
            nothing that might diminish the significance of the very high
            numbers  in her case.  Her claim that her disability prevents
            her  from  driving  is   somewhat  contradicted  by  her  own
            testimony, and her alternate  contention that there is little
            public transportation  is  irrelevant.    See  Lopez-Diaz  v.
                                                      ___  __________
            Secretary of HEW, 585 F.2d 1137, 1140-42 (1st Cir. 1978).  We
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            also do  not consider claimant's contentions  relating to the
            "significance"  of  the smaller  numbers given  by the  VE in
            response to hypotheticals which  were based on the claimant's
            subjective complaints, because the VE found those  complaints
            not credible.  

                                         -5-

Since  the  ALJ's   conclusion  finds   substantial

            support in  the  treating doctor's,  Dr. Wach's,  assessment,

            claimant's fallback argument that the ALJ substituted his own

            opinion for that of Dr. Shea is irrelevant, and in any event,

            rests on  a strained reading of the record.  It is clear that

            claimant suffered no prejudice from the format of  Dr. Shea's

            report.

                      Second,  claimant  argues  that  the  ALJ  did  not

            properly evaluate  her subjective complaints of pain.  On our

            own review, we  agree with  the district court  that the  ALJ

            gave  full  and  careful  consideration  to  claimant's  pain

            complaints in  conformity with the regulations  and case law.

            See Avery  v. Secretary  of HHS,  797 F.2d 19,  21 (1st  Cir.
            ___ _____     _________________

            1986).  The record  does not support the contention  that the

            ALJ gave  undue weight to claimant's  use of non-prescription

            pain medications.    We  defer to  the  ALJ's  assessment  of

            claimant's  credibility, especially  as  it was  supported by

            specific findings.  See  Frustaglia v. Secretary of HHS,  829
                                ___  __________    _________    ___

            F.2d 192, 195 (1st Cir. 1987).

                      Third,  claimant  argues,  for the  first  time  on

            appeal, that  there was insufficient evidence  because the VE

            "mischaracterized,"  as  exertionally sedentary,  the various

            jobs he identified  as available to a  person with claimant's

            characteristics.   The VE testified  that "some" jobs  in the

            following  categories would  be suitable:   machine operation

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jobs,  such  as  grinding,  buffing   and  polishing;  manual

            assembler; inspector; and cashier/ticket seller.    

                      In  her  appellate  brief,  claimant  assigns  code

            numbers  to  these job  titles  based on  information  in the

            Dictionary  of  Occupational  Titles (revised  4th  ed. 1991)

            (DOT).   All  of  the  code numbers  which  claimant  assigns

            correspond to jobs  which the DOT  classifies as requiring  a

            greater than "sedentary" 

            exertional  capacity, and  in one  instance, a  greater skill

            level than claimant possesses.4   

                      The VE, however, did not assign DOT code numbers in

            his  testimony, only  general  job titles.    While the  code

            numbers  affixed by  claimant  refer to  similar job  titles,

            there are   numerous DOT listings  with superficially similar

            titles, or work descriptions, some of which are classified as

            sedentary and  unskilled.5   Claimant's point thus  cannot be

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            4.  The  code numbers  and corresponding  titles assigned  by
            claimant  are:  sanding machine  buffer,  D.O.T. 662.685-022;
            polisher, D.O.T. 705.684-058; polisher  and buffer II, D.O.T.
            705.684-062; grinder, D.O.T. 555.685-026; grinder  II, D.O.T.
            603.664-010; assembler, small  products, D.O.T.  706-684-022;
            production  assembler,  D.O.T.   706-687-010;  inspector   of
            plastics  and composites, D.O.T.  806.261-046; ticket seller,
            D.O.T. 211.467-030; cashier  II, D.O.T. 211.462-010;  cashier
            I, D.O.T. 211.362.010.

            5.  For  example, the  DOT classifies  the following  jobs as
            exertionally sedentary, and requiring no more than 0-3 months
            of vocational preparation: check cashier, D.O.T. 211.462-026;
            cashier, tube room, 211.482.010; pricer, message and delivery
            service,  214.467-014;  tax  clerk,  219.487-010;  scheduler,
            238.367-034;   heel  sorter,  788.584-010.     Moreover,  the
            Secretary's   Medical-Vocational   Guidelines,  which   takes

                                         -7-

readily verified  by simply comparing some  DOT listings with

            the VE's testimony.

                      In other circumstances,  the uncertainty  generated

            by claimant's  observations might  cause concern.   While not

            the only  reliable source  of job information,  the Secretary

            takes  administrative notice  of  the accuracy  of the  DOT's

            generalized job  descriptions. See  20 C.F.R.    404.1566(d),
                                           ___

            Subpart  P, app.  2,    200.00(b).   The Secretary  bears the

            burden of proving the  existence of jobs in the  economy that

            the claimant can  perform.   See Goodermote  v. Secretary  of
                                         ___ __________     _____________

            HHS,  690 F.2d  5,  7 (1st  Cir. 1982).    A clear  dichotomy
            ___

            between the DOT and the VE's testimony on this point may call

            into question the sufficiency of the Secretary's evidence.

                      Courts have vacated the Secretary's decisions where

            the VE's testimony is contradicted in its entirety by the DOT

            and the only reasonable  explanation seems to be that  the VE

            made a mistake.   See, e.g., Young  v. Secretary of HHS,  957
                              _________  _____     ________________

            F.2d  386,   392  (7th  Cir.  1992)  (VE's  testimony  as  to

            characteristics of claimant's  former jobs inconsistent  with

            DOT description);  Ellison v. Sullivan, 921  F.2d 816, 821-22
                               _______    ________

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            administrative  notice  of  the  numbers  of  jobs  generally
            available  in  the  economy,   reports  the  existence  of  a
            significant range of sedentary work available to a person  of
            claimant's  age  (36)  and  skills  (unskilled).  20  C.F.R.,
            Subpart  P, app.  2,  Table  No. 1,  Rule  201.24.   The  ALJ
            properly used the guidelines  only as a "frame  of reference"
            here  because the  claimant  cannot perform  a full  range of
            sedentary  activity.   20  C.F.R.,  Subpart  P,   app.  2,   
            200.00(d); 20 C.F.R.   404.1569. 

                                         -8-

(8th Cir. 1990) (claimant limited to sedentary work, all jobs

            listed by  VE rated as light  to heavy); Tom  v. Heckler, 779
                                                     ___     _______

            F.2d  1250,  1255-56, 1257  n.12  (7th  Cir. 1985)  (claimant

            limited to sedentary  work; all  jobs listed by  VE rated  as

            light);  Mimms v. Heckler, 750  F.2d 180, 186  (2d Cir. 1984)
                     _____    _______

            (same).  In at least one of the cases, Tom, the court treated
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            an irreconcilable conflict as  the equivalent of plain error,

            remanding  despite  the failure  of  the  claimant to  object

            below.  

                      Here,  however,   not  only  is   the  alleged  DOT

            contradiction  uncertain,  but the  circumstances surrounding

            claimant's failure to object at the hearing suggest that this

            uncertainty is better  explained by hindsight  interpretation

            than  by  actual error.    Claimant  was represented  at  the

            hearing by  an experienced attorney, who  evinced no surprise

            or  confusion at  the VE's  testimony.   On the  contrary, he

            complimented the VE on  the thoroughness of his presentation.

            The attorney  was keenly aware that a discrepancy between the

            VE's articulation and  the DOT  might be  used to  claimant's

            advantage, as shown  by a specific objection he  made minutes

            before to another  VE's opinion in the same case.   A copy of

            the DOT was apparently available in the hearing room, for the

            transcript shows that the  VE  directly consulted the  DOT at

            an earlier point in  his testimony.  Nevertheless, claimant's

            attorney did not  request specific DOT code numbers, nor seek

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any  other  information that  might  shed light  on  the VE's

            sources.   The first  allusion to this  allegedly striking VE

            error  appears  in  a  one-sentence  paragraph  inserted into

            claimant's motion for reconsideration of the district court's

            decision.  

                      "We have long recognized that social security cases

            are not strictly  adversarial."   Evangelista v. Secretary of
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            HHS, 826 F.2d 136,  142 (1st Cir. 1987).   Here, however,  we
            ___

            see  no  good excuse  for the  failure  to raise  this matter

            sooner, and  claimant offers  none.  In  these circumstances,

            there  is no unfairness  in applying the  "ordinary rule that

            appellate courts will not  consider issues not raised below."

            Gonzalez-Ayala v. Secretary  of HHS, 807  F.2d 255, 256  (1st
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            Cir. 1986) (citations omitted);  see also Torres v. Secretary
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            of HHS,  870 F.2d 742  (1st Cir.  1989) (claimant's  argument
            ______

            that ALJ's hypothetical  omitted a crucial  fact will not  be

            entertained  for  first  time  on appeal  where  issues  were

            simple,  it was  not likely  that VE  failed to  consider the

            omitted  fact,   and  claimant  could  have   posed  his  own

            hypothetical);  cf. Evangelista,  826 F.2d  at 142-43  (where
                            ___ ___________

            claimant  was able to fairly  present his case  and the ALJ's

            decision  was  based on  substantial evidence,  appeals court

            will not remand for presentation by claimant of arguably "new

            and material evidence" in absence of "good cause" adequate to

            excuse the failure to offer the evidence sooner).

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Accordingly, the judgment below is affirmed.
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