Follensbee v. HHS CV-94-177-JD 03/28/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Elizabeth Follensbee
v. Civil No. 94-177-JD
Secretary, Health and Human Services
O R D E R
The plaintiff, Elizabeth Follensbee, brings this action
pursuant to § 205(g) of the Social Security Act ("Act")a 42
U.S.C.A. § 405(g), seeking review of a final decision of the
defendant. Secretary of Health and Human Services ("Secretary"),
denying her claim for a period of disability and disability
insurance benefits under the Act. Before the court are the
plaintiff's motion to reverse the decision of the Secretary
(document no. 5) and the defendant's motion to affirm the
decision of the Secretary (document no. 10).
Background
The plaintiff, born on October 7, 1947, was forty-five years
old when the Secretary conducted the administrative hearing.
Transcript of Administrative Record ("Tr.") at 40. The plaintiff
has completed high school. Id. at 5. Her vocational history
includes employment as a seamstress, shirt presser, newspaper inserter, and a bearings inspector in a factory. Id. at 42-45.
The plaintiff has not worked since January 1991 due to Meniere's
Syndrome. Id. at 45.1
1. Medical Evidence2
The plaintiff was examined in December 1988 and January 1989
by Dr. Glenn Johnson, an otolaryngologist affiliated with the
Dartmouth-Hitchcock Medical Center. Tr. at 120-21. She com
plained of vertigo, ear pain and tinnitus. Id. Dr. Johnson
diagnosed right-sided atypical Meniere's disease and recommended
corrective surgery known as a vestibular nerve section. Id. at
121. The surgery was performed in February 1989 and, in a March
2, 1989, medical note Dr. Johnson reported that the plaintiff
only suffered unsteadiness when tired. Id. at 127.
On September 26, 1989, the plaintiff was examined by Dr. J.
Oliver Donegan, another physician associated with the Dartmouth-
Hitchcock Medical Center. Tr. at 128. She complained of
lightheadedness and some altered sensation on the right side of
1Meniere's disease is hearing loss, tinnitus, and vertigo resulting from nonsuppurative disease of the labyrinth with distention of the membranes labyrinth. Stipulation of Facts at n.l (guoting Dorland's Medical Dictionary, 26th ed. (1981) at 795) .
2The plaintiff's medical history is drawn largely from the stipulation of facts filed jointly by the parties.
2 her face. Id. at 128. Dr. Donegan noted in the medical record
that, upon examination, the plaintiff appeared stable and that he
could not determine the etiology of her symptoms. Id. at 128.
On July 30, 1990, the plaintiff was examined by Dr. Johnson.
Tr. at 130. She complained of pain in the area of the
craniectomy, aggravated by her head-bent position as an
inspector. Id. Dr. Johnson noted in the medical record that the
plaintiff's balance is "doing great" and that the surgical wound
had healed but was still tender. Id.
On September 4, 1990, the plaintiff's ovaries were
surgically removed due to pelvic pain caused by adhesions. Tr.
at 132-34.
On December 6, 1990, the plaintiff was examined by Dr.
Johnson. Tr. at 134. She complained of fluid retention and
increasing difficulties with imbalance. Id. Dr. Johnson
prescribed physical therapy, a restricted diet and medication
(Dyazide). Id.
On March 5, 1991, the plaintiff was examined by Dr. Johnson.
Tr. at 135. She complained of increased lethargy and near
constant unsteadiness aggravated by motion. Id. Dr. Johnson
recommended central auditory studies. Id.
Auditory testing was performed in March 1991 and revealed a
slight decrease in the plaintiff's hearing. Tr. at 136. The
3 results showed a decrease in pattern performance which requires
intact hemispheric and interhemispheric pathways. Id. The
auditory brainstem response test was normal. Id. The
audiologist recommended a repeat audiogram including bone
conduction. Id.
An MR scan of the plaintiff's head was performed in April
1991. Tr. at 137. The scan was normal and did not reveal
evidence of either an acoustic neuroma or a demyelinating
disorder. Id.
On June 11, 1991, the plaintiff was examined by Dr. Johnson.
Tr. at 139. She complained of unsteadiness. Id. Dr. Johnson
noted in the medical record that the plaintiff was participating
in physical therapy. Id. On the same day, the plaintiff
underwent additional audiological testing, the results of which
were borderline normal. Id. at 140. The audiologist noted in
the medical record that although the testing did not reveal "any
strong suggestion" of central involvement, a "very slight
problem" could not be ruled out. Id.
On March 5, 1992, Dr. Margo Krasnoff, a physician associated
with the Hitchcock Clinic, examined the plaintiff. Tr. at 144.
Dr. Krasnoff diagnosed the plaintiff with gallstones and, in
April 1992, the plaintiff's gallbladder was surgically removed.
Id. at 144-46, 152.
4 On July 6, 1992, the plaintiff was examined at the
Dartmouth-Hitchcock Medical Center after complaining of lower
back pain on her left side. Tr. at 147. Her x-rays were
considered normal and a CT scan revealed a bulging disc at L5-S1
with a lateral herniated disc of the left L4-L5 interspace. Id.
147-49.
In an October 13, 1992, letter Dr. Johnson wrote that the
plaintiff experienced periods of motion-related vertigo, nausea,
and unsteadiness. Tr. at 150-51. Dr. Johnson noted that the
plaintiff's unemployment benefits had run out and that she could
resume work under certain restrictions. Id. at 151.
Specifically, Dr. Johnson wrote that
[b]ecause of her problems with instability and motion intolerance, she should not be working in an area where she needs to be climbing ladders, working on scaffolding, or working around moving parts . . . she should not be in a situation where she is freguently exposed to a lot of visual movement . . . . [S]he would need to be able to get to work and home from work without having to drive in the dark. Fatigue also plays a role in her performance, and an ideal job would allow her some flexibility in taking breaks to help minimize the fatigue factor.
Id. at 150. Dr. Johnson added that it would be beneficial for
the plaintiff to have steady employment. Id.
On October 14, 1992, Dr. Krasnoff summarized the plaintiff's
condition in the medical record. Tr. at 152-53. Dr. Krasnoff
noted that the plaintiff's condition had improved and that the
5 Meniere's disease was under fairly good control. Id. at 152. A
complete medical exam revealed the plaintiff's condition to be
essentially normal. Id. at 152. In a November 11, 1992, letter
written at the plaintiff's request. Dr. Krasnoff agreed with Dr.
Johnson's assessment of the plaintiff's vocational restrictions
by essentially adopting the recommendations in Dr. Johnson's
letter of October 13, 1992. Id. at 155.
On January 7, 1993, a state agency physician reviewed the
plaintiff's medical records and evaluated her residual functional
capacity. Tr. 77-84. The physician concluded that the plaintiff
should not climb ramps, stairs, ladders, ropes or scaffolds but
did not require any other postural limitations. Id. at 79. On
March 25, 1993, a second state physician reviewed the evidence
and affirmed the residual functional capacity evaluation.
II. Claimant Questionnaire
On December 8, 1992, the plaintiff completed a questionnaire
describing her daily routine. Tr. 105-108. On an average day
she reads, does crafts and needlework, prepares meals with her
husband and washes laundry and dishes. Id. at 106. She goes
shopping with her husband for groceries and other items when the
stores are not busy. Id. at 105. The plaintiff reads, listens
to the radio and watches television programs that do not depict
6 "alot [sic] of visual movement." Id. at 106. She drives during
daylight hours, visits friends or family about once a week to
talk and generally gets out of the house three or four times each
week. Id. The plaintiff suffers from stress, which amplifies
her difficulty with dizziness, balance and concentration. I_d. at
107. She dropped out of vocational school because of stress-
induced dizziness and imbalance, id. at 108, and encounters
difficulty completing tasks when tired. Id. at 107. The
plaintiff wrote that she cannot tolerate environments that are
noisy or include excessive visual movement. Id. at 107-08.
III. Procedural History
The plaintiff filed the current application for a period of
disability and for disability insurance on November 20, 1992,
claiming an inability to work since January 9, 1991. Tr. at 75.
The application was denied initially, id. at 85, and following
reconsideration by the Social Security Administration. Id. at
91-93. An administrative law judge ("ALJ"), before whom the
plaintiff, her attorney, her husband, and a vocational expert
("VE") appeared, considered the matter de novo and on October 28,
1993, ruled that the plaintiff was not entitled to the reguested
benefits. Id. at 17-25. The Appeals Council denied the
7 plaintiff's request for review on March 11, 1994, rendering the
ALJ's decision the final decision of the Secretary. Id. at 3-4.
At the administrative hearing, the plaintiff further
described her personal history, vocational experience, medical
history, symptomatology, daily activities and physical capabili
ties. She elaborated on comments made on the questionnaire,
noting that she is most likely to experience dizziness and
vertigo after observing moving objects which turn. Tr. at 46.
The plaintiff also testified that her condition is not treated by
medication, id. at 48, and is exacerbated by stressful
situations, such as a fight with a family member. Id. at 49, 54-
56. In response to questions posed by her attorney, she
indicated that she has trouble sleeping and often takes naps, has
difficulty concentrating and sometimes is forgetful. Id. at 56-
57. The plaintiff testified that, aside from these complaints,
she generally is in good health. Id. at 47.
The ALJ also heard testimony from Richard Phillips, a
private rehabilitation consultant who appeared as an impartial
vocational expert ("VE"). Based on information provided by the
Secretary on the plaintiff's vocational history, Phillips
reported that the plaintiff's prior jobs are considered "low end
semi-skilled" or unskilled in nature, and involve exertional
levels ranging from light to medium. Id. at 60. Phillips also testified in response to a hypothetical
question posed by the ALJ in which he was to assume a forty-five
year old claimant with the plaintiff's education and work
experience and a functional capacity for sedentary work reduced
by a need for "[f]lexible hours and flexibility in taking breaks
to help minimize the fatigue factor." Id. at 60-61. He was to
further assume the hypothetical claimant could not be "frequently
exposed to a lot of visual movement" and "should not be at a job
that requires the climbing of ladders, working on scaffolding and
working around moving parts." Id. at 61. Phillips responded
that an individual with the capabilities of the hypothetical
claimant would be incapable of performing any of the plaintiff's
prior jobs. Id. The following colloquy took place:
ALJ: Would she have any transferable skills? Any sedentary job that would allow for these restrictions ?
VE : N o, s1r .
ALJ: How about unskilled sedentary job? [sic]
VE: Your Honor, I honestly can't identify a sedentary position which does not involve at least a significant amount of visual stimulus.
ALJ: Um-hum.
VE: I think any job that's sedentary is going to require use of the eyes such as assembly or cashier work. There'd be people coming and going. Receptionist, possibly. You'd be in an office environment where there'd be people going back and forth.
Id. at 61-62. The ALJ next commented that one of the plaintiff's
physicians. Dr. Krasnoff, cautioned against "freguent" exposure
to a lot of visual movement. Id. at 62. The ALJ then re
examined the plaintiff, who testified that she did not experience
discomfort while sitting in the hearing room but "cannot be in a
crowded situation." Id. at 62. The following colloguy ensued:
ALJ: Does that help you, Mr. Phillips?
VE: Well, let me -- I can speak to theissue of freguent. The definition of that is 66 percent of the time or greater with reference to a particular job.
VE: I can say that receptionist job comes in below that. You need occasional, [sic] all the visual reguirements of receptionist work in the sedentary range are classified as occasional which is 33 percent of the time. So based on that alone, a very technical definition, I would say the reception work could be possible. I'm not able to identify any other sedentary positions.
Id. at 62-63. Likewise, Phillips testified later in the hearing
that hedoesn't "consider receptionist work, sedentary work, as
reguiring or as being exposed to a lot of visual movement." Id.
at 66. Phillips testified that there are 830,000 such recep
tionist jobs in the national economy with 850 in New Hampshire.
Id. at 63.
10 The plaintiff's attorney also questioned the VE about the
hypothetical claimant's ability to work as a receptionist given
the need for flexibility in taking breaks due to fatigue. Id. at
67 .
ATTY: Again, I'm just referring to the hypothet ical. I assume a break from, from the work task. If it's a receptionist, that would be a break from answering the telephone, I guess.
VE : If posed that way, I think if a person were away from the task, then that generally precludes employment if it happens more than once or twice a day. •k -k -k -k
VE : It would depend on how often it happened. You know, there's a certain amount of flexibility there. If it were for longer than five or 10 minutes and happened more than, say, you know, twice in the morning and once in the afternoon or three times throughout the course of the day, I think then it would become problematic and most employers would have a hard time tolerating it.
Id. at 67-68.
The ALJ applied the five-step sequential process applicable
to a claimant's disability application. 20 C.F.R. §§ 404.1520,
416.920 (1994).3 The ALJ found (1) the plaintiff has not engaged
31he ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant presently is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment:
11 in substantial gainful activity since January 9, 1991; (2) the
medical evidence establishes that the plaintiff has severe
meniere disease; (3) the plaintiff does not suffer from an
impairment or combination of impairments listed in Appendix 1,
Subpart P, Regulations No. 4; (4) the impairment prevents the
plaintiff from performing her past relevant work; and (5) there
are a significant number of jobs in the national economy which
the plaintiff could perform, notwithstanding her impairment. Id.
at 23-24. The ALJ found that the plaintiff's residual functional
capacity ("RFC") would allow her to
perform the nonexertional reguirements of work for jobs that would not reguire freguent exposure to visual movement, climbing ladders or scaffolding or be around moving objects due to her unsteadiness or work that would not allow the flexibility to take breaks to relieve her pain. There are no exertional limitations. Id. at 23.
In addition, the ALJ found the plaintiff's claim that
vertigo and unsteadiness prevent her from working at any job not
to be credible because it was clearly unsupported by the clinical
findings. Id. at 21, 23. The ALJ further concluded that the
plaintiff's complaints of disability are contradicted by her
(3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; (5) whether the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520.
12 ability to perform her daily routine and by the fact that her
collection of unemployment benefits through November 1992
indicated that she "felt she had the ability to return to
employment." Id. at 21-22. Based on these findings, the ALJ
determined that the plaintiff was not under a "disability" as
defined by the Act at any time through the date of decision. Id.
at 24 .
The plaintiff filed this action on April 7, 1994, seeking a
reversal of the Secretary's decision.
Discussion
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Secretary, with or without remanding the cause for a rehearing."
In reviewing a Social Security disability decision, the factual
findings of the Secretary "shall be conclusive if supported by
'substantial evidence.1" Irlanda Ortiz v. Secretary of Health
and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (guoting 42
U.S.C. § 405(g)).4 The court "'must uphold the Secretary's
Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion.1" Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "This is something less than the weight of the
13 findings . . . if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adeguate to support
[the Secretary's] conclusion.'" Id. (guoting Rodriquez v.
Secretary of Health and Human Servs., 647 F.2d 218, 222 (1st Cir.
1981)); accord Richardson, 402 U.S. at 401. The record must be
viewed as a whole to determine whether the decision is supported
by substantial evidence. Frustaqlia v. Secretary of Health and
Human Servs., 829 F.2d 192, 195 (1st Cir. 1987); Rodriquez, 647
F.2d at 222. Moreover, "[i]t is the responsibility of the
Secretary to determine issues of credibility and to draw
inferences from the record evidence. Indeed, the resolution of
conflicts in the evidence is for the Secretary, not the courts."
Irlanda Ortiz, 955 F.2d at 769 (citing Rodriquez, 647 F.2d at
222); see also Burgos Lopez v. Secretary of Health and Human
Servs., 747 F.2d 37, 40 (1st Cir. 1984). The ALJ must also
consider the plaintiff's subjective complaints of pain if he has
"a clinically determinable medical impairment that can reasonably
be expected to produce the pain alleged." 42 U.S.C. §
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966); Benko v. Schweiker, 551 F. Supp. 698, 701 (D.N.H. 1982).
14 423(d)(5)(A); Avery v. Secretary of Health and Human Servs., 797
F .2d 19, 21 (1st Cir. 1986); 20 C.F.R. § 404.1529.
In her motion, the plaintiff raises several arguments to
support her contention that the Secretary's denial of benefits
was incorrect. The defendant responds that its decision should
be affirmed as the record contains substantial evidence to
support its denial of benefits. The court addresses the
arguments seriatim.
_____ The plaintiff first asserts that the ALJ erred in his
finding that she can work as a receptionist, a semi-skilled job,
because the VE did not identify transferable skills "nor had the
issue of transferable skills been discussed at her hearing."
Plaintiff's Motion at 5 3. The argument fails because the record
contains uncontroverted evidence of the plaintiff's education, a
legitimate "vocational factor" under the regulations. See 20
C.F.R. § 404.1564. The plaintiff testified that she has
completed high school, Tr. at 41-42, and the ALJ explicitly asked
the VE to consider this level of educational experience in the
context of the hypothetical guestion. Tr. 61-61.
The plaintiff next asserts that her "non-exertional
impairments" have reduced her functioning level and preclude the
performance of the full range of sedentary work. Plaintiff's
Motion at 5 4. The court finds that the ALJ recognized the non-
15 exertional impairments and explicitly instructed the VE to
consider the fatigue and visual movement limitations. Tr. at 61.
The court finds it irrelevant that the plaintiff may be unable to
perform the "full range" of all sedentary jobs given the V E 's
conclusion that a hypothetical claimant with the plaintiff's
limitations can work as a receptionist, a sedentary job which
exists in significant numbers in the economy.
The plaintiff next asserts that the "ALJ did not follow the
treating physician's recommendation that [she] only could perform
a greatly restricted range of sedentary work at her home . . . ."
Plaintiff's Motion at 5 5. The plaintiff further asserts that
the ALJ did not include the restrictions suggested by Dr. Johnson
in the hypothetical guestion considered by the VE and that the
ALJ "minimized her treating source reports (e.g. Dr. Johnson)."
Id. at 55 5, 10.
The plaintiff's argument is unavailing as it rests on an
incorrect statement of the law and, in any event, misrepresents
the substance of the administrative record. The ALJ enjoys wide
discretion and considers a host of factors when evaluating a
claimant's medical condition. See 20 C.F.R. § 404.1527. The
First Circuit has made clear that the ALJ is neither reguired to
accept the conclusions of any particular physician nor give
greater weight to conclusions advanced by treating physicians.
16 Arrovo v. Secretary of Health and Human Servs., 932 F.2d 82, 89
(1st Cir. 1991) (quoting Tremblay v. Secretary of Health and
Human Servs., 676 F.2d 11, 13 (1st Cir. 1982)); Keating v.
Secretary of Health and Human Servs., 848 F.2d 271, 275-76 (1st
Cir. 1988) (quoting Barrientos v. Secretary of Health and Human
Servs., 820 F.2d 1, 2-3 (1st. Cir. 1987)). Provided that the
Secretary's decision is supported by substantial evidence, the
failure to rely on the opinion of a treating physician is not an
appropriate grounds upon which the court may reverse. See
Irlanda Ortiz, 955 F.2d at 769; Arrovo, 932 F.2d at 89.
In this case, the ALJ did consider the opinions of the
plaintiff's treating physicians and even incorporated verbatim
Dr. Johnson's recommendation that the plaintiff should not "be
climbing ladders, working on scaffolding, or working around
moving parts" into a hypothetical question posed to the V E .
Compare Tr. at 60-63 (hypothetical question) with Tr. at 150
(text of Dr. Johnson's recommendation). The court finds that the
ALJ did not commit reversible error in his evaluation of the
medical record.
The plaintiff next asserts that the V E 's testimony that a
hypothetical claimant with the plaintiff's abilities could work
as a receptionist was "equivocal at best . . . since he could not
identify a sedentary position 'which does not involve at least a
17 significant amount of visual stimulus.'" Plaintiff's Motion at 5
6 (citing Tr. at 61). However, the court notes that after
further guestioning by the ALJ and additional testimony from the
plaintiff, the VE did conclude that a hypothetical claimant with
the plaintiff's intolerance of freguent visual movement could
work as a receptionist. Tr. 62-63.
The court notes that the V E 's testimony arguably lends
itself to more than one interpretation. However, the existence
of eguivocal testimony does not constite reversible error under
the substantial evidence standard of review. A "reasonable mind,
reviewing the evidence in the record as a whole, could accept
[the V E 's testimony] as adeguate" to support the finding that the
plaintiff is capable of receptionist work notwithstanding her
difficulty with freguent visual stimulus. See Irlanda Ortiz, 955
F.2d at 769. The fact that another reasonable mind could arrive
at a contrary interpretation of the V E 's testimony is not grounds
for reversal as it is the ALJ's responsibility to resolve
conflicts in the evidence. See Irlanda Ortiz, 922 F.2d at 769.
The plaintiff next asserts that the VE "relied on the
technical definition of receptionist and how much movement one
could anticipate, it was significantly less than his testimony
based on experience, an element the . . . regulations require
when they are faced with difficult and complex placement and
18 suitability issues on identifying work . . . " Plaintiff's Motion
at 5 7 (citing 20 C.F.R. § 404.1566(e)) (emphasis supplied).
The argument fails because it is not supported by the cited
authority. The cited subsection of the federal regulations
provides:
If the issue in determining whether you are disabled is whether your work skills can be used in other work and the specific occupations in which they can be used, or there is a similarly complex issue, we may use the services of a vocational expert or other specialist. We will decide whether to use a vocational expert or other specialist.
20 C.F.R. § 404.1566(e) (emphasis supplied). Contrary to the
plaintiff's assertion, the regulation does not reguire the ALJ to
solicit testimony from a VE, even though this may be a common
practice. See id. Moreover, the regulation does not distinguish
between "technical" knowledge and "experience" as a basis for a
V E 's opinion, should the Secretary elect to call a VE to testify.
See id.
The plaintiff next asserts that the ALJ did not properly
take into account the plaintiff's "significant sit and stand
intolerance" as described by Dr. Johnson in his July 1992 note
and by Dr. Krasnoff in her October 14, 1992, note. Plaintiff's
Motion at 5 8.
The stipulation of facts filed jointly by the Secretary and
the plaintiff does not note a significant sit and stand
19 intolerance. See Stipulation of Facts. Likewise, neither Dr.
Johnson's correspondence of October 13, 1992, nor Dr. Krasnoff's
correspondence of November 11, 1992, mention a sit and stand
intolerance, although both letters purport to describe the
plaintiff's workplace restrictions and do, in fact, list several
other physical limitations. Finally, neither of the physicians
who undertook a residual functional capacity evaluation on behalf
of the state have suggested that the plaintiff suffered from this
additional physical limitation. The Secretary's findings are
supported by the medical record as a whole as stipulated by the
parties notwithstanding the ALJ's alleged failure to consider the
scantly documented sit and stand limitations. See Frustaqlia,
829 F.2d at 195.
The plaintiff next asserts that the ALJ failed to properly
consider a variety of subjective complaints, including those of
fatigue and dizziness, the "effect of passive and active motion
around her," "day long unpredictable dizziness and fatigue
attacks," and "the effect of stress on her symptoms."
Plaintiff's Motion at 55 9-12, 14.
The ALJ is reguired to consider the subjective complaints of
pain or other symptoms by a claimant who presents a "clinically
determinable medical impairment that can reasonably be expected
to produce the pain alleged." 42 U.S.C. § 423(d)(5)(A); Avery,
20 797 F.2d at 21; 20 C.F.R. § 404.1529. "[C ]omplaints of pain need
not be precisely corroborated by objective findings, but they
must be consistent with medical findings." Dupuis v. Secretary
of Health and Human Servs., 869 F.2d 622, 623 (1st Cir. 1989);
see Bianchi v. Secretary of Health and Human Servs., 764 F.2d 44,
45 (1st Cir. 1985) ("The Secretary is not reguired to take the
claimant's assertions of pain at face value.") (guoting Burgos
Lopez v. Secretary of Health and Human Servs., 747 F.2d 37, 40
(1st Cir. 1984)). Once a medically determinable impairment is
documented, the effects of pain must be considered at each step
of the seguential evaluation process. 20 C.F.R. § 404.1529(d).
A claimant's medical history and the objective medical evidence
are considered reliable indicators from which the ALJ may draw
reasonable conclusions regarding the intensity and persistence of
the claimant's pain. Avery, 797 F.2d at 23; 20 C.F.R. §
404.1529(c)(3). However, situations exist in which the reported
symptoms of pain suggest greater functional restrictions than can
be demonstrated by the medical evidence alone. Id.
When a claimant complains that pain or other subjective
symptoms are a significant factor limiting her ability to work,
and those complaints are not fully supported by medical evidence
contained in the record, the ALJ must undertake further
exploration of other information. Avery, 797 F.2d at 23. The
21 ALJ must consider the claimants's prior work record; daily
activities; location, duration, frequency and intensity of pain;
precipitating and aggravating factors; type, dosage,
effectiveness and side effects of any medication taken to
alleviate pain or other symptoms, past or present; treatment,
other than medication, received for relief of pain or other
symptoms, past or present; any measures used, past or present, to
relieve pain or other symptoms; and other factors concerning
functional limitations and restrictions due to pain. 20 C.F.R. §
404.1529(c)(3); Avery, 797 F.2d at 23; SSR 88-13. Moreover, when
assessing credibility the ALJ may draw an inference that the
claimant would have sought additional treatment if the pain was
as intense as alleged. See Irlanda Ortiz, 955 F.2d at 769. If
the complaints of pain are found to be credible under the
criteria, the pain will be determined to diminish the claimant's
capacity to work. 42 U.S.C. § 423(d); 20 C.F.R. §
404.1529(c)(4). Finally, the court gives deference to
credibility determinations made by the ALJ, particularly where
the determinations are supported by specific findings.
Frustaqlia, 829 F.2d at 195 (citing DaRosa v. Secretary of Health
and Human Servs., 803 F.2d 24, 26 (1st Cir. 1985)).
The ALJ announced findings of fact which support his
conclusion that the plaintiff's subjective complaints were not
22 credible. First, the plaintiff's treating physicians have
released her to work with certain restrictions, each of which was
posed to the VE in the form of a hypothetical question. See Tr.
at 21-22. Second, the plaintiff's complaints of visual
limitations associated with watching television or viewing
spinning objects were also considered by the V E . Id. Third, the
ALJ found that the plaintiff's daily activities, as reported on
the claimant questionnaire and described at the administrative
hearing, "belie her complaints of disability." Id. at 22.5
5Ihe plaintiff argues that Lancellotta v. Secretary of Health and Human Servs., 806 F.2d 284 (1st Cir. 1986), requires the ALJ to include her subjective complaints of stress in a hypothetical question to the V E . Plaintiff's Motion at 5 14. The argument is unavailing. In Lancellotta the ALJ, while acknowledging a severe mental impairment, did not make findings concerning the nature of the claimant's stress and its potential vocational impact even though the record contained medical reports detailing a variety of ailments, including anxiety and depression. 806 F.2d at 285. The First Circuit vacated and remanded. Id. at 286. In contrast, the plaintiff in this case has presented no medical evidence of a mental, anxiety or stress disorder beyond the subjective complaints such as those described in her questionnaire and in the following colloquy:
Claimant: When I get stressed out and dizzy, I cannot sleep. ALJ: Stressed out, you say? Claimant: Yeah. ALJ: What makes people -- what makes you stressed out? Do you know? Claimant: Normal life, II [sic] guess.
Tr. at 48-49; see Stipulation of Facts (no mention of stress or related disorder other than comment that "plaintiff noted that her balance and dizziness bother her when she gets stressed . . ."). The plaintiff has not advanced authority for her
23 The ALJ considered the Avery factors and, in so doing, made
credibility determinations based on specific findings supported
by the record. The ALJ also had the opportunity to observe the
plaintiff's demeanor at the hearing and was entitled to draw
inferences based on those observations. Given the deferential
standard of review, the court concludes that the specific
findings along with the overall record in this case demonstrate
that the ALJ's conclusion that the subjective complaints were not
credible is supported by substantial evidence.
As her final grounds for reversal, the plaintiff asserts
that the ALJ improperly considered her prior receipt of unem
ployment benefits when assessing her credibility. Plaintiff's
Motion at 5 13 (citing Kinsella v. Schweiker, 708 F.2d 1058, 1066
(6th Cir. 1983) (dissenting opinion); Flores v. Secretary of
Health, Educ. and Welfare, 465 F. Supp. 317 (S.D.N.Y. 1978)).
The plaintiff objects to the ALJ's finding that "[i]n addition,
the claimant testified at the hearing that she collected
unemployment benefits through November, 1992 which would indicate
proposition that subjective complaints of stress of this nature, where unsupported by the medical record, must be adopted by the ALJ or presented as a limitation to the VE in a hypothetical guestion. The court finds that the ALJ's failure to place weight to such subjective complaints does not constitute reversible error.
24 that the claimant felt she had the ability to return to
employment." Tr. at 22.
The First Circuit has addressed this issue:
[Plaintiff] also criticizes the Secretary for con sidering the fact that he collected unemployment benefits . . . while allegedly disabled. . . . In his opinion, the ALJ said the fact that [the plaintiff] collected unemployment benefits indicated [the plain tiff] was "ostensibly ready, willing, and able to work." It is not clear that the ALJ saw [the plain tiff] 's collection of unemployment benefits as positive evidence he could work; it may be that the ALJ thought the evidence affected [the plaintiff]'s credibility. In any event, although we have reservations about the significance of such evidence, we are reluctant to say that a claimant's decision to hold himself out as able to work for the purpose of receiving unemployment bene fits may never be considered on the issue of disabil ity. At least where there was medical and vocational evidence supporting the denial of benefits and claimant's receipt of unemployment benefits does not appear to have been the decisive factor in the denial of benefits, we are not inclined to overturn the Secretary's decision.
Perez v. Secretary of Health, Educ. and Welfare, 622 F.2d 1, 3
(1st Cir. 1980) (citations omitted). The First Circuit also
distinguished Flores, a case upon which the instant plaintiff
relies, because that decision involved a situation where the "ALJ
relied almost exclusively on claimant's receipt of unemployment
benefits." Id.
The ALJ's findings relative to the prior receipt of
unemployment benefits were plainly made in the context of his
assessment of the plaintiff's credibility. See Tr. at 22.
25 Moreover, the record contains a variety of vocational and medical
evidence supporting the Secretary's denial of benefits and, thus,
the receipt of unemployment benefits cannot be considered a
"decisive factor" in the ALJ's ruling. See Perez, 622 F.2d at 3.
The court finds that the incidental reliance of the receipt of
unemployment benefits to have been proper in the context of the
ALJ's credibility determination.
Conclusion
Based on the foregoing analysis, the court finds that the
Secretary did not commit reversible error as alleged by the
plaintiff. The defendant's motion to affirm the decision of the
Secretary (document no. 10) is granted. The plaintiff's motion
to reverse the decision (document no. 5) is denied. This order
resolves the underlying dispute between the parties and the clerk
is ordered to close the case.
SO ORDERED.
Joseph A. DiClerico, Jr, Chief Judge March 27, 1995
cc: Raymond J. Kelly, Esguire David L. Broderick, Esguire