McCarthy v. HHS CV-94-288-JD 08/09/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gary McCarthy
v. Civil No. 94-288-JD
Secretary, Health & Human Services
O R D E R
The plaintiff, Gary McCarthy, brings this action pursuant to
§ 205(g) of the Social Security Act ("Act") a 42 U.S.C. § 405(g),
seeking review of a final decision of the defendant. Secretary of
Health and Human Services ("Secretary"), denying his claim for
benefits under the Act. Before the court are the plaintiff's
motion to reverse the Secretary's decision (document no. 9) and
the defendant's motion to affirm the Secretary's decision
(document no. 11).
Background1
The plaintiff, born on July 24, 1956, was thirty-seven years
old when the Secretary conducted the administrative hearing.
Transcript of Administrative Record ("Tr.") at 47. The plaintiff
has a tenth grade education, and his vocational history includes
1The court's recitation of the procedural and factual background of this case is drawn from the stipulation of facts filed jointly by the parties. work as a roofer, a cleaner, and a fence erector. I d . at 173.
The plaintiff alleges disability due to a broken ankle, nerve and
ligament damage, lower back pain, and alcohol abuse.
I. Medical Records
On October 31, 1990, the plaintiff fell off a ladder while
working on a roof, landing on and fracturing his right heel bone,
known as the calcaneus. Tr. at 248, 249. The following day, the
plaintiff was examined by Mary Sole, a physician with the
Hitchcock Clinic, who placed him in a short leg cast and
recommended that he elevate the foot, use crutches, and avoid
placing weight on the foot. I d . at 249. Dr. Sole noted that the
plaintiff appeared somewhat intoxicated at the time of
examination. Id. During a follow up examination on November 30,
1990, the plaintiff reported increasing pain and irritation deep
within the ankle. Id.
On December 17, 1990, Dr. Sole removed the cast and noted
that the plaintiff had a 75% range of motion, mild tenderness
over the fracture site, and minimal swelling. Tr. at 250. The
doctor also noted evidence of healing, recommended that the
plaintiff place weight on the ankle, reduce his use of crutches,
and undergo physical therapy. Id. X-rays taken at that time
2 revealed that the fracture was hardening and healing. I d . at
252 .
On January 1 4 , 1991, Dr. Sole again examined the plaintiff
and noted significant heel pain, improved swelling, and a
markedly improved range of motion. Tr. at 250. The plaintiff
had decreased his use of crutches. Id. X-rays revealed disuse
osteoporosis and increased healing. Id. Dr. Sole observed
continued healing of the fracture with slow recovery and
recommended that the plaintiff continue physical therapy to
improve his range of motion, decrease the use of crutches, and
increase physical activity. Id.
On February 11, 1991, Dr. Sole again examined the plaintiff,
who continued to complain of significant pain in the lateral
aspect of the foot and ankle, which the doctor related to marked
heel valgus and foot pronation and lack of arch. Tr. at 254.
The doctor also noted that the pain may be attributed to
displaced fracture fragments in the lateral subtalar joint. Id.
The plaintiff's range of motion had continued to improve and the
doctor prescribed arch supports, ordered a CT scan, and indicated
that the plaintiff might benefit from a subtalar fusion. Id.
On February 25, 1991, Dr. Sole again examined the plaintiff,
who was tender at the lateral heel and tendons. Tr. at 254. The
CT scan revealed early degenerative joint disease and
3 degenerative changes in the lateral aspect of the subtalar joint,
along with the comminution, or breakdown, of the subtalar joint.
Id. Dr. Sole noted ankle pain secondary to scarring over the
tendons around the callous, compromised by some early
degenerative changes and she proposed cortisone injections if the
plaintiff did not improve in three weeks. Id.
On March 18, 1991, Dr. Sole again examined the plaintiff,
who demonstrated an improved range of motion with decreased pain
and increased weight bearing. Tr. at 255. However, the
plaintiff expressed considerable frustration as he still suffered
significant pain in the ankle and could not walk for prolonged
periods without the use of crutches. Id. He was tender over the
peroneal tendons and lateral subtalar joint. The doctor noted
the continued improvement and prescribed physical therapy and
decreased use of crutches. Id.
On April 8, 1991, Dr. Sole again examined the plaintiff and
noted little change in his condition. Tr. at 255-54. The doctor
further noted an impression of right calcaneus fracture with
residual loss of subtalar motion and evidence of inflammation
around the peroneal tendon sheath. Id. The plaintiff enjoyed
immediate pain relief from a cortisone injection into the
peroneal sheath. Id.
4 On May 9, 1991, Dr. Sole again examined the plaintiff and
noted increased pain which she attributed to increased weight
bearing and ambulation and, in particular, to pronounced
pronation at mid-foot placed pressure on the lateral subtalar
joint. Tr. at 256. The plaintiff discontinued physical therapy
because the increased pain prevented his participation. I d . at
256, 277 (physical therapy note). Dr. Sole diagnosed status-post
calcaneal fracture, healed but with subtalar joint irritation and
probable peroneal tendon scarring. Id. She placed the plaintiff
back in a short walking cast in an effort to reduce inflammation
and noted that if this were successful a subtalar fusion would
probably be necessary. Id.
On May 31, 1991, Dr. Sole again examined the plaintiff, who
reported less pain. Tr. at 257. The cast was removed and the
plaintiff exhibited some limitation of motion in the subtalar
joint but otherwise displayed a fairly good range of motion in
the ankle. Id.
On June 18, 1991, Dr. Sole again examined the plaintiff and
noted no change in his condition. Tr. at 257-58. He continued
to use crutches to ambulate long distances, complained of pain in
the lateral heel and ankle, and reported a pop and catch of the
peroneal tendons along the lateral malleolus. Id. The plaintiff
continued to walk with marked heel valgus and barefoot and
5 midfoot pronation. Id. Dr. Sole noted tenderness, with a fairly
good range of motion but painful subtalar motion. Id. X-rays
were interpreted to show some irregularities in the posterior
talocalcaneal joint and marked demineralization, which Nancy
Beaurivage, a radiologist with the Hitchcock Clinic, suggested
might be reflex sympathetic dystrophy. I d . at 258, 261. Dr.
Beaurivage also considered a relatively minor tendon release
operation. Id.
Dr. Sole examined the plaintiff twice in July 1991. Tr. at
262 (notes of July 25, 1991), 263 (notes of July 29, 1991). At
that time she diagnosed him with cellulitis accompanied by
increased pain and swelling. Id. The condition was treated by
seven days of antibiotics and Ansaid medication, foot elevation,
and hot soaks. Id. Dr. Sole noted her impression of right
subtalar arthritis secondary to calcaneal fracture, severe, in
need of a probable subtalar fusion. Id. She also indicated that
the plaintiff ultimately would need surgery but that such
treatment could be postponed until he had some kind of insurance.
Id.
Dr. Sole next examined the plaintiff on February 5, 1992, at
which time she noted that he had no change in his symptoms, could
not walk distances greater than fifty feet because of pain, and
continued to use crutches or a cane to ambulate long distances.
6 Tr. at 264. The plaintiff complained of pain even when not
weight-bearing, exhibited little swelling, had a limitation of
motion and tenderness at the inframalleolar and subtalar joints,
and mild discomfort in the ankle. Id. The doctor further noted
that diffuse burning pain accompanied all ankle motion. Id. Dr.
Beaurivage interpreted the X-rays to reveal some irregularities
in the posterior talus and talar calcaneal joints with no
evidence of significant arthritis in other joints. I d . at 265.
Based on these findings and the fact that the plaintiff
complained of pain levels disproportionate to the clinical
findings. Dr. Sole indicated that the plaintiff may suffer from
reflex sympathetic dystrophy ("RSD"). Id. The doctor
recommended a lumbar sympathetic block which she expected would
assist the plaintiff if, in fact, he did have RSD. Id. However,
the doctor noted that such treatment would not be helpful if the
plaintiff's diffuse osteoporosis was due to disuse, and not RSD,
in which case subtalar fusion would be a more beneficial
treatment. Id.
The plaintiff underwent the lumbar block and Dr. Sole noted
marked initial improvement during a February 19, 1992,
examination. Tr. at 266. The medical record indicates that the
plaintiff was able to walk without particular pain in the ankle
but with some stiffness. Id. Dr. Sole suggested that should the
7 symptoms return additional lumbar blocks might be necessary for
the plaintiff to resume his normal activities. Id.
On February 2 8 , 1 9 9 2 , Dr. Sole diagnosed the plaintiff with
a second episode of cellulitis and attendant pain and redness,
which she attributed to poor circulation. Tr. at 267. The
doctor, who also noted erythema on the foot, mild edema and very
exguisite tenderness, prescribed antibiotics. Id.
The plaintiff returned to the Hitchcock Clinic on March 6,
1992, at which time he reported to Brian Kimball, a physician's
assistant, that two days earlier someone had fallen on his right
foot during a minor altercation in a bar. Tr. at 268. The
plaintiff also reported that his symptoms had not improved and,
in fact, that he noticed increased swelling below the medial and
lateral malleolus. Id. The physician's assistant noted that the
plaintiff was instructed to continue with the antibiotics, to
elevate his foot, and to apply ice compresses. Id.
On March 11, 1992, Dr. Sole again examined the plaintiff,
who reported good pain relief, and minimal swelling with use of
Ansaid. Tr. at 270. The doctor noted normal flexion and
extension of the ankle, with no inversion or eversion, and no
tenderness in the foot. Id. Dr. Sole noted her impression of
status-post mild cellulitis on the dorsum of the right foot,
resolved, with ecchymosis secondary to contusion, which was improving. Id. Dr. Sole instructed the plaintiff to schedule
another lumbar block as the first one appeared to be wearing off.
On October 20, 1992, the plaintiff was examined by James
Shea, an orthopedic surgeon hired by the state office of
disability determinations to conduct an orthopedic consultation.
Tr. at 279-81. At the time the plaintiff, who was limping,
complained of pain in his lower back related to the 1988 fall
from the ladder, as well as pain in his right foot and ankle.
Id. The plaintiff further complained of recent, nonspecific neck
discomfort but otherwise indicated that his health was good. Id.
Dr. Shea noted that the plaintiff was well nourished, with a
normal gait and slow pace. Id. The physical examination
revealed an unremarkable cervical spine, and a full range of
motion with hesitation and complaints of discomfort but without
muscle spasm. Id. Dr. Shea noted moderate tenderness at L3 to
L5, definite atrophy of the right lower extremity, and that the
plaintiff refused to walk heel to toe on the right. Id. The
doctor further noted a limitation of motion in the right ankle
and his right calcaneus was clinically widened, especially under
the lateral malleolus. Id. Dr. Shea diagnosed a lumbar strain,
and a healed calcaneal fracture of the right foot with secondary
significant atrophy of the right leg. Id. Dr. Shea noted that the plaintiff's ability to stand and walk was markedly limited,
that his ability to sit was not limited, and that his ability to
lift, carry, and bend was moderately limited. Id.
On January 29, 1993, the plaintiff underwent a consultative
psychological evaluation conducted by William Jamieson, a
clinical psychologist practicing in Manchester. Tr. at 283-85.
Dr. Jamieson noted that the plaintiff was poorly groomed and
dressed, appeared much older than his age, and stated that he had
consumed a six pack of beer in the three hours preceding the 1
p.m. appointment. Id. The psychologist observed that the
plaintiff was somewhat labile, alert, oriented, displayed
adeguate attention and cooperation, with good cooperation and
effort. Id. The plaintiff reported that he injured his ankle
and back when he fell through a roof in 1987. Id. He also
complained of boredom and indicated that he spent all of his time
at home or going to clubs and stated that he drank daily in order
to sleep. Id. Dr. Jamieson administered testing despite the
plaintiff's earlier consumption of alcohol "with the expectation
that whenever the patient would be have been seen, he would be
under the influence of some alcohol." I d . at 284. The Rorschach
testing was not suggestive of thought disorders and the other
testing was not suggestive of either a major depressive disorder
or of disabling anxiety. I d . at 283-85. Dr. Jamieson diagnosed
10 the plaintiff with a generalized anxiety disorder with an
underlying personality disorder and with a significant element of
impulse control difficulty. Id. Dr. Jamieson further indicated
that the plaintiff had limited insight, marginal judgment, was
easily influenced by emotional arousal, possibly related to
alcohol consumption, and was minimally capable of managing his
funds. Id.
On July 31, 1993, Dr. Sole prepared an RFC assessment of the
plaintiff, indicating that he was capable of lifting and carrying
objects weighing up to ten pounds freguently and up to twenty
five pounds occasionally, could sit without limitations, and
could stand up to one hour in an eight hour day, in fifteen
minute increments. Tr. at 299-303. Dr. Sole attributed these
limitations to a right subtalar joint advanced post-traumatic
arthritis and probable right lower extremity RSD. Id. Dr. Sole
indicated that the plaintiff should avoid climbing, balancing and
temperature extremes but would not encounter difficulty with fine
manipulation. Id.
On August 1, 1993, Dr. Sole indicated that the plaintiff had
an increased tendency to have right foot cellulitis due to
chronic lymphedema because of his condition. Tr. at 304-307.
She further indicated that the plaintiff needed a repeat
11 sympathetic block and that the symptoms of his chronic cellulitis
were relieved with antibiotics. Id.
The plaintiff was examined on August 6 , 1993, by John
Blowen, a nurse practitioner practicing in Manchester. Tr. at
309. At the time the plaintiff complained of a sore ankle and
recounted a history of many and varied injuries, several related
to fights, and problems related to alcohol and tobacco use. Id.
The plaintiff was not taking prescription medication. Id. The
physical examination revealed a runny nose, sore throat, very bad
teeth and gums, and alcohol on the breath. Id. The nurse
diagnosed the plaintiff with substance abuse, post-traumatic
arthritis right ankle, chronic low back pain, possible
sinobronchitis, and gingivitis. Id. The nurse indicated that
the plaintiff was unemployable mostly due to musculoskeletal
problems, exacerbated by alcoholism. Id. The plaintiff was
prescribed Naprosyn for pain and Suprax for the bronchitis. Id.
II. Procedural Background
The plaintiff filed the current applications for benefits on
September 8, 1992, claiming an inability to work since October
31, 1990. Tr. at 132 (application for disability insurance
benefits); 221 (application for supplemental security income).
The applications were denied initially, i d . at 146-48, 236, and
12 following reconsideration by the Social Security Administration.
I d . at 164-66, 242-44. An administrative law judge ("ALJ"),
before whom the plaintiff, his attorney and a vocational expert
("VE") appeared for a hearing, considered the matter de novo and,
on November 19, 1993, ruled that the plaintiff was not entitled
to either disability or SSI benefits. I d . at 10-24, 25-27
(decision of Klingebiel, J.).
At the administrative hearing, the plaintiff testified about
his personal history, vocational experience, medical history,
symptomology, daily activities and physical capabilities. The
plaintiff testified that in the past he had worked as a roofer,
laborer and cleaner, Tr. at 47, and he had injured his back
initially when he fell through a roof in 1988 but had
subseguently returned to work. I d . at 58, 60. In reference to
his 1990 injury, the plaintiff testified that he shattered his
ankle and heel by falling ten feet off a ladder. I d . at 49-50.
The plaintiff described his ankle pain as sharp with a
severity of ten on a scale of one to ten. Tr. at 67. He rates
his physical impairments in descending order of severity as his
ankle, back, and shoulder. I d . at 60. The plaintiff testified
that his right shoulder bothers him when he lifts it, i d . at 61,
and that he experiences lower back pain which runs down his legs.
13 I d . at 62. At night the plaintiff hangs his leg over the end of
the bed. I d . at 57.
The plaintiff testified that he has been treated by
physicians and physical therapists but continues to suffer severe
and sharp ankle pain while sitting and standing. Tr. at 50-51.
The treatment included a special sling or wrap which the
plaintiff wears on his ankle at all times. I d . at 57. The
plaintiff testified that he is limited to light duty with no
lifting, no prolonged walking, no bending, no kneeling, and no
sguatting. I d . at 61-62. The plaintiff stated that prolonged
sitting and stretching would bother his back, i d . at 62, and that
these symptoms would prevent him from working in a sitting job as
a small parts assembler. Id.
The plaintiff testified that his treating physicians would
not prescribe pain medication because of his alcohol use, Tr. at
52, but that he has received cortisone shots for the ankle pain
in 1991, which were not particularly helpful, and a sympathetic
lumbar block in order to reduce the nerve pain in the foot. Id.
at 51. The plaintiff self-medicates with alcohol in an effort to
reduce his pain and may consume up to three, six-packs of beer a
day but does not drink hard liguor. I d . at 52. The plaintiff,
who did not drink the day of the hearing, i d . at 55-56, testified
that there are periods of time in which he would go a day or two
14 without drinking. I d . at 71. The plaintiff drank heavily for a
"long time" before his 1990 injury. I d . at 52. The plaintiff
reported blackouts and memory problems because of his drinking,
i d . at 55, and, prior to his ankle injury, experienced
hallucinations about seeing people. I d . at 65-66. At the time
of the hearing the plaintiff testified that his beer consumption
had increased so that he could fall asleep but that the pain
wakes him up at all hours nonetheless. I d . at 66-67. The
plaintiff often relies on his friends to purchase alcohol for him
at area bars. I d . at 70. The plaintiff testified that his
brothers "always ask[] me, you know, guit drinking. I say what
the hell for." Id. at 71.
The plaintiff testified that he receives $111.00 worth of
foodstamps each month and that the City of Manchester contributes
$300 a month towards his rent. Tr. at 48. While on welfare, the
city attempted to reguire the plaintiff to separate newspapers
into piles at a recycling center but his job performance was so
inadeguate that he was sent home by his supervisors. I d . at 54.
The ALJ also heard testimony from Christopher Wood, a
private disability case manager who appeared as an impartial
vocational expert ("VE"). Based on information provided by the
Secretary on the plaintiff's vocational history. Wood reported
that the plaintiff's prior job as a roofer, as the plaintiff
15 performed it, is considered semi-skilled at a medium exertional
level, Tr. at 74, and that the prior job as a fence erector is
considered skilled at a heavy exertional level. Id.
Wood also testified in response to hypothetical questions
posed by the ALJ in which he was to assume a thirty-seven year
old claimant with the plaintiff's education and work experience
and a functional capacity limited by an inability to stand or
walk for more than fifteen minutes at a time and an inability to
bend, stoop, kneel, crouch, crawl, and perform other postural
activities with any frequency durinq the day. Tr. at 75. He was
to further assume a hypothetical claimant "who perhaps would be
able to lift up and carry 20 pounds maximum but . . . would not
be able to handle anythinq more than 20 pounds." Id. Wood
responded that an individual with the capabilities of the
hypothetical claimant would be incapable of performinq any of the
plaintiff's prior jobs. I d . at 75-76. However, he testified
that the hypothetical claimant could perform unskilled jobs at
the sedentary level, i d . at 7 6, and that such jobs would include
bench assembly, hand packaqinq, polishinq, buffinq, qrindinq,
hand coatinq and paintinq. Id. Specifically, Wood stated that
there are approximately 5,600 bench assembly positions in New
Hampshire with 200,000 in the national economy and, of these
jobs, 500 in New Hampshire constitute sittinq down, sedentary
16 positions with the remaining 5,100 constituting light duty
positions which would reguire prolonged periods of standing. Id.
at 76-78. With regard to the packaging position. Wood testified
that there exist approximately 300 sedentary jobs in New
Hampshire with 70,000 in the national economy. I d . at 78. With
regard to the polishing, buffing, and grinding positions. Wood
testified that there exist approximately forty-five to fifty
sedentary jobs in New Hampshire with 33,000 in the national
economy. Id. With regard to the hand coating and painting
positions. Wood testified that there exist approximately 4,700
sedentary jobs in the national economy and, although he could not
offer a specific number, the incidence of such jobs in New
Hampshire "would really be insignificant." I d . at 78-79. Wood
further testified that there are less than 100 "sit-down monitor
or security guard types of jobs" in the New Hampshire. I d . at
79.
The ALJ next modified the hypothetical and the following
colloguy took place:
ALJ: Now, in regard to these jobs that are, as you've indicated, mostly sitting or sit-down types of jobs, if in addition to that limitation of not being able to be on their feet for more than 15 minutes or so an individual had to get up from time to time from the sitting position, that is, had to stand up and perhaps make themselves comfortable for a couple of minutes before sitting back down again, would these jobs
17 accommodate someone being able to get up, let's say every 30 minutes or every, somewhere between 30 minutes and an hour, before sitting down again or would someone have to be sitting down without any ability to interrupt the sitting position during the day?
VE: I think that in some of the positions such as the polishing, buffing, grinding and the hand coating and painting that the production reguirements might preclude changing of position. Sometimes with the packaging, the lighter packaging, there's enough of an opportunity for change of position that just occurs naturally in the course of the job because they're, they're packaging and taking what they packaged to another station.
T r . at 7 9-80.
The plaintiff's attorney next examined the VE and posed a
hypothetical:
If in the moving and making comfortable the worker has to leave the work station twice an hour, which means 12 or 13 times during the workday, and by moving and making comfortable I mean he just doesn't stand up like this, he has to walk away from the station and maybe walk 10 or 15 feet one way or another to sort of maybe get the kinks out of the leg or the problem he's having with the back, would that seriously compromise his ability to do the jobs that you've identified as far as the bench assembly or the hand packaging?
Tr. at 80. Wood responded yes, acknowledging that such
additional limitations would significantly erode the number of
jobs the hypothetical claimant could perform. I d . at 81. The
plaintiff's attorney next asked guestions about the nature and
source of the V E 's statistical data, which Wood explained is
18 based on census data and the characteristics of the national
labor forces. Id. Wood further testified that the sedentary
bench assembly position constitutes less than one half a percent
of all domestic jobs, i d . at 81-82, and that the sedentary,
sitting-down bench assembly position accounts for 500 jobs in New
Hampshire, or approximately one tenth of one percent of all jobs
in the state. I d . at 82-84.
The ALJ applied the five-step sequential process applicable
to a claimant's disability application. 20 C.F.R. §§ 404.1520,
416.920 (1994) .2 The ALJ found (1) the plaintiff has not engaged
in substantial gainful activity since October 31, 1990; (2) the
plaintiff satisfied the disability insured status requirements of
the Act on October 31, 1990, and continued to satisfy those
requirements until December 30, 1992; (3) the medical evidence
establishes that the plaintiff has severe
2The 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: (3) whether the impairment meets or equals 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.
19 impairments, including lower back pain and post-traumatic
arthritis of the right ankle, but that he does not suffer from an
impairment or combination of impairments listed in, or medically
egual to one listed in. Appendix 1, Subpart P, Regulations No. 4;
(4) the plaintiff does have a reported history of alcohol abuse
but that this is not a severe impairment because he has not been
identified as having an alcohol problem which would in any way
interfere with his ability to perform basic work related
activities since his alleged onset date; (5) the impairment
prevents the plaintiff from performing his past relevant work;
and (6) there are a significant number of jobs in the national
economy which the plaintiff could perform, notwithstanding his
impairment. I d . at 23-24. The ALJ found that the plaintiff's
residual functional capacity ("RFC") would allow him to
perform the physical exertion and nonexertional reguirements of work except for lifting greater than 20 pounds, and is limited to positions which would reguire mostly sitting, no more than minimal standing and walking and which would allow for his need to get up approximately once each hour to change positions to relieve any discomfort which he may experience.
I d . at 23 .
In addition, the ALJ found the plaintiff's claim of
disabling pain to be inconsistent with the medical evidence,
contradicted by his daily activities and functional activities as
reported by his treating and examining sources, and not credible
20 under the criteria announced in Avery v. Secretary of Health and
Human Servs., 797 F.2d 19 (1st Cir. 1986). Tr. at 23. 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 the decision. I d . at 24.
The Appeals Council denied the plaintiff's reguest for
review on April 22, 1994, rendering the ALJ's decision the final
decision of the Secretary. Tr. at 4-5. The plaintiff filed this
action on May 31, 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)).3 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. NLR B , 305 U.S. 197, 229 (1938)). "This is something less than the weight of the
21 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.'" I d . (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).
22 423(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 his motion, the plaintiff raises three separate arguments
to support his 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.
I. Subjective Complaints of Pain
The plaintiff first asserts that the ALJ did not properly
evaluate his subjective complaints of pain and, in particular,
the debilitating pain attacks allegedly related to the
plaintiff's diagnosis with reflex sympathetic dystrophy ("RSD").
Plaintiff's Memorandum in Support of Motion to Reverse and Remand
("Plaintiff's Memorandum") at 16, 18.
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,
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
23 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 required to take the
claimant's assertions of pain at face value.") (quoting 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 sequential 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 his 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
ALJ must consider the claimants's prior work record; daily
activities; location, duration, frequency and intensity of pain;
precipitating and aggravating factors; type, dosage, effective
24 ness 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
credible. First, the ALJ noted that the plaintiff reported in
disability reports that he performs household tasks, such as
cooking and cleaning, and attends private clubs in the Manchester
25 area in order to socialize with others. Tr. at 19-20. Second,
when assessing the credibility of the allegations of pain the ALJ
explicitly relied on the reports of the plaintiff's treating
physician. Dr. Sole, i d . at 20, who submitted an RFC assessment
based on a diagnosis of "probable right lower extremity reflex
sympathetic dystrophy." I d . at 299. Thus, contrary to the
plaintiff's assertion, the ALJ did consider the effect of the RSD
diagnosis by explicitly relying on a treating physician
assessment based on that diagnosis. See i d . at 20. Third, the
ALJ found the plaintiff's testimony at the hearing concerning
shoulder pain and persistent pain radiating into his lower left
extremity to be inconsistent with the bulk of his written medical
history in which he complained primarily of pain in his right
ankle. I d . at 20. The ALJ accurately observed that
[i]t was only for purposes of his disability evaluation that he noted to Dr. Shea that he had persistent back pain since falling through a roof many years previously. Upon examination by Dr. Shea, the claimant specifically noted that he had never had any radiation of his back pain into his lower extremities and had never had weakness or paresthesia of his legs. Nevertheless, at the hearing, the claimant testified that his back pain has been persistent with radiation into the left lower extremity.
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
26 plaintiff's demeanor at the hearing and was entitled to draw
inferences based on those observations. The court acknowledges
that the record contains some evidence which may suggest levels
of pain greater than that found by the ALJ, such as the written
assessment of Nurse Blowen who, following a single examination,
noted that the plaintiff suffers chronic low back pain. I d . at
309. Nonetheless, the fact that the record is not eguivocal in
all respects does not compromise the ALJ's credibility assessment
because conflicts in the record are necessarily resolved by the
Secretary and not on appeal to federal court. See Irlanda Ortiz,
955 F.2d at 769. 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.
II. Alcohol Consumption
The plaintiff next asserts that the record does not contain
substantial evidence to support the ALJ's conclusion that his
alcohol consumption does not constitute an addition non-
exertional limitation. Plaintiff's Memorandum at 24-27.
A claimant may gualify as disabled under the Act by
demonstrating that their use of alcohol has resulted in
27 behavioral or physical changes which satisfy any one of the nine
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1,
Section 12.09 ("substance addiction disorders"). See Arroyo, 932
F.2d at 86, n.8.4 Proof that a substance addiction disorder has
resulted in a condition that meets, or equals, one ofthe nine
listed impairments will establish that the claimant isdisabled
at step three of the sequential process. Arroyo, 932 F.2d at
n.8; Calvert v. Secretary of Health and Human Servs., No. 91-291-
D,slip op. at 15, n.2 (D.N.H. Jan. 22, 1992).
In addition to analysis under part 404, the First Circuit
has announced an alternative basis upon which a claimant may
establish a disability based on their consumption of alcohol:
Substantial authority holds that a claimant who seeks disability benefits on grounds of alcoholism must prove that he is addicted to alcohol and has lost the ability to control his drinking. In addition, the claimant must show that his alcoholism precludes him from engaging in substantial gainful activity.
We agree that alcoholism can constitute a compensable disability under this test. But we emphasize that even though alcoholism, by definition, imports a certain lack of control, evidence that a claimant has been diagnosed a chronic alcoholic is not sufficient to establish that the claimant has lost the ability to control his consumption of alcohol. This inquiry requires that we determine whether claimant has so far lost the capacity for self control that he has
4The impairments listed are: Organic Mental Disorders; Depressive Syndrome: Anxiety Disorders; Personality Disorders; Peripheral Neuropathies; Liver Damage; Pancreatitis; and Seizures. 20 C.F.R. Part 404, Subpart P, A p p . 1, § 12.09 (1994).
28 been "rendered impotent to seek and use means of rehabilitation." . . . This result is consistent with the requirements for evaluating all disability claims, and reflects the reality that many alcoholics work.
Arroyo, 932 F.2d at 86-87 (extensive citations and quotations
omitted). The fact that a claimant was able to remain employed
during a time period in which he was drinking heavily supports
the conclusion that the claimant had not lost the ability to
control his drinking. I d . at 87. Finally, the Secretary's
failure to consider this alternative basis for disability on
account of alcoholism requires the court to remand consistent
with the Arroyo analysis. See Calvert, slip op. at 19.
The ALJ addressed in some detail the issue of the
plaintiff's alcohol consumption in his written decision and, in
so doing, performed an analysis consistent with that outlined by
the First Circuit in Arroyo. See Tr. at 17-21.5 The ALJ found
that although the plaintiff testified that he has a history of
alcohol abuse, "his testimony also indicated that he does not
consume alcohol on a daily basis and did not suggest that he
would be unable to stop the use of alcohol consumption." I d . at
17. The ALJ further found that
[t]he claimant has not required any psychological or psychiatric treatment and has not exhibited
5Ihe plaintiff does not assert that he has satisfied one of the nine impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.09.
29 deficiencies in his activities of daily living as a result of alcohol abuse. There is no evidence that the claimant's use of alcohol affects his ability to function in a work environment.
I d . at 18.
The court considers whether the ALJ's findings relative to
the plaintiff's alcoholism are supported by substantial evidence.
In his brief, the plaintiff has accurately summarized the
substantial body of evidence indicating that he does, in fact,
abuse alcohol, see Plaintiff's Memorandum at 26-27, and the court
recognizes that this consumption has interfered with his life in
great measure. The court further recognizes that the medical
records indicate reliance on alcohol, see, e.g., Tr. at 283-85,
309, and that the plaintiff's testimony at the hearing manifests
an unwillingness to guit or curtail his drinking. I d . at 71.
However, the record also contains evidence that the plaintiff
does not drink every day, i d . at 71, did not drink the day of the
hearing, i d . at 55-56, and has been a heavy drinker for a "long
time" before his first injury in 1990 -- a period of time during
which he maintained steady employment. I d . at 52. Moreover, the
reports of Dr. Jamieson, who examined the plaintiff while
intoxicated, and the report of Dr. Rauter, explicitly take into
account the alcohol dependence but do not suggest that this
condition would prevent the plaintiff from working. See i d . at
152-163 (Rauter noting inter alia moderate limitations in ability
30 to complete workday, slight restriction of daily activities, and
"impairment(s) not severe"); 283-85 (Jamieson noting inter alia
no underlying thought disorder, no major depressive disorder, no
disabling anxiety, but noting limitations related to insight,
judgment, and anxiety). Finally, the plaintiff's treating
physician of several years. Dr. Sole, does not even mention
alcohol use or abuse in her RFC assessment. See i d . at 299-307.
Under Arrovo the plaintiff bears the burden of establishing
not only that he is an alcoholic, but also that this condition
prevents him from engaging in substantial gainful activity. See
932 F.2d at 86-87. The court finds that the record contains
substantial evidence to support the conclusion that the
plaintiff's alcohol consumption does not interfere with his
ability to perform basic work-related activities. Of course, the
fact that the record may also support a contrary conclusion, i.e.
that the alcohol consumption precludes the plaintiff from
working, "does not prevent [the ALJ's] finding from being
supported by substantial evidence." Consolp, 383 U.S. at 620.
Accordingly, the plaintiff did not satisfy his burden under
Arrovo and the court finds that the Secretary's rulings relative
to the alcoholism do not constitute reversible error.
31 III. Step Five Analysis
The plaintiff next asserts that the testimony of the
vocational expert supported a finding of disability and that, as
a result, the ALJ erroneously concluded at step five of the
sequential analysis that the plaintiff can perform employment
which exists in significant numbers in the national economy.
Plaintiff's Memorandum at 27-29. The plaintiff argues that when
the ALJ revised his initial hypothetical to include the
additional restrictions of not being able to stand for more than
fifteen minutes and the need to change positions every thirty
minutes, the VE "felt all of the jobs he identified would be
excluded with the exception of the sedentary packager." I d . at
28 (citing Tr. at 80). The plaintiff further argues that the job
of packager is not considered a sedentary job and, thus, the
Secretary has not satisfied her burden of coming forward with
evidence of a specific job that the claimant is capable of
performing. I d . at 29.
The argument fails as it is based on a misreading of the
hearing transcript. The plaintiff is correct that once the ALJ
revised the hypothetical, the VE responded that "some of the
positions" he had previously testified the hypothetical claimant
could perform would no longer be appropriate given the additional
limitations of not being able to stand for more than fifteen
32 minutes at a time and the need to switch positions every thirty
minutes. Tr. at 7 9-80 (emphasis supplied). However, the VE
qualified his response, noting that "some of the positions such
as the polishing, buffing, grinding and the hand coating and
painting that [have] . . . production requirements [which] might
preclude changing of position." I d . at 80. The VE did not
include the position of bench assembler in the list of those
positions which the hypothetical plaintiff could perform under
the original hypothetical but could not perform under the more
restrictive, revised hypothetical. Compare i d . at 76 (list of
positions in response to original hypothetical) with i d . at 80
(list of positions excluded by the additional restrictions of
revised hypothetical). Thus, contrary to the plaintiff's
assertion, the VE did testify to the numerical availability of at
least one specific position suited to the plaintiff's
capabilities and, as such, the record contains substantial
evidence to support the ALJ's finding that:
Although the claimant's additional nonexertional limitations do not allow him to perform the full range of light work . . . there are a significant number of jobs in the national economy which he could perform. Examples of such jobs are: a bench assembler with 500 jobs in the State of New Hampshire and 200,000 jobs in the national economy . . . .
33 I d . at 24.6
The plaintiff also asserts that the ALJ erred by failing to
properly credit the V E 's response to a hypothetical question
posed by the plaintiff's attorney. Plaintiff's Memorandum at 28.
The plaintiff further asserts that the ALJ's hypothetical
questions did not include the plaintiff's complaints of "a
frequent need to lie down to relieve his ankle pain." Id.
The plaintiff correctly notes that, in response to a
question posed by his attorney, the VE testified that the
hypothetical claimant's ability to perform the bench assembly or
hand packaging position would be seriously compromised by a need
to leave the work station twice an hour to walk around ten or
fifteen feet and to "get the kinks out of the leg or the problem
he's having with the back." Tr. at 80. Likewise, the court
recognizes that the ALJ did not include each of the plaintiff's
subjective complaints in the hypothetical questions presented to
the V E . However, neither of these correct assertions constitute
reversible error as it is the role of the ALJ to "determine what
evidence he credits in order to pose a hypothetical which will be
6Given the correctness of the ALJ's finding that the plaintiff can perform the bench assembly position and that this position exists in sufficient numbers for purposes of the step five analysis, the court need not consider the plaintiff's argument that the VE erroneously testified that the hand packaging position is considered sedentary. See Plaintiff's Memorandum at 28-29.
34 relevant and helpful." Torres v. Secretary of Health and Human
Servs., 870 F.2d 742, 745 (1st Cir. 1989) (citing Arocho v.
Secretary of Health and Human Servs., 670 F.2d 374, 375 (1st Cir.
1982)). The hypothetical questions specifically incorporate the
limitations noted in the RFC assessment submitted by the
plaintiff's own treating physician, see Tr. at 299-307 (report of
Dr. Sole), as well as other medical evidence contained in the
record. See, e.g., i d . at 279-81 (report of Dr. Shea), 283-85
(report of Dr. Jamieson), 20 (decision of A L J ) . Because "the ALJ
was entitled to credit the vocational expert's testimony as long
as there was substantial evidence in the record to support the
description of claimant's impairments given in the ALJ's
hypothetical," Berrios Lopez v. Secretary of Health and Human
Servs., 951 F.2d 427, 429 (1st Cir. 1991), the court finds no
error in the failure to include additional limitations in the
hypothetical questions, including limitations based in part or
whole on subjective complaints of pain found not entirely
credible by the ALJ following analysis under Avery and SSR 88-13.
See T r . at 2 0.
Conclusion
Based on the foregoing analysis, the court finds that the
Secretary did not commit reversible error as alleged by the
35 plaintiff. The defendant's motion to affirm the decision of the
Secretary (document no. 11) is granted. The plaintiff's motion
to reverse the decision (document no. 9) 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 August 9 , 1995
cc: Raymond J. Kelly, Esguire David L. Broderick, Esguire