Mercier v. SHHS

Opinion

USCA1 Opinion

September 25, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1049 



                                  DENISE N. MERCIER,



                                Plaintiff, Appellant,



                                          v.



                       SECRETARY OF HEALTH AND HUMAN SERVICES,



                                 Defendant, Appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                           Selya and Stahl, Circuit Judges.
                                            ______________



                                 ____________________



            Remington O. Schmidt on brief for appellant.
            ____________________

            Jay  P.  McCloskey, United  States  Attorney,  David  R.  Collins,
            __________________                             __________________

        Assistant  United  States Attorney,  and  Robert  J. Triba,  Assistant
                                                  ________________

        Regional Counsel,  Department of Health  and Human Services,  on brief

        for appellee.


____________________


____________________



Per Curiam.  Denise N. Mercier, claimant, appeals a
                      __________



            final  decision by the Secretary of Health and Human Services



            that she does  not qualify for disability  benefits under the



            Social  Security Act, 42 U.S.C.   402(g).  The district court



            granted  judgment in favor of  the Secretary.   We affirm the



            district court's decision.  



                      Background
                      __________



                      Claimant filed for  disability benefits on July  3,



            1990,  alleging that  she has  been disabled from  work since



            October  15, 1982.   The  Secretary determined,  and claimant



            does not  dispute, that  she was fully  insured only  through



            December 31, 1987.  The Administrative Law Judge ("ALJ") held



            a hearing and heard testimony from the claimant, a consulting



            physician and a vocational  expert.  Claimant was represented



            by an attorney.



                      Claimant alleges that  she suffers from  post-polio



            syndrome,1  and  claims  that  she is  wholly  disabled  as a



                                
            ____________________



            1.  Post-polio syndrome is described  by the Secretary in the

            Program Operations Manual System (POMS) as follows:

               For  the  purposes  of  evaluation  under  the  disability

            programs, the late effects of polio refer to new symptoms and

            neuromuscular  manifestations which result  in new functional

            loss  in an individual with  a prior history  of acute polio.

            This  functional loss  typically occurs  after a  long period

            (more than 10 years and generally 20-40 years) of stability.

               The  etiology of these problems  is not yet  known and not

            all polio  survivors experience these late  effects.  Precise

            data  are not  yet available,  but it  may be  that about  25

            percent  of   the   estimated  300,000   or  more   surviving

            individuals  who  had  polio are  experiencing  new  problems

            affecting their  ability to carry  out accustomed activities.

            These late  neuromuscular effects  are permanent  and usually



                                         -2-



result.  Whether in  fact she suffers from this  syndrome was



            not determined by the  ALJ or the district court,  and indeed



            need not be decided for a resolution of the disability issues



            presented  by this appeal.  The record is clear that claimant



            had polio as a young  child.  Less clear are the  medical and



            vocational  implications of  post-polio syndrome.     The ALJ



            found that claimant's symptoms, as described, did not meet or



            equal the listed impairments at  20 C.F.R. Part 404,  Subpart



            P, App.  1.  He found claimant not disabled  at step 5 of the



            sequential evaluation  process, 20 C.F.R.    404.1520(f),  on



            the  ground that while claimant has a severe impairment which



            prevents her  return to her  past relevant work,  she retains



            the residual functional capacity  for some types of sedentary



            work.    Accordingly, the  ALJ  applied  Rule 201.27  of  the



            Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P,



            Appendix 2 ("the  grid") as a framework and relied as well on



            vocational  testimony to  reach  a finding  of not  disabled.



            Although  claimant  submitted   additional  evidence  to  the



            Appeals  Council,   the  Appeals  Council  refused  review.  



            Claimant appealed  to the district court,  which affirmed the



            Secretary.  This appeal followed.


____________________



            slowly progressive.  There is no known treatment.

            POMS  DI 24580.010



                                         -3-



Discussion
                      __________



                      Claimant makes six arguments on appeal.  We address



            each in  turn and incorporate  facts and medical  evidence as



            needed.  "`We must  uphold the Secretary's findings ...  if a



            reasonable mind,  reviewing the evidence  in the record  as a



            whole,   could  accept   it  as   adequate  to   support  his



            conclusion.'"  Irlanda Ortiz v. Secretary of Health and Human
                           _______ _____    _____________________________



            Services,  955  F.2d  765,   769  (1st  Cir.  1991),  quoting
            ________



            Rodriguez v. Secretary of Health and Human Services, 647 F.2d
            _________    ______________________________________



            218, 222 (1st Cir. 1981).  



                      1.  Claimant argues first that her impairment meets



            two  of the listed impairments at 20 C.F.R. Part 404, Subpart



            P,  App.   1:    Listing  1.03(A)2   and  Listing  11.04(B)3.



            Claimant was diagnosed  with polio as a child, in  1955.  She



            had  three surgeries on her right foot and ankle, including a



                                
            ____________________



            2.  1.03   Arthritis of a  major weight-bearing joint (due to
                       __________________________________________________

            any cause):
            __________

               With history  of persistent joint pain  and stiffness with

            signs of marked  limitation of motion  or abnormal motion  of

            the affected joint on current physical examination.  With:

               A.   Gross  anatomical  deformity of  hip  or knee  (e.g.,

            subluxation,   contracture,   bony   or  fibrous   ankylosis,

            instability)   supported   by   X-ray  evidence   of   either

            significant   joint  space  narrowing   or  significant  bony

            destruction and markedly limiting ability to walk and stand.



            3.  11.04 Central  nervous system  vascular accident .   With
                      ___________________________________________

            one  of  the  following  more  than  3  months  post-vascular

            accident:

             ...

             B.   Significant  and persistent  disorganization  of  motor

            function   in  two   extremities,   resulting  in   sustained

            disturbance  of gross  and dexterous  movements, or  gait and

            station.... 



                                         -4-



right ankle fusion in July, 1968.  Her argument as to Listing



            1.03(A)  is that "it is  obvious common sense  that the ankle



            area  is  equivalent for  this purpose  to  the hip  and knee



            areas."    Appellant's Brief,  p.  14.   Claimant  makes this



            argument despite the fact  that at the hearing the  ALJ asked



            the  medical expert  just  this question,  and was  told that



            claimant's   circumstances   "wouldn't  equal"   the  listing



            requirements.   A-II,  87-88.   Claimant  insists that  under



            Gordils v. Secretary of  Health and Human Services, 921  F.2d
            _______    _______________________________________



            327, 329 (1st Cir.  1990), the Secretary "is  [not] precluded



            from rendering common sense judgements [sic] about functional



            capacity based on  medical findings as long  as the Secretary



            does not overstep the bounds of a layperson's competence  and



            render a medical judgement  [sic]."



                      Gordils is  inapposite.  By its  terms, it concerns
                      _______



            the  qualification of  an ALJ  to assess  residual functional



            capacity based on  a bare  medical record.   Moreover, it  is



            expressly  not  pertinent to  the  situation presented  here,



            where a medical  professional gave  an opinion  on a  medical



            issue, and appellant would have the ALJ displace that opinion
                                                    ________



            as a matter of "common sense."



                      As to Listing  11.04(B), claimant  argues that  the



            record evidence in fact establishes that both of her legs are



            affected.   She  cites  to medical  reports which  relate her



            intermittent and subjective  complaints of pain  or weakness,


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e.g., report of  Jeffrey Eaton, 4/1/91,  A-II, 199; or  which
            ___



            reflect objectively that her  left leg, too, is weak.   E.g.,
                                                                    ___



            report of  William C.  Meade, M.D.,  3/5/92, A-II,  207.4    



            However,  even  if two  extremities  were involved,  claimant



            makes  no argument  about  the balance  of Listing  11.04(B):



            "significant and persistent disorganization of motor function



            in  two extremities,  resulting in  sustained disturbance  of



            gross and dexterous movements, or  gait and station...."   No



            record evidence supports a finding to this effect.  Dr. Meade



            indicated that claimant has "an obvious Trendelenburg  gait,"



            A-II, 205, but Dr.  Kaminow concluded that while the  gait is



            "somewhat antalgic ... there is no imbalance," id. at 25, and
                                                           __



            Dr. Hull found only  a "mild dyssymmetry [sic] of  gait," id.
                                                                      __



            at  21.  We agree that there is insufficient medical evidence



            to show that claimant meets this listing.  



                      2.   Claimant argues  next that the  district court



            should have remanded the  case so that she could  augment the



            record with medical records of her former treating physician,



            Roger    Robert, M.D.   Dr.  Robert  treated claimant  in the



            1950s, 1960s and  1970s, and,  despite the fact  that he  was



            under subpoena to do so, apparently failed to transmit all of



            his  records to  the ALJ in  time for  the hearing.   Some of


____________________



            4.  At  least  one other  report reflects  that, as  of March

            1991,  "[s]trength  was entirely  intact  in  the left  lower

            extremity...."  Report of Kathryn D. Seasholtz, D.O., 3/6/91,

            A-II, 197.



                                         -6-



these  records  were before  the ALJ;  the remainder  are now



            available,  and claimant  argues that  she  is entitled  to a



            remand to have the ALJ consider them.



                      Pursuant to  42 U.S.C.    405(g), remand  is proper



            only  upon a  showing "that  there is  new evidence  which is



            material  and  ... there  is good  cause  for the  failure to



            incorporate  such  evidence  into   the  record  in  a  prior



            proceeding."   Evangelista v.  Secretary of Health  and Human
                           ___________     ______________________________



            Services, 826 F.2d 136,  139 (1st Cir. 1987). The  only issue
            ________



            before  the  district court,  and before  us, is  whether the



            proffered  evidence   is  material;  that  is   if,  were  it



            considered, the Secretary's  decision "`might reasonably have



            been different.'"  Id. at 1140.
                               ___



                      The  Magistrate  found,  and  the   district  court



            agreed, that the medical records in question: 



                      antedate  by  many years  the plaintiff's

                      alleged  onset  disability date;  they do

                      not  relate  at  all  to  the Secretary's

                      inquiry as to  whether the plaintiff  was

                      disabled  after October 15, 1982.  To the

                      extent that the medical records establish

                      a medical history  of polio, and  thereby

                      establish the predicate  for her  current

                      claim of post-polio syndrome, I note that

                      the   Administrative   Law  Judge   fully

                      credited her history of polio.



            Report  and  Recommended  Decision,  p. 4.  We  agree  fully.



            Claimant was  not denied disability benefits  because the ALJ



            did not  credit her (otherwise documented)  history of polio,



            but, rather,  because there was insufficient  evidence of any


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disabling restrictions during the relevant  period, and there



            was  affirmative  evidence  that  despite   her  limitations,



            claimant  was able to perform  some types of  work.  Claimant



            has failed to show that the additional evidence would  likely



            have made any difference.



                      3.   In her  third argument, claimant  alleges that



            she was denied her right to testify as to why  the records of



            Dr.  Frank, a physician who has treated her since 1981 (A-II,



            62), are silent concerning post-polio syndrome.   Apparently,



            claimant would have testified that she had tried to raise the



            issue with Dr. Frank, but he ignored her.  See A-II, 78-79.
                                                       ___



                      In fact, claimant testified  on two occasions  that



            she raised  concerns with Dr. Frank.  She said first that she



            had mentioned  to him that  she had post-polio  syndrome, but



            that he was unfamiliar with it (A-II, 62); and later that she



            had  discussed some  symptoms with  Dr. Frank  and  "the only



            thing  [he keeps] telling me  is there's nothing  they can do



            for me."  Id. at 79.  
                      __



                      Claimant concludes  that the ALJ "held  the lack of



            post-polio syndrome  references in Dr. Frank's  notes against



            [her]...."  Appellant's Brief,  p. 22.  This is  not a wholly



            accurate  description  of  the  ALJ's  finding.    The  ALJ's



            Decision reflects that:



                      Dr. Frank's  treatment notes do  not make

                      reference  to any  significant complaints

                      relating to post-polio syndrome. ... With

                      a  view  toward deciding  this case  in a


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light most favorable  to the claimant,  a

                      conclusion  will nevertheless  be reached

                      that  on or before  the date  her insured

                      status  expired, the  symptoms associated

                      with post-polio syndrome was [sic] severe

                      as  they  likely  affected Ms.  Mercier's

                      ability to perform highly  strenuous work

                      activities on a sustained basis.



            A-II, 41.  The record shows that claimant was able to testify



            on  two occasions that Dr. Frank  was unable to help with her



            problem.   Had she been permitted to testify in addition that



            he ignored  her, it is  difficult to  see how her  case would



            have  been advanced.  Insofar as she is complaining about the



            ALJ's reliance  on  the  general  absence in  the  record  of



            contemporaneous evidence of complaints of pain, that argument



            is addressed infra.  
                         _____



                      4.  Claimant's fourth argument seems to be that her



            due process  and confrontation  clause  rights were  violated



            when  the  ALJ  did  not  permit  her  attorney  to  ask  the



            vocational  expert  ("VE") to  "zero in" on  the problems she



            had in performing her volunteer work.  The attorney evidently



            hoped to undermine the VE's testimony that there were jobs in



            the  economy claimant could  perform by  introducing evidence



            that claimant  had great  difficulty with even  the extremely



            limited  and occasional  volunteer  work she  undertook at  a



            school  library.   The  ALJ did  not  permit this,  observing



            instead that "[i]f  we take  all of her  testimony, then  she



            can't do any work."  A-II, 97.  


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The ALJ concluded, in effect,  that introduction of



            claimant's  particular volunteer  work limitations  would add



            nothing  to the hypotheticals he  had posed to  the VE, which



            already  took  into  account  substantial  limitations,  both



            objective (reflected in the  medical records) and  subjective



            (as  described by  claimant.)   We  perceive  no error.    As



            indicated  below, the  hypotheticals were  properly based  on



            record evidence, and claimant's proffered questions, based on



            her own subjective complaints, were properly excluded.  



                      5.   In her  fifth argument, claimant  alleges that



            the ALJ, in his hypotheticals to  the VE, and in reaching his



            ultimate  conclusion that  there  were  jobs  claimant  could



            perform,5  did  not  take  into  account  all  of  claimant's



            limitations  as reflected  in  Dr. Meade's  report, the  only



            medical    report    of   record    addressing   work-related



            activities.6   "[I]n order  for a vocational  expert's answer



            to  a hypothetical question  to be relevant,  the inputs into



            that hypothetical  must correspond  to  conclusions that  are



                                
            ____________________



            5.  Once  it is  established that  a claimant  cannot perform

            past relevant  work, the burden  shifts to  the Secretary  to

            show that there  are jobs  claimant can perform.   Arocho  v.
                                                               __________

            Secretary of  Health and  Human Services,  670 F.2d 374,  375
            ________________________________________

            (1st Cir. 1982).



            6.   Dr. Meade's report, dated March 10, 1992, post-dated  by

            over four years the  expiration of claimant's insured status.

            Nonetheless,  the ALJ  considered Dr.  Meade's  assessment of

            claimant's functional limitations "pertinent," (A-II, 45) and

            directed  the Vocational  Expert  to  assume that  claimant's

            residual  functional capacities  at the  time of  the hearing

            approximated those of 1987. A-II, 92.  



                                         -10-



supported  by  the  outputs  from the  medical  authorities."



            Arocho  v. Secretary of  Health and Human  Services, 670 F.2d
            ______     ________________________________________



            374, 375 (1st Cir. 1982).  "To guarantee that correspondence,



            the Administrative  Law Judge  must both clarify  the outputs



            (deciding  what testimony  will  be  credited  and  resolving



            ambiguities), and accurately transmit the clarified output to



            the expert in the form of assumptions."  Id.
                                                     __



                      Claimant   takes   issue   particularly  with   the



            assumption that she could sit for one hour and with the ALJ's



            failure  to emphasize to the VE that she could stand, walk or



            sit  for a total  of four hours  during the course  of a work



            day.  Appellant's Brief, p. 25. 



                      We have compared Dr. Meade's report, the claimant's



            own  testimony  and  her   disability  application  with  the



            information given the VE at the hearing, and we conclude that



            the  ALJ accurately described  claimant's limitations  in his



            hypotheticals. Claimant testified that she generally sits and



            watches television  for an hour at a  time.  A-II, 56.   On a



            daily  basis, she  makes lunch,  does light  housekeeping and



            some  shopping.  Id., 56-57.  Her "disability report" - filed
                             __



            as part of  her initial application for  benefits - indicates



            that  she daily  spends  45 minutes  to an  hour  and a  half



            cooking;  does a  load of  laundry; sweeps;  and drives  when


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necessary.  Id. at 126.  We find no error  in the assumptions
                        __



            given the VE by the ALJ.7



                      6.    Claimant's final  argument  is  that the  ALJ



            neglected to credit sufficiently  her complaints of pain, and



            did  not properly  apply the  standards set  out in  Avery v.
                                                                 _____



            Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.
            ______________________________________



            1986).   She argues  specifically that  under Avery, the  ALJ
                                                          _____



            cannot disregard complaints of pain which are consistent with



            the medical  findings and diagnosis.   Appellant's Brief, pp.



            27-28.



                      We have construed Avery to mean that "complaints 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 Services,  869 F.2d
            ______     _______________________________________



            622, 623 (1st Cir. 1989).  "`[I]f an impairment is reasonably



            expected to  produce  some pain,  allegations of  [disabling]
                                  ____



            pain   emanating  from   that  impairment   are  sufficiently



            consistent   to  require   consideration   of  all   relevant



            evidence.'"  Hargis  v. Sullivan, 945  F.2d 1482, 1489  (10th
                         ______     ________



            Cir.  1991)  (emphasis  in original;  citation  omitted).  In

            assessing complaints of pain:    



                      Some  of  the  possible factors  include:

                      the  levels  of   medication  and   their



                                
            ____________________



            7.  We note as well that  the Appeals Council, which rendered

            the Secretary's  final decision, had before  it an additional

            work capacity evaluation which is far more detailed  than the

            earlier report  of Dr.  Meade, and which  pronounces claimant

            considerably more able.  A-II, 7-19.  



                                         -12-



effectiveness,  the extensiveness  of the

                      attempts   (medical  or   nonmedical)  to

                      obtain relief, the  frequency of  medical

                      contacts, the nature of  daily activities

                      [and] subjective  measures of credibility

                      that are peculiarly  within the  judgment

                      of the ALJ....



            Id.   Gaps in  the medical  records are  themselves evidence.
            __



            Irlanda Ortiz v. Secretary of Health and Human  Services, 955
            _____________    _______________________________________



            F.2d 765, 769 (1st Cir. 1991).



                      We assume  solely for purposes of  this appeal that



            claimant suffers  from  post-polio syndrome,  and that  post-



            polio  syndrome  is an  impairment  which  can reasonably  be



            expected to produce pain, although we note that the record is



            by no  means clear on  the second point.   In  evaluating the



            severity of claimant's pain, the ALJ observed:



                      Although the claimant stated that  she is

                      incapable of working due to many symptoms

                      which she relates to post-polio syndrome,

                      there is  little  evidence to  support  a

                      finding  that  Ms. Mercier  complained of

                      such  difficulties  to her  physicians at

                      the time her insured status  expired. ...

                      If [the] claimant's condition were as bad

                      in 1987 as she now contends it was, it is

                      likely  that  she  would  have  made many

                      complaints to her treating physician.



            A-II, 44-45.   



                      The ALJ found that claimant's assertions concerning



            her impairment and  its impact on her ability to  work on and



            before  the  date  her  insured status  expired  "[were]  not



            credible in  light of the  claimant's own description  of her



            activities,   and   discrepancies   between  the   claimant's


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assertions  and  information  contained  in  the  documentary



            medical reports."  Id. at 47.   
                               __



                      The ALJ's credibility determination "is entitled to



            deference, especially when  supported by specific  findings."



            Frustaglia  v. Secretary  of Health  and Human  Services, 829
            __________     _________________________________________



            F.2d 192, 195 (1st Cir. 1987).  Accordingly, we find there is



            substantial evidence in the record to support the Secretary's



            decision.  Affirmed.
                       ________


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