Murillo v. Shalala CV-94-223-B 05/04/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Guadalupe Murillo
v. Civil No. 94-223-B
Donna E. Shalala, Secretary _____ Health and Human Services
O R D E R
Guadalupe Murillo appeals the Secretary's decision denying
his application for disability insurance and supplemental
security income benefits. He contends that the Administrative
Law Judge ("ALJ") failed to adeguately consider his subjective
pain complaints and erroneously decided that his impairment did
not prevent him from doing his past relevant work. Because I
find that there is substantial evidence in the record to support
the ALJ's decision, I affirm.
BACKGROUND1
Murillo was born in Mexico on December 12, 1966, and was
twenty-six years old at the time of the administrative hearing
1 Unless otherwise indicated, the facts are taken from the stipulated facts filed jointly by the parties. held on August 31, 1993. He was educated through the sixth
grade. He was Spanish speaking at the time of the hearing,
communicating through an interpreter. He testified to past
employment as a molding machine operator, as a packer of neckties
and plastic utensils, and as a mattress assembler.
Murillo injured his back while working as a molding machine
operator in August 1990 and alleges that he has been disabled
since December 4, 1991, when he stopped working due to back pain.
He applied for disability insurance benefits and supplemental
security income benefits on October 15, 1992. His applications
were denied initially and upon reconsideration, and he reguested
a hearing.
The first medical record of treatment for back pain in the
hearing record2 is an examination by Dr. William Kilgus in
January 1992. In the notes of that examination. Dr. Kilgus
reported Murillo's back injury and "vague, ill-described pains
2 A later treating doctor recorded that Murillo told him that he had been treated by Dr. Bell, an osteopath, at the time of the injury and that medications and manipulations from that treatment enabled him to return to work. Dr. Bell's treatment records are not included in the hearing record.
2 affecting his left lower extremity."3 Dr. Kilgus noted a good
range of motion of the lower back with mild pain and spasm on
extremes of motion. His assessment of the injury was chronic
lumbar strain, and he recommended physical therapy. In his notes
for subseguent visits. Dr. Kilgus noted no improvement despite
physical therapy and Murillo's increased complaints of back and
leg pain. A magnetic resonance imaging test done in April 1992
revealed a herniated lumbar disk. Murillo was referred for a
neurosurgical consultation.
Murillo was examined in June 1992 by Dr. Ronald Faille, a
neurosurgeon, who noted his impression of left lumbar
radiculopathy (disease of the nerve roots) and recommended
further testing to determine the nature and degree of impairment.
He reported normal gait, strength, and sensation with no spasm in
the legs, and significant limitation of motion with spasm in the
left paraspinal muscles of the back. In July, a CT scan and
myelogram were done which showed no evidence of disk herniation
but did show spondylolisthesis (forward displacement of one
vertebra over another) and bilateral spondylosis (dissolution of
3 The record does not indicate how Murillo communicated with Dr. Kilgus although other treatment records state that he used an interpreter.
3 a vertebra) at the L5-S1 level.
From August to December 1992, Murillo received chiropractic
treatments several times a week. The chiropractor reported by
November that Murillo had improved significantly and that he
thought Murillo could work as long as the job was not strenuous.
He found Murillo capable of sitting, standing, walking, lifting,
carrying, and bending within reasonably light weight limits of 10
to 15 pounds. During the same period, Drs. Kilgus and Faille
also treated Murillo and found that his medical condition
remained unchanged as he continued to have back pain that
radiated down his left leg, with an incomplete range of motion
and mild degree of back spasm. Dr. Faille gave his opinion that
Murillo would reguire back surgery before he would achieve relief
from the back injury.
In November 1992, Dr. Homer Lawrence, a consultant for the
Disability Determination Program, reviewed Murillo's records and
found that he retained the residual functional capacity ("RFC")
to do light work with some activity and postural limitations.
Another evaluation done in February 1993 also found Murillo
capable of light work with limitations. Dr. Kilgus provided an
assessment of Murillo's RFC in August 1993, based upon his
examination in July. He stated that Murillo's condition remained
4 unchanged and described Murillo's back injury, including a
herniated disk at the L4-L5 level, as a contributing factor for
his symptoms. He determined that Murillo was not totally
disabled from any type of work, that he retained some light work
capacity so that he could lift up to twenty pounds for up to one-
third of an eight-hour day, and that during the work day, he
could stand and walk for four hours and sit for four hours as
long as he did not do any of the activities for more than two
hours without interruption.
At the hearing held on August 31, 1993, speaking through an
interpreter, Murillo testified that he was prevented from working
primarily by constant lower back pain. The back pain also moved
into his left leg, and he sometimes had shooting pain or numbness
in his left foot. Because of pain, he could only walk for about
fifteen to twenty minutes at a time; he could sit for thirty to
thirty-five minutes, and his sleep was interrupted. He testified
that he could lift a gallon of milk using both hands. He said
that he takes medication for pain, but that the back brace
prescribed for him caused pain and made it difficult to breathe
when he sat. Describing his past employment, he said that
neither the packing job at Sweetheart Plastics nor the mattress
assembly job allowed sitting, and that the plastics packing job
5 required standing for twelve-hour days. His job packing neckties
allowed him to alternate his position between sitting and
standing and required lifting boxes of twelve to fifteen pounds.
The vocational expert testified that if Murillo had a RFC to
do light work without lifting more that fifteen to twenty pounds,
he could return to either of his past packing jobs. When the ALJ
restricted the hypothetical to allow change of position between
sitting and standing at two hour intervals with neither lasting
more than four hours in an eight-hour day, the vocational expert
testified that Murillo would be able to do only the necktie
packing job. The ALJ posed two other hypotheticals to the
vocational expert with increasingly restricted RFC's, and
Murillo's attorney described a hypothetical capacity limited by
being incapacitated from work for twenty percent of each work day
which resulted in no available work. The vocational expert found
that the more restricted RFC's would not allow Murillo to return
to his prior work.
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Murillo v. Shalala CV-94-223-B 05/04/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Guadalupe Murillo
v. Civil No. 94-223-B
Donna E. Shalala, Secretary _____ Health and Human Services
O R D E R
Guadalupe Murillo appeals the Secretary's decision denying
his application for disability insurance and supplemental
security income benefits. He contends that the Administrative
Law Judge ("ALJ") failed to adeguately consider his subjective
pain complaints and erroneously decided that his impairment did
not prevent him from doing his past relevant work. Because I
find that there is substantial evidence in the record to support
the ALJ's decision, I affirm.
BACKGROUND1
Murillo was born in Mexico on December 12, 1966, and was
twenty-six years old at the time of the administrative hearing
1 Unless otherwise indicated, the facts are taken from the stipulated facts filed jointly by the parties. held on August 31, 1993. He was educated through the sixth
grade. He was Spanish speaking at the time of the hearing,
communicating through an interpreter. He testified to past
employment as a molding machine operator, as a packer of neckties
and plastic utensils, and as a mattress assembler.
Murillo injured his back while working as a molding machine
operator in August 1990 and alleges that he has been disabled
since December 4, 1991, when he stopped working due to back pain.
He applied for disability insurance benefits and supplemental
security income benefits on October 15, 1992. His applications
were denied initially and upon reconsideration, and he reguested
a hearing.
The first medical record of treatment for back pain in the
hearing record2 is an examination by Dr. William Kilgus in
January 1992. In the notes of that examination. Dr. Kilgus
reported Murillo's back injury and "vague, ill-described pains
2 A later treating doctor recorded that Murillo told him that he had been treated by Dr. Bell, an osteopath, at the time of the injury and that medications and manipulations from that treatment enabled him to return to work. Dr. Bell's treatment records are not included in the hearing record.
2 affecting his left lower extremity."3 Dr. Kilgus noted a good
range of motion of the lower back with mild pain and spasm on
extremes of motion. His assessment of the injury was chronic
lumbar strain, and he recommended physical therapy. In his notes
for subseguent visits. Dr. Kilgus noted no improvement despite
physical therapy and Murillo's increased complaints of back and
leg pain. A magnetic resonance imaging test done in April 1992
revealed a herniated lumbar disk. Murillo was referred for a
neurosurgical consultation.
Murillo was examined in June 1992 by Dr. Ronald Faille, a
neurosurgeon, who noted his impression of left lumbar
radiculopathy (disease of the nerve roots) and recommended
further testing to determine the nature and degree of impairment.
He reported normal gait, strength, and sensation with no spasm in
the legs, and significant limitation of motion with spasm in the
left paraspinal muscles of the back. In July, a CT scan and
myelogram were done which showed no evidence of disk herniation
but did show spondylolisthesis (forward displacement of one
vertebra over another) and bilateral spondylosis (dissolution of
3 The record does not indicate how Murillo communicated with Dr. Kilgus although other treatment records state that he used an interpreter.
3 a vertebra) at the L5-S1 level.
From August to December 1992, Murillo received chiropractic
treatments several times a week. The chiropractor reported by
November that Murillo had improved significantly and that he
thought Murillo could work as long as the job was not strenuous.
He found Murillo capable of sitting, standing, walking, lifting,
carrying, and bending within reasonably light weight limits of 10
to 15 pounds. During the same period, Drs. Kilgus and Faille
also treated Murillo and found that his medical condition
remained unchanged as he continued to have back pain that
radiated down his left leg, with an incomplete range of motion
and mild degree of back spasm. Dr. Faille gave his opinion that
Murillo would reguire back surgery before he would achieve relief
from the back injury.
In November 1992, Dr. Homer Lawrence, a consultant for the
Disability Determination Program, reviewed Murillo's records and
found that he retained the residual functional capacity ("RFC")
to do light work with some activity and postural limitations.
Another evaluation done in February 1993 also found Murillo
capable of light work with limitations. Dr. Kilgus provided an
assessment of Murillo's RFC in August 1993, based upon his
examination in July. He stated that Murillo's condition remained
4 unchanged and described Murillo's back injury, including a
herniated disk at the L4-L5 level, as a contributing factor for
his symptoms. He determined that Murillo was not totally
disabled from any type of work, that he retained some light work
capacity so that he could lift up to twenty pounds for up to one-
third of an eight-hour day, and that during the work day, he
could stand and walk for four hours and sit for four hours as
long as he did not do any of the activities for more than two
hours without interruption.
At the hearing held on August 31, 1993, speaking through an
interpreter, Murillo testified that he was prevented from working
primarily by constant lower back pain. The back pain also moved
into his left leg, and he sometimes had shooting pain or numbness
in his left foot. Because of pain, he could only walk for about
fifteen to twenty minutes at a time; he could sit for thirty to
thirty-five minutes, and his sleep was interrupted. He testified
that he could lift a gallon of milk using both hands. He said
that he takes medication for pain, but that the back brace
prescribed for him caused pain and made it difficult to breathe
when he sat. Describing his past employment, he said that
neither the packing job at Sweetheart Plastics nor the mattress
assembly job allowed sitting, and that the plastics packing job
5 required standing for twelve-hour days. His job packing neckties
allowed him to alternate his position between sitting and
standing and required lifting boxes of twelve to fifteen pounds.
The vocational expert testified that if Murillo had a RFC to
do light work without lifting more that fifteen to twenty pounds,
he could return to either of his past packing jobs. When the ALJ
restricted the hypothetical to allow change of position between
sitting and standing at two hour intervals with neither lasting
more than four hours in an eight-hour day, the vocational expert
testified that Murillo would be able to do only the necktie
packing job. The ALJ posed two other hypotheticals to the
vocational expert with increasingly restricted RFC's, and
Murillo's attorney described a hypothetical capacity limited by
being incapacitated from work for twenty percent of each work day
which resulted in no available work. The vocational expert found
that the more restricted RFC's would not allow Murillo to return
to his prior work.
In his decision, the ALJ decided that Murillo's subjective
complaints of pain were not entirely credible and found that he
had "the residual functional capacity to perform work-related
activities except for work involving the exertional requirements
of very heavy, heavy and medium work." Based on that RFC, the
6 ALJ found that Murillo could return to his past relevant work as
a packer, and therefore that he was not disabled within the
meaning of the Social Security Act. The ALJ denied Murillo's
applications for benefits, and the Appeals Council declined
review. This appeal followed.
STANDARD OF REVIEW
After a final determination by the Secretary and upon
request by a party, this court is authorized to review the
pleadings and the transcript of the record of the proceeding, and
enter a judgment affirming, modifying, or reversing the
Secretary's decision. 42 U.S.C.A. § 405(g). The court's review
is limited in scope, however, as the Secretary's factual findings
are conclusive if they are supported by substantial evidence.
Id.; Ortiz v. Secretary of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991). The Secretary is responsible for settling
credibility issues, drawing inferences from the record evidence,
and resolving conflicting evidence. Id. Therefore, the court
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 [the Secretary's] conclusion.'"
Id. (quoting Rodriquez v. Secretary of Health & Human Serv., 647
7 F.2d 218, 222 (1st Cir. 1981). However, if the Secretary has
misapplied the law or has failed to provide a fair hearing,
deference to the Secretary's decision is not appropriate, and
remand for further development of the record may be necessary.
Carroll v. Secretary of Health & Human Servs., 705 F.2d 638, 644
(2d Cir. 1983). See also Slessinqer v. Secretary of Health &
Human Servs., 835 F.2d 937, 939 (1st Cir. 1987).
DISCUSSION
On appeal, Murillo challenges the ALJ's denial of benefits
on two grounds. First he argues that the ALJ failed to
adeguately consider his subjective pain complaints. Second, he
contends that the record does not contain substantial evidence to
support the ALJ's determination that he could return to his past
work as a packer. I address each argument in turn.
A. Subjective Complaints of Pain
Once a claimant presents a "clinically determinable medical
impairment that can reasonably be expected to produce the pain
alleged," the ALJ must consider the claimant's subjective
complaints of pain. Avery v. Secretary of Health and Human
Servs., 797 F.2d 19, 21 (1st Cir. 1986); accord 42 U.S.C.A. §
423(d)(5)(A) (Supp. 1995); 20 C.F.R. §§ 404.1529(c), 416.929(c). In determining the weight to be given to allegations of pain, the
claimant's complaints "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). When the claimant's reported
symptoms of pain are significantly greater than the objective
medical findings suggest, the ALJ must consider other relevant
information to evaluate the claims. Avery, 797 F.2d at 23. The
ALJ must inguire about the claimant's daily activities; the
location, duration, freguency, and intensity of pain and other
symptoms; precipitating and aggravating factors; the
characteristics and effectiveness of any medication, treatments,
or other measures the claimant is or has taken to relieve pain;
and any other factors concerning the claimant's functional
limitations due to pain. 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(3); Avery, 797 F.2d at 23. If the ALJ has considered
all relevant evidence of claimant's pain, "[t]he credibility
determination by the ALJ, who observed the claimant, evaluated
his demeanor, and considered how that testimony fit in with the
rest of the evidence, is entitled to deference, especially when
supported by specific findings." Frustaqalia v. Secretary of
Health and Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). The medical evidence in the record established a medically
determinable impairment due to chronic lumbar strain caused by a
bone and disk injury. Murillo's treating neurosurgeon stated
that he would need surgery to improve the condition. Murillo
took prescribed medication for pain. His orthopedic doctor
determined that as of July 1993, a month before the hearing,
Murillo did not have capacity for full sedentary work for an
eight-hour day. He stated that Murillo could do non-strenuous
light work with his arms as long as he could vary his position
between sitting and standing at two-hour intervals and would not
have to keep either position longer than four hours in an eight-
hour day. I now consider whether Murillo's reported symptoms of
pain reguire greater functional restrictions than are
demonstrated by the medical evidence alone. Avery, 797 F.2d at
23.
Murillo testified that he has low back pain almost all of
the time which is triggered by movement and which goes into his
left leg. He said that he takes medicine prescribed for the pain
but that the medicine makes him sleepy. Although he said that he
had taken his pain medication the morning of the hearing, he also
testified that he had driven from Nashua to Manchester for the
hearing, and he did not describe any symptoms of sleepiness. For
10 his daily activities, Murillo described getting up early in the
morning, bathing, eating, walking, washing the dishes, and then
resting for fifteen or twenty minutes. During the day he
described walking for no more than twenty minutes at a time, and
driving no farther than the drive between Nashua and Manchester.
After a twenty-minute walk, he said he was tired and stayed in
bed for three to four hours. He attended church for fifteen to
twenty minutes. He said that he could not help with housework
because he could not lift. When he watched television, he could
sit for awhile and then he had to get up. He testified that he
could stand for fifteen to twenty minutes at a time and could sit
thirty to thirty-five minutes and that he could bend to put on a
shoe, but that it bothered his back. He said that he could lift
an eight-pound gallon of milk with pain, while Dr. Kilgus
reported that he could lift up to twenty pounds as long as he did
not have to do so more than one-third of an eight-hour day. In
response to guestioning by his attorney, he said that he had
numbness and shooting pain in his left foot that caused his leg
to give out after walking or standing for more than fifteen or
twenty minutes.
In partially discounting Murillo's subjective pain
complaints, the ALJ considered all of the relevant information
11 required by Avery and the applicable pain regulations. Moreover,
there is substantial medical evidence in the record to support
the ALJ's resolution of this credibility question. Under these
circumstances, I am in no position to second guess the ALJ's
resolution of this disputed point.4
B. Sufficiency of the Evidence
The ALJ determined that Murillo was not disabled because he
could return to his past relevant work. He based this
determination on a finding that Murillo was capable of a full
range of light work without further restriction. Although the
record contains substantial evidence to support the ALJ's
ultimate conclusion that Murillo can return to his past relevant
work, I cannot accept the ALJ's subsidiary finding that Murillo
is capable of engaging in light work without restrictions.
4 During the course of the hearing, the ALJ made several inappropriate remarks. In particular, I note the ALJ's comment about Latin American men at page forty-five of the record. The ALJ also included a comment in the narrative portion of his decision, at page seventeen of the record, making a negative generalization about all claimants. Because the claimant has not raised bias as an issue in this case, I decline to address the question sua sponte. Nevertheless, I direct the defendant to provide a copy of this Order with a copy of the transcript to the appropriate person charged with supervising the ALJ in this case.
12 The evaluations done by Murillo's treating doctors included
restrictions on the amount of weight Murillo could lift or carry,
as well as postural limitations. The RFC assessments completed
by the Disability Determination Program reviewing doctors limited
Murillo's capacity for light work by restricting his ability to
sit or stand during an eight-hour day and by restricting certain
activities such as kneeling, bending, or crawling. These
uncontradicted findings are incompatible with the ALJ's
conclusion that Murillo could return to his former work as a
packer in the plastics factory which reguired him to stand for
the entire work day.
Notwithstanding Murillo's limitations, however, the record
contains substantial evidence establishing that he could return
to his past relevant work packing neckties. Although Murillo
testified that he could not return to his former job packing
neckties because he did not think he could sit or stand as much
as was reguired for that job, the record does not support his
belief. Murillo testified that the maximum weight he had to lift
in that job was twelve to fifteen pounds. He described the work
as reguiring very little bending or reaching and allowing
alternating sitting and standing. Even the most sympathetic
medical evaluations of his RFC expect him to be able to lift the
13 weight and meet the sitting and standing reguirements for the job
as he described it. Thus, I uphold the ALJ's ultimate conclusion
at Step Four of the seguential analysis that Murillo could return
to his past relevant work.
CONCLUSION
For the foregoing reasons plaintiff's motion to reverse and
remand (document no. 7) is denied and defendant's motion to
affirm (document no. 8) is granted. Defendant is directed to
comply with the reguirements stated in footnote four.
SO ORDERED.
Paul Barbadoro United States District Judge
May 4, 1995
cc: Raymond Kelly, Esg. David Broderick, Esg.