Planner v. SSA CV-95-117-M 09/26/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sandra Flannery
v. Civil No. 95-117-M
Shirley Chater, Commissioner Social Security Administration
O R D E R
Sandra Flannery seeks review under 42 U.S.C.A. § 405(g) of
the Commissioner's decision denying her application for social
security disability benefits. The Commissioner moves for an order affirming the decision.
BACKGROUND
Flannery applied for disability benefits in April of 1993
alleging an inability to work since June 1990 due to a chronic
condition that developed after she fractured ribs while working
as a nurse's aid. She was forty-six years old at the time of her
application, had completed a high school education, and had
received training as a nurse's aid. She had a certificate for
work as a home health aid. A hearing was held on her application before an
Administrative Law Judge ("ALJ") on April 28, 1994. A vocational
expert ("VE") testified at the hearing. The ALJ asked the VE what jobs existed that could be performed by a hypothetical
claimant with Flannery's educational background, with past
experience as a nurse's aid, and who was limited to sedentary
work with additional exertional restrictions including
limitations of lifting only up to ten pounds and standing or
walking for no more than twenty minutes combined. Based on that
hypothetical, the VE gave his opinion that Flannery could work in
a receptionist position that would allow her to vary her activity
to fit her limitations, or in a child care position limited to supervising older children. The VE also testified that a
substantial number of each type of job existed in the national
and state economies.
The ALJ relied on the V E 's opinion and found that although
Flannery was unable to return to her past relevant work as a
nurse's aid, she was not disabled from all work because a
significant number of jobs existed that she could perform.
Flannery challenges the ALJ's finding as to her ability to
perform those jobs, asserting that the V E 's opinion does not
constitute substantial evidence because it conflicts with
descriptions of the applicable job classifications found in the
Dictionary of Occupational Titles ("DOT").
2 STANDARD OF REVIEW
The Social Security Act empowers this court "to enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with
or without remanding the cause for a rehearing." 42 U.S.C.A.
§ 405(g). The factual findings of the Commissioner are
conclusive if supported by substantial evidence. See Ortiz v.
Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st cir.
1991). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotation omitted).
It is the Commissioner's responsibility to determine issues
of credibility, draw inferences from the record evidence, and
resolve conflicts in the evidence. Ortiz, 955 F.2d at 769 (citing Rodriquez v. Secretary of Health and Human Servs., 647
F.2d 218, 222 (1st Cir. 1981)). The ALJ's credibility
determinations are entitled to considerable deference, Dupuis v. Secretary of Health and Human Servs., 869 F.2d 622, 623 (1st Cir.
1989), although those determinations must be supported by
substantial evidence and accompanied by specific findings as to
the relevant evidence considered. DaRosa v. Secretary of Health
and Human Servs., 803 F.2d 24, 26 (1st Cir. 1986).
3 DISCUSSION
The sole issue presented for review is whether the ALJ's
determination at the fifth step1 of the applicable sequential
analysis, that Flannery can work as a receptionist or as a child
care worker, is supported by substantial evidence in the record.2
At step five, the Commissioner has the burden of showing that
1 The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. 20 C.F.R. § 404.1520 (1994).
2 Flannery notes in passing that she appeared at the hearing pro se, that the ALJ explained that he had an obligation to supplement the record if necessary, and that the ALJ did not assist her in examining the V E . Flannery does not assert, however, that she proceeded pro se without being informed of her right to counsel or that her decision not to be represented or assisted at the hearing was invalid or that evidence favorable to her application existed which the ALJ failed to obtain for the record. She also does not appear to base her challenge to the ALJ's decision on an argument that the hearing, as conducted by the ALJ, was unfair. Therefore, as she has not developed a lack of due process argument, it is deemed waived. See, e.g.. United States v. Zannino. 895 F.2d 1, 17 (1st Cir.) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones."), cert, denied, 494 U.S. 1082 (1990). 4 despite the severity of the claimant's impairment and inability
to return to past relevant work, she retains the residual
functional capacity to perform other occupations that exist in
significant numbers in the national economy and in the region
where she lives. 20 C.F.R. § 404.1520(f); Keating v. Secretary
of Health & Human Servs., 848 F.2d 271, 276 (1st Cir. 1988) .
The ALJ made the following findings that are relevant to
this issue. Flannery was forty-nine years old, which is a
"younger individual" (age 45-49) for purposes of social security
benefits eligibility. Flannery's residual functional capacity
for a full range of sedentary work was reduced by pain. She
could not lift or carry more than twenty pounds; she could not
sit, stand, or walk for prolonged periods; she was unable to
bend, stoop, climb, or crawl; and she needed freedom to change
her position at will. She could not use her arms for rapid and
repetitive movements or perform tasks requiring fine visual
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Planner v. SSA CV-95-117-M 09/26/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sandra Flannery
v. Civil No. 95-117-M
Shirley Chater, Commissioner Social Security Administration
O R D E R
Sandra Flannery seeks review under 42 U.S.C.A. § 405(g) of
the Commissioner's decision denying her application for social
security disability benefits. The Commissioner moves for an order affirming the decision.
BACKGROUND
Flannery applied for disability benefits in April of 1993
alleging an inability to work since June 1990 due to a chronic
condition that developed after she fractured ribs while working
as a nurse's aid. She was forty-six years old at the time of her
application, had completed a high school education, and had
received training as a nurse's aid. She had a certificate for
work as a home health aid. A hearing was held on her application before an
Administrative Law Judge ("ALJ") on April 28, 1994. A vocational
expert ("VE") testified at the hearing. The ALJ asked the VE what jobs existed that could be performed by a hypothetical
claimant with Flannery's educational background, with past
experience as a nurse's aid, and who was limited to sedentary
work with additional exertional restrictions including
limitations of lifting only up to ten pounds and standing or
walking for no more than twenty minutes combined. Based on that
hypothetical, the VE gave his opinion that Flannery could work in
a receptionist position that would allow her to vary her activity
to fit her limitations, or in a child care position limited to supervising older children. The VE also testified that a
substantial number of each type of job existed in the national
and state economies.
The ALJ relied on the V E 's opinion and found that although
Flannery was unable to return to her past relevant work as a
nurse's aid, she was not disabled from all work because a
significant number of jobs existed that she could perform.
Flannery challenges the ALJ's finding as to her ability to
perform those jobs, asserting that the V E 's opinion does not
constitute substantial evidence because it conflicts with
descriptions of the applicable job classifications found in the
Dictionary of Occupational Titles ("DOT").
2 STANDARD OF REVIEW
The Social Security Act empowers this court "to enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with
or without remanding the cause for a rehearing." 42 U.S.C.A.
§ 405(g). The factual findings of the Commissioner are
conclusive if supported by substantial evidence. See Ortiz v.
Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st cir.
1991). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotation omitted).
It is the Commissioner's responsibility to determine issues
of credibility, draw inferences from the record evidence, and
resolve conflicts in the evidence. Ortiz, 955 F.2d at 769 (citing Rodriquez v. Secretary of Health and Human Servs., 647
F.2d 218, 222 (1st Cir. 1981)). The ALJ's credibility
determinations are entitled to considerable deference, Dupuis v. Secretary of Health and Human Servs., 869 F.2d 622, 623 (1st Cir.
1989), although those determinations must be supported by
substantial evidence and accompanied by specific findings as to
the relevant evidence considered. DaRosa v. Secretary of Health
and Human Servs., 803 F.2d 24, 26 (1st Cir. 1986).
3 DISCUSSION
The sole issue presented for review is whether the ALJ's
determination at the fifth step1 of the applicable sequential
analysis, that Flannery can work as a receptionist or as a child
care worker, is supported by substantial evidence in the record.2
At step five, the Commissioner has the burden of showing that
1 The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. 20 C.F.R. § 404.1520 (1994).
2 Flannery notes in passing that she appeared at the hearing pro se, that the ALJ explained that he had an obligation to supplement the record if necessary, and that the ALJ did not assist her in examining the V E . Flannery does not assert, however, that she proceeded pro se without being informed of her right to counsel or that her decision not to be represented or assisted at the hearing was invalid or that evidence favorable to her application existed which the ALJ failed to obtain for the record. She also does not appear to base her challenge to the ALJ's decision on an argument that the hearing, as conducted by the ALJ, was unfair. Therefore, as she has not developed a lack of due process argument, it is deemed waived. See, e.g.. United States v. Zannino. 895 F.2d 1, 17 (1st Cir.) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones."), cert, denied, 494 U.S. 1082 (1990). 4 despite the severity of the claimant's impairment and inability
to return to past relevant work, she retains the residual
functional capacity to perform other occupations that exist in
significant numbers in the national economy and in the region
where she lives. 20 C.F.R. § 404.1520(f); Keating v. Secretary
of Health & Human Servs., 848 F.2d 271, 276 (1st Cir. 1988) .
The ALJ made the following findings that are relevant to
this issue. Flannery was forty-nine years old, which is a
"younger individual" (age 45-49) for purposes of social security
benefits eligibility. Flannery's residual functional capacity
for a full range of sedentary work was reduced by pain. She
could not lift or carry more than twenty pounds; she could not
sit, stand, or walk for prolonged periods; she was unable to
bend, stoop, climb, or crawl; and she needed freedom to change
her position at will. She could not use her arms for rapid and
repetitive movements or perform tasks requiring fine visual
acuity, and she needed to avoid reaching. She could not return
to her previous work as a nurse's aid, and she had no acquired
work skills that were transferrable to other skilled or semi
skilled work.
Based on the Medical-Vocational Guidelines, 20 C.F.R. p t .
404, subpt. P, app. 2, Rule 201.21, and the vocational expert's
5 opinion,3 the ALJ also found that Flannery was not disabled, as
jobs existed in significant numbers in the national and regional
economies that she was able to perform, such as work as a
receptionist or as a child care worker for older children.
Flannery asserts that the V E 's opinion that she could
perform work as a receptionist and as a child care worker
conflicts with the descriptions of those job classifications in
the Dictionary of Occupational Titles ("DOT"). She contends that
when a V E 's opinion conflicts with the DOT, and the ALJ has relied on the V E 's opinion in making a disability determination,
the decision cannot be "supported by substantial evidence." See,
e.g.. Smith v. Shalala, 46 F.3d 45, 47 (8th Cir. 1995) ("when
expert testimony conflicts with the DOT, the DOT controls");
Williams v. Shalala, 997 F.2d 1494, 1500 (D.C.Cir. 1993) (VE's
testimony in conflict with DOT does not constitute substantial
evidence); but see Johnson v. Shalala, 60 F.3d 1428, 1425 (9th
Cir. 1995) (ALJ may rely on testimony from expert that is
"Where a claimant's impairments involve only limitations in meeting the strength requirements of work, the Grid provides a 'streamlined' method by which the [Commissioner] can carry this burden." Heggartv v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). If, however, the claimant also has nonexertional impairments that "significantly affect" her ability to perform work, as the ALJ found in this case, then the testimony of a vocational expert is usually necessary. Id. at 996. A vocational expert was used in this case, as required, to consider the availability of work for a claimant whose residual functional capacity for sedentary work was reduced by nonexertional impairments caused by pain.
6 different from DOT); Conn v. Secretary of Health and Human
Servs., 51 F.3d 607, 610 (6th Cir. 1995) (same). Flannery has
not shown, however, that the VE's opinion conflicts with the DOT job classification.
Flannery points to the DOT job titles for receptionist, DOT
#237.367-038, and nursery school attendant, DOT #35977018, as the
relevant job descriptions. She notes that both are described as
a semi-skilled4 positions, and contends that a semi-skilled
position exceeds her skill criteria as described by the ALJ in
his hypotheticals. A thorough review of the ALJ's hypothetical
reveals no express skill level limitation. The ALJ described her
previous work as semi-skilled and her education level as a high
school education with average abilities; he directed the VE to
consider "any transferable skills that may be addressed at the
sedentary range,-" and found that she did not have acquired work
skills that were transferable to skilled or semi-skilled
functions of other work.
If Flannery's work experience were the only criteria for
determining her skill level, she would be correct that her skill
level should be limited to "unskilled." See 20 C.F.R. § 404.1565
("If you cannot use your skills in other skilled or semi-skilled
4 Flannery mistakenly reported that the DOT described the receptionist position as skilled. The print-out submitted by Flannery shows that the DOT specific vocational level is 4, which translates to a skill level of semi-skilled. 7 work, we will consider your work background the same as
unskilled.") However, another vocational factor for determining
skill level is the claimant's education. See id. at § 404.1564.
Because it is undisputed that Flannery had a high school
education and average abilities, she was qualified on the basis
of her education to do semi-skilled through skilled work. See
id. at § 404.1564(b)(4). Because of her education, Flannery's
lack of transferrable skills does not limit her to unskilled work.
Flannery also challenges the VE's opinion that she could do
child care work, on grounds that the DOT-assigned exertional level of light work, rather than sedentary, exceeds her
exertional limitations as found by the ALJ. While she is correct
that the ALJ determined that she was limited to sedentary work,
she is incorrect in choosing "nursery school attendant" from the
DOT job titles as the corresponding work described by the VE and
found by the ALJ. A nursery school attendant, as described in
DOT #359677018, "leads activities of prekindergarten children in
nursery schools or playrooms." The VE described and the ALJ found that Flannery could work in child care for older children.
Flannery has shown no conflict between a comparable DOT job
description and the VE's opinion, relied on by the ALJ, that child care for older children would require only sedentary work.
8 As the record contains substantial evidence to support the ALJ's finding that Flannery could perform work such as that of a
receptionist and a child care worker with older children, the
Commissioner's decision that Flannery is not disabled is
affirmed.
CONCLUSION
For the foregoing reasons, claimant's motion to reverse and
remand (document no. 10) is denied, and the Commissioner's motion
to affirm (document no. 11) is granted.
SO ORDERED.
Steven J. McAuliffe United States District Judge September 26, 1996
cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.