Searles v. SSA CV-99-548-B 10/13/00
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Stephen R. Searles
v. Civil No. 99-548-B Opinion No. 2000 DNH 214 Kenneth Apfel, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Stephen R. Searles applied for Title II Social Security
Disability Insurance Benefits on August 8, 1996. Searles alleged
an inability to work since December 29, 1993 due to soft tissue
damage to his right shoulder and elbow. The Social Security
Administration ("SSA") denied his application initially and on
reconsideration. Administrative Law Judge ("ALJ") Robert
Klingebiel held a hearing on Searles' claim on July 15, 1997. In
a decision dated October 9, 1997, the ALJ found that Searles was
not disabled. On October 15, 1999, the Appeals Council denied
Searles' request for review, rendering the ALJ's decision the
final decision of the Commissioner of the SSA. Searles brings this action pursuant to § 40 5 (g) of the
Social Security Act (the "Act") seeking review of the denial of
his application for benefits. See 42 U.S.C. § 405(g) (2000).
Before me are Plaintiff's Motion for Order Reversing the Decision
of the Secretary (Doc. No. 6) and Defendant's Motion for an Order
Affirming the Decision of the Commissioner (Doc. No. 7). For the
reasons set forth below, I conclude that the ALJ's decision that
Searles was not entitled to benefits was supported by substantial
evidence. Therefore, I affirm the Commissioner's decision and
deny Searles' motion to reverse.
I. BACKGROUND1
Searles was thirty-eight years old when he filed his
application for benefits on August 8, 1996. He graduated from
high school. Searles worked as a chicken de-boner in a chicken
processing plant from 1984 to 1985 and as a youth counselor at a
1 Unless otherwise noted, the procedural and factual background set forth in this Memorandum and Order derives from the joint statement of material facts submitted by the parties.
- 2 - youth detention center from 1985 until 1993. He is left-handed.
On December 29, 1993, one of Searles' co-workers at the
youth detention center grabbed Searles' right elbow and pulled it
upwards and backwards. Searles had previously injured his right
shoulder in a motorcycle accident in 1982. Despite this prior
injury, Searles could do "pretty much anything he wanted to do."
As a result of this new incident, however, Searles experienced
pain in his right elbow and shoulder.
In response to his pain, Searles saw Dr. Gerard Hevern. Tr.
at 1782. Dr. Hevern noted that Searles had decreased strength
and range of motion in his right shoulder and referred him for
physical therapy. Id. He felt that Searles could fully recover
and should be able to return to full employment. I d . at 17 9.
Searles underwent physical therapy until February, 1994, when his
symptoms worsened.
In March, 1994, Dr. William Kilgus, an orthopedic surgeon,
examined Searles. Dr. Kilgus reported limited range of motion in
2 "Tr." refers to the certified transcript of the record submitted to the Court by the SSA in connection with this case.
- 3 - Searles' right shoulder and elbow and significant atrophy over
the right biceps muscle and right shoulder girdle muscles. In
his opinion, Searles' limited range and atrophy were a reflection
of his 1982 injury. He ordered an electromyogram ("EMG")3 and
nerve conduction study to rule out any new injury.
Dr. Kilgus eventually concluded that Searles had sustained
merely a strain to the soft tissue of the upper right extremity
and that at most it was "a temporary aggravation of a pre
existing condition." On April 5, 1994, Dr. Kilgus noted that
Searles was doing well and that his symptomology had gradually
subsided. Dr. Kilgus felt that exercise would be beneficial for
Searles' shoulder. He suggested that Searles resume working on a
modified basis and gradually work back into his normal routine.
On May 4, 1994, Dr. Richard Hockman examined Searles. Dr.
Hockman observed that Searles experienced pain with abduction and
external rotation of his right shoulder and diagnosed a probable
3 An electromyogram is a graphic representation of the electric currents associated with muscular action. Stedman's Medical Dictionary 497 (25th ed. 1990) .
- 4 - rotator cuff tear. However, an arthrogram4 revealed no rotator
cuff tear.
At a follow-up visit on June 7, 1994, Dr. Hockman concluded
that Searles had sustained a C5 nerve root injury which had not
responded. Searles had good range of motion but continued to
have some pain and twitching in the anterior part of his right
shoulder. Dr. Hockman stated that the nerve root injury required
physical therapy, but that Searles was concerned that such
therapy made his arm sore. Tr. at 223. Dr. Hockman's feeling
was that "despite the pain, [Searles] [was] going to have to work
through it." Id. Moreover, he stated that if Searles followed
through "he might very well be able to overcome this problem."
Id. On August 24, 1994, Dr. Hockman opined that Searles was
incapable of his usual occupation because of the serious nature
of his injury.
4 An arthrogram is a roentgenogram of a joint. The term usually implies the introduction of a contrast agent into the joint capsule. Stedman's Medical Dictionary 135 (25th ed. 1990).
- 5 - On September 15, 1995, at the request of the New Hampshire
Workers Compensation Commission, Dr. David Steinberg examined
Searles. Tr. at 235. He diagnosed Searles with status-post
probable right shoulder strain on December 29, 1993 and status-
post 1982 motor vehicle accident with resultant injury to the
upper trunk of the right brachial plexus with residual weakness
in the 05 and 06 innervated muscles. Dr. Steinberg felt that
Searles should not lift anything with his right arm and could not
return to his youth counselor position. He believed that Searles
could perform at least a full-time light duty job.
Dr. Steinberg referred Searles to a physical therapist for a
functional capacity evaluation. The evaluation showed that
Searles could reach overhead, crawl, and balance using his right
arm only occasionally, but could use his left arm and both legs
frequently. The test results emphasized that Searles completed
the evaluation with a low pain profile. Tr . at 234. The
physical therapist concluded that although Searles did not have
the ability to return to work as a youth counselor, he did have
- 6 - the ability to perform light-medium to medium work on a full-time
basis.
A. Initial Treatment and Evaluation by Dr. Botsford
Dr. Hevern subsequently referred Searles to Dr. Daniel
Botsford, who examined him on November 16, 1994. Tr. at 241.
During the examination, Searles complained of quivering in his
right arm, especially after using that arm. He also reported
needle-like sensations in his right shoulder and elbow and
tingling in the fingers of his right hand. Dr. Botsford noted
marked atrophy of Searles' upper right arm and a lesser degree of
atrophy in his right forearm. A neuromuscular examination
revealed weakness in the deltoid and virtually no strength in the
biceps, infraspinatus5, and brachioradialis6. A sensory
examination revealed a diminution in an epaulette distribution
descending onto Searles' arm in a fashion compatible with the
5 The infraspinatus muscle extends the arm and rotates it laterally. Stedman's Medical Dictionary 783, 999 (25th ed. 1990).
6 The brachioradialis muscle flexes the forearm. Stedman's Medical Dictionary 995 (25th ed. 1990) .
- 7 - dermatomes7 served by either the C5 or C6 nerve. Dr. Botsford
opined that Searles had a C5 radiculopathy8 and speculated that
he had avulsed the C5 nerve root.
In March, 1995, Dr. Botsford stated that Searles was most
suited to light and sedentary tasks that did not require right
shoulder control or right biceps or elbow/shoulder stability. In
May, 1995, Dr. Botsford reported that Searles had a partial work
capacity, so long as his work did not require a stable right
shoulder or any flexion of the elbow. He noted that Searles'
pain constrained his stamina. He further opined that Searles
could return to work with modifications. According to Dr.
Botsford, Searles could work two to four hours a day and could
lift and carry a maximum of ten pounds, and no more than five
pounds frequently, using his right arm. He also found that
Searles could use his left arm to lift and carry fifty pounds,
7 A dermatome is the area of skin supplied by cutaneous branches from a single spinal nerve. Stedman's Medical Dictionary 419-20 (25th ed. 1990).
8 A radiculopathy is a disease of the spinal nerve roots. Stedman's Medical Dictionary 1308 (25th ed. 1990) . and thirty pounds frequently.
During the course of treatment. Dr. Botsford suggested a
number of methods to alleviate Searles' pain, including a
prescription for Mexiletine9.
B. Interim Examinations and Evaluations
In May, 1995, Dr. A.M. Drukteinis prepared a psychological
pain profile of Searles. When questioned by Dr. Drukteinis,
Searles reported that his prescribed medication did not alleviate
his pain, but that Tylenol 3 worked well and he drank alcohol to
help relieve his symptoms. The doctor observed that Searles
displayed "only mild pain behavior." Searles said that his only
current method of physical therapy was to perform range of motion
exercises for ten minutes, two to three times per week. Tr. at
267. Dr. Drukteinis observed that Searles: (1) had taken a
passive and helpless role in his own rehabilitation; (2) appeared
content to relieve his pain with alcohol; and (3) disagreed with
9 Mexiletine is a local anisthetic, antiarrhythmic agent, that is structurally similar to lidocaine, but orally active. Physicians' Desk Reference 804 (54th ed. 2000) .
- 9 - the idea that it was up to him to look for a job.
Dr. Drukteinis evaluated Searles in a number of ways. The
McGill and Dallas Pain Questionnaires indicated that Searles
experienced mild to moderate pain. The Pain Drawing Test,
however, showed a good measure of complaint magnification. The
Beck Depression Inventory indicated a moderate degree of
depression. Based on the Millon Behavioral Health Inventory
("MBHI"), Searles' psychological profile makes him "highly
susceptible" to psychosomatic ailments. Tr . at 269. The MBHI
further indicated that Searles will "overreact to any severe or
prolonged physical problem." Id. Dr. Drukteinis opined that his
prognosis from a psychological standpoint was guarded.
Dr. Robert Leffert examined Searles on January 31, 1996.
Tr. at 276-78. Searles told him that the prescribed pain
medication had not helped him and that his primary means of
controlling his pain was drinking alcohol. Dr. Leffert found
that Searles had limited range of motion, and atrophy of the
muscles, in his right arm and shoulder. Tr . at 277. After
- 10 - examination. Dr. Leffert concluded that Searles had "the residue
of a brachial plexus injury that was probably engrafted on a
prior plexus injury" and a significant pain problem. Id.
C. The Ultimate Opinion of Dr. Botsford
In February, 1996, Dr. Botsford again examined Searles. Dr.
Botsford noted that Searles' right shoulder and elbow remained
painful but he had good range of motion. Dr. Botsford opined
that Searles had a 58% impairment of his right arm that equated
to a 35% whole person impairment.
Dr. Botsford next saw Searles in November, 1996. Searles
reported that performing one household chore for as little as one
hour resulted in increased pain and required him to rest for up
to five hours. His other activities included riding a mountain
bike, working on a farm two weekends a month, and caring for his
seven year old daughter on the other two weekends a month.
Dr. Botsford found that Searles' left upper limb and both
lower limbs had full strength. His right grasp, wrist extension,
and finger extension only registered four-fifths of normal. Dr.
- 11 - Botsford ultimately opined that Searles did not have substantial
rehabilitation potential or employable capacity due to alcohol
abuse, despair, pain, and poor stamina.
D. Subsecruent Assessments of Searles
In November, 1996, Dr. Campbell, a Disability Determination
Service medical consultant, reviewed the available medical
evidence and prepared an assessment of Searles' physical
functional capacity. Dr. Campbell never examined or spoke with
Searles. He found that Searles could sit or stand for six hours
in an eight-hour workday and could lift and carry twenty pounds
occasionally and ten pounds frequently. He also noted that
Searles should not do overhead reaching because of the very
limited function in his right shoulder.
In February, 1997, Dr. Hans Standow conducted a
comprehensive psychiatric profile of Searles. Searles told Dr.
Standow that he could not do heavy work because of weakness in
his right arm. He reported that medication did not help his
condition and that only alcohol relieved his pain. Dr. Standow
- 12 - diagnosed generalized anxiety disorder with recurrent depression,
alcohol dependence, and borderline personality disorder. He
noted that Searles was of at least average intelligence and
should be able to learn and remember tasks. He had the ability
to communicate, but needed guidance to develop new skills and
find his direction.
II. STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant's application for benefits, and upon a timely request by
the claimant, I am authorized to: (1) review the pleadings
submitted by the parties and the transcript of the administrative
record; and (2) enter a judgment affirming, modifying, or
reversing the ALJ's decision. 42 U.S.C. § 405(g) . My review is
limited in scope, however, as the ALJ's factual findings are
conclusive if they are supported by substantial evidence. I d .;
see Irlanda Ortiz v. Secretary of Health and Human Servs., 955
F.2d 765, 769 (1st Cir. 1991) (per curiam). The ALJ is
- 13 - responsible for settling credibility issues, drawing inferences
from the record evidence, and resolving conflicting evidence.
See Irlanda Ortiz, 955 F.2d at 7 69. Therefore, I must "'uphold
the [ALJ's] findings . . . if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate to
support [the ALJ's] conclusion.'" I d . (quoting Rodriquez v.
Secretary of Health and Human Servs., 647 F.2d 218, 222 (1st Cir.
1981)). I apply these standards in reviewing Searles' case on
appeal.
Ill. DISCUSSION
The Social Security Act defines "disability" for the
purposes of Title II as the "inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months." 42 U.S.C. §
423(d)(1)(A) (2000). When evaluating whether a claimant is
- 14 - disabled due to a physical or mental impairment, an ALJ's
analysis is governed by a five-step sequential evaluation
process.10 See 20 C.F.R. § 404.1520 (2000).
At step three in the process, the ALJ must determine whether
the claimant's impairment meets or equals a listed impairment.
20 C.F.R. § 404.1520(d). At step four, the ALJ must determine
whether the claimant's impairment prevents him from performing
his past work. 20 C.F.R. § 404.1520(e). To make this
determination, the ALJ must assess both the claimant's residual
functional capacity ("RFC"), that is, what the claimant can do
despite his impairments, and the demands of the claimant's prior
employment. See i d .; Santiago v. Secretary of Health and Human
Servs., 944 F.2d 1, 5 (1st Cir. 1991) (per curiam). The claimant
10 The ALJ is required to consider the following five issues when determining if a claimant is disabled: (1) whether the claimant 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 or prevented the claimant from performing past relevant work; and (5) whether the impairment prevents or prevented the claimant from doing any other work. 20 C.F.R. § 404.1520 (2000).
- 15 - bears the burden of showing that he does not have the RFC to
perform his past relevant work. See Santiago, 944 F.2d at 5.
Ultimately, at step five, the burden shifts to the
Commissioner to show "that there are jobs in the national economy
that [the] claimant can perform." Heggartv v. Sullivan, 947 F.2d
990, 995 (1st Cir. 1991) (per curiam); see also Keating v.
Secretary of Health and Human Servs., 848 F.2d 271, 276 (1st Cir.
1988) (per curiam). The Commissioner must show that the
claimant's limitations do not prevent him from engaging in
substantial gainful work, but need not show that the claimant
could actually find a job. See Keating, 848 F.2d at 276.
In the present case, the ALJ concluded at step three of the
sequential evaluation process that Searles did not have an
impairment which met or equaled the criteria of any of the
impairments listed in Appendix 1, Subpart P, Regulations No. 4.
A.L.J. Decision at 2, 12 (Tr. at 15, 24). At step four, the ALJ
found that Searles was unable to return to his prior employment
because of the condition of his right shoulder and elbow. I d . at
- 16 - 9, 13 (Tr. at 22, 25) .
Ultimately, at step five, the ALJ found that although
Searles had a severe impairment that precluded his return to his
former employment and limited the range of work he could perform,
he retained the RFC to perform certain types of light work.11
I d . (Tr. at 22, 25). The ALJ found, based upon the testimony of
a vocational expert, that Searles was capable of making an
adjustment to work which exists in significant numbers in the
national economy. I d . at 10-13 (Tr. at 23-25).
Searles argues that the ALJ's denial of his application for
benefits at step five was tainted by a variety of legal errors.
First, Searles contends that the ALJ failed to assign proper
11 Light work may involve "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds," "a good deal of walking or standing," and/or "sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b) (2000). "If someone can do light work, . . . [he ordinarily] can also do sedentary work." I d . Sedentary work involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools"; occasional "walking and standing"; and frequent "sitting." 20 C.F.R. § 404.1567(a) (2 0 0 0 ) .
- 17 - weight to the opinion of Dr. Botsford, a treating physician. See
Mem. in Supp. of P i .'s Mot. for Order to Reverse (Doc. No. 6) at
4-11. Second, Searles argues that the ALJ improperly relied on
vocational expert testimony based on a hypothetical question
which did not include impairments that the ALJ found to be
severe. See i d . at 11-12. Finally, Searles argues that the
ALJ's finding that Searles' statements concerning his impairments
and their impact on his ability to work were not entirely
credible is not supported by substantial evidence. See i d . at
12-14. I address each of these arguments in turn.
A. The ALJ's Weighing of Dr. Botsford's Opinion
On November 18, 1996, Dr. Botsford opined that Searles
lacked substantial rehabilitation potential or "employable
capacity." Tr. at 264. Searles contends that the ALJ erred by
not according greater, if not controlling, weight to this
opinion. See 20 C.F.R. § 404.152 7(d)(2) (2000).
Deference to the opinions of treating physicians is not
universal. An ALJ must give controlling weight to the opinion of
- 18 - a treating physician only where the opinion is "well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2). In
addition, opinions on issues that are reserved to the
Commissioner, such as an opinion that an individual is disabled
or unable to work, are "never entitled to controlling weight or
special significance." SSR 96-5p, 1996 WL 374183, *2; see 20
C.F.R. § 404 .1527 (e) .
When an ALJ concludes that a treating physician's opinion is
not entitled to controlling weight, he must determine the
appropriate weight to be given to the opinion by evaluating
certain factors. 20 C.F.R. § 404.1527(d)(2); see SSR 96-5p, 1996
WL 374183, *3 (even when evaluating an opinion on an issue
reserved to the Commissioner the ALJ must consider the factors
listed in 20 C.F.R. § 404.1527(d)). The ALJ must consider: (i)
the length of the treatment relationship and the frequency of
examination; (ii) the nature and extent of the treatment
- 19 - relationship; (iii) whether and to what extent the opinion is
supported by medical signs and laboratory findings; (iv) whether
the opinion is consistent with other evidence in the record; (v)
whether the physician's opinion concerns medical issues related
to his area of specialty; and (vi) any other factors which
support or contradict the opinion. 20 C.F.R. § 404.1527(d)(2)-
(d) (6) .
In this case, the ALJ found that Dr. Botsford's opinion on
work capability was not persuasive because it was "inconsistent
with the objective findings on physical examination and the
claimant's wide range of activities of daily living." A.L.J.
Decision at 5 (Tr. at 18). After reviewing Searles' medical
history, including the length, frequency, nature and extent of
his relationship with Dr. Botsford, the ALJ based his assessment
of Dr. Botsford's opinion on several specific, valid reasons.
A.L.J. Decision at 3-5 (Tr. at 16-18). First, the ALJ noted that
Dr. Botsford's opinion was not supported by Dr. Botsford's own
findings upon examining Searles. The record shows that Dr.
- 20 - Botsford found that Searles, who is left-handed, continued to
have full strength and range of motion in his upper left
extremities and both of his lower extremities. Tr. at 263. See
20 C.F.R. § 404.1527(d)(3)-(4). The ALJ also noted that a
physical capacities evaluation of Searles in 1994 concluded that
he was capable of light to medium work because he had no
limitations on his ability to sit, stand or walk. A.L.J.
Decision at 3, 5 (Tr. at 16, 18). See 20 C.F.R. §
404.1527(d) (3)- (4) . Indeed, the record also shows that D r s .
Hevern, Kilgus, Hockman, and Steinberg had previously concluded
that Searles was capable of working on a modified basis. See
Keating, 848 F.2d at 276 (a "treating physician's conclusions
regarding total disability may be rejected by the [ALJ]
especially w h e n ... contradictory medical advisor evidence appears
in the record"); 20 C.F.R. § 404.1527(d) (3)-(4); SSR 96-2p, 1996
WL 374188, *3.
In addition to concluding that Dr. Botsford's opinion was
lacking in medical foundation and was inconsistent with other
- 21 - medical opinions in the record, the ALJ also concluded that the
opinion was inconsistent with the wide range of activities
Searles performed in his daily life. A.L.J. Decision at 5 (Tr.
at 18). See SSR 96-2p, 1996 WL 374188, *3. The ALJ noted that
Searles walked up to six miles per day, rode a mountain bike, and
performed household chores. A.L.J. Decision at 5 (Tr. at 18).
See 20 C.F.R. § 404.1527(d)(6); SSR 96-2p, 1996 WL 374188, *3.
Since the ALJ and not the treating physician must determine
whether Searles is disabled, and since substantial evidence in
the record supports the ALJ's decision to place less weight on
Dr. Botsford's opinion, I reject Searles' argument that the ALJ
erred in disregarding Dr. Botsford's opinion.
B. Hypothetical Question Posed to the Vocational Expert
Searles next argues that the ALJ improperly relied on
vocational expert ("VE") testimony based on a hypothetical
question that did not include impairments that the ALJ found to
be severe. Once a claimant proves that he is incapable of
returning to his prior jobs, the burden shifts to the
- 22 - Commissioner to come forward with evidence of specific jobs in
the national economy that the claimant is capable of performing.
See Arocho v. Secretary of Health and Human Servs., 670 F.2d 374,
375 (1st Cir. 1982); 20 C.F.R. § 404.1520(f). The Commissioner
can meet his burden of proof on this issue by relying on the
testimony of a VE, but in order to be entitled to rely on the
V E 's answer, the ALJ must pose a hypothetical question to the VE
which accurately reflects the claimant's functional limitations.
See Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994); Berrios
Lopez v. Secretary of Health and Human Servs., 951 F.2d 427, 429-
30 (1st Cir. 1991) (per curiam). That is, the ALJ may credit the
VE's response only if there is "substantial evidence in the
record to support the description of the claimant's impairments
given in the ALJ's hypothetical" to the VE. Berrios Lopez. 951
F .2d at 429.
In this case, the ALJ, at the July 15, 1997 hearing, called
a VE to testify as to (1) Searles' ability to perform his past
relevant work; and (2) whether there were any jobs in the
- 23 - national economy which Searles was capable of performing. Tr. at
55-60. At the hearing, the ALJ and the VE engaged in a colloquy,
the relevant sections of which are as follows:
ALJ: Now I want to ask you some brief questions that will take into account a number of different factors...we're dealing with someone who is best suited to work in a job where the tasks are routine in nature or repetitive in nature without a great deal of change from day to day in terms of the operation...
V E : Could you repeat that last limitation. Your Honor, about repetition?
ALJ: Yes. If we're dealing with someone who is best suited to work in a job that wasn't particularly different from day to day, that is where someone had to learn new tasks. Someone had to learn and deal with more complex or detailed instructions, where someone is doing more routine types of tasks - perhaps this could be learned in a relatively short period of time. They were entry level types of tasks that could be performed.
V E : So the limitation is that they could not learn more complicated tasks that were changing?
ALJ: That's correct.
Tr. at58-60. After concluding that Searles could not return to
his prior jobs, the ALJ and the VE then discussed the type and
number of jobs in the national economy that Searles would be able
- 24 - to perform given his functional and vocational limitations. Tr.
at 60-63.
After this discussion, Searles' attorney examined the V E .
Tr. at 63-66. He specifically questioned the VE as to whether
depression and difficulty in interpersonal interactions would
further limit the hypothetical individual's employment options.
Id. The VE responded that, although such limitations would
prevent an individual from performing certain jobs, it "wouldn't
be a problem" for many other positions that the individual was
otherwise qualified to perform. Tr. at 65.
The ALJ ultimately found that Searles had an anxiety
disorder with recurrent depression and alcohol dependence.
Searles contends that because the ALJ's hypothetical did not
mention these impairments, or any possible limitations that might
flow from these impairments, the ALJ could not properly rely on
the VE's response as a basis for a finding that Searles was not
disabled. In support of his argument, Searles recites a number
of possible limitations flowing from his impairments, all of
- 25 - which were noted by Dr. Drukteinis in his 1995 psychological pain
profile of Searles. See Mem. in Supp. of P i .'s Mot. for Order to
Reverse (Doc. No. 6) at 11.
Searles' argument falls wide of the mark. The ALJ
ultimately adopted the findings of Dr. Standow, not Dr.
Drukteinis. It is the ALJ's responsibility to resolve
ambiguities in the record and decide what testimony will be
credited when formulating a hypothetical question. Arocho, 670
F.2d at 375. Therefore the conclusions of Dr. Drukteinis, who
examined Searles almost two years before Dr. Standow, are not
necessarily limitations that flow from the ALJ's finding and
therefore need not have been included in the hypothetical.
In framing his hypothetical to the VE, the ALJ essentially
paraphrased the functional limitations imposed on Searles by his
anxiety disorder, as found by Dr. Standow: an inability to learn
new tasks or perform complex tasks. In addition, the questions
posed by Searles' attorney, and the VE's responses thereto,
regarding depression and difficulty in interaction with others.
- 26 - supplemented the record and provided the ALJ with substantial
evidence upon which to reach a conclusion of "not disabled". See
Herron v. Shalala, 19 F.3d 329, 337 (7th Cir. 1994) (finding no
error where ALJ failed to refer to all of claimant's complaints
in framing his question because VE had previously reviewed record
and attorney expanded the record by posing additional
hypotheticals that included those impairments); Shively v.
Heckler, 739 F.2d 987, 990-91 (4th Cir. 1984) (ALJ's failure to
ask questions cured when claimant's attorney posed hypotheticals
to VE based on claimant's view of evidence) .
I therefore conclude that the ALJ was entitled to rely upon
the VE's testimony in arriving at the determination that Searles
was not disabled.
C. The ALJ's Credibility Assessment
Finally, Searles argues that the ALJ's finding that his
statements concerning his impairments and their impact on his
ability to work were not entirely credible is not supported by
substantial evidence. Searles contends that the ALJ improperly
- 27 - relied on Searles' limited daily activities to discredit his
statements that he had a disabling impairment. See Mem. in Supp.
of P I .'s Mot. for Order to Reverse (Doc. No. 6) at 12-13.
Searles also takes issue with the ALJ's statement that the
physical examinations of Searles are inconsistent with his
complaints of disabling pain. I d . at 13-14. For the following
reasons, I disagree.
The SSA regulations require an ALJ to consider a claimant's
own subjective statements concerning his symptoms, including
statements regarding how those symptoms affect the claimant's
ability to work. 20 C.F.R. § 404.1529(a) (2000). An ALJ must
follow a two-step process to evaluate the credibility of a
claimant's statements. First, the ALJ must determine whether the
claimant suffers from a medically determinable impairment that
can reasonably be expected to produce the symptom alleged. 20
C.F.R. § 404.1529(b); see DaRosa v. Secretary of Health and Human
Servs., 803 F.2d 24, 25 (1st Cir. 1986) (per curiam). Then, if
such an impairment exists, the ALJ must evaluate "the intensity
- 28 - and persistence of [the claimant's] symptoms so that [the ALJ]
can determine how [the claimant's] symptoms limit [his or her]
capacity for work." 20 C.F.R. § 404.1529(c)(1). At this second
stage, the ALJ must consider "all of the available evidence,
including [the claimant's] medical history, the medical signs and
laboratory findings, and statements from [the claimant], [the
claimant's] treating or examining physician or psychologist, or
other persons about how [the claimant's] symptoms affect [the
claimant]." Id.
The Commissioner recognizes that a claimant's subjective
statements may suggest a more severe impairment "than can be
shown by objective medical evidence alone." 20 C.F.R. §
404.1529(c)(3). Accordingly, an ALJ evaluates a claimant's
complaints in light of the following factors: (1) the claimant's
daily activities; (2) the location, duration, frequency, and
intensity of the claimant's pain; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and
side effects of any medication that the claimant takes or has
- 29 - taken to alleviate his pain; (5) treatment, other than
medication, the claimant receives or has received for relief of
his pain; (6) any measures the claimant uses or has used to
relieve pain; and (7) other factors concerning the claimant's
limitations and restrictions due to pain. I d . (emphasis added);
see Avery v. Secretary of Health and Human Servs., 797 F.2d 19,
28-29 (1st Cir. 1986). These factors are sometimes called the
"Avery factors." In addition to considering these factors, the
ALJ is entitled to observe the claimant, evaluate his demeanor,
and consider how the claimant's testimony fits with the rest of
the evidence. See Frustaqlia v. Secretary of Health and Human
Servs., 829 F.2d 192, 195 (1st Cir. 1987) (per curiam).
In assessing the credibility of a claimant's subjective
statements, the ALJ must consider whether these complaints are
consistent with the objective medical evidence and other evidence
in the record. See 20 C.F.R. § 1529(a). While a claimant's
complaints must be consistent with the medical evidence to be
credited, they need not be precisely corroborated with such
- 30 - evidence. See Dupuis v. Secretary of Health and Human Servs.,
869 F.2d 622, 623 (1st Cir. 1989) (per curiam).
In this case, the ALJ considered the Avery factors and
ultimately concluded, contrary to Searles' assertions of
disabling pain, that Searles did not experience pain at a level
that would preclude him from all types of work. A.L.J. Decision
at 7-9 (Tr. at 20-22). In his analysis, the ALJ noted that
Searles performs a number of daily household activities such as
cooking, cleaning, and doing laundry. I d . at 8 (Tr. at 21). In
addition, he plays pool, gardens, and rides his bicycle almost
every day. I d . at 8 (Tr. at 21). He also milks cows two
weekends a month and takes care of his daughter on the other two
weekends. I d . at 8 (Tr. at 21). The ALJ found these activities
to be inconsistent with Searles' complaints of disabling pain.
The ALJ also found that the medical evidence in the record
was inconsistent with Searles' complaints of disabling pain. He
noted that Searles, who is left handed, "has no limitations with
his lower extremities or his upper left extremity." A.L.J.
- 31 - Decision at 9 (Tr. at 21). Moreover, as discussed above, the
record shows that several doctors had found Searles capable of
working. In light of the inconsistency between Searles'
complaints of disabling pain and both his activities of daily
living and the medical evidence in the record, the ALJ concluded
that Searles' statements were not entirely credible. I d . at 8
(Tr. at 21). See Frustaqlia, 829 F.2d at 195 n.l ("Where there
are inconsistencies in the record, the ALJ may discount
subjective complaints of pain.").
Searles contends that the ALJ erred in relying on Searles'
daily activities to discredit Searles' complaints of disabling
impairments. Searles primarily bases his argument on cases in
which an ALJ either relied exclusively on a claimant's daily
activities or misread the record. See, e.g., Baumaarten v.
Chater, 75 F.3d 366, 368-70 (8th Cir. 1996); Hogg v. Shalala, 45
F.3d 276, 279-79 (8th Cir. 1995). It is clear, however, from the
relevant SSA regulations, that an ALJ can consider a claimant's
"daily activities," among other factors, in determining the
- 32 - credibility of a claimant's complaints of pain. 20 C.F.R. §
404.1529(c)(3)(1); see also Roe v. Chater, 92 F.3d 672, 677 (8th
Cir. 1996) ("more telling than a chronicle of [claimant's]
various ailments are his actual activities, which are incongruous
with his contention that he cannot work"); SSR 96-7p, 1996 WL
374186, *3.
In this case, the ALJ considered both the objective medical
evidence in the record and Searles' daily activities in reaching
his credibility determination. See Frustaqlia, 829 F.2d at 195
n.l. Moreover, there is other evidence in the record to support
the ALJ's decision. For example, both Dr. Drukteinis and the
physical therapist that tested Searles noted that he exhibited
low or, at most, moderate pain behavior. Tr. at 234, 267-69. In
addition. Dr. Drukteinis noted that someone with Searles'
psychological profile is likely to exaggerate his symptoms. Tr.
at 267-69 .
Given this, I find that the ALJ's decision was supported by
substantial evidence. See Rodriquez Pagan v. Secretary of Health
- 33 - and Human Servs., 819 F.2d 1 , 3 (1st Cir. 1987) (a court "must
affirm the [ALJ's] resolution, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.")
Lastly, Searles contends, in passing, that the ALJ's
statement that the physical examinations of Searles are
inconsistent with complaints of disabling pain was factually
erroneous. The record here shows, as discussed above, that Drs.
Hevern, Kilgus, Hockman, and Steinberg, among others, had
concluded that Searles was not completely disabled and could
still perform some forms of light work. Although reasonable
minds could differ on how to evaluate the medical evidence, I
conclude that the ALJ's determination that Searles' complaints of
pain were inconsistent with the medical evidence is supported by
substantial evidence and thus entitled to deference. See
Frustaqlia, 829 F.2d at 195; Rodriquez Pagan, 819 F.2d at 3.
- 34 - IV. CONCLUSION
Since I have determined that the ALJ's denial of Searles'
application for benefits was supported by substantial evidence, I
affirm the Commissioner's decision. Accordingly, Searles' motion
to reverse and remand (Doc. No. 6) is denied, and defendant's
motion for an order affirming the decision of the Commissioner
(Doc. No. 7) is granted. The clerk shall enter judgment
accordingly.
SO ORDERED.
Paul Barbadoro Chief Judge
October 13, 2000
cc: Jeffrey A. Schapira, Esq. David L. Broderick, Esq.
- 35 -