Thompson v. Shalala CV-94-88-B 05/02/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Amber Thompson
v. Civil No. 94-88-B
Donna E. Shalala, Secretary of _____ Health and Human Services
O R D E R
Amber Thompson challenges the decision by the Secretary of
Health and Human Services to deny her disability insurance and
supplemental security income benefits. Thompson contends that
the Administrative Law Judge ("ALJ") agreed to suspend her
benefits hearing to allow her to submit additional evidence, and
then improperly closed the record without notice and without
first allowing Thompson's counsel to cross-examine the vocational
expert further in light of the evidence submitted after the
hearing. Thompson also argues that the record does not support
the ALJ's decision. Because the ALJ did not err in not reopening
the hearing and the record contains substantial evidence to
support the decision, I affirm. BACKGROUND
Amber Thompson filed concurrent applications for
supplemental security income and disability insurance benefits on
November 18, 1991, alleging disability due to asthma and
depression related to transsexualism since November 5, 1990. At
the time of her application for disability benefits on November
18, 1991, she was thirty-eight years old. She had a high school
education with additional vocational training in electronics.
Following denial of her application and reguest for
reconsideration, she filed for an administrative hearing,
asserting an additional impairment due to knee pain. A hearing
was held on June 16, 1993.
Thompson's last gainful employment, as a motel manager,
ended on November 5, 1990, when the motel went bankrupt. Prior
to that time, she had worked for three and a half years as a
solderer and had been trained in still photography while serving
in the army. Thompson testified that at the time of the hearing
in June 1993, and for the year and a half prior to that time, she
had been most disabled from work by her knee pain. She testified
that she experienced constant discomfort due to knee pain.
Thompson's medical records during the period between
November 1990 and the hearing in June 1993 show that she was
2 treated several times for complaints of pain in her knees. Each
doctor reported that she had a reasonably good range of motion
and that her knees showed no signs of inflammation or swelling.
In her most recent evaluation in March 1993, the doctor noted
that her reported pain was somewhat out of proportion to the
physical findings, but suggested an orthopedic examination to
check for arthritis and ligament damage.
Thompson also testified that she experienced episodes of
asthma from exertion or emotional stress and that she took
medication, Alupent, as necessary to control her asthma. She
submitted the results of a pulmonary function test she took in
January 1992 that reported as a diagnostic conclusion that the
tests indicated a moderate restriction which was markedly
improved by using a bronchodilator. In November 1992, Thompson's
treating doctor concluded that her asthma was stable.
Thompson was first diagnosed with dysthymia1 related to
transsexualism2 in 1984. After several years of not being
1 Dysthymia is defined as "[a]ny disorder of mood." Stedman's Medical Dictionary 481 (25th ed. 1990).
2 Transsexualism is defined as: "The desire to change one's anatomic sexual characteristics to conform physically with one's perception of self as a member of the opposite sex." Id. at
3 treated, Thompson again sought treatment at the Nashua Community
Council ("NCC") in June 1990 to satisfy her treating doctor's
reguirement that she receive psychotherapy as a prereguisite for
prescribing hormones for her transsexual lifestyle and to relieve
stress and depression. The primary therapist recorded his
diagnostic impression as (1) adjustment disorder, depressed mood;
(2) dysthymic disorder; and (3) transsexualism. Her records of
psychotherapy and psychological evaluation during the period
shows that her primary purpose for engaging in psychotherapy was
to fulfill the prereguisite for obtaining hormone treatment and
to be evaluated for disability eligibility. In the most recent
evaluations in March 1993, the diagnosis remained essentially the
same, dysthymic disorder, transsexualism, and a possible
personality disorder. The psychotherapist found that Thompson
did not present a depressive picture and that she was well
oriented with good memory. The psychiatrist noted that she was
lucid and well-organized without thought disorder and that she
should be encouraged to regain employment.
Thompson testified that her depression made it harder to
care about doing anything. She also testified that she did not
1625.
4 take, and did not want to take, antidepressant medication.
Despite the physical and emotional problems she described, she
testified that she could do the motel manager's job, which she
held until November 1990, as long as she did not have to do any
maid service. The ALJ posed hypotheticals to the vocational
expert limiting functional capacity to light work with additional
restrictions reflecting Thompson's testimony about her capacity
for walking, standing, sitting, kneeling, and adding mild
depression.
Because Thompson's attorney anticipated collecting and
submitting additional evidence, the ALJ agreed to keep the record
open to receive additional records. Thompson's attorney and the
ALJ discussed the possibility of new issues arising from
additional records that would reguire further guestioning of the
vocational expert. While the record remained open, Thompson's
attorney sent additional medical and psychiatric records for
consideration by the ALJ.
The ALJ issued his decision denying Thompson benefits on
September 13, 1993. He found that Thompson met the disability
insured status on the date of her alleged disability; that she
had not engaged in substantial gainful activity since that date;
that her claimed impairments, while severe, were not listed in or
5 medically equal to an impairment listed in the regulations. He
determined that Thompson's testimony at the hearing about her
degree of pain was not entirely credible and that the evidence
showed that she had capacity for work activity in the light
range. He found that her capacity to perform light work was
limited by exertional restrictions, and non-exertional
restrictions from bending, stooping, climbing, crawling, no
exposure to asthma irritants, and a psychiatric limitation due to
mild depression. Based on those findings, the ALJ concluded that
Thompson was able to return to her past relevant work as a still
photographer or a motel desk clerk or manager. Consequently, the
ALJ decided that Thompson was not disabled. Thompson appealed to
the Appeals Council, who declined review, and Thompson appealed
to this court.
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
6 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 adeguate to support [the Secretary's] conclusion.'"
Id. (guoting Rodriquez v. Secretary of Health & Human Serv., 647
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, Thompson contends that the ALJ erred in closing
the record without notice, without receiving all the necessary
evidence, and without allowing her attorney to guestion the
vocational expert in light of the evidence that was submitted
7 after the hearing. Thompson concludes that the ALJ's actions
deprived her of a fair hearing. She also challenges the
sufficiency of the evidence to support the ALJ's decision denying
her benefits.3 I address each issue separately.
A. Fair Hearing
In every disability proceeding, the ALJ has a duty to
develop a full and fair record on which to make a determination.
20 C.F.R. §§ 404.944, 416.1444 (1994). The ALJ has a duty to
obtain additional evidence if necessary to fill a gap in the
record. Heggartv v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991).
Also, the ALJ may stop the hearing temporarily and reopen it at a
later time if he or she believes that material evidence is
missing. 20 C.F.R. §§ 404.944, 416.1444. A claimant is entitled
by due process to a fair hearing including an opportunity for
cross-examination. Tanner v. Secretary of Health and Human
Servs., 932 F.2d 1110, 1112 (5th Cir. 1991); see generally
Richardson v. Perales, 402 U.S. 389, 402 (1971). Thus, a
guestion of due process might arise if the ALJ had relied on a
3 Thompson focuses on disabilities due to knee pain and depression, but no longer pursues her claim based on asthma. The medical records support the ALJ's conclusion that Thompson's asthma was sufficiently controlled by medication not to be disabling. report or evidence unknown to Thompson without providing an
opportunity to refute the evidence or cross-examine the source of
the report. See, e.g., Allison v. Heckler, 711 F.2d 145, 146-47
(10th Cir. 1983). Thompson acknowledges that the ALJ offered
her attorney an opportunity to cross-examine the vocational
expert at the hearing. She argues, however, that the ALJ
suspended the hearing to get additional evidence and agreed
either to resume the hearing or to schedule a consultative
psychiatric examination and allow her attorney to cross-examine
the vocational expert at a later date. Then, Thompson argues,
after she submitted additional medical evidence, the ALJ closed
the record and issued his decision without further notice and
without allowing her attorney cross-examination. I reject these
claims because the hearing transcript does not support Thompson's
interpretation of the ALJ's remarks.
After the vocational expert's testimony, the ALJ and
Thompson's attorney discussed submitting additional evidence for
the record as follows:
ALJ: Obviously, attorney Kelly, if we receive any additional reports concerning any, any psychiatric issues, we do not have those for purposes of the hypothetical that's been given. Do you have any guestions of, of the vocational expert?
ATTY: I'd like to reserve those until I get the, the psychiatric.
ALJ: What we'll do is in the event -- I think that would be appropriate. What I would ask you do. I'd ask you to keep your records [vocational expert] thank you for testifying. And in the event that any additional reports are received that requires a consideration of different factors in a hypothetical, then again we could pose them either by way of interrogatories or it may be necessary to, to reschedule dependent upon the nature of the, of the additional questions that may be raised. Is there anything you'd like to say in closing, attorney Kelly? Do you wish to leave the record open until we receive this additional --
ATTY: Yes, Your Honor. And then if I could comment in writing.
ALJ: I certainly will leave the record open. How much time do you think you'll need for the additional --
ATTY: Thirty days.
ALJ: The -- now, what specifically are we, are we anticipating that we're going to receive?
ATTY: I'm going to get -- attempt to get an RFC-mental from Joyce Eldridge -- treating psychiatrist is at the Community Council. There also appears to have been an APTD psychological evaluation done separate and distinct from that of the Community Council so I'm going to try to get that. Dr. Wagner's orthopedic evaluation which was done for city welfare. And then I'm going to contact Dr. Eisen's office since he has the longitudinal --
ALJ: Well, I'm considering whether it would be appropriate at this time to consider the, consider the, the need to try to find a consultative examiner who has had a history of treatment, consider him to be an appropriate person to conduct a current evaluation and to provide a, provide a current consultative exam as opposed to using a stranger to do the function --
10 ATTY: That certainly would be preferable, and if the Court felt that was advisable I would, I would certainly request it.
ALJ: What I will do is I'll leave the record open and if, if I feel that that is necessary when you have submitted additional documents as soon as I receive those documents, it may require, it may require some additional delay, would definitely require additional delay. I'll leave the, the issue of closinq the record when it's appropriate at that time.
At the end of the hearinq, the ALJ explained to Thompson what he
anticipated would happen next:
ALJ: . . . your attorney is qoinq to be submittinq additional evidence as he receives it. At some point in time the record will close. And it may be that I, I need even additional evidence after the documents that he submits which may require even a more substantial delay by, by havinq an examination done. In any event, at some point in time the record closes. When it does, I review all the evidence at that time, I render a decision. . . . So, if there's nothinq further I reserve riqht of counsel to, to make arquments in writinq when the additional documents are in.
Althouqh the conversation is not as well-focused as one
miqht wish, the ALJ's intent is sufficiently clear. It is
apparent that the ALJ aqreed to leave the record open to receive
additional evidence from Thompson's attorney who asked for thirty
days to submit the documents. The ALJ reserved an opportunity
for Thompson's attorney to make arquments in writinq when he
submitted the additional documents. The ALJ intended to review
the submitted documents and, if necessary, he would consider a
11 consultative psychiatric examination of Thompson, or if new
psychiatric issues were raised by the evidence, he would order
further questioning of the vocational expert. In other words,
the ALJ anticipated making further decisions about whether
additional evidence would be necessary depending on the nature of
the evidence that was submitted by Thompson. The ALJ did not
commit to a psychiatric examination of Thompson, nor did he
continue the hearing pending receipt of the additional records.
After the hearing, Thompson submitted her psychiatric and
medical treatment records from the Community Council dated 7/9/90
to 7/1/92 and 3/23/93 to 4/22/93 and from the Hitchcock Clinic
dated 10/22/92 to 4/28/93.4 The ALJ rendered his decision on
September 13, 1993, almost three months after the hearing. The
ALJ did not ask for a consultative examination or provide for
additional examination of the vocational expert.
The psychiatric records submitted after the hearing show
4 Thompson's attorney submitted more medical records to the Appeals Council after the ALJ issued his decision. Although those documents are included in the record here, evidence that was submitted only to the Appeals Council, who declined to review Thompson's case, is not considered as part of the record before this court on appeal from the Secretary's decision. See Eads v. Secretary of Secretary of Health & Human Servs., 983 F.2d 815, 816-17 (7th Cir. 1993) .
12 that Thompson suffered from dysthymic mood disorder due to
transsexualism with mild depression and from intermittent knee
pain caused by osteoarthritis. Her psychiatric evaluations from
March and April 1993 diagnosed dysthymic disorder and
transsexualism, and note that Thompson was lucid, without thought
disorder, manifesting reasonable judgment and that she did not
present a depressive picture. In the most recent medical report
from March 1993, Thompson told the doctor that she could walk for
one-half to one mile at a time, but that she was using a cane to
walk. The doctor found that she had a reasonably good range of
motion with some pain and stiffness, and that her reported pain
was somewhat out of proportion to the physical findings. He
nevertheless concluded that there was a significant possibility
of arthritis.
The records submitted after the hearing are consistent with
the medical and psychiatric evidence presented to the ALJ at the
hearing. The original evidence provided at the hearing made the
same psychiatric and physical examination diagnoses. Thus the
additional evidence submitted by Thompson's attorney did not
raise any new issues that reguired further evidence, or different
hypotheticals for the vocational expert. In addition, the
testimony and records provided a complete picture through the
13 application period of Thompson's claimed impairments and
treatment. Compare Heggartv, 947 F.2d at 997 (holding that ALJ
had a duty to further develop the record if additional evidence
is necessary to make a reasonable decision particularly when
claimant was unrepresented and the ALJ told claimant that he
would obtain records). Because Thompson submitted additional
medical and psychiatric records, and her attorney could have
submitted additional arguments in writing with the records, she
was not prejudiced by a decision based upon new, unknown, and
unchallenged medical evidence. Compare Allison, 711 F.2d at 146-
47 (remanding because determination based on medical report
received after hearing when claimant had no notice of report, no
opportunity to cross-examine doctor, and no opportunity to offer
evidence in rebuttal). Due process did not reguire any further
development of the record in this case.
Conseguently, the ALJ did not err as a matter of law by not
reopening the hearing for further evidence or for cross-
examination of the vocational expert.
B. Sufficiency of the Evidence
The ALJ uses a seguential five-step analysis to determine
whether a claimant is disabled in social security cases. 20
C.F.R. §§ 404.1520, 416.920 (1994); Goodermote v. Secretary of
14 Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). The ALJ
found that Thompson was able to return to her previous relevant
work as either a photographer or a motel manager or desk clerk.
Thus, the ALJ determined that Thompson was not disabled at step
four of the analysis. Thompson contends that the evidence in the
record did not support the ALJ's determination.
1. Depression
First, Thompson argues that the ALJ's reliance on her past
relevant work was misplaced. Thompson notes that the vocational
expert testified that she could not perform either of her past
relevant jobs if she suffered from a moderate concentration
deficit due to depression. Thompson, however, has not pointed to
any evidence in the record that demonstrates that she suffered
from a moderate concentration deficit at the time of the hearing
or at any relevant time prior to the hearing.5
Instead, her psychiatric records show that while she
suffered from dysthymic mood disorder due to transsexualism and
some depression related to her inability to find employment, she
5 Thompson bore the burden of proving that she was impaired and that her impairments prevented her from performing her previous work. See Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985) .
15 was not disabled in the opinion of the examining psychiatrists.
The psychiatric records describe Thompson as lucid, with good
concentration and memory, reasonable judgment, and depression at
a level that would not prevent consistent work. In addition,
Thompson acknowledged and the records confirm that she
consistently refused anti-depressant medication that was
suggested by her therapists. Several therapists report that
Thompson used therapy sessions only as a means for obtaining
hormone treatments to maintain her transsexual lifestyle, that
her depression was primarily related to her lack of success in
obtaining employment, and that she had a manipulative guality of
trying to avoid her current situation by an award of long-term
disability. Finally, Thompson testified that her problem with
depression made it difficult for her to care about doing
anything, but she also testified that the pain in her knees was
the primary reason that she was not working.
The ALJ found that Thompson's work capacity was limited
based upon a diagnosis of mild depression. Relying on the
testimony of the vocational expert responding to a hypothetical
adding a slight limitation in concentration due to depression,
the ALJ determined that Thompson could return to her past
relevant work as a motel clerk or manager or a photographer.
16 Substantial evidence at the hearing supports the ALJ's
determination, and there was no evidence that Thompson suffered
from a more severe impairment in concentration.
2. Knees
Thompson also contends that the ALJ improperly evaluated the
medical evidence pertaining to her impairment due to knee pain.
She argues that the records of her examinations by Dr. Jesse
Wagner between November 1992 and March 1993 show that medical
evidence existed to support her subjective complaints of knee
pain. I disagree.
Subjective complaints of pain are evaluated in light of all
of the evidence. 42 U.S.C.A. § 423(d) (5) (A); Avery v. Secretary
of Health & Human Servs., 797 F.2d 19, 23 (1st Cir. 1986) . In
his final examination note in March 1993, Dr. Wagner reported
that Thompson was experiencing severe pain and using a cane but
that she could walk for one-half to one mile at a time. He found
no swelling, inflammation, warmth or local tenderness in her
knees. He also found a good range of motion in her knees with
some pain and stiffness in certain motions. He concluded that
her reported pain was somewhat out of proportion to the physical
findings of the examination, but that a significant possibility
of arthritis or ligament damage existed and recommended an
17 evaluation by an orthopedic doctor.
At the hearing in June 1993, Thompson testified that she had
stopped riding her bicycle during the winter of 1992 to 1993
because of her knee pain. She also testified that she
occasionally did her own laundry and sometimes asked a friend to
do it for her. She said that she ate supper at the soup kitchen
but that she made some meals in her apartment, did some grocery
shopping about once a month, and tried to do her own
housekeeping. She testified that stairs or a high curb bothered
her knees but that she could walk on a flat surface for twenty to
twenty-five minutes and could stand for ten or fifteen minutes.
Bending over to pick something up off of the ground and kneeling
caused problems with her knees, but she could pick up and carry
something weighing no more than twenty pounds. She said that she
could sit for forty to forty-five minutes at a time and then
could return to sitting after moving around or after taking
something for pain.
In the hypothetical to the vocational expert, the ALJ
limited Thompson's capacity for work to light work including
sedentary work without standing for more than fifteen minutes at
a time, walking for no more than twenty-five minutes at a time,
sitting for no more than forty-five minutes at a time. The ALJ
18 also required that she have freedom to rest and change position,
and that the work be limited as to bending and stooping, and
avoid climbing or crawling. These are the restrictions indicated
by Thompson's testimony at the hearing. Only when the ALJ added
a restriction to only sedentary jobs did the vocational expert
rule out Thompson's prior relevant work. Thompson presented no
evidence that she would require only sedentary work.
Substantial evidence, including Thompson's testimony, the
medical evidence, and the vocational expert's evidence, supports
the ALJ's determination that Thompson could return to her past
relevant work as a motel clerk or manager, or a photographer.
Therefore, the ALJ properly determined that Thompson was not
disabled.
CONCLUSION
For the foregoing reasons plaintiff's motion to reverse and
remand (document 11) is denied and defendant's motions to affirm
the Secretary's decision (documents 10 and 12) are granted.
SO ORDERED.
Paul Barbadoro United States District Judge
May 2, 1995
19 cc: David Broderick, Esq. AUSA Raymond Kelly, Esq.