Wright v. SSA CV-00-27-B 10/13/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
ROBERT F. WRIGHT
v. Civil N o . 00-027-B Opinion N o . 2000 DNH 213 KENNETH S. APFEL, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Robert F. Wright applied for Title II Social Security period
of disability and disability insurance benefits on June 1 2 , 1997,
alleging an inability to work since August 2 3 , 1996.1 After the
Social Security Administration (“SSA”) denied Wright’s applica-
tion, initially and upon reconsideration, Wright requested a
hearing before an Administrative Law Judge (“ALJ”). ALJ Robert
S . Klingebiel held a hearing on Wright’s claim on April 1 4 , 1998.
In a decision dated July 2 0 , 1998, the ALJ found that Wright was
1 Wright’s coverage allows him to remain insured through December 3 1 , 2001. See Tr. at 2 4 . (“Tr.” refers to the certified transcript of the record submitted to the Court by the SSA in connection with this case.) “not disabled” because, although he was unable to return to his
previous employment, Wright remained able to perform other work
available in the national economy. On December 6, 1999, the
Appeals Council denied Wright’s request for review, rendering the
ALJ’s decision the final decision of the Commissioner of the SSA.
Wright brings this action pursuant to § 205(g) of the Social
Security Act, 42 U.S.C. § 405(g) (1994), seeking review of the
denial of his claim for benefits. For the reasons set forth
below, I conclude that the ALJ’s decision that Wright was not
entitled to benefits is supported by substantial evidence.
Therefore, I affirm the Commissioner’s decision and deny Wright’s
motion to reverse.
I . FACTS2
Robert F. Wright was 49 years old when he applied for
benefits. He graduated from high school and also received an
Associate Degree in aviation science. See Tr. at 4 1 . Wright
2 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts (Doc. #9) submitted by the parties.
-2- worked as a jig grinder from 1977 until August 2 3 , 1996. See id.
at 9 9 . He has not worked since August 2 3 , 1996, the date he
claims his disability began.
Wright’s respiratory and sinus symptoms began with a cough
in March 1996. See Tr. at 172. On May 1 2 , 1996, the attending
doctor at Exeter Hospital treated Wright’s persistent cough and
resulting wheeze with steroids, bronchodilators, and antibiotics.
See id. at 170-73. He diagnosed Wright with asthma and mild
bronchospasm. See id. at 171-72. Wright’s initial symptoms
persisted and his family physician, Dr. Susan Therriault,
affirmed the bronchospasm and asthma diagnoses on June 4 , 1996.
See id. at 363.
Wright, upon a referral from D r . Therriault, underwent a
pulmonary function test on June 2 0 , 1996. See id. at 197. The
findings of the test indicated “moderate obstructive lung disease
with some air trapping and minimal reversibility.” Id.
The following day, Dr. Hilton Lewinsohn examined Wright at
the Center for Asthma, Allergy & Respiratory Disease. He
-3- described Wright as a sick patient with a chronic cough, whose
clinical findings are consistent with either bronchitis or
asthma. Under D r . Lewinsohn’s care, Wright’s cough and shortness
of breath improved with the use of bronchodilators and steroids
and as a result of Wright’s not returning to work for a few
weeks.
On July 1 5 , 1996, Wright returned to work after his employer
furnished him with a respirator and exhaust ventilation system.
The respirator and ventilation system, however, did not help
to relieve his symptoms. In August 1996, Wright was still
experiencing trouble breathing. On August 2 1 , 1996, Dr.
Lewinsohn diagnosed Wright with occupational asthma, due to hard
metal exposure, and chronic mucoid rhinorrhea.3 D r . Lewinsohn
told Wright to continue with his treatment regimen that included
Albuterol, Aerobid-M, and Nasacort.
In October 1996, D r . D’Angelo diagnosed Wright with a
deviated septum, chronic sinusitis with nasal obstruction, and
3 Rhinorrhea is the discharge from the nasal mucous membrane. Stedman’s Medical Dictionary 1359 (25th ed. 1990).
-4- chronic bronchitis. On October 3 0 , 1996, D r . D’Angelo performed
a septoplasty4 and sinus endoscopy to correct his deviated septum
and alleviate his sinus symptoms. During the operation Dr.
D’Angelo observed abnormal polypoid5 changes in the sinus cavity.
In the months following the operation, Wright’s asthmatic
condition waxed and waned, although his chest symptoms stabil-
ized. Wright, however, continued to suffer from chronic sinus
infections and associated discomfort. As a result, on January
1 5 , 1997, D r . Lewinsohn referred Wright to D r . Bruce Suzuki, an
ear, nose, and throat specialist.
From January to September 1997, Dr. Suzuki treated Wright
for pansinusitis,6 postnasal drainage, probable allergic
4 A septoplasty is an operation to correct defects of the nasal septum. Stedman’s Medical Dictionary 1405 (25th ed. 1990). 5 A polypoid has three or more of the haploid number of chromosomes. Stedman’s Medical Dictionary 1238 (25th ed. 1990). 6 Pansinusitis consists of the inflammation of all the accessory sinuses of the nose on one or both sides. Stedman’s Medical Dictionary 1127 (25th ed. 1990).
-5- rhinitis,7 and early polypoid changes. A January 1997 CT scan
revealed acute superimposed upon chronic sinusitis with variable
rates of mucosal thickening in the various sinus cavities. The
scan also showed that the ethmoid air cells were almost
completely opacified bilaterally.
On January 2 8 , 1997, Wright returned to Exeter Hospital
complaining of shortness of breath. The attending physician
diagnosed Wright with reactive airway disease and told him to
continue taking his regular medication. See Tr. at 190.
Dr. Suzuki performed Wright’s second sinus surgery on
February 3 , 1997, to alleviate symptoms related to his persistent
sinusitis and asthma, both of which remained “unresponsive to
medical treatment.” Dr. Suzuki’s operative note commented that
after Wright’s October 1996 septoplasty, Wright continued to have
a problem with “pansinusitis with purulent discharge, facial
pain, and exacerbated asthma secondary to purulent postnasal
discharge.” T r . at 292.
7 Rhinitis is the inflammation of the nasal mucous membrane. Stedman’s Medical Dictionary 1358 (25th ed. 1990).
-6- Another specialist, D r . Gary Epler, examined Wright on March
4 , 1997, and Wright underwent pulmonary function tests as part of
the examination. Dr. Epler’s report diagnosed Wright with asthma
and possible constrictive bronchiolitis. Dr. Epler also noted
that Wright would not be able to return to work as a jig grinder
because of his inflamed airways and recommended that Wright work
in an “environment where irritant levels of dust, fume, or mist
exposure will not occur.” Tr. at 301. A chest CT scan at that
time revealed the presence of bullous emphysema and pleural
plaques that were probably the result of asbestos exposure.
On April 2 , 1997, Wright underwent revision functional
endoscopic sinus surgery of the maxillary and ethmoid sinuses,
performed by Dr. Suzuki. The operative report indicated the
presence of polypoid disease in some of the ethmoid air cells.
See Tr. at 305.
Dr. Lewinsohn’s treatment notes from June 1997 through
September 1997 indicated that Wright’s respiratory symptoms
remained stable after this third sinus surgery. The notes,
-7- however, revealed that Wright continued to suffer from chronic
sinus infections and discomfort associated with those infections.
Dr. Lewinsohn interpreted Wright’s pulmonary function tests,
performed in May and June 1997, as normal. The May 1997 test
revealed findings “comparable with the [diagnosis] of bronchio-
litis obliterans but not confirmatory of airways obstruction or
asthma.” Tr. at 203. A June 1997 CT scan revealed emphysematous
blebs.8 See id. at 277.
Dr. Suzuki, on October 6, 1997, reported that Wright’s
chronic sinusitis and respiratory problems are related to his
work place environment. See id. at 321. He noted that these
problems “will persist throughout the rest of [Wright’s] life due
to their chronicity and [his] prior exposure to chemicals”
and that “it would be best if he could avoid being exposed to
further chemical exposure as this would have a progressive
deleterious effect.” Id. at 321-22. A CT scan of the sinuses,
dated October 2 2 , 1997, exhibited Wright’s sinus disease.
8 A bleb is a large flaccid vesicle. Stedman’s Medical Dictionary 193 (25th ed. 1990).
-8- Dr. Lewinsohn noted that in December 1997 and January 1998,
Wright complained mainly of sinus problems that abated only after
Dr. Suzuki performed wash outs or through the use of antibiotics.
At that time, his asthmatic symptoms appeared to have stabilized.
See Tr. at 337. D r . Lewinsohn also stated that the only drawback
to Wright’s entering a vocational rehabilitation plan was that
his current sinus treatments could result in some days when
Wright could not attend classes, depending upon when the classes
started.
Wright’s treatment regimen for his sinus symptoms also
included another revision functional endoscopic sinus procedure
in March 1998 that disclosed further polypoid disease. At that
time, D r . Suzuki noted that although Wright’s symptoms appeared
to be somewhat improved, he felt that Wright should not return to
his previous workplace. See Tr. at 347.
A few weeks after Wright’s sinus surgery, Dr. Lewinsohn
furnished an Assessment of Ability to do Work-Related Activities.
Dr. Lewinsohn concluded that Wright’s symptoms did not affect his
-9- lifting, carrying, standing, and sitting capacity. Wright’s
symptoms also did not affect his physical functions. His
asthmatic symptoms, however, occasionally affected his ability to
climb. The assessment also reported several environmental
restrictions necessitated by his symptoms.
Dr. Lewinsohn’s findings echoed those of Dr. Hugh Fairley, a
non-examining state agency medical consultant, who assessed
Wright’s residual functional capacity (“RFC”) a few months
earlier. On August 1 2 , 1997, Dr. Fairley determined that Wright
had the capacity to occasionally lift and carry up to twenty
pounds; to frequently lift and carry up to ten pounds; to be able
to stand and/or walk and sit for up to six hours in a day with
normal breaks; and to have an unlimited capacity to push and
pull. Dr. Fairley also found that Wright had no postural,
visual, or communicative limitations, but he noted Wright’s
environmental limitations for exposure to fumes, odors, dusts,
gases and poor ventilation. Dr. Burton Nault reviewed the record
and, on November 5 , 1997, affirmed D r . Fairley’s RFC assessment
-10- as written. The doctors concluded that Wright is capable of
performing light work in a setting that complies with his
environmental limitations. See Tr. at 319.
I I . STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant’s application for benefits, and upon timely request by
the claimant, I am authorized t o : (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. See 42 U.S.C. § 405(g) (1994). My
review is limited in scope, however, as the ALJ’s factual
findings are conclusive if they are supported by substantial
evidence. See id.; Irlanda Ortiz v . Secretary of Health and
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam).
The ALJ is responsible for settling credibility issues, drawing
inferences from the record evidence, and resolving conflicts in
the evidence. See Irlanda Ortiz, 955 F.2d at 769. Therefore, I
-11- 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.” Id. (quoting
Rodriguez v . Secretary of Health and Human Servs., 647 F.2d 218,
222 (1st Cir. 1981)) (internal quotation marks omitted).
While the ALJ’s findings of fact are conclusive when
supported by substantial evidence, they “are not conclusive when
derived by ignoring evidence, misapplying the law, or judging
matters entrusted to the experts.” Nguyen v . Chater, 172 F.3d
3 1 , 35 (1st Cir. 1999) (per curiam). I apply these standards in
reviewing the issues that Wright raises on appeal.
III. DISCUSSION
The Social Security Act (the “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
-12- for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A) (1994). The Act directs an ALJ to apply a five-step
sequential analysis to determine whether a claimant is disabled.9
See 20 C.F.R. § 404.1520 (2000). At step four of the process,
the ALJ must determine whether the claimant’s impairment prevents
him from performing his past work. See id. § 404.1520(e). To
make this determination, the ALJ must assess both the claimant’s
residual functional capacity (“RFC”), that i s , what the claimant
can do despite his impairments, and the demands of the claimant’s
prior employment. See id.; 20 C.F.R. § 404.1545(a); see also
Santiago v . Secretary of Health and Human Servs., 944 F.2d 1 , 7
(1st Cir. 1991) (per curiam). The claimant 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 .
9 In applying the five-step sequential analysis, the ALJ is required to determine: (1) whether the claimant is presently 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. See 20 C.F.R. § 404.1520 (2000).
-13- At step five, the burden shifts to the Commissioner to show
“that there are jobs in the national economy that [the] claimant
can perform.” Heggarty 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 (“The standard is not employability, but
capacity to do the job.”).
In the present case, the ALJ concluded at step five of the
sequential evaluation process that Wright was “not disabled.”
See Tr. at 2 5 , 2 9 , 3 0 . The ALJ determined that Wright lacks the
RFC to work in an area where exposure to environmental irritants,
temperature extremes, dust, or fumes is likely. See id. at 2 9 .
The ALJ concluded that these non-exertional limitations preclude
Wright’s return to his former employment. See id. Ultimately,
the ALJ considered Wright’s educational background, age, RFC, and
-14- the testimony of the vocational expert in deciding that Wright
can perform light and sedentary work10 that exists in significant
numbers in the national economy. See id. at 2 9 , 55-56.
Wright makes multiple arguments in support of his motion to
reverse the ALJ’s decision. First, Wright asserts that the ALJ
improperly calculated Wright’s residual functional capacity
because: 1 ) the ALJ did not properly evaluate Wright’s subjective
complaints of pain; 2 ) the ALJ ignored certain medical evidence
that was relevant to his residual functional capacity including
his treatment regimen and side effects from his medication; and
3 ) the ALJ failed to give the appropriate weight to the opinions
submitted by examining physicians. Second, Wright argues that
the ALJ improperly relied on the testimony of the vocational
10 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 . . . .” Id. 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.” Id. § 404.1567(a).
-15- expert because the hypothetical question posed did not fully
reflect Wright’s functional limitations. I address each of these
arguments in turn.
A. Wright’s Subjective Complaints of Pain
Wright argues that the ALJ failed to give adequate
consideration to his subjective complaints of pain, and other
symptoms, because the ALJ did not consider all the record
evidence in making his credibility determination. Although
Wright does not expressly make this argument, he seems to contend
that his pain and other symptoms should be treated as non-
exertional limitations in his RFC assessment. For the following
reasons, I disagree.
1. Standards Governing an ALJ’s Credibility Determination
The SSA regulations require that a claimant’s symptoms,
including complaints of pain, be considered when determining
whether a claimant is disabled. See 20 C.F.R. § 404.1529(a)
(2000). An ALJ must follow a two-step process to evaluate a
claimant’s subjective complaints of pain. First, the ALJ must
-16- determine whether the claimant suffers from a medically
determinable impairment that can reasonably be expected to
produce the pain and other symptoms alleged. See id. §
404.1529(b); Da Rosa v . Secretary of Health and Human Servs., 803
F.2d 2 4 , 25 (1st Cir. 1986) (per curiam). Then, if such an
impairment exists, the ALJ must evaluate the intensity,
persistence, and functionally limiting effects of the claimant’s
symptoms so that the ALJ can determine how the claimant’s
symptoms limit his or her capacity for work. See 20 C.F.R. §
404.1529(c)(1); SSR 96-7p, 1996 WL 374186, at *1 (1996). At this
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].” 20 C.F.R. § 404.1529(c)(1).
The Commissioner recognizes that symptoms such as pain may
suggest a more severe impairment “than can be shown by objective
-17- medical evidence alone.” Id. § 404.1529(c)(3). Accordingly, the
ALJ must evaluate the claimant’s complaints of pain 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 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. See id.; see also Avery v . Secretary of Health and Human
Servs., 797 F.2d 1 9 , 29-30 (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 Frustaglia v . Secretary
-18- of Health and Human Servs., 829 F.2d 192, 195 (1st Cir. 1987)
(per curiam).
In assessing the credibility of a claimant’s subjective
complaints of pain, 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. § 404.1529(a).
While a claimant’s complaints of pain must be consistent with the
medical evidence to be credited, they need not be precisely
corroborated with such evidence. See Dupuis v . Secretary of
Health and Human Servs., 869 F.2d 622, 623 (1st Cir. 1989) (per
curiam). The ALJ in making a credibility determination must also
make specific findings as to the relevant evidence he considered
in deciding whether to believe a claimant’s subjective
complaints. Da Rosa, 803 F.2d at 2 6 .
If the ALJ believes a claimant’s testimony about his pain
and other symptoms, the ALJ may consider the pain as a non-
exertional limitation. See Frustaglia, 829 F.2d at 195; Da Rosa,
803 F.2d at 26-27. The ALJ must then consider this non-
-19- exertional limitation in determining a claimant’s RFC. See id.
2. The ALJ’s Assessment of Wright’s Subjective Complaints of Pain
In this case, the ALJ made a specific finding regarding the
first step of the pain assessment process. See 20 C.F.R. §
404.1529(b). He determined that Wright suffered from “underlying
medically determinable impairment[s],” including emphysema,
asthma, sinusitis, and bronchiolitis obliterans, “that could
reasonably cause the pain and other symptoms alleged.” Tr. at
25.
Wright concedes that his subjective complaints of pain, and
other symptoms, are not fully supported by the medical evidence
in the record, but he nevertheless argues that the ALJ erred in
failing to consider the “Avery factors” in assessing his
complaints of pain. See Pl’s Mot. to Reverse and Remand (Doc.
N o . 7 ) at 2 . Contrary to Wright’s argument, there is substantial
evidence that the ALJ considered all of the record evidence,
including the Avery factors, in evaluating the intensity and
persistence of Wright’s symptoms of headaches, fatigue, and
-20- shortness of breath.
The ALJ’s ample questioning of Wright that focused on the
Avery factors indicates that the ALJ considered those factors in
his credibility determination. See Frustaglia, 829 F.2d at 195
(questioning about the Avery factors was one ground among others
for finding that a credibility determination was supported by
substantial evidence). The ALJ questioned Wright extensively
about his daily activities, extracting details about his
activities on a “typical day” and a “bad day.” Tr. at 45-51.
The ALJ also elicited information about the duration, frequency,
and intensity of Wright’s pain and other symptoms by asking how
often he has good and bad days, whether the bad days are
consecutive, and whether he is “completely knock[ed] out” on the
bad days. Id. at 4 7 , 4 8 .
The ALJ also questioned Wright about any precipitating and
aggravating factors such as weather, fumes, and anything in
Wright’s control that might bring about the bad days. See id. at
4 6 , 4 9 . The ALJ further questioned Wright about the medications
-21- he takes to deal with his headaches and why he does not take
stronger medications. See id. at 5 0 . Furthermore, the ALJ also
elicited information about other measures Wright uses or has used
to relieve his pain, such as lying down and sleeping. See id. at
47, 49.
In order to assess the credibility of Wright’s complaints of
pain and other symptoms, the ALJ had to consider whether the
complaints, in light of the Avery factors, were consistent with
the objective medical evidence and other evidence in the record.
20 C.F.R. § 404.1529(a). The ALJ, in his decision, referred to
Wright’s headaches and trouble breathing, but found that the
objective medical evidence did not support a finding of severity
sufficient to preclude Wright from performing all work. See Tr.
at 2 6 . He found that there was no evidence of other restrictions
or limitations on Wright’s ability to work and that Wright’s
testimony did not suggest other constraints. See id. Therefore,
the ALJ found that Wright’s subjective complaints “are not
entirely credible in light of discrepancies between [Wright’s]
-22- assertions and information contained in the documentary reports.”
Id. at 26-27, 2 9 .
Although I am concerned by the limited findings provided by
the ALJ to support his credibility determination, I conclude that
substantial evidence supports the ALJ’s adverse credibility
determination. See Frustaglia, 829 F.2d at 195 (“Although more
express findings, regarding head pain and credibility, than those
given here are preferable, we have examined the entire record and
their adequacy is supported by substantial evidence.”).
The medical evidence in the record supports the ALJ’s
finding that Wright’s symptoms are not severe enough to limit his
functional capacity beyond that already assessed. At the time of
the hearing, Wright’s asthmatic symptoms had stabilized and were
not causing him any discomfort. See Tr. at 337, 339, 362.
Wright did, however, complain to Dr. Lewinsohn on multiple
occasions about having sinus headaches, sinus pressure, and
fatigue. See id. at 3 3 7 , 339, 3 6 0 , 361. The fact that Wright’s
CT scans diagnosed his acute superimposed upon chronic sinusitis
-23- and the fact that he underwent multiple surgeries to alleviate
his sinus pain, appear to support the intensity of Wright’s
chronic sinusitis symptoms. See id. at 186, 291, 2 9 2 , 305, 3 4 0 ,
347. Even where the record could support another conclusion,
however, the ALJ’s decision must be upheld if there was
substantial evidence to support i t . See Rodriguez Pagan v .
Secretary of Health and Human Servs., 819 F.2d 1 , 3 (1st Cir.
1987) (per curiam).
The record provides little medical evidence supporting the
idea that Wright’s symptoms are severe enough to preclude Wright
from engaging in all types of work. In a report dated October 6,
1997, Dr. Suzuki stated that Wright’s sinuses would never retain
normality, however, he further noted that Wright’s asthma-related
problems are what prevents him from returning to work. See Tr.
at 321. Therefore, D r . Suzuki concluded that Wright should avoid
further chemical exposure in the workplace. See id. A few weeks
prior to the ALJ hearing, Dr. Suzuki reported that, after a
recent sinus procedure, Wright’s sinus symptoms appeared to be
-24- improving. See id. at 347. Dr. Suzuki again reiterated that
Wright should not work in an environment where he might be
exposed to chemicals, however, he did not mention any other work-
related limitations stemming from Wright’s sinus condition. See
id.
Dr. Lewinsohn’s Medical Assessment of Ability to do Work-
Related Activities in March 1998 also reported environmental
restrictions on Wright’s ability to work. See Tr. at 324-32.
Dr. Lewinsohn, however, did not comment on any limitations
imposed by Wright’s sinus condition. See Pl’s Mot. to Reverse
and Remand (Doc. N o . 7 ) at 2 2 . The Physical Residual Functional
Capacity Assessment reported by Dr. Nault and Dr. Fairley on
November 5 , 1997, noted the same conclusion that Wright’s only
limitation related to exposure to fumes, odors, gases, etc. See
Tr. at 312-19. The fact that multiple doctors failed to comment
on any limitation imposed by Wright’s sinus condition suggests
that Wright’s subjective complaints are inconsistent with the
medical evidence.
-25- Wright’s own testimony, specifically the information
relating to the Avery factors, also supports the ALJ’s decision
that Wright’s symptoms are not severe enough to suggest any new
physical limitations on his ability to work. Wright complained
that five days out of a month he cannot do anything except lay
down and sleep, and on ten days per month he has to push himself
to engage in daily activities. See Tr. at 4 6 . Based on his
testimony, however, it appears that Wright can engage in daily
activities on almost twenty-five days per month. See id. at 44-
51. On many of these days he can go for a walk and clean up
around the house. See id. at 4 5 . Furthermore, Wright claims
that he would like to return to work, and D r . Lewinsohn feels
that Wright is capable of beginning a vocational rehabilitation
plan. See id. at 5 1 , 362.
The record also indicates that on many days Wright took only
nonprescription medications to deal with his pain. See id. at
50. He relied on Advil to alleviate his sinus headaches claiming
that other medications made him drowsy. See id. The ALJ is
-26- entitled to find that the non-use of stronger pain medications
shows an inconsistency with the severity of the pain Wright
alleged. See Albors v . Secretary of Health and Human Servs., 817
F.2d 146, 147 (1st Cir. 1986) (per curiam) (“[An RFC assessment],
together with the fact that claimant apparently takes nothing
stronger than aspirin, supports the ALJ’s rejection of claimant’s
assertions of disabling pain.”).
It remains the obligation, however, of the ALJ to decide
issues of credibility and to draw necessary inferences from the
record. See Irlanda Ortiz, 955 F.2d at 769. The objective
medical evidence, along with the information relating to the
Avery factors, supports the ALJ’s finding that Wright’s pain and
other symptoms are not severe enough to further limit his ability
to work. Therefore, I conclude that the ALJ’s determination that
Wright’s subjective complaints of pain were not entirely credible
is supported by substantial evidence and thus entitled to
deference. See Frustaglia, 829 F.2d at 195. Because the ALJ
could discredit Wright’s testimony about his symptoms and any
-27- limitations imposed by those symptoms, the ALJ did not need to
consider the sinus headaches, fatigue, and shortness of breath as
non-exertional impairments in determining Wright’s RFC. See id.
B. The ALJ’s RFC Determination
1. Standards Governing an RFC Determination
An RFC determination specifies what a claimant is able to do
despite his limitations. See 20 C.F.R. § 404.1545(a)(2000). The
ALJ is responsible for determining a claimant’s RFC. See id. §
404.1546. The ALJ uses a claimant’s RFC as the basis for
deciding what types of work a claimant can perform in spite of
his impairments. See id. § 404.1545(a).
In determining a claimant’s RFC, an ALJ must perform a
“function-by-function” assessment of the claimant’s ability to
engage in work-related activities. See SSR 96-8p, 1996 WL
374184, at *3 (1996); see also Ferraris v . Heckler, 728 F.2d 582,
586-87 (2d Cir. 1984)(holding that the ALJ’s findings on
claimant’s RFC were insufficient where the ALJ determined
claimant’s RFC in a conclusory manner without a function-by-
-28- function assessment). Moreover, the ALJ must specify the
evidentiary basis for his RFC determination. See White v .
Secretary of Health and Human Servs., 910 F.2d 6 4 , 65 (2d Cir.
1990) (noting that the failure to specify a basis for the RFC
conclusion is a sufficient reason to vacate a decision of the
Commissioner); SSR 96-8p, 1996 WL 374184, at * 7 . When making his
RFC determination, an ALJ must “consider objective medical facts,
diagnoses and medical opinions based on such facts, and
subjective evidence of pain or disability testified to by the
claimant or others.” Ferraris, 728 F.2d at 585; see 20 C.F.R. §
404.1545(a) (stating that the RFC must be based on all relevant
evidence).
Because an ALJ is a lay person, however, he “is not
qualified to assess residual functional capacity based on a bare
medical record.” Gordils v . Secretary of Health and Human
Servs., 921 F.2d 327, 329 (1st Cir. 1990) (per curiam). This
means that if the medical evidence only describes the claimant’s
impairments but does not relate those impairments to an
-29- exertional level, such as light work, the ALJ may not make that
connection himself. See Gordils, 921 F.2d at 329; Rosado v .
Secretary of Health and Human Servs., 807 F.2d 292, 293 (1st Cir.
1986). In these situations, an expert’s RFC evaluation is
“ordinarily essential . . . .” Manso-Pizarro v . Secretary of
Health and Human Servs., 76 F.3d 1 5 , 17 (1st Cir. 1996) (per
curiam).
2. The ALJ’s Determination of Wright’s RFC
In the present case, the ALJ determined at step four of the
sequential evaluation process that Wright retained the RFC to
perform a full range of work, with the exception that Wright
could not work in an area where exposure to environmental
irritants, temperature extremes, dust, or fumes was possible.
See Tr. at 2 7 , 2 9 , 55-56. In support of his decision, the ALJ
provided the following function-by-function assessment:
The file supports a finding that Mr. Wright has a lung disorder which prohibits him from being exposed to temperature extremes, chemicals, dust and fumes . . . . There is no evidence of other limitations or restric- tions. The claimant did not testify to any physical limitations . . . . Nonetheless, the undersigned finds
-30- that the claimant has non-exertional limitations which interfere with his ability to work. The evidence supports a finding that he is not able to work in exposure to environmental irritants, temperature extremes or dust or fumes.
Id. at 26-27. Although a more specific function-by-function
analysis is desirable, the ALJ’s RFC assessment accords with the
assessments offered by the state’s doctors and one of Wright’s
treating doctors. See id. at 313-19, 324-27. Therefore, I
conclude that the ALJ’s RFC assessment was supported by
substantial evidence. See Gordils, 921 F.2d at 329 (concluding
that an RFC assessment by a non-examining physician along with
other findings from a treating doctor, not in the form of an RFC
assessment, constituted substantial evidence to support the
Secretary’s RFC determination).
The state physicians concluded that Wright was able to
occasionally lift and carry up to twenty pounds; to frequently
lift and carry up to ten pounds; to stand and/or walk and sit for
up to six hours in a day with normal breaks; and to have an
-31- unlimited capacity to push and pull. See Tr. at 313. Dr.
Fairley and D r . Nault also found no postural, visual or
communicative limitations, but noted environmental limitations on
exposure to fumes, odors, dusts, gases, and poor ventilation.
See id. at 314-16. The state physicians’ overall conclusion was
that Wright was capable of performing light work, as long as
Wright avoided any air pollution. See id. at 319.
Wright’s treating specialist, D r . Lewinsohn, also furnished
an Assessment of Ability to do Work-Related Activities. Dr.
Lewinsohn concluded that Wright’s symptoms do not affect his
lifting, carrying, standing, walking, and sitting capacity. See
id. at 324-25. Wright’s symptoms also did not affect his
physical functions. See id. at 326. His asthmatic symptoms
occasionally affected his ability to climb but did not affect
other postural activities. See id. The assessment also reported
several environmental limitations including: sensitivity to
temperature extremes, chemicals, dust, and fumes. See id. at
327.
-32- Lastly, Dr. Suzuki and D r . Epler also stated in their
treatment notes that Wright should avoid exposure to dust, fumes,
and chemicals in his future workplace. See Tr. at 301, 322.
Although Dr. Suzuki and D r . Epler did not perform full RFC
assessments, their opinions still bolster the ALJ’s RFC determi-
nation in this case. See Gordils, 921 F.2d at 329. Since the
ALJ’s RFC determination accords with the five doctors’ findings,
I conclude that they provide substantial evidence to support the
ALJ’s RFC determination.
Although I find that substantial evidence supports the ALJ’s
RFC determination, I address Wright’s contention that the ALJ did
not consider all of the medical evidence in his RFC determina-
tion. Wright asserts that the ALJ ignored all of the medical
evidence relating to his sinus condition, in the form of the
medical records, his treatment regimen, and the side effects of
his medications.
The medical evidence that Wright contends the ALJ ignored
merely diagnoses and describes Wright’s impairments. This
-33- evidence discusses in detail Wright’s respiratory and sinus
problems including the related treatments, surgeries, CT scans,
etc. This bare medical evidence, however, does not link the
diagnoses to any specific residual functional capabilities such
as sedentary or light work. The ALJ, as a lay person, is not
qualified to make the connection between such bare medical
findings and corresponding residual functional capabilities. See
Gordils, 921 F.2d at 329; Rosado, 807 F.2d at 293. Accordingly,
the ALJ would not have been entitled to rely on that evidence as
a basis for Wright’s RFC determination. See id. Therefore, I
find no merit in Wright’s argument that the ALJ erred by ignoring
the medical evidence relating to his sinus problems.
Wright also argues that the ALJ failed to properly weigh the
opinions of Wright’s treating specialists regarding his sinus
condition. Wright contends that his treating specialists’
medical opinions imply the existence of functional limitations
arising from his chronic sinusitis. Furthermore, Wright claims
that the ALJ should have heeded these implied limitations in
-34- making his RFC determination. The record, however, indicates
that Wright’s treating specialists did not explicitly discuss any
functional limitations related to his chronic sinus condition.
See Tr. at 301, 321-22, 327. Wright concedes that one of his
treating specialists, D r . Lewinsohn, “does not comment on the
functional impairment imposed by the chronic sinus condition . .
. .” Pl’s Mot. to Reverse and Remand (Doc. N o . 7 ) at 2 2 .
As there are no explicit opinions regarding functional
limitations imposed by Wright’s sinus condition, the ALJ
essentially had no additional opinions to weigh in his RFC
determination. As discussed above, the ALJ also had no authority
to infer implied functional limitations from the medical
evidence. See Gordils, 921 F.2d at 329. Therefore, I find that
the ALJ made no error in his RFC determination.
C. The ALJ’s Reliance on Vocational Expert Testimony
Wright 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 previously
-35- found to be severe. For the following reasons, I disagree.
Once a claimant proves that he is incapable of returning to
his prior jobs, the burden shifts to the 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) (2000). The Commissioner can meet
his burden of proof on this issue by relying on the testimony of
a VE. See Rose v . Shalala, 34 F.3d 1 3 , 19 (1st Cir. 1994);
Berrios Lopez v . Secretary of Health and Human Servs., 951 F.2d
427, 429-30 (1st Cir. 1991) (per curiam).
In order to rely on the VE's testimony, however, the ALJ
must pose to the VE a hypothetical question that accurately
reflects the claimant’s functional limitations. See id. That
i s , 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.”
Berrios Lopez, 951 F.2d at 429; see Arocho, 670 F.2d at 375.
-36- At the hearing, the ALJ and the VE engaged in the following
dialogue:
ALJ: Okay. And I’m going to ask you some hypothetical questions this morning which will take into account a number of different factors, but in all of the questions that I pose we are presented with the potential worker who is currently 50 years of age, who has not only a high school education, but an additional Associate’s degree . . . in aviation science, and a skilled work background . . . . And someone who is going to have some exertional limitations as a result of his medical condition such that the most that the individual would be able to lift and carry would be 20 pounds maximum, and with any repetitive routine carrying of objects or lifting [of] objects that would be perhaps in the 10-pound range. And if we’re dealing with someone who is particularly limited in terms of the environment, that is in terms of breathing and being exposed to a number of factors, and those would be of course the inability to be exposed to dust and fumes and odors, and also if we’re dealing with someone who would best be suited to work in an environment where there were no extremes of temperature, particularly cold temperature. In looking at the previous work that M r . Wright has performed as he did i t , and as it is generally performed in the national economy do you feel that he could perform this type of work based on these limitations? V E : No . . . ALJ: In looking at jobs in the occupational base of jobs other than semiskilled jobs, perhaps entry level types of jobs, do you feel that there would be any other
-37- examples that could still be performed? V E : Yes . . . .
Tr. at 55-56 (emphasis added). The VE then discussed the type
and number of jobs in the national economy that Wright would be
able to perform given his functional and vocational limitations.
See id. at 5 6 . The VE stated that Wright could work as a mail
clerk, security guard, office helper, or cashier. See id.
There is no merit to Wright’s argument that the ALJ erred by
not including any limitations based on his severe sinus condition
in the hypothetical. As discussed earlier, the ALJ discredited
Wright’s complaints of pain and other symptoms and found that
they suggested no additional limitations on his ability to work.
Since these complaints were not supported by substantial evidence
in the record, the ALJ was not required to include any sinus-
related limitations in the hypothetical.11 See Berrios Lopez,
11 The ALJ also posed a second hypothetical to the VE that included the vocational limitation of absenteeism, resulting from Wright’s sinus symptoms. See Tr. at 5 7 . The VE responded that the additional factor of absenteeism would preclude Wright from engaging in the previously mentioned jobs on a sustained basis. See id. Wright argues that the ALJ erred in not referring to this second hypothetical in his decision. The ALJ, however, does
-38- 951 F.2d at 429.
Moreover, the functional limitations the ALJ did include in
the hypothetical were supported by substantial evidence. The
limitations concerning Wright’s ability to lift and carry and his
workplace environment were consistent with the state physicians’
RFC assessment. See Tr. at 313-19. Furthermore, Dr. Lewinsohn,
Dr. Suzuki, and Dr. Epler all recommended that Wright avoid
exposure to dust, fumes, and chemicals. See id. at 3 0 1 , 322,
324-27. Because substantial evidence in the record supported the
description of Wright’s functional limitations, I conclude that
the ALJ properly credited the VE’s response to the hypothetical.
not need to address this hypothetical since his findings rejected the grounds for the hypothetical. See Boynton v . Apfel, 172 F.3d 5 2 , Civ. N o . 98-1987, 1999 WL 38091, at **4 (7th Cir. 1999) (table, text available on Westlaw). The ALJ ultimately discredited Wright’s complaints of pain, and the opinions of his treating specialists did not explicitly discuss any functional limitations arising from Wright’s sinus symptoms. As a result, the ALJ was not required to include sinus-related limitations in a hypothetical to the V E . See Berrios Lopez, 951 F.2d at 429. Therefore, the ALJ was also not entitled to rely on the VE’s response in deciding whether Wright was disabled because sinus- related limitations were not supported by substantial evidence in the record. See id.
-39- IV. CONCLUSION
Because I have determined that the ALJ’s denial of Wright’s
application for benefits i s supported by substantial evidence, I
affirm the Commissioner’s decision. Accordingly, Wright’s motion
to reverse and remand (Doc. #7) is denied, and defendant’s motion
for an order affirming the decision of the Commissioner (Doc. #8)
is granted. The Clerk shall enter judgment accordingly.
SO ORDERED.
Paul Barbadoro Chief Judge October 1 3 , 2000
cc: Raymond J. Kelly, Esq. David L . Broderick, Esq.
-40-