Edwards v. SHHS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
[NOT FOR PUBLICATION]

No. 94-1345

FLORENCE A. EDWARDS,

Plaintiff, Appellant,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Selya, Cyr and Boudin,
Circuit Judges.

Raymond J. Kelly on brief for appellant.

Paul M. Gagnon, United States Attorney, Patrick M. Walsh,

Assistant United States Attorney, and Robert M. Peckrill,

Assistant Regional Counsel, Department of Health & Human
Services, on brief for appellee.

September 2, 1994

Per Curiam. Claimant Florence Edwards appeals a

district court order affirming a decision of the Secretary of

Health and Human Services that denies social security

disability benefits. We affirm.

The background facts are thoroughly detailed in the

decisions below. Briefly, claimant alleges a disability due

to injuries she sustained on February 28, 1988, when she

jumped from a second story window to escape a fire. She

suffered significant fractures to both feet and a fractured

vertebrae. After a month in the hospital and physical

therapy on an outpatient basis, she returned to her work at a

shoe company in September, 1988. Adjustments were made in

her work duties to accommodate her new mobility limitations,

and she remained at her job until the plant closed in

December, 1988. For a period thereafter she accepted

unemployment benefits. In April, 1989 she underwent a

subtalor fusion of the left foot. At the time the treating

orthopedist noted that as a result of her fractures her feet

were significantly deformed, with residual arthritis. In

July, 1990, a similar subtalor fusion was performed on her

right foot. It is not disputed that claimant relies on a

cane, walks with difficulty, and apparently suffers permanent

limitations on her ambulatory abilities. She also suffers

from hypertension and obesity, and complains of chronic lower

back pain.

-2-

There were two hearings before an Administrative

Law Judge (ALJ) on claimant's application for disability

benefits. Claimant was represented by the same counsel at

both hearings. A decision denying benefits after the first

hearing was vacated by the Appeals Council, and the matter

remanded to the ALJ for the taking of additional evidence

relating to claimant's post- operative condition. The second

hearing also resulted in a decision to deny benefits, and the

Appeals Council denied review. On cross-motions by the

parties, the district court affirmed the Secretary's decision

in a lengthy memorandum opinion.

The ALJ's second decision found claimant not

disabled at step five of the familiar sequential analytic

process, in that claimant had a residual functional capacity

to perform a limited range of unskilled sedentary jobs which

exist in significant numbers in the national economy. 20

C.F.R. 404.1520(f), 404.1561, 404.1566. Claimant renews

in this court several of the multiple assignments of error

she urged below, and attempts to add a new one for the first

time on appeal. First claimant argues, as

below, that the ALJ failed to develop an adequate record

relating to her residual functional capacity, because he

violated an "explicit order from the Appeals Council to have

the examining physician [Dr. Shea] complete a specific form.

. . " According to claimant, Dr. Shea should have filled out

-3-

the very same preprinted form that was used by claimant's

treating doctor, Dr. Wachs.

Claimant's reading of the Appeals Council's order

is questionable,1 but we need not tarry over this detail

because the record developed below is clearly adequate. The

ALJ had before him a thorough residual functional assessment

from Dr. Wachs, who was associated with claimant's treating

orthopedist. In addition, there was a full consultative

examination by Dr. Shea, who was also familiar with the

claimant, having evaluated her in connection with previous

applications. Dr. Shea's report contains detailed

assessments of appellant's range of motion, reflexes,

flexion, walking, sitting, and standing abilities. Both

doctors reported substantial limitations on claimant's

functional abilities, reducing the range of work which she

might perform to less than the full range of sedentary jobs

available.

It is true that the two doctors' reports are in

different formats, but we fail to see any prejudice in this

1. The Appeals Council instructed the ALJ to obtain, with
the cooperation of claimant's attorney, medical evidence
relating to claimant's post-operative condition,
[F]rom the claimant's treating sources . . .
a medical assessment of the claimant's ability to
perform work-related activities (20 CFR 404.1513
and 416.913). Further the [ALJ] will obtain an
orthopedic consultative examination with a medical
assessment in order to resolve the [severity of
claimant's limitations].

-4-

asymmetry. Each report formed the basis of a separate

hypothetical question propounded to the vocational expert

(VE). The VE identified approximately 67,500 jobs in the

national economy which claimant might perform despite the

functional limitations reported by Dr. Wachs, and 135,000

jobs despite the limitations observed by Dr. Shea.2 Even

the lower of these two estimates sufficed to satisfy the

Secretary's burden of showing "significant numbers" of

suitable jobs in the national economy. 20 C.F.R. 404.1566;

see also Keating v. Secretary of HHS, 848 F.2d 271, 276 (1st

Cir. 1988) (to show that work exists in significant numbers,

the Secretary must show significant, not isolated, numbers of

jobs which a claimant can perform).3

2. The numbers in the text are the adjusted totals computed
by the ALJ. The ALJ adjusted the VE's raw figures downward
using percentage decreases which the VE had said would
account for claimant's various limitations. Our own reading
of the transcript suggests that the ALJ's adjusted figure may
be lower than the VE intended, as we glimpse the possibility
of a double deduction, but since any mistake is in claimant's
favor, we need not explore the matter further.

3. While claimant urges that the meaning of "significant
numbers" varies with the facts of each case, she points to
nothing that might diminish the significance of the very high
numbers in her case. Her claim that her disability prevents
her from driving is somewhat contradicted by her own
testimony, and her alternate contention that there is little
public transportation is irrelevant. See Lopez-Diaz v.

Secretary of HEW, 585 F.2d 1137, 1140-42 (1st Cir. 1978). We

also do not consider claimant's contentions relating to the
"significance" of the smaller numbers given by the VE in
response to hypotheticals which were based on the claimant's
subjective complaints, because the VE found those complaints
not credible.

-5-

Since the ALJ's conclusion finds substantial

support in the treating doctor's, Dr. Wach's, assessment,

claimant's fallback argument that the ALJ substituted his own

opinion for that of Dr. Shea is irrelevant, and in any event,

rests on a strained reading of the record. It is clear that

claimant suffered no prejudice from the format of Dr. Shea's

report.

Second, claimant argues that the ALJ did not

properly evaluate her subjective complaints of pain. On our

own review, we agree with the district court that the ALJ

gave full and careful consideration to claimant's pain

complaints in conformity with the regulations and case law.

See Avery v. Secretary of HHS, 797 F.2d 19, 21 (1st Cir.

1986). The record does not support the contention that the

ALJ gave undue weight to claimant's use of non-prescription

pain medications. We defer to the ALJ's assessment of

claimant's credibility, especially as it was supported by

specific findings. See Frustaglia v. Secretary of HHS, 829

F.2d 192, 195 (1st Cir. 1987).

Third, claimant argues, for the first time on

appeal, that there was insufficient evidence because the VE

"mischaracterized," as exertionally sedentary, the various

jobs he identified as available to a person with claimant's

characteristics. The VE testified that "some" jobs in the

following categories would be suitable: machine operation

-6-

jobs, such as grinding, buffing and polishing; manual

assembler; inspector; and cashier/ticket seller.

In her appellate brief, claimant assigns code

numbers to these job titles based on information in the

Dictionary of Occupational Titles (revised 4th ed. 1991)

(DOT). All of the code numbers which claimant assigns

correspond to jobs which the DOT classifies as requiring a

greater than "sedentary"

exertional capacity, and in one instance, a greater skill

level than claimant possesses.4

The VE, however, did not assign DOT code numbers in

his testimony, only general job titles. While the code

numbers affixed by claimant refer to similar job titles,

there are numerous DOT listings with superficially similar

titles, or work descriptions, some of which are classified as

sedentary and unskilled.5 Claimant's point thus cannot be

4. The code numbers and corresponding titles assigned by
claimant are: sanding machine buffer, D.O.T. 662.685-022;
polisher, D.O.T. 705.684-058; polisher and buffer II, D.O.T.
705.684-062; grinder, D.O.T. 555.685-026; grinder II, D.O.T.
603.664-010; assembler, small products, D.O.T. 706-684-022;
production assembler, D.O.T. 706-687-010; inspector of
plastics and composites, D.O.T. 806.261-046; ticket seller,
D.O.T. 211.467-030; cashier II, D.O.T. 211.462-010; cashier
I, D.O.T. 211.362.010.

5. For example, the DOT classifies the following jobs as
exertionally sedentary, and requiring no more than 0-3 months
of vocational preparation: check cashier, D.O.T. 211.462-026;
cashier, tube room, 211.482.010; pricer, message and delivery
service, 214.467-014; tax clerk, 219.487-010; scheduler,
238.367-034; heel sorter, 788.584-010. Moreover, the
Secretary's Medical-Vocational Guidelines, which takes

-7-

readily verified by simply comparing some DOT listings with

the VE's testimony.

In other circumstances, the uncertainty generated

by claimant's observations might cause concern. While not

the only reliable source of job information, the Secretary

takes administrative notice of the accuracy of the DOT's

generalized job descriptions. See 20 C.F.R. 404.1566(d),

Subpart P, app. 2, 200.00(b). The Secretary bears the

burden of proving the existence of jobs in the economy that

the claimant can perform. See Goodermote v. Secretary of

HHS, 690 F.2d 5, 7 (1st Cir. 1982). A clear dichotomy

between the DOT and the VE's testimony on this point may call

into question the sufficiency of the Secretary's evidence.

Courts have vacated the Secretary's decisions where

the VE's testimony is contradicted in its entirety by the DOT

and the only reasonable explanation seems to be that the VE

made a mistake. See, e.g., Young v. Secretary of HHS, 957

F.2d 386, 392 (7th Cir. 1992) (VE's testimony as to

characteristics of claimant's former jobs inconsistent with

DOT description); Ellison v. Sullivan, 921 F.2d 816, 821-22

administrative notice of the numbers of jobs generally
available in the economy, reports the existence of a
significant range of sedentary work available to a person of
claimant's age (36) and skills (unskilled). 20 C.F.R.,
Subpart P, app. 2, Table No. 1, Rule 201.24. The ALJ
properly used the guidelines only as a "frame of reference"
here because the claimant cannot perform a full range of
sedentary activity. 20 C.F.R., Subpart P, app. 2,
200.00(d); 20 C.F.R. 404.1569.

-8-

(8th Cir. 1990) (claimant limited to sedentary work, all jobs

listed by VE rated as light to heavy); Tom v. Heckler, 779

F.2d 1250, 1255-56, 1257 n.12 (7th Cir. 1985) (claimant

limited to sedentary work; all jobs listed by VE rated as

light); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)

(same). In at least one of the cases, Tom, the court treated

an irreconcilable conflict as the equivalent of plain error,

remanding despite the failure of the claimant to object

below.

Here, however, not only is the alleged DOT

contradiction uncertain, but the circumstances surrounding

claimant's failure to object at the hearing suggest that this

uncertainty is better explained by hindsight interpretation

than by actual error. Claimant was represented at the

hearing by an experienced attorney, who evinced no surprise

or confusion at the VE's testimony. On the contrary, he

complimented the VE on the thoroughness of his presentation.

The attorney was keenly aware that a discrepancy between the

VE's articulation and the DOT might be used to claimant's

advantage, as shown by a specific objection he made minutes

before to another VE's opinion in the same case. A copy of

the DOT was apparently available in the hearing room, for the

transcript shows that the VE directly consulted the DOT at

an earlier point in his testimony. Nevertheless, claimant's

attorney did not request specific DOT code numbers, nor seek

-9-

any other information that might shed light on the VE's

sources. The first allusion to this allegedly striking VE

error appears in a one-sentence paragraph inserted into

claimant's motion for reconsideration of the district court's

decision.

"We have long recognized that social security cases

are not strictly adversarial." Evangelista v. Secretary of

HHS, 826 F.2d 136, 142 (1st Cir. 1987). Here, however, we

see no good excuse for the failure to raise this matter

sooner, and claimant offers none. In these circumstances,

there is no unfairness in applying the "ordinary rule that

appellate courts will not consider issues not raised below."

Gonzalez-Ayala v. Secretary of HHS, 807 F.2d 255, 256 (1st

Cir. 1986) (citations omitted); see also Torres v. Secretary

of HHS, 870 F.2d 742 (1st Cir. 1989) (claimant's argument

that ALJ's hypothetical omitted a crucial fact will not be

entertained for first time on appeal where issues were

simple, it was not likely that VE failed to consider the

omitted fact, and claimant could have posed his own

hypothetical); cf. Evangelista, 826 F.2d at 142-43 (where

claimant was able to fairly present his case and the ALJ's

decision was based on substantial evidence, appeals court

will not remand for presentation by claimant of arguably "new

and material evidence" in absence of "good cause" adequate to

excuse the failure to offer the evidence sooner).

-10-

Accordingly, the judgment below is affirmed.

-11-