USCA1 Opinion
September 25, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1049
DENISE N. MERCIER,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
____________________
Remington O. Schmidt on brief for appellant. ____________________
Jay P. McCloskey, United States Attorney, David R. Collins, __________________ __________________
Assistant United States Attorney, and Robert J. Triba, Assistant ________________
Regional Counsel, Department of Health and Human Services, on brief
for appellee.
____________________
____________________
Per Curiam. Denise N. Mercier, claimant, appeals a __________
final decision by the Secretary of Health and Human Services
that she does not qualify for disability benefits under the
Social Security Act, 42 U.S.C. 402(g). The district court
granted judgment in favor of the Secretary. We affirm the
district court's decision.
Background __________
Claimant filed for disability benefits on July 3,
1990, alleging that she has been disabled from work since
October 15, 1982. The Secretary determined, and claimant
does not dispute, that she was fully insured only through
December 31, 1987. The Administrative Law Judge ("ALJ") held
a hearing and heard testimony from the claimant, a consulting
physician and a vocational expert. Claimant was represented
by an attorney.
Claimant alleges that she suffers from post-polio
syndrome,1 and claims that she is wholly disabled as a
____________________
1. Post-polio syndrome is described by the Secretary in the
Program Operations Manual System (POMS) as follows:
For the purposes of evaluation under the disability
programs, the late effects of polio refer to new symptoms and
neuromuscular manifestations which result in new functional
loss in an individual with a prior history of acute polio.
This functional loss typically occurs after a long period
(more than 10 years and generally 20-40 years) of stability.
The etiology of these problems is not yet known and not
all polio survivors experience these late effects. Precise
data are not yet available, but it may be that about 25
percent of the estimated 300,000 or more surviving
individuals who had polio are experiencing new problems
affecting their ability to carry out accustomed activities.
These late neuromuscular effects are permanent and usually
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result. Whether in fact she suffers from this syndrome was
not determined by the ALJ or the district court, and indeed
need not be decided for a resolution of the disability issues
presented by this appeal. The record is clear that claimant
had polio as a young child. Less clear are the medical and
vocational implications of post-polio syndrome. The ALJ
found that claimant's symptoms, as described, did not meet or
equal the listed impairments at 20 C.F.R. Part 404, Subpart
P, App. 1. He found claimant not disabled at step 5 of the
sequential evaluation process, 20 C.F.R. 404.1520(f), on
the ground that while claimant has a severe impairment which
prevents her return to her past relevant work, she retains
the residual functional capacity for some types of sedentary
work. Accordingly, the ALJ applied Rule 201.27 of the
Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P,
Appendix 2 ("the grid") as a framework and relied as well on
vocational testimony to reach a finding of not disabled.
Although claimant submitted additional evidence to the
Appeals Council, the Appeals Council refused review.
Claimant appealed to the district court, which affirmed the
Secretary. This appeal followed.
____________________
slowly progressive. There is no known treatment.
POMS DI 24580.010
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Discussion __________
Claimant makes six arguments on appeal. We address
each in turn and incorporate facts and medical evidence as
needed. "`We must uphold the Secretary's findings ... if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his
conclusion.'" Irlanda Ortiz v. Secretary of Health and Human _______ _____ _____________________________
Services, 955 F.2d 765, 769 (1st Cir. 1991), quoting ________
Rodriguez v. Secretary of Health and Human Services, 647 F.2d _________ ______________________________________
218, 222 (1st Cir. 1981).
1. Claimant argues first that her impairment meets
two of the listed impairments at 20 C.F.R. Part 404, Subpart
P, App. 1: Listing 1.03(A)2 and Listing 11.04(B)3.
Claimant was diagnosed with polio as a child, in 1955. She
had three surgeries on her right foot and ankle, including a
____________________
2. 1.03 Arthritis of a major weight-bearing joint (due to __________________________________________________
any cause): __________
With history of persistent joint pain and stiffness with
signs of marked limitation of motion or abnormal motion of
the affected joint on current physical examination. With:
A. Gross anatomical deformity of hip or knee (e.g.,
subluxation, contracture, bony or fibrous ankylosis,
instability) supported by X-ray evidence of either
significant joint space narrowing or significant bony
destruction and markedly limiting ability to walk and stand.
3. 11.04 Central nervous system vascular accident . With ___________________________________________
one of the following more than 3 months post-vascular
accident:
...
B. Significant and persistent disorganization of motor
function in two extremities, resulting in sustained
disturbance of gross and dexterous movements, or gait and
station....
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right ankle fusion in July, 1968. Her argument as to Listing
1.03(A) is that "it is obvious common sense that the ankle
area is equivalent for this purpose to the hip and knee
areas." Appellant's Brief, p. 14. Claimant makes this
argument despite the fact that at the hearing the ALJ asked
the medical expert just this question, and was told that
claimant's circumstances "wouldn't equal" the listing
requirements. A-II, 87-88. Claimant insists that under
Gordils v. Secretary of Health and Human Services, 921 F.2d _______ _______________________________________
327, 329 (1st Cir. 1990), the Secretary "is [not] precluded
from rendering common sense judgements [sic] about functional
capacity based on medical findings as long as the Secretary
does not overstep the bounds of a layperson's competence and
render a medical judgement [sic]."
Gordils is inapposite. By its terms, it concerns _______
the qualification of an ALJ to assess residual functional
capacity based on a bare medical record. Moreover, it is
expressly not pertinent to the situation presented here,
where a medical professional gave an opinion on a medical
issue, and appellant would have the ALJ displace that opinion ________
as a matter of "common sense."
As to Listing 11.04(B), claimant argues that the
record evidence in fact establishes that both of her legs are
affected. She cites to medical reports which relate her
intermittent and subjective complaints of pain or weakness,
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e.g., report of Jeffrey Eaton, 4/1/91, A-II, 199; or which ___
reflect objectively that her left leg, too, is weak. E.g., ___
report of William C. Meade, M.D., 3/5/92, A-II, 207.4
However, even if two extremities were involved, claimant
makes no argument about the balance of Listing 11.04(B):
"significant and persistent disorganization of motor function
in two extremities, resulting in sustained disturbance of
gross and dexterous movements, or gait and station...." No
record evidence supports a finding to this effect. Dr. Meade
indicated that claimant has "an obvious Trendelenburg gait,"
A-II, 205, but Dr. Kaminow concluded that while the gait is
"somewhat antalgic ... there is no imbalance," id. at 25, and __
Dr. Hull found only a "mild dyssymmetry [sic] of gait," id. __
at 21. We agree that there is insufficient medical evidence
to show that claimant meets this listing.
2. Claimant argues next that the district court
should have remanded the case so that she could augment the
record with medical records of her former treating physician,
Roger Robert, M.D. Dr. Robert treated claimant in the
1950s, 1960s and 1970s, and, despite the fact that he was
under subpoena to do so, apparently failed to transmit all of
his records to the ALJ in time for the hearing. Some of
____________________
4. At least one other report reflects that, as of March
1991, "[s]trength was entirely intact in the left lower
extremity...." Report of Kathryn D. Seasholtz, D.O., 3/6/91,
A-II, 197.
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these records were before the ALJ; the remainder are now
available, and claimant argues that she is entitled to a
remand to have the ALJ consider them.
Pursuant to 42 U.S.C. 405(g), remand is proper
only upon a showing "that there is new evidence which is
material and ... there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding." Evangelista v. Secretary of Health and Human ___________ ______________________________
Services, 826 F.2d 136, 139 (1st Cir. 1987). The only issue ________
before the district court, and before us, is whether the
proffered evidence is material; that is if, were it
considered, the Secretary's decision "`might reasonably have
been different.'" Id. at 1140. ___
The Magistrate found, and the district court
agreed, that the medical records in question:
antedate by many years the plaintiff's
alleged onset disability date; they do
not relate at all to the Secretary's
inquiry as to whether the plaintiff was
disabled after October 15, 1982. To the
extent that the medical records establish
a medical history of polio, and thereby
establish the predicate for her current
claim of post-polio syndrome, I note that
the Administrative Law Judge fully
credited her history of polio.
Report and Recommended Decision, p. 4. We agree fully.
Claimant was not denied disability benefits because the ALJ
did not credit her (otherwise documented) history of polio,
but, rather, because there was insufficient evidence of any
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disabling restrictions during the relevant period, and there
was affirmative evidence that despite her limitations,
claimant was able to perform some types of work. Claimant
has failed to show that the additional evidence would likely
have made any difference.
3. In her third argument, claimant alleges that
she was denied her right to testify as to why the records of
Dr. Frank, a physician who has treated her since 1981 (A-II,
62), are silent concerning post-polio syndrome. Apparently,
claimant would have testified that she had tried to raise the
issue with Dr. Frank, but he ignored her. See A-II, 78-79. ___
In fact, claimant testified on two occasions that
she raised concerns with Dr. Frank. She said first that she
had mentioned to him that she had post-polio syndrome, but
that he was unfamiliar with it (A-II, 62); and later that she
had discussed some symptoms with Dr. Frank and "the only
thing [he keeps] telling me is there's nothing they can do
for me." Id. at 79. __
Claimant concludes that the ALJ "held the lack of
post-polio syndrome references in Dr. Frank's notes against
[her]...." Appellant's Brief, p. 22. This is not a wholly
accurate description of the ALJ's finding. The ALJ's
Decision reflects that:
Dr. Frank's treatment notes do not make
reference to any significant complaints
relating to post-polio syndrome. ... With
a view toward deciding this case in a
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light most favorable to the claimant, a
conclusion will nevertheless be reached
that on or before the date her insured
status expired, the symptoms associated
with post-polio syndrome was [sic] severe
as they likely affected Ms. Mercier's
ability to perform highly strenuous work
activities on a sustained basis.
A-II, 41. The record shows that claimant was able to testify
on two occasions that Dr. Frank was unable to help with her
problem. Had she been permitted to testify in addition that
he ignored her, it is difficult to see how her case would
have been advanced. Insofar as she is complaining about the
ALJ's reliance on the general absence in the record of
contemporaneous evidence of complaints of pain, that argument
is addressed infra. _____
4. Claimant's fourth argument seems to be that her
due process and confrontation clause rights were violated
when the ALJ did not permit her attorney to ask the
vocational expert ("VE") to "zero in" on the problems she
had in performing her volunteer work. The attorney evidently
hoped to undermine the VE's testimony that there were jobs in
the economy claimant could perform by introducing evidence
that claimant had great difficulty with even the extremely
limited and occasional volunteer work she undertook at a
school library. The ALJ did not permit this, observing
instead that "[i]f we take all of her testimony, then she
can't do any work." A-II, 97.
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The ALJ concluded, in effect, that introduction of
claimant's particular volunteer work limitations would add
nothing to the hypotheticals he had posed to the VE, which
already took into account substantial limitations, both
objective (reflected in the medical records) and subjective
(as described by claimant.) We perceive no error. As
indicated below, the hypotheticals were properly based on
record evidence, and claimant's proffered questions, based on
her own subjective complaints, were properly excluded.
5. In her fifth argument, claimant alleges that
the ALJ, in his hypotheticals to the VE, and in reaching his
ultimate conclusion that there were jobs claimant could
perform,5 did not take into account all of claimant's
limitations as reflected in Dr. Meade's report, the only
medical report of record addressing work-related
activities.6 "[I]n order for a vocational expert's answer
to a hypothetical question to be relevant, the inputs into
that hypothetical must correspond to conclusions that are
____________________
5. Once it is established that a claimant cannot perform
past relevant work, the burden shifts to the Secretary to
show that there are jobs claimant can perform. Arocho v. __________
Secretary of Health and Human Services, 670 F.2d 374, 375 ________________________________________
(1st Cir. 1982).
6. Dr. Meade's report, dated March 10, 1992, post-dated by
over four years the expiration of claimant's insured status.
Nonetheless, the ALJ considered Dr. Meade's assessment of
claimant's functional limitations "pertinent," (A-II, 45) and
directed the Vocational Expert to assume that claimant's
residual functional capacities at the time of the hearing
approximated those of 1987. A-II, 92.
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supported by the outputs from the medical authorities."
Arocho v. Secretary of Health and Human Services, 670 F.2d ______ ________________________________________
374, 375 (1st Cir. 1982). "To guarantee that correspondence,
the Administrative Law Judge must both clarify the outputs
(deciding what testimony will be credited and resolving
ambiguities), and accurately transmit the clarified output to
the expert in the form of assumptions." Id. __
Claimant takes issue particularly with the
assumption that she could sit for one hour and with the ALJ's
failure to emphasize to the VE that she could stand, walk or
sit for a total of four hours during the course of a work
day. Appellant's Brief, p. 25.
We have compared Dr. Meade's report, the claimant's
own testimony and her disability application with the
information given the VE at the hearing, and we conclude that
the ALJ accurately described claimant's limitations in his
hypotheticals. Claimant testified that she generally sits and
watches television for an hour at a time. A-II, 56. On a
daily basis, she makes lunch, does light housekeeping and
some shopping. Id., 56-57. Her "disability report" - filed __
as part of her initial application for benefits - indicates
that she daily spends 45 minutes to an hour and a half
cooking; does a load of laundry; sweeps; and drives when
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necessary. Id. at 126. We find no error in the assumptions __
given the VE by the ALJ.7
6. Claimant's final argument is that the ALJ
neglected to credit sufficiently her complaints of pain, and
did not properly apply the standards set out in Avery v. _____
Secretary of Health and Human Services, 797 F.2d 19 (1st Cir. ______________________________________
1986). She argues specifically that under Avery, the ALJ _____
cannot disregard complaints of pain which are consistent with
the medical findings and diagnosis. Appellant's Brief, pp.
27-28.
We have construed Avery to mean that "complaints of _____
pain need not be precisely corroborated by objective
findings, but they must be consistent with medical findings."
Dupuis v. Secretary of Health and Human Services, 869 F.2d ______ _______________________________________
622, 623 (1st Cir. 1989). "`[I]f an impairment is reasonably
expected to produce some pain, allegations of [disabling] ____
pain emanating from that impairment are sufficiently
consistent to require consideration of all relevant
evidence.'" Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th ______ ________
Cir. 1991) (emphasis in original; citation omitted). In
assessing complaints of pain:
Some of the possible factors include:
the levels of medication and their
____________________
7. We note as well that the Appeals Council, which rendered
the Secretary's final decision, had before it an additional
work capacity evaluation which is far more detailed than the
earlier report of Dr. Meade, and which pronounces claimant
considerably more able. A-II, 7-19.
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effectiveness, the extensiveness of the
attempts (medical or nonmedical) to
obtain relief, the frequency of medical
contacts, the nature of daily activities
[and] subjective measures of credibility
that are peculiarly within the judgment
of the ALJ....
Id. Gaps in the medical records are themselves evidence. __
Irlanda Ortiz v. Secretary of Health and Human Services, 955 _____________ _______________________________________
F.2d 765, 769 (1st Cir. 1991).
We assume solely for purposes of this appeal that
claimant suffers from post-polio syndrome, and that post-
polio syndrome is an impairment which can reasonably be
expected to produce pain, although we note that the record is
by no means clear on the second point. In evaluating the
severity of claimant's pain, the ALJ observed:
Although the claimant stated that she is
incapable of working due to many symptoms
which she relates to post-polio syndrome,
there is little evidence to support a
finding that Ms. Mercier complained of
such difficulties to her physicians at
the time her insured status expired. ...
If [the] claimant's condition were as bad
in 1987 as she now contends it was, it is
likely that she would have made many
complaints to her treating physician.
A-II, 44-45.
The ALJ found that claimant's assertions concerning
her impairment and its impact on her ability to work on and
before the date her insured status expired "[were] not
credible in light of the claimant's own description of her
activities, and discrepancies between the claimant's
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assertions and information contained in the documentary
medical reports." Id. at 47. __
The ALJ's credibility determination "is entitled to
deference, especially when supported by specific findings."
Frustaglia v. Secretary of Health and Human Services, 829 __________ _________________________________________
F.2d 192, 195 (1st Cir. 1987). Accordingly, we find there is
substantial evidence in the record to support the Secretary's
decision. Affirmed. ________
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