Mercier v. SHHS

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[NOT FOR PUBLICATION]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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