Ranfos v. SSA CV-00-589-B 01/24/02
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Judith A. Ranfos
v. Civil No. 00-589-B
Opinion No. 2002 DNH 021
Larry G. Massanari, Acting
Commissioner, Social Security
Administration
MEMORANDUM AND ORDER
Judith Ranfos applied for Title XVI Supplemental Security
benefits in January 1997. Ranfos alleged an inability to work
since September 23, 1995, due to problems with her left foot and
lower back. The Social Security Administration ("SSA") denied
her application initially and on reconsideration. Administrative
Law Judge ("ALJ") Ruth L. Kleinfeld held a hearing on Ranfos'
claim on January 8, 1998. In a decision dated February 24, 1998,
the ALJ found that Ranfos was not disabled. On December 15,
2000, the Appeals Council denied Ranfos' request for review of
the hearing decision, rendering the ALJ's decision the final
decision of the Commissioner of the SSA.
Ranfos brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the denial of her application for benefits.
Ranfos requests that I reverse the Commissioner's decision and
award her benefits. For the reasons set forth below, I conclude
that the ALJ's decision is supported by substantial evidence.
Therefore, I affirm the Commissioner's decision and deny Ranfos'
motion to reverse.
I. FACTS1
Ranfos was forty-six years old when she applied for
benefits. She has a tenth grade education, and has worked as a
restaurant owner, manager, waitress, cook, dishwasher and
cashier. Tr.2 at 42-44, 64-65, 131-33. Ranfos has not worked
since taking medical leave from her most recent job on September
23, 1995, and asserts that she cannot now work because of pain
associated with her disability. Tr. at 106, 205, 251.
1 Unless otherwise noted, I take the following facts from
the Joint Statement of Material Facts submitted by the parties.
2 "Tr." refers to the certified transcript of the record
submitted to the Court by the SSA in connection with this case.
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Ranfos suffered a slip and fall at a grocery store on
September 12, 1995. Dr. A. Langlois saw Ranfos the next day and
diagnosed a sprained ankle. The doctor applied an ace bandage,
and recommended Advil, heat and rest. Tr. at 205, 215, 217.
Approximately one week later, Ranfos saw a podiatrist. Dr.
Raef Fahmy, who x-rayed Ranfos' left foot and found a fracture of
her left navicular cuneiform joint. Tr. at 251. Dr. Fahmy put
the foot in a cast, which was later removed on November 6, 1995.
Tr. at 251. Ranfos reported an improvement in her foot in
December 1995, although she still needed the assistance of
crutches. Tr. at 251-52. On January 18, 1996, Ranfos visited
Dr. Fahmy and reported only a slight improvement since the last
visit, and complained of burning and numbness in her leg and
foot, as well as pain radiating from her lower back down her
buttocks. Dr. Fahmy recommended more physical therapy and that
Ranfos be evaluated for sciatica. Tr. at 252.
Ranfos saw an orthopedic specialist. Dr. James C. Valias, on
February 2, 1996. Tr. at 277. An MRI scan showed lateral disc
herniation, a small but not complete rupture of the disc, and no
obvious encroachment on the neural elements. Tr. at 221, 277-78.
During a subsequent visit, on April 19, 1996, Dr. Valias observed
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that Ranfos was not improving, despite her nine physical therapy
visits. Tr. at 278.
Ranfos next saw another orthopedic specialist. Dr. Tom
Kleeman, on May 2, 1996. Dr. Kleeman observed that Ranfos
appeared extremely deconditioned and stiff, despite having had
physical therapy, and that she walked with a very stiff antalgic
gait, favoring her left foot. He noted that she had "give way"
weakness on her left leg. Tr. at 280. Dr. Kleeman did not think
surgery was necessary, and recommended aggressive physical
therapy.
Shortly thereafter. Dr. Burton Nault, a non-examining
physician, reviewed Ranfos' medical records and prepared a
residual functional capacity ("RFC") assessment for the state
disability determination service. Tr. at 77, 283-91. He found
that Ranfos suffered from significant impairments due to a
possible soft tissue Lisfranc's injury to the left foot, as well
as evidence of a small herniated disc at L4-5. Tr. at 289.
Despite a lack of supporting clinical evidence. Dr. Nault also
noted subjective radiculopathy, a disorder of the spinal nerve
roots. Tr. at 289. Based on these impairments. Dr. Nault opined
that Ranfos was capable of lifting twenty pounds occasionally and
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ten pounds frequently, standing or walking for two hours and
sitting for six hours in an eight-hour workday, without push or
pull limitations. Tr. at 284. According to Dr. Nault, Ranfos
had postural limitations in that she could climb, balance, stoop,
kneel, crouch and crawl less than one-third of the time. Tr. at
285. Dr. Nault concluded that Ranfos could perform sedentary
work. Tr. at 289.
Ranfos returned to Dr. Kleeman on June 3, 1996, and reported
that her condition had significantly improved due to her use of
exercise equipment in physical therapy. Tr. at 282. Because
Ranfos' formal physical therapy was coming to an end. Dr. Kleeman
advised her to continue exercising at home. Tr. at 282. Dr.
Kleeman also spoke with Ranfos about the possibility of returning
to work, and opined that it would be an excellent way for her to
return to the mainstream. Tr. at 282.
On February 20, 1997, Dr. William Kilgus examined Ranfos on
behalf of the state disability determination service. Tr. at
293-94. He observed that Ranfos walked with a slight antalgic
gait, but did not list to either side when standing. His
examination of her left foot revealed a limited range of motion
in flexion, and he noted that she experienced mild pain on
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extremes of motion. Tr. at 294. Dr. Kilgus identified no
neurovascular deficit, and observed no areas of swelling or
discoloration. He concluded that Ranfos' overall prognosis was
good, and that she had full-time work capacity, ideally in a
setting that required only sedentary activity and working with
her upper extremities. Tr. at 294.
The state disability determination service completed an RFC
assessment on March 2, 1997, which indicated an improvement over
the exertional limitations reported previously by Dr. Nault. Tr.
at 296-303. It stated that Ranfos could stand or walk for six
hours out of an eight-hour workday. Tr. at 297. Dr. Robert C.
Rainie ratified this RFC assessment on June 27, 1997, and noted
that Ranfos was capable of light work. Tr. at 296.
On March 19, 1997, Ranfos sought help from a chronic pain
specialist at the Elliot Hospital Pain Clinic for her leg and
foot pain. Tr. at 224. Dr. Ronald C. Kennedy examined Ranfos
and found decreased sensitivity to light touch and decreased
strength in her left leg from the knee down. Tr. at 224. Dr.
Kennedy further observed: pain in the back with rotary movements
of the left lower extremity; straight leg raises on the left
caused discomfort in the back and up the leg with 70 to 80
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-
degrees and accentuated with dorsiflexion; palpation of the back
revealed left sacroiliac joint pain, but no pain on the right.
Tr. at 224. Dr. Kennedy opined that Ranfos had probable reflex
sympathetic dystrophy ("RSD") secondary to her fracture injury
sustained in September of 1995; she also had left sacroiliac
joint strain, secondary to abnormal gait. Dr. Kennedy opined
that Ranfos had possible lumbar radiculopathy, but that the RSD
was the most likely problem at that time. Tr. at 224. He
discussed with Ranfos the possibility of doing a lumbar
sympathetic block as a diagnostic and therapeutic procedure, and
that her sacroiliac joint discomfort might be alleviated with
sacroiliac joint block. Tr. at 224-25.
Approximately three weeks later, Ranfos underwent a lumbar
sympathetic block for evaluation of her left foot pain. Tr. at
228. The procedure resulted in a significant decrease of pain,
although the pain returned the next morning. Tr. at 228, 233.
On April 14, 1997, Ranfos underwent another procedure, this time
involving placement of a lumbar epidural catheter which dosed
over two days, resulting in a reduction of pain. Tr. at 232-43.
However, Ranfos experienced some difficulty walking. Tr. at 234.
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Dr. Stephen Dainesi, an anesthesiologist, saw Ranfos on
April 16, 1997, her third consecutive day of treatment. Ranfos
stated that she was experiencing a reduction in her pain. Dr.
Dainesi felt that if Ranfos' pain persisted, it would indicate a
complex regional pain syndrome. Tr. at 241. Nursing notes
indicated that Ranfos stood and walked with difficulty. Tr. at
242. On April 22, 1997, Ranfos reported to Dr. Dainesi that she
was doing significantly better overall, and that her pain usually
recurred only when she walked for awhile. Tr. at 245. Dr.
Dainesi renewed Ranfos' prescription for Neurontin,3 and
confirmed that Ranfos' left foot pain symptoms were consistent
with complex regional pain syndrome Type I. Tr. at 245.
When Ranfos again saw Dr. Dainesi on May 9, 1997, he noted
that she had done well with the block, which caused her to be
pain free for the first week. He decided to wean Ranfos from
Neurontin and start her on Mexiletine,4 which he thought would be
3 Neurontin is adjunctive therapy in the treatment of
partial seizures with or without secondary generalization in
adults with epilepsy. Physicians' Desk Reference 2110 (52d ed.
1998).
4 Mexiletine hydrocholride is a local anesthetic.
Physicians' Desk Reference 720 (52d ed. 1998).
more effective for her pain. He prescribed 150 mg, three times
per day. Tr. at 247.
Dr. Dainesi increased Ranfos' daily dosage of Mexiletine to
200 mg, three times per day, on August 20, 1997, in response to
her reported increase in foot pain after doing a lot of walking.
Tr. at 250. The next day. Dr. Dainesi completed a physical
capacities evaluation form, in which he opined that she could
occasionally lift ten pounds, could stand/walk for less than
fifteen minutes at a time, that her ability to concentrate was
limited by her pain, that she could not climb, crouch, kneel or
crawl, and that she could balance and stoop only occasionally.
Tr. at 306-08, 310.
At her January 8, 1998 hearing for Social Security benefits,
Ranfos testified about her condition. She explained that walking
exacerbates her pain, and that she is pain free only when sitting
with her leg elevated. Tr. at 47, 48. Ranfos stated that she
can sit for only twenty minutes at a time, and that sleeping is
uncomfortable because her leg often goes numb. Tr. at 50, 51,
57. When walking, Ranfos prefers to use a cane instead of the
crutches that she was prescribed. Tr. at 51. Ranfos testified
that when standing, she is more comfortable when she has
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something to lean on, and when sitting, she needs to elevate her
leg most of the time. Tr. at 51, 62. Walking distances of more
than 150 yards causes her pain, as does walking up or down
stairs. Tr. at 53, 56. Ranfos testified that she has trouble
with some daily activities such as getting in and out of the
shower, getting in and out of a car, and bending over to reach
items. Tr. at 50, 52-53.
Ranfos updated the ALJ concerning her medication. She
stated that she takes 1000 mg. of Mexiletine per day, which
relieves her pain and produces no side effects other than
fatigue. Tr. at 54-55. Ranfos testified, however, that the
medication is not always effective and that when she is on her
leg, the pain often returns. On the day of the hearing, Ranfos
stated that her pain measured about an eight, on a ten point
scale, even though she took her medication that morning. Tr. at
56-57. Ranfos also testified that both pain and numbness in her
leg wakes her up at night, and that when her leg is numb, trying
to restore circulation causes pain. Tr. at 57.
Christine Spaulding, a vocational expert ("VE"), testified
at the hearing after Ranfos. She stated that Ranfos' past work
experience included both light and medium exertional range
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positions that were skilled, semi-skilled and unskilled, and,
assuming an RFC for only sedentary work, all of her past work
experience would be precluded. Tr. at 64-65. Spaulding then
assumed Ranfos would have a sedentary RFC with a sit/stand
option, no climbing, no unprotected heights, and the opportunity
to elevate her leg. Spaulding concluded that sufficient work
exists in the national and local economies that would accommodate
Ranfos' limitations. Tr. at 65-67. Examples of jobs included
cashier positions, office clerk, administrative support,
receptionist, information clerk, security guard, gate guard,
surveillance system monitor, various manufacturing positions,
inspector positions, packer, machine operator, and photo
processing machine operator. These positions account for
approximately 2,700 jobs locally, and 533,000 jobs nationally.
Tr. at 66-67.
Spaulding then opined that if Ranfos also needed to be able
to walk away from her work station every fifteen minutes, it
would eliminate the entire job base. Tr. at 68-69. Addition
ally, Spaulding noted that factoring in a moderate degree of
fatigue and lack of concentration would impact a person's ability
to do the jobs she had identified. Tr. at 70-71.
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After the hearing, the ALJ applied the five-step evaluation
process established by the SSA.5 At step one, she found that
Ranfos had not engaged in substantial gainful activity since
September 23, 1995. Tr. at 34. At step two, the ALJ found that
Ranfos had "a soft tissue injury to the left lower extremity and
degenerative disc disease of the lumbar spine." Tr. at 34. At
step three, she found that Ranfos' impairments did not meet or
equal the criteria of any listed impairment described in 20
C.F.R. § 404. Tr. at 34. Next, the ALJ assessed Ranfos' RFC and
found that she could not lift and carry more than ten pounds, sit
for prolonged periods of time without standing as needed, climb
stairs or ladders or work at unprotected heights. Tr. at 35.
The ALJ found at step four that these limitations precluded
Ranfos from returning to her former employment. Tr. at 35.
Finally, the ALJ found at Step 5 that Ranfos was not disabled
because she could perform work which exists in significant
numbers in the national economy.
Ranfos appealed the ALJ's decision to the Appeals Council
and produced the following new medical evidence. On October 12,
See infra note 6.
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1998, Ranfos underwent the placement of an epidural catheter and
dosing over three consecutive days. Tr. at 337. On October 13,
1998, Dr. Kennedy noted that Ranfos was experiencing no pain in
her left foot. Tr. at 338. On November 18, 1998, Dr. Wesley
Wasdyke observed that Ranfos' pain had been at a manageable
level, but she had not been doing much, and mainly stayed at home
because the cold and rainy weather was difficult for her. Tr. at
320 .
On January 29, 1999, Ranfos saw Dr. Wasdyke and reported
that she had less pain when she did not use her foot, stand or
walk too much. Dr. Wasdyke discussed with Ranfos different
possible treatments for her complex regional pain syndrome. Tr.
at 319.
On March 23, 1999, Ranfos saw Dr. David Mevorach for
placement of another epidural catheter, with three days of
dosing. Tr. at 317. According to Ranfos, the procedure usually
resulted in two months of pain relief. On August 11, 1999,
Ranfos saw Dr. Dainesi, who noted that she had seen Dr. Razvi for
another epidural catheter. Tr. at 358. Ranfos reported that her
foot felt somewhat better after the re-dose. Tr. at 358.
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Dr. Dainesi referred Ranfos to Dr. Lawrence Hoepp, a
vascular surgeon, whom she saw on September 20, 1999, to consider
a "lumbar sympethectomy," which would provide longer term relief
for her RSD. The procedure, involving a surgical cutting of the
nerve, would not relieve her muscular dystrophic problems, and
would require extensive physical therapy after the surgery. Dr.
Hoepp could not guarantee Ranfos the procedure would provide
total relief from her pain. Tr. at 357.
II. 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 to: (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). 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. Sec'v of Health & Human Servs.,
955 F.2d
765, 769 (1st Cir. 1991) (per curiam). The ALJ is responsible
for settling credibility issues, drawing inferences from the
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record evidence, and resolving conflicts in the evidence. See
Irlanda Ortiz, 955 F.2d at 7 69. Therefore, I 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 Rodriquez v. Sec'v
of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981))
(internal quotation marks omitted).
The ALJ's findings of fact are unalterable unless they are
"derived by ignoring evidence, misapplying the law, or judging
matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999) (per curiam). I apply this standard in reviewing
the issues that Ranfos raises on appeal.
III. DISCUSSION
The Social Security Act (the "Act") defines "disability" for
purposes of Title XVI 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
for a continuous period of not less than 12 months." 42 U.S.C. §
423(d)(1)(A). The Act directs an ALJ to apply a five-step
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sequential analysis to determine whether a claimant is disabled.6
See 20 C.F.R. § 404.1520. At step four, the ALJ must determine
whether the claimant's impairment prevents her from performing
her past work. See
id. § 404.1520(e). To make this
determination, the ALJ must assess both the claimant's residual
functional capacity ("RFC"), that is, what the claimant can do
despite her impairments, and the demands of the claimant's prior
employment. See id.; 20 C.F.R. § 404.1545(a); see also Santiago
v. Sec'v of Health & Human Servs.,
944 F.2d 1, 7 (1st Cir. 1991)
(per curiam). The claimant, however, bears the burden of showing
that she does not have the RFC to perform her past relevant work.
See Santiago,
944 F.2d at 5.
At step five, the burden shifts to the Commissioner to show
"that there are jobs in the national economy that [the] claimant
can perform." Heggartv v. Sullivan, 947 F.2d 990, 995 (1st Cir.
1991) (per curiam); see also Keating v. Sec'v of Health & Human
6 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
the claimant from performing past relevant work; and (5) whether
the impairment prevents the claimant from doing any other work.
See 20 C.F.R. § 404.1520 (2000).
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Servs., 848 F.2d 271, 276 (1st Cir. 1988) (per curiam). The
Commissioner must show that the claimant's limitations do not
prevent her 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 this case, the ALJ concluded at step four of the
sequential evaluation process that Ranfos' impairment prevents
her from performing her past work as a restaurant owner, manager,
waitress, cook, dishwasher and cashier. Tr. at 35. The ALJ
determined that Ranfos lacks the RFC "to lift and carry more than
ten pounds, sit for prolonged periods without the option to stand
as needed for comfort, climb stairs or ladders, or work at
unprotected heights." Tr. at 35. Given these restrictions, the
ALJ concluded Ranfos could not perform her past relevant work.
The ALJ next concluded that Ranfos' impairments do not
preclude her from doing other work. After considering the
testimony of the VE, as well as Ranfos' age, educational
background, and work experience, the ALJ found, "Although the
claimant is unable to perform the full range of sedentary work,
she is capable of making an adjustment to work which exists in
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significant numbers in the national economy." The ALJ then
listed the types of jobs Ranfos could perform, which were the
same jobs suggested by the V E .
Ranfos argues that the ALJ's decision was tainted by a
number of legal errors. First, Ranfos argues that the ALJ
improperly calculated her RFC by ignoring a treating source's
opinion concerning her capacity to work. Second, Ranfos argues
that the ALJ failed to assess properly her pain complaints.
Finally, Ranfos asserts that the ALJ failed to carry the
Commissioner's burden at step five of the evaluation process, and
used an improper hypothetical. I address each of these arguments
in turn.
A. The ALJ's Consideration of Ranfos' Treating Source
Ranfos contends that the ALJ did not consider all relevant
evidence when determining her RFC. Specifically, Ranfos
complains that the ALJ neglected to consider fully the RFC form
completed by Dr. Dainesi, her pain specialist. In this form. Dr.
Dainesi noted that Ranfos had less than a full sedentary work
capacity, because "her ability to sit and perform any function is
limited by the level of pain she is experiencing." Tr. at 307.
He also noted that her ability to concentrate would be impaired
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at times due to her pain. Tr. at 310. Ranfos' claim that the
ALJ failed to consider Dr. Dainesi's observations lacks merit.
First, the ALJ's findings are largely consistent with Dr.
Dainesi's observations. Like Dr. Dainesi, the ALJ found that
Ranfos had a less than full sedentary work capacity. Tr. at 35.
The ALJ also found that Ranfos could not "sit for prolonged
periods without the option to stand as needed for comfort." Tr.
at 35. This finding comports with Dr. Dainesi's observation that
Ranfos' ability to sit and function would be limited by her pain.
The ALJ did not adopt Dr. Dainesi's opinion that Ranfos'
ability to concentrate would be limited by changes in her level
of pain. This detail is important, as Ranfos argues, because the
VE testified that if Ranfos had difficulty concentrating, she
would be unable to work. However, the record supports the ALJ's
decision not to credit Dr. Dainesi's opinion in this respect.
Ranfos had seen at least five doctors other than Dr.
Dainesi, and none opined that she might have problems with her
ability to concentrate. For example. Dr. Kleeman, an orthopedic
specialist, saw much improvement in Ranfos after aggressive
physical therapy, and advised that she return to work. Tr. at
282. Dr. Kilgus, who examined Ranfos for the state disability
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determination service, opined that she had full-time work
capacity, although she should preferably perform sedentary work.
Tr. at 294. Dr. Kennedy, a chronic pain specialist, examined
Ranfos and made many observations regarding her condition. While
Dr. Kennedy found that Ranfos suffered from pain and discomfort
in her left leg and back, he made no mention of the pain
interfering with her ability to concentrate. Tr. at 224.
Finally, Ranfos herself, in the testimony she gave at her
hearing, discussed her pain, as well as the medication she took
and its side effects, but made no mention of a problem with her
ability to concentrate.7
Dr. Dainesi's statement regarding Ranfos' ability to
concentrate being affected by her pain was the only statement
made to this effect. Drs. Kleeman, Kilgus and Nault opined that
Ranfos had the ability to perform sedentary work, and Dr. Kleeman
specifically advised that it would be good for her to do so.
Therefore, the ALJ's decision not to credit Dr. Dainesi's opinion
7 Ranfos did refer to a problem with her memory, stating
that "I lose my memory lately...! think it's the drugs." Tr. at
60. The record does not reflect that Ranfos ever complained to a
doctor about this problem, and no medical evidence supports this
statement. Furthermore, a subjective problem with memory is not
equivalent to a problem with concentration.
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that Ranfos lacked the capacity to concentrate is supported by
the record.
B . The ALJ's Decision Not to Credit Fully Ranfos' Subjective
_____ Complaints of Pain
_____ Ranfos argues that the ALJ did not properly analyze the
factors outlined in Avery v. Secretary of Health and Human
Services, 797 F.2d 19, 29-30 (1st Cir. 1986), before she
determined that Ranfos' pain complaints were not fully credible.
Specifically, Ranfos alleges that the ALJ erred in relying more
heavily upon the opinions of Drs. Kilgus and Kleeman than that of
Dr. Dainesi, who was a pain specialist.8 Ranfos also complains
that the ALJ improperly minimized or discounted her allegations
of pain made at the hearing, relying instead upon Ranfos' efforts
to obtain a job, and a pain questionnaire Ranfos completed in
conjunction with her application for benefits.
1. Standards Governing an ALJ's Credibility Determination
The SSA regulations require that the ALJ consider a
claimant's symptoms, including complaints of pain, when she is
8 The only aspect of Dr. Dainesi's opinions that is
inconsistent with the ALJ's findings is his statement that
Ranfos' pain would affect her ability to concentrate. This
subject was discussed above. See supra pp. 18-21.
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determining whether a claimant is disabled. See 20 C.F.R. §
4 04.1529(a).9 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
id. § 404.1529(c)(1); SSR 96-7p,
1996 WL 374186, at *1 (1996). The ALJ must consider all of the
available evidence, including the claimant's medical history, the
medical signs and laboratory findings, the claimant's prior work
record, and statements from the claimant, the claimant's treating
or examining physician or psychologist, or other persons about
how the claimant's symptoms affect her.
20 C.F.R. §
404.1529 (c) (1)- (3) .
9 An ALJ must apply a two-step analysis to evaluate a
claimant's subjective complaints. First, the ALJ must determine
whether the claimant suffers from a medically determinable
impairment that can reasonably be expected to produce pain or
other symptoms alleged. See 20 C.F.R. § 404.1529(b); Da Rosa v.
Sec'v of Health and Human Servs.,
803 F.2d 24, 25 (1st Cir. 1986)
(per curiam). Then, if such an impairment exists, the ALJ must
evaluate the intensity and persistence of the claimant's
symptoms. See
20 C.F.R. § 404.1529(c). The ALJ made a specific
finding regarding the first step of the analysis, determining
that "the evidence supports a finding that Ms. Ranfos has a soft
tissue injury to her left lower extremity and degenerative disc
disease of the lumbar spine, impairments which cause significant
vocationally relevant limitations." Tr. at 28. Ranfos does not
take issue with this determination. Therefore, I focus on the
second step of the analysis.
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_____ The Commissioner recognizes that symptoms may suggest a more
severe impairment "than can be shown by objective medical
evidence alone." Id. § 404.1529(c)(3). Accordingly, the ALJ
must evaluate the claimant's complaints in light of the following
factors: (1) the claimant's daily activities; (2) the location,
duration, frequency, and intensity of the claimant's symptoms;
(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 symptoms; (5)
treatment, other than medication, the claimant receives or has
received for relief of his symptoms; (6) any measures the
claimant uses or has used to relieve symptoms; and (7) other
factors concerning the claimant's limitations and restrictions
due to pain or other symptoms. Id. § 404.1529(c)(3)(i)- (vii);
see also Avery,
797 F.2d at 29-30. These factors are sometimes
called the "Avery factors." In addition to considering these
factors, the ALJ is entitled to observe the claimant, evaluate
her demeanor, and consider how the claimant's testimony fits with
the rest of the evidence. See Frustaqlia v. Sec'v of Health &
Human Servs.,
829 F.2d 192, 195 (1st Cir. 1987) (per curiam).
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_____ In assessing the credibility of a claimant's subjective
complaints, 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. Sec'v of Health & Human Servs.,
869 F.2d
622, 623 (1st Cir. 1989) (per curiam). When making a credibility
determination, the ALJ must also make specific findings as to the
relevant evidence she considered in deciding whether to believe a
claimant's subjective complaints. Da Rosa,
803 F.2d at 26.
2. The ALJ's Assessment of Ranfos' Subjective
Allegations
The ALJ's analysis of Ranfos' subjective allegations of pain
is supported by substantial evidence in the record. Ranfos
complained at her hearing that she suffers from a great deal of
pain, needs to change positions frequently, and likes to lean
against a wall to support herself when standing. Tr. at 51, 58.
The ALJ found Ranfos' statements credible to a large extent. Tr.
at 35. For instance, she found that, as a result of her pain,
Ranfos could not "lift and carry more than ten pounds," or "sit
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for prolonged periods without the option to stand as needed for
comfort." Tr. at 35. Furthermore, based in part upon the
testimony given by Ranfos at the hearing, the ALJ found Ranfos to
have a more limited RFC than was suggested in the opinions of the
non-examining physicians. Tr. at 32. Thus, the ALJ largely
credited Ranfos' subjective allegations of pain.
Indeed, the ALJ rejected only Ranfos' claim that she needed
to lean against a wall for support. To support her conclusion on
this issue, the ALJ relied upon medical evidence and other
statements made by Ranfos. Tr. at 30. The ALJ wrote, "There is
no question that the claimant has significant restrictions, yet
preclusion of substantial gainful activity in a full-time
position is not supported by medical reports or the claimant's
written and oral reports." Tr. at 30. Statements made by Ranfos
that pain from prolonged sitting was relieved by standing, and
vice versa, as well as reports that treatments and medications
were helping to relieve her pain, caused the ALJ to reject
Ranfos' argument that she needed to lean against a wall to
relieve pain.
In sum, the ALJ considered, accepted, and accommodated
nearly all of Ranfos' subjective allegations of pain. Avery
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requires that an ALJ consider a complainant's subjective
testimony; it does not require that an ALJ rely upon subjective
testimony where it conflicts with medical evidence. See 797 F.2d
at 21. Because Ranfos' allegation regarding her need to support
herself against a wall conflicts with the medical evidence, the
ALJ did not err when she refused to credit it.
C. The ALJ's Burden at Step 5 of the Evaluation Process
Ranfos argues that the ALJ did not meet her burden of
demonstrating that Ranfos can perform other work. Ranfos bases
her argument on the fact that the hypothetical presented by the
ALJ to the VE was inadequate because it did not include all of
Ranfos' subjective allegations about her own limitations. As I
noted above, the ALJ properly evaluated Ranfos' subjective
complaints. Therefore, the ALJ presented a proper hypothetical
to the VE, and Ranfos' argument to the contrary lacks merit.
Finally, Ranfos argues that the ALJ erred in relying upon
the VE's testimony because some of the jobs that the VE suggested
Ranfos could perform are classified by the Dictionary of
Occupational Titles ("DOT") as light rather than sedentary. This
argument also fails. Some of the positions classified by the DOT
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as light do not involve duties that exceed those put forth in the
hypothetical. One of the jobs identified by Ranfos as light
rather than sedentary, an assembly worker, actually contains
several variations, with the DOT classifying some assembly
positions as sedentary. DOT 713.687-018, 732.684-062, 739.687-
066. Moreover, the DOT classifications represent the maximum
requirements for a position, rather than a range. Hall v.
Chater, 109 F.3d 1255, 1259 (8th Cir. 1997) (citing Jones v.
Chater,
72 F.3d 81, 82 (8th Cir. 1995)). The ALJ thus was not
bound by the DOT classifications, and properly found that there
are a significant number of jobs in the local and national
economy that Ranfos can perform.
IV. CONCLUSION
Because I have determined that the ALJ's denial of Ranfos'
application for benefits is supported by substantial evidence, I
affirm the Commissioner's decision. Accordingly, Ranfos' motion
to reverse (Doc. No. 6) is denied, and defendant's motion for an
order affirming the Decision of the Commissioner (Doc. No. 10) is
granted. The Clerk shall enter judgment accordingly and close
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the case.
SO ORDERED.
Paul Barbadoro
Chief Judge
January 24, 2002
cc: Raymond J. Kelly, Esq.
David L. Broderick, Esq.
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