
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                [NOT FOR PUBLICATION]                                 ___________________          No. 94-1345                                             FLORENCE A. EDWARDS,                     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-
