-
USCA1 Opinion
March 28, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-2160
KENNETH GENTLE,
Plaintiff, Appellant,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH & HUMAN SERVICES,
Defendant, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Cyr and Stahl, Circuit Judges.
______________
___________________
Sandra L. Smales, on brief for appellant.
________________
Donald K. Stern, United States Attorney, Charlene A.
_________________ ____________
Stawicki, Assistant United States Attorney, and Jessie M. Klyce,
________ _______________
Assistant Regional Counsel, Region I, Department of Health and
Human Services, on brief for appellee.
__________________
__________________
Per Curiam. Appellant/claimant Kenneth Gentle appeals
__________
the affirmance by the district court of the denial by the
Secretary of Health and Human Service of his application for
disability insurance benefits and supplemental security
income. Gentle, who has a long history of drug and substance
abuse, sustained a work related injury to his lower back in
1989. After the Social Security Administration denied his
request for benefits, a hearing was conducted before an
Administrative Law Judge [ALJ] in 1991. The ALJ determined
that medical evidence established that claimant had "severe
chronic low back pain, a history of substance abuse, and a
borderline personality disorder." Applying the sequential
analysis set forth in 20 C.F.R. 404.1520, see also
___ ____
Goodermote v. Secretary of Health and Human Services, 690
__________ _________________________________________
F.2d 5, 6-7 (1st Cir. 1982), the ALJ found that these
conditions constituted a severe impairment but were not
deemed to be presumptively disabling since they did not meet
or equal any impairment found in the Listings of Impairments,
20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ also
determined that, in light of these impairments, Gentle could
not perform his past work. However, the ALJ did find that
Gentle retained the "residual functional capacity for the
full range of sedentary work . . . reduced [only] by a need
to alternate between sitting or standing." A vocational
expert [VE] identified various skilled and semi-skilled jobs
-2-
which could be performed sitting or standing at will. Based
on Gentle's exertional capacity for sedentary work, as well
as his age, education and work experience, "in conjunction
with claimant's non-exertional impairments," the ALJ
concluded that Gentle was "not disabled" and could perform
the semi-skilled and unskilled jobs the VE had identified.
We review this decision only to determine whether it is
supported by substantial evidence in the record as a whole.
42 U.S.C. 405(g); Irlanda Ortiz v. Secretary of Health &
______________ ______________________
Human Services, 955 F.2d 765, 769 (1st Cir. 1991).
______________
Gentle argues first that the ALJ erred in relying on an
incorrect definition of sedentary work in her determination
that he was not disabled. According to Gentle, sedentary
work requires the ability to sit for long period of times,
whereas the ALJ found that Gentle was required to alternate
between sitting and standing. Gentle relies in particular on
Social Security Ruling [SSR] 83-12, which states, in part,
that an individual who must alternate between sitting and
standing is "not functionally capable of doing . . . the
prolonged sitting contemplated in the definition of sedentary
work." See also Rosado v. Secretary of Health and Human
___ ____ ______ _______________________________
Services, 807 F.2d 292, 293 (1st Cir. 1986) (quoting Shiner
________ ______
v. Heckler, 608 F. Supp. 481, 484 (D. Mass. 1985) (quoting
_______
Benko v. Schweiker, 551 F. Supp. 698, 704 (D. N.H. 1982)))
_____ _________
("'a determination that a claimant is able to perform
-3-
sedentary work "must be predicated upon a finding that the
claimant can sit most of the day, with occasional
interruptions of short duration"'"). He further notes that
the ALJ found him capable of performing semi-skilled and
unskilled jobs. Yet, according to SSR 83-12, "[u]nskilled
jobs are particularly structured so that a person cannot
ordinarily sit or stand at will."
Gentle's argument is misdirected. The ALJ did not find
that Gentle could do a full range of sedentary work. Rather,
she found that Gentle was not disabled because he could do
the jobs the VE had identified. Moreover, in making this
finding, the ALJ followed the directives of SSR 83-12. In a
situation like Gentle's where a claimant needs to alternate
positions, SSR 83-12 requires the ALJ to determine, through
the evidence of a VE, whether sufficient jobs within a
claimant's limited range of sedentary work are available.
See SSR 83-12 ("In cases of unusual limitation of ability to
___
sit or stand, a [VE] should be consulted to clarify the
implications for the occupational base."). Similarly, the
reference in SSR 83-12 to unskilled jobs' not "ordinarily"
allowing for such alteration seems to invite VE testimony as
to specific jobs the claimant could perform. In the instant
case, the ALJ specifically asked the VE to list "unskilled
jobs where you could sit or stand at will." In response, the
VE listed several types of jobs that could be performed by a
-4-
person with claimant's need to alternate between sitting and
standing. The procedure outlined in SSR 83-12 was followed.
We find no error in the ALJ's determination that Gentle's
exertional impairments did not prevent him from performing
sedentary jobs allowing for alteration of position.1
Gentle's second contention is that the ALJ erred in
implicitly finding that his nonexertional impairments--his
personality disorder and drug abuse--did not significantly
limit the range of sedentary work which he could perform.
While the issue is close, we find no error in the ALJ's
determination.
Unskilled work of the sort Gentle was found capable of
performing requires, inter alia, the "ability to cope with
_____ ____
the demands of any work environment." Irlanda Ortiz, 955
______________
F.2d at 770; see also SSR 85-15 (listing mental requirements
___ ____
for unskilled work). Medical evidence was presented which
indicates that Gentle's potential occupational base was at
least marginally eroded by impairments affecting his ability
in this area. First, a report by Dr. Daniels, the
Secretary's consultative, non-examining psychiatrist, found
that Gentle was moderately limited in his ability (1) to
interact appropriately with the general public; (2) to accept
instructions and respond appropriately to criticism from
____________________
1. Our decision in Rosado is distinguishable in that in
______
Rosado there was no evidence from a vocational expert as to
______
the range of the work the claimant could perform.
-5-
supervisors; and (3) to get along with coworkers or peers
without distracting them or exhibiting behavior extremes.
Dr. Daniels also found that Gentle had a "moderate" degree of
difficulty in maintaining social functioning and a "history
of personality problems with difficulty relating to others
esp[ecially] authority figures and esp[ecially] under
stressful circumstances." Similarly Dr. Shea, Gentle's
treating clinical psychologist, found that he had "a long
history of difficulty in interpersonal relationships that
have been characterized by defensiveness, argumentativeness,
demandingness and combativeness especially while substance
abusing." Both Dr. Daniels and Dr. Shea noted that substance
abuse had been an ongoing problem for Gentle.
This evidence of moderate limitations in coping with
others arguably would have supported a conclusion that
Gentle's mental impairments were significant and affected his
capacity for the jobs which he was otherwise capable of
performing. Nevertheless, other evidence supports the ALJ's
determination that these impairments did not significantly
reduce Gentle's residual capacity for unskilled work. In
such circumstances, the Secretary's decision must be upheld.
Irlanda Ortiz, 955 F.2d at 770.
_____________
Dr. Daniels found that although Gentle had moderate
difficulty in maintaining social functioning, he had never
had any episodes of deterioration or decompensation in a work
-6-
or work-like setting. More importantly, Dr. Shea, with whom
Gentle had been undergoing therapy for over five years, found
that Gentle's difficulties in interpersonal relationships and
his problems with substance abuse had improved with
treatment. Even though some of the problems had begun to
reemerge after Gentle's injury in 1989, Dr. Shea anticipated
that "with adequate program and vocational rehabilitation
including job placement . . . [Gentle] would be able to
_________________________
function both in vocational and social roles more adequately
than at present." (Emphasis added). In Dr. Shea's opinion,
should Gentle not regain "some vocational stability including
full time employment," he had a high risk of suffering
further deterioration in his interpersonal difficulties and
of returning to a pattern of substance abuse. In other
words, Gentle's own treating psychologist not only found him
capable of returning to employment but even found that a
failure to return to work would likely be psychologically
harmful to him. In light of this evidence, the Secretary did
not err in determining that Gentle's nonexertional mental
impairments did not preclude him from being able to perform
the jobs the VE had identified. See id. (even though
___ __
evidence showed claimant was moderately limited in ability to
cope with work environment, no error in finding claimant able
to perform full range of sedentary work since other evidence
-7-
supported conclusion that claimant's capacity for full range
of such work was not significantly reduced).
Affirmed.
________
-8-
Document Info
Docket Number： 93-2160
Filed Date： 3/29/1994
Precedential Status： Precedential
Modified Date： 9/21/2015