Keating v. Secretary of Health and Human Services, 87-1506

• Decision Date: 31 March 1988
• Docket Number: No. 87-1506,87-1506
• Citation: 848 F.2d 271
• Parties: , Unempl.Ins.Rep. CCH 17994.5 Bruce W. KEATING, Sr., Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 271

848 F.2d 271

22 Soc.Sec.Rep.Ser. 79, Unempl.Ins.Rep. CCH 17994.5

Bruce W. KEATING, Sr., Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 87-1506.

United States Court of Appeals,

First Circuit.

Submitted Nov. 6, 1987.

Decided March 31, 1988.

Thomas R. McNaboe, Robert F. Montgomery, and Thompson, McNaboe, Ashley & Bull on brief for plaintiff, appellant.

Nancy B. Salafia, Asst. Regional Counsel, Dept. of Health and Human Services, Richard S. Cohen, U.S. Atty., and Paula D. Silsby, Asst. U.S. Atty., on brief for defendant, appellee.

Before COFFIN, BREYER and TORRUELLA, Circuit Judges.

PER CURIAM.

Bruce Keating appeals the order and judgment of the district court accepting the report of a United States Magistrate which recommended affirming the Secretary of Health and Human Services' decision that the appellant is not disabled from performing certain sedentary work, and that jobs compatible with the claimant's abilities exist in significant numbers in the economy.

I.

Keating was 43 years old when he filed his application for social security disability benefits in November, 1983. He had been a mechanic at a car dealership for over twenty years prior to August, 1982 when he stopped working due to a back injury suffered while attempting to lift a tire. After denial at the initial and reconsideration stage, a hearing was held in October, 1984, and the Administrative Law Judge (ALJ) issued a decision denying benefits in January, 1985. (T. 21-28). The Appeals Council, after considering additional reports from the claimant's treating physician, his psychologist and his vocational counsellor, approved the ALJ's decision in May, 1985. The claimant sought review, 42 U.S.C. Sec. 405(g), in the United States District Court, but, pursuant to the Secretary's unopposed motion, the case was remanded to the ALJ to consider the effect of the revised mental impairment criteria as required by the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, Sec. 5; 1985 U.S.Code Cong. & Ad.News (98 Stat.) 1801-02. In June, 1986, the claimant requested a supplemental hearing to give updated testimony regarding his condition and submitted a new report by his treating physician, and three reports by his psychologist.

The ALJ issued a second decision on July 17, 1986 which stated that only the claimant's mental condition was at issue on remand and that he would not consider the treating doctor's latest report. Based upon the three submissions from the claimant's psychologist, the ALJ decided that another hearing was unnecessary, and that the claimant's reactive depression, found earlier by the ALJ, had improved and resolved. Except for this revised finding, the ALJ adopted and incorporated his prior decision. (T. 223-229). That decision concluded that the claimant suffered from severe back pain status following his 1975 spinal surgery with episodic left leg pain and also from a mild reactive depression, but that he could perform a narrow range of sedentary work despite his limitations, and that a vocational expert had identified specific jobs which existed in significant numbers the economy which the claimant could perform. The ALJ, for the most part, credited the claimant's testimony regarding pain, only discrediting his asserted need to lie down every few hours because it was unsubstantiated by any medical evidence and contrary to the opinion of the testifying medical advisor. (T. 26). In his first decision in January, 1985, the ALJ found that the claimant's mild reactive depression would not affect his ability to communicate with the public. (T. 28). In the second decision in July, 1986, the ALJ based his conclusion that the mild reactive depression had resolved upon the fact that, in the intervening year or so, the claimant had been seeing his psychologist, Dr. Milardo, infrequently, and that the evidence showed that the claimant's mental condition caused virtually no functional restrictions. (T. 226-27).

The district court referred the case to a magistrate, who issued a Report and Recommendation Decision in March, 1987. The claimant filed objections, but the district court, after de novo review, accepted the magistrate's recommendations and affirmed the Secretary's decision.

II.

Before reaching the merits of Keating's appeal, we first must determine if the claimant waived his right to appellate review of certain issues, either because they were not raised before the magistrate, Borden v. Secretary of Health and Human Services, 836 F.2d 4, 6 (1st Cir.1987), citing Johnston v. Holiday Inns, Inc., 595 F.2d 890 (1st Cir.1979), or because they were not encompassed by the claimant's objections to the magistrate's report as required by 28 U.S.C. Sec. 636(b)(1)(C) and our procedural rule set out in Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). We address each in turn.

A.

First, we note that the appellant's brief contains arguments on a number of issues that were never raised before the magistrate, and thus were never before the district court. These issues are the right to a supplemental hearing on remand (Appellant's Brief at 9); the Secretary's failure to consider the combined impact of all the claimant's impairments pursuant to 42 U.S.C. Sec. 423(d)(2)(C), (id. at 8-10); whether the Secretary, on remand, ignored "new evidence" when he concluded that the claimant's mild reactive depression had resolved, (id. at 11); that the ALJ completely disregarded the opinions of other doctors and physical therapists who had treated the claimant, (id. at 14); that the ALJ disregarded the claimant's subjective testimony, (id. at 16); and that the ALJ's hypothetical question to the vocational expert was defective. (Id. at 20-21).

We said in Borden v. Secretary of Health and Human Services, 836 F.2d 4 (1st Cir.1986):

Parties must take before the magistrate "not only their 'best shot' but all of their shots" (citation omitted). This concept is premised on the same basis as the rule that an appellate court will not consider arguments not raised below except in the most compelling circumstances. See Johnston v. Holiday Inns, 595 F.2d 890, 894 (1st Cir.1979).

Id. at 6. We see no reason to depart from the rule. But even if we were to consider the six claimed errors, argued here for the first time, we would reach no different result.

First, we note that the claimant has not seriously challenged the finding of the ALJ, after remand, that his mild reactive depression had "resolved." (T. 228). Limited to one sentence in his brief, the appellant complains that the ALJ ignored the latest submissions of the claimant's psychologist, Dr. Milardo. However, the ALJ considered those reports in detail, (T. 225-28), and was entitled to take into account that none of them indicated any significant limitation on the claimant's ability to reason or to meet the mental demands of work, 20 C.F.R. Sec. 404.1513, and, at most, suggested that he felt inadequate, insecure and apprehensive about returning to work on a full-time basis. (T. 337). Based on his finding that the three additional psychologists' reports showed that the claimant's reactive depression had improved and resolved since the earlier decision, a finding which is substantially supported in the record (T. 144-47, 192, 322, 336, 337), the ALJ decided against holding another hearing, stating that "testimony from the claimant at a supplemental hearing alleging a worsening emotional state would be inconsistent with Dr. Milardo's reports...." (T. 226). Since a second evidentiary hearing was not specifically required by the remand order, (App. 253-54), see Rodriguez Pagan v. Secretary of Health and Human Services, 819 F.2d 1, 4-5 (1st Cir.1987), and because the ALJ adequately considered all the claimant's medical evidence regarding his mental condition, there was no abuse of discretion in the particular circumstances of this case.

Second, at the hearing and in his first decision, the ALJ commented upon the reports of various doctors and therapists who, in addition to treating physician Klein, had seen the claimant. (T. 23, 72-73). Their opinions were not "completely disregarded." Third, the ALJ did take into consideration, throughout the sequential evaluation process, the combined effect of the claimant's physical complaints, including pain. (T. 25, 26, 27, 28). Finally, the hypothetical posed by the ALJ to the testifying vocational expert, (T. 77), is supported by substantial medical evidence and clearly conveyed the parameters of the claimant's restrictions. See Arocho v. Secretary of Health and Human Services, 670 F.2d 374, 375-76 (1st Cir.1982); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir.1986).

B.

Regarding those issues which were brought to the magistrate's attention, Local Rule 12 of the District of Maine requires any social security plaintiff to file a statement itemizing the specific errors upon which reversal of the Secretary's decision is sought. Loc.R. 12(b)(1). Plaintiff's Statement of Specific Errors Requiring Reversal of Secretary's Decision, (App. 274-82), sets out four errors: 1) that the ALJ improperly relied upon the testimony of a medical advisor, Dr. Barrett, who rendered an opinion that claimant's physical condition did not meet the criteria of Sec. 1.05C of the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1; 2) that the ALJ ignored the opinion of the claimant's treating physician, Dr. Klein, that the Sec. 1.05 C criteria were met; 3) that the Secretary had not met his burden of proof to show the existence of alternative work that the claimant could perform, and 4) that the ALJ erroneously applied Social Security Ruling 83-19 in rejecting the opinion of a non-testifying medical advisor, Dr. Kunkle, that the claimant's condition was medically equivalent to the criteria of Sec. 1.05 C. (T. 202-208).

The magistrate considered and rejected all four arguments. (App....