ALJ also found that Pickering's allegation of leg pain from her phlebitis was not supported by the medical records and thus that there were no restrictions on her ability to sit, stand or walk as a result of her phlebitis. (R. 10, 11.) Pickering does not challenge any of these findings. (See generally Pickering Br. & Reply Br.) Pickering's focus here is on the restrictions caused by her asthma. On this issue, the ALJ found that Pickering's "additional restriction, the need to avoid major pulmonary irritants, would not significantly impact on her ability to do a full range of light work since most light jobs would not involve exposure to major pulmonary irritants." (R. 11.)
Social Security Ruling 83-14 sheds some light on whether this environmental restriction caused by asthma is to be considered significant. As an example of a nonexertional limitation that impacts on the size of the remaining occupational base within the light work category to such an extent as to deprive the claimant of a meaningful employment opportunity, the Ruling lists "a visual impairment which is not of Listing severity but causes the person to be a hazard to self and others." SSR 83-14, PPS-105, "Capability to Do Other Work: The Medical-Vocational Rules as a Framework for Evaluating a Combination of Exertional and Nonexertional Impairments" [hereafter, "SSR 83-14"], at 206. The Ruling notes that, in contrast, "environmental restrictions, such as the need to avoid exposure to feathers" are nonexertional restrictions that would "not significantly effect the potential unskilled light occupational base." Id. at 207.
Social Security Regulation 83-14 further provides that "where nonexertional limitations or restrictions within the light work category are between the examples above, a decision maker will often require the assistance of a VS [vocational specialist]." Id. On the other hand, "the services of a vocational specialist are necessary only 'where the adjudicator does not have a clear understanding of the effects of additional limitations on the job base'." Carter v. Shalala, 1995 U.S. Dist. LEXIS 12253, *36, 1995 WL 505509 at *11 (emphasis added).
In Carter v. Shalala, the Court upheld the Commissioner's determination that the claimant was not disabled. Although no vocational specialist had evaluated claimant's condition, the Court held that the Commissioner's decision that plaintiff's asthmatic condition did not significantly diminish her capacity to perform the full range of sedentary work was still supported by substantial evidence. 1995 U.S. Dist. LEXIS 12253, 1995 WL 505509 at *11. Much like the instant case, the claimant there alleged a nonexertional limitation due to asthma that she claimed removed her case from Grid applicability. The Carter Court pointed to the following evidence as supporting the finding of no disability: claimant's asthma was controlled with medication; claimant was only hospitalized or seen in the emergency room on two occasions for asthma attacks at which time her lungs were found clear on examination; and there was no medical testimony that the asthma reduced her ability to perform basic work activities. Id. at *10.
Similarly, in the present case the ALJ's finding that Pickering's asthmatic condition did not significantly diminish her capacity to perform the full range of jobs within the light work category is supported by substantial evidence, even without the testimony of a vocational specialist. The record shows that Pickering received treatment for asthma at the HIP Center once a month (R. 31) and has had a steroid inhaler prescribed. (R. 345.) However, the record reveals only a few (R. 389) hospital visits for asthma, possibly due to the success of her treatment. On examination, Pickering exhibited no wheezes, rales, or rhonchi. (R. 213, 389.) Her repeat pulmonary functions were normal after bronchodilation. (R. 214, 390.) Significantly, the report from Dr. Pulver, a consultative examiner, expressly found that Pickering was under "no restrictions." (R. 390.) The record contains no medical evidence that contradicts this finding.
Pickering's main complaint in this action is that, in her view, the ALJ's determination is "internally inconsistent." (Pickering Br. at 6.) Pickering claims that "the ALJ's finding that plaintiff could not perform her past relevant light work, as a fast food worker, must lead to the determination that plaintiff lacks the functional capacity to perform a full range of light work." (Pickering Br. at 6; see also Pickering Reply Br. at 3.) Pickering claims that the necessity to avoid exposure to pulmonary irritants such as heat, humidity and fumes, unlike the avoidance of feathers, constitutes more than a negligible loss of work capacity such that the testimony of a vocational expert was necessary. (Pickering Reply Br. at 3-5.) As discussed above, the Court disagrees. The Social Security Ruling refers to avoidance of "environmental restrictions" and gives feathers as an example. SSR 83-14, at 207. The Court considers heat, humidity and fume avoidance to be a similar "environmental restriction" so as to fall within that Ruling. Thus, the ALJ's finding is not inconsistent, the environmental restriction was not substantial, and it was not necessary for the ALJ to have obtained a vocational expert's testimony.
The Court emphasizes that the ALJ could have eliminated any issue on this appeal had he called a vocational specialist to testify. That clearly would have been the preferable course. The Court, however, does not find it to have been required in this case. Substantial evidence supports the ALJ's determination that Pickering's non-exertional limitation caused by her asthma did not significantly diminish the range of employment available to her within the Grid's light work category. Thus, the ALJ's conclusion that Pickering is not disabled under the Social Security Act was supported by substantial evidence.
For the reasons set forth above, I recommend that the Court grant the Commissioner's motion for judgment on the pleadings and deny plaintiff Pickering's cross-motion.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 130 L. Ed. 2d 38, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Services, 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
Dated: New York, New York
September 26, 1996
Andrew J. Peck
United States Magistrate Judge