Colby v. SSA CV-96-2 3 8-M 05/09/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Eleanor Colby, Plaintiff
v. Civil No. 96-238-M
Shirley Chafer, Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to section 20 5 (g) of the Social Security Act, 42
U.S.C. § 405(g), Eleanor Colby seeks review of a final decision
by the Commissioner of the Social Security Administration denying
her claim for benefits. Before the court is plaintiff's motion
to reverse the decision of the Commissioner. The Commissioner
objects, and moves to affirm that order. For the reasons set
forth below, plaintiff's motion is denied.
Administrative Proceedings
Plaintiff filed an application for disability insurance
benefits on April 28, 1993, alleging an inability to maintain
gainful employment since May 10, 1988, due to fibrocytis
fibromyalgia, which causes chronic muscle pain and spasms. Her
claim was denied initially and again on reconsideration.
Subseguently, she reguested a hearing, which was held on February 27, 1995, before Administrative Law Judge Frederick Harap.
Plaintiff appeared in person and testified. She was represented
by Arthur Kaufman, a lay representative who is also a vocational
expert.
In a decision issued on March 31, 1995, the ALJ denied
plaintiff's claim at step four of the relevant sequential
evaluation process. See 20 C.F.R. § 404.1520(e). The ALJ
concluded that plaintiff had "sufficient residual functional
capacity for a substantially full range of light work" (T.21),
and, therefore, was able to perform her past relevant work as an
electronic skills instructor. Moreover, he concluded that even
if plaintiff were unable to perform the tasks associated with
that occupation, she retained, at a minimum, the residual
functional capacity to perform sedentary work. Accordingly, the
ALJ held that plaintiff was not disabled within the meaning of
the A c t .
Facts
I. Medical Evidence.
Eleanor Colby, is a 47 year-old resident of Danbury, New
Hampshire. While employed as an electronics assembler/computer
skills instructor in October of 1987, she began to develop back
2 and neck pain (T.100). She was treated initially by Dr. Carey
Rodd in Salisbury, New Hampshire, from December 1987 through
October 1992 (T.82). He prescribed physical therapy and
medication, and diagnosed her condition as myofascial pain
syndrome (T.82, 219-224).
For two weeks in late April of 1988, plaintiff attempted to
work on a part-time basis (T.81). Her efforts were unsuccessful
and she has not been employed since May 10, 1988. From July of
1988 through August of 1990, she was treated by Dr. Seddon
Savage, a pain specialist at Dartmouth Hitchcock Hospital (T.158-
67). In her initial evaluation of plaintiff, dated July 27,
1988, Dr. Savage noted that plaintiff had a full range of motion
in her lumbar spine and neck, but experienced discomfort in her
back muscles when pulling (T.159). Muscle tenderness was noted
in her shoulder with a large trigger point noted in her upper
back (Id.). Other tests were within normal ranges, including
reflexes, straight leg raising, and motor strength.
Dr. Savage opined that plaintiff demonstrated a "secondary
myofascial pain syndrome due to overuse associated with her
assembly work" (Id.). She felt plaintiff would be unlikely to
return to her past work in the near future. Although Dr. Savage
3 believed plaintiff could return to a managerial position with no
assembly work, she noted that plaintiff's long drive to work
might make a successful return difficult (Id.). She recommended
injections of pain medications at the trigger points1 in
plaintiff's left shoulder (1.161) . In a June 5, 1989 note. Dr.
Savage observed that plaintiff was released for work with
restrictions in January 1989 and had sought appropriate work, but
was unsuccessful (T.162). Plaintiff's fibromyalgia had been
asymptomatic for almost two months, but she experienced a flare
up after sitting in the cold at her daughter's track meet (Id.).
In a letter to plaintiff's compensation attorney. Dr. Savage
noted that she had been treating plaintiff for persistent work-
related shoulder and left arm pain, which she diagnosed as
overuse fibromyocytis due to repetitive muscular contraction
(T.163). Muscle relaxants such as flexeril were needed for pain
flare-ups, but were not necessary if plaintiff paced her
activities and did not overuse the affected muscles (Id.). Dr.
Savage noted that plaintiff had been ready to return to work for
several months, but had experienced difficulty in finding
appropriate employment (T.163-64). Dr. Savage also noted that
"the only limitations which have been imposed on her are that her
1 Trigger point - A specific point on the body at which touch or pressure will give rise to pain. P. 806, Stedman's Concise Medical Dictionary (2d Ed. (Williams & Wilkins, 1995). 4 work not involve repetitive or heavy use of her arms,
particularly the left arm, and that her work be done within
thirty-five miles of home" (Id.). Dr. Savage cautioned, however,
that she could not predict if plaintiff's condition would be
permanent or if it would gradually resolve in a few years. She
felt it more likely that Ms. Colby would have a "persistent
tendency" for further muscle spasms and pain (T.164) .
In a disability report prepared for plaintiff's insurance
carrier. Dr. Savage diagnosed plaintiff's condition as "overuse
fibrocytis/ myofascial dysfunction." (T.165). Her treatment for
this ongoing problem included medication, supervised physical
therapy, and trigger point injections (Id.). Dr. Savage felt
plaintiff could not return to her past job because the commute to
work was too great. However, Dr. Savage stated that other
lighter, more suitable work with less driving may be appropriate
(T.166) .
On December 12, 1989, Susan A. Emerson, an occupational
therapist, performed an upper extremity work capacity evaluation
on plaintiff. This evaluation revealed no atrophy, edema, or
deformities. Ms. Emerson reported that plaintiff had a full
active range of motion in her shoulder, elbow, forearm, wrist and
5 fingers (T.226). Trigger points for pain were noted in the
paracervical muscles, scapula, and trapezium (T.227). Plaintiff's
ability to reach was normal (T.228), but her ability to lift was
limited to 10 pounds repetitively with a maximum lifting/carrying
capacity of 15 pounds (Id.). While her range of motion was
normal, her grip strength in both hands was below normal (T.229).
Ms. Emerson noted, however, that plaintiff's performance on other
strength tests suggested that she "may not have exerted maximal
effort during grip testing" (Id.). Ms. Emerson concluded that
plaintiff had a light to moderate work capacity, but with
limitations on constant forward head movement. Additionally, it
was recommended that she be provided with work which permitted
some variety in head posturing and did not reguire repetitive
reaching at or above shoulder height (Id.). Extensive driving
was limited and she was told to do no lifting more than 20 pounds
using both hands or 10 pounds with either hand (T.229-30).
Subseguently, a permanent impairment evaluation was done on
June 27, 1990 (T.231) by plaintiff's workers' compensation
carrier. Its doctor, Kenneth O'Neil, M.D., felt that plaintiff
had reached a medical endpoint and noted that she had ongoing
6 problems with tenosynovitis2 and myofascial3 pain. He concluded
that she had minor residual permanent impairment of 3% in her
dominant right upper extremities and 2% in her non-dominant left
upper extremities, based on continued intermittent trigger points
(T.236). Ultimately, however, he concluded that she did not have
"any significant permanent impairment" (T.234).
On January 29, 1993, the plaintiff was examined by a
consultative neurologist. Dr. Lawrence Jenkyn, at the reguest of
the Disability Determination Services ("DDS") (T.250-51).
Dr. Jenkyn found that plaintiff had point tenderness over both
trapezium muscle groups, however the rest of her neurological
exam was normal (T.251). Dr. Jenkyn also noted that there was no
way to document the nature of plaintiff's pain other than by
historical reports. Further, he observed that plaintiff had not
undergone CT, MRI, NCS (nerve conduction study), or EMG
(electromyography) testing. Dr. Jenkyn speculated that such
tests were not performed because plaintiff's doctors had
2 Tenosynovitis - The inflammation of a tendon and its enveloping sheath. Stedman's Concise Medical Dictionary (2d Ed. (Williams & Wilkins, 1995).
3 Myofascial - Relating to the fascia (a sheet of fibrous tissue that envelopes the body beneath the skin and encloses muscles and muscle group. P. 370, Stedman), surrounding and separating the muscle tissue. Id. at 664.
7 predicted that the results of those tests would be normal
(T.251).
Plaintiff was also seen and treated by Dr. Hoke Shirley, a
rheumatologist in Concord, New Hampshire, from October 27, 1993,
through her date last insured. In his initial evaluation.
Dr. Shirley noted that despite a full range of motion in all
joints of the upper and lower extremities, plaintiff had multiple
tender points in the head, neck, and back muscles. He also noted
plaintiff's pain in the bicep region, shoulder blade area,
buttocks, and trochanter4 region (T.266). Plaintiff also
reported some bilateral tenderness in her calves. However, other
diagnostic orthopedic tests, such as Flip and straight leg
raising (SLR), were negative (Id.). Additionally, plaintiff's
neurologic exam was non-focal (T.266).
Applying the American College of Rheumatology criteria and
based on his examination and plaintiff's subjective complaints of
pain and fatigue. Dr. Shirley diagnosed plaintiff as suffering
4 Trochanter - A bony prominence developed from independent osseous centers near the upper extremity of the femur. Stedman's Concise Medical Dictionary p. 1054 (2d Ed. (Williams & Wilkins, 1995). from a fibromyalgia5 (T.266). He also noted that "severe bouts
of muscle spasm and pain" accompanied certain physical
activities, which prevented plaintiff from utilizing certain home
physical therapy treatment. Increased dosages of amitriptyline6
had provided some temporary pain-free sleep and fewer spasms, but
did not resolve her pain problems (T.265).
Dr. Shirley's follow-up treatment notes on December 8, 1993,
reference persistent tender points. However, Dr. Shirley
observed that plaintiff had essentially a full range of motion
and a non-focal neurological exam (T.267) and noted that
"[o]verall, [she is] doing fairly well with several
exacerbations" (T.268). With regard to plaintiff's medications
and therapy. Dr. Shirley noted that "she just needs to continue
the present medication dosages including 50 mg. of Amitriptyline
at bedtime, 10 mg. of Flexeril [a muscle relaxant], stress
reduction technigues, coping mechanisms, lumbar and cervical
dysfunction exercises, and aerobic activity" (Id.) .
5 Fibromyalgia - A condition where widespread pain, decreased pain threshold to palpation, and other characteristic symptoms are present with multiple trigger points. The syndrome has been characterized as a disorder of pain modulation. (See T.288, 294) .
6 Amitriptyline - An anti-depressant medication freguently used by physicians to treat fibromyalgia and sleep disturbance. In assessing plaintiff's physical limitations. Dr. Shirley
noted that her back problem continued to persist for over 3
months despite prescribed therapy and that her pain was caused by
trigger points which restricted her to lifting 10 pounds
freguently and 20 pounds occasionally (T.271). Additionally, he
found that plaintiff could stand and walk for one hour at a time,
and up to a total of two hours during a working day. He also
opined that plaintiff could sit for two hours at a time, and up
to six hours during a work day. He concluded that plaintiff
could alternate between sitting and standing for a total of eight
hours during the day. Dr. Shirley opined that plaintiff was
restricted from pushing and pulling arm controls as well
sguatting, crawling, or climbing (T.272). Although plaintiff was
able to reach and bend, she had severe restrictions with regard
to working at heights and around moving machinery, as well as
being exposed to marked humidity, temperature changes, dust or
fumes. Dr. Shirley believed plaintiff's complaints of fatigue
and pain were credible and attributed them to fibromyalgia.
II. Hearing Testimony.
Plaintiff testified that she had almost 8 years experience
as an assembler and more recently as an instructor in cable
assembly work for Computer Vision. Because of constant
10 repetitive reaching and fabricating, she gradually developed pain
in her shoulders which caused tingling in her shoulders and
ultimately lead to spasms, which progressed to daily events
(T.46). To properly relieve this daily pain while she worked,
she reguired pain medication and rest (T.47). The tingling pain,
if not treated, progressed to a hardness in her shoulder that
lead to muscle spasms. She said that the only way to reduce the
pain and the spasms was for her to ice them or lay in a hot tub
(Id.). Plaintiff testified that if a tingling sensation was left
untreated, it would sometimes become a burning sensation like
being stabbed with a knife (T.48). The level of her discomfort
depended upon the nature of her activity and the freguency at
which she could rest her arms and shoulders. She estimated that
she had yearly flare-ups of her worst symptoms which would then
last from one to three months (T.49). During those periods, she
said that she could do very little activity and almost any
exertion could cause instantaneous pain (Id.) . She described
disturbed sleep patterns, flu-like symptoms, and muscle aches
that would persist for days despite her daily use of sleep
medications and muscle relaxants (I.269). She testified that
since the onset of her fibromyalgia, she drives very little. She
did, however, concede that she is able to drive to the store and
11 the post office on a daily basis and go grocery shopping once a
week (T .51) .
She recounted for the ALJ the various treatment regimens she
has undergone since 1987, including her trigger point injections
of lidocaine and physical therapy from December 1987 through June
21, 1989 (T.109-157). Finally, she noted that her daily
activities are now restricted and she is unable to shovel snow,
do yard work or gardening, or take out the rubbish (T.54) . She
reported that any prolonged sitting or use of her arms triggers
spasms that force her to lie down and ice the affected areas.
Due to the unpredictable nature and intensity of her symptoms,
she said that she is afraid to go far from her home (T.55).
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Secretary, with or without remanding the cause for a rehearing."
Factual findings of the Secretary are conclusive if supported by
substantial evidence. 42 U.S.C. §§ 405(g), 1383(c) (3); Irlanda
12 Ortiz v. Secretary of Health and Human Services, 955 F.2d765,
769 (1st Cir. 1991).7
In making those factual findings, the Commissioner
(formerly, the "Secretary") must weigh and resolve conflictsin
the evidence. Burgos Lopez v. Secretary of Health and Human
Services, 747 F.2d 37, 40 (1st Cir. 1984) (citing Sitar v.
Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It is "the
responsibility of the Secretary to determine issues of
credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
Secretary, not the courts." Ortiz, 955 F.2d at 769. And, the
court will give deference to the ALJ's credibility
determinations, particularly where those determinations are
supported by specific findings. Frustaalia v. Secretary of
Health and Human Services, 829 F.2d 192, 195 (1st Cir. 1987)
(citing Da Rosa v. Secretary of Health and Human Services, 803
F.2d 24, 26 (1st Cir. 1986)).
7 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n., 383 U.S. 607, 620 (1966).
13 A person seeking Social Security disability benefits is
disabled under the Act if he or she is unable "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 has lasted or can be expected to last for
continuous period of not less than 12 months." 42 U.S.C.
§ 416(1)(1)(A). The Act places a heavy initial burden on the
plaintiff to establish the existence of a disabling impairment.
Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987); Santiago v.
Secretary of Health and Human Services, 944 F.2d 1, 5 (1st Cir.
1991) . To satisfy that burden, the plaintiff must prove that he
impairment prevents her from performing her former type of work.
Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v. Secretary of Health and Human Services, 690 F.2d 5
7 (1st Cir. 1982)). Nevertheless, the plaintiff is not reguired
to establish a doubt-free claim; the initial burden is satisfied
by the usual civil standard -- a "preponderance of the evidence.
See Paone v. Schweiker, 530 F. Supp. 808, 810-11 (S.D. Miss.
1982). In assessing a disability claim, the Secretary considers
objective and subjective factors, including: (1) objective
medical facts; (2) the plaintiff's subjective claims of pain and
disability as supported by the testimony of the plaintiff or
other witnesses; and (3) the plaintiff's educational background. age, and work experience. See, e.g., Avery v. Secretary of
Health and Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote, 690 F.2d at 6.
Once the plaintiff has shown an inability to perform her
previous work, the burden shifts to the Secretary to show that
there are other jobs in the national economy that she can
perform. Vazquez v. Secretary of Health and Human Services, 683
F.2d 1, 2 (1st Cir. 1982). If the Secretary shows the existence
of other jobs which the plaintiff can perform, then the overall
burden remains with the plaintiff. Hernandez v. Weinberger, 493
F.2d 1120, 1123 (1st Cir. 1974); Benko v. Schweiker, 551 F. Supp.
698, 701 (D.N.H. 1982) .
When determining whether a plaintiff is disabled, the ALJ is
reguired to make the following five inguiries:
(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and, if so, (5) whether the impairment prevents the claimant from doing any other work.
15 20 C.F.R. § 404.1520. The mere existence of a medical impairment
is, however, insufficient to entitle a plaintiff to benefits.
Ultimately, a plaintiff is disabled under the Act only if her:
physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .
42 U.S.C. § 423(d) (2) (A) .
Discussion
No one appears to doubt that plaintiff is impaired and
suffers pain. The relevant inguiry is, however, whether she is
disabled within the meaning of the Act. And, on that point, the
medical evidence supportive of plaintiff's position is, at best,
minimal. Importantly, none of her treating or examining
physicians opined that she is permanently disabled. In fact, one
of her examining physicians said that he did not believe that
plaintiff had "any significant impairment" (T.234) and estimated
that her extremity impairment was only "3% for her dominant right
upper extremity and 2% impairment for her non-dominant left upper
extremity" (T.236). Of the remaining physicians who treated or
examined plaintiff, those who expressed an opinion (with the
exception of Dr. Shirley) stated that: (1) she was only
16 restricted from heavy use of her arms, including lifting more
than 20 pounds with both arms and more than 10 pounds with one
arm; (2) she should avoid repetitive reaching at or above
shoulder level; (3) she should not engage in any crawling,
sguatting, or climbing; and (4) she should limit the distances
which she travels in her car.
In addition to the physicians and occupational therapists
who treated and/or examined plaintiff, two non-examining.
Disability Determination Services physicians reviewed plaintiff's
entire medical record. Each concluded that she was not totally
disabled (T.62-69). On July 12, 1993, Dr. Homer Lawrence
concluded that plaintiff's condition caused her to suffer from no
exertional limitations. He also concluded that, other than
plaintiff's subjective complaints of pain, there was no medical
evidence which would support the conclusion that she is disabled
(T. 69). In September of 1993, Dr. Craig Campbell reviewed
plaintiff's medical records and affirmed Dr. Lawrence's
conclusions.
Nevertheless, plaintiff disputes the ALJ's conclusion that
she is not disabled and claims that the ALJ erred when he failed
to give controlling weight to the medical opinion of Dr. Shirley,
17 who reported that plaintiff had some exertional limitations
(T.272) and experienced pain that was "frequently debilitating"
(T.273). As plaintiff correctly notes, generally, the ALJ must
afford more weight to the medical opinions of a claimant's
treating physicians because those sources are:
likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the plaintiff's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(d)(2). Of course, the ALJ may decide not to
give controlling weight to the opinions of a plaintiff's treating
physicians. However, if the ALJ does not give those opinions
controlling weight, he or she must "always give good reasons in
[the] notice of determination or decision for the weight [the ALJ
gave] to [the claimant's] treating source's opinion." Id.
Even assuming that Dr. Shirley may properly be viewed as
plaintiff's treating physician (a point which the Commissioner
disputes, citing 20 C.F.R. § 404.1527(d)(2)(i) and alleging that
his treatment of plaintiff lacked the requisite "longitudinal
relationship"). Dr. Shirley's opinions fail to support
plaintiff's claim that she is disabled within the meaning of the
18 Act. First, Dr. Shirley never opined that plaintiff was totally
disabled. Instead, he noted that plaintiff had some functional
limitations which might restrict the nature of work which she
might successfully perform (T.271-73). Second, Dr. Shirley
concluded that plaintiff could, among other things: (1) lift 20
pounds at one time; (2) lift 10 pounds freguently; (3) remain on
her feet for at least an hour at a time and for a total of 2
hours during a work day; (4) remain seated for at least an hour
at a time and for a total of 6 hours during a work day; (5)
alternate between sitting and standing for 8 hours a day without
the need to lie down; (6) drive with mild limitations regarding
distances traveled and duration in the car; (7) use her hands for
simple grasping and fine manipulation; and (8) push and pull leg
and foot controls.
Even if the ALJ had accepted all of Dr. Shirley's opinions
(which he plainly was not reguired to do), it is unclear whether
he would have changed his ultimate conclusion that plaintiff is
not disabled within the meaning of the Act; the environmental and
exertional limitations which Dr. Shirley suggested should be
imposed upon plaintiff are not inconsistent with a conclusion
that she is capable of performing light or, at a minimum,
sedentary work. Nor are the exertional limitations suggested by
19 Dr. Shirley inconsistent with the ALJ's conclusion that plaintiff
was capable of performing her prior job as a skills instructor.8
Nevertheless, to the extent the ALJ actually discounted some
of Dr. Shirley's opinions, he properly articulated his basis for
doing so and adeguately supported his conclusion that plaintiff
is capable of performing a substantially full range of light work
with limitations on repetitive overhead reaching (T.17). In
reaching that determination, the ALJ specifically noted:
[T]he undersigned is mindful of the report by Dr. Shirley, who indicates that the claimant is restricted to two hours of standing and walking, and additional postural and environmental restrictions. Under the regulations at 20 C.F.R. 404.1527, a treating source's opinion regarding the disability will be given controlling weight if that opinion is supported by objective medical findings and is not inconsistent with
8 Plaintiff claims that her job classification, as defined in the Dictionary of Occupational Titles ("DOT"), is "Instructor, Vocational Training," DOT classification number 097.221-010. However, nothing contained in the DOT description of that position or in the related description contained in the Guide for Occupational Exploration ("GOE"), suggests that plaintiff's exertional limitations preclude her from returning to that occupation. The GOE provides that a vocational training instructor typically engages in freguent reaching, handling, and fingering. However, Dr. Shirley opined that plaintiff was, among other things, able to use her hands for simple grasping and fine manipulation. Although Dr. O'Neil recommended that plaintiff "avoid repetitive reaching to and above shoulder height" (T.229), nothing in the DOT or GOE suggests that a vocational training instructor typically engages in such activity nor is there any evidence in the record which indicates that plaintiff's former job actually reguired repetitive overhead reaching.
20 the other evidence of record. In the present case, however. Dr. Shirley's determination is based solely on clinical evaluation and the claimant's history of subjective complaints. As such, the undersigned finds Dr. Shirley's conclusion somewhat speculative in nature, and therefore less persuasive (T.17).
Accordingly, the court concludes that the ALJ adeguately
explained his decision to afford Dr. Shirley's opinions the
weight which he gave them. See 20 C.F.R. § 404.1527(d)(2) (the
ALJ must "give good reasons in [the] notice of determination or
decision for the weight [he gave] to [the claimant's] treating
source's opinions."); Arroyo v. Secretary of Health and Human
Services, 932 F.2d 82, 89 (1st Cir. 1991) (the ALJ is "not
reguired to accept the conclusion of plaintiff's treating
physicians on the ultimate issue of disability.").
Ultimately, the only substantive issue presented with regard
to Dr. Shirley's medical opinions is whether the ALJ was reguired
to find that plaintiff was disabled based upon Dr. Shirley's
statement that plaintiff's pain was "freguently debilitating."
For the reasons set forth above, the court rules that the ALJ was
not reguired to do so and properly articulated his reasons for
discounting, to some degree. Dr. Shirley's opinion. Whether the
court would have ruled differently if presented with this
evidence de novo, is not relevant. The court's inguiry is
21 limited to, among other things, a determination of whether there
is substantial evidence in the record to support the ALJ's
conclusion that plaintiff was not disabled within the meaning of
the Act. Here, the record plainly contains such substantial
evidence.
The court also concludes that the ALJ adeguately considered
plaintiff's subjective complaints of pain and properly explained
his reasons for finding that they were not entirely credible.
When a claimant complains that pain or other subjective symptoms
are a significant factor limiting his or her ability to work, and
those complaints are not fully supported by medical evidence
contained in the record, the ALJ must consider additional
evidence, such as the claimant's prior work record; daily
activities; location, duration, freguency, and intensity of pain;
precipitating and aggravating factors; type, dosage,
effectiveness, and side effects of any medication taken to
alleviate pain or other symptoms; treatment, other than
medication, received for relief of pain or other symptoms; any
measures used, past or present, to relieve pain or other
symptoms; and other factors concerning functional limitations and
restrictions due to pain. 20 C.F.R. § 404.1529(c)(3); Avery v.
Secretary of Health and Human Services, 797 F.2d 19, 23 (1st Cir.
22 1986). The ALJ need not, however, take a plaintiff's subjective
complaints at face value. See Bianchi v. Secretary of Health and
Human Services, 764 F.2d 44, 45 (1st Cir. 1985).
Here, the ALJ noted that, among other things, plaintiff is
able to perform household chores, including dusting, washing
dishes and laundry, vacuuming, cooking, and shopping. He also
observed that plaintiff was able to serve as the treasurer of the
local planning board. Additionally, the ALJ considered
plaintiff's use of Amitriptyline and Flexeril on an "as needed"
basis, her positive response to various treatment regimens, and
her ability to freguently predict and avoid flare-ups in her
condition simply by controlling her home environment and
modifying her activities. Plaintiff's ability to perform those
(and other) daily and weekly activities, along with her ability
to manage her pain, support the ALJ's conclusion that plaintiff
"is an individual who is guite able to meet both routine
obligations and engage in additional activities of interest
despite alleged symptoms of pain and loss of concentration"
(T.19). In short, the court finds substantial evidence in the
record to support the ALJ's conclusion that the "lack of an
organic basis for the claimant's pain, coupled with the
claimant's base line functioning supplemented by only limited
23 medical assistance suggest the presence of a less than
debilitating condition" (T.18).
Conclusion
For the foregoing reasons, the court finds substantial
evidence in the record to support the ALJ's conclusion that
plaintiff is not disabled within the meaning of the Act. The
court also concludes that, notwithstanding plaintiff's arguments
to the contrary, the ALJ did not improperly classify plaintiff's
past relevant work. Accordingly, the decision of the ALJ is
affirmed. Plaintiff's motion for an order reversing the decision
of the Commissioner (document no. 4) is denied. Defendant's
motion for an order affirming the decision of the Commissioner
(document no. 7) is granted.
SO ORDERED.
Steven J. McAuliffe United States District Judge
May 9, 1997
cc: Raymond J. Kelly, Esg. David L. Broderick, Esg.