Connors v . SSA CV-10-197-PB 6/10/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael D . Connors
v. Case N o . 10-cv-197-PB Opinion N o . 2011 DNH 094 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Michael Connors moves to reverse the Commissioner of Social
Security’s determination that he is not eligible for disability
insurance benefits (“DIB”). Connors argues that the
Administrative Law Judge (“ALJ”) improperly determined that,
after Connors suffered a back injury, he was nevertheless
capable of performing work available in the national economy and
therefore was not disabled during the relevant time period.1 For
the reasons set forth below, I affirm the Commissioner’s
decision.
1 While Connors originally sought DIB based on his back injury, asthma, chronic obstructive pulmonary disease, and allergies, his appeal focuses only on the ALJ’s decision as it relates to the back injury.
1 I. BACKGROUND2
On February 2 5 , 1997, Connors was diagnosed with
lumbosacral strain3 after sustaining an injury to his lower back
at work several days earlier (Tr. 1 0 9 ) . Upon examination,
Connors was able to heel and toe walk; his reflexes were equal
bilaterally; he was able to flex thirty degrees at the waist
before being stopped by pain; he could bend to the rear and to
the sides without too much difficulty; straight leg raises were
negative; and he had some point tenderness in the right lower
back ( i d . ) . He was released to work with limitations
restricting him from lifting more than ten pounds, five pounds
frequently (Tr. 109-10). He was told to avoid all heavy lifting
and bending (Tr. 1 1 0 ) . He was also told to avoid staying in any
position for long periods of time ( i d . ) . Connors was instructed
not to perform bending, kneeling, squatting, climbing, or
reaching (Tr. 1 1 0 ) . He had two follow-up appointments in March 2 I draw the background information and procedural history from the Joint Statement of Material Facts submitted by the parties (Doc. N o . 10) and the Administrative Record. Citations to the Administrative Record are indicated by “Tr.” 3 A strain is defined as “an overstretching or overexertion of some part of the musculature.” Dorland’s Illustrated Medical Dictionary at 1803 (31st ed. 2007)(Dorland’s). Lumbosacral relates to the lumbar vertebrae and the sacrum. Stedman’s Medical Dictionary (Stedman’s) at 169 (28th ed. 2006). Lumbar is the part of the back and sides between the ribs and the pelvis. Id. at 1121.
2 1997, at which it was noted that Connors was doing better (Tr.
112, 1 1 4 ) .
At a follow-up appointment on April 2 , 1997, Connors
reported continued pain on the right side of his lumbosacral
area with some radiation up into the thoracic area 4 (Tr. 1 1 6 ) .
Upon examination, he walked easily and was able to walk well on
both heel and toe ( i d . ) . He had equal deep tendon reflexes
bilaterally ( i d . ) . Straight leg raising was negative and he was
able to flex and extend at the waist without any great
discomfort ( i d . ) . There was some point tenderness in the right
lumbosacral area and spasm of the paravertebral muscles
extending through the lumbosacral area up into the lower
thoracic area ( i d . ) . His hamstrings were also extremely tight
(id.). He was prescribed Flexeril,5 added to the Naprosyn,6 and
was told to continue to attend physical therapy ( i d . ) . His work
limitations included no lifting of more than twenty pounds or
ten to fifteen pounds frequently, and no bending or reaching
4 The thoracic area is the upper part of the trunk between the neck and the abdomen. Stedman’s at 1982. 5 Flexeril is for use as “an adjunct to rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions.” Physician’s Desk Reference at 1985 (58th ed. 2004)(“PDR”). 6 Naprosyn is a non-steroidal anti-inflammatory drug used to relieve pain. See PDR at 2902-2903. 3 (id.). Connors participated in physical therapy in March and
April 1997 and was discharged from physical therapy with reports
of decreased pain in his lower back (Tr. 118-40).
On September 3 0 , 1997, D r . Coleman Levin completed an
independent medical evaluation of Connors (Tr. 904-09). He
diagnosed right dorsolumbar7 paraspinal muscle strain and
possible right L5-S1 disc herniation8 (Tr. 9 0 4 ) . D r . Levin
stated that Connors had full-time work capacity and was able to
lift up to twenty pounds on an occasional basis ( i d . ) . He stated
that Connors needed the opportunity to change positions and he
needed to avoid repetitive bending ( i d . ) . D r . Levin stated that
the prognosis for recovery was excellent and he did not expect a
permanent impairment (Tr. 9 0 5 ) .
Connors was seen by D r . Roy Hepner for his back pain from
October 1997 through April 1998 (Tr. 169-84). On October 2 0 ,
1997, Connors complained of low back pain (Tr. 1 6 9 ) . He was not
taking any medication at the time ( i d . ) . D r . Hepner noted that
standing spine films demonstrated distinct mild narrowing
through the L4-5 level without evidence of instability
7 Dorsolumbar is the area “pertaining to the back and the loins, especially the region of the lower thoracic and upper lumbar vertebrae.” Dorland’s at 570. 8 A herniated disc is the protrusion of a degenerated or fragmented intervertebral disc into the intervertebral foramen. Dorland’s at 549. 4 (Tr. 1 7 0 ) . He assessed a chronic lumbar strain and referred
Connors to physical therapy ( i d . ) . On December 5 , 1997, Connors
was discharged from physical therapy due to his failure to make
or keep scheduled appointments (Tr. 1 4 8 ) .
On February 1 2 , 1998, D r . Hepner reported that Connors’ MRI
demonstrated desiccation of the L4-5 disc with posterior
protrusion, which was sufficient to be described as herniation
(Tr. 1 8 0 ) . There was also some effacement of the thecal sac
(id.). D r . Hepner assessed Connors with L4-5 disc disruption9
and scheduled a discography ( i d . ) . On March 2 5 , 1998, Connors
underwent a discography with D r . Hepner and was diagnosed with
chronic lumbar sprain (Tr. 1 5 0 ) . On April 1 6 , 1998, D r . Hepner
reported that Connors felt fairly good and avoided heavy lifting
and repetitive bending (Tr. 1 8 3 ) . D r . Hepner noted that Connors
had light duty job offers that he planned to pursue ( i d . ) .
After a physical examination at the April 1 6 , 1998
appointment, D r . Hepner reported that Connors was able to flex
his trunk to reach within seven inches of the floor, which was
“a good improvement over past evaluations” (Tr. 1 8 3 ) . Dr.
Hepner urged Connors to continue his exercises and recommended 9 Disc disruption “occurs when the disc tears or cracks (fissure) allowing the nucleus pulposus to meet the annulus fibrosus.” Discogenic Low Back Bain, http://www.spineuniverse.com/conditions/back-pain/discogenic- low-back-pain (last visited May 2 4 , 2011). 5 that he avoid heavy lifting (forty pounds, twenty pounds
frequently) or repetitive lifting (Tr. 183-84). He also
recommended changing positions frequently ( i d . ) . D r . Hepner
reported that Connors could return to work with modification
(Tr. 1 8 4 ) . He noted that he would see Connors again in one
month for re-evaluation, but there are no further records of
subsequent visits (Tr. 1 8 3 ) .
Connors was also seen by D r . Margaret Tilton from April
1997 through November 1998 with complaints of back pain (Tr.
185-97). On April 2 3 , 1997, a scan of the lumbosacral spine
revealed minimal degenerative facet joint10 changes at L5-S1 that
are consistent with early degenerative disc disease11 (Tr. 1 8 9 ) .
There was no evidence of fracture or subluxation12 ( i d . ) . Dr.
Tilton noted that Connors’ acute low back pain resolved on April
3 0 , 1997 (Tr. 1 9 0 ) .
On October 1 3 , 1998, Connors again complained to D r . Tilton
of constant back pain (Tr. 1 9 2 ) . At the time he was taking
10 Facet joints are the synovial joints between articular processes of the vertebrae. Stedman’s at 1014, 1016. 11 Degenerative disc disease is “a term used to describe the normal changes in your spinal discs as you age.” http://www.webmd.com/back-pain/tc/degenerative-disc-disease- topic-overview (last visited May 2 4 , 2011). 12 Subluxation is “an incomplete or partial dislocation.” Dorland’s at 1817. 6 Aleve for his pain (Tr. 1 9 3 ) . Connors’ neurological evaluation
was normal and his gait remained intact with the ability to
squat and stand without use of his hands (Tr. 1 9 3 ) . Connors
exhibited marked bilateral lumbar paraspinal spasm and reduced
motion on flexion, extension, and bending ( i d . ) . Straight leg
raising, reverse straight leg raising, and Faber’s maneuver were
all negative bilaterally ( i d . ) . D r . Tilton diagnosed Connors
with L4-5 herniated nucleus pulposus13 with intermittent
radicular14 pain ( i d . ) . She noted that Connors was not a
candidate for surgery, but recommended more invasive pain
management such as epidural steroid injections or nerve root
blocks ( i d . ) . At another visit on November 1 7 , 1998, D r . Tilton
listed Connors’ work restrictions as maximum lifting of fifteen
pounds (ten pounds frequently), no bending, and occasional
kneeling, squatting, and climbing (Tr. 195-96).
Upon referral by D r . Tilton, Connors was seen for pain
management with D r . Thomas Menke from December 1998 through
March 1999 (Tr. 202-19). Connors received epidural steroid
injections on December 2 1 , 1998 and January 7 , 1999 (Tr. 2 0 4 ,
209, 2 1 1 ) . After the injections, Connors noted that his pain
13 Nucleus pulposus is “the soft fibrocartilage central portion of the intervertebral disc.” Stedman’s at 1343. 14 Radicular is defined as “of or pertaining to a root (radix) or radicle.” Dorland’s at 1595. 7 symptoms were nearly completely resolved (Tr. 209- 1 1 ) .
Connors received another injection on March 1 1 , 1999, after
feeling increased pain from bending at work (Tr. 2 1 2 , 2 1 8 ) .
On March 1 0 , 1999, Connors’ medical records were reviewed
by D r . Kenneth Polivy (Tr. 198-201). D r . Polivy opined that
Connors sustained an acute lumbosacral sprain which resolved in
April 1997 (Tr. 2 0 0 ) . D r . Polivy stated that he believed
Connors’ L4-5 disc degeneration was present on the basis of
degenerative wear and tear over the years ( i d . ) . He recommended
weight reduction, exercise, and strengthening to help alleviate
Connors’ pain (Tr. 2 0 1 ) .
While Connors continued to seek medical treatment for a
variety of other physical ailments between 1999 and 2005,
Connors did not complain of back pain again until after June 3 0 ,
2005, his date last insured (“DLI”) (Tr. 382-482). Examinations
during that time revealed normal musculoskeletal findings (Tr.
403, 4 1 7 , 4 2 7 , 449, 476, 4 8 1 ) .
In April of 2006 Burton Nault, M.D., a non-examining state
agency medical consultant, reviewed the evidence of record and
completed a Physical Residual Functional Capacity Assessment of
Connors from October 1 , 1997, through June 3 0 , 2005 (Tr. 273-
80). D r . Nault opined that Connors could occasionally lift
and/or carry twenty pounds, frequently lift and/or carry ten 8 pounds, stand and/or walk for about six hours in an eight-hour
workday, sit for about six hours in an eight-hour workday, and
occasionally perform postural functions (Tr. 274-75).
Connors continued to be seen for back problems at Family
Care of Farmington after his DLI. At an appointment with D r .
Tyler Edwards on December 2 1 , 2006, Connors complained of neck
and lower back pain, which he stated started bothering him more
when he started working again doing pool work (Tr. 3 1 5 ) . Films
of Connors’ lumbar spine taken in October 2006 showed lower
lumbar degenerative changes (Tr. 3 2 0 ) . Films of his cervical
spine were normal (Tr. 5 2 0 ) . A December 2006 MRI revealed
degenerative disc disease at L4-L5 with a broad based disc bulge
and superimposed posterior central/left paracentral disc
herniation; broad based posterior disc bulge at L5-S1; and mild
degenerative change of the facet joints at L4-L5 and L5-S1 (Tr.
312).
On October 2 0 , 2006, Connors underwent an initial physical
therapy evaluation for back pain (Tr. 515-17). He reported
experiencing low back pain for ten years (Tr. 5 1 5 ) . Connors
exhibited decreased bilateral trunk range of motion, bilateral
trunk pain and radicular symptoms down the left lower extremity,
9 increased lumbar lordosis,15 and decreased postural and body
mechanics awareness ( i d . ) . Expected outcome at discharge (after
four to six weeks) included range of motion within normal
limits, decreased pain, compliance with home exercise and
independent pain management, increased activities of daily
living, proper posture and body mechanics, and a return to work
with lifting restrictions ( i d . ) . Connors was seen for a total
of seven visits, but was eventually discharged because he failed
to appear for appointments (Tr. 5 1 7 ) .
From December 2006 through February 2007 Connors also went
to D r . O’Connell’s Paincare Centers and saw John Kane, ARNP,
CRNA, (Tr. 874-83). On December 2 1 , 2006, Connors complained of
chronic back pain radiating into his legs (Tr. 8 7 4 ) . Kane noted
that an MRI of the lumbar spine showed degenerative disc disease
of the lumbar spine with broad base disc bulge and left
paracentral disc herniation that had a mass effect on the L5
nerve root ( i d . ) . Upon examination, Connors’ gait, range of
motion in the extremities, and strength were normal with no
joint enlargement or tenderness (Tr. 875-76). Connors reported
pain and tenderness in his cervical, thoracic, and lumbar spine
(Tr. 8 7 6 ) . Range of motion in his cervical, thoracic, and
15 Lumbar lordosis is “the normal, anteriorly convex curvature of the lumbar segment of the vertebral column.” Stedman’s at 1119. 10 lumbar spine was limited due to pain ( i d . ) . Connors’
neurological functions were largely intact except for absent
reflexes and what appeared to be left leg radicular changes from
his hip to his knee ( i d . ) .
On January 1 0 , 2007, Connors received an epidural steroid
injection and facet injections to help with his back pain (Tr.
878). On January 2 5 , 2007, Connors reported that his pain was
more manageable and his level of function improved since
starting chronic narcotic therapy (Tr. 8 8 0 ) . Upon examination,
Connors was unchanged from December 2 1 , 2006, except pain with
compression over lower lumbar was much less since facet
injections (Tr. 8 8 1 ) . Connors received another epidural steroid
injection on February 2 3 , 2007 (Tr. 8 8 3 ) .
On March 1 4 , 2007, Kane completed a Residual Functional
Capacity questionnaire for Connors, noting that he had first
seen Connors on December 2 1 , 2006 (Tr. 896-900). He reported
that Connors’ pain was moderate in nature (Tr. 8 9 6 ) . Kane
opined that Connors’ pain would frequently interfere with
attention and concentration needed to perform even simple work
tasks (Tr. 8 9 7 ) . He opined that Connors’ back impairment
lasted, or could be expected to last, at its current level of
severity since the late 1990's ( i d . ) . He opined on the
following limitations: Connors could walk one city block without 11 rest or severe pain, sit for fifteen minutes at one time, stand
for fifteen minutes at one time, and sit and stand and/or walk
for less than two hours in an eight-hour workday (Tr. 897-98).
He further opined that Connors needed to walk every sixty
minutes for five to ten minutes (Tr. 8 9 8 ) . Kane stated that
Connors needed a job that allowed him to shift positions and
take unscheduled work breaks ( i d . ) . He noted that Connors
possibly needed a cane to walk ( i d . ) .
Kane also opined that Connors could rarely lift weight of
less than ten pounds and never lift anything more than that (Tr.
899). He stated that Connors could never twist, stoop, crouch,
squat, and climb ladders ( i d . ) . He noted that Connors could
rarely climb stairs ( i d . ) . Kane opined that Connors had no
limitations with reaching, handling, or fingering ( i d . ) . He
stated that Connors was likely to be absent from work for more
than four days per month ( i d . ) . When asked what the first date
was that the limitations and symptoms in the questionnaire
applied, Kane reported that he first saw Connors on December 2 1 ,
2006 ( i d . ) . Kane concluded that he did not feel Connors would
ever be able to go back to manual labor type jobs, but that did
not prevent him from being retrained ( i d . ) .
Kane also reported that Connors had degenerative disc
disease with evidence of nerve root compression and neuro- 12 anatomic distribution of pain (Tr. 9 0 1 ) . He stated that
Connors had limited motion of the spine, an inability to walk on
heels, and an inability to squat ( i d . ) . He stated that Connors
had no muscle weakness ( i d . ) . Kane reported that Connors had
reflex loss and positive straight leg raising only when sitting
(Tr. 9 0 2 ) . He opined that Connors’ impairments were equivalent
to the severity of conditions in Listing 1.04A ( i d . ) .
On January 1 , 2006, Connors completed a function report
(Tr. 69-76). He reported his day as follows: wake up at 6:00
a.m. with his daughter and eat breakfast, take daughter to
babysitter, go home to sit and relax, begin cleaning the house
and doing dishes, eat lunch, pick up daughter at 2:00 p.m., play
with daughter, eat dinner, watch television, and go to bed (Tr.
69). He reported that he bathed and fed his daughter, and
watched television and read with his daughter (Tr. 7 0 ) .
Connors stated that he slept one hour at a time on and off
all night and his loss of energy and breath impacted his ability
to dress and bathe (Tr. 7 0 ) . He stated that he prepared his own
meals, did laundry, and cleaned (Tr. 7 1 ) . Connors reported that
he did not do yard work or any other outdoor activities due to
his asthma and allergies (Tr. 7 2 ) . He stated that he went
outside twice per day ( i d . ) . Connors reported that he drove a
car and went grocery shopping, but that he no longer played 13 pool, rode his bike, or went sledding (Tr. 72-73).
Connors reported that he spent time with his wife and child
(Tr. 7 3 ) . He stated that he called friends a few times per week
and went to watch football once per week, but that he had a hard
time dealing with other people since his injury (Tr. 73-74).
Connors reported that his abilities had diminished since his
injury and that he could only walk 100 feet before needing to
rest ( i d . ) . He reported that he was limited in his ability to
lift, squat, bend, stand, reach, walk, kneel, climb stairs,
concentrate, and get along with others ( i d . ) . Connors stated
that he could pay attention for as long as necessary and had no
problems following instructions ( i d . ) . He noted that he did not
handle stress or changes in his routine well (Tr. 7 5 ) . He
reported that he was able to get along with authority figures if
he was treated with respect ( i d . ) .
At the hearing before the ALJ, Connors testified that he
pulled something in his back while working (Tr. 9 4 0 ) . He stated
that his symptoms improved for a while, but anytime he tried to
go back to work it would go back to the way it was when he first
stopped working ( i d . ) . He stated that when he tried to go back
to work, the jobs entailed manual labor (Tr. 9 4 1 ) . He stated
that bending was a big issue for him and he did not know any
jobs he could get where he did not have to bend ( i d . ) . Connors 14 noted that the pain in his back radiated through the left leg
and made his toes feel like they were asleep (Tr. 9 4 2 ) . He
testified that he did not have surgery because he did not have
insurance ( i d . ) . He stated that when he was married, five years
ago, he got medical insurance (Tr. 9 4 3 ) .
Finally, Connors testified that he has two young children
(Tr. 9 4 8 ) . He stated that they went to the babysitter during the
day because he cannot physically care for them, as he did not
have enough energy anymore (Tr. 9 4 9 ) . He stated that he felt
okay after he woke up in the morning, but after doing something
like laundry, he needed to sit down and rest and watch
television or something because he would start sweating and his
body hurt ( i d . ) .
II. PROCEDURAL HISTORY
Connors filed an application for Disability Insurance
Benefits on March 2 4 , 2005, with an alleged onset date of
October 1 , 1997 (Tr. 50-54, 8 7 ) . On March 1 6 , 2007, ALJ James
J. D’Alessandro held the hearing described above, at which
Connors, who was represented by counsel, and a vocational expert
testified (Tr. 933-56). On April 2 7 , 2007, the ALJ issued a
decision in which he found that Connors was not disabled at any
15 time from October 1 , 1997, through March 2 4 , 2005 (Tr. 16-27). 16
The ALJ’s decision became the final decision of the Commissioner
of Social Security (“Commissioner”) when the Appeals Council
denied Connors’ request for review of the ALJ’s decision on
March 1 7 , 2009 (Tr. 8-10).
On July 1 6 , 2009, this Court remanded Connors’ case to the
Commissioner for further action and a new decision (see
Tr. 9 6 2 ) . On January 2 0 , 2010, the Appeals Council notified
Connors and his representative that it proposed to issue a
decision finding that Connors was not entitled to benefits under
the Social Security Act (Tr. 962-64). On April 7 , 2010, the
Appeals Council issued another decision in which it adopted the
ALJ’s findings and conclusions with the exception of the
findings stating the erroneous date last insured (Tr. 9 6 0 ) .
Connors then filed this action challenging that final
administrative decision.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
16 Because plaintiff acquired sufficient quarters of coverage to remain insured for DIB through June 3 0 , 2005 (Tr. 45-46), in order to establish disability for DIB purposes, he had the burden to show that he was disabled on or before that date. See 20 C.F.R. §§ 404.101, 404.130-404.131. The ALJ erroneously reported this date as March 2 4 , 2005. 16 pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the “final decision” of the Commissioner of Social
Security. Review is limited to determining whether the ALJ used
the proper legal standards and found facts based upon the proper
quantum of evidence. Ward v . Comm’r of Soc. Sec., 211 F.3d 6 5 2 ,
655 (1st Cir. 2000).
The findings of fact of the ALJ are accorded deference as
long as they are supported by substantial evidence. Ward, 211
F.3d at 655. Substantial evidence to support factual findings
exists “if a reasonable mind, reviewing the evidence in the
record as a whole, could accept it as adequate to support his
conclusion.” Ortiz v . Sec’y of Health & Human Servs., 955 F.2d
765, 769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v .
Sec’y of Health & Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir.
1981)). If the substantial evidence standard is met, factual
findings are conclusive even if the record “arguably could
support a different conclusion.” Ortiz, 955 F.2d at 770.
Findings are not conclusive, however, if they are derived by
“ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v . Chater, 172 F.3d 3 1 , 35 (1st
Cir. 1999). The ALJ is responsible for determining issues of
credibility and for drawing inferences from evidence on the 17 record. Ortiz, 955 F.2d at 769. It is the role of the ALJ, not
the court, to resolve conflicts in the evidence. Id.
IV. ANALYSIS
Connors makes two claims in his appeal. First, he contends
that the RFC determination by the ALJ was not supported by
substantial evidence. Second, he argues that the ALJ failed to
give appropriate weight to Kane’s opinion concerning his RFC. I
will address each issue in turn.
A. The RFC Determination
The ALJ in this case determined that Connors retained the
RFC to perform “light exertional work.” That meant he could
“lift a maximum of twenty pounds occasionally and ten pounds
frequently; and stand and walk at least six hours out of an
eight-hour work day.” (Tr. 2 2 ) ; see 20 C.F.R. §404.1567(b). At
the hearing a vocational expert (“VE”) testified that for an
individual with Connors’ age, education, work experience, and
RFC, available jobs existed in the national economy (Tr. 2 6 ) .
Specifically, the VE testified that Connors was capable of
performing the requirements of a toll collector or security
guard. Based on the VE’s testimony the ALJ concluded that
Connors was capable of making a successful adjustment to other
work and was therefore not disabled during the relevant time
18 period. Connors now challenges the RFC that was the basis of
the VE’s testimony, arguing that the evidence presented at the
hearing does not support the conclusion that Connors was capable
of performing light work.
In determining a claimant’s RFC, an ALJ is required to
assess all of the relevant evidence in the record and resolve
any conflicts in that record. See 20 C.F.R §404.1545. Here,
the ALJ accorded significant weight to the medical opinion of
Dr. Levin, who opined that Connors’ back injury was not a
permanent impairment and that Connors could work full-time doing
light exertional work. While D r . Levin’s opinion was rendered
in 1997, the ALJ noted that the opinion was consistent with the
medical record as a whole and Connors’ own testimony regarding
his daily activities, which I discuss below. Other medical
opinions in the record also support the ALJ’s conclusion: D r .
Hepner stated that Connors could lift up to forty pounds or
twenty pounds frequently and should be able to return to work,
and D r . Polivy does not appear to have placed any limitations on
Connor, recommending only weight reduction, exercise, and
strengthening to help alleviate pain.
In arguing against the RFC determination, Connors relies
heavily on Kane’s opinion that Connors could never lift more
than ten pounds and only rarely less than ten, could never bend, 19 twist, or squat, and would not be able to go back to manual
labor jobs, and D r . Tilton’s opinion that Connors was unable to
bend. D r . Tilton, however, also opined that Connors would be
able to gradually return to work, and concluded that in the
meantime his work restrictions were only that his maximum
lifting not exceed fifteen pounds, that he not bend, and only
kneel, squat, and climb on an occasional basis. These
limitations are very similar to the requirements of light
exertional work that the ALJ found Connors to be capable of in
his RFC determination. Moreover, even Kane opined that Connors
could be “retrained,” indicating that he thought Connors was
physically capable of jobs that involved sufficiently low
amounts of physical exertion.
Finally, the ALJ reasonably gave significant weight to the
opinion of D r . Burton Nault, a nonexamining state agency medical
consultant. See 20 C.F.R. §404.1527(f) (noting that the ALJ may
consider the opinions of nonexamining sources). Nault reviewed
the entire medical record and opined that during the insured
period Connors could occasionally lift and/or carry twenty
pounds, frequently lift and/or carry ten pounds, stand and/or
walk for about six hours in an eight-hour workday, sit for about
six hours in an eight-hour workday, and occasionally perform
postural functions. 20 Kane’s opinion did indicate that Connors was more limited
than the RFC determination eventually made by the ALJ, but it is
the very role of the ALJ to consider opinions of multiple
experts and to resolve conflicting opinions. Evangelista v .
Sec'y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir.
1987) (noting that the ALJ is entitled “to piece together the
relevant medical facts from the findings and opinions of
multiple physicians”). That is precisely what the ALJ did here,
as he appropriately considered all of the medical opinions
before him and made his own determination of Connors’ RFC.
In addition to medical opinions, evidence that a person
performs daily activities that are inconsistent with a claimed
disability may be considered by an ALJ in determining that
person’s RFC. See Avery v . Sec’y of Health & Human Servs., 797
F.2d 1 9 , 29 (1st Cir. 1986); see also Dupuis v . Sec’y of Health
and Human Servs., 869 F.2d 6 2 2 , 624 (1st Cir. 1989) (per curiam)
(upholding denial of disability in part because claimant was
able to work during the period at issue). Here, Connors
testified that his daily activities include having breakfast
with his daughter, dropping her off at the babysitter,
performing household chores, and cooking. Connors also reported
to a doctor in April of 2003 that he had joined a gym and was
considering helping his wife stock shelves at her job. These 21 activities are inconsistent with Connors’ claims that he was
fully disabled and incapable of even light work during that
time, and the ALJ properly considered them.
While Connors argues that the ALJ was selective and focused
only on the activities that Connors testified he was capable of
performing, the ALJ’s decision does not reflect such an
imbalance. The ALJ acknowledged Connors’ claims of loss of
energy and breath, as well as consistent pain, but determined
that the activities he remains capable of “suggest a greater
physical capacity than that alleged by the claimant,” and that
he was thus capable of light work (Tr. 2 4 ) .
Connors’ treatment history also supports the ALJ’s RFC
determination. Gaps in a claimant’s medical record may be
considered as evidence that an injury is not as severe as
alleged. See Ortiz, 955 F.2d at 769. Here, while Connors
sought medical treatment immediately after his back injury in
1997, he failed to effectively pursue physical therapy that was
assigned to him as part of his treatment. In fact, after 1998
Connors did not seek any further treatment for his back until
after his date last insured. When Connors was being seen at
Family Care of Framingham from January 2003 through June of 2005
for problems related to his asthma and COPD, there is no
evidence that he complained of back pain and his examinations 22 did not reveal any abnormal musculoskeletal findings. While he
did undergo a physical therapy evaluation in 2006 for his back
pain, he was discharged from the program after seven visits
because he failed to appear for appointments.
These facts regarding Connors’ treatment history are
further evidence in support of the ALJ’s determination that
Connors was capable of light work. Considered together, the
objective medical evidence, the medical opinions, Connors’ own
testimony regarding his daily activities, and his treatment
history are more than enough to meet the threshold of
substantial evidence needed to support the ALJ’s findings.
B. Weight of Kane’s Opinion
Connors’ second contention is that the ALJ erred by failing
to expressly address Kane’s opinions regarding his RFC. In
particular, he focuses on the ALJ’s failure to adopt Kane’s
opinions that Connors could only sit or stand for fifteen
minutes at one time, could only sit or stand for less than two
hours in an eight-hour workday, and could not ever lift more
than ten pounds while at work (Tr. 897-99). These limitations
correspond to a less-than-sedentary RFC.
While an ALJ may not simply ignore relevant evidence, it is
also not necessary to directly address every piece of evidence
in the administrative record. See Lord v . Apfel, 114 F. Supp. 23 2d 3 , 13 (D.N.H. 2000); see also Rodriguez v . Sec'y of Health &
Human Servs., 915 F.2d 1557, 1990 WL 152336, at *1 (1st Cir.
1990)(per curiam, table decision)(“An ALJ is not required to
expressly refer to each document in the record, piece-by-
piece.”). In Lord, which Connors relies upon heavily, the ALJ’s
RFC determination was inadequate because it “completely failed
to mention any of the post-hearing evidence,” which in turn made
it impossible for a reviewing court to determine “if significant
probative evidence was not credited or simply ignored.” 114 F.
Supp. 2d at 1 4 .
The same concerns are not present here. The ALJ explicitly
stated that he gave significant weight to Kane’s opinion “to the
extent that the claimant is unable to perform manual labor” (Tr.
24). This statement is sufficient to make clear that the ALJ
fully considered Kane’s opinion and chose to credit some parts
while discrediting others – there is no indication that the ALJ
ignored Kane’s opinions entirely, as there was in Lord. While
the ALJ did not agree with everything Kane concluded,
determinations of credibility and resolving conflicting opinions
are exactly the kinds of decisions ALJ’s are required to make.
See Rodriguez, 647 F.2d at 222. As I have discussed above,
substantial evidence supported the conclusion the ALJ did come
t o , and therefore Connors’ arguments are without merit. 24 V. CONCLUSION
The ALJ did not err at any point in the five-step process.
For the foregoing reasons, I grant the Commissioner’s Motion to
Affirm the Decision of the Commissioner (Doc. N o . 9 ) and deny
Connors’ motion (Doc. N o . 7 ) . The clerk is directed to enter
judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
June 1 0 , 2011
cc: D. Lance Tillinghast, Esq. Gretchen Leah Witt, Esq.