Graham v . SSA CV-02-243-PB 05/09/06
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Carolyn Graham
v. Case No. 02-cv-243-PB Opinion No. 2006 DNH 057 Jo Anne Barnhart, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), plaintiff Carolyn Graham
challenges the Commissioner of Social Security’s determination
that she is not entitled to disability insurance benefits
(“DIB”). She argues that the Administrative Law Judge (“ALJ”)
who evaluated her claim improperly ignored residual functional
capacity (“RFC”) assessments performed by two of her physicians
and improperly evaluated the credibility of her testimony. For
the reasons set forth below, I conclude that the ALJ’s decision
is supported by substantial evidence. I therefore deny Graham’s
motion to reverse (Doc. N o . 18) and grant the Commissioner’s
motion to affirm (Doc. N o . 1 9 ) . I. BACKGROUND
A. Procedural History
Graham’s disability insured status expired on September 3 0 ,
2001. Administrative Record Transcript (“Tr.”) at 290. She
applied for DIB on July 9, 2001. Id. at 131. She alleged that
she became disabled on September 2 4 , 1999, due to complications
from a masectomy. Id.
Graham’s application was denied, id. at 5 9 , and she
requested an administrative hearing. Id. at 6 5 . On December 1 3 ,
2001, ALJ Frederick Harap held a hearing to evaluate her claim.
Id. at 8 3 . ALJ Harap determined that Graham was not disabled
because she retained the RFC to perform jobs that existed in
substantial numbers in the national economy. Id. at 5 6 . The
Appeals Council declined to review ALJ Harap’s decision. Id. at
115.
Graham sought judicial review of ALJ Harap’s decision with
this court, however I remanded the case because the hearing tape
was inaudible. Id. at 117-19; see Doc. Entry 9/23/02. ALJ Harap
held a second hearing on May 7 , 2003. Id. at 2 1 . He reached the
same conclusion, id. at 1 9 , and the Appeals Council subsequently
-2- declined to review the decision. Id. at 7 .
Graham sought judicial review of ALJ Harap’s second
decision, and I remanded the case a second time because the
hearing tape was again inaudible. Id. at 384; see Doc. Entry
7/13/04. On October 2 6 , 2004, ALJ Robert Klingbiel held a third
hearing. He too determined that Graham was not disabled because
her RFC allowed her to perform jobs that existed in substantial
numbers in the national economy. Id. at 294-96. Graham now
seeks review of ALJ Klingbiel’s decision.
B. Graham’s Education and Work History
Graham was born on July 6, 1953. Id. at 304. She was 51
years old when ALJ Klingbiel issued his decision. Id. at 290.
Graham has a ninth-grade education. Id. at 304. In the past,
she worked as a lacer/stamper/sewer in a boot factory, a
tester/assembler in a heater factory, a chambermaid, a
dishwasher/kitchen helper, and a sewer in a sewing factory. Id.
at 340.
C. Medical Evidence
On September 2 4 , 1999, Graham underwent a routine bilateral
mammography examination. Id. at 199. The mammogram revealed an
-3- irregularity in Graham’s right breast. Id. A subsequent biopsy
showed that Graham had breast cancer. Id. at 190. On November
1 2 , 1999, D r . Sean Bears performed a masectomy. Id. at 235.
Graham “tolerated the procedure well” and there were no
complications. Id.
Four days after the surgery, D r . Bears examined Graham and
determined that she was “doing well with mild discomfort in the
surgical site.” Id. at 244. Graham began a course of six
chemotherapy treatments supervised by D r . L . Herbert Maurer. Id.
at 239. On February 2 , 2000, D r . Bears examined Graham and noted
that she was experiencing nausea and sinus problems, but
otherwise was tolerating the chemotherapy well. Id. at 246. Her
surgical wound was healing properly. Id.
By June 2 6 , 2000, Graham had completed chemotherapy. Id. at
248. Although she had gained a significant amount of weight and
was bothered by a mass of scar tissue in her right arm, she was
generally feeling well. Id. On August 2 , 2000, D r . Thomas Davis
examined Graham and noted that she had “good” range of motion in
her right arm. Id. at 204.
On June 1 , 2001, D r . Bears examined Graham and observed that
she was “doing very well from a breast cancer standpoint.” Id.
-4- at 250. Although Graham reported that she had pain in her right
hand and arm if she used them for extended periods of time, D r .
Bears was unable to link the pain to masectomy complications.
Id. He determined that the pain was not severe enough to pursue
any kind of treatment. Id.
On November 2 9 , 2001, nearly a month after her insured
status expired, Graham saw D r . Frank Graf at her attorney’s
suggestion. Id. at 254. D r . Graf observed that Graham had
sensory deficits above and below her surgical incision. He
performed Tinel’s sign testing, which was positive for pain and
tingling in the right arm. Id. at 255. Graham’s reflexes were
intact and she was able to raise both arms and bring her hands to
the back of her head and to the small of her back. Id. D r . Graf
determined that Graham had impaired functioning in her right arm
and hand. Id. He completed an RFC assessment and found that
Graham could lift twenty pounds occasionally (with pain
afterward) and less than ten pounds frequently (with pain
afterward); that she could stand or walk for fewer than two hours
in an eight-hour workday; that she was limited in her ability to
push and pull; that she could not crawl; that she could
occasionally climb, balance, kneel, crouch, stoop, reach, handle,
-5- finger, and feel. Id. at 256-58. This RFC assessment suggests
an inability to perform even sedentary work. Id. at 293. In a
letter dated May 1 5 , 2003, D r . Graf stated that the observations
he made during the November 2 9 , 2001 examination reasonably
reflected Graham’s condition as of the close of the insured
period.
On January 1 1 , 2002, D r . Lawrence Schissel examined Graham.1
Id. at 281. D r . Schissel determined that Graham had normal vital
signs and no focal neurologic deficits or evident loss of
strength or muscle tone. Id. Graham told D r . Schissel that she
had been suffering from profound fatigue, and he diagnosed the
fatigue as resulting from a variety of factors including
depression and the side effects of Tamoxifen, a prescription drug
that Graham takes to prevent cancer recurrence. Id.
On May 1 , 2003, D r . Schissel completed an RFC assessment for
Graham. He found that she could lift ten pounds occasionally and
less than ten pounds frequently; that she could stand or walk for
1 Graham was D r . Schissel’s patient prior to her breast cancer surgery. He referred her to an oncologist, and was “aware of her ongoing treatment for breast cancer through communications with her specialists,” but did not treat her between October 1999 and January 2002. T r . at 263.
-6- less than two hours out of an eight-hour workday; that she could
sit for less than six hours out of an eight-hour workday; that
she needed frequent periods of rest in a reclined position; that
her ability to push and pull was limited by fatigue; and that she
could occasionally climb, balance, kneel, crouch, crawl, and
stoop. Id. at 277-78.
D. Administrative Evidence
On June 2 0 , 2001, Graham completed a Disability
Determination Services (“DDS”) questionnaire about her daily
activities. Graham reported that she could take care of herself,
although she struggled with getting in and out of the tub and
with fixing her hair. Id. at 152. She stated that she could
clean her house and do ordinary household chores, although those
tasks took a long time to complete and she sometimes required
assistance. Id. at 153. Graham also reported caring for her
granddaughter five to seven days per week during the workday.
Id. at 154.
On August 7 , 2001, non-physician DDS consultant Paula LeBrun
reviewed Graham’s file and completed an RFC assessment.2 LeBrun
2 The record is unclear as to LeBrun’s qualifications. The Commissioner has not contested Graham’s assertion that LeBrun is
-7- determined that Graham could occasionally lift 20 pounds; that
she could frequently lift 10 pounds; that she could stand or walk
for about 6 hours in an 8-hour workday and sit for about 6 hours
in an 8-hour workday; that she had unlimited ability to push and
pull; that she had no postural limitations; and that she should
avoid frequent overhead reaching with the right arm. Id. at 164-
171.
E. Graham’s Hearing Testimony
Graham, who was represented by counsel, testified at the
hearing before ALJ Klingbiel. She stated that she has persistent
numbness in her right arm from the shoulder to the elbow and
intermittent shooting pain and numbness in the rest of the right
arm. Id. at 310-11. She also reported that her right arm is
weak, making it difficult for her to lift things. Id. at 315.
Graham’s husband testified that Graham has difficulty completing
household tasks because of pain in her arm. Id. at 335.
Graham also testified that since her masectomy, she tires
very quickly. Id. at 322. She believes this persistent fatigue
not a physician, so I assume that she is not a medical doctor or other “acceptable medical source.” See 20 C.F.R. § 404.1513(a)(1)-(5).
-8- to be a side effect of Tamoxifen. Id. at 313. Graham explained
that she has to rest for several hours after two hours of
standing or walking. Id. at 316-17. For example, she reported
being too tired to cook meals on a regular basis, id. at 3 2 0 , or
to grocery shop. Id. at 324. Graham’s husband also testified
that she needs to rest after two hours of activity. Id. at 335.
Graham told ALJ Klingbiel that her granddaughter lived with
her between approximately 2000 and 2004. Id. at 331-33. During
that time, Graham regularly cared for the child. Id. at 336.
F. Vocational Expert’s Testimony
Vocational Expert (“VE”) Howard Steinberg also testified at
the hearing. He stated that most of Graham’s past work would be
classified as light, unskilled work by the Dictionary of
Occupational Titles. Id. at 340.
ALJ Klingbiel asked VE Steinberg to consider a hypothetical
claimant with Graham’s education and work history and a capacity
for work consistent with following RFC: occasional lifting of 20
pounds and more frequent lifting of 10 pounds; very little
overhead reaching ability; and limited ability to use the right
hand and arm routinely. VE Steinberg concluded that the
hypothetical claimant would not be able to perform any of
-9- Graham’s past jobs. Id. at 340-41. However, the hypothetical
claimant would be able to perform several other jobs, including
toll collector, officer helper, construction flagger, furniture
rental clerk, security guard, storage facility rental clerk,
school bus monitor, and sales attendant. Id. at 342-43.
Graham’s attorney asked VE Steinberg to consider a
hypothetical claimant with Graham’s education and work history
and a capacity for work consistent with the RFC provided by D r .
Graf. Id. at 344. VE Steinberg concluded that the limitations
described by D r . Graf would significantly impact the hypothetical
claimant’s ability to perform the jobs he mentioned in response
to ALJ Klingbiel’s hypothetical, with the exception of the
security guard job. Id. at 345-47.
Finally, Graham’s attorney asked VE Steinberg to consider a
hypothetical claimant with Graham’s education and work history
and a capacity for work consistent with the RFC provided by D r .
Schissel. VE Steinberg stated that this hypothetical claimant
would essentially have no capacity for work. Id. at 350.
II. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), I am authorized to review
-10- the pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the ALJ’s decision. The ALJ’s factual findings are
conclusive if they are supported by substantial evidence. 42
U.S.C. § 405(g); Ortiz v . Sec’y of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991). Substantial evidence is that
which “‘a reasonable mind, reviewing the evidence in the record
as a whole, could accept . . . as adequate to support [the]
conclusion.’” Ortiz, 955 F.2d at 769 (quoting Rodriguez v . Sec’y
of Health and Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981)).
Thus, the ALJ’s decision is supported by substantial evidence if
it is reasonable.
The ALJ is responsible for settling credibility issues,
drawing inferences from the record evidence, and resolving
conflicting evidence. Id. at 769. If the ALJ’s findings as to
these matters are reasonable, I must uphold them “even if the
record arguably could justify a different conclusion.” Tsarelka
v . Sec’y of Health & Human Servs., 842 F.2d 529, 535 (1st Cir.
1988). On the other hand, the ALJ’s findings are not conclusive
if they were “derived by ignoring evidence, misapplying the law,
or judging matters entrusted to experts.” Nguyen v . Chater, 172
-11- F.3d 3 1 , 35 (1st Cir. 1999). I apply these standards to the
arguments Graham raises in her appeal.
III. ANALYSIS
The Social Security Act defines disability as the “inability
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 which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). In order to determine
whether a claimant has a disability resulting from a physical or
medical impairment, the ALJ conducts a five-step sequential
analysis. 20 C.F.R. § 404.1520(a). The claimant has the burden
at each of the first four steps to show that:
(1) the claimant is not engaged in substantial gainful activity; and (2) the claimant has a severe impairment; and (3) the impairment meets or equals a specific impairment listed in the SSA regulations; or (4) the impairment prevents or prevented the claimant from performing past relevant work.
Id. § 404.1520(a)(4)(i)-(iv). At step five, the burden shifts to
the Commissioner to show “that there are jobs in the national
-12- economy that [the] claimant can perform.” Heggarty v . Sullivan,
947 F.2d 9 9 0 , 995 (1st Cir. 1991). The ALJ’s conclusions at
steps four and five are informed by his assessment of the
claimant’s RFC, which is a description of the kind of work that
the claimant is able to perform despite her impairments. 20
C.F.R. §§ 404.1520, 404.1545.
ALJ Klingbiel found that Graham was not disabled at the
fifth step of the sequential analysis. ALJ Klingbiel determined
that Graham retained the RFC to perform “a substantially full
range of light exertion work . . . . with a limitation for
overhead reaching with her right arm and frequent use of her
right index [finger] and thumb.” T r . at 292-294. Specifically,
he limited Graham to occasional lifting of twenty pounds and six
hours of standing or walking in an eight-hour day. Id. at 292.
Based on this RFC, ALJ Klingbiel concluded that Graham could not
perform any of her previous work, but could perform other light
exertion jobs existing in the national economy. Id. at 294.
Graham challenges ALJ Klingbiel’s assessment of her RFC.
She argues that in formulating the RFC, ALJ Klingbiel (1)
improperly gave little weight to the RFC assessments provided by
Drs. Schissel and Graf; (2) improperly formulated his own RFC
-13- assessment; and (3) improperly discredited Graham’s testimony
about her capacity for work. I discuss each of Graham’s
arguments in turn.
A. Dr. Schissel’s RFC Assessment
ALJ Klingbiel gave little weight to D r . Schissel’s RFC
assessment, which described limitations consistent with sedentary
work rather than light work. T r . at 293. Graham claims that
this was erroneous because D r . Schissel is a “treating source”
whose RFC assessment must be given controlling weight. See 20
C.F.R. § 404.1527(d)(2); Social Security Ruling (“SSR”) N o . 96-
2 p , 1996 SSR LEXIS 9, at *1 (1996). I disagree.
First, D r . Schissel is not a “treating source.” A
claimant’s physician is a treating source only if he had “an
ongoing treatment relationship” with the claimant. 20 C.F.R. §§
404.1502, 416.902. An “ongoing treatment relationship” is one in
which the claimant sees or has seen the physician “with a
frequency consistent with accepted medical practice for the type
of treatment and/or evaluation required for [the claimant’s]
medical condition(s).” Id.
The time frame relevant to ALJ Klingbiel’s disability
determination (hereinafter, “the insured period”) is the period
-14- of time between the alleged onset of Graham’s disability in
September 1999 and the expiration of her insured status in
September 2001. D r . Schissel referred Graham to an oncologist
for breast cancer surgery in October 1999 and did not see her
again until January 2002. Thus, D r . Schissel was not a treating
source during the insured period.3
Because D r . Schissel was not a treating source, his RFC
assessment was not entitled to controlling weight. In fact, it
was reasonable for ALJ Klingbiel to give little weight to the RFC
assessment. All of the post-masectomy evaluation and treatment
that D r . Schissel provided occurred after Graham’s insured status
expired. A retrospective medical assessment may have probative
value. Perez v . Chater, 77 F.3d 4 1 , 48 (2d Cir. 1996). Here,
though, D r . Schissel gave no indication that his evaluation was
retrospective, and it apparently reflected Graham’s condition at
the time he treated her. Accordingly, his RFC assessment is of
3 Although Graham claims that she became disabled when she was diagnosed with breast cancer in September 1999, her impairments allegedly stem from the masectomy, which was not performed until November 1999. Thus, even if D r . Schissel saw Graham during September 1999 and October 1999, he did not treat her for the impairment which provides the foundation of her disability claim.
-15- little value with respect to Graham’s impairment during the
insured period.
B. Dr. Graf’s RFC Assessment
Next, Graham challenges ALJ Klingbiel’s decision to give
reduced weight to D r . Graf’s RFC assessment, which described
limitations consistent with an inability to perform even
sedentary work. I conclude that it was reasonable for ALJ
Klingbiel to discount the probative value of D r . Graf’s RFC
assessment.
First, an ALJ may properly give less weight to a medical
opinion that is inconsistent with the record as a whole. 20
C.F.R. § 404.1527(d)(4). D r . Graf evaluated Graham once, after
her insured status expired. His evaluation of her condition is
inconsistent with the evaluation of D r . Bears, who saw her
several times during the insured period. D r . Bears’ records
indicate that Graham felt reasonably well following her surgery,
and he noted that any residual pain was not severe enough to
pursue. The record does not contain any medical evidence
indicating that Graham suffered from severe pain or fatigue
during the insured period.
Second, a medical opinion should be given less weight if it
-16- does not include “relevant evidence to support [the] opinion,
particularly medical signs and laboratory findings.” Id. §
404.1527(d)(3). D r . Graf offered no support for his conclusion
that Graham could stand for less than two hours in an eight-hour
day, except to say that Graham had “poor tolerance” for sitting
and walking. T r . at 256. In fact, D r . Graf noted that Graham’s
“general health [was] good.” Id. at 254. Accordingly, I
conclude that it was reasonable for ALJ Klingbiel to reduce the
weight given to D r . Graf’s RFC assessment.
C. ALJ Klingbiel’s RFC Assessment
Graham challenges ALJ Klingbiel’s determination that she can
stand or walk for six hours in an eight hour-day.4 She argues
that because the only formal RFC assessment reaching that
conclusion was provided by a non-physician, ALJ Klingbiel’s
finding lacks substantial evidence. I disagree.
In assessing a claimant’s RFC, the ALJ may consider “all of
the relevant medical and other evidence.” 20 C.F.R. §
404.1545(a)(3) (emphasis added). Here, ALJ Klingbiel “agreed”
4 The length of time during which Graham can stand or walk is the only significant difference between ALJ Klingbiel’s and Dr. Graf’s RFC assessments.
-17- with the RFC assessment provided by DDS consultant LeBrun, who is
not a doctor. T r . at 292. Under the governing SSA regulations,
it is appropriate for ALJ Klingbiel to consider a non-physician’s
RFC assessment, which amounts to “other evidence.” However, it
would be erroneous for ALJ Klingbiel to rely exclusively on that
RFC assessment. See Zebulske v . Barnhart, N o . 04-49-B, 2004 U.S.
Dist. LEXIS 21381, at *5 n.2 (D. M e . Oct. 2 5 , 2004).
In this case, ALJ Klingbiel did not rely solely on LeBrun’s
RFC assessment. He also considered the medical records of D r .
Davis and D r . Bears, both of whom treated Graham during the
insured period. T r . at 292. Those records are consistent with
LeBrun’s determination as to Graham’s capacity for standing and
walking. Neither D r . Davis nor D r . Bears noted that Graham was
experiencing profound fatigue. D r . Bears specifically indicated
that any lingering pain resulting from the masectomy was not
severe enough to pursue.
Graham contends that D r . Davis’ and D r . Bears’ notes amount
to “bare medical findings” that ALJ Klingbiel is “not qualified
to assess.” See Gordils v . Sec’y of Health and Human Servs., 921
F.2d 3 2 7 , 329 (1st Cir. 1990). Again, I disagree. An ALJ is not
“precluded from rendering common-sense judgments about functional
-18- capacity based on medical findings.” Id. Although D r . Davis and
Dr. Bears did not explicitly address Graham’s functional
limitations, they described her as recovering well from her
masectomy and being in generally good health. It was reasonable
for ALJ Klingbiel to make a “common-sense” determination as to
Graham’s RFC based on these medical records. See id. (“[I]f the
only medical findings in the record suggested that a claimant
exhibited little in the way of physical impairments, but nowhere
in the record did any physician state in functional terms that
the claimant had the exertional capacity to meet the requirements
of sedentary work, the ALJ would be permitted to reach that
functional conclusion himself.”)
ALJ Klingbiel also considered Graham’s self-report regarding
her ability to care for her granddaughter and perform housework
during the insured period. T r . at 292. In particular, Graham’s
testimony that she cared for her granddaughter several days a
week supports ALJ Klingbiel’s determination that she retained the
RFC to stand or walk for six hours in an eight-hour day.
Because ALJ Klingbiel considered medical evidence and
Graham’s testimony in addition to DDS consultant LeBrun’s RFC
assessment, I conclude that his finding that Graham could stand
-19- or walk for six hours in an eight-hour day is supported by
substantial evidence.
D. Graham’s Credibility
Finally, Graham argues that ALJ Klingbiel improperly
discredited her subjective testimony that she was not capable of
light exertion work, resulting in a flawed RFC assessment. In
particular, Graham argues that ALJ Klingbiel failed to address
each of the so-called “Avery factors” when he evaluated her
credibility. I conclude that ALJ Klingbiel’s Avery analysis was
sufficient and his credibility determination is supported by
Assessment of the claimant’s credibility is the exclusive
province of the ALJ, who observes the claimant, evaluates her
demeanor, and considers how her testimony “fit[s] in with the
rest of the evidence.” Frustaglia v . Sec’y of Health and Human
Servs., 829 F.2d 1 9 2 , 195 (1st Cir. 1987). The ALJ’s credibility
determination is entitled to deference if it is supported by
substantial evidence. Id. In determining the credibility of a
claimant’s subjective testimony, the ALJ must consider the entire
record, including objective medical evidence, the claimant’s
statements, information provided by physicians and other people,
-20- and any other relevant evidence. SSR N o . 96-7p, 1996 SSR LEXIS
4 , at *3 (1996).
The First Circuit has directed that in evaluating a
claimant’s subjective complaints of pain and other symptoms, the
ALJ should consider a variety of factors (sometimes known as the
Avery factors) including “(1) [t]he nature, location, onset,
duration, frequency, radiation, and intensity of any pain; (2)
[p]recipitating and aggravating factors (e.g., movement,
activity, environmental conditions); (3) [t]ype, dosage,
effectiveness, and adverse side-effects of any pain medication;
(4) [t]reatment, other than medication, for relief of pain; (5)
[f]unctional restrictions; and (6) [t]he claimant’s daily
activities.” Avery v . Sec’y of Health & Human Servs., 797 F.2d
1 9 , 28-29 (1st Cir. 1986); see also SSR N o . 96-7p, 1996 SSR LEXIS
4 , at * 8 . The ALJ’s decision “must contain specific reasons for
the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons
for that weight.” SSR N o . 96-7p, 1996 SSR LEXIS 4 , at * 1 2 .
Graham contends that ALJ Klingbiel failed to address the Avery
-21- factors in sufficient detail.
Detailed written discussion of the Avery factors is
desirable, see Frustaglia, 829 F.2d at 195, but an ALJ complies
with Avery if he explores the factors at the administrative
hearing. See Lopes v . Barnhart, 372 F. Supp. 2d 185, 192 (D.
Mass. 2005) (ALJ complies with Avery where he covers all of the
factors at the hearing); Braley v . Barnhart, NO. 04-176-B-W, 2005
U.S. Dist. LEXIS 11070, at *17 (D. M e . June 7 , 2005) (ALJ need
not “slavishly discuss each Avery factor”). Here, Graham’s
attorney and ALJ Klingbiel asked Graham questions implicating the
four relevant Avery factors at the hearing.5 See T r . at 313
(discussion of the onset/nature of Graham’s fatigue); 320-21
(discussion of precipitating and aggravating factors); 316-17,
322-24 (discussion of functional restrictions as a result of
Graham’s fatigue); 314-15 (discussion of daily activities); see
also id. at 152-54 (DDS questionnaire regarding Graham’s daily
activities).
5 Graham disputes ALJ Klingbiel’s RFC assessment chiefly because it does not credit her subjective testimony about fatigue, which she claims prevents her from standing or walking for longer than two hours in an eight-hour day. Thus, the Avery factors addressing pain medication and treatment are simply not relevant in this case.
-22- In keeping with SSR N o . 96-7p, ALJ Klingbiel gave a specific
reason for his determination that Graham’s testimony was not
entirely credible: he found that Graham’s alleged incapacity for
even sedentary work was inconsistent with her daily activities
during the insured period. I conclude that this credibility
determination is supported by substantial evidence. In her DDS
questionnaire, Graham indicated that her daily activities
included cooking breakfast, lunch, and dinner, cleaning her
house, doing household chores, and caring for her granddaughter.
Id. at 152-54. Given the level of exertion required to complete
household chores and care for a child, it was reasonable for ALJ
Klingbiel to discredit Graham’s testimony that she could not
perform light work. Accordingly, he properly discounted her
testimony in fashioning his RFC assessment.
IV. CONCLUSION
Because I have determined that ALJ Klingbiel’s denial of
Graham’s benefits was supported by substantial evidence, I affirm
the Commissioner’s decision. Accordingly, Graham’s motion for
reversal (Doc. N o . 18) is denied and the Commissioner’s motion
for an order affirming the decision of the Commissioner (Doc. N o .
-23- 19) is granted. The clerk shall enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
May 9, 2006
cc: Francis Jackson, Esq. Karen Nesbitt, Esq. Dennis Bezanson, Esq. David L . Broderick, AUSA
-24-