UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James M . Smolinsky
v. Civil N o . 08-cv-210-JD
Michael J. Astrue, Commissioner, Social Security Administration
REPORT AND RECOMMENDATION
Currently before the court for a recommendation of
disposition is an appeal from a November 2007 decision by the
Commissioner of the Social Security Administration (“SSA”)
denying claimant James M . Smolinsky’s application for benefits.
See 42 U.S.C. § 405(g) (Supp. 2008) (providing for district court
review of final decisions of the S S A ) ; see also 28 U.S.C. §
636(b)(1)(B). Plaintiff has filed a Motion to Reverse (document
n o . 7 ) and defendant has filed a Motion to Affirm (document n o .
8). The parties submitted a Joint Statement of Material Facts
(document n o . 9 ) (“J.S.”), and both parties objected to the other
party’s filings (document nos. 11 & 1 2 ) . For the reasons set
forth below, I recommend that the decision of the SSA be
affirmed. Background1
1. Procedural History
Claimant first filed for Child Insurance Benefits (“CIB”)
and Supplemental Security Income (“SSI”) on June 8 , 2006, because
he no longer qualified for the benefits he had been receiving as
a child on account of his father’s disability. He claimed he was
disabled because of abdominal problems and mental health issues
and represented the onset date of his disabilities as September
1 , 2005. The applications were initially denied on September 2 9 ,
2006, after which claimant requested a hearing. One year later,
on September 1 8 , 2007, a hearing was held, at which claimant
appeared with counsel and testified. On November 3 0 , 2007, an
administrative law judge (“ALJ”) determined that claimant had not
been disabled since the alleged September 1 , 2005 onset date and
had a residual functional capacity to perform several jobs. At
that time, claimant was 19 years old, with a general equivalency
diploma (“GED”) but no further education or training. Claimant
appealed the denial of benefits, which was affirmed on March 2 8 ,
2008. As the final order of the SSA, the matter is now properly
before this court for review. See 42 U.S.C. § 405(g).
1 The parties submitted a “Joint Statement of Facts” (document n o . 9 ) , on which this background account is based.
2 2. Medical History
In May 1998, when claimant was 10 years old, he had an
appendectomy. He suffered complications from the surgery, which
required additional surgery in June 1998 to repair abdominal
abscesses and obstructing small bowel adhesions and to treat a
wound infection. The record does not indicate that claimant
missed school or was otherwise restricted for any extended period
of time because of the abdominal complications until four years
later, at the beginning of the 2002-03 school year, when claimant
was 14 and presumably starting ninth grade. In September 2002,
he missed 10 of 18 days of school and then withdrew for the year.
The next year, in 2003-04, claimant attended school for 93
days and missed school 83 days. In December 2003, claimant was
admitted to the hospital because of abdominal pain and vomiting.
He was diagnosed with a small bowel obstruction, treated
intravenously and released two days later. A month later, in
January 2004, claimant went to D r . John Bentwood, complaining
again of abdominal pain. He received a “computed tomography (CT)
scan” to look for abnormalities in the abdomen and pelvis, which
appeared normal. D r . Bentwood concluded claimant had a partial
small bowel obstruction and recommended he eat a restricted diet
3 and avoid nondigestable foods.
In March 2004, claimant saw D r . Susan Edwards for further
care of his lower abdominal pain. Claimant had not been eating
much and had lost 30 pounds, which placed him in the 75th
percentile for his height and weight. Claimant also told D r .
Edwards that he felt anxiety about social issues, was slightly
depressed and lethargic. D r . Edwards attributed the weight loss
to claimant’s anxiety over the bowel obstruction and self-imposed
decreased food intake. She concluded that claimant may have had
an adhesion or stricture that self-corrected, and she encouraged
him to eat more, specifically two instant breakfasts a day.
In April 2004, claimant went back to the doctor complaining
of nausea and vomiting for six days. He also had chills, a fever
and a headache. Claimant was seen by a nurse practitioner, Anita
Reid. NP Reid determined his gastrointestinal exam was normal,
that there was no correlation between his symptoms and his diet,
and she recommended that he rest and follow a clear liquid diet
for 12 hours. She also noted claimant appeared tired.
On May 1 8 , 2004, claimant saw D r . John Jehl as an outpatient
at the hospital for his psychological problems. D r . Jehl
questioned claimant, his mother interrupted with the answers and
4 stated that she wanted claimant out of school until they could
see NP Reid again. Claimant told D r . Jehl he felt overwhelmingly
tired and moved slowly but that his pulse was fast. D r . Jehl’s
examination found claimant to have a normal pulse, at 72 beats
per minute, and to be alert, oriented and cooperative but with a
flat affect. Claimant was taking an anti-depressant at that
time, but reported not feeling any effect positively or
negatively from the drug. D r . Jehl concluded that claimant had
anxiety and depression and perhaps other issues which claimant
clearly did not want to discuss at that time. Claimant requested
a doctor’s order to remain out of school, which D r . Jehl granted.
A week later, on May 2 7 , 2004, claimant returned to NP Reid.
Her observations of claimant were identical to D r . Jehl’s notes:
alert, oriented and cooperative, again with a flat affect. She
concluded that claimant’s anxiety and depression were the same as
they had been and advised him to return if his condition worsened
and to return in two months for a routine follow-up.
Claimant went back to D r . Bentwood in June 2004 to check on
his small bowel obstruction. He had gained weight and reported
feeling better. D r . Bentwood advised claimant to continue with a
restricted diet, in particular avoiding nondigestable foods.
5 In July 2004, claimant visited D r . Andrew Connery for a
psychological evaluation. D r . Connery reviewed claimant’s
complete medical file and administered a battery of tests.
Claimant tested very well, demonstrating average and above
average intelligence, excellent reading skills, clear writing,
and no problems with confusion or distractability. His test
answers reflected a good sense of accomplishment and productivity
and an ability to work intensely for periods of time. He also
indicated that he enjoyed sports and writing stories.
Claimant did exhibit some signs of depression, including
thought and sleep problems. D r . Connery noted the sleep problems
may have been contributing to or resulting from claimant’s
distress. Answers to other test questions revealed that claimant
felt anxiety while at school and felt more relaxed at home and
with males. The results indicated that claimant perceived
himself as having mental difficulties, that he feared dying, and
that he was concerned about his mother’s multiple sclerosis.
Claimant identified himself as “moody/irritable” and admitted he
was concerned about his “career goals.” Test results
characterized him as being depressed, fearful, socially anxious,
self-pitying and pessimistic. The test results also indicated,
6 however, that he perceived these characteristics as engendering
sympathy and hoped they would elicit supportive and protective
responses from those around him.
Claimant’s mother was also interviewed. She stated she
thought her son was generally healthy, but wanted counseling for
his depression and anxiety. Claimant’s mother believed that the
small bowel problems had caused emotional problems for her son
and that, since the December 2003 hospitalization in particular,
claimant’s mood had declined sharply. She noted that he had
received four counseling sessions after his December 2003
surgery, but then was simply prescribed the anti-depressant,
Lexapro, by NP Reid. She was concerned that because he had
missed so much school that year, he would be unable to pass to
the next grade. She believed his problems with school were
caused by his anxiety, disorganization and peer pressure. She
also felt he had low energy and poor concentration, and that he
was unable to sleep because of anxiety. She stated he did have
good relationships with some friends and his family. She
reported claimant worked part-time, played his guitar, spent time
on the computer and enjoyed fishing, wrestling and cars.
Unlike his mother, claimant did not think his emotional
7 problems were caused by his small bowel difficulties, but instead
said that he was frightened by the amount of illegal drugs used
at school. He also stated he was upset that he had been
corrected in his driver’s education class, and he admitted that
he fought with peers outside of school. He wanted to finish high
school either by being home schooled or earning his GED, and then
attend college. Claimant said he enjoyed history, politics and
sociology and often read on his own.
Dr. Connery concluded that claimant had a generalized
anxiety disorder, insomnia related to that disorder, and mixed
personality traits, including avoidance and depressive traits.
He advised claimant to begin psychotherapy. He also recommended
claimant visit a nearby college to alleviate his school-related
anxiety.
The record indicates claimant next sought medical care 18
months later, when he visited NP Reid for an annual physical
examination in February 2006. His height and weight were normal,
and he exhibited no signs and expressed no complaints of any
physical or psychiatric problems. He was living at home with his
parents and siblings, and his hobbies included playing the guitar
and wrestling. He denied smoking, drinking or illicit substance
8 usage. Although claimant had recently had an upper respiratory
infection, he was healthy, with normal affect and demeanor.
In April 2006, claimant went to the hospital again, twice,
for abdominal pain, cramping, bloating and vomiting. He was
admitted for testing, and x-rays showed a partial small bowel
obstruction. D r . Alex Medlicott diagnosed an intermittent
partial small bowel obstruction due to adhesions, and admitted
claimant for the day for intravenous therapy. The next day
claimant returned to the hospital with the same symptoms. D r .
Joseph Casey operated on claimant to remove adhesions and close a
leak in his small intestines. Although claimant initially did
well postoperatively, he began to suffer from abdominal
distention and had to have another surgery, this time performed
by D r . Bentwood, to remove a segment of his small intestine.
Following the second surgery, claimant reported feeling well, and
Dr. Bentwood assessed that his condition had improved. After
this second surgery, claimant resumed his same life-style. He
lived at home, spent time with his younger brother, and occupied
himself with the computer and television.
In July 2006, as part of his June 2006 application for SSI
benefits, claimant reported that he could not socialize with
9 others or eat normally because of his intestinal problems, and
reported that his sleep problems persisted. He explained that he
did little housework or yard work because it aggravated his
stomach problems. Claimant was able to drive, shop in stores and
walk for five to ten minutes at a time. He described himself as
having difficulty concentrating and following instructions, as
not getting along well with authority figures, and has having
difficulty handling stress or changes in routine. He also said,
however, that he did not have any difficulty getting along with
others and simply preferred not to socialize.
In August 2006, claimant went back to NP Reid because of
problems with anxiety and depression. He explained feeling manic
and depressed, approximately 50% of the time, but during the
office visit he felt normal. When he was symptomatic, the
problems persisted for approximately a week and interfered with
his daily activities. He had no suicidal tendencies. He told NP
Reid he had been traumatized by his past surgeries and the health
complications from his medical problems. He also told NP Reid he
was not currently under any psychiatric care. NP Reid observed
claimant to be physically healthy and normal. He had an
appropriate affect and demeanor, with normal speech and memory
10 but she referred claimant to a psychologist, D r . Vincent Scalese,
for further treatment of his anxiety and depressive disorder.
Claimant saw D r . Scalese in September 2006. He reported an
eight year history of a moderately severe adjustment disorder,
with mixed anxiety and depression. Claimant told D r . Scalese
that his abdominal problems were stable, and he was at a point to
make a decision about work and further education. He explained
to D r . Scalese that he had dropped out of high school at age 16
because of social problems, but had earned his GED and wanted to
attend college. He had a girlfriend although his social contacts
were limited. He still enjoyed spending time on the computer,
fishing, reading and playing video games.
Dr. Scalese examined claimant and determined that he was
quite healthy. He had normal appearance and speech, appropriate
affect, good cognitive functioning and good psychological
insight. He had no suicidal or homicidal ideation, and reported
that he had not abused any alcohol or drugs in the past two
years. D r . Scalese rated claimant as being only moderately
impaired in his social, occupational and school functioning, and
assessed claimant as having an adjustment disorder with mixed
anxiety and a depressed mood. D r . Scalese noted that claimant
11 did not want to continue with behavioral therapy and told him
that he could cope with life, had plans to meet with an academic
adviser at a local college, and would call if he felt it was
necessary.
In connection with his pending application for SSI benefits,
the state SSI benefits administrator referred claimant to a
consulting psychologist, D r . Rexford Burnette, for an adult
“Comprehensive Psychological Profile.” D r . Burnette noted that
claimant complained of the same symptoms of periodic anxiety,
depression and mood swings, which persisted for about a week when
they occurred. Claimant told D r . Burnette that he had been
traumatized by his earlier abdominal surgeries and continued to
be distressed by related stomach pains, nightmares and insomnia.
He explained his irregular sleep was partially caused by his
irritable bowel syndrome. Claimant attributed his inability to
focus or concentrate on the stomach-related distress, and also
admitted to having had suicidal thoughts and having dabbled in
substance abuse, previously but not presently. Claimant also
told D r . Burnette he was not presently receiving any mental
health care, in the form of medication or counseling. Claimant
described his activities as including watching television and
12 playing video games, working out, driving, shopping and assisting
with domestic chores. He also described himself as being
socially limited, but was less anxious in social situations than
when he was younger. Claimant said he got along well with his
family, but admitted he still had difficulties with peers and in
some job situations. Claimant said he still avoided certain
foods that were difficult to digest, but had gained twenty pounds
recently and was healthy.
Dr. Burnette assessed claimant as being cooperative and
cordial, with normal speech and appropriate affect. Though he
was somewhat focused on his abdominal problems, claimant was not
obsessed with them. His memory was good, and claimant had no
impairment with comprehension, concentration or task completion.
Dr. Burnette did not discern any problems with work or work-like
situations. He noted that claimant could perform all “ADLs,” or
activities of daily life, independently. D r . Burnette noted a
need to “rule out” claimant suffering from a conduct disorder, an
unspecified substance abuse or a depressive disorder.
Also in September 2006, the SSA had a state agency
psychologist, Michael Schneider, and a state agency physician,
Jonathan Jaffe, review claimant’s record, although they did not
13 examine claimant. D r . Schneider concluded claimant had no
medically determinable mental impairment. D r . Jaffe concluded
claimant had no physical limitations or environmental
restrictions.
Claimant next sought medical care on January 2 4 , 2007, when
he went to the hospital again complaining of abdominal pain and
vomiting. After receiving a liter of fluids, claimant felt
better and chose not to be admitted. His treating physician, D r .
James Kelsey, noted that claimant might have a bowel obstruction
and advised him to return if his symptoms persisted and to limit
his diet to clear fluids until he felt better.
The record contains no further evidence of medical care
received before claimant’s September 1 8 , 2007 SSI hearing. At
the hearing, claimant testified that he had quit his job because
his abdominal problems prevented him from reporting to work on
time. He testified that his intestinal obstruction would cause a
blockage that would make him feel nauseous and then make him
vomit, requiring him to wait for some period of time without
eating or drinking to enable his system to quiet and the blockage
to clear. Claimant stated this occurred several times a week and
could impede his activities for as much as a full day. The last
14 time it had persisted for the entire day claimant had gone to the
emergency room, in January 2007. Claimant did not know of any
medical care he could receive to cure this problem. Finally,
claimant explained that, since finishing high school, he had not
looked seriously for work because of his stomach problems and the
impact it had on his daily life.
3. The ALJ’s Decision
After considering all the evidence, the ALJ first determined
that claimant had not engaged in substantial gainful activity
since the alleged September 1 , 2005 onset date. See 20 C.F.R. §§
404.1520 & 416.920. The ALJ concluded that claimant did have a
severe impairment in the form of his small bowel obstruction, but
that this impairment did not meet or equal a listed impairment
under Appendix 1 , Subpart P of the Social Security Regulations
No. 4. The ALJ then concluded that claimant retained the
residual functional capacity (“RFC”) to perform a full range of
light work. Despite claimant not having past relevant work
experience, the ALJ found claimant could perform a significant
number of other jobs in the national economy, rendering him not
disabled within the meaning of the Social Security Act and,
therefore, ineligible for disability benefits.
15 Discussion
1. Standard of Review
Claimant has a right to judicial review of the decision to
deny his social security benefits. See 42 U.S.C. § 405(g) (Supp.
2008). The court is empowered to affirm, modify, reverse or
remand the decision of the Commissioner, based upon the pleadings
and transcript of the record. See id. The factual findings of
the Commissioner shall be conclusive, however, so long as they
are supported by “substantial evidence” in the record. See Ortiz
v . Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting 42
U.S.C. § 405(g)). “Substantial evidence” is “‘more than a mere
scintilla. It is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Richardson
v . Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison C o .
v . NLRB, 305 U.S. 1 9 7 , 229 (1938)); see also Currier v . Sec’y of
HHS, 612 F.2d 5 9 4 , 597 (1st Cir. 1980). The Commissioner is
responsible for resolving issues of credibility and drawing
inferences from the evidence in the record. See Rodriguez v .
Sec’y of HHS, 647 F.2d 2 1 8 , 222 (1st Cir. 1981) (reviewing court
must defer to the judgment of the Commissioner). The Court does
not need to agree with the Commissioner’s decision but only to
16 determine whether it is supported by substantial evidence. See
id. Finally, the court must uphold a final decision denying
benefits unless the decision is based on a legal or factual
error. See Manso-Pizarro v . Sec’y of HHS, 76 F.3d 1 5 , 16 (1st
Cir. 1996) (citing Sullivan v . Hudson, 490 U.S. 8 7 7 , 885 (1989)).
2. Claimant’s Arguments
Claimant argues the ALJ erred in not finding his mental
health conditions were severe, specifically his generalized
anxiety and depressive disorders and his insomnia problems.2
Claimant contends that the ALJ made his decision relying on only
the one evaluation by D r . Burnette, which concluded that claimant
2 In his Reply Memorandum (document n o . 1 1 ) , claimant changes his argument from the ALJ erred in not finding his mental health issues are severe at step 2 of the disability evaluation process, see 20 C.F.R. § 404.1520(a)(4)(ii), to the ALJ was required to consider even his nonsevere impairments, citing 20 C.F.R. § 404.1545(e) which deals with RFC assessments. The record shows that the ALJ properly considered all claimant’s impairments when he assessed his RFC after concluding he had a severe impairment in the form of his small bowel obstructions. See CR at 16 (citing 20 C.F.R. Part 4 0 4 , Subpart P, App. 1 , §§ 5.06 (inflammatory bowel disease) & 5.07 (short bowel syndrome)); see also 20 C.F.R. §§ 404.1523 & 404.1545. The ALJ specifically stated that he “considered all symptoms” and gave “qualified weight” to the September 2006 state agency medical consultant reports which addressed claimant’s mental health issues. See CR at 16-18. To the extent claimant intends to advance this as a new argument to justify a reversal or remand, it is untimely and warrants no further analysis since it is undermined by the record.
17 had no diagnosable mental health disorder yet indicated a need to
“rule out” conduct disorder, unspecified substance abuse and
depressive disorder. Claimant asserts the ALJ misunderstood D r .
Burnette’s use of the phrase “rule out” to mean those conditions
had been eliminated, when in fact D r . Burnette intended that
further testing needed to be done in order to eliminate those
possible conditions.
To support this reading of D r . Burnette’s conclusion,
claimant submits that three other psychological evaluations
resulted in a finding that he suffered from anxiety, depression,
adjustment disorder and insomnia associated with these mental
health problems. Those assessments were made by D r . Connery, NP
Reid and D r . Scalese, but allegedly not considered by the ALJ or
by the consulting psychologist, D r . Schneider, who allegedly
reviewed claimant’s medical file before those three evaluations
were added to the record.3 Claimant contends the ALJ erred by
not considering these three assessments, citing 20 C.F.R. §
3 Claimant relies heavily on D r . Connery’s diagnoses of generalized anxiety disorder, insomnia related to generalized anxiety, and mixed personality traits that include avoidance and depressive traits. He argues D r . Schneider did not consider D r . Connery’s assessment and limited his evaluation to a review of Dr. Burnette’s assessment. Nothing in the record supports claimant’s assertion that his medical file was incomplete when Dr. Schneider reviewed i t .
18 404.1527(d), which requires every medical opinion to be evaluated
in the disability determination.
Defendant counters that substantial evidence supports the
ALJ’s conclusions that both claimant’s mental impairments and his
insomnia are non-severe. Defendant explains that D r . Burnette’s
use of the phrase “rule out” conveyed that he had insufficient
information to diagnose the conditions. This position is
actually consistent with claimant’s argument, that D r . Burnette
simply concluded that further testing needed to be done to
diagnose whether or not claimant suffered from the self-reported
conditions. Defendant contends that if the ALJ misunderstood D r .
Burnette’s opinion it was harmless, because (1) the medical
evidence supports the finding that claimant did not have any
mental impairment that significantly limited his ability to work;
(2) claimant’s life activities undermined his claimed mental
impairments; and (3) claimant’s failure to seek treatment for
these alleged mental conditions further evinces their lack of
severity. Defendant is correct.
As an initial matter, claimant bears the burden of proving
he is disabled. See Picard v . McMahon, Comm. of the Soc. Sec.
Admin., 472 F. Supp. 2d 9 5 , 99 (D. Mass. 2007) (citing Santiago
19 v . Sec. of HHS, 944 F.2d 1 , 45 (1st Cir. 1991). To do this, he
must show “‘an 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.’” Id. (citing 42 U.S.C. §
423(d)(1)(A)). Claimant must demonstrate he has one or more
medical impairments of “‘such severity that he is not only unable
to do his previous work, but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy. .
..’” Id. (citing § 423(d)(2)(A)). When, as is the case here,
claimant is not doing any substantial activity, his alleged
mental impairment must “be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only
by [his] statement of symptoms.” 40 C.F.R. § 404.1508 (2008
ed.). 4 He has not carried his burden of proof here.
First, the record contains medical evidence to support the
ALJ’s conclusion, even if he misunderstood D r . Burnette’s intent
4 Since parts 404 and 416 of Title 20 mirror one another, for simplicity’s sake I refer only to Part 404. See Mills v . Apfel, Comm. of the Soc. Sec. Admin., 244 F.3d 1 , 2 n.1 (1st Cir. 2001).
20 about other mental health disorders being “ruled out.” In
reaching his decision, the ALJ relied on claimant’s entire
treatment history, which did not support claimant’s alleged
symptoms. See Certified Record of the Proceedings before the SSA
(“CR”) at 17-18, 2 2 , 35-36, 38 & 44 (referring to the medical
records). Although claimant did not have any regular treatment
provider for his mental health problems, the record indicates
that NP Reid treated him most regularly and that the ALJ reviewed
and considered her records. See id. at 35-36, 4 4 , 8 9 . She twice
saw claimant for symptoms of anxiety, depression and sleep
deprivation, in May 2004 and August 2006. See id. at 413-14 (May
2004 report) & 156-58 (August 2006 report). In both reports, NP
Reid noted that claimant complained of anxiety, depression and
insomnia, but also noted that these symptoms were episodic,
occurring intermittently and lasting only about 1 week at a time.
She observed that claimant’s affect and appearance were good,
with normal speech pattern, grossly normal memory, alert
orientation and a cooperative yet flat affect. Id. at 413, 158.
NP Reid prescribed an anti-depressant for him in May 2004, but
claimant stopped taking the medication after a short while. See
id. at 156 & 413. Though a treating physician’s opinion is
21 “binding on the fact finder unless contradicted by substantial
evidence,” 20 C.F.R. § 404.1527(d)(2), claimant did not have a
treatment provider for his mental health problems for any period.
NP Reid’s assessments were not controlling therefore, but were
considered in light of the entire record. See id. (giving
treating physician’s opinion controlling weight if it is “well-
supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other
substantial evidence in [the] case record”); see also Sitar v .
Schweiker, 671 F.2d 1 9 , 22 (1st Cir. 1982) (balancing weight
given treating physician against the entire record).
NP Reid referred claimant to Drs. Connery and Scalese, both
of whom evaluated claimant and whose reports are part of the
record the ALJ reviewed. See CR at 2 2 , 4 4 , 415-16,432-42 & 409-
1 0 ; see also 20 C.F.R. § 404.1527(c)(2) (providing for review of
consulting physicians). Their evaluations support the ALJ’s
conclusion that claimant’s mental impairments did not limit his
functioning sufficiently to be considered severe. See 20 C.F.R.
P t . 4 0 4 , Subpt. 2 , App. 1 at § 12.00C (assessing severity based
on how impairment limits “activities of daily living; social
functioning; concentration, persistence or pace; and episodes of
22 decompensation”). Like NP Reid, the doctors found generalized
anxiety and depressive disorders with some related insomnia, see
CR at 409, 413 & 4 4 1 , but also found claimant was not debilitated
by the symptoms. Despite these problems, D r . Connery also noted
that claimant had average to superior intellectual capacity and
enjoyed a wide variety of activities and interests. See id. at
435-36 (finding claimant to be “tremendously academically skilled
in most regards”). Similarly, D r . Scalese found that claimant’s
symptoms were only moderately severe, that his appearance and
speech were normal, his affect was appropriate, and his cognitive
functions were “grossly intact with good psychological insight.”
Id. at 409.
The record demonstrates that the ALJ properly weighed the
opinions of these doctors and evaluated them based on several
factors, including how consistent they were with the consulting
physicians, Drs. Burnette and Schneider, and the entire record
evidence. See 20 C.F.R. §§ 404.1527(d)(1-6) (listing how
medical opinions are evaluated) & § 404.1520a(e)(1) (giving
overall responsibility for assessing medical severity to the
medical and psychological consultants); see also Picard, 472 F.
Supp. 2d at 100 (citing authority for balancing various medical
23 opinions); see also Frost v . Barnhart, 121 Fed.Appx. 399, 2005 WL
248161 (1st Cir. Feb. 3 , 2005) (holding ALJ not required to
discuss all the evidence). The treating and consulting doctors’
notes consistently show that despite claimant’s issues with
anxiety, depression and sleep, they did not markedly impair his
appearance, affect or intellect, which are relevant indicators of
mental health. See 20 C.F.R. P t . 4 0 4 , Subpt. P. App. 1 , § 12.00C
(listing observable behaviors relevant to assessing severity of
mental health problem). The record is devoid of any laboratory
findings or other objective evidence to substantiate claimant’s
alleged problems. See id. at § 12.00B (describing need for
medical evidence to document mental disorders); see also 20
C.F.R. § 404.1513(a) & (b) (listing sources of medical evidence).
In reaching his decision, the ALJ specifically considered both
claimant’s physical and mental impairments, see CR at 15-16, see
also 20 C.F.R. § 404.1523 (requiring combination of impairments
be considered), yet concluded they did not render him disabled.
The medical record readily demonstrates the ALJ’s decision is
supported by substantial evidence. See Gordils v . Sec’ of Health
& Human Svcs, 921 F.2d 3 2 7 , 329 (1st Cir. 1990) (combining the
opinions of consulting doctors to find substantial evidence).
24 Second, claimant’s “activities of daily living,” or “ADL,”
provided additional evidence that his mental health issues did
not severely disable him. See 20 C.F.R. P t . 4 0 4 , Subpt. P, App.
1 , § 12.00C (listing behavioral factors assessed to determine the
severity of mental impairment). The record consistently shows
that claimant was highly functional, despite not working. He was
able to care for his personal hygiene independently, to do a
myriad of domestic chores, to drive and to go shopping with and
without his mother, to maintain social relationships, including
having a girlfriend, and to enjoy video games, computers,
wrestling, fishing and reading. The regulations specifically
describe an impairment or combination of impairments as being
non-severe if they do not limit claimant’s ability to do basic
work activities, all of which the record evidences claimant has
the capacity to do and, in fact, has been doing. See CR at 35-
3 8 , 168-95 (discussing claimant’s activities and abilities); see
also 20 C.F.R. § 404.1521 (describing “basic work activities” to
include very simple physical and mental capabilities); Goodermote
v . Sec. HHS, 690 F.2d 5 , 8 (1st Cir. 1982) (finding no disability
despite moderate depression where no evidence of “deterioration
in personal habits, marked restriction in daily activities or
25 serious impaired ability to relate to other people.”). This
evidence of claimant’s activities demonstrates he was not
significantly impaired by his mental health problems and provides
further support for ALJ’s decision. See e.g. Picard, 472 F.
Supp. 2d at 100-01 (finding no disability despite treating
physician’s opinion because it was inconsistent with other
medical evidence and with claimant’s ability to participate fully
in daily activities); Morales v . Sec. HHS, 976 F.2d 7 2 4 , 1992 WL
240283, *9 (1st Cir. 1992) (finding no disability even though
claimant suffered from anxiety and depression because of her
mental acuity and appropriate behavior); Mandziej v . Chater, 944
F.Supp. 1 2 1 , 133 (D.N.H. 1996) (considering daily exercise
regimen in assessing disability).
Third and finally, claimant’s decision not to seek treatment
for any length of time further undermines the alleged severity of
his mental health disability. See 20 C.F.R. § 404.1527(d)(1-6)
(listing factors the ALJ is to consider, including the length,
nature and extent of treatment sought); see also Giltner v .
Astrue, __ F. Supp. 2d __, 2009 WL 884748, *3 (D. M e . 2009)
(finding no disability even though significant social impairment
where claimant sought no treatment); Gonzalez-Rodriguez v .
26 Barnhart, 11 F.3d.Appx. 2 3 , 2004 WL 2260096, *1 (1st Cir. 2004)
(same). “‘The fact that claimant did not receive any treatment
for his mental impairment during his insured status is evidence
that this impairment was not bothersome enough to require
treatment.’” Id. (quoting Ortiz v . Sec., HHS, 955 F.2d 765, 769
(1st Cir. 1991) (per curiam) (emphasis in original)). Claimant
stopped taking Lexapro shortly after NP Reid prescribed it and
took no other medications to alleviate his symptoms, which
further undermines his claimed disability. See Tsarelka v . Sec.,
HHS, 842 F.3d 529, 534-35 (1st Cir. 1988) (requiring not just an
impairment but also a lack of any remedial treatment before
disability can be found). D r . Connery, on whom claimant
currently relies to support his claimed disability, recommended
several avenues for treatment, including an Individualized
Education Plan, a sleep clinic and sleep-aiding medications, and
psychotherapy, see CR at 4 4 2 , but claimant did not pursue any of
his recommendations. Two years later, in 2006, claimant told D r .
Scalese “he does not want to continue with behavioral health
interventions . . . he feels he can cope with his life.” Id. at
410. This failure to pursue treatment undermines the purported
severity of the disability, both because there is no evidence
27 that the alleged impairment persisted continuously for more than
12 months as statutorily required, see 42 U.S.C. § 423(d)(1)(A),
20 C.F.R. § 404.1509, and because it indicates that claimant did
not perceive a need for the treatment. See Ortiz, 955 F.2d at
769; Tsarelka, 842 F.2d at 535.
The rationale behind the final decision reflects a careful
review of the entire record, and a careful assessing of
credibility based on that review. The power to resolve conflicts
in the evidence lies with the ALJ, not with the doctors or the
courts, see Rodriguez, 647 at 2 2 2 , and he is responsible for
making the ultimate determination of whether claimant was
disabled. See 20 C.F.R. § 404.1527(e); see also Pariseau v .
Astrue, __ F. Supp. 2d. ___, 2008 WL 2414851, *4 (D.R.I. 2008)
(citing authority). I do not find that the ALJ ignored any
critical factual or legal issue when issuing the final decision.
When, as is the case here, there is a substantial basis in the
record for an ALJ’s decision, the court must affirm the decision,
whether or not another conclusion is possible. See Ortiz, 955
F.2d at 769.
28 CONCLUSION
While claimant may very well have experienced some anxiety
and depression since September 2005, and certainly suffered from
small bowel problems which have caused him some discomfort and
disruption in daily activities, the evidence of record supports
the conclusion that his combination of impairments did not cause
him sufficient functional limitations to require a finding of
disability. I cannot find any basis to remand or reverse and,
therefore, recommend that claimant’s Motion for Summary Reversal
of the Decision of the Commissioner (document no. 7) be denied,
and that respondent’s Motion for an Order Affirming Decision of
the Commissioner (document no. 8) be granted.
Any objections to this report and recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court’s order. See Unauthorized Practice of
Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);
United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).
James __^ Muirhead United States Magistrate Judge
29 Date: April 2 4 , 2009
cc: Francis M . Jackson, Esq. Gretchen Leah Witt, Esq. United States Social Security Administration