Joseph LeMay v. SSA

2002 DNH 026

• Court: District Court, D. New Hampshire
• Decided: January 25, 2002
• Docket: CV-01-166-B
• Status: Published

Opinion

Joseph LeMay v. SSA CV-01-166-B 01/25/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph LeMav

v. Civil No. 01-166-B Opinion No. 2002 DNH 026 Jo Anne B . Earnhardt. Commissioner, Social Security Administration

MEMORANDUM AND ORDER

This purports to be a civil action under 42 U.S.C. § 405(g)

challenging a final decision of the Commissioner of the Social

Security Administration denying Joseph LeMay's application for

disability insurance benefits. But LeMay's counseled Motion for

Reversal of the Commissioner's Decision presents no developed

argument in support of the relief sought therein. Indeed, the

motion does nothing more than present a chart outlining the

medical evidence and follow that presentation with the following

two statements: "We believe the ALJ erred by ignoring the weight

of the evidence of Mr. LeMay's chronic painful condition. In the

alternative with Mr. LeMay's first complaint coming at age twenty-nine we suggest that he be compared to listing 12.07, 3[.]

[sic]."

I construe counsel's first statement as setting forth an

argument that the record lacks substantial evidence supporting

the ALJ's decision that LeMay's chronic back pain is not

disabling. The argument is meritless. The record reveals that

LeMay is not taking any pain medications, has never had surgery

on his back, and has refused a referral to a surgeon in Nashua

because he did not want to go to Nashua. While LeMay explains

his failure to take pain medications by stating that "[n]othing

works," the record as a whole suggests that LeMay has not come

close to exhausting his options for treating his back pain. The

ALJ thus acted within his discretion in inferring that LeMay's

back pain is not disabling.

Construing counsel's second statement as setting forth an

argument that LeMay has a mental disorder described by mental

disorder listing 12.07 (covering somatoform disorders), I reject

the argument because LeMay failed to present this claim to the

Commissioner, and, in any event, there is no record evidence that

LeMay suffers from such a disorder.

- 2 - The Commissioner's Motion for Order Affirming the Decision

of the Commissioner (Doc. No. 7) is granted and LeMay's Motion

for Reversal of the Commissioner's Decision (Doc. No. 5) is

denied.

The Clerk shall enter judgment accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge

January 25, 2002

cc: Robert E. Raiche, Sr., Esq. David L. Broderick, Esq.

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