Kinney v. SSA CV-01-270-B 06/20/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gloria Kinney
v. Civil N o . 01-270-B Opinion N o . 2002 DNH 124 Jo Anne Barnhart, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
On March 1 6 , 1998, Gloria Kinney filed an application with
the Social Security Administration (“SSA”) for Title II
disability insurance benefits (“DIB”). Kinney alleged a
disability onset date of November 1 , 1987. Based on her earnings
record, Kinney had to demonstrate that she was disabled on or
before June 3 0 , 1996. SSA denied her application initially and
again on reconsideration. Kinney filed a timely request for
rehearing on which administrative law judge (“ALJ”) Robert
Klingebiel held a hearing. On September 2 4 , 1999, the ALJ issued
his decision denying Kinney’s application because, prior to her
date last insured, she retained the ability to perform her past
relevant work. Kinney appealed, but on May 1 7 , 2000, the Appeals Council denied her request for review. Accordingly, the ALJ’s
decision became the final decision of the Commissioner of Social
Security (“Commissioner”).
Kinney brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the denial of her application for DIB. For the
reasons set forth below, I deny Kinney’s motion for an order
reversing the decision of the Commissioner, and grant the
defendant’s motion for order affirming the decision of the
Commissioner.
I . BACKGROUND1
A. Work History
Kinney was born May 2 2 , 1944, and last met the disability
insured requirements of the Social Security Act (the “Act”) in
June 1996 when she was 52 years old. Kinney graduated high
school, and has worked as a bookkeeper for a restaurant, and as
an office manager for an insurance company and a real estate
company. Most recently, Kinney worked as an office manager in a
1 Background facts are largely taken from the Joint Statement of Material Facts (doc. n o . 11) submitted by the parties.
-2- dental office from June 1993 to June 1996. Kinney alleges that
fibromyalgia, fatigue, migraine headaches, anxiety and depression
have prevented her from performing basic work activities since
November 1 , 1987. Kinney’s earnings record shows that she last
met the insured status requirements of the Act on June 3 0 , 1996.
Since her alleged date of onset, Kinney consistently performed
some work on a part-time basis. However, her earnings over the
entire period have not, on average, been high enough to render
her employment “substantial gainful activity.” Therefore, Kinney
has not been “employed” within the meaning of the Act since June
1996.
B. Medical Evidence Prior to Kinney’s Date Last Insured
On April 2 3 , 1991, Kinney sought treatment from Dr.
Millstein for bilateral shoulder pain that she had been
experiencing for two months. Upon examination, Dr. Millstein
observed that Kinney’s pain was intermittent and fairly well
localized, and was not accompanied by numbness or weakness. He
further observed that Kinney experienced some diffuse stiffness
in her hand in the mornings, had a full range of motion in her
shoulder without crepitus (grating of a joint), mild tenderness
in the biceps tendon anteriorly, a mild decrease in her range of
-3- motion on external rotation, and no neck tenderness over the
spinous process. D r . Millstein diagnosed Kinney with left
shoulder pain consistent with tendinitis, and prescribed a trial
of the anti-inflammatory Voltaren, along with moist heat.
From July 1 2 , 1991 to October 1 7 , 1996, Dr. Robert Swiggett
treated Kinney for symptoms including pain in her left shoulder,
stiffness in her right hip, limited motion in her right shoulder,
and mid-low back pain without radiation. During Kinney’s initial
visit, Dr. Swiggett observed that Kinney had forward flexion to
ninety degrees, abduction to eighty degrees, and internal and
external rotation that was severely limited. Dr. Swiggett
diagnosed her with severe adhesive capsulitis, referred her for
physical therapy, and continued her Naprosyn prescription.
During the course of Kinney’s treatment, Dr. Swiggett continued
to prescribe physical therapy. He also prescribed a Medrol dose
pack for inflammation, and Clinoril, Relafen, and Flexeril for
pain. Kinney underwent manipulation under anesthesia. During
Kinney’s last continuous visit, on September 8 , 1992, Dr.
Swiggett noted that her pain was gradually decreasing and her
range of motion increasing. He discharged her to a home therapy
program and scheduled a followup visit in two months. Kinney did
-4- not return to Dr. Swiggett for over four years.
Kinney saw Dr. Larry Pressman on May 1 4 , 1993. He observed
slight limitations in Kinney’s shoulder motion bilaterally, that
Kinney was in no acute distress, had full range of motion in her
hip and knee, and had no focal muscle weakness in her arms or
legs. During this visit, Kinney did not complain of disabling
pain and Dr. Pressman’s impression did not include any
rheumatological limitations.
Dr. Ernest D’Angelo treated Kinney for headaches from
January 9, 1991 until January 2 5 , 1995. He prescribed Fiorinal
and Fioricet for Kinney’s headache pain and Augmentin and
Dimetapp to relieve the symptoms associated with her sinusitis.
On February 2 2 , 1995, D r . D’Angelo noted that Kinney’s diagnosis
was chronic and recurrent headaches.
On October 4 , 1993, Dr. Mark Reiner saw Kinney for her
headaches. Dr. Reiner noted that Augmentin helped Kinney’s
headaches, which she had been having three or four times a month.
On November 3 0 , 1993, Kinney underwent a CT scan of her
sinuses, which came back normal.
On February 7 , 1995, Kinney saw Dr. Richard Levy for her
headaches. D r . Levy noted that Kinney had a five year history of
-5- intermittent headaches that were typically bifrontal and
suboccipital and extended into the cervical musculature, and that
she found some relief with Fiorinal. However, Kinney had
experienced a headache for an entire month, during which she
experienced several days of subjective vertigo. Dr. Levy noted
that Kinney’s neurological examination was normal. He diagnosed
her with mixed tension type headache and migraine without aura.
He prescribed a trial of Phrenilin Forte to relieve the symptoms
of her tension headaches and to replace the Fiorinal, which
Kinney didn’t like because it contained caffeine.
On February 2 4 , 1995, Kinney returned to Dr. Levy with an
acute headache. The frequency of her headaches had increased,
but she had an excellent response rate (75%) to the Phrenilin
Forte. D r . Levy’s impression was that Kinney was experiencing a
common migraine with associated muscle tension. D r . Levy noted
Kinney’s difficult patient behavior, including refusal of
prescriptions and therapies. Out of desperation, Dr. Levy
prescribed Kinney Valium. He hoped that the Valium would help
her to sleep and that, as a result, Kinney’s headaches would
subside. Kinney acceded to a brain CT Scan. On March 2 , 1995,
Kinney underwent a CT scan of her brain, the results of which
-6- were normal.
From October 1995 through November 1995, Dr. John Bloomer
treated Kinney for shingles. During this time, Kinney also
complained of headaches and pain in her right upper quadrant,
radiating to her back but not her shoulder.
C. Medical Evidence After Kinney’s Date Last Insured
During a visit to Dr. Swiggett on October 1 7 , 1996, Kinney
complained of paracervical discomfort that had been occurring for
several years. Dr. Swiggett observed that Kinney had diffuse
tenderness to both trapezii; however, she had a full range of
motion in her cervical spine and both shoulders, and she had no
motor or sensory deficits in her upper extremities. D r . Swiggett
diagnosed Kinney with chronic myofacial pain.
On October 2 9 , 1996, Kinney had a comprehensive physiatrics
consultation with Dr. Gale Brown. During this examination, Dr.
Brown noted that Kinney left her work at the dentist office in
June of 1996, when she required treatment for pneumonia. Dr.
Brown observed that Kinney’s cervical pain was predominantly with
rotation and that, with palpitation, there were multiple trigger
points involving the cervical extensors, trapezii, levator
scapulae and rhomboids. Dr. Brown diagnosed Kinney with chronic
-7- cervical myofascial pain, significant axial deconditioning, a
sleep disorder, and possible mood disorder. Dr. Brown prescribed
Nortriptyline for treatment of depression and eight physical
therapy sessions.
During an examination with Dr. Brown on November 1 5 , 1996,
Kinney complained of exacerbating neck pain and headaches. Dr.
Brown observed that Kinney’s cervical range of motion was limited
in rotation bilaterally to approximately seventy degrees on the
right side and sixty-five degrees on the left side, and that she
had increased posterior cervical pain with cervical rotation to
the left. Kinney’s cervical extension was limited to forty
degrees, her flexion was nearly full, and the range of motion in
her shoulder was intact. D r . Brown continued Kinney’s physical
therapy regimen and prescribed Valium and Trilisate2 to treat
pain in her shoulder.
Kinney’s last visit with Dr. Brown was on December 6, 1996.
On that date, D r . Brown observed tenderness over the cervical
facet area bilaterally, mildly limited cervical range of motion
on rotation and that her neurological examination was intact.
2 Earlier that month, Kinney refused a prescription for Trilisate from D r . Brown.
-8- Kinney had not tried the Nortriptyline that D r . Brown prescribed
in October. Dr. Brown continued to prescribe Trilisate and
continued with physical therapy, massage, and home exercise. Dr.
Brown scheduled a follow-up visit for six weeks later, but Kinney
did not return.
On October 3 1 , 1996, Kinney had an X-ray of her cervical
spine, which revealed that Kinney had degenerative changes,
especially at C3-4 and C4-5, with posterior spurring and neural
foraminal encroachment that was greater on the right side.
On September 3 0 , 1997, D r . Shearman diagnosed Kinney with
fibromyalgia and bilateral frozen shoulders.
Dr. Humberto Valdes provided Kinney mental health treatment
from October 2 1 , 1997 until March 5 , 1998. Kinney revealed that
she was having problems with her marriage, that she slept for
only about five hours a night, and that she had low energy and
had experienced mood swings for five to six years. Kinney was
diagnosed with an “Adjustment Disorder, Mixed and Significant
Moodiness,” and it was recommended that she obtain psychotherapy.
On June 1 2 , 1998, Craig E . Stenslie, Ph.D., a Disability
Determination Services’ non-examining consultant, completed a
Psychiatric Review Technique form on Kinney. Stenslie evaluated
-9- Kinney’s condition up until her date last insured, and concluded
there was insufficient medical evidence to establish that she
suffered from a mental impairment.
On September 3 , 1998, Dr. John Bloomer completed a
Fibromyalgia Residual Functional Capacity Questionnaire. He
concluded that Kinney met the American Rheumatological Society
criteria for fibromyalgia, was suffering from chronic fatigue
syndrome, and opined that her condition was expected to last for
at least twelve months. D r . Bloomer noted that Kinney had pain
bilaterally in her lower back, cervical spine, chest, shoulders,
arms, hands/fingers, hips, legs and knees/ankles/feet. Dr.
Bloomer also noted that Kinney’s symptoms frequently/constantly
interfered with her ability to concentrate, and that she was
severely limited in her ability to deal with work stress. Kinney
was not currently taking any prescription medicines, though she
would take Relafen and Fiormor when needed. Kinney was able to
stand/walk for two hours out of an eight-hour day and sit for at
least six hours out of an eight-hour day. D r . Bloomer opined
that Kinney needed a job that would allow her to shift positions
and take a break every half hour. Dr. Bloomer additionally noted
that Kinney needed to elevate her legs while sitting. Finally,
-10- Dr. Bloomer found that Kinney was limited in her ability to do
repetitive reaching, handling, or fingering, and that she had the
ability to lift ten pounds only occasionally.
On February 2 , 1999, Dr. Robert Rainie, a Disability
Determination Services’ non-examining consultant, completed a
physical residual capacity assessment on Kinney. Dr. Rainie
found that Kinney could frequently lift ten pounds, occasionally
lift twenty pounds and had an unlimited ability to push and/or
pull. Dr. Rainie opined that Kinney could sit, stand, and walk
for six hours out of an eight-hour day. Dr. Rainie thought that
Kinney could only occasionally climb, balance, stoop, kneel,
crouch and crawl and that she was limited in her ability to reach
in all directions.
D. Kinney’s Testimony
At the hearing before the ALJ, Kinney testified that she has
pain in her neck and shoulders, that she has migraines,
frequently eight times a month, and that she had migraines as
frequently as eight times a month back in 1996. When Kinney has
a migraine it can last two days, during which time she sleeps in
a dark room and takes medication. She also has pain in her right
arm, like tennis elbow, and it affects her from her fingertips to
-11- her scapulary. She has had this pain since prior to her date
last insured. Kinney rates her pain as a seven on a ten-point
scale on an average day; however, exertion such as opening a
window can flare her pain to a ten. When her pain flares u p ,
Kinney applies a cold pack, takes medication and tries to relax.
Kinney testified that, on an average day, she awakens
between eight and nine in the morning, but that it takes her an
hour to get out of bed because her hands hurt and her bones feel
as if they are swelling. During the day, Kinney prepares meals,
waters the plants, feeds her cats and watches television. Kinney
naps for an hour or two in the afternoon, and sleeps for two
hours on a good night.
Kinney can dust furniture, unload a dishwasher, wash and dry
clothes and go food shopping, but she is unable to lift a basket
of laundry or to perform any lifting while shopping. Kinney is
able to go out to dinner with friends, though she has to cancel
plans about one-third of the time. She goes to the movies three
times per year, but has difficulty sitting through a two hour
movie. Driving within ten miles of her home is possible, but she
needs to take at least one break during a two and a half hour car
trip. When paying bills, Kinney has pain in her hand after
-12- writing six checks. Kinney was able to both sit in an elevated
position and stand for thirty minutes, but she cannot sit or
stand for one hour out of an eight-hour day. She can lift a
gallon of water with both hands, but could not lift this weight
over her head.
Kinney also testified about concentration and memory
problems. She has difficulty concentrating on television
programs, and finds that her attention wanders after one to two
minutes. Kinney also has problems remembering where she parked
her car. Kinney is only able to read for fifteen to twenty
minutes before she has to put her book down.
E. The ALJ’s Decision
In his September 2 4 , 1999 decision, the ALJ applied the
five-step sequential evaluation process under which disability
applications are reviewed. See 20 C.F.R. § 404.1520. In the
first step, the ALJ found that Kinney had performed work on a
part-time basis since her alleged date of onset of disability;
however, her earnings were not high enough to qualify as
“substantial gainful activity.” Therefore, the ALJ found that
Kinney had not performed substantial gainful activity since
November 1 , 1987. At the second step, the ALJ found that
-13- Kinney’s migraine headaches and fibromyalgia constituted severe
impairments. At the third step, he found that Kinney’s
impairments, although severe, did not meet or equal the criteria
of any listed impairment described in 20 C.F.R. § 404, Subpart P,
Appendix 1 .
In assessing Kinney’s residual functional capacity (“RFC”),
the ALJ found that, prior to her date last insured, Kinney could
not lift and carry more than twenty pounds occasionally or more
than ten pounds frequently; could not stand, walk, or sit for
more than six hours in an eight-hour day; and that all postural
activities were limited to being performed only occasionally.
Based on this RFC, the ALJ found at step four of the disability
evaluation process that Kinney could return to her former
employment, as it did not require the performance of work-related
activities precluded by her limitations. Because the plaintiff
was able to return to her past relevant work, she was not under a
disability (as defined by the Act) prior to her date last
insured.
In reaching this conclusion, the ALJ noted that Kinney’s
treating and examining physicians did not indicate anywhere in
the record that she would be totally disabled prior to the date
-14- last insured. For example, Dr. Brown diagnosed chronic cervical
myofacial pain, axial deconditioning, sleep disorder and a
possible mood disorder. The ALJ pointed out, however, that
Kinney’s examination revealed a normal gait and only some pain
and limitation of motion in the shoulders, a grossly normal
neurological examination, and negative rheumatologic examination.
Although D r . Bloomer, in a functional capacity questionnaire
dated September 3 , 1998, noted a functional capacity for less
than a full range of sedentary work, the ALJ found that D r .
Bloomer’s limited notes do not reveal this level of disfunction
prior to Kinney’s last date insured. After a full review of the
record, the ALJ did not give Dr. Bloomers’s opinion full weight
because it was not supported by the facts of the case, was
rendered twenty months after Kinney’s date last insured, and did
not indicate the period for which it was intended.
Finally, the ALJ also found that Kinney’s allegations of a
disabling pain and other subjective symptoms were not entirely
credible. Since Kinney’s alleged onset of disability, she sought
medical treatment only sporadically, with no documentation of
regular medical treatment from 1992 to 1994. He found that her
initial shoulder problems from 1991 to 1992 responded well to
-15- treatment. Relying upon notes from treating physician D r . Brown,
the ALJ concluded that while Kinney did experience some
limitations as a result of her impairments, she did not
experience pain or other subjective symptoms at a level that
would interfere with performing light exertional level work
activity.
I I . STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant’s application for benefits, and upon timely request by
the claimant, I am authorized t o : (1) review the pleadings
submitted by the parties and the transcript of the administrative
record; and (2) enter a judgment affirming, modifying, or
reversing the ALJ’s decision. See 42 U.S.C. § 405(g). My review
is limited in scope, however, because the ALJ’s factual findings
are conclusive if supported by substantial evidence. See id.;
Irlanda Ortiz v . Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (per curiam). The ALJ is responsible for
settling credibility issues, drawing inferences from the record
evidence, and resolving conflicts in the evidence. See Irlanda
-16- Ortiz, 955 F.2d at 769. Therefore, I must “uphold the [ALJ’s]
findings . . . if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
[the ALJ’s] conclusion.” Id. (quoting Rodriquez v . Sec’y of
Health & Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981))
(internal quotation marks omitted).
The ALJ’s findings of fact are unalterable unless 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) (per curiam). I apply this standard in reviewing
the issues that Kinney raises on appeal.
III. DISCUSSION
In relevant part, the 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). The Act directs
an ALJ to apply a five-step sequential analysis to determine
-17- whether a claimant is disabled.3 See 20 C.F.R. § 404.1520. The
ALJ’s determinations at steps one through three of this process
are not in dispute, so I proceed directly to step four.
At step four of the process, the ALJ must determine whether
the claimant’s impairment prevents her from performing her past
work. 20 C.F.R. § 404.1520(e). To make this determination, the
ALJ must assess both the claimant’s residual functional capacity
(“RFC”), that i s , what the claimant can do despite her
impairments, and the demands of the claimant’s prior employment.
See id.; 20 C.F.R. § 404.1545(a); see also Santiago v . Sec’y of
Health and Human Servs., 944 F.2d 1 , 7 (1st Cir. 1991) (per
curiam). The claimant, however, bears the burden of showing that
she does not have the RFC to perform her past relevant work. See
Santiago, 944 F.2d at 5 .
At step five, the burden shifts to the Commissioner to show
“that there are jobs in the national economy that [the] claimant
3 The ALJ is required to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; and (5) whether the impairment prevents or prevented the claimant from doing any other work. See 20 C.F.R. § 404.1520.
-18- can perform.” Heggarty v . Sullivan, 947 F.2d 990, 995 (1st Cir.
1991) (per curiam); see also Keating v . Sec’y of Health & Human
Servs., 848 F.2d 271, 276 (1st Cir. 1988) (per curiam). The
Commissioner must show that the claimant’s limitations do not
prevent her from engaging in substantial gainful work, but need
not show that the claimant could actually find a job. See
Keating, 848 F.2d at 276 (“The standard is not employability, but
capacity to do the job.”).
In this case, the ALJ concluded at step four of the
sequential evaluation process that Kinney was able to perform her
past relevant work prior to her date last insured. Kinney argues
that the ALJ’s decision must be reversed and remanded because it
is tainted by legal errors. First, Kinney argues that the ALJ
violated Social Security Ruling (“SSR”) 96-2p by failing to
explain the weight given to the opinions of her treating
physicians, Dr. Bloomer and Dr. Brown. Second, Kinney argues
that the ALJ failed to adhere to the requirements of SSR 96-7p
when assessing her credibility. I address these arguments in
turn.
A. Treating Physicians’ Opinions
Kinney argues that the ALJ failed to follow SSR 96-2p in
-19- evaluating her treating physicians’ opinions. Specifically,
Kinney contends that the ALJ failed to give specific reasons for
his decision not to give the physicians’ opinions controlling or
great weight, and failed to adopt all the limitations that the
treating physicians ascribed to Kinney.
Controlling weight will be given to the medical opinion of a
treating physician where the opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2).
When a treating physician’s medical opinion is not entitled to
controlling weight, the ALJ must still determine the appropriate
weight to give to the opinion by evaluating certain factors. See
id. The ALJ must consider: (1) the length of the treatment
relationship and the frequency of examination; (2) the nature and
extent of the treatment relationship; (3) whether and to what
extent the opinion is supported by medical signs and laboratory
findings; (4) whether the opinion is consistent with other
evidence in the record; (5) whether the physician’s opinion
concerns medical issues related to his area of specialty; and (6)
any other factors which support or contradict the opinion. 20
-20- C.F.R. § 404.1527(d).
1. Dr. Brown’s Opinion
Kinney argues that the ALJ ignored D r . Brown’s diagnosis of
pain, including the October 1996 statement that “[four] years
ago, [Kinney] began having bilateral neck pain which radiated to
the top of her shoulders.” Kinney also faults the ALJ’s failure
to rely upon the following statements found in D r . Brown’s
records: (1) that Kinney experienced “constant bilateral neck
pain [with symptoms] aggravated with lifting and reaching for
extended periods of time;” (2) that Kinney saw “her symptoms . .
. continue[] to progress;” and (3) that she has used numerous
medications “without significant benefit.” Kinney also argues
that the ALJ fails to credit D r . Brown’s diagnosis of chronic
cervical myofacial pain.
The selected portions of D r . Brown’s November 1996 notes,
when analyzed along side Dr. Brown’s complete record, do not
support Kinney’s conclusion that she suffered from debilitating
pain. For example, the notes state that “her symptoms have
continued to progress.” But, Dr. Brown attributed this to a low
grade sinus infection. Dr. Brown’s November 1996 notes also
state that Kinney has used numerous medications “without
-21- significant benefit.” However, Kinney had refused a
recommendation for Trilisate and, according to the December 1996
notes, did not try the nortriptyline that Dr. Brown prescribed in
October 1996. The ALJ found that D r . Brown’s transition to an
independent exercise program, a limited period of massage and use
of Trilisate as needed, with no discussion of additional symptom-
relief measures, did not support a claim of debilitating pain.
Regarding Dr. Brown’s diagnosis of myofacial pain as well as
axial deconditioning, sleep disorder, and possible mood disorder,
the ALJ found the diagnosis inconsistent with other medical
evidence in the file.4
Accordingly, the ALJ did follow the procedure outlined in
SSR 96-2p and his finding is supported by substantial evidence in
the record.
2. Dr. Bloomer’s Opinion
Kinney also argues that the ALJ ignored the opinions of D r .
4 Dr. Brown’s examination records revealed a normal gait and only some pain and limitation of motion in the shoulders. Dr. Brown noted that Kinney’s neurological examination was intact. A cervical x-ray showed only some degenerative changes C3-5 with posterior spurring and neural fominal encroachment. Rheumatologic examination and testing in September 1997 was noted to be negative.
-22- Bloomer as stated in his Fibromyalgia Residual Functional
Capacity Questionnaire. Specifically, Kinney contends that the
ALJ failed to provide a well-supported reason for ignoring this
uncontradicted medical evidence. Kinney further argues that the
ALJ’s decision to ignore the evidence because it was not a
“current assessment” is inconsistent with the record. I
disagree.
The ALJ provided a well-supported reason for not relying on
Dr. Bloomer’s RFC determination. After a review of Dr. Bloomer’s
brief notes, the ALJ determined that Dr. Bloomer’s opinions were
not entitled to “full weight” because the doctor’s notes did not
reveal an inability to perform a full range of sedentary work
prior to Kinney’s date last insured. Furthermore, the opinion
was “not supported by the facts of the case.” The ALJ also noted
that Dr. Bloomer’s opinion was rendered twenty months after the
date last insured and the assessment does not indicate whether
the opinion was a current or a retroactive assessment, though the
ALJ thought it to be a current assessment.
Additional evidence supports the ALJ’s decision. Dr.
Bloomer treated Kinney from April 1995 through June 1996, and his
notes for this time period reveal Kinney had shifting pain that
-23- waxed and waned; however, he did not diagnose Kinney with
fibromyalgia and did not put restrictions on her functional
capacity. Dr. Bloomer completed the Fibromyalgia Residual
Functional Capacity Questionnaire more than two years after his
last examination of Kinney, and his RFC is contradicted by the
opinion of D r . Rainie, a non-examining physician. This
additional evidence further strengthens the conclusion that the
ALJ’s decision to not give controlling weight to D r . Bloomer’s
opinions is supported by substantial evidence.
B. Kinney’s Credibility
Kinney argues that the ALJ failed to follow SSR 96-7p when
assessing her credibility. Specifically, she complains that the
ALJ failed to consider the record as a whole and failed to
consider the factors outlined in SSR 96-7p in determining that
Kinney was not fully credible. Again, I disagree.
SSA regulations require that the ALJ consider a claimant’s
symptoms, including complaints of pain, when he or she is
determining whether a claimant is disabled. See 20 C.F.R. §
404.1529(a). When determining whether a claimant’s subjective
statements are credible, an ALJ must evaluate the medical signs
and laboratory findings, any diagnosis, prognosis or other
-24- medical opinions, and any statements/reports from the plaintiff
or treating or examining physicians or psychologists about the
patient’s medical history. SSR 96-7p. In addition, because an
individual’s pain can sometimes result in a greater severity of
impairment than can be shown by the objective medical evidence,
the adjudicator must consider the following evidence, known as
“the Avery factors,” when assessing the credibility of an
individual’s statements: (1) the claimant’s daily activities;
(2) the location, duration, frequency and intensity of the
individual’s pain; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects
of any pain medication; (5) treatment other than pain medication;
(6) any other measures that the claimant has used to relieve
pain; and (7) other factors concerning the claimant’s limitations
and restrictions due to pain or other symptoms. See 20 C.F.R. §
416.929(c)(3); SSR 96-7p; Avery v . Sec’y of Health and Human
Servs., 797 F.2d 1 9 , 22-23 (1st Cir. 1986). In addition to these
factors, the ALJ is entitled to observe the claimant, evaluate
her demeanor, and consider how the claimant’s testimony fits with
the rest of the evidence. See Frustaglia v . Sec’y of Health &
Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (per curiam).
-25- An ALJ’s credibility determination must include specific
findings and be based on a substantially accurate view of the
record evidence. See Da Rosa v . Sec’y of Health and Human
Servs., 803 F.2d 2 4 , 26 (1st Cir. 1986) (per curiam) (ALJ’s
finding that a claimant is not credible “must be supported by
substantial evidence” and must be based on “specific findings as
to the relevant evidence he considered in determining to
disbelieve the [claimant].”). Moreover, the ALJ’s findings with
respect to credibility “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 96-7p. When properly
supported by record evidence, the ALJ’s credibility determination
is entitled to substantial deference from this court. See
Frustaglia, 829 F.2d at 195.
The record reflects that the ALJ considered the entire
record and took into account the Avery factors. He considered
the duration and frequency of Kinney’s pain when he concluded
that Kinney's sporadic record of medical treatment was
inconsistent with her claim of disabling pain. See Irlanda
Ortiz, 955 F.2d at 769 (holding that gaps in the medical evidence
-26- constitute “evidence” and that such gaps conflict with claims of
“unrelenting pain”); see also Perez Torres v . Sec’y of Health and
Human Servs., 890 F.2d 1251, 1255 (1st Cir. 1989)(per curiam)
(“The claimant sought no regular treatment for his two allegedly
painful conditions, and he submitted no medical evidence of
treatment for his back condition. 20 C.F.R. § 404.1513. On this
record the ALJ was entitled to discount the severity of the pain
complaints . . . ” ) . The ALJ observed that the frequency of
Kinney’s doctor visits did not correspond with Kinney’s
allegation of consistent disabling pain. For example, during
Kinney’s episode of frozen shoulders, she visited D r . Swiggett
monthly. Kinney returned to Dr. Swiggett four years later with
complaints of paracervical discomfort that she said had been
present for a number of years. The ALJ could reasonably have
believed that Kinney would have returned to Dr. Swiggett
regularly rather than waiting four years had her pain been
consistent and debilitating. Even if the ALJ accepted Kinney’s
argument that Dr. Brown diagnosed and treated her for disabling
fibromyalgia in 1995, this treatment was three years after her
treatment with D r . Swiggett. Kinney’s lack of regular treatment
for fibromyalgia with Dr. Swiggett or any other physician after
-27- her alleged onset date of disability supports the ALJ’ decision
not to credit fully Kinney’s subjective complaints of pain.
The ALJ also considered Kinney’s use of pain medication and
alternative treatments. Kinney testified that she “did
everything the doctors recommended . . . physical therapy . . .
prescription drugs . . . everything they recommended.” Kinney
responded positively to surgery in 1991 and 1992, after which her
doctors then prescribed the conservative use of exercise therapy
and massage. However, Kinney’s concern about side effects caused
her to turn down several prescriptions including a brief course
of corticosteroids for one day, Imitrex, narcotics, stadol nasal
spray, and Trilisate. Even though Kinney complained of problems
with sleeping due to her pain, she never took medication
specifically to help her sleep. The absence of the need to use,
or the actual use o f , stronger pain medications is inconsistent
with the severity of the pain Kinney alleged. See Albors v .
Sec’y of Health and Human Servs., 817 F.2d 146, 147 (1st Cir.
1986) (per curiam) (“[The medical evidence], together with the
fact that claimant apparently takes nothing stronger than
aspirin, supports the ALJ's rejection of claimant's assertions of
disabling pain.”); Boisvert v . Callahan, 997 F. Supp. 183, 186
-28- (D. Mass. 1998) (“[The ALJ] found that the plaintiff could not
reasonably suffer the degree of pain that she alleged without
seeking more active treatment or taking pain medication stronger
than Tylenol.”).
Finally, the ALJ considered Kinney’s daily activities. He
noted that she cooks, cleans, shops, goes out to the movies and
dinner occasionally, and drives for short periods of time. He
also considered her testimony that all of these activities are to
some degree limited by her pain associated with fibromyalgia and
migraine headaches. The ALJ recognized Kinney’s limitations when
he concluded that, prior to her date last insured, she would not
have been able to perform medium or heavy exertional activity.
However, he ultimately concluded that her RFC indicated she would
have been able to perform a full range of light work activity.
The medical evidence in the record supports the ALJ's
determination that Kinney's pain did not limit her functional
capacity beyond that already assessed.
The ALJ’s decision that Kinney’s complaints of pain were not
fully credible is supported by substantial evidence. See
Frustaglia, 829 F.2d at 195. (finding that more express findings
would be preferable, but examination of the record demonstrated
-29- that substantial evidence supported the ALJ’s findings).
IV. CONCLUSION
I deny Kinney’s motion for an order reversing the decision
of the Commissioner (doc. n o . 9 ) and grant defendant’s motion for
order affirming the decision of the Commissioner (doc. n o . 1 0 ) .
SO ORDERED.
Paul Barbadoro Chief Judge
June 2 0 , 2002
cc: David Bander, Esq. David L. Broderick, Esq.
-30-