Lord v. SSA CV-97-505-B 06/14/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Lord
v. C-97-505-B
Kenneth S. Apfel, Commissioner of the Social Security Administration
MEMORANDUM AND ORDER
Richard Lord suffers from a degenerative disc disease
affecting his lower back. Lord first applied for Title II Social
Security Disability Income ("SSDI") benefits on July 18, 1991,
alleging that he was unable to work because of his back condition
and the resulting pain his condition causes. The Social Security
Administration ("SSA") denied Lord's application at the initial
level of review, and Lord did not appeal that denial. Lord again
applied for SSDI benefits on April 26, 1994. The SSA denied this
application at each stage of administrative review, rendering a
final decision denying the application on January 31, 1997.
Lord brings this action pursuant to Section 20 5 (g) of the
Social Security Act, 42 U.S.C.A. § 405(g) (West Supp. 1998), seeking review of the SSA's final decision to deny him SSDI
benefits. He asserts that the SSA Administrative Law Judge
("ALJ") who reviewed his case erred in two respects, namely that:
(1) the ALJ erroneously found that Lord had the residual
functional capacity to perform the full range of light and
sedentary work; and (2) the ALJ failed to take into account
certain non-exertional limitations on his ability to work and,
therefore, improperly relied upon the Medical-Vocational
Guidelines, 20 C.F.R. P t . 404, Subpt. P, Ap p . 2 (1997), in
finding him not disabled.
For the reasons that follow, I grant Lord's motion in part
and remand the case to the SSA for further review.
I. FACTS1
A. Lord's Health Problems
Lord was born on July 26, 1947 and was 47 years old when the
ALJ rendered his decision finding him not disabled. He has an
eighth-grade education with no additional educational or
vocational training. He previously worked in housing maintenance
both at an apartment complex and, most recently, at a mobile home
park. His duties included caring for buildings and grounds,
1 Unless noted otherwise, the following facts are taken from the Joint Statement of Material Facts submitted by the parties to this action.
2 plowing snow, shoveling, ditch-digging, and repairing broken
eguipment. Lord has not worked since August 16, 1990.
On August 16, 1990, Lord twisted his back while descending
backwards off of a ladder. Complaining of stiffness in his lower
back. Lord visited the emergency room at a local hospital on
August 20, 1990. At that time, plaintiff was prescribed an anti
inflammatory agent and a muscle relaxant, and was referred to an
orthopedist.
Pursuant to that referral. Lord was examined by Dr. Jamie
Smolen on August 27, 1990. Lord complained of pain and stiffness
in his lower back and stated that the pain increased with bending
in all directions. Plaintiff also complained of a limited range
of motion. At that examination, plaintiff performed prone press-
ups and abdominal curls with no problem. His heel and toe
walking, hopping, reflexes, motor examination, and straight leg
raising were all normal.
At a follow-up visit on September 17, 1990, Lord continued
to complain of pain, but also noted that it had decreased and
that his flexibility had increased. Dr. Smolen started plaintiff
3 on back-strengthening exercises. Dr. Smolen subseguently noted
that over the next several weeks. Lord's condition improved with
exercise and that he experienced less pain. Despite the
progress. Dr. Smolen suggested that plaintiff remain out of work
until his condition further improved.
After a December 19, 1990 office visit. Lord continued to
complain of lower-back pain and stated that he had difficulty
sitting, bending, twisting, and turning. Testing showed that the
strength of Lord's back muscles had decreased since the previous
testing. Examination revealed discomfort with bending, knee to
chest flexion, abdominal curl, and prone extension. Dr. Smolen
indicated that plaintiff should not return to work. A subseguent
MRI revealed a large herniated disk at L5-S1 and a bulging disk
at L4-L5. As a result of the MRI, Dr. Smolen referred Lord to
Dr. Jonathon Sobel for a surgical consult.
Lord complained to Dr. Sobel of severe pain in his lower
back, left buttock, and left leg as well as difficulty moving.
Dr. Sobel found "mild" nerve root tension and "slightly" deep
tendon reflexes at the ankle and discussed surgical options with
Lord. A subseguent CT scan confirmed Lord's herniated and
bulging disks. When compared to the previous MRI, the CT scan
4 results showed no significant worsening and even slight
improvement.
On May 10, 1991, Lord visited Dr. Anthony Marino for a
second opinion on surgery. At that examination. Lord noted pain
in the left buttock and occasional numbing of the left foot, but
also noted intermittent improvement. Lord also stated that
physical therapy provided "some relief." Dr. Marino noted that
plaintiff moved about the examination room and stood on one leg,
his heels, and his toes, all without difficulty. Dr. Marino
concluded that surgery might help to relieve Lord's leg pain.
One June 20, 1991, plaintiff reported to Dr. Sobel that he
had been told to "take it easy for the summer" and that he was
"doing guite well after a period of rest." Dr. Sobel was of the
opinion that Lord should be vocationally retrained. In July
1991, plaintiff entered a work hardening program. Though Lord
complained of pain following therapy. Dr. Sobel attributed this
pain to Lord's "sedentary" lifestyle. On September 1991, Lord
expressed his desire to remain in physical therapy and to return
to light duty work. Dr. Sobel noted "[t]hat will be fine."
After an October 10, 1991 examination. Dr. Sobel noted that
residual functional capacity testing indicated that Lord could
perform medium to heavy work. Unable to sguare these results
with Lord's continued complaints of pain. Dr. Sobel recommended
5 more objective testing. On January 13, 1992, Dr. Sobel noted
that Lord's flexibility and leg pain had improved and that he
reguired paraspinal muscular strengthening. Dr. Sobel referred
Lord to Dr. Smolen to pursue this program.
Dr. Smolen reported on January 30, 1992, that Lord was no
longer having leg pain and that his back was "simply achy, stiff
and sore." Lord reported that he was comfortable leading a
sedentary, low activity lifestyle. Although examination revealed
"slightly limited and slightly uncomfortable" back bending,
plaintiff performed toe and heel walking, hopping, and abdominal
curls all without difficulty. Dr. Smolen recommended against
surgery and that Lord should continue in physical therapy.
Lord next visited Dr. Smolen nearly a year later, on January
21, 1993. Lord complained of lower-back pain and discomfort
performing activities around the house as well as those related
to sitting, standing, bending, twisting, and turning.
Examination revealed that Lord was able to slowly and cautiously
bend toward the floor, reaching below the level of his knees.
His back extension was limited and uncomfortable, though
straight-leg raising tests, reflexes, motor strength, and sensory
examination were all normal. Dr. Smolen recommended continued
physical therapy.
Over the next few months. Lord's condition remained
6 unchanged and he continued to complain of lower-back pain and
stiffness. On April 8, 1993, Dr. Smolen stated that he believed
Lord was unable to return to work. Dr. Smolen further noted that
he expected "that realistically he will not return to work until
his [Worker's Compensation] case is settled." Additionally, Dr.
Smolen noted that Lord "will remain partially and permanently
disabled. He will never be able to perform a job that requires
repetitive twisting, turning, lifting, carrying, or bending. . .
He will always be at a light duty work capacity, if he ever
works again." Dr. Smolen then referred Lord to Dr. John Thomas
for more physical therapy.
During a May 4, 1993 physiatric2 consultation with Dr.
Thomas, Lord complained of lower-back pain radiating down into
the buttocks and left thigh with intermittent numbness in his
left toes. Although plaintiff described a "full-blown, classic,
chronic pain lifestyle," he was taking no medications. Physical
2 The specialization in physical or rehabilitation medicine. examination revealed limited trunk rotation, lateral bending, and
extension. Lord was able to balance without difficulty, and his
gait was unremarkable. Dr. Thomas diagnosed two-level disc
disease without radiculopathy. Dr. Thomas discussed with Lord
the possibility of settling his Worker's Compensation case and
using the proceeds to fund membership in a heath center and
engage in an independent exercise program. Subseguent testing
revealed a twenty-two percent impairment of the whole person.
On March 21, 1994, Lord was examined by Dr. Vincent
Giustolisi. Lord complained of pain in his lower back that
radiated into both buttocks and legs. He stated that the pain
increased with activity and varied with the weather. Lord
further stated that he was taking no medication for the pain.
Dr. Giustolisi noted that although Lord appeared uncomfortable
during the examination, he "ambulate[d] into the office without
any difficulty" and dismounted the examination table "without any
undue discomfort." Examination of the back revealed decreased
forward flexion and lateral bending with normal extension and
rotation of the trunk. Lord was able to heel-and-toe walk
without difficulty. Dr. Giustolisi concluded that Lord could
perform light-duty work that did not involve prolonged standing.
8 stooping, squatting, or lifting more than 25 pounds. He rated
Lord as having a thirteen percent impairment of the whole body.
On April 11, 1994, Lord's attorney referred him to Dr.
Andrew Rudins for examination. Lord described an "ache" in his
lower back and a "slight ache" in the left buttock that would
occasionally become a deep pain following physical therapy. Dr.
Rudins noted that Lord experienced shortness of breath on
exertion, which Lord attributed to "heavy cigarette smoking."
Lord indicated that with the exception of weekly trips to the
grocery store and the bank, he generally stayed at home and
watched television. Although he stated that he could not mow the
lawn or shovel snow. Lord stated that he would do light
housekeeping chores such as cleaning-up and washing dishes.
On physical examination. Dr. Rudins noted Lord to be sitting
"comfortably in no obvious distress." His gait, including heel-
and-toe walking, was normal. Forward flexion of the trunk was
limited, while extension was not. Rotation and lateral extension
of the trunk were nearly full with no obvious discomfort. Dr.
Rudins found that Lord's prior whole person impairment rating of
twenty-two percent was reasonable. Additionally, Dr. Rudins
determined that Lord could perform work "at a light duty
9 capacity" and recommended that Lord participate in a home
exercise program, gradually increasing his physical activity
level. Noting that Lord's pain would likely persist for the
foreseeable future. Dr. Rudins recommended that Lord enter a
pain-management program.
In a June 29, 1994 notation. Dr. Rudins noted that Lord was
limited to "sedentary activities only due to pain." He noted
that plaintiff would reguire freguent rest breaks and again
recommended enrollment in a pain-management program.
B. Administrative Review of Lord's Applications
Lord first applied for SSDI benefits on July 19, 1991, and
was denied at the initial level of review. He did not appeal
that determination. Lord again applied for SSDI benefits on
April 26, 1994. This application was denied both at the initial
level of review and upon reconsideration.
Following these denials. Lord brought his case before an
ALJ. The ALJ who reviewed the case found that there was no good
reason to reopen Lord's 1991 application for benefits and limited
his review to Lord's 1994 application. He found that Lord
suffered from a severe impairment in the form of degenerative
disc disease but that the impairment did not meet or egual a
10 listed condition for the purposes of finding him disabled. In
addition, the ALJ found that based on the medical evidence. Lord
had the capacity to perform a full range of light and sedentary
work activities. The ALJ further found that Lord's pain was not
so severe or disabling as to have a significant impact on his
performance of a full range of light work activities. Because
Lord's prior work fell within the medium work activity range, the
ALJ concluded that Lord was unable to perform his past work.
Applying the Medical-Vocational Guidelines, however, the ALJ
found that there were numerous jobs in the national economy that
plaintiff was capable of performing. Therefore, the ALJ found
plaintiff not disabled.
II. STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant's application for benefits and upon a timely reguest by
the claimant, this court is authorized to: (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 Commissioner's decision. See 42
U.S.C.A. § 405(g). The court's review is limited in scope.
11 however, as the Commissioner's factual findings are conclusive if
they are supported by substantial evidence. See Irlanda Ortiz v.
Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st Cir.
1991); 42 U.S.C.A. § 405(g). The Commissioner is responsible for
settling credibility issues, drawing inferences from the record
evidence, and resolving conflicting evidence. See Irlanda Ortiz,
955 F.2d at 769. Therefore, the court must "'uphold the
[Commissioner's] findings . . . if a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
adeguate to support [the Commissioner's] conclusion.'" Id.
(guoting Rodriquez v. Secretary of Health and Human Servs., 647
F .2d 218, 222 (1st Cir. 1981)).
If the Commissioner has misapplied the law or has failed to
provide a fair hearing, however, deference to the Commissioner's
decision is not appropriate, and remand for further development
of the record may be necessary. See Carroll v. Secretary of
Health and Human Servs., 705 F.2d 638, 644 (2d Cir. 1983); see
also Slessinqer v. Secretary of Health and Human Servs., 835 F.2d
937, 939 (1st Cir. 1987) ("The [Commissioner's] conclusions of
law are reviewable by this court.") I apply these standards in
reviewing the issues plaintiff raises on appeal.
III. DISCUSSION
12 As a preliminary matter. Lord contends that the ALJ, while
nominally declining to reopen his 1991 application,
constructively reopened it by rendering a decision on the merits
of that application. Conseguently, Lord argues this court has
jurisdiction to review the denial of that application. See,
e.g., Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996); Morin
v. Secretary of Health and Human Servs., 835 F. Supp. 1414, 1422
(D.N.H. 1992). A review of the ALJ's hearing decision, however,
reveals that he based his denial of the 1994 application
primarily on evidence arising subseguent to the 1991 application.
To the extent that the ALJ discussed evidence relevant to Lord's
1991 application, it was as background information in support of
his ultimate denial of the 1994 application. Thus, I find that
the ALJ did not constructively reopen the 1991 application. See
Frustaglia v. Secretary of Health and Human Servs., 829 F.2d 192,
193 (1st Cir. 1987) ("[An] ALJ is entitled to consider evidence
from a prior denial for the limited purpose of reviewing the
preliminary facts or cumulative medical history necessary to
determine whether the claimant was disabled at the time of his
second application."); Giancola v. Shalala, 913 F. Supp. 638, 641
n .1 (D. Mass. 1996).
In determining whether a claimant is disabled, an ALJ must
13 use a five-step sequential analysis.3 See 20 C.F.R. § 404.1520
(1997). At step four, the ALJ determines whether the claimant's
impairment prevents him from performing his past relevant work.
Id. § 404.1520(e); Dudley v. Secretary of Health and Human
Servs., 816 F.2d 792, 793 (1st Cir. 1987). Such a determination
requires that the ALJ make: (1) an assessment of the claimant's
residual functional capacity ("RFC") -- i.e., what the claimant
can still do despite his impairment; and (2) an assessment of the
requirements of the claimant's past relevant occupations. See
Santiago v. Secretary of Health and Human Servs., 944 F.2d 1, 5
(1st Cir. 1991). If the ALJ finds that the claimant's RFC would
prevent him from performing the demands of his past relevant
work, the ALJ then proceeds to the fifth step of the sequential
analysis and determines whether there is other work in the
national economy that the claimant can perform. 20 C.F.R. §
3 The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful employment; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. See 20 C.F.R. §§ 404.1509, 404.1520.
14 404.1520(f); Bowen v. Yuckert, 482 U.S. 137, 141 (1987); Ortiz v.
Secretary of Health and Human Servs., 890 F.2d 520, 524 (1st Cir.
1989). Thus, at both the fourth and fifth steps of the
sequential analysis, the ALJ must assess the claimant's RFC: at
step four to determine whether the claimant can do his past
relevant work, and at step five to determine whether the claimant
can do other work, taking into consideration his age, experience,
and education. See Social Security Ruling ("SSR") 96-8p.
In the instant case, the ALJ determined at step four that
plaintiff had an RFC to perform a full array of light and
sedentary work activity. Finding that plaintiff's past relevant
work required medium- to heavy-duty work activity, the ALJ
concluded that plaintiff's impairment precluded him from
performing his past relevant work. At step five, the ALJ applied
the Medical-Vocational Guidelines and concluded that because
there are a substantial number of "light duty" jobs in the
national economy that plaintiff is capable of performing,
plaintiff is not disabled.
Plaintiff challenges the ALJ's decision on two bases.
First, plaintiff contends that the ALJ erred in assessing his RFC
as light duty. He contends that this conclusion: (a) is against
the weight of the medical evidence; and (b) ignores the effects
of the pain that his impairment causes him. Second, plaintiff
15 contends that in using the Medical-Vocational Guidelines, the ALJ
failed to take into account his non-exertional limitations. I
address each contention in turn.
A. The ALJ's Assessment of Plaintiff's RFC
In assessing a claimant's RFC, the ALJ reviews themedical
evidence regarding the claimant's physical limitations as well as
the claimant's own description of his physical limitations. See
Manso-Pizarro v. Secretary of Health and Human Servs., 76 F.3d
15, 17 (1st Cir. 1996). Where the claimant has shown he suffers
from an impairment that could reasonably be expected to produce
the pain alleged, the ALJ must take into consideration the
claimant's subjective evaluation of his pain and of the
limitations that his pain may impose on his ability to work. See
Avery v. Secretary of Health and Human Servs., 797 F.2d 19, 21
(1st Cir. 1986). However, the ALJ is not reguired to give credit
to the claimant's subjective evaluations of pain if they are
inconsistent with the medical findings that exist regarding his
condition. See Dupuis v. Secretary of Health and Human Servs.,
869 F.2d 622, 623 (1st Cir. 1989). Rather, after making specific
findings4 detailing the inconsistencies between the claimant's
4 In determining the credibility of the claimant's allegations regarding pain, the ALJ considers such factors as: (1) the nature, location, onset, duration, freguency, radiation.
16 allegations of pain and the objective medical findings, the ALJ
may discount the allegations in determining the claimant's RFC.
See id.
1. Medical Evidence Regarding Plaintiff's RFC
The medical evidence and opinions contained in the record
provide substantial support for the ALJ's finding the Lord has
the RFC to perform a full range of light and sedentary work
activities.5 See Gordils v. Secretary of Health and Human
Servs., 921 F.2d 327, 329 (1st Cir. 1990) (ALJ can render common-
sense judgments about a claimant's RFC based on review of medical
findings). First, the physician who reviewed Lord's file on
behalf of the state agency found Lord to have an RFC to perform
light work. See Berrios Lopez v. Secretary of Health and Human
Servs., 951 F.2d 427, 431 (1st Cir. 1991) (ALJ may rely on non
and intensity of the pain; (2) the precipitating and aggravating factors; (3) the type, dosage, effectiveness, and adverse side- effects of any pain medications; (4) the non-medication forms of treatment for relief of pain; (5) any functional restrictions; and (6) the claimant's daily activities. See Avery, 797 F.2d at 29.
5 Light work involves "lifting no more than 20 pounds at a time with freguent lifting or carrying of objects weighing up to 10 pounds;" freguent "walking or standing;" and freguent "sitting . . . with some pushing and pulling of arm or leg controls." See 20 C.F.R. § 404.1567(b). Further, "[i]f someone can do light work, . . . [he ordinarily] can also do sedentary work." Id. Sedentary work involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools;" occasional "walking and standing;" and freguent "sitting." See 20 C.F.R. § 404.1567(a).
17 examining physician's opinion as evidence of lack of disability,
particularly where such an opinion is supported by other evidence
in record). Second, several examining physicians found Lord
capable of performing light-duty work. For instance, in June
1991, Dr. Sobel was of the opinion that Lord should be
vocationally retrained, and, in October 1991, he noted that it
would be "fine" for Lord to return to light-duty work despite the
limitations imposed by his impairment. RFC testing conducted by
Dr. Sobel in October 1991 indicated that Lord even could perform
medium to heavy work, although these results were belied by
Lord's complaints of pain. In January 1992, Dr. Sobel noted that
Lord's flexibility had improved and recommended a back-
strengthening regime. Additionally, Dr. Rudins, a physician
recommended by Lords's attorney, found after an April 1994
examination that plaintiff could perform work "at a light duty
capacity" and recommended that Lord exercise in an effort to
gradually increase his physical activity level.
Plaintiff contends, however, that the ALJ should have
accorded controlling weight to the opinion of Dr. Smolen, his
primary treating physician, who concluded in April 1993 that
plaintiff was unable to work and would be "partially and
permanently disabled." See 20 C.F.R. § 404.1527(d)(2) (1997).
Although the Social Security regulations do sometimes reguire the
18 ALJ to give controlling weight to a treating physician's opinion
regarding a claimant's disability, this mandate is not absolute.
Rather, the ALJ need only do so where objective medical evidence
supports the treating physician's opinion and where the opinion
is not inconsistent with other evidence in the record. See id.;
SSR 96-2p. Additionally, "a medical source opinion that an
individual is 'disabled' or 'unable to work' . . . is an opinion
that is reserved for the Commissioner. . . . [T]he adjudicator
will not give any special significance to [such an] opinion
because of its source." SSR 96-8p n.8; see also Arrovo v.
Secretary of Health and Human Servs., 932 F.2d 82, 89 (1st Cir.
1991) (ALJ "not reguired to accept the conclusions of claimant's
treating physicians on the ultimate issue of disability").
The ALJ discounted Dr. Smolen's statement for several valid
reasons. First, he found the statement wholly inconsistent with
the opinions of Drs. Sobel, Rudins, and Giustolisi that Lord was
capable of performing light-duty work. Second, the ALJ found the
statements inconsistent with Dr. Smolen's prior assessments of
Lord's condition as well as with his subseguent determination
that the condition could improve to the point at which he could
perform light-duty work activities. Finally, the ALJ noted that
Dr. Smolen's statement may have been tainted by the litigation
posture of Lord's Workers' Compensation case. Dr. Smolen stated
19 that it was his opinion that Lord would not return to work until
the case settled. Thus, I find that the ALJ was justified in
discounting Dr. Smolen's opinion that plaintiff was disabled and
unable to work as inconsistent with not only other medical source
opinions but also with Dr. Smolen's own prior and subsequent
assessments. See 20 C.F.R. § 404.1527(d)(2); Arrovo, 932 F.2d at
8 9; Tremblay v. Secretary of Health and Human Servs., 67 6 F.2d
11, 13 (1st Cir. 1982) .
For similar reasons, the ALJ discounted Dr. Rudin's June
1994 statement that Lord was limited to sedentary activities.
The ALJ reasoned that the two-sentence, unsubstantiated report
directly contradicted Dr. Rudin's own April 1994 opinion that
upon examination plaintiff was capable of performing light-duty
work activities. The ALJ noted that there was no evidence in the
record to indicate that Lord's condition had changed since the
April 1994 assessment, nor was the June 1994 statement supported
by reasoning or evidence. Thus, the ALJ permissibly discounted
Dr. Rudin's June 1994 statement to the extent that it was
inconsistent with the remainder of the medical record.6
See Arrovo, 932 F.2d at 89; 20 C.F.R. § 404.1527(d)(2).
6 The ALJ also discounted Dr. Giustolisi's report on the basis of Dr. Giustolisi's lack of treatment history with Lord. Dr. Giustolisi's report was equivocal, finding plaintiff capable of light-duty work, though with certain restrictions.
20 2. Plaintiff's Complaints of Pain.
Lord contends that the pain he suffers as a result of his
back condition is so severe that it renders him unable to perform
light-duty and sedentary work activities. He argues that the ALJ
improperly discredited the effect of pain on his RFC and,
therefore, issued an erroneous decision. The Commissioner
contends that the medical record amply justifies the ALJ's
decision that Lord is capable of performing light and sedentary
work activities despite the pain his impairment causes. I agree.
In evaluating Lord's complaints of pain, the ALJ followed
the procedure set forth in 20 C.F.R. § 404.1529 (1997). Pursuant
to that procedure, the ALJ first found that Lord suffers from a
medically determinable impairment -- degenerative disc disease --
that could reasonably be expected to cause pain. See 20 C.F.R. §
404.1529(b). The ALJ then evaluated the extent to which Lord's
pain affects his capacity to work by inguiring, with reference to
the medical record, into the intensity and persistence of that
pain. See id. He concluded that Lord's back and leg pain were
not so severe as to preclude his performance of light and
sedentary work.
The evidence in the medical record amply supports the ALJ's
conclusion that Lord's pain does not render him disabled. MRI
testing and other neurological examination revealed the absence
21 of nerve-root damage contributing to the pain. The record
further reflects that Lord's leg pain had completely subsided by
January 1993 and was not the subject of ongoing treatment.
Despite his continued complaints of pain, physical examination
consistently revealed that Lord walked with a normal gait, was
able to heel-and-toe walk, hop, balance, and perform abdominal
crunches and leg raises without undue discomfort. Additionally,
several examining physicians observed that Lord was generally
able to walk comfortably into examining rooms, mount and dismount
examining tables without undue discomfort, and sit through the
examination without discomfort.
Other evidence from the administrative record supports the
ALJ's decision to discredit Lord's complaints of pain. The ALJ
found Lord's lack of ongoing treatment or medication inconsistent
with complaints of disabling pain. See Irlanda Ortiz, 955 F.2d
at 7 69 (treatment plan that did not provide for regular
monitoring serves as an indication that claimant's back spasm did
not cause unrelenting pain); Albors v. Secretary of Health and
Human Servs., 817 F.2d 146, 147 (1st Cir. 1986) (use of only
aspirin to control pain is evidence that pain is not disabling);
Boisvert v. Callahan, 997 F. Supp. 183, 186 (D. Mass. 1998)
(similar); SSR 96-7p. Although Lord stated that he did not
continue treatment because Dr. Smolen retired and that he did not
22 take medication because he could not afford it and does not like
it, these reasons do not explain why he did not consult another
physician or why medication was seldom even prescribed for his
condition.
Additionally, the conservative treatment regime prescribed
Lord's treating physicians supports the ALJ's decision to
discount his allegations of disabling pin. Lord's physicians
typically chose to treat his impairment conservatively,
recommending continued exercise, physical therapy, and enrollment
in a pain-management program, rather than cessation of all
activity. See Boisvert, 997 F. Supp. at 186-87 (ALJ properly
relied on conservative treatment regime in discounting claimant's
allegations of pain); SSR 96-7p (A claimant's allegations of pain
"may be less credible if the level or freguency of treatment is
inconsistent with the level of complaints."). Indeed, at one
point Dr. Smolen attributed Lord's pain to his sedentary
lifestyle rather than to his impairment. Another examining
physician similarly remarked that the longer Lord remained
inactive, the more difficult it would be for him to become
functional. Finally, significant gaps of time in between Lord's
treatments -- his medical record reveals no treatment from
January 1992 to January 1993 and from August 1993 to March 1994 -
- are inconsistent with complaints of disabling pain. See
23 Irlanda Ortiz, 955 F.2d at 769 (significant gaps in treatment
history not consistent with allegations of disabling pain).
Lord's own statements as to his own capabilities and
activities provide an additional basis on which the ALJ could
discount the credibility of Lord's allegations that his pain
prevents him from working. The ALJ noted that, albeit with some
attendant pain. Lord was able to drive a car, grocery shop, and
perform various household chores, such as dishwashing, washing
clothes, and cooking.7 The ability to engage in such activities
is inconsistent with allegations of disabling pain. See
Barrientos v. Secretary of Health and Human Servs., 820 F.2d 1, 3
(1st Cir. 1987) (ALJ properly discounted credibility of
claimant's allegations of lower-back pain where claimant admitted
she could cook, wash dishes, and do laundry); Delsie v. Shalala,
842 F. Supp. 31, 35 (D. Mass. 1994) (ALJ properly discounted
credibility of claimant's allegations of back pain where claimant
admitted she could perform household chores, shop, and drive).
The RFC assessment performed by the SSA physician at the
state level further supports the ALJ's decision to discredit
plaintiff's complaints of pain. See Berrios Lopez, 951 F.2d at
7 Although the ALJ did not specifically guestion Lord about his daily activities at the hearing, the ALJ had ample evidence before him when making his decision, including a four-page daily- activity form completed by Lord in May 1994. Moreover, the ALJ specifically drew from this evidence in support of his decision.
24 431-32; 20 C.F.R. § 404.1527(f)(2) (requiring ALJ to consider
findings of fact made by state-agency physicians); SSR 96-7p.
The SSA physician found that the severity of Lord's complaints of
pain were "not supported by objective medical evidence" and noted
that Lord had consistently refused surgery and seemed non-
compliant with respect to recommended exercise programs, diet,
and the cessation of smoking. Consequently, the SSA physician
concluded that despite his complaints of pain. Lord retained the
RFC to perform light-duty work activity. This report supports
the ALJ's conclusion that Lord retained the capacity to do light
work pursuant to 20 C.F.R. § 404.1567(b), see Gordils, 921 F.2d
at 329, and, when considered in conjunction with the other
medical evidence of record, further supports the ALJ's decision
to discount the credibility of Lord's allegations that his pain
prevents him from working. See Berrios Lopez, 951 F.2d at 431-
32 .
Based on the medical evidence and opinions contained in the
record as well as Lord's own assessment of his capabilities, I
find that substantial evidence exists supporting the ALJ's
determination that Lord has the capacity to perform light work
despite his allegations of pain.
B. The ALJ's Use of the Medical-Vocational Guidelines
At step five of the sequential analysis, the burden shifts
25 to the Commissioner to show that there are a significant number
of jobs in the national economy that the claimant can perform.
Bowen, 482 U.S. at 140-42; Goodermote v. Secretary of Health and
Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). "Where a
claimant's impairments involve only limitations in meeting the
strength reguirements of work," the Medical-Vocational
Guidelines, (the "Grid") , provide "a ’ 'streamlined' method by
which the [Commissioner] can carry this burden." Heggartv v.
Sullivan, 947 F.2d 990, 995 (1st Cir. 1991) (guoting Ortiz, 890
F.2d at 524). "Where a claimant has non-exertional impairments
in addition to exertional limits," however, the Grid may not
accurately reflect the availability of jobs the claimant can
perform. Id. at 996. Rather, if a non-exertional limitation
"significantly affects [the] claimant's ability to perform
substantially the full range of jobs" at a given strength level,
the Commissioner may not rely on the Grid to carry his burden and
the testimony of a vocational expert is usually reguired. Id.
(guoting Lugo v. Secretary of Health and Human Servs., 794 F.2d
14, 17 (1st Cir. 1986) ) .
In the instant case, the ALJ found that Lord did not suffer
from any non-exertional impairments. Accordingly, the ALJ
applied the Grid and found that Lord is not disabled. Lord
alleges that the medical record contains substantial evidence of
26 a limited ability to bend at the waist, which constitutes a non-
exertional impairment. See 20 C.F.R. § 404.1569a(c) (1) (vi)
1997); SSR 83-14. In failing to consider the impact that this
limitation has on his ability to perform light-duty work. Lord
contends, the ALJ improperly relied upon the Grid in finding that
there are a significant number of jobs that he is capable of
performing.
The medical record contains no evidence to support the ALJ's
conclusory statement that Lord suffers from no non-exertional
impairments. Rather, the medical record is replete with
references to Lord's limited ability to bend at the waist.
Nearly every physician who examined Lord noted objective findings
that Lord suffered from a limited ability to bend or stoop.
Depending on its severity, this limitation could well
circumscribe the number of jobs within the light-work category
that Lord might be able to perform. See Ortiz, 890 F.2d at 525
("[A]ny limitation [on the ability to bend from the waist] must
be considered very carefully to determine its impact on the size
of the occupational base of a person who is otherwise found
functionally capable of light work.") (guoting SSR 85-15).
Conseguently, the Commissioner's decision must be vacated
and remanded. See Heggartv, 947 F.2d at 996-97 (remand
appropriate where ALJ failed to assess the significance of non-
27 exertional limitations); Gagnon v. Secretary of Health and Human
Servs., 666 F.2d 662, 666 (1st Cir. 1981). On remand, the
Commissioner should determine whether Lord's limited ability to
bend at the waist is significant enough to limit his access to
the full range of jobs reguiring light-duty strength
capabilities. See Gagnon, 666 F.2d at 666. If he finds that it
is not, then he may rely on the Grid to determine whether Lord is
disabled. See Heggartv, 947 F.2d at 996; Ortiz, 990 F.2d at 524.
Conversely, if the Commissioner finds that Lord's limited ability
to bend at the waist does significantly impact his ability to
perform light work, then reliance on the Grid is improper and
consultation with a vocational expert may be reguired. Id.
IV. CONCLUSION
For the foregoing reasons. Lord's motion for an order
reversing the Commissioner's decision (document no. 5) is granted
in part, and the Commissioner's motion for an order affirming his
decision (document no. 7) is denied. The case is remanded to the
Commissioner for further consideration consistent with this
order.
SO ORDERED.
Paul Barbadoro Chief Judge
28 July 14, 1998 cc: Jonathan Baird, Esq. David Broderick, Esq.