Mandziej v. SSA CV-95-444-M 09/24/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John Mandziei, Plaintiff,
v. Civil No. 95-444-M
Shirley S. Chafer, Commissioner of Social Security Administration, Defendant.
O R D E R
Pursuant to section 2 0 5 (g) of the Social Security Act, 42
U.S.C. § 405(g), John Mandziej seeks review of a final decision
by the Commissioner of Social Security Administration, denying
his application for Social Security benefits. Before the court
is plaintiff's motion to reverse the decision of the
Commissioner. The Commissioner objects, and moves to affirm that
order. For the reasons set forth below, plaintiff's motion is
denied and the Commissioner's order is affirmed.
I. FACTS
Pursuant to the court's local rule 9.1(d), the parties have
submitted a joint statement of material facts, which provides as
follows: A. Medical Evidence
In 1994, John Mandziej was 47 years old and had previously
worked as an auto service advisor and a sales representative in
the communications industry. (Tr. 41, 54). He sold automotive
services from 1980-81 and communication services from 1985-90.
(Tr. 41, 57). He stopped working in 1990 allegedly due to
chronic back pain and has not been employed since. (Tr. 42-43) .
Plaintiff has a college degree. He is single and has no
dependents.
In 1991, Blake Thompson, M.D. examined and treated Mr.
Mandziej for his back impairment. (Tr. 101-115). In his
February 20, 1991 office notes. Dr. Thompson stated that
plaintiff complained of daily pain in the left hip and buttock
region, which had been present for several months. (Tr. 104).
This pain was exacerbated by prolonged walking, prolonged
sitting, prolonged standing, lifting, and riding in a car. (Tr.
102, 104). The pain was lessened when he lay down or when
sguatting or doing back exercises. (Tr. 101, 104). Examination
of plaintiff revealed decreased lumbar lordosis1 and moderate
1 Lordosis - An abnormal deformity: anteroposterior curvature of the spine, generally lumbar with the convexity looking anteriorly. Stedman's Medical Dictionary (Stedman's), 24th Ed.
2 tenderness to palpation in the left lower iliolumbar region.
(Tr. 105). Plaintiff had essentially normal reflexes, strength,
sensation, and range of motion. (Tr. 105-106) . Further,
plaintiff's Babinski's sign2 was negative, as was his straight
leg raising. (Tr. 106). X-rays of plaintiff's lumbar spine
revealed a five-segment lumbar spine with the intercristal3 line
through the L4-5 interspace and a Grade II spondylolisthesis4 at
L5-1. (Tr. 106). Dr. Thompson diagnosed plaintiff with a Grade
II spondylolisthesis of L5-S1 with degenerative disc disease and
possible nerve root impingement and left-sided iliolumbar strain
syndrome.5 (Tr. 107) . Dr. Thompson prescribed Motrin 800 mg.
three times per day and a trunk stability program to decrease
stress on the spine. (Tr. 107). He did not recommend surgery.
(1982), p. 810.
2 Babinski's sign - The loss or lessening of the Achilles tendon reflex in sciatica; this distinguishes it from hysterical sciatica. See Dorland's Illustrated Medical Dictionary (Dorland's), 28th ed. at p. 1521.
3 Intercristal - Between two crests, as between the crests of the ilia, applied to one of the pelvic measurements. Stedman's at p. 716.
4 Spondylolisthesis - The forward movement of the body of one of the lower lumbar vertebrae on the vertebra below it or upon the sacrum. Stedman's at p. 1322.
5 Iliolumbar - Pertaining to the iliac and lumbar regions, or to the flank and loin. Dorland's at p. 650.
3 On March 1, 1991, plaintiff reported improvement in his
condition with physical therapy and Motrin. (Tr. 108). He did,
however, still experience mild tenderness to palpation over the
left iliolumbar region. (Tr. 108). On March 15, 1991, Plaintiff
again reported improvement in his condition with continued
physical therapy, home exercises, and Motrin. (Tr. 109). Dr.
Thompson reviewed plaintiff's x-rays and observed spondylosis6 at
L5-S1 with spondylolisthesis. (.Id.). Dr. Thompson recommended
that Plaintiff obtain a lumbar support pillow for use while
sitting. (Tr. 109). Also, on that date. Dr. Thompson completed
a form stating that plaintiff was disabled due to lumbar strain
with spondylolisthesis. He noted, however, that plaintiff should
be able to return to his usual work in May 1991. (Tr. 150) .
On March 22, 1991, plaintiff reported severe back pain which
radiated into his hips and extended down his legs. (Tr. 110) .
Physical examination revealed tenderness to palpation in the
lumbar paraspinal muscles and buttocks area and pain with
straight leg raising. (Tr. 110). Dr. Thompson noted that
plaintiff was not performing his trunk stability exercises
6 Spondylosis - The degenerative narrowing of the spinal canal. N.Y.U. Dept, of Neurosurgery W.W.W. (3/4/96).
4 properly. He recommended changes to Plaintiff's physical therapy
program and prescribed Medrol Dosepak, Motrin, and a lumbosacral
support. (Tr. 110). Plaintiff returned on March 29, 1991 to see
Dr. Thompson and reported that his condition was greatly improved
and that he was experiencing much less pain.(Tr. 112). Dr.
Thompson continued treatment with physical therapy, home
exercises, and Motrin. (Tr. 112) .
In April 1991, Dr. Thompson reported that Plaintiff
continued to improve but still had significant discomfort in his
back. (Tr. 113). His regimen of treatment continued as before.
He was given approval to seek treatment with a chiropractor as
long as he did not undergo any forceful manipulation because of
his spondylolisthesis. (Tr. 113).
On April 22, 1991, plaintiff began receiving treatment from
Mark W. Stagnone, a chiropractor. (Tr. 114). At his initial
examination. Dr. Stagnone found that plaintiff had some
limitation of motion in his back and some spasm, but otherwise
Dr. Stagnone's findings were essentially normal. (Tr. 128-130).
Dr. Stagnone began seeing plaintiff one to two times per week.
5 Finally, in May 1991, plaintiff was reevaluated by Dr.
Thompson. (Tr. 114). At that time he was counselled on proper
exercise programs and told to engage in an aerobic exercise
program and a back stabilization program. (Tr. 114) . Dr.
Thompson stated that at that point, plaintiff would only be
followed on an as-needed basis. During the period plaintiff was
treated by Dr. Thompson, he received physical therapy on 21
occasions at Southwestern Physical Therapy for his back pain.
(Tr. 116-127).
Dr. Robert A. McPherson completed a certificate of
disability for plaintiff on May 23, 1991, and noted that
plaintiff had low back pain with sciatica. According to Dr.
McPherson, plaintiff would be disabled through July 23, 1991, at
which time he would be able to return to his former work. (Tr.
151) .
From May through September 1991, plaintiff continued visit
Dr. Stagnone for chiropractic manipulation. (Tr. 130). Progress
notes from those sessions show that plaintiff continued to
complain of pain in his lower back, but noted some improvement
from the chiropractic exercises. Dr. McPherson completed another
6 disability certificate for plaintiff on October 21, 1991. (Tr.
152). At that time. Dr. McPherson stated that plaintiff's
condition had improved but, if he stood for more than two hours,
he would become incapacitated by pain and would have to lie down
for an extended period of time. Dr. McPherson opined that
plaintiff would be disabled until December 1, 1991, at which time
he could return to his former work. (Tr. 152).
Plaintiff continued to be seen by Dr. Stagnone for
chiropractic manipulation from October 1991 through December
1991. (Tr. 130-131). Progress notes from those sessions show
that plaintiff continued to complain of pain in his lower back,
but noted some improvement from the chiropractic exercises.
Dr. McPherson apparently treated plaintiff from April 1991
to March 1992.7 (Tr. 129-132). His progress notes document
treatment for pain, tenderness, and spasm in the low back region
because of plaintiff's spondylolisthesis. (Tr. 129-132).
Plaintiff was treated for a dislocated left elbow in December
7 The Exhibit List in the transcript (Tr. 1) indicates that the medical records in the transcript at pages 128-135 are from Dr. Stagnone. A closer look at these pages suggests that pages 129- 132 were from Dr. McPherson and pages 128, 133-135 were from Dr. Stagnone, a local chiropractor in Nashua, New Hampshire.
7 1991, (Tr. 136-138), which he claims was caused by a fall that
was precipitated by the instability of his back condition. (Tr.
159) .
Plaintiff resumed treatment with Dr. Stagnone from
September-October 1993. (Tr. 128, 133-135). Dr. Stagnone's
initial office notes from this period record plaintiff's
complaints of pain, especially during periods of sitting or
standing. (Tr. 128). He also noted that plaintiff reported that
pain medication was only effective when he took it for sciatic
pain. (Tr. 128). On September 14, 1993, Dr. Stagnone wrote that
physical examination revealed objective evidence of continued
lower back problem. (Tr. 135). In Dr. Stagnone's professional
opinion as a chiropractor, plaintiff's condition continued to
impair his ability to pursue gainful employment. (Tr. 135). Dr.
Stagnone subseguently provided a radiographic report in which he
found Grade II spondylolisthesis L5, moderately advanced lumbar
disc degeneration L5-S1 without evidence of spondylitic changes
and left rotatory lumbar scoliosis with associated pelvic
imbalance. (Tr. 134). At Social Security's request, Ralph Wolf, III, M.D.
performed a consultative examination on plaintiff in December
1993. (Tr. 139-140). He noted plaintiff's complaints, including
pain of three years' duration which was incompletely relieved
with bracing, chiropractic manipulation, and physical therapy.
(Tr. 139). Upon examination. Dr. Wolf found that plaintiff had
no lumbar deformities and could perform straight leg raises.
(Tr. 139). Additionally, he noted that plaintiff's sensation,
motor function, and reflexes were intact. X-rays of the lumbar
spine revealed mature. Grade II, L5-S1 spondylolisthesis. (Tr.
139). Dr. Wolf diagnosed plaintiff's condition as L5-S1
spondylolisthesis with sciatica (Tr. 139), but he opined that
plaintiff could perform any sitting or driving work with a mild
amount of walking. (Tr. 139). He did, however, believe that
plaintiff was permanently disabled from any heavy manual labor.
(Tr. 140). Finally, Dr. Wolf indicated that, despite any future
treatment, plaintiff's condition was unlikely to change (Tr.
139), and, therefore, he should begin training for sitting work.
(Tr. 139) .
On December 28, 1993, Dr. Munro Proctor performed a residual
functional capacity assessment. (Tr. 63-70). He found that. despite plaintiff's pain and X-ray evidence of spondylolisthesis,
he could occasionally lift 20 pounds, frequently lift 10 pounds,
and could sit, stand and walk, each for up to 6 hours. (Tr. 64,
70). While plaintiff could not repetitively reach, his ability
to push and pull was unlimited, and he could occasionally climb,
balance, stoop, kneel, crouch, and crawl. (Tr. 64-66). No other
limitations were noted. (Tr. 66-67). That assessment was
affirmed in its entirety by Dr. A.C. Campbell in February 1994.
(Tr. 70, 75) .
B. Hearing Testimony
1. Claimant
Plaintiff appeared at his November 29, 1994 hearing without
counsel (Tr. 31, 33) and chose not to be represented after being
questioned by the ALJ. (.Id.) . He testified that he was unable
to work because he experienced severe continuous pain from lack
of stability in his lower back. (Tr. 44). He described the pain
as a sharp, stabbing pain that would run down his leg. On other
occasions, the pain was hot or dull. He described the pain as
being at a toothache level of severity, and said that it was
intensified by sitting or standing. (Tr. 44). Plaintiff
testified that his most comfortable position was sitting with his
10 legs above his head because it seemed to cut down on the pressure
in his lower back. (Tr. 50). His sleep was disrupted by the
pain and this prevented him from keeping on a schedule. (Tr.
44). He took Ibuprofen (Motrin) but it didn't seem to have much
affect on his pain. (Tr. 46).
His daily activities included cooking with a microwave.
(Tr. 47). He also did his own housecleaning and food shopping.
He used a self-propelled lawn mower to cut his grass and
purchased a snowblower to handle the snow shoveling. Plaintiff
indicated that because of his impaired sleep habits, he would get
up in the morning around 11:30 a.m. (Tr. 48-49). He would use
some traction eguipment, and in the afternoon he would often (4-5
times per week) go to a gymnasium and perform some exercises
including leg presses. (Tr. 49). This helped to temporarily
relieve him of pain. (.Id.) . He had previously been walking for
exercise but had switched to swimming. (Tr. 51). Most of the
day he spent lying down or sitting with his feet up. (.Id.) .
2. Vocational Expert
A vocational expert testified at plaintiff's hearing. He
noted that plaintiff's prior relevant jobs as a sales
11 representative in the communications industry and as an auto
service advisor were skilled jobs that involved a light level of
exertion. (Tr. 54). In a hypothetical, the ALJ asked the
vocational expert to assume that someone was able to lift and
carry objects up to 20 pounds during the day and had a job which
did not reguire freguent bending at the waist to pick up objects
off the floor. Additionally, he was asked to assume that
freguent overhead reaching was restricted, as were bending,
stooping, crouching and crawling. This person could work in a
sitting or standing position which might include short amounts of
walking. However, he or she would need to be able to change
positions from time to time. With these assumptions, the ALJ
asked the vocational expert if this person could perform
plaintiff's prior work. The vocational expert responded that
such a person could perform the auto service advisor job but not
necessarily the sales representative job because of the
substantial amounts of driving involved. (Tr. 55-56). In
response to the ALJ's hypothetical involving a person who would
have to lie down on a fairly regular basis during the work day or
at least be in a sitting position with his or her feet up on a
table, the vocational expert testified that such a person would
12 not be able to perform plaintiff's prior jobs or any other type
of skilled or unskilled work. (Tr. 56).
II. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Secretary, with or without remanding the cause for a rehearing."
Factual findings of the Secretary are conclusive if supported by
substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Irlanda
Ortiz v. Secretary of Health and Human Servs., 955 F.2d 765, 769
(1st Cir. 1991) .8
In making those factual findings, the Secretary must weigh
and resolve conflicts in the evidence. Burgos Lopez v. Secretary
of Health & Human Servs., 747 F.2d 37, 40 (1st Cir. 1984) (citing
Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It is "the
8 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLR B , 305 U.S. 197, 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n., 383 U.S. 607, 620 (1966).
13 responsibility of the Secretary to determine issues of
credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
Secretary, not the courts." Ortiz, 955 F.2d at 769 (citing
Rodriquez, 647 F.2d at 222). And, the court will give deference
to the ALJ's credibility determinations, particularly where those
determinations are supported by specific findings. Frustaqlia v.
Secretary of Health & Human Servs., 829 F.2d 192, 195 (1st Cir.
1987) (citing Da Rosa v. Secretary of Health and Human Servs.,
803 F .2d 24, 26 (1st Cir. 1986)).
An individual seeking Social Security disability benefits is
disabled under the Act if he or she is unable "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 has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C.
§ 416(1)(1)(A). The Act places a heavy initial burden on the
plaintiff to establish the existence of a disabling impairment.
Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987); Santiago v.
Secretary of Health and Human Servs., 944 F.2d 1, 5 (1st Cir.
1991). To satisfy that burden, the plaintiff must prove that his
14 impairment prevents him from performing his former type of work.
Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v. Secretary of Health and Human Servs., 690 F.2d 5, 7
(1st Cir. 1975)). Nevertheless, the plaintiff is not reguired to
establish a doubt-free claim; the initial burden is satisfied by
the usual civil standard, a "preponderance of the evidence." See
Paone v. Schweiker, 530 F. Supp. 808, 810-11 (S.D. Miss. 1982).
In assessing a disability claim, the Secretary considers
objective and subjective factors, including: (1) objective
medical facts; (2) plaintiff's subjective claims of pain and
disability as supported by the testimony of the plaintiff or
other witness; and (3) the plaintiff's educational background,
age, and work experience. See, e.g., Avery v. Secretary of
Health and Human Servs., 797 F.2d 19 (1st Cir. 1986); Goodermote,
690 F .2d at 6.
Once the plaintiff has shown an inability to perform his
previous work, the burden shifts to the Secretary to show that
there are other jobs in the national economy that he can perform.
Vazquez v. Secretary of Health and Human Servs., 683 F.2d 1, 2
(1st Cir. 1982). If the Secretary shows the existence of other
jobs which the plaintiff can perform, then the overall burden
15 remains with the plaintiff. Hernandez v. Weinberger, 493 F.2d
1120, 1123 (1st Cir. 1974); Benko v. Schweiker, 551 F. Supp. 698,
701 (D.N.H. 1982). Ultimately, the Secretary of Health and Human
Services will find a plaintiff disabled only if the plaintiff's:
physical or mental impairment or impairments are 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 . . . .
42 U.S.C. § 4 2 3 (d)(2)(A).
With those principles in mind, the court reviews plaintiff's
motion to reverse the decision of the Secretary.
III. DISCUSSION
In concluding that Mr. Mandziej was not disabled within the
meaning of the Act, the ALJ utilized the mandatory five-step
seguential evaluation process set forth in 20 C.F.R. §§ 404.1520,
416.920 (1995) .9 Step 4 of the evaluation process reguires the
9 The ALJ is reguired to make the following five inguiries when determining if a claimant is disabled:
(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment;
16 ALJ to determine whether, despite the plaintiff's impairment, he
retains the residual functional capacity ("RFC") to perform his
past relevant work. At step 4, the ALJ determined that Mandziej
had the residual functional capacity to perform the exertional
and nonexertional requirements of light work and, therefore,
could perform his past relevant work as an automobile service
advisor. (Tr. 20). Accordingly, the ALJ concluded that Mandziej
was not disabled within the meaning of the Social Security Act.
Plaintiff, who appeared before the ALJ unrepresented by
counsel, first argues that his waiver of the right to have
counsel present was neither knowing nor voluntary. Additionally,
he advances three interconnected arguments in support of his
claim that the ALJ's denial of disability benefits is not
supported by the evidence. Specifically, he claims: (1) the ALJ
failed to fully develop his claim for disability benefits; (2)
the ALJ did not set forth specific findings regarding plaintiff's
(3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work.
20 C.F.R. § 404.1520.
17 past relevant work; and, (3) the ALJ failed to properly weigh
plaintiff's regimen of treatment. Each of these alleged errors
took place at Step 4 of the ALJ's five-step seguential analysis.
A. Lack of Representation by Counsel
Plaintiff suggests, without actually expressly stating, that
his waiver of the right to counsel at the hearing was
ineffective. See Plaintiff's Memorandum at 11, n. 5. Claimants
for Social Security disability benefits have a statutory right to
counsel at hearings. See 42 U.S.C. 406; see also 20 C.F.R.
404.1705. However, the right to counsel "falls well below the
Sixth Amendment threshold" applicable in criminal cases.
Evangelista v. Secretary of Health and Human Servs., 826 F.2d
136, 142 (1st Cir. 1987). As part of the right to counsel,
claimants should be appropriately notified of that right.
Claimants may, following sufficient notification of the right to
counsel, waive the right by intelligently deciding to proceed pro
se. See Evangelista, 826 F.2d at 142; see also Edwards v.
Sullivan, 937 F.2d 580, 585-86 (11th Cir. 1991); Wingert v.
Bowen, 894 F.2d 296, 298 (8th Cir. 1990); Holland v. Heckler, 764
F.2d 1560, 1562-63 (11th Cir. 1985). And, "a flaw in the notice
does not automatically reguire that the case be remanded.
18 Rather, claimants must also show that they were prejudiced by
their lack of representation." Marsh v. Secretary of Health and
Human Servs., slip op., 1994 WL 587803 (D.N.H. Oct. 25, 1994).
Here, plaintiff has failed to demonstrate that his waiver of
the right to be represented by counsel was any less than knowing
and voluntary. Nor has he demonstrated any actual prejudice
stemming from his lack of legal representation. Plaintiff, who
is college-educated, was repeatedly notified of his right to
counsel and told of the advantages of having counsel present at
the hearing. (Tr. 24, 28, 29, 71, 77). The waiver of counsel at
the beginning of the hearing was informed and effective.
B. Development Of The Record
Although the burden is initially on the claimant to prove he
is unable to perform his previous work, when a claimant is
unrepresented, the ALJ has a heightened duty to develop the
record. Heggartv v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991);
see also Carillo Marin v. Secretary of Health and Human Servs.,
758 F.2d 14, 17 (1st Cir. 1985); Currier v. Secretary of Health,
Educ. and Welfare, 612 F.2d 594, 598 (1st Cir. 1980). The ALJ
must develop the record with specific information and without
19 evidentiary omissions. Upon reviewing that record, the court
must determine "whether the [alleged] incomplete record reveals
evidentiary gaps which result in prejudice to the plaintiff."
Gauthnev v. Shalala, 890 F. Supp. 401, 410 (E.D. Pa. 1995). If
the ALJ fails to fill those evidentiary gaps, and if they
prejudice plaintiff's claim, remand is appropriate. (I d .).
Here, plaintiff argues that the ALJ did not adeguately
develop the record to reflect all of the relevant facts and
evidence. Plaintiff's Memorandum at 11-17. He claims that this
resulted in evidentiary gaps that undermined his credibility.
First plaintiff disputes the ALJ's assessment of his RFC,
arguing that the ALJ did not extensively guestion him regarding
the specifics of his daily activities and the exertional
reguirements of his past jobs. In determining a claimant's RFC,
the ALJ must consider tasks that can be performed despite a
claimant's physical or mental limitations. 20 C.F.R. § 404.1545.
So, the ALJ will evaluate medical, physical, and mental factors;
plaintiff's descriptions of his impairments and limitations;
relevant medical evidence; and other relevant evidence. Avery,
797 F.2d at 25-30; Evangelista, 826 F.2d at 144. However, the
20 burden remains with the claimant to prove he is unable to return
to his previous work. " [N]ot only must the claimant lay the
foundation as to what activities [his] former work entailed, but
[he] must point out . . . how [his] functional incapacity renders
[him] unable to perform [his] usual work." Santiago, 944 F.2d at
5.
After reviewing the record and questioning plaintiff and the
vocational expert, the ALJ concluded that plaintiff retained the
functional capacity to alternate between sitting and standing,
and to perform work that required light amounts of exertion.
(Tr. 47-52). Plaintiff admitted that he can perform a variety of
daily tasks including cooking, food shopping, house cleaning,
exercising, lawn mowing, and snow-blowing, and travel to a gym
for exercise. (.Id.) . The record also contains medical evidence
to support the ALJ's determination that plaintiff was not
disabled. See, e.g., Tr. 62-70 (Disability determination made by
Dr. Muro Proctor, dated January 6, 1994, concluding that
plaintiff is capable of light work); Tr. 75 (Dr. A.C. Campbell's
affirmation of Dr. Proctor's opinion.). Plaintiff, on the other
21 hand, presented only his chiropractor's opinion that he is
permanently disabled. (Tr. 63-70, 75, 104-114, 139-140).10
In the end, it is clear that the ALJ adequately developed
the record and, to the extent that plaintiff has identified
evidentiary gaps, they are not material.
Next, plaintiff argues that the ALJ did not thoroughly
question the vocational expert. Plaintiff's Memorandum at 15.
The record demonstrates that the ALJ properly qualified the
vocational expert and established a foundation for his testimony.
(See Tr. 52, 144-149). The record also shows that the ALJ
properly questioned the vocational expert, posing a hypothetical
that incorporated plaintiff's impairments, limitations, and
relevant past work activities. (Tr. 53-56). The ALJ also
afforded plaintiff the opportunity to question the vocational
expert and supplement the hypothetical. (Tr. 56). In light of
10 Chiropractors are not considered an acceptable source of medical evidence regarding the claimant's impairment. 20 C.F.R. 404.1513 (a). Accordingly, the ALJ is entitled to give their opinions regarding the nature and scope of the plaintiff's impairment less weight. Diaz v. Secretary of Health & Human Servs., 59 F.3d 307, 314 (2d Cir. 1995); Cronkhite v. Secretary of Health & Human Servs., 935 F.2d 133, 134 (8th Cir. 1991) . See also 20 C.F.R. § 404.1513 (e).
22 this, the court concludes that the vocational expert's testimony
was properly received and developed.
Plaintiff also contends that the ALJ failed to obtain
records from November 1993 through November 1994 from Mark
Stagnone, plaintiff's chiropractor. He claims that the ALJ's
failure to obtain those records resulted in an evidentiary gap
that undermined his credibility and prejudiced his claim.
Plaintiff's Memorandum at 16-17.
It is unclear if plaintiff claims that chiropractor
Stagnone's records constitute "new" evidence of plaintiff's
impairment which would, if properly submitted, constitute grounds
for remand. See Evangelista, 826 F.2d at 139. However, to be
considered as new evidence, it must be material (i.e., not merely
cumulative) and good cause must be shown as to why the evidence
was not incorporated in a prior proceeding. (.Id.) . Here,
plaintiff has not crossed that threshold. Mark Stagnone's latest
report contains no new information regarding plaintiff's
impairments or restrictions. See Plaintiff's Memorandum,
Attachment F; see also Tr. 62-69, 75, 81-86, 101-114. Moreover,
23 at the hearing, the ALJ specifically asked plaintiff if he wished
to supplement the record with additional materials:
ALJ: I'm going to take just a moment to go over the documents that we have set aside in the record and you've had a chance to look these documents over before the hearing today. These are important papers that have been assembled. Many of these documents you will have your own copies of. We had marked all of these documents as Exhibits 1 through 22. Any my first guestion to you this morning is do you have any other medical records or any other statements with you this morning that I don't have that you would like to introduce?
CLMT: No.
Tr. 34-35 (emphasis added). In light of that exchange, plaintiff
can hardly complain that the ALJ failed to identify (and remedy)
the alleged evidentiary gap.
Finally, plaintiff's claim for Social Security benefits was
not prejudiced by the failure to acguire those records; even if
the ALJ had considered Stagnone's most recent report, it would
not been entitled to controlling weight. 20 C.F.R. § 404.1513
(e) (3); Diaz v. Shalala, 59 F.3d 307, 313, n.5 (2d Cir. 1995).
Plaintiff has not explained how that factor might have altered
the ALJ's determination, or how he was prejudiced by its absence.
24 Despite plaintiff's claims to the contrary, it is clear that
the ALJ properly gathered and considered the necessary
documentary evidence upon which to base his conclusion that Mr.
Mandziej was not disabled within the meaning of the Act.
Ultimately, the ALJ need not make out a pro se claimant's case.
See Holland, 764 F.2d at 1563. Here, even taking into
consideration the fact that plaintiff elected to proceed pro se ,
the ALJ adeguately raised, explored, and considered the relevant
evidence concerning plaintiff's claim for Social Security
benefits.
It is not enough to say that had [the ALJ] seen more information his decision would have been different. It is probable that in all pro se cases additional material could have been generated by counsel. But where the evidence before the ALJ is sufficient to lead to a determination, it is not a due process violation that his investigation failed to produce the additional information.
Id.; See also, Evangelista, 826 F.2d at 142; Edwards, 937 F.2d at
585-86; Born v. Secretary of Health & Human Servs., 923 F.2d
1168, 1172 (6th Cir. 1990); Wingert, 894 F.2d at 298.
Accordingly, the court holds there are no prejudicial gaps in the
evidence that would constitute grounds for reversal or remand of
the ALJ's decision.
25 C. Prior Work
Next, plaintiff contends that the ALJ neglected to question
him regarding the physical and mental requirements of his past
relevant work experience as automobile service advisor.
Plaintiff's Memorandum at 17. Because the ALJ failed to do this,
plaintiff says the record does not contain specific findings of
fact to support a determination that plaintiff was capable of
returning to work as an automobile service advisor. Plaintiff's
Memorandum at 17-18.
This argument is similar to the one previously considered
and, for the reasons stated above, it too must fail. The record
contains substantial evidence to support the conclusion that
plaintiff is ineligible for Social Security benefits. Plaintiff
simply did not discharge his initial burden in step four of the
five-step sequential analysis. See Santiago, 944 F.2d at 5.
The record before the ALJ contained information regarding
the specific physical and mental requirements of plaintiff's past
relevant work experience. In fact, plaintiff himself provided a
detailed description of the job requirements of an automobile
service advisor. (Tr. 85-86). In short, the ALJ sufficiently
developed the record regarding the specific physical and mental
26 requirements of plaintiff's past relevant work. Plaintiff's
claims to the contrary are unavailing.
D. Regimen Of Treatment
Finally, plaintiff argues that the ALJ failed to properly
consider his regimen of treatment. Plaintiff's Memorandum at 18.
The ALJ noted that plaintiff exercised at a health club four
times per week, swam, performed leg exercises, and used traction
equipment. (Tr. 19). Plaintiff claims that rather than
considering his treatment regimen as evidence of his disability,
the ALJ improperly considered it as evidence which: (1)
demonstrated plaintiff's physical abilities actually exceeded the
limitations plaintiff claimed; and (2) undermined plaintiff's
credibility, particularly with regard to his subjective
complaints of constant and debilitating pain. Plaintiff's
Memorandum at 18-19.
Regimen of treatment is but one factor to assist the ALJ in
his determination of the claimant's credibility. See 20 C.F.R.
§404.1529 (c)(3)(i), (v), (vi); see, e.g., Harrell v. Harris, 610
F.2d 355, 359 (5th Cir. 1980); Epps v. Harris, 624 F.2d 1267,
1273 (5th Cir. 1980). The record reveals that the ALJ considered
27 plaintiff's regimen of treatment as well as other evidence of
impairment. (See Tr. 19, 49, 50, 51). The evidence plainly
supports the ALJ's conclusion that plaintiff's physical exercise
program, at a minimum, suggests that he is able to engage in
light exertional work. While other courts have utilized regimen
of treatment as substantial evidence of impairment when the
regimen hindered the claimant's working ability, see, Ferraris v.
Heckler, 728 F.2d 582, 586-87 (2d Cir. 1984), plaintiff does not
claim that his treatment regimen reguired so much time that it
would have interfered with his ability to work. Accordingly, his
argument must fail.
Ultimately, in reaching his conclusion that plaintiff was
not disabled, the ALJ appears to have relied heavily upon the
lack of any medical certification that plaintiff was actually
disabled (in fact, the medical opinions suggested that plaintiff
was not disabled) and his belief that plaintiff's subjective
complaints of constant and debilitating pain were not entirely
credible. Of course, the ALJ is reguired to consider the
subjective complaints of pain by a claimant who presents a
"clinically determinable medical impairment that can reasonably
be expected to produce the pain alleged." 42 U.S.C. §
28 423(d)(5)(A); Avery v. Secretary of Health and Human Servs., 797
F .2d 19, 21 (1st Cir. 1986); 20 C.F.R. § 404.1529. And,
"complaints of pain need not be precisely corroborated by
objective findings, but they must be consistent with medical
findings." Dupuis v. Secretary of Health and Human Servs., 869
F.2d 622, 623 (1st Cir. 1989). The ALJ is not, however,
"reguired to take the claimant's assertions of pain at face
value." Bianchi v. Secretary of Health and Human Servs., 7 64
F.2d 44, 45 (1st Cir. 1985) (guoting Burgos Lopez v. Secretary of
Health and Human Servs., 747 F.2d 37, 40 (1st Cir. 1984)).
When a claimant complains that pain or other subjective
symptoms are a significant factor limiting his or her ability to
work, and those complaints are not fully supported by medical
evidence contained in the record, the ALJ must consider
additional evidence, such as the claimant's prior work record;
daily activities; location, duration, freguency, and intensity of
pain; precipitating and aggravating factors; type, dosage,
effectiveness, and side effects of any medication taken to
alleviate pain or other symptoms, past or present; treatment,
other than medication, received for relief of pain or other
symptoms, past or present; any measures used, past or present, to
29 relieve pain or other symptoms; and other factors concerning
functional limitations and restrictions due to pain. 20 C.F.R.
§ 416.929(c)(3); Avery, 797 F.2d at 23.
Here, the ALJ considered such evidence and made specific
findings in support of his conclusion that plaintiff's "testimony
was not credible." (Tr. 18) For example, the ALJ properly
considered plaintiff's ability to perform household chores, his
ability to exercise and swim three or four times each week, his
lack of reliance upon prescription pain medications, his lack of
any need for regular medical attention, his lack of any cognitive
deficits (which one might expect to see in an individual
suffering from the pain claimant describes), and plaintiff's
conduct at the hearing itself. (Tr. 18-19).
The court cannot find that the ALJ's interpretation of
plaintiff's subjective complaints of pain was unsupported by the
record. It was.
IV. CONCLUSION
For the reasons stated above, the court holds that the ALJ
properly developed the record and considered all the relevant
30 evidence in making his determination. His conclusion that
plaintiff is not disabled within the meaning of the Act and,
therefore, not entitled to receive Social Security benefits, is
supported by substantial medical evidence. Accordingly,
plaintiff's motion to reverse the decision of the Secretary
(document no. 7) is denied. Defendant's motion to affirm the
decision of the Commissioner (document no. 9) is granted.
SO ORDERED.
Steven J. McAuliffe United States District Judge
September 24, 1996
cc: Raymond J. Kelly, Esg. David L. Broderick, Esg.