Russell v . SSA CV-03-23-B 1/9/04
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jane Ann Russell
v. Civil No. 03-023-B Opinion No. 2004 DNH 009
Jo Anne B . Barnhart, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Jane Ann Russell applied for Title II Social Security
Disability Insurance Benefits on August 8 , 1996. Russell alleged
an inability to work since June 1 6 , 2000, due to migraines and
backache. The Social Security Administration (“SSA”) denied her
application initially and on reconsideration. Administrative Law
Judge (“ALJ”) Robert Klingebiel held a hearing on Russell’s claim
on April 9, 2002. In a decision dated May 3 0 , 2002, the ALJ
found that Russell was not disabled. On December 9, 2002, the
Appeals Council denied Russell’s request for review, rendering the ALJ’s decision the final decision of the Commissioner of the
SSA.
Russell brings this action pursuant to § 405(g) of the
Social Security Act (the “Act”) seeking review of the denial of
her application for benefits. See 42 U.S.C. § 405(g) (2000).
She challenges his determination that her subjective claims of
pain and impairment were not credible, his decision not to give
substantial weight to the opinion of the physician’s assistant
who treated her, and his determination that her migraines did not
pose non-exertional limitations on her ability to work, thereby
requiring the testimony of a vocational expert to determine if
there were jobs she could perform. Before me are Plaintiff’s
Motion for Order Reversing the Decision of the Commissioner (Doc.
N o . 8 ) and Defendant’s Motion for an Order Affirming the Decision
of the Commissioner (Doc. N o . 1 0 ) . For the reasons set forth
below, I conclude that the ALJ’s decision that Russell was not
entitled to benefits is supported by substantial evidence.
Therefore, I affirm the Commissioner’s decision and deny
Russell’s motion to reverse.
-2- I. BACKGROUND1
Jane Russell was 41 years old at the time of the
administrative hearing. She had completed eighth grade and
subsequently obtained her GED. Her past relevant work was as a
certified nursing assistant.2
Russell was treated for migraine headaches at the
Hitchcock Clinic. Clinical notes reveal that in April, 1999, she
had full range of motion and full extremity strength, but
tenderness to palpation at the occipital muscles and palpable
tenderness over the paravertebral muscles of the cervical spine
into the trapezia. She was given an injection of Demerol3 by
Elizabeth Doak, a physician’s assistant, which relieved her pain
within fifteen minutes. On August 2 9 , 1999, Russell returned to
the clinic, complaining of another severe migraine. Doak noted
1 Unless otherwise noted, the procedural and factual background set forth in this Memorandum and Order derives (and at points is excepted verbatim) from the parties’ Joint Statement of Material Facts (Doc. N o . 1 1 ) . 2 She testified to two different dates. (Tr. at 3 4 ; T r . at 3 8 ) . It appears that her doctors believed she was going to work at least through August 2000. (Tr. at 2 1 3 ) . 3 Demerol is used for the relief of pain. Physicians’ Desk Reference 2991 (57th ed. 2003).
-3- that Russell had taken medications such as Skelaxin and Midrin4
as well as over-the-counter pills, and continued to smoke. Doak
again administered Demerol, which relieved Russell’s pain within
twenty minutes.
Three days later, Russell returned due to another migraine.
Her symptoms were the same as during her previous visit. Doak
suggested that Russell start exercising and stop smoking. She
gave Russell a prescription for Inderal and Flexeril, and gave
her a Toradol injection which relieved her headache within twenty
minutes.5 On September 8 , Doak found some c r e p i t u s 6
of motion, pain with backward flexion of the neck and palpable
tenderness over the cervical spine and paravertebral muscles.
Otherwise, Russell’s range of motion was full, extremity strength
was five out of five, and there was no evidence of thoracic
4 Midrin is used to treat tension or vascular headaches and Skelaxin is used to treat musculoskeletal discomfort. Physician’s Desk Reference at 3366, 1274. 5 Inderal is used prophylactically for migraines, Flexeril is used to relieve muscle spasms, and Toradol is used for short term pain management. Physicians’ Desk Reference at 1280, 1897, and 2942. 6 Crepitus is the grating of a joint. Stedman’s at 424.
-4- outlet syndrome.7 An X-ray of Russell’s cervical spine was
negative. Doak refilled the prescription for Midrin and prescribed Ultram.8
On March 3 , 2000, Russell was in a car accident. She was
seen in the emergency room of Catholic Medical Hospital.
Although she noted that she was not experiencing any neck pain,
she stated that she had numbness in her left leg and pain in her
mid-back. She was discharged that day with a prescription for
Celebrex9 and Skelaxin and instructions to rest and use ice for
the next 2-3 days. On March 5 , 2000, D r . Gendron noted that
Russell’s lumbar spine X-rays were normal, that her symptoms
appeared to exceed the findings of diffuse tenderness and
decreased range of motion, and that she was requesting Percocet
7 Thoracic outlet syndrome (TOS) consists of a group of distinct disorders that affect the nerves in the brachial plexus (nerves that pass into the arms from the neck) and various nerves and blood vessels between the base of the neck and axilla (armpit). Stedman’s at 1769. 8 Ultram is used to treat pain. Physicians’ Desk Reference at 2510. 9 Celebrex is used as treatment for osteoarthritis. Physicians’ Desk Reference at 2589.
-5- and Darvocet by name.10
On March 2 0 , 2000, D r . Webber examined Russell and noted
that she was reporting more frequent headaches following the
accident. D r . Webber found that Russell had tenderness and pain
radiating to her lower back. She prescribed Paxil11 and
indicated that Russell was to reduce usage of Flexeril and
Celebrex, continue physical therapy, and that she could work up
to four hours at a desk each day. Russell returned one week
later complaining of a migraine and lower extremity numbness.
She was given Imitrex12 subcutaneously and forty minutes later
her headache was partially relieved. On March 2 7 , 2000, Russell
reported that she developed another migraine when she ran out of
Skelaxin, and could not return to work on Monday. D r . Webber
noted that Russell had been “real active scrubbing floors and
mopping” the previous week. (Tr. at 1 9 7 ) .
10 Percocet and Darvocet are used to treat pain. Physicians’ Desk Reference at 1304, 3503. 11 Paxil is an anti-depressant. Physicians’ Desk Reference at 1603. 12 Imitrex is used for migraines. Physicians’ Desk Reference at 1542.
-6- On March 2 8 , 2000, Russell underwent an electromyogram nerve
conduction study,13 which was limited due to her poor tolerance
and only two muscles were examined. D r . Indorf, who performed
the study, determined that her nerve conduction was normal.
Dr. Webber examined Russell on April 2 4 , 2000, and noted
that she complained of being barely able to walk after working
for four hours, but that she was improving with physical therapy.
Her headache diary revealed that she was having headaches 40-50%
of each week, with onset related to ingestion of caffeinated
beverages. D r . Webber found no evidence of neurological
deficits, and instructed Russell to continue with Midrin and to
reduce her caffeine and cheese intake.
On May 2 4 , 2000, D r . Webber, noted that Russell’s headaches
had decreased to one major headache per week, which Russell could
control with Midrin and rest, that her straight leg raising was
positive at sixty degrees bilaterally. He wrote a note
indicating that Russell could work a seven-hour day with a ten
minute break after a four-hour shift.
13 An electromyogram yields a graphic representation of the electric current associated with muscle movement. Stedman’s at 576.
-7- On May 2 6 , 2000, Russell had a rheumatological consultation
with D r . Yost. He observed that her straight leg raise test was
negative and that she had full range of motion in her hips,
shoulders, cervical and thoracic spine. There were marked
reductions to her lumbar spine forward flexion and moderate
restrictions in her extension and lateral flexion, her sensation
was intact and her muscle strength was five-plus out of five
except for some weakness due to hip flexion. He noted a lack of
malingering behavior, and arranged for a lumbrosacral spine M R I ,
the results of which were negative.
On July 2 6 , 2000, D r . Rholl noted that Russell was
complaining of an increase in her headaches, but indicated that
it coincided with her running out of Paxil. He also found that
her gait was slightly stiff and her sensation was subjectively
decreased, but she was able to feel and her strength was normal.
He prescribed Flexeril and Vicodin. D r . Rholl saw her again on
August 3 1 , 2000, because she was complaining that “[s]he just
does not have a life because of her headaches and because of her
back pain.” (Tr. at 2 3 3 ) . Russell was tender in some points,
but not many, and she had full range of motion. He felt Russell
-8- needed to be seen at the Pain Clinic, and was concerned about her
use of narcotics such as Vicodin. He saw her again on September
8 , 2000 for recurrent headaches, one of which lasted from a
Friday through that Sunday.
On October 1 7 , 2000, Russell went to the Pain Clinic, where
she was seen by D r . Caudill-Slosberg. D r . Claudill-Slosberg
observed “considerable pain behavior with wincing and groaning as
well as statements that she was being killed by the examination.”
(Tr. at 238-39). Russell was able to walk on her toes and heels,
her pinprick sensation was intact, and her Babinski reflex was
negative. Plaintiff was prescribed an increased dose of
Amtriptyline,14 Soma for mild to moderate pain, and Zomig15 for
severe pain. She recommended that Russell begin physical therapy
and take Motrin or Naprosyn for her head pain. She noted that
Russell reported that she had stopped taking Paxil due to its
cost.
14 Amtriptyline is an antidepressant. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a682388.htm l (last revised 1/1/03). 15 Zomig is used to treat migraines. Physicians’ Desk Reference at 701.
-9- On November 7 , 2000, Russell consulted with Sharon Lockwood,
a Physician’s Assistant at the Pain Clinic. Russell reported
having four severe headaches each week, which were accompanied by
photophobia (pain induced by exposure to light), nausea and
vomiting. Lockwood found crepitus over the left TMJ and diffuse
tenderness in the posterior neck with decreased extension and
rotation, and observed that Russell’s motor, tone, strength and
sensory systems were normal. Lockwood gave her Prednisone,
Norflex, Amerge and Reglan for pain treatment, and Klonopin to
help her sleep. Russell was advised to eat routinely, drink
fluids, stop smoking, and engage in daily meditation.
On November 2 7 , 2000, Russell had X-rays taken of her left
hip and lumbar spine. They revealed osteoarthritis and
degenerative changes in the lower thoracic spine. On December
1 2 , 2000, Russell reported to Lockwood that she was having four
mild headaches per week, and a more severe headache one to three
times per week.
On January 3 1 , 2001, D r . Beasley determined that Russell had
tenderness over the occipital nerve on the left side. Between
February 20 and May 2 2 , 2001, Russell was seen at the Hitchcock
-10- Clinic five times for her migraines, and prescribed Norco,
Pamelor, Vioxx, Compazine and Dilaudid suppositories and
Neurontin.16 During that time, Lockwood noted that Russell’s
levels of Depakote were much lower than expected if she were
taking the amount prescribed. (Tr. at 2 9 6 ) . Further, Russell
ran out of TENS unit pads and stopped using i t . Russell did not
have medical insurance and therefore had to work with the clinic
for samples and other low-cost options. On March 9, Lockwood
noted that Russell had called i n , to complain of a migraine and
ask for a prescription to be telephoned to her local pharmacy.
She said that she had no transportation to the clinic to be seen.
When her local pharmacy did not have the medicine, however, she
was able to have it picked up at the clinic pharmacy. (Tr. at
293). When asked to explain on March 1 4 , Russell stated that she
been unable to get out of bed, and her daughter had picked it u p .
(Tr. at 2 9 4 ) .
On April 3 , 2001, Russell had an MRI of her head. It
revealed a small area of signal alteration within the subcortical
16 Dilaudid and Norco are used to treat pain and Neurontin is used to treat partial seizures. Compazine is for the control of severe nausea and vomiting. Vioxx is an anti-inflamatory. Physician’s Desk Reference at 3505, 3327, 2563, 1489, 2120.
-11- white matter of the left frontal lobe and the left caudate
nucleus. On May 1 , 2001, Lockwood noted that Russell reported
having been to an emergency room because of a migraine and had
been given a Demerol injection. However, Russell had apparently
changed her medication regime abruptly without consulting
Lockwood. (Tr. at 4 1 3 ) . On June 3 , 2001, Russell went to urgent
care for a Torodol injection due to an acute migraine. At that
time, she reported that she had been to the emergency room the
week before for the same reason.
On June 5 , 2001, Lockwood noted that Russell was only
experiencing one severe headache per week, and that her condition
was responding well to Norco and her TENS unit, which she had
been given to use to reduce her headaches. On that day, Russell
was complaining of a severe migraine, and Lockwood noted that she
was tender and tight in the posterior neck and had pain on
rotation of the neck. Russell’s vision, sensation and hearing
were decreased, but her motor tone, strength, reflexes,
coordination and gait were normal. At a June 2 7 , 2001 visit,
Lockwood noted that Russell had again been to urgent care for an
injection three days earlier.
-12- On July 7,2001, Russell sprained her ankle and was given
Vicodin for four days. After she stopped, she had another severe
headache. (Tr. at 4 1 1 ) . D r . Rholl saw Russell on July 1 9 , 2001,
and noted that she was walking one mile five times each day (Tr.
at 3 1 3 ) , but that she was experiencing three bad headaches each
week. She had full range of motion in her neck and back and her
straight leg raise was negative. D r . Rholl felt that “narcotic
use was not the way to go for her pains.” On August 6, 2001,
Russell was examined by D r . Levin, who also recommended that
Russell decrease her use of narcotics, and opined that she might
be experiencing analgesic rebound and habituation. He diagnosed
her with chronic pain disorder with features of post-concussive
syndrome, headaches, cervicalgia and cervicogenic headache. On
August 2 4 , 2001, she reported to D r . Beasley that she was
experiencing three days of major headaches per week.
On August 2 7 , 2001, Russell underwent an occipital nerve
block. She later told Lockwood that she had been bedridden for
three days afterwards due to pain. However, she was walking four
times per week, and her TENS unit was helpful. Lockwood
increased Russell’s Zanaflex and insisted that she attend pain
-13- group meetings. She had an X-ray on September 2 1 , 2001, which
was normal.
On September 2 5 , 2001, Russell called the clinic, reporting
a headache, and that she had gone to the emergency room the
previous Thursday and Sunday for shots to help with headaches.
She was instructed to exercise, eat regular, balanced meals, stop
smoking, drink water, and attend group. Russell states that she
did all that, but couldn’t afford group. When told that she
could pick up free samples of medication at her convenience, she
said she couldn’t come in that day, and that she guessed she’d
have to suffer. (Tr. at 4 2 8 ) . Russell did not show up for
scheduled appointment on October 2 , 2001, after calling to say
that she had no money for a cab and could not find a ride. (Tr.
at 4 2 0 , 4 3 0 ) . However, on October 9, 2001, Russell told Lockwood
that the previous week she went to the emergency room and
obtained a Demerol injection for a severe headache. Russell also
informed Lockwood that she could not afford pain class. On
November 6, 2001, D r . Levin observed extreme tenderness over the
occipital nerve and posterior cervical musculature, but Russell’s
neurological examination was normal with no signs of
-14- radiculopathy. D r . Levin advised her to stop smoking,
discontinue Neurontin, and increase Zanaflex. They discussed
inpatient care for her migraines, concluding that it was not
indicated. (Tr. at 4 3 3 ) . On November 2 0 , 2001, Russell told
Lockwood that she was experiencing a severe headache three times
per week and had been to the emergency room one to two times each
week since her last visit, but reported that she was walking five
times a week and sleeping six hours. Lockwood noted that Russell
smelled strongly of smoke.
On January 1 6 , 2002, Lockwood noted that Russell had not had
an emergency injection in several months, that Russell was
attending pain group, but had not quit smoking. Her neck
rotation was limited and her hearing slightly decreased on the
left side.
On April 2 , 2002, Lockwood completed a Headache Residual
Functional Capacity Questionnaire. Lockwood noted that Russell
experienced severe pain three times per week at her left
occipital which radiated to her left temple and this pain was
accompanied by vertigo, nausea, photosensitivity and visual
disturbances. Lockwood concluded that Russell would need to lie
down at unpredictable intervals during a work shift, had poor or
-15- no ability to deal with stress and would be absent from work
three or more times a month due to her impairment.
Russell also received medical care for leg numbness. She
complained of paresthesias in her lower left extremity and
anterior tibial area on February 9, 2000, but D r . Webber noted at
the time that she did not appear to be in distress or discomfort.
Dr. Indorf, on referral, found that her gait had an antalgic17
quality, but her cranial nerves were normal and her strength and
tone were normal and her Romberg test was negative. A Venous
Doppler Ultrasound performed on February 2 8 , 2000 was negative.
On January 3 1 , 2001, a non-treating physician, D r . Cataldo,
reviewed Russell’s medical records. He concluded that she could
lift ten pounds frequently, twenty pounds occasionally, and could
sit, stand, or walk for six hours in an eight hour day, as well
as push or pull in an unlimited fashion. (Tr. at 273-78). He
also concluded that she had occasional limitations to her
postural activities. Further, in his narrative he stated that
her allegations of symptoms were partially credible, but not for
her ability to function, as she could do housecleaning, shopping,
In a manner to decrease pain. Stedman’s at 6 7 , 9 4 . -16- leave the house at will, drive a car and socialize outside the
home. No other physician evaluated Russell’s residual capacity
to perform work.
II. STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant’s application for benefits, and upon a 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. 42 U.S.C. § 405(g) (2003). My
review is limited in scope, however, as the ALJ’s factual
findings are conclusive if they are supported by substantial
evidence. Id.; see Irlanda Ortiz v . Sec’y of Health and 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 conflicting
evidence. See 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
-17- as adequate to support [the ALJ’s] conclusion.’” Id. (quoting
Rodriguez v . Secretary of Health and Human Servs., 647 F.2d 2 1 8 ,
222 (1st Cir. 1981)). I apply these standards in reviewing
Russell’s case on appeal.
III. DISCUSSION
The Social Security Act defines “disability” for the
purposes of Title II 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) (2003). When evaluating whether a claimant is
disabled due to a physical or mental impairment, an ALJ’s
analysis is governed by a five-step sequential evaluation
process.18 See 20 C.F.R. § 404.1520 (2003).
18 The ALJ is required to consider the following five issues 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; (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. 20 C.F.R. §
-18- Ultimately, at step five, the burden shifts to the
Commissioner to show “that there are jobs in the national economy
that [the] claimant can perform.” 20 C.F.R. § 416.920(f) (2003);
Heggarty v . Sullivan, 947 F.2d 9 9 0 , 995 (1st Cir. 1991) (per
curiam); see also Keating v . Sec’y of Health and Human Servs.,
848 F.2d 2 7 1 , 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.
At step five, the ALJ found that Russell had a severe
impairment that precluded a return to her former employment and
limited the range of work she could perform. Nevertheless, he
found that she could perform a full range of light work and thus
was not disabled because there were jobs in the national economy
that she could perform.
Russell challenges this conclusion, stating that the ALJ
erred in his decisions regarding the (1) degree of her
impairment, (2) whether the impairment created had non-exertional
404.1520 (2003).
-19- limitations on her ability to work, and (3) in finding that she
could perform other work.
Her challenge attacks specific conclusions the ALJ made in
determining her credibility. She claims the evidence does not
support his conclusions that (1) her statements regarding her
capabilities were “not supported by objective medical evidence,”
(2) she failed to follow prescribed treatments on a regular
basis, and (3) “her reports are inconsistent both internally and
as compared to the objective medical evidence and her activities
of daily living.” (Tr. at 1 8 ) . Russell asserts that the ALJ did
not consider her subjective complaints of pain in the proper
legal context, distorted the evidence, and was selective in his
consideration of i t . She also contends that the ALJ did not give
proper weight to the opinion of Sharon Lockwood, the Physician’s
Assistant who was her primary contact at the Pain Clinic.
Lastly, she asserts that the ALJ did not adequately
establish that there were other jobs in the national economy that
she could perform because she feels he did not consider or give
appropriate weight to the non-exertional limitations of her
headaches.
-20- A. Weight Given to Subjective Complaints of Pain
The SSA regulations require an ALJ to consider a claimant’s
own subjective statements concerning her symptoms, including
statements regarding how those symptoms affect the claimant’s
ability to work. 20 C.F.R. § 404.1529(a) (2000). A claimant’s
subjective statements may suggest a more severe impairment “than
can be shown by objective medical evidence alone.” 20 C.F.R. §
404.1529(c)(3). Accordingly, an ALJ evaluates a claimant’s
complaints in light of the following factors: (1) the claimant’s
daily activities; (2) the location, duration, frequency, and
intensity of the claimant’s pain; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and
side effects of any medication that the claimant takes or has
taken to alleviate his pain; (5) treatment, other than
medication, the claimant receives or has received for relief of
his pain; (6) any measures the claimant uses or has used to
relieve pain; and (7) other factors concerning the claimant’s
limitations and restrictions due to pain. Id.; see Avery v .
Sec’y of Health and Human Servs., 797 F.2d 1 9 , 28-29 (1st Cir.
1986). These factors are sometimes called the “Avery factors.”
In addition to considering these factors, the ALJ is entitled to
-21- observe the claimant, evaluate his demeanor, and consider how the
claimant’s testimony fits with the rest of the evidence. See
Frustaglia v . Sec’y of Health and Human Servs., 829 F.2d 1 9 2 , 195
(1st Cir. 1987) (per curiam).
In assessing the credibility of a claimant’s subjective
statements, the ALJ must consider whether these complaints are
consistent with the objective medical evidence and other evidence
in the record. See 20 C.F.R. § 1529(a), SSR 96-7(p). While a
claimant’s complaints must be consistent with the medical
evidence to be credited, they need not be precisely corroborated
with such evidence. See Dupuis v . Sec’y of Health and Human
Servs., 869 F.2d 6 2 2 , 623 (1st Cir. 1989) (per curiam).
Here, the ALJ took into consideration the Avery factors and
listed them in his opinion. (Tr. at 1 6 ) . He cited several
instances from the record which demonstrated that she had not
complied completely with treatment, such as that she never
completely quit smoking, and had run out of medication and not
tried to obtain more until another migraine ensued. (Tr. at 16-
17). 1 9 He also noted that she had been observed walking better
19 Russell also asserts that the major reason for her non- compliance with treatment was that she could not afford her
-22- leaving the examination room than when she entered. (Tr. at 16-
17, 185). He noted that the objective medical evidence was not
strong - the only test that showed anything that might support an
impairment was the M R I , which showed only a slight abnormality.
Id. Keeping in mind that credibility determinations are for the
ALJ, and that here his determination that Russell was not
entirely credible in her assertions of impairment was clearly
supported by evidence, I decline to remand or reverse on that
ground. The ALJ clearly reviewed all the relevant evidence,
considered it in the proper legal context, and came to a
supportable and reasoned conclusion regarding Russell’s
credibility.
B. Weight Given to Opinion of Sharon Lockwood
The ALJ noted that the only assessment that supported
Russell’s asserted level of impairment was that provided by
Lockwood. Because Lockwood is a Physician’s Assistant, the ALJ
prescribed medications and should not be punished therefore. However, the record is replete with instances of the clinic providing her with free samples and offering to work with her to obtain funding for her medication. (Tr. at 2 5 0 ) . The evidence shows a pattern of her taking medication and controlling her headaches successfully until her medications ran out, at which point she then visited first the emergency room and then the clinic for further treatment and narcotics.
-23- determined that her assessment was not an “acceptable medical
source” and therefore did not carry substantial evidentiary
weight.20 All other medical opinions, including those provided
by the state’s medical examiners and other doctors who examined
and treated Russell, did not support a finding of complete
impairment. The ALJ concluded, therefore, that Russell retained
the residual functional capacity to “lift 20 pounds occasionally
and 10 pounds frequently, to stand and walk for 6 hours out of an
8 hour workday, to sit for 6 hours out of an 8 hour workday, and
occasionally to climb, balance, bend, stoop, crouch, crawl, and
kneel.” (Tr. at 1 7 ) . Russell contends that this conclusion was
inappropriate, because the ALJ should have given more weight to
Lockwood’s opinion, although she concedes that he was correct in
his determination that she was not an “acceptable source”.21
(Pl.’s Mot. for Order Reversing the Decision of the Comm’r. at
20 When Russell’s claim was reviewed by the Appeals Council, Lockwood’s assessment had been co-signed by D r . Richmond. However, the assessment itself contains no medical findings, but is merely an opinion on an issue that is for the ALJ to determine. Nor does the assessment suggest that D r . Richmond ever examined Russell himself.
21 A physician’s assistant’s opinion is an “other source” acceptable for consideration as part of the complete record under 20 C.F.R. § 416.913(e).
-24- 17). I disagree.
The ultimate decision concerning disability or impairment is
for the commissioner, not the treating doctors. 20 C.F.R §
404(e)(1). Lockwood’s opinion of disability is not
determinative, so it was not error per se for the ALJ to reach a
contrary conclusion. Further, the ALJ clearly considered the
opinion, but given the weight of other acceptable medical sources
supporting his conclusion that Russell could work, his decision
to discount Lockwood’s assessment was not error.
C. Sufficiency of other evidence regarding Residual Functional Capacity
Russell contends that once the ALJ determined that he would
not accept Lockwood’s opinion as authoritative, he should have
requested an opinion from one of her treating doctors, or
employed the services of a medical expert. (Pl.’s Mot. for Order
Reversing the Decision of the Comm’r. at 1 8 ) . While this might
make sense in the absence of other medical evidence and opinion,
the ALJ had the benefit of the opinion of Russell’s primary care
physician from January 2000 to June 2000, D r . Webber (Tr. at 146,
2 1 3 ) , who saw her as early as October 1998 (Tr. at 3 5 2 ) .
Throughout her treatment of Russell, D r . Webber continued to send
-25- Russell to work and wrote notes indicating that she intended to
follow a course of “work hardening.” (Tr. at 2 0 4 , 213, 2 1 5 ) .
Dr. Rholl, who saw Russell off and on before 2000 (Tr. at 351)
and became her primary care physician after D r . Webber (Tr. at
2 1 3 ) , continued to send Russell to work. (Tr. at 2 3 2 ) . Further,
a state medical examiner reviewed Russell’s file in June 2001,
and determined that she could work. (Tr. at 272-80). Given all
of this evidence supporting his conclusion, I believe that
requesting further review or reports from doctors would not have
aided the ALJ in his decision-making, and that he was therefore
justified in declining to request further information.
Russell’s daily activities supported a conclusion that she
could work. Russell reported that she took four hours to clean
her four room apartment, that she occasionally accompanied her
boyfriend on shopping trips, and that she volunteered at her
son’s school. This supported the ALJ’s determination that she
was not disabled.
Russell also complains that the ALJ erred in his conclusion
that her migraines responded well to treatment. As noted above
in footnote 2 0 , the record shows that when Russell complied with
her treatment program and took her prescribed medication, her
-26- migraines were controlled. Further, her insistence on use of
narcotics as opposed to other methods of treatment may have
actually increased her headaches. (Tr at 2 3 7 , 3 1 0 , 3 1 4 ) . I note
that shortly after being told not to use narcotics, she twisted
her ankle and specifically requested them. (Tr. at 315, 3 1 7 ) .
D. The ALJ Appropriately Used the Medical-Vocational
Tables to Establish That Russell Could Perform Other Work
The ALJ relied on Medical-Vocational Rules 202.21 and 202.22
to determine the range of work Russell could perform. Russell
contends that this was improper because she claims that her
migraines constitute a non-exertional limitation that called for
testimony from a vocational expert. However, as pointed out by
the Commissioner, the ALJ found no evidence of any non-exertional
limitation created by the migraines, nor does plaintiff cite any
in her brief. She merely states, without record support, that
her headaches require her to recline in a darkened room.22
Having reviewed the record, the ALJ determined that there was
little or no objective evidence to support the frequency or
22 The statement that “[t]he large volume of evidence in the record clearly supports this contention” is insufficient to carry her burden at this stage, in which she is challenging the ALJ’s decision.
-27- severity of the headaches as reported by Russell. He noted the
MRI which showed a slight abnormality in the white matter of her
left frontal lobe, but observed that her headaches responded well
to treatment23 and that he did not find her statements of
severity credible. Therefore, he did not find that they
influenced, non-exertionally or otherwise, her ability to work.
Since credibility determinations are for the ALJ, and there was
substantial evidence to support his finding that her migraines
had no non-exertional impact on her residual functional capacity,
I decline to remand or reverse on that ground.
IV. CONCLUSION
Since I have determined that the ALJ’s denial of Russell’s
application for benefits was supported by substantial evidence, I
affirm the Commissioner’s decision. Accordingly, Russell’s
Motion to Reverse (Doc. N o . 8 ) is denied, and Defendant’s Motion
for an Order Affirming the Decision of the Commissioner (Doc. N o .
23 Russell also disagrees with this contention. However, given evidence in the record that when she gradually weaned off narcotics, took Paxil, used her TENS unit, and exercised, her headaches reduced, I find that was substantial evidence to support this finding
-28- 10) is granted. The clerk shall enter judgment accordingly.
SO ORDERED.
Paul Barbadoro Chief Judge
January 9, 2004
c c : Raymond J. Kelly, Esq. David L . Broderick, Esq.
-29-