Spear v. Social Security Admin. CV-97-096-B 06/05/98
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Donald A. Spear
v. C-97-096-B
John J. Callahan, Ph.D., Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Donald A. Spear suffers from a degenerative disc disease
affecting his lower back. Spear applied for Title II Social
Security Disability Income ("SSDI") benefits in June 1994,
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 Spear's application at each stage
of administrative review, rendering a final decision denying the
application in February 1997.
Spear brings this action pursuant to Section 20 5 (g) of the
Social Security Act, 42 U.S.C.A. § 405(g)(West Supp. 1997),
seeking review of the SSA's final decision to deny him SSDI
benefits. He asserts that the SSA Administrative Law Judge
("ALJ") who reviewed the case erred in two respects, namely that:
(1) the ALJ should have found that Spear's impairment meets or
eguals the criteria of the impairments listed in the SSA
regulations; and (2) even if his impairment does not meet or equal the severity of a listed impairment, the ALJ should have
found that Spear's impairment causes him pain so as to reduce his
residual functional capacity to the point where he cannot perform
his past relevant work.
For the reasons that follow, I reject both of Spear's
contentions and, thus, affirm the SSA's denial of Spear's
application for SSDI benefits.
I. FACTS1
A. Spear's Health Problems
Spear was born on June 25, 1934, and was 61 years old at the
time of the ALJ hearing. He has received a high school education
and his past work experience includes employment as a skilled
machinist/millwright, an automobile mechanic, and a deputy
director of a municipal public works department. Spear has not
worked since March 15, 1992.
1. Medical History Prior to Alleged Onset Date
Prior to March 1992, Spear had a longstanding history of
chronic, periodic lower back pain.2 The earliest medical record
1 Unless noted otherwise, the following facts are taken from the Joint Statement of Material Facts submitted by the parties to this action.
2 Spear has also experienced episodic pain in his wrists, arms, neck, and shoulders. In June 1979, he was treated for pain in his right wrist. In March 1980, he was treated for neck and shoulder pain. A physical examination found no limitation of motion or atrophy of these areas, but the examination did reveal a decrease in sensation and reflexes. Spear's physician diagnosed possible bursitis and fibrositis. During the first half of 1986, Spear experienced left shoulder pain. An examination revealed some arthritic changes - 2 - of this pain dates from December 1975, when Spear was
hospitalized after complaining of back pain as well as numbness
and weakness in his legs. An x-ray of his lumbar spine showed no
abnormal conditions, but a lumbar myelogram did reveal a small
disc herniation at the L5-S1 intervertebral level and a possible
lesion on the disc at the L3-L4 intervertebral level. After a
follow-up visit in January 1976, Spear's physician stated that
Spear only needed to be seen on an outpatient basis.
Spear did not reguire medical attention for his back again
until January 1978. At that time, his treating physician
prescribed a course of Valium. Spear next reguired medical
attention for his back in March 1981. His doctor prescribed bed
rest as well as Valium and recommended that, following his
discharge, Spear could gradually resume his normal activities.
Spear experienced another flare up of back pain in May 1987
for which his doctor once more prescribed bed rest as well as
pain and antispasmodic medications. An x-ray of Spear's lumbar
spine showed no abnormal conditions, but a CT scan did reveal a
small disc herniation at the L4-L5 intervertebral level with
circumferential bulging of the disc. Spear was discharged from
and tenderness in his shoulder joint, causing a loss to his range of motion, but no swelling. Spear's physician noted that the medication prescribed to alleviate the pain was not successful in doing so but also noted that some of Spear's continued pain resulted from Spear trying to do "too much." In December 1990, Spear's physician examined him for right shoulder and arm pain, concluding that the pain was likely the result of tendinitis or bursitis. The examination revealed weakness and tenderness but found no calcific depositions and no major arthritic changes. The doctor prescribed Motrin as a pain killer.
- 3 - the hospital after one week and, at his two-month post-spasm
check up, his physician stated that Spear should be seen only as
needed.
In May 1988, Spear had a similar episode of back pain for
which his doctor again prescribed bed rest and medication. Spear
requested no medication for pain at the time of his discharge.
In January 1989, while hospitalized for dizziness, nausea, and
chest pain, plaintiff injured his back for which his doctor again
prescribed bed rest and medication. Upon his discharge from the
hospital, Spear's physician recommended that Spear should be seen
only as needed.
After his January 1989 back spasm, Spear underwent several
screening procedures to determine if back surgery was warranted.
The procedures included an MRI scan, a lumbar myelogram, and a CT
scan. Each revealed some degenerative disc disease at the L2-L3,
L3-L4, L4-L5, and L5-S1 intervertebral levels with bulging annul!
noted at each level. None of these screening techniques
identified a discrete focal disc herniation, however, even at the
L4-L5 intervertebral disc level where the May 1987 CT scan had
identified a herniation. Because Spear's doctors could not
identify the specific intervertebral level which was producing
pain, they decided against surgery.
Spear next experienced significant back pain in September
1990. As on previous occasions, his treating physician
prescribed bed rest as well as pain and antispasmodic medications
to be followed by gradual mobilization. In January and February
- 4 - 1991, Spear had more back pain and, again, was treated with bed
rest and medication.
In July 1991, Spear's treating physician evaluated his
condition finding that because his symptomology was mild and
because he was active (e.g., able to walk three miles per day and
perform back exercises), he recommended against treating the
patient with an epidural block with steroids, instead concluding
that Spear should be seen only as needed. In January 1992, he
had more back pain and again was treated with bed rest and
medication.
2. Medical History after Alleged Onset Date
Spear did not receive any treatment for his back for 18
months after March 15, 1992, the alleged onset date of his
inability to work. In September 1993 and January 1994, he
experienced episodes of back pain and was treated with bed rest
and medication. At follow-up appointments in May and July 1994,
Spear's physician did not find any changes in his back condition.
The physician recommended that Spear exercise to lose weight and
that he be seen only as needed. In August 1994, plaintiff
experienced another episode of back pain and was treated with bed
rest and medication. At a follow-up appointment in October 1994,
Spear's physician took a lumbar x-ray which did not show any
change in his condition.
B. Administrative Review of Spear's Application
Spear applied for SSDI benefits in June 1994, alleging that
he was unable to work because of his back condition and the
- 5 - resulting pain his condition causes.
In September 1994, a non-examining. State of New Hampshire
Disability Determination Services ("DDS") physician reviewed
Spear's entire medical record to date and determined that despite
his medical condition, Spear retained the ability to: (1) lift 20
pounds occasionally and 10 pounds freguently; (2) sit, stand, and
walk for up to six hours per day; (3) occasionally climb,
balance, stoop, kneel, crouch, and crawl; and (4) push and pull
in unlimited fashion. This evaluation was confirmed in its
entirety by another DDS physician in December 1994.3 As a
result, the SSA denied Spear's application both upon initial
agency review and upon resubmission of his application for agency
reconsideration.
Following these denials, plaintiff brought his case before
an ALJ. The ALJ who reviewed the case found that Spear suffered
from a severe impairment in the form of degenerative disc disease
but that the impairment did not meet or egual a listed condition
for the purposes of finding him disabled. In addition, the ALJ
found that based on the medical evidence and Spear's testimony
regarding his daily activities, Spear had the capacity to perform
a full range of light work activities as long as these activities
did not reguire lifting and carrying more than 20 pounds
occasionally and 10 pounds freguently. Further, the ALJ found
that Spear's pain was not so constant, severe, or disabling as to
3 The facts relating to the DDS physicians' review of plaintiff's medical record are drawn from the administrative record itself. have a significant impact on his performance of a full range of
light work activities. Conseguently, because the ALJ found Spear
was able to perform light work activities including his past
relevant work, the ALJ declined to find that Spear's impairment
entitled him to receive SSDI benefits.
Spear then reguested an Appeals Council review of the ALJ's
decision. With the Appeals Council's February 1997 rejection of
Spear's reguest for a review, the council rendered a final
decision regarding the application on behalf of the Commissioner
of the SSA. Spear now appeals the Appeals Council decision to
this court.
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,
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 Services, 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.
- 7 - 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 Services, 647 F.2d 218, 222 (1st Cir. 1981)) .
However, if the Commissioner has misapplied the law or has
failed to provide a fair hearing, 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 Services, 705 F.2d 638, 644 (2d Cir. 1983); see
also Slessinqer v. Secretary of Health and Human Services, 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
Spear asserts that the ALJ who reviewed the case erred in
two respects. First, Spear argues that the ALJ should have found
him disabled because his back impairment either meets or eguals
the criteria of the back impairments listed in the SSA
regulations. Spear contends that the ALJ's decision to the
contrary is not supported by substantial evidence.
Second, Spear asserts that even if his back impairment does
not meet or egual the severity of a listed impairment, his
impairment causes him a great enough level of pain so as to reduce his residual functional capacity to the point where he
cannot perform his past relevant work. Spear argues that the ALJ
erred in finding otherwise and, therefore, erred in finding Spear
ineligible to receive SSDI benefits. Again, Spear contends that
the ALJ's decision is not supported by substantial evidence. I
address each of plaintiff's contentions in turn.
A. Does Plaintiff's Impairment Meet or Equal the Severity of a Listed Impairment?
In making a determination regarding whether a claimant is
disabled, an ALJ must use a five-step seguential analysis.4 See
20 C.F.R. § 404.1520. At step three of the seguential analysis,
the ALJ evaluates the claimant's condition under the criteria
described in the SSA regulations at 20 C.F.R. Part 404, Subpart
P, Appendix 1 ("Appendix 1"). See 20 C.F.R. § 404.1520(d). The
claimant bears the burden of proving that his condition meets or
eguals the criteria of an impairment listed in Appendix 1. See
Dudley v. Secretary of Health and Human Services, 816 F.2d 792,
793 (1st Cir. 1987). If the claimant meets his burden at step
three, the ALJ must find the claimant is disabled; otherwise, the
4 The ALJ is reguired to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful; (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 eguals 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. ALJ must proceed to step four in the evaluation process and
assess whether the claimant's impairment prevents him from
performing his past relevant work. See id.; 20 C.F.R. §
404.1520(d), (e).
1. Meeting a Listed Impairment
A claimant cannot show his impairment "meets" the
requirements of a listed impairment simply by showing he has a
listed diagnosis. See 20 C.F.R. § 404.1525(d). Rather, the
claimant must establish that he suffers from the specific medical
findings described for that impairment. See Martinez Nater v.
Secretary of Health and Human Services, 933 F.2d 76, 77 (1st Cir.
1991). If the claimant's medical findings fall below or are
different from those listed for the impairment, the claimant has
not met the requirements of the listed impairment. See id.
In the instant case, plaintiff argues that his spine
impairment meets the criteria of the spine impairments described
in Section 1.05(C)5 of Appendix 1. However, the record reveals
that while Spear has had a dozen episodes of pain-causing lower
back muscle spasm for which he has been hospitalized over the
past two decades, none of these episodes has satisfied the three-
month-minimum durational requirement mandated by Section 1.05(C).
5 Section 1.05(C), which governs the vertebrogenic disorders suffered by plaintiff, requires the disorders to be accompanied by "[plain, muscle spasm, and significant limitation of motion in the spine" as well as by " [a]ppropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss." 20 C.F.R. Pt. 404, Subpt. P, Ap p . 1, § 1.05(C) (1), (2). In addition. Section 1.05(C) requires that these symptoms persist "for at least 3 months despite [the] prescribed therapy and [are] expected to last 12 months." Id.
- 10 - To the contrary, the record reveals that Spear's episodes of
lower back muscle spasm responded well and quickly to treatment,
each abating sufficiently to allow him to be discharged from the
hospital after at the longest a one-week period of bed rest and a
course of anti-inflammatory and antispasmodic medication. See,
e.g., Adams v. Bowen, 833 F.2d 509, 511 (5th Cir. 1987) (where
claimant's lower back muscle spasm responds well and quickly to
treatment, claimant's impairment cannot be said to meet the
durational requirement of Section 1.05(C)).
In addition, at or shortly after his discharge from the
hospital, plaintiff's physicians routinely noted that he did not
need to be under continuing observation but could return to his
pre-spasm activities. That Spear's physicians never prescribed a
treatment plan calling for ongoing monitoring indicates that his
debilitating back spasms had subsided by the time of discharge
and, thus, did not persist for the requisite three-month period.
See, e.g., Irlanda Ortiz, 955 F.2d at 769 (lack of regular
monitoring evidence of intermittent nature of debilitating muscle
spasm).
Finally, after each spasm, Spear did return to his pre-spasm
activities -- i.e., either to his pre-spasm employment or his
pre-spasm performance of household chores, shopping, and hobbies.
This further indicates that each of plaintiff's episodes of
debilitating muscle spasm ended approximately at the time of
discharge rather than persisting for the requisite number of
months. See, e.g., Barrientos v. Secretary of Health and Human
- 11 - Services, 820 F.2d 1, 3 (1st Cir. 1987) (claimant's statement
that she could perform household chores was inconsistent with
claim of continuous presence of severe back muscle spasm).
Thus, because after each occasion of back spasm Spear was
discharged from the hospital after one week at the longest, was
told that he need not seek medical attention for his back unless
he experienced another period of spasm, and returned to his pre
spasm activities, I find that substantial evidence exists in the
record supporting the Commissioner's finding that Spear's
impairment does not meet Section 1.05 (C)'s durational
reguirement.
2. Equaling a Listed Impairment
Even if a claimant cannot show that his specific impairment
meets the criteria of a listed impairment, the claimant can still
establish complete disability at step three of the five-step
seguential analysis by showing that his overall medical condition
produces effects "at least egual in severity and duration" to
those of a listed impairment. 20 C.F.R. § 404.1526(a) (emphasis
added); accord Martinez Nater, 933 F.2d at 77-79. Where the
claimant's primary impairment by itself does not meet the
reguirements of a listed impairment, the claimant may point to
the combined effect of his various impairments in making his
eguivalency showing. See Ortiz v. Secretary of Health and Human
Services, 890 F.2d 520, 525 (1st Cir. 1989). To prevail in an
eguivalency showing, the claimant must establish that his
impairments produce effects egual to each of the criteria of the
- 12 - pertinent listed impairment. See Marciniak v. Shalala, 49 F.3d
1350, 1353 (8th Cir. 1995) (citing Sullivan v. Zeblev, 493 U.S.
521, 531 (1990)).
Here, plaintiff cannot show that his back impairment by
itself meets the three-month-minimum muscle spasm requirement of
Section 1.05(C). Therefore, to show disability at step three of
the five-step analysis, Spear must establish that a combination
of his impairments produces an effect equal in severity and
duration to this requirement. In attempting to do so, Spear
implicitly argues that his back impairment in combination with
the pain he has experienced in his shoulders, neck, arms, and
wrists produces discomfort equal in severity and duration to the
three-month-minimum muscle spasm requirement of Section 1.05(C).
However, the record does not show Spear ever experienced a
level of non-back discomfort that, even when considered in
combination with his back impairment, could equal the severity or
duration of the three-month-minimum muscle spasm requirement of
Section 1.05(C). For instance, the fact that plaintiff's
treatments for the pain in his shoulders, neck, arms, and wrists
were never part of an ongoing treatment plan indicates an absence
of severe pain of the requisite three-month duration. See, e.g.,
Irlanda Ortiz, 955 F.2d at 769 (lack of plan for ongoing treat
ment indicates an absence of debilitating pain). Additionally,
the record does not reveal that plaintiff's non-back pain ever
disrupted the performance of his regular activities (either in
the form of employment or in the form of housework, shopping, and
- 13 - hobbies) , again indicating an absence of severe pain of the
reguisite three-month duration. See, e.g., Barrientos, 820 F.2d
at 3 (claimant's performance of light housework indicates an
absence of debilitating pain).
Thus, I find that there is substantial evidence in the
record to support the ALJ's decision that Spear's impairments,
even when considered in combination, do not produce effects egual
in severity or duration to Section 1.05(C)'s three-month-minimum
muscle spasm reguirement. Conseguently, the ALJ did not err in
determining Spear lacked an impairment that met or egualed the
severity of a listed impairment and properly proceeded to step
four of the five-step seguential evaluation.
B. Does Plaintiff's Pain Prevent Him from Performing Past _____ Relevant Work?
Once an ALJ has determined that the claimant's impairment
does not meet or egual the criteria of a listed impairment, the
ALJ proceeds to step four of the five-step seguential evaluation.
See Dudley, 816 F.2d at 794; 20 C.F.R. § 404.1520(e). At step
four, the ALJ determines whether the claimant's impairment
prevents him from performing his past relevant work. See id.
Such a determination reguires 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 reguirements of the claimant's past
relevant occupations. See Santiago v. Secretary of Health and
Human Services, 944 F.2d 1, 5 (1st Cir. 1991). If the ALJ finds
that the claimant's RFC would not prevent him from performing the - 14 - demands of his past relevant work, then the claimant is
determined to be able to work and the claim is denied. See id.;
20 C.F.R. § 404.1560 (b) .
In assessing a claimant's RFC, the stage of the step four
analysis at issue in this case,6 the ALJ reviews the medical
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 Services, 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 limita
tions that his pain may impose on his ability to work. See Avery
v. Secretary of Health and Human Services, 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 Services,
869 F.2d 622, 623 (1st Cir. 1989). Rather, after making specific
findings7 detailing the inconsistencies between the claimant's
6 Spear does not contest the ALJ's determination that his past relevant work as a deputy director of a municipal public works department reguired only a sedentary functional capacity as described by 20 C.F.R. § 404.1567(a) and U.S. Dep't of Labor, Dictionary of Occupational Titles 188.117-030 (4th ed., rev. 1991) .
7 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, and intensity of the pain; (2) the precipitating and aggravating
- 15 - allegations of pain and the objective medical findings, the ALJ
may discount the allegations in determining the claimant's RFC.
See id.
In the instant case, Spear asserts that even if his back
impairment does not meet or egual the severity of a listed
impairment, his impairment causes him a great enough level of
pain so as to reduce his RFC to the point where he cannot perform
his past relevant work. Spear argues that the ALJ erred in
finding otherwise and, therefore, erred in finding him ineligible
to receive SSDI benefits. However, substantial evidence exists
in the record supporting the ALJ's determination that Spear has
the capacity to perform light work, see 20 C.F.R. § 404.1567(b),8
despite his allegations of pain and, thus, that Spear is able to
perform the duties of his previous job as a deputy director of a
municipal public works department, a job which reguires only a
sedentary functional capacity, see 20 C.F.R. § 404.1567(a).9
Such evidence is provided by the medical evidence and opinions
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.
8 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.
9 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).
- 16 - contained in the record as well as by Spear's own description of
his physical capabilities. See Manso-Pizarro, 76 F.3d at 17.
1. Medical Evidence Regarding Plaintiff's RFC
The medical evidence and opinions contained in the record
provide substantial support for the ALJ's finding that Spear's
pain does not reduce his current RFC so as to prevent him from
performing his past relevant work. See Gordils v. Secretary of
Health and Human Services, 921 F.2d 327, 329 (1st Cir. 1990) (ALJ
can render common-sense judgments about a claimant's RFC based on
review of the medical findings). The record reveals that Spear's
episodes of severe lower back muscle spasm were short in
duration, lasting at longest one week, and responded well to
treatment. Where a claimant's periods of severe pain are of
short duration and respond well to treatment, the ALJ properly
may discount the credibility of the claimant's allegations that
his pain prevents him from working. See Adams, 833 F.2d at 511.
The record also reveals that Spear's severe muscle spasms
occurred only intermittently, at six-month to one-year intervals
with an eighteen-month hiatus immediately following the alleged
onset date of disability. In between these periods of severe
muscle spasm, Spear reguired only mild analgesics to control any
residual pain and needed to take such medication only on an
intermittent basis. Where a claimant's episodes of severe pain
occur only infreguently and where the claimant needs little or no
medication to control pain in between these episodes, again, the
ALJ properly may discount the credibility of the claimant's
- 17 - allegations that his pain prevents him from working. See Irlanda
Ortiz, 955 F.2d at 769 (intermittent occurrence of back spasm is
evidence that pain does not interfere with capacity to work);
Albors v. Secretary of Health and Human Services, 817 F.2d 146,
148 (1st Cir. 1986) (use of only mild analgesic to control pain
is evidence that pain is not disabling).
hospital, Spear's physicians routinely noted that he did not need
to be under continuing observation but could return to his pre
spasm activities. Such opinions indicate that each of
plaintiff's episodes of debilitating muscle spasm ended
approximately at the time of discharge. See, e.g., Irlanda
Ortiz, 955 F.2d at 769 (treatment plan that did not provide for
regular monitoring serves as an indication that claimant's back
spasm did not produce unrelenting pain). Thus, these opinions
provide another basis upon which the ALJ could properly discount
the credibility of Spear's allegations that his pain prevents him
from working. See, e.g., Evangelista v. Secretary of Health and
Human Services, 826 F.2d 136, 144 (1st Cir. 1987) (ALJ may "piece
together the relevant medical facts from the findings and
opinions of multiple physicians").
Further, the RFC assessments completed by two the non
examining DDS physicians also support the ALJ's conclusion that
plaintiff's pain did not interfere with his ability to return to
his prior work. See Berrios Lopez v. Secretary of Health and
Human Services, 951 F.2d 427, 431-32 (1st Cir. 1991) (ALJ may
- 18 - rely on non-examining physician's opinion as evidence of lack of
disability, particularly where such an opinion is supported by
other evidence in record). After reviewing Spear's entire
medical record to date, both DDS physicians found that despite
his back condition, Spear could: (1) lift 20 pounds occasionally
and 10 pounds freguently; (2) sit, stand, and walk each for up to
six hours per day; (3) push and pull without limitation; and (4)
occasionally climb, balance, stoop, kneel, crouch, and crawl.
These reports provide a basis on which the ALJ could find Spear
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, on
which the ALJ could discount the credibility of Spear's
allegations that his pain prevents him from working. See Berrios
Lopez, 951 F.2d at 431-32.
2. Plaintiff's Description of His Physical Capabilities
Finally, Spear's own description of his physical
capabilities as contained in the record also substantially
supports the ALJ's finding that Spear's pain did not reduce his
current RFC so as to prevent him from performing his past
relevant work. See Ortiz, 890 F.2d at 523 (ALJ may rely upon
claimant's own description of capabilities when assessing the
credibility of claimant's allegations of pain); Delsie v.
Shalala, 842 F. Supp. 31, 35 (D. Mass. 1994) (same). After each
episode of spasm, Spear returned to his pre-spasm activities --
i.e., either to his pre-spasm employment or his pre-spasm
- 19 - performance of household chores, shopping, and hobbies. More
over, Spear testified that his condition does not prevent him
from reading newspapers and books or from actively participating
in charitable fund-raising auctions and cookouts.
Such testimony again provides a basis on which the ALJ could
discount the credibility of plaintiff's allegations that his pain
prevents him from working. See Avery, 797 F.2d at 29; see, e.g.,
Ortiz, 890 F.2d at 523 (ALJ properly discounted credibility of
claimant's allegations of lower back pain where claimant admitted
"that he spent most days walking in the woods behind his house");
Barrientos, 820 F.2d at 3 (ALJ properly discounted credibility of
claimant's allegations of lower back pain where claimant admitted
she could cook, wash dishes, and do laundry); Delsie, 842 F.
Supp. at 35 (ALJ properly discounted credibility of claimant's
allegations of back pain where claimant admitted she could
perform household chores, shop, and drive).
Based on the medical evidence and opinions contained in the
record as well as Spear's own assessment of his capabilities, I
find that substantial evidence exists supporting the ALJ's
determination that Spear has the capacity to perform light work
despite his allegations of pain and, thus, is able to perform the
duties of his previous job as a deputy director of a municipal
public works department, a job which reguires only a sedentary
functional capacity. Conseguently, the ALJ did not err in
finding Spear able to work at step four of the five-step
seguential evaluation and properly denied his claim.
- 20 - IV. CONCLUSION
For the foregoing reasons, the decision of the Commissioner
is affirmed, and plaintiff's motion to reverse the Commissioner's
decision is denied.
SO ORDERED.
Paul Barbadoro Chief Judge
January 5, 1998
cc: Donald A. Spear, pro se David Broderick, AUSA
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