Svare v. SSA CV-02-370-B 11/12/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin Svare
v. Civil N o . 02-370-B Opinion N o . 2003 DNH 192 Jo Anne B . Barnhart, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Kevin Svare filed for Supplemental Security Income benefits
(“SSI”) on January 1 9 , 2000. His application was denied
initially and upon reconsideration. He then requested a hearing
before an administrative law judge (“ALJ”) which was held on
November 1 4 , 2001. After presiding over the hearing at which
Svare was represented by a non-attorney, a medical expert, and a
vocational expert, the ALJ determined that Svare was not entitled
to SSI because he could return to his past relevant work and was
therefore not disabled. The Appeals Council then denied Svare’s
request for review on June 2 7 , 2002.
Pursuant to 42 U.S.C. § 405(g) (2000), Svare seeks judicial
review of the Social Security Commissioner’s (“Commissioner”) decision denying his 2000 application. Svare argues that the ALJ
erred at the fourth step in the Social Security Administration
(“SSA”) evaluation process by determining that his Residual
Functional Capacity (“RFC”) allowed him to return to his prior
work as an apartment maintenance worker. In particular, Svare
complains that the ALJ improperly failed to credit a consulting
psychologist’s conclusion that Svare suffered from psychological
impairments that left him unable to handle the stress and
pressure of an entry level job. Svare also complains that the
ALJ failed to support his conclusion that Svare’s testimony
concerning his disability was not entirely credible. (Pet’r Mot.
for Order Reversing the Comm’r.) For these reasons Svare moves
to reverse the ALJ’s decision, while the Commissioner, in turn,
moves to affirm. (Def. Mot. for Order Aff. Comm’r.)
I. BACKGROUND1
A. Education and Work History
Svare was born May 1 6 , 1966, and was 35 at the time of the
administrative hearing. He graduated from high school and
1 All background facts come from the parties Joint Statement of Material Facts.
-2- completed two years of college. Svare has worked as a laborer,
apartment maintenance worker, delivery driver, and a
packing/maintenance worker.
As an apartment maintenance worker, Svare worked eight-hour
days from July 1996 to May 1997. He was required to maintain and
perform repairs on thirteen apartment buildings in a property
management firm. He indicated that he performed small jobs
alone, but had assistance with larger jobs. Svare never had to
lift and/or carry objects weighing more than thirty pounds during
his employment.
B. Medical History
Svare has limited use of his right middle finger and suffers
from varying levels of anxiety, panic attacks, and depression.
He has been seen by several doctors for his anxiety, panic
attacks, and depression. Svare was initially evaluated at
Lakeland Mental Health Center in January 1990, where he was
diagnosed with a somaform disorder, an anxiety disorder, and a
personality disorder. In May of 1992, he was also diagnosed with
a narcissistic personality. Starting on January 1 2 , 2000,
however, Svare was given a psychiatric assessment by Christopher
Thanel, M.D. D r . Thanel’s impression was that Svare had a
-3- history of longstanding anxiety, some depressive features, and
problems concentrating. The initial diagnosis was panic disorder
and depressive disorder NOS (not otherwise specified). (Tr.
341.) D r . Thanel proposed to first “maximize the benefit of
antidepressant treatment,” providing improved focus and
concentration, enabling Svare to control his anxiety and achieve
regular sleep patterns. (Tr. 341-42.) Svare was prescribed
Trazodone and had his dosage of Effexor increased.2
On March 1 5 , 2000, Svare was seen by Dan Nolte, RNC, at Dr.
Thanel’s office. Svare complained to Nolte that Effexor provided
little improvement. (Tr. 292.) Svare was prescribed a
decreasing dosage of Effexor, eventually discontinuing usage, and
was prescribed Wellbutrin instead.3 Nolte noted that Svare’s
anxiety continued to result in panic attacks, but that such
anxiety appeared to be secondary to situational stressors. Id.
Nolte found that Svare’s sleeping had improved, but that his
motivation and energy level were low during the day. Svare’s
2 Effexor and Trazodone are used to treat depression. Physicians’ Desk Reference (PDR) 3392 (57th ed. 2003); Stedman’s Medical Dictionary (Stedman’s) 1626 (25th ed. 1990). 3 Wellbutrin is an antidepressant. PDR, supra note 2 , at 1678.
-4- mood was euthymic4, his insight was fair, and he denied any
suicidal ideation, intent, or plan. Svare still complained of a
rapid thought process that became worse in the evenings.
Svare returned to D r . Thanel’s office on April 4 , 2000,
where he was seen by Nolte and D r . Nancy Torson. (Tr. 291.)
Svare complained that his marital difficulties were causing
increased anxiety and panic. Id. Svare and his wife, however,
noted that Svare’s irritability had lessened by approximately
50%. Id. On examination, Svare was found to be less volatile,
less depressed, and suffering from a low level anxiety. It was
noted that the previous night an emergency room physician had
prescribed Svare .25 mg Xanax, to be taken as necessary, for
anxiety attacks.5 Nolte then increased Svare’s Wellbutrin and
Trazodone dosage, and instructed Svare to use his remaining Xanax
for anxiety and panic attacks.
At the next session with Nolte and D r . Thanel on April 1 2 ,
2000, Svare complained that he was still experiencing elevated
4 Euthymia refers to mental peace or tranquility, not being manic or depressed. Stedman’s, supra note 2 , at 545. 5 Xanax is for the management o f , or short term relief from, anxiety symptoms. PDR, supra note 2 , at 2794.
-5- anxiety and occasional panic attacks. He claimed, however that
his irritability had vastly improved. (Tr. 290.) Svare’s major
concern at that point was that he did not want to attend
employment and job search classes through the county because it
made him highly anxious and panicky. Id. Nolte noted that Svare
had responded well to Wellbutrin for his irritability, but was
still experiencing elevated anxiety which caused panic attacks.
Id. Svare was then taken off Trazodone and Xanax, and prescribed
Remeron and Klonopin instead.6
Svare was treated for a panic attack on April 1 3 , 2000, at
S t . Mary’s Regional Health Center. (Tr. 167.) He was given an
intramuscular injection of Ativan7 and his condition improved.
On April 2 6 , 2000, Svare was seen by D r . Thanel and Nolte.
Svare reported that he was experiencing less anxiety during the
day, was generally not having panic attacks, and was less
depressed. Nolte noted that Svare was sleeping better, his
energy and motivation were improved, he was more in control, and
6 Remeron is used to treat depressive disorders. PDR, supra note 2 , at 2401. Klonopin is used to treat panic disorders. Id. at 2905. 7 Ativan is used to help control anxiety disorders. Id. at 856.
-6- he had a clear focus with respect to his actions. (Tr. 288.)
Svare underwent Neuropsychological Testing with Patrick J.
Konewko, Psy.D., on May 2 5 , 2000, after being referred by his new
primary care physician, D r . Arnett Gaff. (Tr. 207-09, 254.) Dr.
Konewko found that Svare was responding to Wellbutrin and that
Remeron had helped improve his sleep. (Tr. 208.) Svare was
alert and attentive, a little distressed, and concerned with his
attentional and anger management problems. Id. Svare told D r .
Konewko that he wanted to make changes in his life because of his
longstanding problem in keeping jobs. Id. D r . Konewko
chronicled Svare’s history of significant substance abuse
(marijuana) for over 10 years, alcoholism, and probable learning
disability. The doctor concluded that it was difficult to
determine whether Svare’s attention problems were due to a bona
fide attention deficit disorder. Id. The attention problems
were nonspecific symptoms and could be associated with
generalized anxiety as well as the consequence of prior
significant substance abuse. (Tr. 208-09.) D r . Konewko
questioned whether Svare’s psychiatric symptoms were being
adequately controlled by his current medication regime because
Svare reported that he had “trouble stopping all of the thoughts
-7- I have in my mind.” Id. The doctor noted that Svare’s symptoms
needed to be stabilized before a neuropsychologic evaluation
could be helpful, and that he would defer a formal neuro-
psychological evaluation until he had spoken with D r . Thanel.
Id.
Svare returned to seek treatment from Nolte and D r . Thanel
on November 3 0 , 2000. Nolte noted that Svare had not been seen
since May 31 and he had not been taking his prescribed medication
for the last several months. (Tr. 287.) Svare’s reason for not
taking his medication was that he had been working 20 hours per
week for a company that made picture frames and could not see
Nolte or D r . Thanel for a follow up visit. Svare reported that
his condition worsened once he stopped taking his medication, and
that the feelings he currently experienced had previously been
relieved by his medication. Id. Svare complained of poor sleep,
very low energy and motivation levels, decreased appetite, and
increased stress. He also complained of increased irritability
focused on his parents and wife, and a fair degree of anxiety and
panic. Id. As treatment, Svare was again prescribed Wellbutrin
and Remeron and asked to attend a follow-up visit in four to six
weeks. Id.
-8- On March 5 , 2001, Svare was driven by his parents to a
consultative examination with a licensed psychologist, F. Dale
Campbell, Ed.S. (Tr. 210-15.) Svare explained that when he had
panic attacks, he would get hot and sweaty, would shake, cry, and
would occasionally have shortness of breath and a tightening of
his chest. Id. He noted that his depressive symptoms were
constant, but that his panic attacks depended upon the situation,
“sometimes occurring every day and sometimes gone for two or
three months.” Id. Svare also reported that he had a hard time
paying attention to any given task, would lose his concentration,
was easily distracted, and that this caused him a lot of anxiety.
Id. He told D r . Campbell that he thought he was born with an
anxiety and attention deficit condition, and had been diagnosed
with depression in the eighth grade.
When questioned about his interests, Svare indicated that he
enjoyed spending time on his computer, walking, and having time
with his children. (Tr. 211.) Svare would spend two to three
hours per day on a computer he built “from the bottom up.” Id.
He would also spend Tuesday afternoons and evenings with his two
sons, as well as alternate weekends, and when he could visit his
parents, his sons would come over because they lived next door.
-9- When Svare spent time with his sons, he explained that they would
play games, build things with K-NEX, read, color together, and
work on puzzles. He noted he would prepare better meals when his
children were there and would sometimes take them to church.
Svare also said he walked a quarter mile a day during good
weather. Id.
In describing his general routine, Svare said he typically
got up between 9:00 and 10:00 a.m. and would then take his
medication. If his children were not with him, he would rarely
eat breakfast, but would just make coffee and then sit for a
while. Id. He would then mope around, listen to music, or get
on his computer before taking a nap in the afternoon. His
parents would often come over in the afternoon and make him get
cleaned u p , shower, and shave since Svare would normally not do
such things unless he was told. If Svare felt up to i t , his
parents would then take him out for coffee or shopping. Svare
noted he was not good at shopping and hated i t , but he could do
it by himself. Id. Svare had no weekly schedule other than the
visits with his sons. (Tr. 212.)
In regard to household chores, Svare was able to sweep, mop,
and do dishes, but his landlord/manager would do the household
-10- repairs and yard work. Svare would wash his clothes at his
mother’s house with her assistance and go grocery shopping with
her help. He indicated that taking care of his sons was the
weekly activity that took the most time, persistence, and effort,
but because they were his sons, he felt his symptoms interfered
the least with this part of his life. Svare believed, however,
that energy and disinterest problems affected everything he did.
Dr. Campbell noted that Svare lived in an apartment by
himself, that the only structure in his life was the schedule
with his sons, and that he appeared to have little trouble
adapting to that. When asked how he got along with supervisors,
bosses, or social workers, Svare replied that it depended on
their attitude. He also stated that he had many friends and that
while his mother upset him whenever she criticized him, they got
along well.
On mental status exam, D r . Campbell noted that Svare related
adequately, though without much energy, his psychomotor activity,
behavior, and eye contact were all average, and his speech and
language were clear. (Tr. 213.) When asked about his ability to
concentrate while working on his computer, Svare indicated that
-11- he could stay with simple and easy things and his memory was
fair, but he had a hard time concentrating when he was learning
“difficult stuff.” Id. He stated his only joy in life came from
his sons, and that he experienced a lot of hopelessness and
suicidal thinking. Id.
Dr. Campbell noted that being around groups of people made
Svare uncomfortable. (Tr. 213-14.) His anxiety symptoms were
always present, and he had experienced three or four anxiety
attacks in the past four months, with the attacks occurring in
unusual settings, including his home. (Tr. 214.) D r . Campbell
also noted that the panic attacks Svare described did not appear
to be the kind of unexpected event one typically hears described
as a panic attack as the attacks involved having a discussion
with his sons about their mother and then becoming anxious that
they might tell her what he said. Id. After reviewing the
mental health professional’s descriptions, D r . Campbell noted
there were many references to anxiety and panic, however, they
generally seemed to be tied to stressful situations. Id.
Dr. Campbell diagnosed Svare with social phobia, depressive
disorder NOS, and dependent personality disorder with some
histrionic traits. (Tr. 215.) He concluded that Svare had
-12- adequate mental capacity to understand, remember and follow
instructions, however, there would be many instances when his
self-concern and anxiety would interfere with his ability to
sustain his attention and concentration and would likely
interfere with persistence he brought to work-like tasks. Id.
Dr. Campbell felt Svare should respond to brief and superficial
contact with co-workers, but it was likely there would be
instances when he would respond inappropriately or withdraw. Id.
In conducting the examination however, D r . Campbell noted that
Svare seemed “poorly motivated.” (Tr. 214.) He also noted that
Svare’s “ability to tolerate the stress and pressure typically
found in an entry-level workplace would be marginal at best.”
(Tr. 215.)
On March 2 2 , 2001, Svare was again seen by D r . Thanel. (Tr.
332.) Svare reported being depressed and somewhat socially
withdrawn with decreasing energy and motivation. Id. At that
point Svare was only taking Clonazepam when necessary for severe
anxiety, which he thought was about once a week, and D r . Thanel
advised Svare begin taking Celexa.8
8 Clonazepam is another name for Klonopin and Celexa is used to treat depression. PDR, supra note 2 , at 2905, 1344.
-13- Svare was seen by Howard Winkler, M.D. on May 2 9 , 2001. D r .
Winkler found that Svare appeared to be depressed, was on the
verge of tears, had judgement and insight that was somewhat
impaired, and had marked anxiety. (Tr. 285.) Svare also
complained that he was unable to get Celexa with his Medical
Assistance card. D r . Winkler gave Svare 28 samples of Celexa and
prescribed Klonopin.
On September 1 4 , 2001, Svare underwent a psychological
evaluation with Kathleen Schara, Psy.D., a licensed psychologist.
(Tr. 294-95.) This evaluation was performed upon referral from
the Guardian Ad Litem involved in Svare’s custody dispute over
his two sons. (Tr. 294.) D r . Schara noted that Svare was asked
to complete a test for the evaluation and failed to do s o . She
observed that Svare appeared disheveled, was inappropriately
dressed, and had poor hygiene. She found that Svare’s thought
content was clear and goal-oriented, his memory was intact for
both recent and remote events, his intelligence was within the
low average to average range based on vocabulary and
presentation, his mood appeared euthymic, he expressed a range of
feelings, and he had no suicidal ideation. Id. Svare also
completed a symptom checklist which showed a noticeable lack of
-14- depressive symptomology. (Tr. 295.) The symptoms he did
describe were difficulty in paying attention, racing thoughts,
feeling his actions were controlled against his will, some
cravings, and having difficulty expressing himself or knowing
what he was feeling, but only rarely. Id.
Dr. Schara noted that his evaluation was incomplete because
of his failure to cooperate with the psychological testing, and
that the results were only impressionistic. She felt, however,
that Svare suffered from depressive disorder and panic disorder.
She also felt Svare had a personality disorder NOS with
dependent, schizoid, and self-defeating features, and suffered
from severe stressors (divorce process, custody dispute, chronic
unemployment). D r . Schara reported that while Svare presented
himself as emotionally well for the evaluation, this was
inconsistent with his recent treatment record, suggesting that he
may have attempted to “fake good” by minimizing his problems.
(Tr. 296.)
Svare has also been treated for his various physical
conditions. On February 1 7 , 1999, Svare sought treatment at S t .
Mary’s for chest pain. (Tr. 171.) He was diagnosed with
gastritis and possible reflux esophagitis or panic attacks. On
-15- November 1 0 , 1999, Svare was seen by Aren Graff, M.D., for low
back pain. (Tr. 260.) D r . Graff prescribed Naprosyn and
Flexeril, and recommended Svare attend physical therapy.9
Svare underwent physical therapy for his shoulder between
April 3 , 2001 and April 1 9 , 2001. (Tr. 218-25.) At his last
session, Kari Jo Guttormson, MPT, noted that though Svare had
some pain with general movements of his knee, his left shoulder
range of motion was within functional limits and was almost pain
free. (Tr. 218.)
Svare’s records were also evaluated by non-examining
physicians. On June 2 9 , 2000, Cliff Phibbs, M.D., completed a
Physical RFC assessment. (Tr. 180-87.) D r . Phibbs found that
Svare could frequently lift twenty-five pounds, occasionally lift
fifty pounds, and sit, stand and walk for six hours out of an
eight hour day. (Tr. 181.) The doctor also concluded that Svare
had no limitation to his ability to push or pull, but had a
limited ability to finger with his right hand and was to avoid
extreme heat and cold. (Tr. 1 8 1 , 183, 184.)
9 Flexeril is used as an adjunct to rest and physical therapy for relief of muscle spasms and Naprosyn is used to treat arthritis. PDR, supra note 2 , at 1897, 2891.
-16- Two non-examining psychologists also reviewed Svare’s
records. George Korgeski, Ph.D., and Thomas Kuhlman, Ph.D.,
completed Psychiatric Review techniques on Svare dated September
2 1 , 2000 and April 2 4 , 2001, respectively. (Tr. 188-201, 235-
48.) Both doctors determined that Svare had moderate difficulty
maintaining concentration. (Tr. 1 9 8 , 245.) D r . Korgeski also
determined Svare had mild restrictions to his daily activities
and moderate difficulty maintaining social functioning (Tr. 1 9 8 ) ,
while D r . Kuhlman found Svare had moderate restrictions of his
daily activities and mild to moderate difficulty maintaining
social functioning (Tr. 2 4 5 ) . D r . Korgeski noted that Svare had
marked limitations in his ability to understand, remember, and
carry out detailed instructions, and moderate limitations in his
ability to complete a normal work week, interact appropriately
with the public, accept instructions and criticism from a
supervisor, and respond to changes in the work setting. (Tr.
230-31.) D r . Korgeski also determined, however, that Svare
retained the ability to concentrate o n , understand, and remember
routine repetitive tasks and three to four-step simple
instructions. (Tr. 234.)
-17- Dr. Kuhlman found that Svare had moderate limitations to his
ability to understand, remember, and carry out detailed
instructions, maintain attention and concentration, complete a
normal work week, interact appropriately with the public and
respond to changes in the work setting. (Tr. 226-27.) He
indicated that it was unclear if Svare’s anxiety and depression
had precluded all work from November of 2000 until April of 2001,
but that it was unlikely because at the psychological examination
in February of 2001, Svare reported that his sleep and other
aspects of his mental health condition were improved by
medications which he had resumed taking. (Tr. 220.) D r . Kuhlman
concluded that by November 2001, if not before, Svare would be
able to learn and remember three to four step instructions,
sustain the mental effort for routine and repetitive tasks, and
have brief and frequent contact with co-workers, supervisors, and
the public. He also noted that Svare, at that time, would not
need supervision and would be able to adapt to routine changes
and stresses associated with routine, repetitive task work. (Tr.
228.)
C. Svare’s Testimony
At the November 1 4 , 2001 hearing, Svare testified that he
-18- had recently worked several jobs. He stated he had worked for a
fencing company on a project that lasted three days, worked as a
driver for an inner tube company for a couple of weeks until the
business closed, and worked at a country music festival for a day
until he experienced heat exhaustion. (Tr. 43-45.) He also
noted that the longest he had worked at any job was six months.
He claimed that his depression and panic attacks prevented him
from working, especially when he was attempting to concentrate.
For treatment, Svare testified that he was taking Klonopin and
Wellbutrin, and was seeing a psychiatrist twice a month. (Tr.
61-63.) As far as his physical limitations, Svare stated he had
limited range of motion in his left shoulder and that he could
not lift any amount of weight. Svare also noted that he had been
living with his parents since June or July, but prior to that had
been living by himself in an apartment. (Tr. 52.) While living
alone, Svare’s family would help him pay bills and remind him of
dates and appointments.
D. Testimony of Vocational Expert
James Berglie testified before the ALJ as a vocational
expert. The ALJ inquired of M r . Berglie if a man of Svare’s age,
education, and work experience, who was able to lift fifty pounds
-19- occasionally and twenty-five pounds frequently, but had limited
fine manipulation with his right hand, who was to avoid extremes
in temperature, was restricted to simple routine three and four-
step instructions, and could have only brief and superficial
contact with co-workers and the public, would be able to return
to his past relevant work. Id. M r . Berglie responded that a
person such as Svare would not be able to perform all of his past
laborer jobs because of the exposure to extremes in temperature,
but that he could perform assembly positions, maintenance work,
and some laborer positions. The ALJ also asked if Svare could
return to his past jobs if he was unable to keep a schedule set
by others. M r . Berglie replied that under those circumstances he
could not perform either his past work or other jobs that existed
in the national economy.
Svare’s representative then asked M r . Berglie if the ability
to handle stress was vocationally relevant. M r . Berglie
responded that “if there’s, if it’s poor or no ability to handle
stress that would impact essentially any kind of work. There’s
no job without stress. There certainly are ones with lesser
stress. But again at that level it could potentially preclude
work.” (Tr. 69.)
-20- E. The ALJ’s Decision
The ALJ followed the five step sequential evaluation process
established by the SSA in rendering his decision of February 2 2 ,
2002. First, the ALJ found that Svare had not performed
substantial gainful activity since his alleged onset date of
January 1 , 1998. The ALJ then found that Svare’s anxiety
disorder, depressive disorder, personality disorder, and right
finger condition constituted severe impairments. Third, the ALJ
found that Svare’s impairments did not meet or equal the criteria
of any listed impairment described in 20 C.F.R., Part 4 0 4 ,
Subpart P, App. 1 . At the fourth step however, the ALJ
determined that Svare’s RFC allowed him to perform a wide range
of medium work that included the type of work he had performed in
the past.
The ALJ determined that Svare had fine motor limitations in
his right hand, was to avoid extreme temperatures, was only to
engage in brief and superficial contact with co-workers or the
general public, and was limited to following simple instructions
and engage in simple, repetitive three or four step tasks. (Tr.
3 1 , 33.) The ALJ also found that Svare was capable of lifting
and/or carrying fifty pounds on an occasional basis and could
-21- lift and/or carry twenty five pounds on an occasional basis.
Based upon this RFC, the ALJ determined Svare could return to his
past relevant work as an apartment maintenance worker. Id.
The ALJ also considered and rejected the opinion of D r .
Campbell that Svare’s ability to tolerate the “stress and
pressure typically found in an entry-level workplace would be
‘marginal’ at best.” (Tr. 30.) It was determined that the
record as a whole did not support this statement and therefore
the ALJ assigned very little weight to i t . The ALJ specifically
found the record to reflect that Svare had “good parenting
skills” and was “able to relate to his sons in a positive
manner.” (Tr. 31.) Svare was able to cook for his sons, play
with them, and take them to church. Svare was also able to “work
on the computer for hours at a time”, he got along with his
mother, his children, and “interact[ed] appropriately with his
treating counselors, social workers, and doctors.” Id. It was
the culmination of these factors that led the ALJ to find that
Svare’s impairments did not cause serious limitations in his
ability to tolerate stress commonly found in the typical work
environment. Id.
-22- The ALJ additionally found Svare’s testimony regarding the
alleged severity of his impairments to not be entirely credible.
The ALJ based this decision on Svare’s poor work history, his
documented lack of motivation to work, and the inconsistencies
and incongruities of Svare’s claims with the opinions of the
psychologists and treating doctors.
II. STANDARD OF REVIEW10
Under the Social Security Act, the factual findings of the
ALJ are conclusive if supported by “substantial evidence.” 42
U.S.C. § 405(g); see also Ortiz v . Sec’y of Health and Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991). I must uphold the
ALJ’s findings “if a reasonable mind, reviewing the evidence in
the record as a whole, could accept [it] as adequate to support
[the ALJ’s] conclusion.” Rodriguez v . Sec’y of Health and Human
Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981). The ALJ’s decision is
10 I apply First Circuit law in resolving this action even though the plaintiff filed his application for benefits in Minnesota which is within the Eighth Circuit. See Towenson by Mickeal v v . Apfel, 16 F. Supp. 2d 1329, 1331 (D. Kan. 1998)(holding that “final decisions of the Commissioner are reviewed under the law of the circuit in which the district court conducting the review is located.”). -23- therefore supported by substantial evidence i f , given all the
evidence, it is reasonable. It is also the function of the ALJ,
and not the courts, to determine issues of credibility, to draw
inferences from the record evidence, and to resolve conflicts in
the evidence. Ortiz, 955 F.2d at 769.
The ALJ’s findings of fact are not conclusive, however,
“when derived by ignoring evidence, misapplying the law, or
judging matters entrusted to experts.” Nguyen v . Chater, 172
F.3d 3 1 , 35 (1st Cir. 1999). If the Commissioner, through the
ALJ, has misapplied the law or 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 Seavey v . Barnhart, 276 F.3d 1 , 11 (1st Cir. 2001). I apply
these standards to the arguments Svare raises in his appeal.
III. ANALYSIS
Svare argues that the ALJ’s ruling that he was capable of
returning to his past relevant work was not supported by
substantial evidence on the record. He additionally argues that
the ALJ failed as a matter of law to adequately explain his
decision regarding Svare’s credibility. I disagree with Svare on
-24- both points.
A. The ALJ’s Decision is Amply Supported by the Record
At the administrative hearing, the ALJ questioned the
vocational expert on the type of work that a person with Svare’s
abilities, experience, and limitations could perform. The
vocational expert excluded some laborer positions because of
exposure to temperature extremes, but maintained that a person in
Svare’s position could return to work as an apartment maintenance
worker, an assembly line worker, or even for some laborer
positions.
The ALJ listened to the vocational expert’s view of how a
person with little or no ability to cope with stress might not
function in any job. In order for a vocational expert’s
testimony to be relevant, however, it must be based upon the
established medical evidence. Arocho v . Sec’y of Health and
Human Servs., 670 F.2d 374 (1st Cir. 1982). Svare’s limited
ability to handle stress, while mentioned by D r . Campbell, was
not consistent with the evidence on the record as a whole, and
the ALJ exercised his discretion in not crediting it as part of
the established medical record. See 20 C.F.R. § 404.1527(c)(2)
(If any evidence, including medical opinions, are inconsistent
-25- with the overall record, then the inconsistent evidence will not
be controlling, but will be weighed by the A L J . ) . The ALJ
specifically found that Svare’s ability to interact with his
children by cooking for them, playing with them, and taking them
to church, undercut the notion that Svare could not handle the
typical stress of a job. The ALJ also noted that Svare’s ability
to spend several hours a day on a computer which he built
himself, and his ability to interact appropriately with his
mother, his children, his doctor, counselors, and social workers,
all indicate that his impairments do not seriously limit his
ability to tolerate the stress commonly found in a typical work
environment. Therefore, the ALJ acted within his discretion by
not giving controlling weight to the vocational expert’s
testimony, based on a statement from D r . Campbell, regarding a
person with little or no ability to handle stress.
Additionally, the ALJ was within his discretion to evaluate
Dr. Campbell’s opinion regarding Svare’s ability to handle
stress, and assign the appropriate weight. The ALJ assigned D r .
Campbell’s opinion little weight because it did not fit with the
established facts on the record as a whole. Svare’s ability to
hold down a job for over six months while suffering from his
-26- ailments, his ability to care for his children, and the other
factors mentioned above support the ALJ’s decision to give D r .
Campbell’s opinion little weight. Even if I disagreed with the
ALJ’s determination of Svare’s work capability, which I do not,
the ALJ’s decision is reasonable given the record as a whole, and
I must uphold it as being supported by substantial evidence.
B. The ALJ’s Credibility Determination Was Appropriate
The ALJ correctly established why he gave little weight to
Svare’s testimony. The ALJ stated that in addressing the
credibility of Svare’s allegations, it considered the following
factors: objective medical evidence; the nature, location, onset,
duration, frequency, radiation, and intensity of any pain;
precipitating and aggravating factors; type, dosage,
effectiveness, and adverse side-effects of any pain medication;
treatment, other than medication for relied of pain; functional
restrictions; Svare’s daily activities; any measure Svare uses or
has used to relieve pain or other symptoms; and Svare’s prior
work record. (Tr. 29.)
In finding Svare’s testimony less than credible, the ALJ
specifically cites Svare’s poor work history and his documented
lack of motivation to work. In this regard, the ALJ notes D r .
-27- Campbell’s description of Svare as “poorly motivated” and Nolte’s
remarks that Svare did not want to attend an employment class as
examples of his lack of motivation to work. The ALJ also pointed
to the inconsistency of Svare’s claim to be unable to function
because of stress with the reality of his coping well enough to
hold a job for over six months, care for his children by cooking
for them, playing with them, and taking them to church, building
a computer, working on the computer for hours at a time,
completing chores around the house, and interacting appropriately
with his mother, doctors, counselors, and social workers. (Tr.
30-31.) It also notes that, despite being diagnosed with anxiety
and personality disorders back in 1990 and 1992, Svare was able
to hold a job as an apartment maintenance worker for over six
months. Other than the documented deterioration when Svare
stopped taking his medication, the record shows no significant
deterioration in Svare’s mental disorders since that time to
preclude his ability to work in his past relevant occupation.
Given the record as a whole, I cannot find the ALJ’s
determination on Svare’s credibility as unreasonable. Likewise,
it is for the ALJ, not the court, to determine credibility.
Ortiz, 955 F.2d at 769. Because I find the ALJ’s credibility
-28- determination reasonable and explained adequately, I must uphold
it.
CONCLUSION
The ALJ was reasonable and explicit in determining that
Svare was capable of returning to his past relevant work and that
Svare was not a credible witness. This decision was supported by
the record as a whole, and the ALJ did not misapply the law,
ignore evidence, or completely disregard the testimony of
experts. For these reasons I deny Svare’s motion for an order
reversing the decision of the Commissioner (Doc. N o . 10) and
grant the Commissioner’s motion for an order affirming the
decision of the Commissioner (Doc. N o . 1 2 ) .
SO ORDERED.
Paul Barbadoro Chief Judge
November 1 2 , 2003
cc: T . David Plourde, Esq. D. Lance Tillinghast, Esq.
-29-