Zownir v . SSA CV-99-216-B 03/29/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
OLGA ZOWNIR
v. Civil N o . 99-216-B Opinion NO. 2000 DNH 080
KENNETH APFEL, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Olga Zownir (“Zownir”) applied for Title II Social Security
Disability Income (“SSDI”) benefits on June 8 , 1996, alleging
disability since October 1 , 1987. After the Social Security
Administration (“SSA”) denied Zownir’s application, she requested
a hearing before an Administrative Law Judge (“ALJ”). ALJ
Frederick Harap held a hearing on Zownir’s claim on March 2 5 ,
1997. On April 2 5 , 1997, the ALJ found that Zownir was “not
disabled” at any time prior to the expiration of her insured
status on December 3 1 , 1992.1 On March 1 9 , 1999, the Appeals
1 Although documents in the record indicate that Zownir’s last date of insured status was December 3 1 , 1988, the decision identified December 3 1 , 1992 as her last date of insured status. Council denied Zownir’s request for review, rendering the ALJ’s
decision the final decision of the Commissioner of the SSA.
Zownir brings this action pursuant to Section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g) (1994) (the “Act”),
seeking review of the Commissioner’s decision denying her claim
for benefits.
For the reasons set forth below, I conclude that the ALJ’s
decision to deny Zownir benefits was supported by substantial
evidence. Therefore, I affirm the Commissioner’s decision and
deny Zownir’s motion.
I. FACTS2
Zownir was born in the Ukraine on June 2 2 , 1942 and was 45
years old when she alleges that she became disabled. She has a
Ph.D. in Biochemistry and speaks English. Zownir’s past relevant
employment includes work as a biochemical research assistant, a
research associate, and a post-doctoral research associate at
2 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts submitted by the parties.
-2- several hospitals and universities in the United States from 1979
until she resigned her position on June 1 1 , 1987 due to health
problems.
Zownir claimed that her mental and physical impairments
relate back to a dental procedure she underwent in 1984. In
December of that year, Zownir was treated for a problem with her
#4 tooth. This treatment involved placing hydroxyapatite3
crystals into the bone tissue. During this process, she
sustained a vertical fracture which led to a recurrent infection.
See R. at 163. 4 Zownir subsequently experienced pain and
depression that she attributed to the hydroxyapatite. See id. at
228, 231. In January 1985, Zownir’s #4 tooth was extracted due
to the recurrent infection. See id. at 309, 323. Progress notes
written on January 2 9 , 1985, indicated that Zownir stated she
3 Hydroxyapatite is “a natural mineral structure that the crystal lattice of bones and teeth closely resembles.” Stedman’s Medical Dictionary 735 (25th ed. 1990). 4 “R.” refers to the official record submitted to the Court by the SSA in connection with this case.
-3- felt better. See id. at 321. On February 1 4 , 1985, Zownir’s
treating physician, D r . Stanley Satterfield, noted that she
believed that she was much better. On March 4 , 1985, he noted
that the “right maxilla is healing well.” Id.
Zownir complained of sinus pain and a nasal discharge of the
hydroxyapatite material used in the 1984 procedure. Pathological
studies, however, were negative. Sinus x-rays conducted in May
1986 showed minimal hypoplastic maxillary antrum,5 otherwise
normal sinuses, and no evidence of sinusitis.
In May 1986, Zownir sought dental care in Hamilton, Ontario,
where an oral examination yielded unremarkable results.
Concerned about the nasal discharge of hydroxyapatite, Zownir
opted to have the material surgically removed. See id. at 177.
While in Hamilton, she underwent a successful excision of the
5 Hypoplastic pertains to hypoplasia which, when pertaining to enamel, means “a developmental disturbance of teeth characterized by deficient or defective enamel matrix formation.” Stedman’s Medical Dictionary 753 (25th ed. 1990). Maxillary means “relating to the maxilla, or upper jaw.” Id. at 927. Antrum is “any nearly closed cavity, particularly one with bony walls.” Id. at 101.
-4- hydroxyapatite material. Dr. Barrie Harnett, Zownir’s treating
physician, later wrote that it was impossible to remove all of
the hydroxyapatite and that he could not offer an opinion
regarding her alleged disability.
On May 8 , 1986, Zownir’s treating physician in Colorado
Springs, D r . Steinhour, urged Zownir to seek psychiatric
counseling due to her somatization6 with paranoid features.
Zownir refused to seek such counseling. See id. at 167. On
October 7 , 1986, another physician, Dr. Bruce Jafek, wrote that
Zownir’s nose appeared entirely normal and that there was no
evidence of present or prior sinus disease. Clinical notes
written the next day indicate that Zownir was complaining of pain
in her teeth and of a metallic taste in her mouth. The notes
state that “[Zownir] ha[d] traveled to Denver and Canada seeking
relief from these problems.” Id. at 168. An oral surgeon in
Denver found “nothing significantly wrong” and referred her to an
6 Somatization means the “[c]onversion of anxiety into physical symptoms.” Stedman’s Medical Dictionary 1434 (25th ed. 1990).
-5- ear, nose, and throat specialist who reached the same conclusion.
Id.
Between October 1986 and November 1987, Zownir was treated
by Dr. H. A . Huggins in Colorado Springs. In January 1987, five
months prior to Zownir’s alleged onset date, Dr. Clayton Mammel
stated that the conservative regimen followed by D r . Huggins was
an appropriate treatment of Zownir’s complaints. On May 2 0 ,
1987, Zownir’s treating physician in Colorado Springs, Dr. John
J. Bell, noted that “depression drove [Zownir’s] periodontal
pain.” Id. at 173. On June 1 2 , 1987, Dr. Bell noted that Zownir
never tried the medication he advised her to take for periodontal
pain because she “does not like to take medicines.” Id. at 173-
74. In August 1987, D r . Huggins opined that Zownir was
“biochemically compromised” and, more specifically, that “[h]eavy
metals such as she has been exposed to alter excreting
mechanisms, cell membrane chemistry, intracellular reactions, and
most important, alter a person’s threshold response to other
exposures.” However, Dr. Huggins concluded that Zownir was not
-6- mechanically injured and that she was able to work in a different
area in the same vocational field. See id. at 324.
On October 3 1 , 1987, Dr. Onstad reported that he and another
physician (Dr. Salvo) both felt that Zownir’s physical condition
was not consistent with her subjective complaints. Both doctors
suggested other medical treatment, particularly psychiatric
assistance. Zownir declined to take the physicians’ advice.
Instead, she took the advice of Drs. Griffin and Huggins and had
seven teeth removed. Immediately after the surgery, Zownir had a
psychotic reaction during which she became paranoid and suicidal.
She was transported to Cedar Springs Hospital in Colorado for
evaluation and treatment; in-patient hospitalization was
-7- recommended but Zownir did not follow this recommendation. See
id. at 215, 232.
On February 2 7 , 1988, Zownir was examined by D r . Donald
Vereen at Massachusetts General Hospital. The doctor’s notes
indicate that Zownir had “delusions about needing to have her
teeth removed to cure her.” Id. at 225. She was assessed as
suffering from paranoid psychosis, but records indicate that it
was “unclear if this really related to some heavy metal
contamination or is related to some affective process.” Id.
Zownir was then referred to Seacoast Mental Health Center, in
Portsmouth, New Hampshire. Prior to March 1988, Zownir was
evaluated by three psychiatrists but she “did not follow through
with treatment with any of these psychiatrists.” Id. at 232.
On March 1 1 , 1988, Dr. Edward Drummond, a psychiatrist from
the Seacoast Mental Health Center, reported that Zownir suffered
from discomfort and major depression and that hydroxyapatite was
not the cause of her symptoms. A mental exam of Zownir showed
that she was alert, pleasant and superficially cooperative; there
-8- was no evidence of aphasia; her mood was “depressed”; her thought
process was unremarkable; her thought content showed mild
-9- paranoid ideation; and her intelligence was above average. See
id. at 228. Later that month, Zownir began intermittent
outpatient care at Seacoast Mental Health Center with D r .
Drummond as her treating psychiatrist.
In April 1988, a physician at Portsmouth Regional Hospital
assessed Zownir’s complaints of chest wall syndrome and chronic
maxillary gingival discomfort. Zownir’s EKG and chest x-rays
were normal and she was prescribed Ibuprofen as needed.
In a telephone conversation with Dr. Drummond on April 4 ,
1988, D r . Huggins stated that “the toxic reaction [to
hydroxyapatite by Zownir] is similar to ones that he sees in
patients with dental fillings such as mercury.” Dr. Drummond
responded by stating that Zownir exhibited a number of
psychiatric symptoms prior to the implantation of the
hydroxyapatite that were characteristic of recent immigrants.
See id. at 236.
On June 2 4 , 1988, Dr. Drummond noted that Zownir was “doing
well at this time and has no specific complaints.” Id. at 241.
-10- Dr. Drummond noted that from March 1988 to November 1989, after
adjustment of Zownir’s antidepressant medication, her symptoms
had improved, she had more energy, her EKG was normal, and her
sleeping and appetite had returned to normal. See id. at 229-30;
235-46.
On January 6, 1989, D r . Drummond noted that “[a]s the
patient had not been having any psychotic symptoms for the past
three months, I will discontinue the small dose of Trilafon that
she was on.” Id. at 246. The doctor added that “[t]he patient
stated that she was doing well at this point and that she had no
complaints.” Id. By May 2 5 , 1989, Dr. Drummond’s notes indicate
that Zownir’s thoughts were totally normal: “[t]he patient stated
that she has become more involved in her daily life and has taken
trips to the White Mountains and is more involved in doing
things.” Id. at 250. On September 1 9 , 1991, D r . Drummond stated
that Zownir had “[r]ecovered,” and that she was not disabled.
Id. at 253-54.
On December 9, 1991, Zownir visited Dr. Jonathan Holzaepfel
-11- in Portsmouth, New Hampshire for treatment of a right wrist
fracture that she sustained after falling on ice at a
supermarket. The fracture had been reduced with a short arm
cast, her neurovascular exam was intact, there was minimal tissue
swelling, and no medication was indicated. By January 1992, Dr.
Holzaepfel reported that Zownir was comfortable; she continued to
perform activities as tolerated and her cast was removed at the
end of the month with a recommendation for occupational therapy.
In an SSA disability report and medical history form, Zownir
indicated that her daily activities included: house cleaning,
cooking, shopping, doing laundry, reading, writing, walking,
listening to music, gardening, attending the theatre, attending
concerts (opera), visiting museums, visiting art galleries,
restoring furniture, going on picnics, watching television,
skiing, visiting family and friends, and driving. See id. at 9 3 ,
102, 103, 1 0 7 , 329.
I I . STANDARD OF REVIEW
-12- After a final determination by the Commissioner denying a
claimant’s application for benefits, and upon 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. See 42 U.S.C. § 405(g). My review
is limited in scope, however, as the ALJ’s factual findings are
conclusive if they are supported by substantial evidence. See
Irlanda Ortiz v . Secretary of Health and Human Servs., 955 F.2d
765, 769 (1st Cir. 1991) (per curiam); 42 U.S.C. § 405(g). The
ALJ is responsible for settling credibility issues, drawing
inferences from the record evidence, and resolving conflicting
evidence. See Irlanda Ortiz, 955 F.2d at 769. Therefore, 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.’” Id. (quoting
Rodriquez v . Secretary of Health and Human Servs., 647 F.2d 218,
222 (1st Cir. 1981)). If the ALJ has misapplied the law or has
-13- failed to provide a fair hearing, however, deference to the ALJ’s
decision is not appropriate and remand for further development of
the record may be necessary. See Carroll v . Secretary of Health
and Human Servs., 705 F.2d 638, 644 (2d Cir. 1983); Slessinger v .
Secretary of Health and Human Servs., 835 F.2d 937, 939 (1st Cir.
1987) (per curiam) (“The [ALJ’s] conclusions of law are
reviewable by this court.”). I apply these standards in
reviewing the issues that Zownir raises 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) (1994). In evaluating whether a claimant is
disabled due to a physical or mental impairment, an ALJ’s
-14- analysis is governed by a five-step sequential evaluation
process.7 See 20 C.F.R. § 404.1520 (1999). The Commissioner has
provided an additional evaluation process that an ALJ must apply
when, as in the present case, a claimant alleges a mental
impairment. See 20 C.F.R. § 404.1520a (1999). To determine the
severity of a mental impairment, an ALJ must rate the degree of
functional loss in four areas that the Social Security Act has
identified as essential to work: (1) activities of daily living;
(2) social functioning; (3) concentration, persistence, or pace;
and (4) deterioration or decompensation in work or work-like
settings. See 20 C.F.R. § 404.1520a(b)(3); Figueroa-Rodriguez v .
Secretary of Health and Human Servs., 845 F.2d 370, 372 (1st Cir.
1988) (per curiam). Absent significant evidence to the contrary,
7 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 that lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; and (5) whether the impairment prevents or prevented the claimant from doing any other work. See 20 C.F.R. § 404.1520 (1999).
-15- a claimant’s mental impairment can be presumed to be non-severe
if the degree of limitation caused by the impairment is “none” or
“slight” in the first and second of these essential areas,
“never” or “seldom” in the third area, and “never” in the fourth
area. See 20 C.F.R. § 404.1520a(c)(1); Figueroa-Rodriguez, 845
F.2d at 372.
In the present case, the ALJ denied Zownir’s claim at step
four of the five-step sequential process. “At step 4 a claimant
will be found not disabled when he or she retains the [residual
functional capacity (“RFC”)] to perform ‘the actual functional
demands and job duties of a particular past relevant job.’”
Santiago v . Secretary of Health and Human Servs., 944 F.2d 1 , 5
(1st Cir. 1991) (per curiam) (quoting Social Security Ruling
(“SSR”) 82-61, 1982 WL 31387, at *2 (1982)). In making a step
four determination, the ALJ must ascertain “the physical and
mental demands of claimant’s prior relevant work and then decide
whether claimant could meet them given her RFC.” Berthiaume v .
Apfel, Civ. N o . 98-419-M, slip op. at 4 (D.N.H. Sept. 3 0 , 1999);
-16- see also Santiago, 944 F.2d at 5 .
The Act places the burden on the claimant to establish the
existence of a disabling impairment. See Bowen v . Yuckert, 482
U.S. 137, 146-47 (1987); Santiago, 944 F.2d at 5. The claimant
must adequately explain what her past work responsibilities
entailed and why she was unable to perform those duties during
the relevant time period. See id.; Pitchard v . Schweiker, 692
F.2d 198, 201 (1st Cir. 1982). To satisfy her burden, the
plaintiff must prove that her impairment prevents her from
performing her former type of work. See Gray v . Heckler, 760
F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v . Secretary of
Health and Human Servs., 690 F.2d 5 , 7 (1st Cir. 1982)).
The ALJ determined that Zownir failed to meet her burden to
demonstrate that she was unable to return to her past work. He
also found no convincing objective medical evidence to
substantiate her alleged inability to perform her past relevant
work. See R. at 20-21. Accordingly, the ALJ concluded at step
four that Zownir was not disabled within the meaning of the
-17- Social Security Act.
-18- On appeal, Zownir claims that the Commissioner’s decision
should be reversed because: (1) the ALJ failed to fulfill his
heightened duty to develop the record and obtain relevant facts
for an unrepresented claimant; (2) the ALJ improperly discounted
Zownir’s mental impairment as non-severe; (3) the ALJ’s decision
that Zownir had the RFC to perform her past relevant work was not
based on substantial evidence; and (4) the ALJ did not properly
evaluate Zownir’s subjective complaints of pain.
A. ALJ Upheld His Heightened Duty To Assist Zownir
Because social security proceedings are not strictly
adversarial, an ALJ has a responsibility to adequately develop
the record. See Heggarty v . Sullivan, 947 F.2d 990, 997 (1st
Cir. 1991) (per curiam); Evangelista v . Secretary of Health and
Human Servs., 826 F.2d 136, 142 (1st Cir. 1987). “Under-
standably, this responsibility increases when the applicant is
bereft of counsel.” Evangelista, 826 F.2d at 142; see also
Currier v . Secretary of Health, Education and Welfare, 612 F.2d
594, 598 (1st Cir. 1980). The ALJ also has a heightened
-19- responsibility to assist a claimant in gathering evidence
relating to the demands of her past relevant work. See Heggarty,
-20- 947 F.2d at 997; Carrillo Marin v . Secretary of Health and Human
Servs., 758 F.2d 1 4 , 17 (1st Cir. 1985) (per curiam). While an
ALJ must develop a full and fair record of the claim, he or she
does not act as counsel for a pro se claimant. See Thompson v .
Secretary of Health and Human Servs., 933 F.2d 581, 586 (7th Cir.
1991); Smith v . Secretary of Health and Human Servs., 677 F.2d
826, 829 (11th Cir. 1982) . Therefore, when an ALJ satisfies his
heightened responsibility by making particular attempts to assist
the claimant in obtaining counsel and developing the record, his
decision must be upheld. Evangelista, 826 F.2d 142-43.
In this case, the record demonstrates that the ALJ elicited
testimony from Zownir describing the requirements of her past
work. See R. at 34-35. The ALJ also offered to postpone the
hearing so that Zownir could obtain representation and he allowed
her to review the evidence and update the record as needed. See
R. at 28,30. Finally, the ALJ clearly explained to Zownir that
if anything was missing from the record, he would help her to
-21- obtain the missing evidence.8 In this case, Zownir has failed to
establish the sort of prejudice or unfairness attributable to
self-representation as would warrant remand. See Evangelista,
826 F.2d at 143. Accordingly, I conclude that the ALJ upheld his
duty to adequately develop the record.
B. The ALJ’s Determination of Zownir’s Mental Impairment as Non-Severe
At step two of the sequential evaluation process, the ALJ
must determine if the individual has an impairment and if that
impairment is severe. See 20 C.F.R. § 404.1520(c). An
impairment is considered “severe” if it can be expected to result
in death or has lasted for at least twelve consecutive months and
significantly limits an individual’s physical or mental ability
to perform basic work activities. See id. Basic work activities
8 At the conclusion of the hearing, the ALJ stated that “since you opted not to have a representative, you review your case once again, and if anything is missing, we will try to develop i t . We will try to help you develop your case. If . . . you don’t understand the word ‘develop’, I mean we will send away for updated or for old medical evidence in order to get a complete picture.” Zownir responded by stating “[e]verything was updated. I don’t believe I can gather more evidence.” R. at 4 7 .
-22- include physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, and handling. See
20 C.F.R. § 404.1521(b) (1999). Nonexertional functions, such as
the ability to hear, see, speak, understand, remember, carry out
simple instructions, use judgment, respond appropriately in work-
like conditions, and deal with changes in a routine work setting
are also considered basic work activities. See id. A finding
that an impairment is non-severe is justified when the impairment
has only a minimal impact upon the claimant’s ability to perform
basic work activities. See McDonald v . Secretary of Health and
Human Servs., 795 F.2d 1118, 1124-25 (1st Cir. 1986); 20 C.F.R. §
404.1521 (1999). If an ALJ finds at step 2 that a claimant’s
impairment or combination of impairments is non-severe, the
claimant will not be considered disabled. See 20 C.F.R. §
404.1521(a); see also Goodermote, 690 F.2d at 6.
In the present case, the ALJ found that Zownir suffered from
“a severe impairment of chronic dental and facial pain and
discomfort of uncertain etiology.” Although he also concluded
-23- that Zownir suffered from a mental impairment of depression
accompanied by paranoid delusional thoughts, he did not consider
her mental impairment to be severe because after Zownir sought
treatment and counseling for her mental impairment in March 1988,
she “improved quite remarkably within two months as she had
regained normal ability to sleep and eat and had no problems with
low energy level.” R. at 1 9 . Accordingly, the ALJ concluded
-24- that Zownir’s impairment did not maintain the requisite level of
severity for twelve consecutive months. Id. Zownir nevertheless
argues that she met the durational requirement of the Act because
she was in treatment with her psychiatrist, Dr. Edward Drummond,
for more than twelve consecutive months. Zownir therefore
suggests that the durational requirement applies only to her
impairment rather than her inability to work as the result of the
impairment.
The term “durational impairment” has been interpreted in
several circuit courts of appeals. See Alexander v . Richardson,
451 F.2d 1185 (10th Cir. 1971); Titus v . Sullivan, 4 F.3d 590,
594 (8th Cir. 1993). In Alexander, the claimant argued that if
his impairment extended for a period of one year or more, he was
entitled to benefits even if his inability to engage in
substantial gainful activity lasted only for a lesser period.
Alexander, 451 F.2d at 1186. The Tenth Circuit held that the
purpose of the statute and its legislative history support the
Secretary’s interpretation that it is the disability which must
-25- be continuous for 12 months, rather than the impairment. Id. In
Titus, the court reasoned that:
-26- Disability is established by showing a medically determinable mental or physical impairment which prevents engaging in any gainful activity. Inability to engage in any gainful activity and the impairment which causes it cannot be separated. The two components of disability must exist at the same time. The statute, which defines disability, not impairment, speaks only of an impairment which can be expected to result in death or to last for a continuous period of at least twelve months and one which will disable a person seeking disability benefits for a like period.
Titus, 4 F.3d at 594. The court further “observed that although
a person who has lost one hand has an impairment for life, he is
not entitled to disability benefits if he is able to return to
gainful activity within one year of his injury.” Id.
I agree that in order for a claimant to meet the Act’s
durational requirement, she must demonstrate that she was unable
to engage in substantial gainful activity due to her impairment
for twelve consecutive months. I find no error in the ALJ’s
decision that Zownir’s mental impairment was not severe because
it did not meet the 12-month durational requirement.
C. The ALJ’s Determination of Zownir’s RFC and Ability to Perform Past Relevant Work
Zownir claims that the ALJ did not properly determine her
-27- ability to perform her past relevant work pursuant to SSR 82-62.9
This ruling sets forth the procedures for determining a
disability claimant’s capacity to perform past relevant work.
SSR 82-62 states that “[t]he claimant is the primary source for
vocational documentation, and statements by the claimant
regarding past work are generally sufficient for determining the
skill level; exertional demands and nonexertional demands of such
work.” SSR 82-62, 1982 WL 31386, at *3 (1982). “[N]ot only must
the claimant lay the foundation as to what activities her former
work entailed, but she must point out (unless obvious), so as to
put in issue, how her functional incapacity [rendered] her unable
to perform her former usual work.” Santiago, 944 F.2d at 5 .
9 SSR 82-62 provides [in relevant part]: “Determination of the claimant’s ability to do past relevant work requires a careful appraisal of (1) the individual’s statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc. on the requirements of the work as generally performed in the economy.” SSR 82-62, 1982 WL 31386, at *3 (1982).
-28- The ALJ must carefully analyze the individual’s statements
regarding which requirements of past work could no longer be
performed during the relevant time period, including the reasons
for her inability to meet those requirements. See SSR 82-62 1982
WL 31386, at *3 (1982).
While SSR 82-62 placed the initial burden on Zownir to
demonstrate the demands of her past work, the ALJ also was
required to elicit evidence on this point due to Zownir’s pro se
status. See Heggarty, 947 F.2d at 997 (citing Currier, 612 F.2d
598). As discussed previously, I find that the ALJ satisfied
this responsibility.
The ALJ ultimately found that Zownir’s past relevant work
was in the field of technical research. See R. at 2 0 . The ALJ
also found that the demands upon Zownir in this vocational field
were not highly exertional and consisted of activities including:
giving seminars, supervising students in the laboratory, using a
variety of equipment, writing scientific papers, designing and
conducting experiments, attending professional lectures, and
-29- studying professional literature. See id.
In determining whether a claimant can return to her past
relevant work, the ALJ must determine the claimant’s RFC. See 20
C.F.R. § 404.1546 (1999). Once the ALJ identifies a claimant’s
RFC, he then uses that RFC to determine whether the claimant has
the capacity to perform her past relevant work.10 See Manso-
Pizarro v . Secretary of Health and Human Servs., 76 F.3d 1 5 , 17
(1st Cir. 1996) (per curiam).
In determining a claimant’s RFC, the ALJ is required to
perform a “function-by-function” assessment of the claimant’s
ability to do work-related activities. See SSR 96-8p, 1996 WL
374184, at *3 (1996); Ferraris v . Heckler, 728 F.2d 582, 586-87
(2d Cir. 1984). Moreover, the ALJ must specify the evidentiary
basis of his RFC determination. See White v . Secretary of Health
10 “Your impairment must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment, we then review your residual functional capacity [RFC] and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled.” 20 C.F.R. 404.1520(e).
-30- and Human Servs., 910 F.2d 6 4 , 65 (2d Cir. 1990) (noting that
failure to specify a basis for RFC conclusion is sufficient
reason to vacate a decision of the Commissioner); SSR 96-8p, 1996
WL 374184, at * 7 . To comply with both of these requirements, the
ALJ must “consider objective medical facts, diagnoses and medical
opinions based on such facts, and subjective evidence of pain or
disability testified to by claimant and others.” Ferraris, 728
F.2d at 585; see also 20 C.F.R. § 404.1545(a) (1999) (RFC must be
based upon all relevant evidence). In addition, “the ALJ is
entitled to rely upon claimant’s own description of the duties
involved in her former job, as well as her own statements of her
functional limitations.” Santiago, 944 F.2d 1 , at 5 (citing 20
C.F.R. § 404.1545(a)). During the hearing on March 2 5 , 1997, the
ALJ questioned Zownir about her past relevant work and her
current ability to perform that work. The following colloquy
took place:
ALJ: S o , what I’m interested in is your work from ‘82 to ’87. That would be the relevant period. And you worked as a research assistant during that period?
-31- ZOWNIR: Yes, research assistant (INAUDIBLE).
ALJ: What does a research assistant do?
ZOWNIR: In my case I was doing investigation on scientific projects.
ALJ: Go ahead. What else?
ZOWNIR: Which mainly was laboratory work, doing genetic molecular experiments and molecule biology experiments.
ALJ: Okay. Why did you stop doing that in 1987?
ZOWNIR: Because I was not able to perform my duties...I was very sick. And my professor told m e , if you don’t resign, . . . I have to dismiss you.
ALJ: When you say you were very sick, I don’t know what was wrong with you. You have to tell me what was –- what do you mean by sick?
ZOWNIR: I could not concentrate. I had, like, tension in my head and like a , electrical-like feeling in my mouth. I had noise –
ALJ: What kind of feeling in your mouth?
ZOWNIR: Electrical like feeling in my mouth...and finally, I became generally ill. I had chest pain. I had numbness in my hands. I was dizzy. I was very weak.
R. at 3 5 , 3 6 . Zownir also testified that her daily activities,
between 1987 and 1989, included general housework and taking
-32- English language classes. See id. at 4 0 .
Since the ALJ is a lay person, he is not qualified to
“assess residual functional capacity based on a bare medical
record.” Gordils v . Secretary of Health and Human Servs., 921
F.2d 327, 329 (1st Cir. 1990) (per curiam); see also Manso-
Pizarro, 76 F.3d at 17 (observing that the record contained no
analysis of functional capacity by physician or other expert);
Berrios Lopez, 951 F.2d 427, 430 (1st Cir. 1991) (per curiam).
In other words, if the medical evidence only documents the
claimant’s impairments but does not relate them to an exertional
level, such a s , light or sedentary work, then the ALJ may not
make the connection himself. Vital v . Shalala, Civ. A . N o . 92-
12695-MLW, 1994 WL 548051, at *7 (D. Mass. Aug. 1 1 , 1994).
Dr. Burton A . Nault, medical consultant for the state
Disability Determination Services (“DDS”), reviewed the medical
evidence of record and rendered an assessment of Zownir’s
physical capabilities. He concluded that Zownir retained a
functional capacity for physical activity at the light exertional
-33- level. See R. at 120. D r . Nault also prepared a RFC narrative
which discussed Zownir’s condition for the period in question.11
In this narrative, D r . Nault found that Zownir had a significant
impairment due to facial pain syndrome but no “[l]istings level
impairment or 12 months’ total disability on a physical basis was
identified.” Id. Dr. Nault opined that Zownir retained the
functional capacity to engage in light work.
In July 1996, psychologist, Udo Rauter, Ph. D., evaluated
Zownir’s medical and psychological evidence, specifically
focusing on the period from her alleged onset date of October
1987 and the date of her last insured status of December 3 1 ,
1988. See id. at 130. Dr. Rauter determined that Zownir had an
affective disorder of major depression with psychotic features
which stabilized within five months and was reduced to “non-
11 As discussed earlier, see (supra note 1 ) , Zownir was last insured as of December 3 1 , 1992. Even though Dr. Nault states that his RFC analysis was for a time period from September 1 , 1987 to December 3 1 , 1988, it goes beyond the earlier date of December 1988, and takes into consideration medical evidence extending into December 1991.
-34- severe” by December 3 1 , 1988. Id.
Based on the medical record and Zownir’s testimony, the ALJ
found that Zownir retained the mental alertness and ability to
“understand, remember and carry out instructions; to use
judgment; to respond appropriately to supervisors and to deal
with changes in the work setting.” Id. at 2 0 . The ALJ also
found that “[n]either D r . Drummond nor any other treating or
examining physician found such [disabling] pathology for the
requisite durational period.” R. at 2 0 . The ALJ concluded that
there was no evidence of physical or mental limitations
preventing Zownir from continuing her past work activities. See
id. Zownir claims that the ALJ’s RFC and past relevant work
determinations were not based on substantial evidence. The
record is extensive and it is apparent that all of the relevant
evidence was before the ALJ. Zownir, now represented by counsel,
has not been able to identify any gaps in the evidentiary record
that has prejudiced her claim. There is no indication that the
ALJ failed to consider and weigh the full range of evidence
-35- relevant to Zownir’s alleged mental and physical impairments.
The ALJ specifically found, for example, that since Zownir
continues to read professional journals, “she is actually
performing part of her prior work already.” Id. at 2 1 . The
record contains medical records from the many treating physicians
Zownir visited between 1984 through December 3 1 , 1992 and beyond.
The ALJ’s decision reflects his consideration of this evidence
pursuant to his obligation under SSA regulation 20 C.F.R §
404.1527(d)(2) (1999). See Rodriquez v . Secretary of Health and
Human Servs., 915 F.2d 1557, N o . 90-1039, 1990 WL 152336, at *1
(1st Cir. Sept. 1 1 , 1990) (per curiam) (“An ALJ is not required
to expressly refer to each document in the record, piece-by-
piece. He or she may summarize the medical findings reported
there.”).
The ALJ sufficiently summarized the relevant medical
evidence and testimony from Zownir to substantiate his final
determinations of Zownir’s RFC and ability to return to past
relevant work. Therefore, the ALJ’s RFC and past relevant work
-36- determinations were based on substantial evidence.
-37- D. Zownir’s Subjective Complaints of Pain
Finally, Zownir argues that the ALJ failed to adequately
consider her subjective complaints of pain. I disagree. The SSA
Commission’s regulations require that a claimant’s symptoms,
including complaints of pain, be considered when determining
whether a claimant is disabled.12 An ALJ must follow a two-step
process to evaluate a claimant’s subjective complaints of pain.
First, the ALJ must determine whether the claimant suffers from a
medically determinable impairment which can reasonably be
expected to produce the pain alleged. See 20 C.F.R. §
404.1529(b) (1999); Da Rosa v . Secretary of Health and Human
Servs., 803 F.2d 2 4 , 25 (1st Cir. 1986) (per curiam). Then, if
such an impairment exists, the ALJ must evaluate “the intensity
and persistence of [the claimant’s] symptoms so that [the ALJ]
can determine how [the claimant’s] symptoms limit [his or her]
12 Pain can constitute either an independent and separate basis for disability or a nonexertional factor to be considered in conjunction with exertional limitations. See Gagnon v . Secretary of Health and Human Servs., 666 F.2d 662, 666 n.8 (1st Cir. 1981).
-38- capacity for work.” 20 C.F.R. § 404.1529(c)(1) (1999). At this
stage, the ALJ considers “all of the available evidence,
including [the claimant’s] medical history, the medical signs and
laboratory findings, and statements from [the claimant], [the
claimant’s] treating or examining physician or psychologist, or
other persons about how [the claimant’s] symptoms affect [the
claimant].” Id.
The Commissioner recognizes that symptoms such as pain may
suggest a more severe impairment “than can be shown by objective
medical evidence.” 20 C.F.R. § 404.1529(c)(3). Accordingly, the
ALJ is directed to evaluate claimant’s complaints of pain, 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
her pain; (5) treatment, other than medication, the claimant
receives or has received for relief of her pain; (6) any measures
-39- the claimant uses or has used to relieve pain; and (7) any other
factors concerning the claimant’s limitations and restrictions
due to pain. Id.; Avery v . Secretary of Health and Human Servs.,
797 F.2d 1 9 , 29 (1st Cir. 1986). In addition to considering
-40- these factors, the ALJ is entitled to observe the claimant,
evaluate her demeanor, and consider how the claimant’s testimony
fits with the rest of the evidence. See Frustaglia v . Secretary
of Health and Human Servs., 829 F.2d 192, 195 (1st Cir. 1987)
(per curiam).
In assessing the credibility of a claimant’s subjective
complaints of pain, the ALJ must examine whether these complaints
are consistent with the objective medical evidence and other
evidence in the record. See 20 C.F.R. § 1529(a) (1999). A
claimant’s complaints of pain do not have to be precisely
corroborated with the objective medical evidence; such evidence
only needs to be consistent with the claimant’s complaints. See
Dupuis v . Secretary of Health and Human Servs., 869 F.2d 622, 623
(1st Cir. 1989) (per curiam).
In this case, the ALJ specifically found that Zownir’s
allegations of severe and disabling pain were not supported by
either the objective medical evidence or the information Zownir
supplied concerning her daily activities. See R. at 2 2 .
-41- Further, the medical evidence in the record supports the ALJ’s
determination that Zownir’s pain did not limit her functional
capacity beyond that already assessed. The medical evidence is
entirely inconsistent with Zownir’s complaints of debilitating
pain. The many physicians who examined Zownir prior to her
alleged onset date all concluded that the medical evidence was
inconsistent with Zownir’s complaints of debilitating pain. For
example, on August 2 4 , 1987, Dr. Huggins concluded that Zownir
was not mechanically injured and was able to work in a different
area of the same vocational field. See id. at 324. On October
3 1 , 1987, Drs. Onstad and Salvo both stated that Zownir’s oral
facial pain was not clinically consistent with what she described
subjectively and suggested psychiatric treatment. See id. at
214.
Between 1986 and March 1988, Zownir was evaluated by three
psychiatrists. She refused to take any of their treatment
advice. As the record indicates, it was not until March 2 9 ,
1988, that Zownir finally sought psychiatric counseling and
-42- treatment. Within eight months of beginning treatment, Zownir
had remarkably improved. See id. at 229-30; 235-46.
There is also substantial evidence in the record to support
the ALJ’s determination that Zownir’s daily activities were
inconsistent with the degree of pain she alleged. See Roe v .
Chater, 92 F.3d 672, 677 (8th Cir. 1996) (“More telling than a
chronicle of [the claimant’s] various ailments are [her] actual
activities, which are incongruous with [her] contention that
[she] cannot work.”); see also Cruze v . Chater, 85 F.3d 1320,
1324 (8th Cir. 1996) (the ALJ properly disregarded social
security disability claimant's subjective complaints of pain and
light-headedness, where they conflicted with evidence concerning
claimant's daily activities). As in Cruze, the ALJ in this case
concluded that Zownir’s complaints lacked credibility because
they were inconsistent with her “full schedule of social;
cultural and personal activities.” R. at 21. 13
13 In support of this conclusion, the ALJ found the following:
The claimant reports that she cleans house, cooks, shops,
-43- Zownir alleges that the ALJ did not properly evaluate her
subjective complaints of pain, lack of concentration, and
fatigue. It is true that the ALJ’s decision does not provide
express and specific findings for each factor set forth in the
applicable regulations and case law. Notwithstanding this lack
of specificity, I conclude that the ALJ’s adverse credibility
determination is supported by substantial evidence of Zownir’s
daily activities, her refusal to seek treatment and all of the
medical evidence. See Frustaglia, 829 F.2d at 195 (“Although
does laundry, reads, writes, goes for walks, listens to music, gardens, attends the theatre and concerts, goes to museums, restores furniture, goes to picnics, watches television, skis, visits family and friends, and drives. Despite these reports, however, she asserts that she has to avoid stressful situations and try to be relaxed in order to relieve her discomfort. This assertion finds no corroboration in objective evidence and is not given credibility.
The claimant’s other assertions of functional limitations so severe that they are disabling are lacking in credibility; for example, she maintains that some days she has to stay in bed because of her discomfort. I find it unreasonable to believe that she could maintain she is bedridden by her complaints because she has not reported this to physicians and because she reports an active schedule which doesn’t really allow time to stay in bed all day. See R. at 2 1 .
-44- more express findings, regarding head pain and credibility, than
those given here are preferable, we have examined the entire
record and their adequacy is supported by substantial
evidence.”).
IV. CONCLUSION
Because I have determined that the Commissioner’s conclusion
that Zownir was “not disabled” during the period of her
eligibility for disability benefits from January 1 1 , 1987, until
December 3 1 , 1992, is supported by substantial evidence, I
affirm. Accordingly, Zownir’s motion to reverse and remand (Doc.
N o . 5 ) is denied, and defendant’s motion for an order affirming
Commissioner (Doc. N o . 7 ) is granted. The clerk shall enter
judgment accordingly.
SO ORDERED.
Paul Barbadoro Chief Judge
-45- March 2 9 , 2000
cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.
-46-