Mandziej v. SSA CV-95-444-M 09/24/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Mandziei, Plaintiff,

v. Civil No. 95-444-M

Shirley S. Chafer, Commissioner of Social Security Administration, Defendant.

O R D E R

Pursuant to section 2 0 5 (g) of the Social Security Act,

(g), John Mandziej seeks review of a final decision

by the Commissioner of Social Security Administration, denying

his application for Social Security benefits. Before the court

is plaintiff's motion to reverse the decision of the

Commissioner. The Commissioner objects, and moves to affirm that

order. For the reasons set forth below, plaintiff's motion is

denied and the Commissioner's order is affirmed.

I. FACTS

Pursuant to the court's local rule 9.1(d), the parties have

submitted a joint statement of material facts, which provides as

follows: A. Medical Evidence

In 1994, John Mandziej was 47 years old and had previously

worked as an auto service advisor and a sales representative in

the communications industry. (Tr. 41, 54). He sold automotive

services from 1980-81 and communication services from 1985-90.

(Tr. 41, 57). He stopped working in 1990 allegedly due to

chronic back pain and has not been employed since. (Tr. 42-43) .

Plaintiff has a college degree. He is single and has no

dependents.

In 1991, Blake Thompson, M.D. examined and treated Mr.

Mandziej for his back impairment. (Tr. 101-115). In his

February 20, 1991 office notes. Dr. Thompson stated that

plaintiff complained of daily pain in the left hip and buttock

region, which had been present for several months. (Tr. 104).

This pain was exacerbated by prolonged walking, prolonged

sitting, prolonged standing, lifting, and riding in a car. (Tr.

102, 104). The pain was lessened when he lay down or when

sguatting or doing back exercises. (Tr. 101, 104). Examination

of plaintiff revealed decreased lumbar lordosis1 and moderate

1 Lordosis - An abnormal deformity: anteroposterior curvature of the spine, generally lumbar with the convexity looking anteriorly. Stedman's Medical Dictionary (Stedman's), 24th Ed.

2 tenderness to palpation in the left lower iliolumbar region.

(Tr. 105). Plaintiff had essentially normal reflexes, strength,

sensation, and range of motion. (Tr. 105-106) . Further,

plaintiff's Babinski's sign2 was negative, as was his straight

leg raising. (Tr. 106). X-rays of plaintiff's lumbar spine

revealed a five-segment lumbar spine with the intercristal3 line

through the L4-5 interspace and a Grade II spondylolisthesis4 at

L5-1. (Tr. 106). Dr. Thompson diagnosed plaintiff with a Grade

II spondylolisthesis of L5-S1 with degenerative disc disease and

possible nerve root impingement and left-sided iliolumbar strain

syndrome.5 (Tr. 107) . Dr. Thompson prescribed Motrin 800 mg.

three times per day and a trunk stability program to decrease

stress on the spine. (Tr. 107). He did not recommend surgery.

(1982), p. 810.

2 Babinski's sign - The loss or lessening of the Achilles tendon reflex in sciatica; this distinguishes it from hysterical sciatica. See Dorland's Illustrated Medical Dictionary (Dorland's), 28th ed. at p. 1521.

3 Intercristal - Between two crests, as between the crests of the ilia, applied to one of the pelvic measurements. Stedman's at p. 716.

4 Spondylolisthesis - The forward movement of the body of one of the lower lumbar vertebrae on the vertebra below it or upon the sacrum. Stedman's at p. 1322.

5 Iliolumbar - Pertaining to the iliac and lumbar regions, or to the flank and loin. Dorland's at p. 650.

3 On March 1, 1991, plaintiff reported improvement in his

condition with physical therapy and Motrin. (Tr. 108). He did,

however, still experience mild tenderness to palpation over the

left iliolumbar region. (Tr. 108). On March 15, 1991, Plaintiff

again reported improvement in his condition with continued

physical therapy, home exercises, and Motrin. (Tr. 109). Dr.

Thompson reviewed plaintiff's x-rays and observed spondylosis6 at

L5-S1 with spondylolisthesis. (.Id.). Dr. Thompson recommended

that Plaintiff obtain a lumbar support pillow for use while

sitting. (Tr. 109). Also, on that date. Dr. Thompson completed

a form stating that plaintiff was disabled due to lumbar strain

with spondylolisthesis. He noted, however, that plaintiff should

be able to return to his usual work in May 1991. (Tr. 150) .

On March 22, 1991, plaintiff reported severe back pain which

radiated into his hips and extended down his legs. (Tr. 110) .

Physical examination revealed tenderness to palpation in the

lumbar paraspinal muscles and buttocks area and pain with

straight leg raising. (Tr. 110). Dr. Thompson noted that

plaintiff was not performing his trunk stability exercises

6 Spondylosis - The degenerative narrowing of the spinal canal. N.Y.U. Dept, of Neurosurgery W.W.W. (3/4/96).

4 properly. He recommended changes to Plaintiff's physical therapy

program and prescribed Medrol Dosepak, Motrin, and a lumbosacral

support. (Tr. 110). Plaintiff returned on March 29, 1991 to see

Dr. Thompson and reported that his condition was greatly improved

and that he was experiencing much less pain.(Tr. 112). Dr.

Thompson continued treatment with physical therapy, home

exercises, and Motrin. (Tr. 112) .

In April 1991, Dr. Thompson reported that Plaintiff

continued to improve but still had significant discomfort in his

back. (Tr. 113). His regimen of treatment continued as before.

He was given approval to seek treatment with a chiropractor as

long as he did not undergo any forceful manipulation because of

his spondylolisthesis. (Tr. 113).

On April 22, 1991, plaintiff began receiving treatment from

Mark W. Stagnone, a chiropractor. (Tr. 114). At his initial

examination. Dr. Stagnone found that plaintiff had some

limitation of motion in his back and some spasm, but otherwise

Dr. Stagnone's findings were essentially normal. (Tr. 128-130).

Dr. Stagnone began seeing plaintiff one to two times per week.

5 Finally, in May 1991, plaintiff was reevaluated by Dr.

Thompson. (Tr. 114). At that time he was counselled on proper

exercise programs and told to engage in an aerobic exercise

program and a back stabilization program. (Tr. 114) . Dr.

Thompson stated that at that point, plaintiff would only be

followed on an as-needed basis. During the period plaintiff was

treated by Dr. Thompson, he received physical therapy on 21

occasions at Southwestern Physical Therapy for his back pain.

(Tr. 116-127).

Dr. Robert A. McPherson completed a certificate of

disability for plaintiff on May 23, 1991, and noted that

plaintiff had low back pain with sciatica. According to Dr.

McPherson, plaintiff would be disabled through July 23, 1991, at

which time he would be able to return to his former work. (Tr.

151) .

From May through September 1991, plaintiff continued visit

Dr. Stagnone for chiropractic manipulation. (Tr. 130). Progress

notes from those sessions show that plaintiff continued to

complain of pain in his lower back, but noted some improvement

from the chiropractic exercises. Dr. McPherson completed another

6 disability certificate for plaintiff on October 21, 1991. (Tr.

152). At that time. Dr. McPherson stated that plaintiff's

condition had improved but, if he stood for more than two hours,

he would become incapacitated by pain and would have to lie down

for an extended period of time. Dr. McPherson opined that

plaintiff would be disabled until December 1, 1991, at which time

he could return to his former work. (Tr. 152).

Plaintiff continued to be seen by Dr. Stagnone for

chiropractic manipulation from October 1991 through December

1991. (Tr. 130-131). Progress notes from those sessions show

that plaintiff continued to complain of pain in his lower back,

but noted some improvement from the chiropractic exercises.

Dr. McPherson apparently treated plaintiff from April 1991

to March 1992.7 (Tr. 129-132). His progress notes document

treatment for pain, tenderness, and spasm in the low back region

because of plaintiff's spondylolisthesis. (Tr. 129-132).

Plaintiff was treated for a dislocated left elbow in December

7 The Exhibit List in the transcript (Tr. 1) indicates that the medical records in the transcript at pages 128-135 are from Dr. Stagnone. A closer look at these pages suggests that pages 129- 132 were from Dr. McPherson and pages 128, 133-135 were from Dr. Stagnone, a local chiropractor in Nashua, New Hampshire.

7 1991, (Tr. 136-138), which he claims was caused by a fall that

was precipitated by the instability of his back condition. (Tr.

159) .

Plaintiff resumed treatment with Dr. Stagnone from

September-October 1993. (Tr. 128, 133-135). Dr. Stagnone's

initial office notes from this period record plaintiff's

complaints of pain, especially during periods of sitting or

standing. (Tr. 128). He also noted that plaintiff reported that

pain medication was only effective when he took it for sciatic

pain. (Tr. 128). On September 14, 1993, Dr. Stagnone wrote that

physical examination revealed objective evidence of continued

lower back problem. (Tr. 135). In Dr. Stagnone's professional

opinion as a chiropractor, plaintiff's condition continued to

impair his ability to pursue gainful employment. (Tr. 135). Dr.

Stagnone subseguently provided a radiographic report in which he

found Grade II spondylolisthesis L5, moderately advanced lumbar

disc degeneration L5-S1 without evidence of spondylitic changes

and left rotatory lumbar scoliosis with associated pelvic

imbalance. (Tr. 134). At Social Security's request, Ralph Wolf, III, M.D.

performed a consultative examination on plaintiff in December

1993. (Tr. 139-140). He noted plaintiff's complaints, including

pain of three years' duration which was incompletely relieved

with bracing, chiropractic manipulation, and physical therapy.

(Tr. 139). Upon examination. Dr. Wolf found that plaintiff had

no lumbar deformities and could perform straight leg raises.

(Tr. 139). Additionally, he noted that plaintiff's sensation,

motor function, and reflexes were intact. X-rays of the lumbar

spine revealed mature. Grade II, L5-S1 spondylolisthesis. (Tr.

139). Dr. Wolf diagnosed plaintiff's condition as L5-S1

spondylolisthesis with sciatica (Tr. 139), but he opined that

plaintiff could perform any sitting or driving work with a mild

amount of walking. (Tr. 139). He did, however, believe that

plaintiff was permanently disabled from any heavy manual labor.

(Tr. 140). Finally, Dr. Wolf indicated that, despite any future

treatment, plaintiff's condition was unlikely to change (Tr.

139), and, therefore, he should begin training for sitting work.

(Tr. 139) .

On December 28, 1993, Dr. Munro Proctor performed a residual

functional capacity assessment. (Tr. 63-70). He found that. despite plaintiff's pain and X-ray evidence of spondylolisthesis,

he could occasionally lift 20 pounds, frequently lift 10 pounds,

and could sit, stand and walk, each for up to 6 hours. (Tr. 64,

70). While plaintiff could not repetitively reach, his ability

to push and pull was unlimited, and he could occasionally climb,

balance, stoop, kneel, crouch, and crawl. (Tr. 64-66). No other

limitations were noted. (Tr. 66-67). That assessment was

affirmed in its entirety by Dr. A.C. Campbell in February 1994.

(Tr. 70, 75) .

B. Hearing Testimony

1. Claimant

Plaintiff appeared at his November 29, 1994 hearing without

counsel (Tr. 31, 33) and chose not to be represented after being

questioned by the ALJ. (.Id.) . He testified that he was unable

to work because he experienced severe continuous pain from lack

of stability in his lower back. (Tr. 44). He described the pain

as a sharp, stabbing pain that would run down his leg. On other

occasions, the pain was hot or dull. He described the pain as

being at a toothache level of severity, and said that it was

intensified by sitting or standing. (Tr. 44). Plaintiff

testified that his most comfortable position was sitting with his

10 legs above his head because it seemed to cut down on the pressure

in his lower back. (Tr. 50). His sleep was disrupted by the

pain and this prevented him from keeping on a schedule. (Tr.

44). He took Ibuprofen (Motrin) but it didn't seem to have much

affect on his pain. (Tr. 46).

His daily activities included cooking with a microwave.

(Tr. 47). He also did his own housecleaning and food shopping.

He used a self-propelled lawn mower to cut his grass and

purchased a snowblower to handle the snow shoveling. Plaintiff

indicated that because of his impaired sleep habits, he would get

up in the morning around 11:30 a.m. (Tr. 48-49). He would use

some traction eguipment, and in the afternoon he would often (4-5

times per week) go to a gymnasium and perform some exercises

including leg presses. (Tr. 49). This helped to temporarily

relieve him of pain. (.Id.) . He had previously been walking for

exercise but had switched to swimming. (Tr. 51). Most of the

day he spent lying down or sitting with his feet up. (.Id.) .

2. Vocational Expert

A vocational expert testified at plaintiff's hearing. He

noted that plaintiff's prior relevant jobs as a sales

11 representative in the communications industry and as an auto

service advisor were skilled jobs that involved a light level of

exertion. (Tr. 54). In a hypothetical, the ALJ asked the

vocational expert to assume that someone was able to lift and

carry objects up to 20 pounds during the day and had a job which

did not reguire freguent bending at the waist to pick up objects

off the floor. Additionally, he was asked to assume that

freguent overhead reaching was restricted, as were bending,

stooping, crouching and crawling. This person could work in a

sitting or standing position which might include short amounts of

walking. However, he or she would need to be able to change

positions from time to time. With these assumptions, the ALJ

asked the vocational expert if this person could perform

plaintiff's prior work. The vocational expert responded that

such a person could perform the auto service advisor job but not

necessarily the sales representative job because of the

substantial amounts of driving involved. (Tr. 55-56). In

response to the ALJ's hypothetical involving a person who would

have to lie down on a fairly regular basis during the work day or

at least be in a sitting position with his or her feet up on a

table, the vocational expert testified that such a person would

12 not be able to perform plaintiff's prior jobs or any other type

of skilled or unskilled work. (Tr. 56).

II. STANDARD OF REVIEW

Pursuant to

(g), the court is empowered "to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Secretary, with or without remanding the cause for a rehearing."

Factual findings of the Secretary are conclusive if supported by

substantial evidence.

(g), 1383(c)(3); Irlanda

Ortiz v. Secretary of Health and Human Servs.,

(1st Cir. 1991) .8

In making those factual findings, the Secretary must weigh

and resolve conflicts in the evidence. Burgos Lopez v. Secretary

of Health & Human Servs.,

(1st Cir. 1984) (citing

Sitar v. Schweiker,

(1st Cir. 1982)). It is "the

8 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLR B ,

(1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n.,

(1966).

13 responsibility of the Secretary to determine issues of

credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

Secretary, not the courts." Ortiz,

(citing

Rodriquez, 647 F.2d at 222). And, the court will give deference

to the ALJ's credibility determinations, particularly where those

determinations are supported by specific findings. Frustaqlia v.

Secretary of Health & Human Servs.,

(1st Cir.

1987) (citing Da Rosa v. Secretary of Health and Human Servs.,

803 F .2d 24, 26 (1st Cir. 1986)).

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable "to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months."

(1)(1)(A). The Act places a heavy initial burden on the

plaintiff to establish the existence of a disabling impairment.

Bowen v. Yuckert,

(1987); Santiago v.

Secretary of Health and Human Servs.,

(1st Cir.

1991). To satisfy that burden, the plaintiff must prove that his

14 impairment prevents him from performing his former type of work.

Gray v. Heckler,

(1st Cir. 1985) (citing

Goodermote v. Secretary of Health and Human Servs.,

(1st Cir. 1975)). Nevertheless, the plaintiff is not reguired to

establish a doubt-free claim; the initial burden is satisfied by

the usual civil standard, a "preponderance of the evidence." See

Paone v. Schweiker,

(S.D. Miss. 1982).

In assessing a disability claim, the Secretary considers

objective and subjective factors, including: (1) objective

medical facts; (2) plaintiff's subjective claims of pain and

disability as supported by the testimony of the plaintiff or

other witness; and (3) the plaintiff's educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health and Human Servs.,

(1st Cir. 1986); Goodermote,

690 F .2d at 6.

Once the plaintiff has shown an inability to perform his

previous work, the burden shifts to the Secretary to show that

there are other jobs in the national economy that he can perform.

Vazquez v. Secretary of Health and Human Servs.,

(1st Cir. 1982). If the Secretary shows the existence of other

jobs which the plaintiff can perform, then the overall burden

15 remains with the plaintiff. Hernandez v. Weinberger,

(1st Cir. 1974); Benko v. Schweiker,

(D.N.H. 1982). Ultimately, the Secretary of Health and Human

Services will find a plaintiff disabled only if the plaintiff's:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .

2 3 (d)(2)(A).

With those principles in mind, the court reviews plaintiff's

motion to reverse the decision of the Secretary.

III. DISCUSSION

In concluding that Mr. Mandziej was not disabled within the

meaning of the Act, the ALJ utilized the mandatory five-step

seguential evaluation process set forth in

,

416.920 (1995) .9 Step 4 of the evaluation process reguires the

9 The ALJ is reguired to make the following five inguiries when determining if a claimant is disabled:

(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment;

16 ALJ to determine whether, despite the plaintiff's impairment, he

retains the residual functional capacity ("RFC") to perform his

past relevant work. At step 4, the ALJ determined that Mandziej

had the residual functional capacity to perform the exertional

and nonexertional requirements of light work and, therefore,

could perform his past relevant work as an automobile service

advisor. (Tr. 20). Accordingly, the ALJ concluded that Mandziej

was not disabled within the meaning of the Social Security Act.

Plaintiff, who appeared before the ALJ unrepresented by

counsel, first argues that his waiver of the right to have

counsel present was neither knowing nor voluntary. Additionally,

he advances three interconnected arguments in support of his

claim that the ALJ's denial of disability benefits is not

supported by the evidence. Specifically, he claims: (1) the ALJ

failed to fully develop his claim for disability benefits; (2)

the ALJ did not set forth specific findings regarding plaintiff's

(3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work.

.

17 past relevant work; and, (3) the ALJ failed to properly weigh

plaintiff's regimen of treatment. Each of these alleged errors

took place at Step 4 of the ALJ's five-step seguential analysis.

A. Lack of Representation by Counsel

Plaintiff suggests, without actually expressly stating, that

his waiver of the right to counsel at the hearing was

ineffective. See Plaintiff's Memorandum at 11, n. 5. Claimants

for Social Security disability benefits have a statutory right to

counsel at hearings. See 42 U.S.C. 406; see also 20 C.F.R.

404.1705. However, the right to counsel "falls well below the

Sixth Amendment threshold" applicable in criminal cases.

Evangelista v. Secretary of Health and Human Servs.,

(1st Cir. 1987). As part of the right to counsel,

claimants should be appropriately notified of that right.

Claimants may, following sufficient notification of the right to

counsel, waive the right by intelligently deciding to proceed pro

se. See Evangelista,

; see also Edwards v.

Sullivan,

(11th Cir. 1991); Wingert v.

Bowen,

(8th Cir. 1990); Holland v. Heckler,

(11th Cir. 1985). And, "a flaw in the notice

does not automatically reguire that the case be remanded.

18 Rather, claimants must also show that they were prejudiced by

their lack of representation." Marsh v. Secretary of Health and

Human Servs., slip op.,

(D.N.H. Oct. 25, 1994).

Here, plaintiff has failed to demonstrate that his waiver of

the right to be represented by counsel was any less than knowing

and voluntary. Nor has he demonstrated any actual prejudice

stemming from his lack of legal representation. Plaintiff, who

is college-educated, was repeatedly notified of his right to

counsel and told of the advantages of having counsel present at

the hearing. (Tr. 24, 28, 29, 71, 77). The waiver of counsel at

the beginning of the hearing was informed and effective.

B. Development Of The Record

Although the burden is initially on the claimant to prove he

is unable to perform his previous work, when a claimant is

unrepresented, the ALJ has a heightened duty to develop the

record. Heggartv v. Sullivan,

(1st Cir. 1991);

see also Carillo Marin v. Secretary of Health and Human Servs.,

(1st Cir. 1985); Currier v. Secretary of Health,

Educ. and Welfare,

(1st Cir. 1980). The ALJ

must develop the record with specific information and without

19 evidentiary omissions. Upon reviewing that record, the court

must determine "whether the [alleged] incomplete record reveals

evidentiary gaps which result in prejudice to the plaintiff."

Gauthnev v. Shalala,

(E.D. Pa. 1995). If

the ALJ fails to fill those evidentiary gaps, and if they

prejudice plaintiff's claim, remand is appropriate. (I d .).

Here, plaintiff argues that the ALJ did not adeguately

develop the record to reflect all of the relevant facts and

evidence. Plaintiff's Memorandum at 11-17. He claims that this

resulted in evidentiary gaps that undermined his credibility.

First plaintiff disputes the ALJ's assessment of his RFC,

arguing that the ALJ did not extensively guestion him regarding

the specifics of his daily activities and the exertional

reguirements of his past jobs. In determining a claimant's RFC,

the ALJ must consider tasks that can be performed despite a

claimant's physical or mental limitations.

.

So, the ALJ will evaluate medical, physical, and mental factors;

plaintiff's descriptions of his impairments and limitations;

relevant medical evidence; and other relevant evidence. Avery,

; Evangelista,

. However, the

20 burden remains with the claimant to prove he is unable to return

to his previous work. " [N]ot only must the claimant lay the

foundation as to what activities [his] former work entailed, but

[he] must point out . . . how [his] functional incapacity renders

[him] unable to perform [his] usual work." Santiago,

.

After reviewing the record and questioning plaintiff and the

vocational expert, the ALJ concluded that plaintiff retained the

functional capacity to alternate between sitting and standing,

and to perform work that required light amounts of exertion.

(Tr. 47-52). Plaintiff admitted that he can perform a variety of

daily tasks including cooking, food shopping, house cleaning,

exercising, lawn mowing, and snow-blowing, and travel to a gym

for exercise. (.Id.) . The record also contains medical evidence

to support the ALJ's determination that plaintiff was not

disabled. See, e.g., Tr. 62-70 (Disability determination made by

Dr. Muro Proctor, dated January 6, 1994, concluding that

plaintiff is capable of light work); Tr. 75 (Dr. A.C. Campbell's

affirmation of Dr. Proctor's opinion.). Plaintiff, on the other

21 hand, presented only his chiropractor's opinion that he is

permanently disabled. (Tr. 63-70, 75, 104-114, 139-140).10

In the end, it is clear that the ALJ adequately developed

the record and, to the extent that plaintiff has identified

evidentiary gaps, they are not material.

Next, plaintiff argues that the ALJ did not thoroughly

question the vocational expert. Plaintiff's Memorandum at 15.

The record demonstrates that the ALJ properly qualified the

vocational expert and established a foundation for his testimony.

(See Tr. 52, 144-149). The record also shows that the ALJ

properly questioned the vocational expert, posing a hypothetical

that incorporated plaintiff's impairments, limitations, and

relevant past work activities. (Tr. 53-56). The ALJ also

afforded plaintiff the opportunity to question the vocational

expert and supplement the hypothetical. (Tr. 56). In light of

10 Chiropractors are not considered an acceptable source of medical evidence regarding the claimant's impairment. 20 C.F.R. 404.1513 (a). Accordingly, the ALJ is entitled to give their opinions regarding the nature and scope of the plaintiff's impairment less weight. Diaz v. Secretary of Health & Human Servs.,

(2d Cir. 1995); Cronkhite v. Secretary of Health & Human Servs.,

(8th Cir. 1991) . See also

(e).

22 this, the court concludes that the vocational expert's testimony

was properly received and developed.

Plaintiff also contends that the ALJ failed to obtain

records from November 1993 through November 1994 from Mark

Stagnone, plaintiff's chiropractor. He claims that the ALJ's

failure to obtain those records resulted in an evidentiary gap

that undermined his credibility and prejudiced his claim.

Plaintiff's Memorandum at 16-17.

It is unclear if plaintiff claims that chiropractor

Stagnone's records constitute "new" evidence of plaintiff's

impairment which would, if properly submitted, constitute grounds

for remand. See Evangelista,

. However, to be

considered as new evidence, it must be material (i.e., not merely

cumulative) and good cause must be shown as to why the evidence

was not incorporated in a prior proceeding. (.Id.) . Here,

plaintiff has not crossed that threshold. Mark Stagnone's latest

report contains no new information regarding plaintiff's

impairments or restrictions. See Plaintiff's Memorandum,

Attachment F; see also Tr. 62-69, 75, 81-86, 101-114. Moreover,

23 at the hearing, the ALJ specifically asked plaintiff if he wished

to supplement the record with additional materials:

ALJ: I'm going to take just a moment to go over the documents that we have set aside in the record and you've had a chance to look these documents over before the hearing today. These are important papers that have been assembled. Many of these documents you will have your own copies of. We had marked all of these documents as Exhibits 1 through 22. Any my first guestion to you this morning is do you have any other medical records or any other statements with you this morning that I don't have that you would like to introduce?

CLMT: No.

Tr. 34-35 (emphasis added). In light of that exchange, plaintiff

can hardly complain that the ALJ failed to identify (and remedy)

the alleged evidentiary gap.

Finally, plaintiff's claim for Social Security benefits was

not prejudiced by the failure to acguire those records; even if

the ALJ had considered Stagnone's most recent report, it would

not been entitled to controlling weight.

(e) (3); Diaz v. Shalala,

(2d Cir. 1995).

Plaintiff has not explained how that factor might have altered

the ALJ's determination, or how he was prejudiced by its absence.

24 Despite plaintiff's claims to the contrary, it is clear that

the ALJ properly gathered and considered the necessary

documentary evidence upon which to base his conclusion that Mr.

Mandziej was not disabled within the meaning of the Act.

Ultimately, the ALJ need not make out a pro se claimant's case.

See Holland,

. Here, even taking into

consideration the fact that plaintiff elected to proceed pro se ,

the ALJ adeguately raised, explored, and considered the relevant

evidence concerning plaintiff's claim for Social Security

benefits.

It is not enough to say that had [the ALJ] seen more information his decision would have been different. It is probable that in all pro se cases additional material could have been generated by counsel. But where the evidence before the ALJ is sufficient to lead to a determination, it is not a due process violation that his investigation failed to produce the additional information.

Id.; See also, Evangelista,

; Edwards,

; Born v. Secretary of Health & Human Servs.,

(6th Cir. 1990); Wingert,

.

Accordingly, the court holds there are no prejudicial gaps in the

evidence that would constitute grounds for reversal or remand of

the ALJ's decision.

25 C. Prior Work

Next, plaintiff contends that the ALJ neglected to question

him regarding the physical and mental requirements of his past

relevant work experience as automobile service advisor.

Plaintiff's Memorandum at 17. Because the ALJ failed to do this,

plaintiff says the record does not contain specific findings of

fact to support a determination that plaintiff was capable of

returning to work as an automobile service advisor. Plaintiff's

Memorandum at 17-18.

This argument is similar to the one previously considered

and, for the reasons stated above, it too must fail. The record

contains substantial evidence to support the conclusion that

plaintiff is ineligible for Social Security benefits. Plaintiff

simply did not discharge his initial burden in step four of the

five-step sequential analysis. See Santiago,

.

The record before the ALJ contained information regarding

the specific physical and mental requirements of plaintiff's past

relevant work experience. In fact, plaintiff himself provided a

detailed description of the job requirements of an automobile

service advisor. (Tr. 85-86). In short, the ALJ sufficiently

developed the record regarding the specific physical and mental

26 requirements of plaintiff's past relevant work. Plaintiff's

claims to the contrary are unavailing.

D. Regimen Of Treatment

Finally, plaintiff argues that the ALJ failed to properly

consider his regimen of treatment. Plaintiff's Memorandum at 18.

The ALJ noted that plaintiff exercised at a health club four

times per week, swam, performed leg exercises, and used traction

equipment. (Tr. 19). Plaintiff claims that rather than

considering his treatment regimen as evidence of his disability,

the ALJ improperly considered it as evidence which: (1)

demonstrated plaintiff's physical abilities actually exceeded the

limitations plaintiff claimed; and (2) undermined plaintiff's

credibility, particularly with regard to his subjective

complaints of constant and debilitating pain. Plaintiff's

Memorandum at 18-19.

Regimen of treatment is but one factor to assist the ALJ in

his determination of the claimant's credibility. See

(c)(3)(i), (v), (vi); see, e.g., Harrell v. Harris,

(5th Cir. 1980); Epps v. Harris,

(5th Cir. 1980). The record reveals that the ALJ considered

27 plaintiff's regimen of treatment as well as other evidence of

impairment. (See Tr. 19, 49, 50, 51). The evidence plainly

supports the ALJ's conclusion that plaintiff's physical exercise

program, at a minimum, suggests that he is able to engage in

light exertional work. While other courts have utilized regimen

of treatment as substantial evidence of impairment when the

regimen hindered the claimant's working ability, see, Ferraris v.

Heckler,

(2d Cir. 1984), plaintiff does not

claim that his treatment regimen reguired so much time that it

would have interfered with his ability to work. Accordingly, his

argument must fail.

Ultimately, in reaching his conclusion that plaintiff was

not disabled, the ALJ appears to have relied heavily upon the

lack of any medical certification that plaintiff was actually

disabled (in fact, the medical opinions suggested that plaintiff

was not disabled) and his belief that plaintiff's subjective

complaints of constant and debilitating pain were not entirely

credible. Of course, the ALJ is reguired to consider the

subjective complaints of pain by a claimant who presents a

"clinically determinable medical impairment that can reasonably

be expected to produce the pain alleged."

423(d)(5)(A); Avery v. Secretary of Health and Human Servs., 797

F .2d 19, 21 (1st Cir. 1986);

. And,

"complaints of pain need not be precisely corroborated by

objective findings, but they must be consistent with medical

findings." Dupuis v. Secretary of Health and Human Servs.,

(1st Cir. 1989). The ALJ is not, however,

"reguired to take the claimant's assertions of pain at face

value." Bianchi v. Secretary of Health and Human Servs., 7

(1st Cir. 1985) (guoting Burgos Lopez v. Secretary of

Health and Human Servs.,

(1st Cir. 1984)).

When a claimant complains that pain or other subjective

symptoms are a significant factor limiting his or her ability to

work, and those complaints are not fully supported by medical

evidence contained in the record, the ALJ must consider

additional evidence, such as the claimant's prior work record;

daily activities; location, duration, freguency, and intensity of

pain; precipitating and aggravating factors; type, dosage,

effectiveness, and side effects of any medication taken to

alleviate pain or other symptoms, past or present; treatment,

other than medication, received for relief of pain or other

symptoms, past or present; any measures used, past or present, to

29 relieve pain or other symptoms; and other factors concerning

functional limitations and restrictions due to pain.

(c)(3); Avery,

.

Here, the ALJ considered such evidence and made specific

findings in support of his conclusion that plaintiff's "testimony

was not credible." (Tr. 18) For example, the ALJ properly

considered plaintiff's ability to perform household chores, his

ability to exercise and swim three or four times each week, his

lack of reliance upon prescription pain medications, his lack of

any need for regular medical attention, his lack of any cognitive

deficits (which one might expect to see in an individual

suffering from the pain claimant describes), and plaintiff's

conduct at the hearing itself. (Tr. 18-19).

The court cannot find that the ALJ's interpretation of

plaintiff's subjective complaints of pain was unsupported by the

record. It was.

IV. CONCLUSION

For the reasons stated above, the court holds that the ALJ

properly developed the record and considered all the relevant

30 evidence in making his determination. His conclusion that

plaintiff is not disabled within the meaning of the Act and,

therefore, not entitled to receive Social Security benefits, is

supported by substantial medical evidence. Accordingly,

plaintiff's motion to reverse the decision of the Secretary

(document no. 7) is denied. Defendant's motion to affirm the

decision of the Commissioner (document no. 9) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 24, 1996

cc: Raymond J. Kelly, Esg. David L. Broderick, Esg.

31