Colby v. SSA CV-96-2 3 8-M 05/09/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Eleanor Colby, Plaintiff

v. Civil No. 96-238-M

Shirley Chafer, Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to section 20 5 (g) of the Social Security Act,

(g), Eleanor Colby seeks review of a final decision

by the Commissioner of the Social Security Administration denying

her claim for 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.

Administrative Proceedings

Plaintiff filed an application for disability insurance

benefits on April 28, 1993, alleging an inability to maintain

gainful employment since May 10, 1988, due to fibrocytis

fibromyalgia, which causes chronic muscle pain and spasms. Her

claim was denied initially and again on reconsideration.

Subseguently, she reguested a hearing, which was held on February 27, 1995, before Administrative Law Judge Frederick Harap.

Plaintiff appeared in person and testified. She was represented

by Arthur Kaufman, a lay representative who is also a vocational

expert.

In a decision issued on March 31, 1995, the ALJ denied

plaintiff's claim at step four of the relevant sequential

evaluation process. See

(e). The ALJ

concluded that plaintiff had "sufficient residual functional

capacity for a substantially full range of light work" (T.21),

and, therefore, was able to perform her past relevant work as an

electronic skills instructor. Moreover, he concluded that even

if plaintiff were unable to perform the tasks associated with

that occupation, she retained, at a minimum, the residual

functional capacity to perform sedentary work. Accordingly, the

ALJ held that plaintiff was not disabled within the meaning of

the A c t .

Facts

I. Medical Evidence.

Eleanor Colby, is a 47 year-old resident of Danbury, New

Hampshire. While employed as an electronics assembler/computer

skills instructor in October of 1987, she began to develop back

2 and neck pain (T.100). She was treated initially by Dr. Carey

Rodd in Salisbury, New Hampshire, from December 1987 through

October 1992 (T.82). He prescribed physical therapy and

medication, and diagnosed her condition as myofascial pain

syndrome (T.82, 219-224).

For two weeks in late April of 1988, plaintiff attempted to

work on a part-time basis (T.81). Her efforts were unsuccessful

and she has not been employed since May 10, 1988. From July of

1988 through August of 1990, she was treated by Dr. Seddon

Savage, a pain specialist at Dartmouth Hitchcock Hospital (T.158-

67). In her initial evaluation of plaintiff, dated July 27,

1988, Dr. Savage noted that plaintiff had a full range of motion

in her lumbar spine and neck, but experienced discomfort in her

back muscles when pulling (T.159). Muscle tenderness was noted

in her shoulder with a large trigger point noted in her upper

back (Id.). Other tests were within normal ranges, including

reflexes, straight leg raising, and motor strength.

Dr. Savage opined that plaintiff demonstrated a "secondary

myofascial pain syndrome due to overuse associated with her

assembly work" (Id.). She felt plaintiff would be unlikely to

return to her past work in the near future. Although Dr. Savage

3 believed plaintiff could return to a managerial position with no

assembly work, she noted that plaintiff's long drive to work

might make a successful return difficult (Id.). She recommended

injections of pain medications at the trigger points1 in

plaintiff's left shoulder (1.161) . In a June 5, 1989 note. Dr.

Savage observed that plaintiff was released for work with

restrictions in January 1989 and had sought appropriate work, but

was unsuccessful (T.162). Plaintiff's fibromyalgia had been

asymptomatic for almost two months, but she experienced a flare

up after sitting in the cold at her daughter's track meet (Id.).

In a letter to plaintiff's compensation attorney. Dr. Savage

noted that she had been treating plaintiff for persistent work-

related shoulder and left arm pain, which she diagnosed as

overuse fibromyocytis due to repetitive muscular contraction

(T.163). Muscle relaxants such as flexeril were needed for pain

flare-ups, but were not necessary if plaintiff paced her

activities and did not overuse the affected muscles (Id.). Dr.

Savage noted that plaintiff had been ready to return to work for

several months, but had experienced difficulty in finding

appropriate employment (T.163-64). Dr. Savage also noted that

"the only limitations which have been imposed on her are that her

1 Trigger point - A specific point on the body at which touch or pressure will give rise to pain. P. 806, Stedman's Concise Medical Dictionary (2d Ed. (Williams & Wilkins, 1995). 4 work not involve repetitive or heavy use of her arms,

particularly the left arm, and that her work be done within

thirty-five miles of home" (Id.). Dr. Savage cautioned, however,

that she could not predict if plaintiff's condition would be

permanent or if it would gradually resolve in a few years. She

felt it more likely that Ms. Colby would have a "persistent

tendency" for further muscle spasms and pain (T.164) .

In a disability report prepared for plaintiff's insurance

carrier. Dr. Savage diagnosed plaintiff's condition as "overuse

fibrocytis/ myofascial dysfunction." (T.165). Her treatment for

this ongoing problem included medication, supervised physical

therapy, and trigger point injections (Id.). Dr. Savage felt

plaintiff could not return to her past job because the commute to

work was too great. However, Dr. Savage stated that other

lighter, more suitable work with less driving may be appropriate

(T.166) .

On December 12, 1989, Susan A. Emerson, an occupational

therapist, performed an upper extremity work capacity evaluation

on plaintiff. This evaluation revealed no atrophy, edema, or

deformities. Ms. Emerson reported that plaintiff had a full

active range of motion in her shoulder, elbow, forearm, wrist and

5 fingers (T.226). Trigger points for pain were noted in the

paracervical muscles, scapula, and trapezium (T.227). Plaintiff's

ability to reach was normal (T.228), but her ability to lift was

limited to 10 pounds repetitively with a maximum lifting/carrying

capacity of 15 pounds (Id.). While her range of motion was

normal, her grip strength in both hands was below normal (T.229).

Ms. Emerson noted, however, that plaintiff's performance on other

strength tests suggested that she "may not have exerted maximal

effort during grip testing" (Id.). Ms. Emerson concluded that

plaintiff had a light to moderate work capacity, but with

limitations on constant forward head movement. Additionally, it

was recommended that she be provided with work which permitted

some variety in head posturing and did not reguire repetitive

reaching at or above shoulder height (Id.). Extensive driving

was limited and she was told to do no lifting more than 20 pounds

using both hands or 10 pounds with either hand (T.229-30).

Subseguently, a permanent impairment evaluation was done on

June 27, 1990 (T.231) by plaintiff's workers' compensation

carrier. Its doctor, Kenneth O'Neil, M.D., felt that plaintiff

had reached a medical endpoint and noted that she had ongoing

6 problems with tenosynovitis2 and myofascial3 pain. He concluded

that she had minor residual permanent impairment of 3% in her

dominant right upper extremities and 2% in her non-dominant left

upper extremities, based on continued intermittent trigger points

(T.236). Ultimately, however, he concluded that she did not have

"any significant permanent impairment" (T.234).

On January 29, 1993, the plaintiff was examined by a

consultative neurologist. Dr. Lawrence Jenkyn, at the reguest of

the Disability Determination Services ("DDS") (T.250-51).

Dr. Jenkyn found that plaintiff had point tenderness over both

trapezium muscle groups, however the rest of her neurological

exam was normal (T.251). Dr. Jenkyn also noted that there was no

way to document the nature of plaintiff's pain other than by

historical reports. Further, he observed that plaintiff had not

undergone CT, MRI, NCS (nerve conduction study), or EMG

(electromyography) testing. Dr. Jenkyn speculated that such

tests were not performed because plaintiff's doctors had

2 Tenosynovitis - The inflammation of a tendon and its enveloping sheath. Stedman's Concise Medical Dictionary (2d Ed. (Williams & Wilkins, 1995).

3 Myofascial - Relating to the fascia (a sheet of fibrous tissue that envelopes the body beneath the skin and encloses muscles and muscle group. P. 370, Stedman), surrounding and separating the muscle tissue.

.

7 predicted that the results of those tests would be normal

(T.251).

Plaintiff was also seen and treated by Dr. Hoke Shirley, a

rheumatologist in Concord, New Hampshire, from October 27, 1993,

through her date last insured. In his initial evaluation.

Dr. Shirley noted that despite a full range of motion in all

joints of the upper and lower extremities, plaintiff had multiple

tender points in the head, neck, and back muscles. He also noted

plaintiff's pain in the bicep region, shoulder blade area,

buttocks, and trochanter4 region (T.266). Plaintiff also

reported some bilateral tenderness in her calves. However, other

diagnostic orthopedic tests, such as Flip and straight leg

raising (SLR), were negative (Id.). Additionally, plaintiff's

neurologic exam was non-focal (T.266).

Applying the American College of Rheumatology criteria and

based on his examination and plaintiff's subjective complaints of

pain and fatigue. Dr. Shirley diagnosed plaintiff as suffering

4 Trochanter - A bony prominence developed from independent osseous centers near the upper extremity of the femur. Stedman's Concise Medical Dictionary p. 1054 (2d Ed. (Williams & Wilkins, 1995). from a fibromyalgia5 (T.266). He also noted that "severe bouts

of muscle spasm and pain" accompanied certain physical

activities, which prevented plaintiff from utilizing certain home

physical therapy treatment. Increased dosages of amitriptyline6

had provided some temporary pain-free sleep and fewer spasms, but

did not resolve her pain problems (T.265).

Dr. Shirley's follow-up treatment notes on December 8, 1993,

reference persistent tender points. However, Dr. Shirley

observed that plaintiff had essentially a full range of motion

and a non-focal neurological exam (T.267) and noted that

"[o]verall, [she is] doing fairly well with several

exacerbations" (T.268). With regard to plaintiff's medications

and therapy. Dr. Shirley noted that "she just needs to continue

the present medication dosages including 50 mg. of Amitriptyline

at bedtime, 10 mg. of Flexeril [a muscle relaxant], stress

reduction technigues, coping mechanisms, lumbar and cervical

dysfunction exercises, and aerobic activity" (Id.) .

5 Fibromyalgia - A condition where widespread pain, decreased pain threshold to palpation, and other characteristic symptoms are present with multiple trigger points. The syndrome has been characterized as a disorder of pain modulation. (See T.288, 294) .

6 Amitriptyline - An anti-depressant medication freguently used by physicians to treat fibromyalgia and sleep disturbance. In assessing plaintiff's physical limitations. Dr. Shirley

noted that her back problem continued to persist for over 3

months despite prescribed therapy and that her pain was caused by

trigger points which restricted her to lifting 10 pounds

freguently and 20 pounds occasionally (T.271). Additionally, he

found that plaintiff could stand and walk for one hour at a time,

and up to a total of two hours during a working day. He also

opined that plaintiff could sit for two hours at a time, and up

to six hours during a work day. He concluded that plaintiff

could alternate between sitting and standing for a total of eight

hours during the day. Dr. Shirley opined that plaintiff was

restricted from pushing and pulling arm controls as well

sguatting, crawling, or climbing (T.272). Although plaintiff was

able to reach and bend, she had severe restrictions with regard

to working at heights and around moving machinery, as well as

being exposed to marked humidity, temperature changes, dust or

fumes. Dr. Shirley believed plaintiff's complaints of fatigue

and pain were credible and attributed them to fibromyalgia.

II. Hearing Testimony.

Plaintiff testified that she had almost 8 years experience

as an assembler and more recently as an instructor in cable

assembly work for Computer Vision. Because of constant

10 repetitive reaching and fabricating, she gradually developed pain

in her shoulders which caused tingling in her shoulders and

ultimately lead to spasms, which progressed to daily events

(T.46). To properly relieve this daily pain while she worked,

she reguired pain medication and rest (T.47). The tingling pain,

if not treated, progressed to a hardness in her shoulder that

lead to muscle spasms. She said that the only way to reduce the

pain and the spasms was for her to ice them or lay in a hot tub

(Id.). Plaintiff testified that if a tingling sensation was left

untreated, it would sometimes become a burning sensation like

being stabbed with a knife (T.48). The level of her discomfort

depended upon the nature of her activity and the freguency at

which she could rest her arms and shoulders. She estimated that

she had yearly flare-ups of her worst symptoms which would then

last from one to three months (T.49). During those periods, she

said that she could do very little activity and almost any

exertion could cause instantaneous pain (Id.) . She described

disturbed sleep patterns, flu-like symptoms, and muscle aches

that would persist for days despite her daily use of sleep

medications and muscle relaxants (I.269). She testified that

since the onset of her fibromyalgia, she drives very little. She

did, however, concede that she is able to drive to the store and

11 the post office on a daily basis and go grocery shopping once a

week (T .51) .

She recounted for the ALJ the various treatment regimens she

has undergone since 1987, including her trigger point injections

of lidocaine and physical therapy from December 1987 through June

21, 1989 (T.109-157). Finally, she noted that her daily

activities are now restricted and she is unable to shovel snow,

do yard work or gardening, or take out the rubbish (T.54) . She

reported that any prolonged sitting or use of her arms triggers

spasms that force her to lie down and ice the affected areas.

Due to the unpredictable nature and intensity of her symptoms,

she said that she is afraid to go far from her home (T.55).

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

12 Ortiz v. Secretary of Health and Human Services, 955 F.2d765,

769 (1st Cir. 1991).7

In making those factual findings, the Commissioner

(formerly, the "Secretary") must weigh and resolve conflictsin

the evidence. Burgos Lopez v. Secretary of Health and Human

Services,

(1st Cir. 1984) (citing Sitar v.

Schweiker,

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

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, 955 F.2d at 769. And, the

court will give deference to the ALJ's credibility

determinations, particularly where those determinations are

supported by specific findings. Frustaalia v. Secretary of

Health and Human Services,

(1st Cir. 1987)

(citing Da Rosa v. Secretary of Health and Human Services,

(1st Cir. 1986)).

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

(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 A person 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

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 Services,

(1st Cir.

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

impairment prevents her from performing her former type of work.

Gray v. Heckler,

(1st Cir. 1985) (citing

Goodermote v. Secretary of Health and Human Services,

(1st Cir. 1982)). 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) the plaintiff's subjective claims of pain and

disability as supported by the testimony of the plaintiff or

other witnesses; and (3) the plaintiff's educational background. age, and work experience. See, e.g., Avery v. Secretary of

Health and Human Services,

(1st Cir. 1986);

Goodermote,

.

Once the plaintiff has shown an inability to perform her

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

there are other jobs in the national economy that she can

perform. Vazquez v. Secretary of Health and Human Services,

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

of other jobs which the plaintiff can perform, then the overall

burden remains with the plaintiff. Hernandez v. Weinberger,

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

(D.N.H. 1982) .

When determining whether a plaintiff is disabled, the ALJ is

reguired to make the following five inguiries:

(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and, if so, (5) whether the impairment prevents the claimant from doing any other work.

15

. The mere existence of a medical impairment

is, however, insufficient to entitle a plaintiff to benefits.

Ultimately, a plaintiff is disabled under the Act only if her:

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

(d) (2) (A) .

Discussion

No one appears to doubt that plaintiff is impaired and

suffers pain. The relevant inguiry is, however, whether she is

disabled within the meaning of the Act. And, on that point, the

medical evidence supportive of plaintiff's position is, at best,

minimal. Importantly, none of her treating or examining

physicians opined that she is permanently disabled. In fact, one

of her examining physicians said that he did not believe that

plaintiff had "any significant impairment" (T.234) and estimated

that her extremity impairment was only "3% for her dominant right

upper extremity and 2% impairment for her non-dominant left upper

extremity" (T.236). Of the remaining physicians who treated or

examined plaintiff, those who expressed an opinion (with the

exception of Dr. Shirley) stated that: (1) she was only

16 restricted from heavy use of her arms, including lifting more

than 20 pounds with both arms and more than 10 pounds with one

arm; (2) she should avoid repetitive reaching at or above

shoulder level; (3) she should not engage in any crawling,

sguatting, or climbing; and (4) she should limit the distances

which she travels in her car.

In addition to the physicians and occupational therapists

who treated and/or examined plaintiff, two non-examining.

Disability Determination Services physicians reviewed plaintiff's

entire medical record. Each concluded that she was not totally

disabled (T.62-69). On July 12, 1993, Dr. Homer Lawrence

concluded that plaintiff's condition caused her to suffer from no

exertional limitations. He also concluded that, other than

plaintiff's subjective complaints of pain, there was no medical

evidence which would support the conclusion that she is disabled

(T. 69). In September of 1993, Dr. Craig Campbell reviewed

plaintiff's medical records and affirmed Dr. Lawrence's

conclusions.

Nevertheless, plaintiff disputes the ALJ's conclusion that

she is not disabled and claims that the ALJ erred when he failed

to give controlling weight to the medical opinion of Dr. Shirley,

17 who reported that plaintiff had some exertional limitations

(T.272) and experienced pain that was "frequently debilitating"

(T.273). As plaintiff correctly notes, generally, the ALJ must

afford more weight to the medical opinions of a claimant's

treating physicians because those sources are:

likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the plaintiff's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.

(d)(2). Of course, the ALJ may decide not to

give controlling weight to the opinions of a plaintiff's treating

physicians. However, if the ALJ does not give those opinions

controlling weight, he or she must "always give good reasons in

[the] notice of determination or decision for the weight [the ALJ

gave] to [the claimant's] treating source's opinion."

Even assuming that Dr. Shirley may properly be viewed as

plaintiff's treating physician (a point which the Commissioner

disputes, citing

(d)(2)(i) and alleging that

his treatment of plaintiff lacked the requisite "longitudinal

relationship"). Dr. Shirley's opinions fail to support

plaintiff's claim that she is disabled within the meaning of the

18 Act. First, Dr. Shirley never opined that plaintiff was totally

disabled. Instead, he noted that plaintiff had some functional

limitations which might restrict the nature of work which she

might successfully perform (T.271-73). Second, Dr. Shirley

concluded that plaintiff could, among other things: (1) lift 20

pounds at one time; (2) lift 10 pounds freguently; (3) remain on

her feet for at least an hour at a time and for a total of 2

hours during a work day; (4) remain seated for at least an hour

at a time and for a total of 6 hours during a work day; (5)

alternate between sitting and standing for 8 hours a day without

the need to lie down; (6) drive with mild limitations regarding

distances traveled and duration in the car; (7) use her hands for

simple grasping and fine manipulation; and (8) push and pull leg

and foot controls.

Even if the ALJ had accepted all of Dr. Shirley's opinions

(which he plainly was not reguired to do), it is unclear whether

he would have changed his ultimate conclusion that plaintiff is

not disabled within the meaning of the Act; the environmental and

exertional limitations which Dr. Shirley suggested should be

imposed upon plaintiff are not inconsistent with a conclusion

that she is capable of performing light or, at a minimum,

sedentary work. Nor are the exertional limitations suggested by

19 Dr. Shirley inconsistent with the ALJ's conclusion that plaintiff

was capable of performing her prior job as a skills instructor.8

Nevertheless, to the extent the ALJ actually discounted some

of Dr. Shirley's opinions, he properly articulated his basis for

doing so and adeguately supported his conclusion that plaintiff

is capable of performing a substantially full range of light work

with limitations on repetitive overhead reaching (T.17). In

reaching that determination, the ALJ specifically noted:

[T]he undersigned is mindful of the report by Dr. Shirley, who indicates that the claimant is restricted to two hours of standing and walking, and additional postural and environmental restrictions. Under the regulations at 20 C.F.R. 404.1527, a treating source's opinion regarding the disability will be given controlling weight if that opinion is supported by objective medical findings and is not inconsistent with

8 Plaintiff claims that her job classification, as defined in the Dictionary of Occupational Titles ("DOT"), is "Instructor, Vocational Training," DOT classification number 097.221-010. However, nothing contained in the DOT description of that position or in the related description contained in the Guide for Occupational Exploration ("GOE"), suggests that plaintiff's exertional limitations preclude her from returning to that occupation. The GOE provides that a vocational training instructor typically engages in freguent reaching, handling, and fingering. However, Dr. Shirley opined that plaintiff was, among other things, able to use her hands for simple grasping and fine manipulation. Although Dr. O'Neil recommended that plaintiff "avoid repetitive reaching to and above shoulder height" (T.229), nothing in the DOT or GOE suggests that a vocational training instructor typically engages in such activity nor is there any evidence in the record which indicates that plaintiff's former job actually reguired repetitive overhead reaching.

20 the other evidence of record. In the present case, however. Dr. Shirley's determination is based solely on clinical evaluation and the claimant's history of subjective complaints. As such, the undersigned finds Dr. Shirley's conclusion somewhat speculative in nature, and therefore less persuasive (T.17).

Accordingly, the court concludes that the ALJ adeguately

explained his decision to afford Dr. Shirley's opinions the

weight which he gave them. See

(d)(2) (the

ALJ must "give good reasons in [the] notice of determination or

decision for the weight [he gave] to [the claimant's] treating

source's opinions."); Arroyo v. Secretary of Health and Human

Services,

(1st Cir. 1991) (the ALJ is "not

reguired to accept the conclusion of plaintiff's treating

physicians on the ultimate issue of disability.").

Ultimately, the only substantive issue presented with regard

to Dr. Shirley's medical opinions is whether the ALJ was reguired

to find that plaintiff was disabled based upon Dr. Shirley's

statement that plaintiff's pain was "freguently debilitating."

For the reasons set forth above, the court rules that the ALJ was

not reguired to do so and properly articulated his reasons for

discounting, to some degree. Dr. Shirley's opinion. Whether the

court would have ruled differently if presented with this

evidence de novo, is not relevant. The court's inguiry is

21 limited to, among other things, a determination of whether there

is substantial evidence in the record to support the ALJ's

conclusion that plaintiff was not disabled within the meaning of

the Act. Here, the record plainly contains such substantial

evidence.

The court also concludes that the ALJ adeguately considered

plaintiff's subjective complaints of pain and properly explained

his reasons for finding that they were not entirely credible.

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; treatment, other than

medication, received for relief of pain or other symptoms; any

measures used, past or present, to relieve pain or other

symptoms; and other factors concerning functional limitations and

restrictions due to pain.

(c)(3); Avery v.

Secretary of Health and Human Services,

(1st Cir.

22 1986). The ALJ need not, however, take a plaintiff's subjective

complaints at face value. See Bianchi v. Secretary of Health and

Human Services,

(1st Cir. 1985).

Here, the ALJ noted that, among other things, plaintiff is

able to perform household chores, including dusting, washing

dishes and laundry, vacuuming, cooking, and shopping. He also

observed that plaintiff was able to serve as the treasurer of the

local planning board. Additionally, the ALJ considered

plaintiff's use of Amitriptyline and Flexeril on an "as needed"

basis, her positive response to various treatment regimens, and

her ability to freguently predict and avoid flare-ups in her

condition simply by controlling her home environment and

modifying her activities. Plaintiff's ability to perform those

(and other) daily and weekly activities, along with her ability

to manage her pain, support the ALJ's conclusion that plaintiff

"is an individual who is guite able to meet both routine

obligations and engage in additional activities of interest

despite alleged symptoms of pain and loss of concentration"

(T.19). In short, the court finds substantial evidence in the

record to support the ALJ's conclusion that the "lack of an

organic basis for the claimant's pain, coupled with the

claimant's base line functioning supplemented by only limited

23 medical assistance suggest the presence of a less than

debilitating condition" (T.18).

Conclusion

For the foregoing reasons, the court finds substantial

evidence in the record to support the ALJ's conclusion that

plaintiff is not disabled within the meaning of the Act. The

court also concludes that, notwithstanding plaintiff's arguments

to the contrary, the ALJ did not improperly classify plaintiff's

past relevant work. Accordingly, the decision of the ALJ is

affirmed. Plaintiff's motion for an order reversing the decision

of the Commissioner (document no. 4) is denied. Defendant's

motion for an order affirming the decision of the Commissioner

(document no. 7) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 9, 1997

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

24