Spear v. Social Security Admin. CV-97-096-B 06/05/98

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Donald A. Spear

v. C-97-096-B

John J. Callahan, Ph.D., Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Donald A. Spear suffers from a degenerative disc disease

affecting his lower back. Spear applied for Title II Social

Security Disability Income ("SSDI") benefits in June 1994,

alleging that he was unable to work because of his back condition

and the resulting pain his condition causes. The Social Security

Administration ("SSA") denied Spear's application at each stage

of administrative review, rendering a final decision denying the

application in February 1997.

Spear brings this action pursuant to Section 20 5 (g) of the

Social Security Act,

(g)(West Supp. 1997),

seeking review of the SSA's final decision to deny him SSDI

benefits. He asserts that the SSA Administrative Law Judge

("ALJ") who reviewed the case erred in two respects, namely that:

(1) the ALJ should have found that Spear's impairment meets or

eguals the criteria of the impairments listed in the SSA

regulations; and (2) even if his impairment does not meet or equal the severity of a listed impairment, the ALJ should have

found that Spear's impairment causes him pain so as to reduce his

residual functional capacity to the point where he cannot perform

his past relevant work.

For the reasons that follow, I reject both of Spear's

contentions and, thus, affirm the SSA's denial of Spear's

application for SSDI benefits.

I. FACTS1

A. Spear's Health Problems

Spear was born on June 25, 1934, and was 61 years old at the

time of the ALJ hearing. He has received a high school education

and his past work experience includes employment as a skilled

machinist/millwright, an automobile mechanic, and a deputy

director of a municipal public works department. Spear has not

worked since March 15, 1992.

1. Medical History Prior to Alleged Onset Date

Prior to March 1992, Spear had a longstanding history of

chronic, periodic lower back pain.2 The earliest medical record

1 Unless noted otherwise, the following facts are taken from the Joint Statement of Material Facts submitted by the parties to this action.

2 Spear has also experienced episodic pain in his wrists, arms, neck, and shoulders. In June 1979, he was treated for pain in his right wrist. In March 1980, he was treated for neck and shoulder pain. A physical examination found no limitation of motion or atrophy of these areas, but the examination did reveal a decrease in sensation and reflexes. Spear's physician diagnosed possible bursitis and fibrositis. During the first half of 1986, Spear experienced left shoulder pain. An examination revealed some arthritic changes - 2 - of this pain dates from December 1975, when Spear was

hospitalized after complaining of back pain as well as numbness

and weakness in his legs. An x-ray of his lumbar spine showed no

abnormal conditions, but a lumbar myelogram did reveal a small

disc herniation at the L5-S1 intervertebral level and a possible

lesion on the disc at the L3-L4 intervertebral level. After a

follow-up visit in January 1976, Spear's physician stated that

Spear only needed to be seen on an outpatient basis.

Spear did not reguire medical attention for his back again

until January 1978. At that time, his treating physician

prescribed a course of Valium. Spear next reguired medical

attention for his back in March 1981. His doctor prescribed bed

rest as well as Valium and recommended that, following his

discharge, Spear could gradually resume his normal activities.

Spear experienced another flare up of back pain in May 1987

for which his doctor once more prescribed bed rest as well as

pain and antispasmodic medications. An x-ray of Spear's lumbar

spine showed no abnormal conditions, but a CT scan did reveal a

small disc herniation at the L4-L5 intervertebral level with

circumferential bulging of the disc. Spear was discharged from

and tenderness in his shoulder joint, causing a loss to his range of motion, but no swelling. Spear's physician noted that the medication prescribed to alleviate the pain was not successful in doing so but also noted that some of Spear's continued pain resulted from Spear trying to do "too much." In December 1990, Spear's physician examined him for right shoulder and arm pain, concluding that the pain was likely the result of tendinitis or bursitis. The examination revealed weakness and tenderness but found no calcific depositions and no major arthritic changes. The doctor prescribed Motrin as a pain killer.

- 3 - the hospital after one week and, at his two-month post-spasm

check up, his physician stated that Spear should be seen only as

needed.

In May 1988, Spear had a similar episode of back pain for

which his doctor again prescribed bed rest and medication. Spear

requested no medication for pain at the time of his discharge.

In January 1989, while hospitalized for dizziness, nausea, and

chest pain, plaintiff injured his back for which his doctor again

prescribed bed rest and medication. Upon his discharge from the

hospital, Spear's physician recommended that Spear should be seen

only as needed.

After his January 1989 back spasm, Spear underwent several

screening procedures to determine if back surgery was warranted.

The procedures included an MRI scan, a lumbar myelogram, and a CT

scan. Each revealed some degenerative disc disease at the L2-L3,

L3-L4, L4-L5, and L5-S1 intervertebral levels with bulging annul!

noted at each level. None of these screening techniques

identified a discrete focal disc herniation, however, even at the

L4-L5 intervertebral disc level where the May 1987 CT scan had

identified a herniation. Because Spear's doctors could not

identify the specific intervertebral level which was producing

pain, they decided against surgery.

Spear next experienced significant back pain in September

1990. As on previous occasions, his treating physician

prescribed bed rest as well as pain and antispasmodic medications

to be followed by gradual mobilization. In January and February

- 4 - 1991, Spear had more back pain and, again, was treated with bed

rest and medication.

In July 1991, Spear's treating physician evaluated his

condition finding that because his symptomology was mild and

because he was active (e.g., able to walk three miles per day and

perform back exercises), he recommended against treating the

patient with an epidural block with steroids, instead concluding

that Spear should be seen only as needed. In January 1992, he

had more back pain and again was treated with bed rest and

medication.

2. Medical History after Alleged Onset Date

Spear did not receive any treatment for his back for 18

months after March 15, 1992, the alleged onset date of his

inability to work. In September 1993 and January 1994, he

experienced episodes of back pain and was treated with bed rest

and medication. At follow-up appointments in May and July 1994,

Spear's physician did not find any changes in his back condition.

The physician recommended that Spear exercise to lose weight and

that he be seen only as needed. In August 1994, plaintiff

experienced another episode of back pain and was treated with bed

rest and medication. At a follow-up appointment in October 1994,

Spear's physician took a lumbar x-ray which did not show any

change in his condition.

B. Administrative Review of Spear's Application

Spear applied for SSDI benefits in June 1994, alleging that

he was unable to work because of his back condition and the

- 5 - resulting pain his condition causes.

In September 1994, a non-examining. State of New Hampshire

Disability Determination Services ("DDS") physician reviewed

Spear's entire medical record to date and determined that despite

his medical condition, Spear retained the ability to: (1) lift 20

pounds occasionally and 10 pounds freguently; (2) sit, stand, and

walk for up to six hours per day; (3) occasionally climb,

balance, stoop, kneel, crouch, and crawl; and (4) push and pull

in unlimited fashion. This evaluation was confirmed in its

entirety by another DDS physician in December 1994.3 As a

result, the SSA denied Spear's application both upon initial

agency review and upon resubmission of his application for agency

reconsideration.

Following these denials, plaintiff brought his case before

an ALJ. The ALJ who reviewed the case found that Spear suffered

from a severe impairment in the form of degenerative disc disease

but that the impairment did not meet or egual a listed condition

for the purposes of finding him disabled. In addition, the ALJ

found that based on the medical evidence and Spear's testimony

regarding his daily activities, Spear had the capacity to perform

a full range of light work activities as long as these activities

did not reguire lifting and carrying more than 20 pounds

occasionally and 10 pounds freguently. Further, the ALJ found

that Spear's pain was not so constant, severe, or disabling as to

3 The facts relating to the DDS physicians' review of plaintiff's medical record are drawn from the administrative record itself. have a significant impact on his performance of a full range of

light work activities. Conseguently, because the ALJ found Spear

was able to perform light work activities including his past

relevant work, the ALJ declined to find that Spear's impairment

entitled him to receive SSDI benefits.

Spear then reguested an Appeals Council review of the ALJ's

decision. With the Appeals Council's February 1997 rejection of

Spear's reguest for a review, the council rendered a final

decision regarding the application on behalf of the Commissioner

of the SSA. Spear now appeals the Appeals Council decision to

this court.

II. STANDARD OF REVIEW

After a final determination by the Commissioner denying a

claimant's application for benefits and upon a timely reguest by

the claimant, this court is authorized to: (1) review the

pleadings submitted by the parties and the transcript of the

administrative record; and (2) enter a judgment affirming,

modifying, or reversing the Commissioner's decision. See

(g). The court's review is limited in scope,

however, as the Commissioner's factual findings are conclusive if

they are supported by substantial evidence. See Irlanda Ortiz v.

Secretary of Health and Human Services,

(1st

Cir. 1991);

(g). The Commissioner is

responsible for settling credibility issues, drawing inferences

from the record evidence, and resolving conflicting evidence.

- 7 - See Irlanda Ortiz,

. Therefore, the court must

"'uphold the [Commissioner's] findings . . . if a reasonable

mind, reviewing the evidence in the record as a whole, could

accept it as adeguate to support [the Commissioner's]

conclusion.'"

(guoting Rodriquez v. Secretary of Health and

Human Services,

(1st Cir. 1981)) .

However, if the Commissioner has misapplied the law or has

failed to provide a fair hearing, deference to the Commissioner's

decision is not appropriate, and remand for further development

of the record may be necessary. See Carroll v. Secretary of

Health and Human Services,

(2d Cir. 1983); see

also Slessinqer v. Secretary of Health and Human Services,

(1st Cir. 1987) ("The [Commissioner's] conclusions

of law are reviewable by this court.") I apply these standards

in reviewing the issues plaintiff raises on appeal.

III. DISCUSSION

Spear asserts that the ALJ who reviewed the case erred in

two respects. First, Spear argues that the ALJ should have found

him disabled because his back impairment either meets or eguals

the criteria of the back impairments listed in the SSA

regulations. Spear contends that the ALJ's decision to the

contrary is not supported by substantial evidence.

Second, Spear asserts that even if his back impairment does

not meet or egual the severity of a listed impairment, his

impairment causes him a great enough level of pain so as to reduce his residual functional capacity to the point where he

cannot perform his past relevant work. Spear argues that the ALJ

erred in finding otherwise and, therefore, erred in finding Spear

ineligible to receive SSDI benefits. Again, Spear contends that

the ALJ's decision is not supported by substantial evidence. I

address each of plaintiff's contentions in turn.

A. Does Plaintiff's Impairment Meet or Equal the Severity of a Listed Impairment?

In making a determination regarding whether a claimant is

disabled, an ALJ must use a five-step seguential analysis.4 See

. At step three of the seguential analysis,

the ALJ evaluates the claimant's condition under the criteria

described in the SSA regulations at 20 C.F.R. Part 404, Subpart

P, Appendix 1 ("Appendix 1"). See

(d). The

claimant bears the burden of proving that his condition meets or

eguals the criteria of an impairment listed in Appendix 1. See

Dudley v. Secretary of Health and Human Services,

(1st Cir. 1987). If the claimant meets his burden at step

three, the ALJ must find the claimant is disabled; otherwise, the

4 The ALJ is reguired to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. See

, 404.1520. ALJ must proceed to step four in the evaluation process and

assess whether the claimant's impairment prevents him from

performing his past relevant work. See id.;

(d), (e).

1. Meeting a Listed Impairment

A claimant cannot show his impairment "meets" the

requirements of a listed impairment simply by showing he has a

listed diagnosis. See

(d). Rather, the

claimant must establish that he suffers from the specific medical

findings described for that impairment. See Martinez Nater v.

Secretary of Health and Human Services,

(1st Cir.

1991). If the claimant's medical findings fall below or are

different from those listed for the impairment, the claimant has

not met the requirements of the listed impairment. See

In the instant case, plaintiff argues that his spine

impairment meets the criteria of the spine impairments described

in Section 1.05(C)5 of Appendix 1. However, the record reveals

that while Spear has had a dozen episodes of pain-causing lower

back muscle spasm for which he has been hospitalized over the

past two decades, none of these episodes has satisfied the three-

month-minimum durational requirement mandated by Section 1.05(C).

5 Section 1.05(C), which governs the vertebrogenic disorders suffered by plaintiff, requires the disorders to be accompanied by "[plain, muscle spasm, and significant limitation of motion in the spine" as well as by " [a]ppropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss." 20 C.F.R. Pt. 404, Subpt. P, Ap p . 1, § 1.05(C) (1), (2). In addition. Section 1.05(C) requires that these symptoms persist "for at least 3 months despite [the] prescribed therapy and [are] expected to last 12 months." Id.

- 10 - To the contrary, the record reveals that Spear's episodes of

lower back muscle spasm responded well and quickly to treatment,

each abating sufficiently to allow him to be discharged from the

hospital after at the longest a one-week period of bed rest and a

course of anti-inflammatory and antispasmodic medication. See,

e.g., Adams v. Bowen,

(5th Cir. 1987) (where

claimant's lower back muscle spasm responds well and quickly to

treatment, claimant's impairment cannot be said to meet the

durational requirement of Section 1.05(C)).

In addition, at or shortly after his discharge from the

hospital, plaintiff's physicians routinely noted that he did not

need to be under continuing observation but could return to his

pre-spasm activities. That Spear's physicians never prescribed a

treatment plan calling for ongoing monitoring indicates that his

debilitating back spasms had subsided by the time of discharge

and, thus, did not persist for the requisite three-month period.

See, e.g., Irlanda Ortiz,

(lack of regular

monitoring evidence of intermittent nature of debilitating muscle

spasm).

Finally, after each spasm, Spear did return to his pre-spasm

activities -- i.e., either to his pre-spasm employment or his

pre-spasm performance of household chores, shopping, and hobbies.

This further indicates that each of plaintiff's episodes of

debilitating muscle spasm ended approximately at the time of

discharge rather than persisting for the requisite number of

months. See, e.g., Barrientos v. Secretary of Health and Human

- 11 - Services,

(1st Cir. 1987) (claimant's statement

that she could perform household chores was inconsistent with

claim of continuous presence of severe back muscle spasm).

Thus, because after each occasion of back spasm Spear was

discharged from the hospital after one week at the longest, was

told that he need not seek medical attention for his back unless

he experienced another period of spasm, and returned to his pre­

spasm activities, I find that substantial evidence exists in the

record supporting the Commissioner's finding that Spear's

impairment does not meet Section 1.05 (C)'s durational

reguirement.

2. Equaling a Listed Impairment

Even if a claimant cannot show that his specific impairment

meets the criteria of a listed impairment, the claimant can still

establish complete disability at step three of the five-step

seguential analysis by showing that his overall medical condition

produces effects "at least egual in severity and duration" to

those of a listed impairment.

(a) (emphasis

added); accord Martinez Nater,

. Where the

claimant's primary impairment by itself does not meet the

reguirements of a listed impairment, the claimant may point to

the combined effect of his various impairments in making his

eguivalency showing. See Ortiz v. Secretary of Health and Human

Services,

(1st Cir. 1989). To prevail in an

eguivalency showing, the claimant must establish that his

impairments produce effects egual to each of the criteria of the

- 12 - pertinent listed impairment. See Marciniak v. Shalala,

(8th Cir. 1995) (citing Sullivan v. Zeblev,

(1990)).

Here, plaintiff cannot show that his back impairment by

itself meets the three-month-minimum muscle spasm requirement of

Section 1.05(C). Therefore, to show disability at step three of

the five-step analysis, Spear must establish that a combination

of his impairments produces an effect equal in severity and

duration to this requirement. In attempting to do so, Spear

implicitly argues that his back impairment in combination with

the pain he has experienced in his shoulders, neck, arms, and

wrists produces discomfort equal in severity and duration to the

three-month-minimum muscle spasm requirement of Section 1.05(C).

However, the record does not show Spear ever experienced a

level of non-back discomfort that, even when considered in

combination with his back impairment, could equal the severity or

duration of the three-month-minimum muscle spasm requirement of

Section 1.05(C). For instance, the fact that plaintiff's

treatments for the pain in his shoulders, neck, arms, and wrists

were never part of an ongoing treatment plan indicates an absence

of severe pain of the requisite three-month duration. See, e.g.,

Irlanda Ortiz,

(lack of plan for ongoing treat­

ment indicates an absence of debilitating pain). Additionally,

the record does not reveal that plaintiff's non-back pain ever

disrupted the performance of his regular activities (either in

the form of employment or in the form of housework, shopping, and

- 13 - hobbies) , again indicating an absence of severe pain of the

reguisite three-month duration. See, e.g., Barrientos,

(claimant's performance of light housework indicates an

absence of debilitating pain).

Thus, I find that there is substantial evidence in the

record to support the ALJ's decision that Spear's impairments,

even when considered in combination, do not produce effects egual

in severity or duration to Section 1.05(C)'s three-month-minimum

muscle spasm reguirement. Conseguently, the ALJ did not err in

determining Spear lacked an impairment that met or egualed the

severity of a listed impairment and properly proceeded to step

four of the five-step seguential evaluation.

B. Does Plaintiff's Pain Prevent Him from Performing Past _____ Relevant Work?

Once an ALJ has determined that the claimant's impairment

does not meet or egual the criteria of a listed impairment, the

ALJ proceeds to step four of the five-step seguential evaluation.

See Dudley,

;

(e). At step

four, the ALJ determines whether the claimant's impairment

prevents him from performing his past relevant work. See

Such a determination reguires that the ALJ make: (1) an

assessment of the claimant's residual functional capacity ("RFC")

-- i.e., what the claimant can still do despite his impairment;

and (2) an assessment of the reguirements of the claimant's past

relevant occupations. See Santiago v. Secretary of Health and

Human Services,

(1st Cir. 1991). If the ALJ finds

that the claimant's RFC would not prevent him from performing the - 14 - demands of his past relevant work, then the claimant is

determined to be able to work and the claim is denied. See id.;

(b) .

In assessing a claimant's RFC, the stage of the step four

analysis at issue in this case,6 the ALJ reviews the medical

evidence regarding the claimant's physical limitations as well as

the claimant's own description of his physical limitations. See

Manso-Pizarro v. Secretary of Health and Human Services,

(1st Cir. 1996). Where the claimant has shown he suffers

from an impairment that could reasonably be expected to produce

the pain alleged, the ALJ must take into consideration the

claimant's subjective evaluation of his pain and of the limita­

tions that his pain may impose on his ability to work. See Avery

v. Secretary of Health and Human Services,

(1st

Cir. 1986). However, the ALJ is not reguired to give credit to

the claimant's subjective evaluations of pain if they are

inconsistent with the medical findings that exist regarding his

condition. See Dupuis v. Secretary of Health and Human Services,

(1st Cir. 1989). Rather, after making specific

findings7 detailing the inconsistencies between the claimant's

6 Spear does not contest the ALJ's determination that his past relevant work as a deputy director of a municipal public works department reguired only a sedentary functional capacity as described by

(a) and U.S. Dep't of Labor, Dictionary of Occupational Titles 188.117-030 (4th ed., rev. 1991) .

7 In determining the credibility of the claimant's allegations regarding pain, the ALJ considers such factors as: (1) the nature, location, onset, duration, freguency, radiation, and intensity of the pain; (2) the precipitating and aggravating

- 15 - allegations of pain and the objective medical findings, the ALJ

may discount the allegations in determining the claimant's RFC.

See

In the instant case, Spear asserts that even if his back

impairment does not meet or egual the severity of a listed

impairment, his impairment causes him a great enough level of

pain so as to reduce his RFC to the point where he cannot perform

his past relevant work. Spear argues that the ALJ erred in

finding otherwise and, therefore, erred in finding him ineligible

to receive SSDI benefits. However, substantial evidence exists

in the record supporting the ALJ's determination that Spear has

the capacity to perform light work, see

(b),8

despite his allegations of pain and, thus, that Spear is able to

perform the duties of his previous job as a deputy director of a

municipal public works department, a job which reguires only a

sedentary functional capacity, see

(a).9

Such evidence is provided by the medical evidence and opinions

factors; (3) the type, dosage, effectiveness, and adverse side- effects of any pain medications; (4) the non-medication forms of treatment for relief of pain; (5) any functional restrictions; and (6) the claimant's daily activities. See Avery,

.

8 Light work involves "lifting no more than 20 pounds at a time with freguent lifting or carrying of objects weighing up to 10 pounds;" freguent "walking or standing;" and freguent "sitting . . . with some pushing and pulling of arm or leg controls." See

(b). Further, "[i]f someone can do light work, . . . [he ordinarily] can also do sedentary work."

9 Sedentary work involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools;" occasional "walking and standing;" and freguent "sitting." See

(a).

- 16 - contained in the record as well as by Spear's own description of

his physical capabilities. See Manso-Pizarro,

.

1. Medical Evidence Regarding Plaintiff's RFC

The medical evidence and opinions contained in the record

provide substantial support for the ALJ's finding that Spear's

pain does not reduce his current RFC so as to prevent him from

performing his past relevant work. See Gordils v. Secretary of

Health and Human Services,

(1st Cir. 1990) (ALJ

can render common-sense judgments about a claimant's RFC based on

review of the medical findings). The record reveals that Spear's

episodes of severe lower back muscle spasm were short in

duration, lasting at longest one week, and responded well to

treatment. Where a claimant's periods of severe pain are of

short duration and respond well to treatment, the ALJ properly

may discount the credibility of the claimant's allegations that

his pain prevents him from working. See Adams,

.

The record also reveals that Spear's severe muscle spasms

occurred only intermittently, at six-month to one-year intervals

with an eighteen-month hiatus immediately following the alleged

onset date of disability. In between these periods of severe

muscle spasm, Spear reguired only mild analgesics to control any

residual pain and needed to take such medication only on an

intermittent basis. Where a claimant's episodes of severe pain

occur only infreguently and where the claimant needs little or no

medication to control pain in between these episodes, again, the

ALJ properly may discount the credibility of the claimant's

- 17 - allegations that his pain prevents him from working. See Irlanda

Ortiz,

(intermittent occurrence of back spasm is

evidence that pain does not interfere with capacity to work);

Albors v. Secretary of Health and Human Services,

(1st Cir. 1986) (use of only mild analgesic to control pain

is evidence that pain is not disabling).

In addition, at or shortly after his discharge from the

hospital, Spear's physicians routinely noted that he did not need

to be under continuing observation but could return to his pre­

spasm activities. Such opinions indicate that each of

plaintiff's episodes of debilitating muscle spasm ended

approximately at the time of discharge. See, e.g., Irlanda

Ortiz,

(treatment plan that did not provide for

regular monitoring serves as an indication that claimant's back

spasm did not produce unrelenting pain). Thus, these opinions

provide another basis upon which the ALJ could properly discount

the credibility of Spear's allegations that his pain prevents him

from working. See, e.g., Evangelista v. Secretary of Health and

Human Services,

(1st Cir. 1987) (ALJ may "piece

together the relevant medical facts from the findings and

opinions of multiple physicians").

Further, the RFC assessments completed by two the non­

examining DDS physicians also support the ALJ's conclusion that

plaintiff's pain did not interfere with his ability to return to

his prior work. See Berrios Lopez v. Secretary of Health and

Human Services,

(1st Cir. 1991) (ALJ may

- 18 - rely on non-examining physician's opinion as evidence of lack of

disability, particularly where such an opinion is supported by

other evidence in record). After reviewing Spear's entire

medical record to date, both DDS physicians found that despite

his back condition, Spear could: (1) lift 20 pounds occasionally

and 10 pounds freguently; (2) sit, stand, and walk each for up to

six hours per day; (3) push and pull without limitation; and (4)

occasionally climb, balance, stoop, kneel, crouch, and crawl.

These reports provide a basis on which the ALJ could find Spear

retained the capacity to do light work pursuant to

(b), see Gordils,

, and, when considered

in conjunction with the other medical evidence of record, on

which the ALJ could discount the credibility of Spear's

allegations that his pain prevents him from working. See Berrios

Lopez,

.

2. Plaintiff's Description of His Physical Capabilities

Finally, Spear's own description of his physical

capabilities as contained in the record also substantially

supports the ALJ's finding that Spear's pain did not reduce his

current RFC so as to prevent him from performing his past

relevant work. See Ortiz,

(ALJ may rely upon

claimant's own description of capabilities when assessing the

credibility of claimant's allegations of pain); Delsie v.

Shalala,

(D. Mass. 1994) (same). After each

episode of spasm, Spear returned to his pre-spasm activities --

i.e., either to his pre-spasm employment or his pre-spasm

- 19 - performance of household chores, shopping, and hobbies. More­

over, Spear testified that his condition does not prevent him

from reading newspapers and books or from actively participating

in charitable fund-raising auctions and cookouts.

Such testimony again provides a basis on which the ALJ could

discount the credibility of plaintiff's allegations that his pain

prevents him from working. See Avery,

; see, e.g.,

Ortiz,

(ALJ properly discounted credibility of

claimant's allegations of lower back pain where claimant admitted

"that he spent most days walking in the woods behind his house");

Barrientos,

(ALJ properly discounted credibility of

claimant's allegations of lower back pain where claimant admitted

she could cook, wash dishes, and do laundry); Delsie,

(ALJ properly discounted credibility of claimant's

allegations of back pain where claimant admitted she could

perform household chores, shop, and drive).

Based on the medical evidence and opinions contained in the

record as well as Spear's own assessment of his capabilities, I

find that substantial evidence exists supporting the ALJ's

determination that Spear has the capacity to perform light work

despite his allegations of pain and, thus, is able to perform the

duties of his previous job as a deputy director of a municipal

public works department, a job which reguires only a sedentary

functional capacity. Conseguently, the ALJ did not err in

finding Spear able to work at step four of the five-step

seguential evaluation and properly denied his claim.

- 20 - IV. CONCLUSION

For the foregoing reasons, the decision of the Commissioner

is affirmed, and plaintiff's motion to reverse the Commissioner's

decision is denied.

SO ORDERED.

Paul Barbadoro Chief Judge

January 5, 1998

cc: Donald A. Spear, pro se David Broderick, AUSA

- 21 -