Lord v. SSA CV-97-505-B 06/14/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Lord

v. C-97-505-B

Kenneth S. Apfel, Commissioner of the Social Security Administration

MEMORANDUM AND ORDER

Richard Lord suffers from a degenerative disc disease

affecting his lower back. Lord first applied for Title II Social

Security Disability Income ("SSDI") benefits on July 18, 1991,

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 Lord's application at the initial

level of review, and Lord did not appeal that denial. Lord again

applied for SSDI benefits on April 26, 1994. The SSA denied this

application at each stage of administrative review, rendering a

final decision denying the application on January 31, 1997.

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

Social Security Act,

(g) (West Supp. 1998), seeking review of the SSA's final decision to deny him SSDI

benefits. He asserts that the SSA Administrative Law Judge

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

(1) the ALJ erroneously found that Lord had the residual

functional capacity to perform the full range of light and

sedentary work; and (2) the ALJ failed to take into account

certain non-exertional limitations on his ability to work and,

therefore, improperly relied upon the Medical-Vocational

Guidelines, 20 C.F.R. P t . 404, Subpt. P, Ap p . 2 (1997), in

finding him not disabled.

For the reasons that follow, I grant Lord's motion in part

and remand the case to the SSA for further review.

I. FACTS1

A. Lord's Health Problems

Lord was born on July 26, 1947 and was 47 years old when the

ALJ rendered his decision finding him not disabled. He has an

eighth-grade education with no additional educational or

vocational training. He previously worked in housing maintenance

both at an apartment complex and, most recently, at a mobile home

park. His duties included caring for buildings and grounds,

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

2 plowing snow, shoveling, ditch-digging, and repairing broken

eguipment. Lord has not worked since August 16, 1990.

On August 16, 1990, Lord twisted his back while descending

backwards off of a ladder. Complaining of stiffness in his lower

back. Lord visited the emergency room at a local hospital on

August 20, 1990. At that time, plaintiff was prescribed an anti­

inflammatory agent and a muscle relaxant, and was referred to an

orthopedist.

Pursuant to that referral. Lord was examined by Dr. Jamie

Smolen on August 27, 1990. Lord complained of pain and stiffness

in his lower back and stated that the pain increased with bending

in all directions. Plaintiff also complained of a limited range

of motion. At that examination, plaintiff performed prone press-

ups and abdominal curls with no problem. His heel and toe

walking, hopping, reflexes, motor examination, and straight leg

raising were all normal.

At a follow-up visit on September 17, 1990, Lord continued

to complain of pain, but also noted that it had decreased and

that his flexibility had increased. Dr. Smolen started plaintiff

3 on back-strengthening exercises. Dr. Smolen subseguently noted

that over the next several weeks. Lord's condition improved with

exercise and that he experienced less pain. Despite the

progress. Dr. Smolen suggested that plaintiff remain out of work

until his condition further improved.

After a December 19, 1990 office visit. Lord continued to

complain of lower-back pain and stated that he had difficulty

sitting, bending, twisting, and turning. Testing showed that the

strength of Lord's back muscles had decreased since the previous

testing. Examination revealed discomfort with bending, knee to

chest flexion, abdominal curl, and prone extension. Dr. Smolen

indicated that plaintiff should not return to work. A subseguent

MRI revealed a large herniated disk at L5-S1 and a bulging disk

at L4-L5. As a result of the MRI, Dr. Smolen referred Lord to

Dr. Jonathon Sobel for a surgical consult.

Lord complained to Dr. Sobel of severe pain in his lower

back, left buttock, and left leg as well as difficulty moving.

Dr. Sobel found "mild" nerve root tension and "slightly" deep

tendon reflexes at the ankle and discussed surgical options with

Lord. A subseguent CT scan confirmed Lord's herniated and

bulging disks. When compared to the previous MRI, the CT scan

4 results showed no significant worsening and even slight

improvement.

On May 10, 1991, Lord visited Dr. Anthony Marino for a

second opinion on surgery. At that examination. Lord noted pain

in the left buttock and occasional numbing of the left foot, but

also noted intermittent improvement. Lord also stated that

physical therapy provided "some relief." Dr. Marino noted that

plaintiff moved about the examination room and stood on one leg,

his heels, and his toes, all without difficulty. Dr. Marino

concluded that surgery might help to relieve Lord's leg pain.

One June 20, 1991, plaintiff reported to Dr. Sobel that he

had been told to "take it easy for the summer" and that he was

"doing guite well after a period of rest." Dr. Sobel was of the

opinion that Lord should be vocationally retrained. In July

1991, plaintiff entered a work hardening program. Though Lord

complained of pain following therapy. Dr. Sobel attributed this

pain to Lord's "sedentary" lifestyle. On September 1991, Lord

expressed his desire to remain in physical therapy and to return

to light duty work. Dr. Sobel noted "[t]hat will be fine."

After an October 10, 1991 examination. Dr. Sobel noted that

residual functional capacity testing indicated that Lord could

perform medium to heavy work. Unable to sguare these results

with Lord's continued complaints of pain. Dr. Sobel recommended

5 more objective testing. On January 13, 1992, Dr. Sobel noted

that Lord's flexibility and leg pain had improved and that he

reguired paraspinal muscular strengthening. Dr. Sobel referred

Lord to Dr. Smolen to pursue this program.

Dr. Smolen reported on January 30, 1992, that Lord was no

longer having leg pain and that his back was "simply achy, stiff

and sore." Lord reported that he was comfortable leading a

sedentary, low activity lifestyle. Although examination revealed

"slightly limited and slightly uncomfortable" back bending,

plaintiff performed toe and heel walking, hopping, and abdominal

curls all without difficulty. Dr. Smolen recommended against

surgery and that Lord should continue in physical therapy.

Lord next visited Dr. Smolen nearly a year later, on January

21, 1993. Lord complained of lower-back pain and discomfort

performing activities around the house as well as those related

to sitting, standing, bending, twisting, and turning.

Examination revealed that Lord was able to slowly and cautiously

bend toward the floor, reaching below the level of his knees.

His back extension was limited and uncomfortable, though

straight-leg raising tests, reflexes, motor strength, and sensory

examination were all normal. Dr. Smolen recommended continued

physical therapy.

Over the next few months. Lord's condition remained

6 unchanged and he continued to complain of lower-back pain and

stiffness. On April 8, 1993, Dr. Smolen stated that he believed

Lord was unable to return to work. Dr. Smolen further noted that

he expected "that realistically he will not return to work until

his [Worker's Compensation] case is settled." Additionally, Dr.

Smolen noted that Lord "will remain partially and permanently

disabled. He will never be able to perform a job that requires

repetitive twisting, turning, lifting, carrying, or bending. . .

He will always be at a light duty work capacity, if he ever

works again." Dr. Smolen then referred Lord to Dr. John Thomas

for more physical therapy.

During a May 4, 1993 physiatric2 consultation with Dr.

Thomas, Lord complained of lower-back pain radiating down into

the buttocks and left thigh with intermittent numbness in his

left toes. Although plaintiff described a "full-blown, classic,

chronic pain lifestyle," he was taking no medications. Physical

2 The specialization in physical or rehabilitation medicine. examination revealed limited trunk rotation, lateral bending, and

extension. Lord was able to balance without difficulty, and his

gait was unremarkable. Dr. Thomas diagnosed two-level disc

disease without radiculopathy. Dr. Thomas discussed with Lord

the possibility of settling his Worker's Compensation case and

using the proceeds to fund membership in a heath center and

engage in an independent exercise program. Subseguent testing

revealed a twenty-two percent impairment of the whole person.

On March 21, 1994, Lord was examined by Dr. Vincent

Giustolisi. Lord complained of pain in his lower back that

radiated into both buttocks and legs. He stated that the pain

increased with activity and varied with the weather. Lord

further stated that he was taking no medication for the pain.

Dr. Giustolisi noted that although Lord appeared uncomfortable

during the examination, he "ambulate[d] into the office without

any difficulty" and dismounted the examination table "without any

undue discomfort." Examination of the back revealed decreased

forward flexion and lateral bending with normal extension and

rotation of the trunk. Lord was able to heel-and-toe walk

without difficulty. Dr. Giustolisi concluded that Lord could

perform light-duty work that did not involve prolonged standing.

8 stooping, squatting, or lifting more than 25 pounds. He rated

Lord as having a thirteen percent impairment of the whole body.

On April 11, 1994, Lord's attorney referred him to Dr.

Andrew Rudins for examination. Lord described an "ache" in his

lower back and a "slight ache" in the left buttock that would

occasionally become a deep pain following physical therapy. Dr.

Rudins noted that Lord experienced shortness of breath on

exertion, which Lord attributed to "heavy cigarette smoking."

Lord indicated that with the exception of weekly trips to the

grocery store and the bank, he generally stayed at home and

watched television. Although he stated that he could not mow the

lawn or shovel snow. Lord stated that he would do light

housekeeping chores such as cleaning-up and washing dishes.

On physical examination. Dr. Rudins noted Lord to be sitting

"comfortably in no obvious distress." His gait, including heel-

and-toe walking, was normal. Forward flexion of the trunk was

limited, while extension was not. Rotation and lateral extension

of the trunk were nearly full with no obvious discomfort. Dr.

Rudins found that Lord's prior whole person impairment rating of

twenty-two percent was reasonable. Additionally, Dr. Rudins

determined that Lord could perform work "at a light duty

9 capacity" and recommended that Lord participate in a home

exercise program, gradually increasing his physical activity

level. Noting that Lord's pain would likely persist for the

foreseeable future. Dr. Rudins recommended that Lord enter a

pain-management program.

In a June 29, 1994 notation. Dr. Rudins noted that Lord was

limited to "sedentary activities only due to pain." He noted

that plaintiff would reguire freguent rest breaks and again

recommended enrollment in a pain-management program.

B. Administrative Review of Lord's Applications

Lord first applied for SSDI benefits on July 19, 1991, and

was denied at the initial level of review. He did not appeal

that determination. Lord again applied for SSDI benefits on

April 26, 1994. This application was denied both at the initial

level of review and upon reconsideration.

Following these denials. Lord brought his case before an

ALJ. The ALJ who reviewed the case found that there was no good

reason to reopen Lord's 1991 application for benefits and limited

his review to Lord's 1994 application. He found that Lord

suffered from a severe impairment in the form of degenerative

disc disease but that the impairment did not meet or egual a

10 listed condition for the purposes of finding him disabled. In

addition, the ALJ found that based on the medical evidence. Lord

had the capacity to perform a full range of light and sedentary

work activities. The ALJ further found that Lord's pain was not

so severe or disabling as to have a significant impact on his

performance of a full range of light work activities. Because

Lord's prior work fell within the medium work activity range, the

ALJ concluded that Lord was unable to perform his past work.

Applying the Medical-Vocational Guidelines, however, the ALJ

found that there were numerous jobs in the national economy that

plaintiff was capable of performing. Therefore, the ALJ found

plaintiff not disabled.

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.

11 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 Servs.,

(1st Cir.

1991);

(g). The Commissioner is responsible for

settling credibility issues, drawing inferences from the record

evidence, and resolving conflicting evidence. 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 Servs., 647

F .2d 218, 222 (1st Cir. 1981)).

If the Commissioner has misapplied the law or has failed to

provide a fair hearing, however, 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 Servs.,

(2d Cir. 1983); see

also Slessinqer v. Secretary of Health and Human Servs.,

(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

12 As a preliminary matter. Lord contends that the ALJ, while

nominally declining to reopen his 1991 application,

constructively reopened it by rendering a decision on the merits

of that application. Conseguently, Lord argues this court has

jurisdiction to review the denial of that application. See,

e.g., Wolfe v. Chater,

(11th Cir. 1996); Morin

v. Secretary of Health and Human Servs.,

(D.N.H. 1992). A review of the ALJ's hearing decision, however,

reveals that he based his denial of the 1994 application

primarily on evidence arising subseguent to the 1991 application.

To the extent that the ALJ discussed evidence relevant to Lord's

1991 application, it was as background information in support of

his ultimate denial of the 1994 application. Thus, I find that

the ALJ did not constructively reopen the 1991 application. See

Frustaglia v. Secretary of Health and Human Servs.,

(1st Cir. 1987) ("[An] ALJ is entitled to consider evidence

from a prior denial for the limited purpose of reviewing the

preliminary facts or cumulative medical history necessary to

determine whether the claimant was disabled at the time of his

second application."); Giancola v. Shalala,

, 641

n .1 (D. Mass. 1996).

In determining whether a claimant is disabled, an ALJ must

13 use a five-step sequential analysis.3 See

(1997). At step four, the ALJ determines whether the claimant's

impairment prevents him from performing his past relevant work.

§ 404.1520(e); Dudley v. Secretary of Health and Human

Servs.,

(1st Cir. 1987). Such a determination

requires 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

requirements of the claimant's past relevant occupations. See

Santiago v. Secretary of Health and Human Servs.,

(1st Cir. 1991). If the ALJ finds that the claimant's RFC would

prevent him from performing the demands of his past relevant

work, the ALJ then proceeds to the fifth step of the sequential

analysis and determines whether there is other work in the

national economy that the claimant can perform.

The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful employment; (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 equals 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.

14 404.1520(f); Bowen v. Yuckert,

(1987); Ortiz v.

Secretary of Health and Human Servs.,

(1st Cir.

1989). Thus, at both the fourth and fifth steps of the

sequential analysis, the ALJ must assess the claimant's RFC: at

step four to determine whether the claimant can do his past

relevant work, and at step five to determine whether the claimant

can do other work, taking into consideration his age, experience,

and education. See Social Security Ruling ("SSR") 96-8p.

In the instant case, the ALJ determined at step four that

plaintiff had an RFC to perform a full array of light and

sedentary work activity. Finding that plaintiff's past relevant

work required medium- to heavy-duty work activity, the ALJ

concluded that plaintiff's impairment precluded him from

performing his past relevant work. At step five, the ALJ applied

the Medical-Vocational Guidelines and concluded that because

there are a substantial number of "light duty" jobs in the

national economy that plaintiff is capable of performing,

plaintiff is not disabled.

Plaintiff challenges the ALJ's decision on two bases.

First, plaintiff contends that the ALJ erred in assessing his RFC

as light duty. He contends that this conclusion: (a) is against

the weight of the medical evidence; and (b) ignores the effects

of the pain that his impairment causes him. Second, plaintiff

15 contends that in using the Medical-Vocational Guidelines, the ALJ

failed to take into account his non-exertional limitations. I

address each contention in turn.

A. The ALJ's Assessment of Plaintiff's RFC

In assessing a claimant's RFC, the ALJ reviews themedical

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 Servs.,

(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

limitations that his pain may impose on his ability to work. See

Avery v. Secretary of Health and Human Servs.,

(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 Servs.,

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

findings4 detailing the inconsistencies between the claimant's

4 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.

16 allegations of pain and the objective medical findings, the ALJ

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

See id.

1. Medical Evidence Regarding Plaintiff's RFC

The medical evidence and opinions contained in the record

provide substantial support for the ALJ's finding the Lord has

the RFC to perform a full range of light and sedentary work

activities.5 See Gordils v. Secretary of Health and Human

Servs.,

(1st Cir. 1990) (ALJ can render common-

sense judgments about a claimant's RFC based on review of medical

findings). First, the physician who reviewed Lord's file on

behalf of the state agency found Lord to have an RFC to perform

light work. See Berrios Lopez v. Secretary of Health and Human

Servs.,

(1st Cir. 1991) (ALJ may rely on non­

and intensity of the pain; (2) the precipitating and aggravating 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,

.

5 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."

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).

17 examining physician's opinion as evidence of lack of disability,

particularly where such an opinion is supported by other evidence

in record). Second, several examining physicians found Lord

capable of performing light-duty work. For instance, in June

1991, Dr. Sobel was of the opinion that Lord should be

vocationally retrained, and, in October 1991, he noted that it

would be "fine" for Lord to return to light-duty work despite the

limitations imposed by his impairment. RFC testing conducted by

Dr. Sobel in October 1991 indicated that Lord even could perform

medium to heavy work, although these results were belied by

Lord's complaints of pain. In January 1992, Dr. Sobel noted that

Lord's flexibility had improved and recommended a back-

strengthening regime. Additionally, Dr. Rudins, a physician

recommended by Lords's attorney, found after an April 1994

examination that plaintiff could perform work "at a light duty

capacity" and recommended that Lord exercise in an effort to

gradually increase his physical activity level.

Plaintiff contends, however, that the ALJ should have

accorded controlling weight to the opinion of Dr. Smolen, his

primary treating physician, who concluded in April 1993 that

plaintiff was unable to work and would be "partially and

permanently disabled." See

(d)(2) (1997).

Although the Social Security regulations do sometimes reguire the

18 ALJ to give controlling weight to a treating physician's opinion

regarding a claimant's disability, this mandate is not absolute.

Rather, the ALJ need only do so where objective medical evidence

supports the treating physician's opinion and where the opinion

is not inconsistent with other evidence in the record. See id.;

SSR 96-2p. Additionally, "a medical source opinion that an

individual is 'disabled' or 'unable to work' . . . is an opinion

that is reserved for the Commissioner. . . . [T]he adjudicator

will not give any special significance to [such an] opinion

because of its source." SSR 96-8p n.8; see also Arrovo v.

Secretary of Health and Human Servs.,

(1st Cir.

1991) (ALJ "not reguired to accept the conclusions of claimant's

treating physicians on the ultimate issue of disability").

The ALJ discounted Dr. Smolen's statement for several valid

reasons. First, he found the statement wholly inconsistent with

the opinions of Drs. Sobel, Rudins, and Giustolisi that Lord was

capable of performing light-duty work. Second, the ALJ found the

statements inconsistent with Dr. Smolen's prior assessments of

Lord's condition as well as with his subseguent determination

that the condition could improve to the point at which he could

perform light-duty work activities. Finally, the ALJ noted that

Dr. Smolen's statement may have been tainted by the litigation

posture of Lord's Workers' Compensation case. Dr. Smolen stated

19 that it was his opinion that Lord would not return to work until

the case settled. Thus, I find that the ALJ was justified in

discounting Dr. Smolen's opinion that plaintiff was disabled and

unable to work as inconsistent with not only other medical source

opinions but also with Dr. Smolen's own prior and subsequent

assessments. See

(d)(2); Arrovo,

9; Tremblay v. Secretary of Health and Human Servs., 67

(1st Cir. 1982) .

For similar reasons, the ALJ discounted Dr. Rudin's June

1994 statement that Lord was limited to sedentary activities.

The ALJ reasoned that the two-sentence, unsubstantiated report

directly contradicted Dr. Rudin's own April 1994 opinion that

upon examination plaintiff was capable of performing light-duty

work activities. The ALJ noted that there was no evidence in the

record to indicate that Lord's condition had changed since the

April 1994 assessment, nor was the June 1994 statement supported

by reasoning or evidence. Thus, the ALJ permissibly discounted

Dr. Rudin's June 1994 statement to the extent that it was

inconsistent with the remainder of the medical record.6

See Arrovo,

;

(d)(2).

6 The ALJ also discounted Dr. Giustolisi's report on the basis of Dr. Giustolisi's lack of treatment history with Lord. Dr. Giustolisi's report was equivocal, finding plaintiff capable of light-duty work, though with certain restrictions.

20 2. Plaintiff's Complaints of Pain.

Lord contends that the pain he suffers as a result of his

back condition is so severe that it renders him unable to perform

light-duty and sedentary work activities. He argues that the ALJ

improperly discredited the effect of pain on his RFC and,

therefore, issued an erroneous decision. The Commissioner

contends that the medical record amply justifies the ALJ's

decision that Lord is capable of performing light and sedentary

work activities despite the pain his impairment causes. I agree.

In evaluating Lord's complaints of pain, the ALJ followed

the procedure set forth in

(1997). Pursuant

to that procedure, the ALJ first found that Lord suffers from a

medically determinable impairment -- degenerative disc disease --

that could reasonably be expected to cause pain. See

(b). The ALJ then evaluated the extent to which Lord's

pain affects his capacity to work by inguiring, with reference to

the medical record, into the intensity and persistence of that

pain. See

He concluded that Lord's back and leg pain were

not so severe as to preclude his performance of light and

sedentary work.

The evidence in the medical record amply supports the ALJ's

conclusion that Lord's pain does not render him disabled. MRI

testing and other neurological examination revealed the absence

21 of nerve-root damage contributing to the pain. The record

further reflects that Lord's leg pain had completely subsided by

January 1993 and was not the subject of ongoing treatment.

Despite his continued complaints of pain, physical examination

consistently revealed that Lord walked with a normal gait, was

able to heel-and-toe walk, hop, balance, and perform abdominal

crunches and leg raises without undue discomfort. Additionally,

several examining physicians observed that Lord was generally

able to walk comfortably into examining rooms, mount and dismount

examining tables without undue discomfort, and sit through the

examination without discomfort.

Other evidence from the administrative record supports the

ALJ's decision to discredit Lord's complaints of pain. The ALJ

found Lord's lack of ongoing treatment or medication inconsistent

with complaints of disabling pain. See Irlanda Ortiz,

69 (treatment plan that did not provide for regular

monitoring serves as an indication that claimant's back spasm did

not cause unrelenting pain); Albors v. Secretary of Health and

Human Servs.,

(1st Cir. 1986) (use of only

aspirin to control pain is evidence that pain is not disabling);

Boisvert v. Callahan,

(D. Mass. 1998)

(similar); SSR 96-7p. Although Lord stated that he did not

continue treatment because Dr. Smolen retired and that he did not

22 take medication because he could not afford it and does not like

it, these reasons do not explain why he did not consult another

physician or why medication was seldom even prescribed for his

condition.

Additionally, the conservative treatment regime prescribed

Lord's treating physicians supports the ALJ's decision to

discount his allegations of disabling pin. Lord's physicians

typically chose to treat his impairment conservatively,

recommending continued exercise, physical therapy, and enrollment

in a pain-management program, rather than cessation of all

activity. See Boisvert,

(ALJ properly

relied on conservative treatment regime in discounting claimant's

allegations of pain); SSR 96-7p (A claimant's allegations of pain

"may be less credible if the level or freguency of treatment is

inconsistent with the level of complaints."). Indeed, at one

point Dr. Smolen attributed Lord's pain to his sedentary

lifestyle rather than to his impairment. Another examining

physician similarly remarked that the longer Lord remained

inactive, the more difficult it would be for him to become

functional. Finally, significant gaps of time in between Lord's

treatments -- his medical record reveals no treatment from

January 1992 to January 1993 and from August 1993 to March 1994 -

- are inconsistent with complaints of disabling pain. See

23 Irlanda Ortiz,

(significant gaps in treatment

history not consistent with allegations of disabling pain).

Lord's own statements as to his own capabilities and

activities provide an additional basis on which the ALJ could

discount the credibility of Lord's allegations that his pain

prevents him from working. The ALJ noted that, albeit with some

attendant pain. Lord was able to drive a car, grocery shop, and

perform various household chores, such as dishwashing, washing

clothes, and cooking.7 The ability to engage in such activities

is inconsistent with allegations of disabling pain. See

Barrientos v. Secretary of Health and Human Servs.,

(1st Cir. 1987) (ALJ properly discounted credibility of

claimant's allegations of lower-back pain where claimant admitted

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

(D. Mass. 1994) (ALJ properly discounted

credibility of claimant's allegations of back pain where claimant

admitted she could perform household chores, shop, and drive).

The RFC assessment performed by the SSA physician at the

state level further supports the ALJ's decision to discredit

plaintiff's complaints of pain. See Berrios Lopez,

Although the ALJ did not specifically guestion Lord about his daily activities at the hearing, the ALJ had ample evidence before him when making his decision, including a four-page daily- activity form completed by Lord in May 1994. Moreover, the ALJ specifically drew from this evidence in support of his decision.

24 431-32;

(f)(2) (requiring ALJ to consider

findings of fact made by state-agency physicians); SSR 96-7p.

The SSA physician found that the severity of Lord's complaints of

pain were "not supported by objective medical evidence" and noted

that Lord had consistently refused surgery and seemed non-

compliant with respect to recommended exercise programs, diet,

and the cessation of smoking. Consequently, the SSA physician

concluded that despite his complaints of pain. Lord retained the

RFC to perform light-duty work activity. This report supports

the ALJ's conclusion that Lord retained the capacity to do light

work pursuant to

(b), see Gordils,

, and, when considered in conjunction with the other

medical evidence of record, further supports the ALJ's decision

to discount the credibility of Lord's allegations that his pain

prevents him from working. See Berrios Lopez,

-

32 .

Based on the medical evidence and opinions contained in the

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

find that substantial evidence exists supporting the ALJ's

determination that Lord has the capacity to perform light work

despite his allegations of pain.

B. The ALJ's Use of the Medical-Vocational Guidelines

At step five of the sequential analysis, the burden shifts

25 to the Commissioner to show that there are a significant number

of jobs in the national economy that the claimant can perform.

Bowen,

; Goodermote v. Secretary of Health and

Human Servs.,

(1st Cir. 1982). "Where a

claimant's impairments involve only limitations in meeting the

strength reguirements of work," the Medical-Vocational

Guidelines, (the "Grid") , provide "a ’ 'streamlined' method by

which the [Commissioner] can carry this burden." Heggartv v.

Sullivan,

(1st Cir. 1991) (guoting Ortiz,

). "Where a claimant has non-exertional impairments

in addition to exertional limits," however, the Grid may not

accurately reflect the availability of jobs the claimant can

perform. Id. at 996. Rather, if a non-exertional limitation

"significantly affects [the] claimant's ability to perform

substantially the full range of jobs" at a given strength level,

the Commissioner may not rely on the Grid to carry his burden and

the testimony of a vocational expert is usually reguired. Id.

(guoting Lugo v. Secretary of Health and Human Servs.,

(1st Cir. 1986) ) .

In the instant case, the ALJ found that Lord did not suffer

from any non-exertional impairments. Accordingly, the ALJ

applied the Grid and found that Lord is not disabled. Lord

alleges that the medical record contains substantial evidence of

26 a limited ability to bend at the waist, which constitutes a non-

exertional impairment. See

.1569a(c) (1) (vi)

1997); SSR 83-14. In failing to consider the impact that this

limitation has on his ability to perform light-duty work. Lord

contends, the ALJ improperly relied upon the Grid in finding that

there are a significant number of jobs that he is capable of

performing.

The medical record contains no evidence to support the ALJ's

conclusory statement that Lord suffers from no non-exertional

impairments. Rather, the medical record is replete with

references to Lord's limited ability to bend at the waist.

Nearly every physician who examined Lord noted objective findings

that Lord suffered from a limited ability to bend or stoop.

Depending on its severity, this limitation could well

circumscribe the number of jobs within the light-work category

that Lord might be able to perform. See Ortiz,

("[A]ny limitation [on the ability to bend from the waist] must

be considered very carefully to determine its impact on the size

of the occupational base of a person who is otherwise found

functionally capable of light work.") (guoting SSR 85-15).

Conseguently, the Commissioner's decision must be vacated

and remanded. See Heggartv,

(remand

appropriate where ALJ failed to assess the significance of non-

27 exertional limitations); Gagnon v. Secretary of Health and Human

Servs.,

(1st Cir. 1981). On remand, the

Commissioner should determine whether Lord's limited ability to

bend at the waist is significant enough to limit his access to

the full range of jobs reguiring light-duty strength

capabilities. See Gagnon,

. If he finds that it

is not, then he may rely on the Grid to determine whether Lord is

disabled. See Heggartv,

; Ortiz, 990 F.2d at 524.

Conversely, if the Commissioner finds that Lord's limited ability

to bend at the waist does significantly impact his ability to

perform light work, then reliance on the Grid is improper and

consultation with a vocational expert may be reguired. Id.

IV. CONCLUSION

For the foregoing reasons. Lord's motion for an order

reversing the Commissioner's decision (document no. 5) is granted

in part, and the Commissioner's motion for an order affirming his

decision (document no. 7) is denied. The case is remanded to the

Commissioner for further consideration consistent with this

order.

SO ORDERED.

Paul Barbadoro Chief Judge

28 July 14, 1998 cc: Jonathan Baird, Esq. David Broderick, Esq.

29