Zownir v . SSA CV-99-216-B 03/29/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

OLGA ZOWNIR

v. Civil N o . 99-216-B Opinion NO.

KENNETH APFEL, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Olga Zownir (“Zownir”) applied for Title II Social Security

Disability Income (“SSDI”) benefits on June 8 , 1996, alleging

disability since October 1 , 1987. After the Social Security

Administration (“SSA”) denied Zownir’s application, she requested

a hearing before an Administrative Law Judge (“ALJ”). ALJ

Frederick Harap held a hearing on Zownir’s claim on March 2 5 ,

1997. On April 2 5 , 1997, the ALJ found that Zownir was “not

disabled” at any time prior to the expiration of her insured

status on December 3 1 , 1992.1 On March 1 9 , 1999, the Appeals

1 Although documents in the record indicate that Zownir’s last date of insured status was December 3 1 , 1988, the decision identified December 3 1 , 1992 as her last date of insured status. Council denied Zownir’s request for review, rendering the ALJ’s

decision the final decision of the Commissioner of the SSA.

Zownir brings this action pursuant to Section 205(g) of the

Social Security Act,

(g) (1994) (the “Act”),

seeking review of the Commissioner’s decision denying her claim

for benefits.

For the reasons set forth below, I conclude that the ALJ’s

decision to deny Zownir benefits was supported by substantial

evidence. Therefore, I affirm the Commissioner’s decision and

deny Zownir’s motion.

I. FACTS2

Zownir was born in the Ukraine on June 2 2 , 1942 and was 45

years old when she alleges that she became disabled. She has a

Ph.D. in Biochemistry and speaks English. Zownir’s past relevant

employment includes work as a biochemical research assistant, a

research associate, and a post-doctoral research associate at

2 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts submitted by the parties.

-2- several hospitals and universities in the United States from 1979

until she resigned her position on June 1 1 , 1987 due to health

problems.

Zownir claimed that her mental and physical impairments

relate back to a dental procedure she underwent in 1984. In

December of that year, Zownir was treated for a problem with her

#4 tooth. This treatment involved placing hydroxyapatite3

crystals into the bone tissue. During this process, she

sustained a vertical fracture which led to a recurrent infection.

See R. at 163. 4 Zownir subsequently experienced pain and

depression that she attributed to the hydroxyapatite. See

. In January 1985, Zownir’s #4 tooth was extracted due

to the recurrent infection. See id. at 309, 323. Progress notes

written on January 2 9 , 1985, indicated that Zownir stated she

3 Hydroxyapatite is “a natural mineral structure that the crystal lattice of bones and teeth closely resembles.” Stedman’s Medical Dictionary 735 (25th ed. 1990). 4 “R.” refers to the official record submitted to the Court by the SSA in connection with this case.

-3- felt better. See id. at 321. On February 1 4 , 1985, Zownir’s

treating physician, D r . Stanley Satterfield, noted that she

believed that she was much better. On March 4 , 1985, he noted

that the “right maxilla is healing well.” Id.

Zownir complained of sinus pain and a nasal discharge of the

hydroxyapatite material used in the 1984 procedure. Pathological

studies, however, were negative. Sinus x-rays conducted in May

1986 showed minimal hypoplastic maxillary antrum,5 otherwise

normal sinuses, and no evidence of sinusitis.

In May 1986, Zownir sought dental care in Hamilton, Ontario,

where an oral examination yielded unremarkable results.

Concerned about the nasal discharge of hydroxyapatite, Zownir

opted to have the material surgically removed. See id. at 177.

While in Hamilton, she underwent a successful excision of the

5 Hypoplastic pertains to hypoplasia which, when pertaining to enamel, means “a developmental disturbance of teeth characterized by deficient or defective enamel matrix formation.” Stedman’s Medical Dictionary 753 (25th ed. 1990). Maxillary means “relating to the maxilla, or upper jaw.” Id. at 927. Antrum is “any nearly closed cavity, particularly one with bony walls.” Id. at 101.

-4- hydroxyapatite material. Dr. Barrie Harnett, Zownir’s treating

physician, later wrote that it was impossible to remove all of

the hydroxyapatite and that he could not offer an opinion

regarding her alleged disability.

On May 8 , 1986, Zownir’s treating physician in Colorado

Springs, D r . Steinhour, urged Zownir to seek psychiatric

counseling due to her somatization6 with paranoid features.

Zownir refused to seek such counseling. See id. at 167. On

October 7 , 1986, another physician, Dr. Bruce Jafek, wrote that

Zownir’s nose appeared entirely normal and that there was no

evidence of present or prior sinus disease. Clinical notes

written the next day indicate that Zownir was complaining of pain

in her teeth and of a metallic taste in her mouth. The notes

state that “[Zownir] ha[d] traveled to Denver and Canada seeking

relief from these problems.” Id. at 168. An oral surgeon in

Denver found “nothing significantly wrong” and referred her to an

6 Somatization means the “[c]onversion of anxiety into physical symptoms.” Stedman’s Medical Dictionary 1434 (25th ed. 1990).

-5- ear, nose, and throat specialist who reached the same conclusion.

Id.

Between October 1986 and November 1987, Zownir was treated

by Dr. H. A . Huggins in Colorado Springs. In January 1987, five

months prior to Zownir’s alleged onset date, Dr. Clayton Mammel

stated that the conservative regimen followed by D r . Huggins was

an appropriate treatment of Zownir’s complaints. On May 2 0 ,

1987, Zownir’s treating physician in Colorado Springs, Dr. John

J. Bell, noted that “depression drove [Zownir’s] periodontal

pain.” Id. at 173. On June 1 2 , 1987, Dr. Bell noted that Zownir

never tried the medication he advised her to take for periodontal

pain because she “does not like to take medicines.” Id. at 173-

74. In August 1987, D r . Huggins opined that Zownir was

“biochemically compromised” and, more specifically, that “[h]eavy

metals such as she has been exposed to alter excreting

mechanisms, cell membrane chemistry, intracellular reactions, and

most important, alter a person’s threshold response to other

exposures.” However, Dr. Huggins concluded that Zownir was not

-6- mechanically injured and that she was able to work in a different

area in the same vocational field. See id. at 324.

On October 3 1 , 1987, Dr. Onstad reported that he and another

physician (Dr. Salvo) both felt that Zownir’s physical condition

was not consistent with her subjective complaints. Both doctors

suggested other medical treatment, particularly psychiatric

assistance. Zownir declined to take the physicians’ advice.

Instead, she took the advice of Drs. Griffin and Huggins and had

seven teeth removed. Immediately after the surgery, Zownir had a

psychotic reaction during which she became paranoid and suicidal.

She was transported to Cedar Springs Hospital in Colorado for

evaluation and treatment; in-patient hospitalization was

-7- recommended but Zownir did not follow this recommendation. See

id. at 215, 232.

On February 2 7 , 1988, Zownir was examined by D r . Donald

Vereen at Massachusetts General Hospital. The doctor’s notes

indicate that Zownir had “delusions about needing to have her

teeth removed to cure her.” Id. at 225. She was assessed as

suffering from paranoid psychosis, but records indicate that it

was “unclear if this really related to some heavy metal

contamination or is related to some affective process.” Id.

Zownir was then referred to Seacoast Mental Health Center, in

Portsmouth, New Hampshire. Prior to March 1988, Zownir was

evaluated by three psychiatrists but she “did not follow through

with treatment with any of these psychiatrists.” Id. at 232.

On March 1 1 , 1988, Dr. Edward Drummond, a psychiatrist from

the Seacoast Mental Health Center, reported that Zownir suffered

from discomfort and major depression and that hydroxyapatite was

not the cause of her symptoms. A mental exam of Zownir showed

that she was alert, pleasant and superficially cooperative; there

-8- was no evidence of aphasia; her mood was “depressed”; her thought

process was unremarkable; her thought content showed mild

-9- paranoid ideation; and her intelligence was above average. See

id. at 228. Later that month, Zownir began intermittent

outpatient care at Seacoast Mental Health Center with D r .

Drummond as her treating psychiatrist.

In April 1988, a physician at Portsmouth Regional Hospital

assessed Zownir’s complaints of chest wall syndrome and chronic

maxillary gingival discomfort. Zownir’s EKG and chest x-rays

were normal and she was prescribed Ibuprofen as needed.

In a telephone conversation with Dr. Drummond on April 4 ,

1988, D r . Huggins stated that “the toxic reaction [to

hydroxyapatite by Zownir] is similar to ones that he sees in

patients with dental fillings such as mercury.” Dr. Drummond

responded by stating that Zownir exhibited a number of

psychiatric symptoms prior to the implantation of the

hydroxyapatite that were characteristic of recent immigrants.

See id. at 236.

On June 2 4 , 1988, Dr. Drummond noted that Zownir was “doing

well at this time and has no specific complaints.” Id. at 241.

-10- Dr. Drummond noted that from March 1988 to November 1989, after

adjustment of Zownir’s antidepressant medication, her symptoms

had improved, she had more energy, her EKG was normal, and her

sleeping and appetite had returned to normal. See id. at 229-30;

235-46.

On January 6, 1989, D r . Drummond noted that “[a]s the

patient had not been having any psychotic symptoms for the past

three months, I will discontinue the small dose of Trilafon that

she was on.” Id. at 246. The doctor added that “[t]he patient

stated that she was doing well at this point and that she had no

complaints.” Id. By May 2 5 , 1989, Dr. Drummond’s notes indicate

that Zownir’s thoughts were totally normal: “[t]he patient stated

that she has become more involved in her daily life and has taken

trips to the White Mountains and is more involved in doing

things.” Id. at 250. On September 1 9 , 1991, D r . Drummond stated

that Zownir had “[r]ecovered,” and that she was not disabled.

Id. at 253-54.

On December 9, 1991, Zownir visited Dr. Jonathan Holzaepfel

-11- in Portsmouth, New Hampshire for treatment of a right wrist

fracture that she sustained after falling on ice at a

supermarket. The fracture had been reduced with a short arm

cast, her neurovascular exam was intact, there was minimal tissue

swelling, and no medication was indicated. By January 1992, Dr.

Holzaepfel reported that Zownir was comfortable; she continued to

perform activities as tolerated and her cast was removed at the

end of the month with a recommendation for occupational therapy.

In an SSA disability report and medical history form, Zownir

indicated that her daily activities included: house cleaning,

cooking, shopping, doing laundry, reading, writing, walking,

listening to music, gardening, attending the theatre, attending

concerts (opera), visiting museums, visiting art galleries,

restoring furniture, going on picnics, watching television,

skiing, visiting family and friends, and driving. See id. at 9 3 ,

102, 103, 1 0 7 , 329.

I I . STANDARD OF REVIEW

-12- After a final determination by the Commissioner denying a

claimant’s application for benefits, and upon timely request by

the claimant, I am authorized t o : (1) review the pleadings

submitted by the parties and the transcript of the administrative

record; and (2) enter a judgment affirming, modifying, or

reversing the ALJ’s decision. See

(g). My review

is limited in scope, however, as the ALJ’s factual findings are

conclusive if they are supported by substantial evidence. See

Irlanda Ortiz v . Secretary of Health and Human Servs.,

(1st Cir. 1991) (per curiam);

(g). The

ALJ is responsible for settling credibility issues, drawing

inferences from the record evidence, and resolving conflicting

evidence. See Irlanda Ortiz,

. Therefore, I must

“‘uphold the [ALJ’s] findings . . . if a reasonable mind,

reviewing the evidence in the record as a whole, could accept it

as adequate to support [the ALJ’s] conclusion.’”

(quoting

Rodriquez v . Secretary of Health and Human Servs.,

(1st Cir. 1981)). If the ALJ has misapplied the law or has

-13- failed to provide a fair hearing, however, deference to the ALJ’s

decision is not appropriate and remand for further development of

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

and Human Servs.,

(2d Cir. 1983); Slessinger v .

Secretary of Health and Human Servs.,

(1st Cir.

1987) (per curiam) (“The [ALJ’s] conclusions of law are

reviewable by this court.”). I apply these standards in

reviewing the issues that Zownir raises on appeal.

III. DISCUSSION

The Social Security Act defines “disability” for the

purposes of Title II as the “inability to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.”

(d)(1)(A) (1994). In evaluating whether a claimant is

disabled due to a physical or mental impairment, an ALJ’s

-14- analysis is governed by a five-step sequential evaluation

process.7 See

(1999). The Commissioner has

provided an additional evaluation process that an ALJ must apply

when, as in the present case, a claimant alleges a mental

impairment. See

.1520a (1999). To determine the

severity of a mental impairment, an ALJ must rate the degree of

functional loss in four areas that the Social Security Act has

identified as essential to work: (1) activities of daily living;

(2) social functioning; (3) concentration, persistence, or pace;

and (4) deterioration or decompensation in work or work-like

settings. See

.1520a(b)(3); Figueroa-Rodriguez v .

Secretary of Health and Human Servs.,

(1st Cir.

1988) (per curiam). Absent significant evidence to the contrary,

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

(1999).

-15- a claimant’s mental impairment can be presumed to be non-severe

if the degree of limitation caused by the impairment is “none” or

“slight” in the first and second of these essential areas,

“never” or “seldom” in the third area, and “never” in the fourth

area. See

.1520a(c)(1); Figueroa-Rodriguez,

.

In the present case, the ALJ denied Zownir’s claim at step

four of the five-step sequential process. “At step 4 a claimant

will be found not disabled when he or she retains the [residual

functional capacity (“RFC”)] to perform ‘the actual functional

demands and job duties of a particular past relevant job.’”

Santiago v . Secretary of Health and Human Servs.,

, 5

(1st Cir. 1991) (per curiam) (quoting Social Security Ruling

(“SSR”) 82-61,

, at *2 (1982)). In making a step

four determination, the ALJ must ascertain “the physical and

mental demands of claimant’s prior relevant work and then decide

whether claimant could meet them given her RFC.” Berthiaume v .

Apfel, Civ. N o . 98-419-M, slip op. at 4 (D.N.H. Sept. 3 0 , 1999);

-16- see also Santiago,

.

The Act places the burden on the claimant to establish the

existence of a disabling impairment. See Bowen v . Yuckert,

(1987); Santiago,

. The claimant

must adequately explain what her past work responsibilities

entailed and why she was unable to perform those duties during

the relevant time period. See id.; Pitchard v . Schweiker,

(1st Cir. 1982). To satisfy her burden, the

plaintiff must prove that her impairment prevents her from

performing her former type of work. See Gray v . Heckler,

(1st Cir. 1985) (citing Goodermote v . Secretary of

Health and Human Servs.,

, 7 (1st Cir. 1982)).

The ALJ determined that Zownir failed to meet her burden to

demonstrate that she was unable to return to her past work. He

also found no convincing objective medical evidence to

substantiate her alleged inability to perform her past relevant

work. See R. at 20-21. Accordingly, the ALJ concluded at step

four that Zownir was not disabled within the meaning of the

-17- Social Security Act.

-18- On appeal, Zownir claims that the Commissioner’s decision

should be reversed because: (1) the ALJ failed to fulfill his

heightened duty to develop the record and obtain relevant facts

for an unrepresented claimant; (2) the ALJ improperly discounted

Zownir’s mental impairment as non-severe; (3) the ALJ’s decision

that Zownir had the RFC to perform her past relevant work was not

based on substantial evidence; and (4) the ALJ did not properly

evaluate Zownir’s subjective complaints of pain.

A. ALJ Upheld His Heightened Duty To Assist Zownir

Because social security proceedings are not strictly

adversarial, an ALJ has a responsibility to adequately develop

the record. See Heggarty v . Sullivan,

(1st

Cir. 1991) (per curiam); Evangelista v . Secretary of Health and

Human Servs.,

(1st Cir. 1987). “Under-

standably, this responsibility increases when the applicant is

bereft of counsel.” Evangelista,

; see also

Currier v . Secretary of Health, Education and Welfare,

(1st Cir. 1980). The ALJ also has a heightened

-19- responsibility to assist a claimant in gathering evidence

relating to the demands of her past relevant work. See Heggarty,

-20-

; Carrillo Marin v . Secretary of Health and Human

Servs.,

4 , 17 (1st Cir. 1985) (per curiam). While an

ALJ must develop a full and fair record of the claim, he or she

does not act as counsel for a pro se claimant. See Thompson v .

Secretary of Health and Human Servs.,

, 586 (7th Cir.

1991); Smith v . Secretary of Health and Human Servs.,

(11th Cir. 1982) . Therefore, when an ALJ satisfies his

heightened responsibility by making particular attempts to assist

the claimant in obtaining counsel and developing the record, his

decision must be upheld. Evangelista,

-43.

In this case, the record demonstrates that the ALJ elicited

testimony from Zownir describing the requirements of her past

work. See R. at 34-35. The ALJ also offered to postpone the

hearing so that Zownir could obtain representation and he allowed

her to review the evidence and update the record as needed. See

R. at 28,30. Finally, the ALJ clearly explained to Zownir that

if anything was missing from the record, he would help her to

-21- obtain the missing evidence.8 In this case, Zownir has failed to

establish the sort of prejudice or unfairness attributable to

self-representation as would warrant remand. See Evangelista,

. Accordingly, I conclude that the ALJ upheld his

duty to adequately develop the record.

B. The ALJ’s Determination of Zownir’s Mental Impairment as Non-Severe

At step two of the sequential evaluation process, the ALJ

must determine if the individual has an impairment and if that

impairment is severe. See

(c). An

impairment is considered “severe” if it can be expected to result

in death or has lasted for at least twelve consecutive months and

significantly limits an individual’s physical or mental ability

to perform basic work activities. See

Basic work activities

8 At the conclusion of the hearing, the ALJ stated that “since you opted not to have a representative, you review your case once again, and if anything is missing, we will try to develop i t . We will try to help you develop your case. If . . . you don’t understand the word ‘develop’, I mean we will send away for updated or for old medical evidence in order to get a complete picture.” Zownir responded by stating “[e]verything was updated. I don’t believe I can gather more evidence.” R. at 4 7 .

-22- include physical functions such as walking, standing, sitting,

lifting, pushing, pulling, reaching, carrying, and handling. See

(b) (1999). Nonexertional functions, such as

the ability to hear, see, speak, understand, remember, carry out

simple instructions, use judgment, respond appropriately in work-

like conditions, and deal with changes in a routine work setting

are also considered basic work activities. See

A finding

that an impairment is non-severe is justified when the impairment

has only a minimal impact upon the claimant’s ability to perform

basic work activities. See McDonald v . Secretary of Health and

Human Servs.,

(1st Cir. 1986);

(1999). If an ALJ finds at step 2 that a claimant’s

impairment or combination of impairments is non-severe, the

claimant will not be considered disabled. See

(a); see also Goodermote,

.

In the present case, the ALJ found that Zownir suffered from

“a severe impairment of chronic dental and facial pain and

discomfort of uncertain etiology.” Although he also concluded

-23- that Zownir suffered from a mental impairment of depression

accompanied by paranoid delusional thoughts, he did not consider

her mental impairment to be severe because after Zownir sought

treatment and counseling for her mental impairment in March 1988,

she “improved quite remarkably within two months as she had

regained normal ability to sleep and eat and had no problems with

low energy level.” R. at 1 9 . Accordingly, the ALJ concluded

-24- that Zownir’s impairment did not maintain the requisite level of

severity for twelve consecutive months.

Zownir nevertheless

argues that she met the durational requirement of the Act because

she was in treatment with her psychiatrist, Dr. Edward Drummond,

for more than twelve consecutive months. Zownir therefore

suggests that the durational requirement applies only to her

impairment rather than her inability to work as the result of the

impairment.

The term “durational impairment” has been interpreted in

several circuit courts of appeals. See Alexander v . Richardson,

(10th Cir. 1971); Titus v . Sullivan,

(8th Cir. 1993). In Alexander, the claimant argued that if

his impairment extended for a period of one year or more, he was

entitled to benefits even if his inability to engage in

substantial gainful activity lasted only for a lesser period.

Alexander,

. The Tenth Circuit held that the

purpose of the statute and its legislative history support the

Secretary’s interpretation that it is the disability which must

-25- be continuous for 12 months, rather than the impairment.

In

Titus, the court reasoned that:

-26- Disability is established by showing a medically determinable mental or physical impairment which prevents engaging in any gainful activity. Inability to engage in any gainful activity and the impairment which causes it cannot be separated. The two components of disability must exist at the same time. The statute, which defines disability, not impairment, speaks only of an impairment which can be expected to result in death or to last for a continuous period of at least twelve months and one which will disable a person seeking disability benefits for a like period.

Titus,

. The court further “observed that although

a person who has lost one hand has an impairment for life, he is

not entitled to disability benefits if he is able to return to

gainful activity within one year of his injury.”

I agree that in order for a claimant to meet the Act’s

durational requirement, she must demonstrate that she was unable

to engage in substantial gainful activity due to her impairment

for twelve consecutive months. I find no error in the ALJ’s

decision that Zownir’s mental impairment was not severe because

it did not meet the 12-month durational requirement.

C. The ALJ’s Determination of Zownir’s RFC and Ability to Perform Past Relevant Work

Zownir claims that the ALJ did not properly determine her

-27- ability to perform her past relevant work pursuant to SSR 82-62.9

This ruling sets forth the procedures for determining a

disability claimant’s capacity to perform past relevant work.

SSR 82-62 states that “[t]he claimant is the primary source for

vocational documentation, and statements by the claimant

regarding past work are generally sufficient for determining the

skill level; exertional demands and nonexertional demands of such

work.” SSR 82-62,

, at *3 (1982). “[N]ot only must

the claimant lay the foundation as to what activities her former

work entailed, but she must point out (unless obvious), so as to

put in issue, how her functional incapacity [rendered] her unable

to perform her former usual work.” Santiago,

.

9 SSR 82-62 provides [in relevant part]: “Determination of the claimant’s ability to do past relevant work requires a careful appraisal of (1) the individual’s statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc. on the requirements of the work as generally performed in the economy.” SSR 82-62,

, at *3 (1982).

-28- The ALJ must carefully analyze the individual’s statements

regarding which requirements of past work could no longer be

performed during the relevant time period, including the reasons

for her inability to meet those requirements. See SSR 82-62

, at *3 (1982).

While SSR 82-62 placed the initial burden on Zownir to

demonstrate the demands of her past work, the ALJ also was

required to elicit evidence on this point due to Zownir’s pro se

status. See Heggarty,

(citing Currier,

). As discussed previously, I find that the ALJ satisfied

this responsibility.

The ALJ ultimately found that Zownir’s past relevant work

was in the field of technical research. See R. at 2 0 . The ALJ

also found that the demands upon Zownir in this vocational field

were not highly exertional and consisted of activities including:

giving seminars, supervising students in the laboratory, using a

variety of equipment, writing scientific papers, designing and

conducting experiments, attending professional lectures, and

-29- studying professional literature. See id.

In determining whether a claimant can return to her past

relevant work, the ALJ must determine the claimant’s RFC. See

(1999). Once the ALJ identifies a claimant’s

RFC, he then uses that RFC to determine whether the claimant has

the capacity to perform her past relevant work.10 See Manso-

Pizarro v . Secretary of Health and Human Servs.,

5 , 17

(1st Cir. 1996) (per curiam).

In determining a claimant’s RFC, the ALJ is required to

perform a “function-by-function” assessment of the claimant’s

ability to do work-related activities. See SSR 96-8p,

, at *3 (1996); Ferraris v . Heckler,

(2d Cir. 1984). Moreover, the ALJ must specify the evidentiary

basis of his RFC determination. See White v . Secretary of Health

10 “Your impairment must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment, we then review your residual functional capacity [RFC] and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled.” 20 C.F.R. 404.1520(e).

-30- and Human Servs.,

4 , 65 (2d Cir. 1990) (noting that

failure to specify a basis for RFC conclusion is sufficient

reason to vacate a decision of the Commissioner); SSR 96-8p,

, at * 7 . To comply with both of these requirements, the

ALJ must “consider objective medical facts, diagnoses and medical

opinions based on such facts, and subjective evidence of pain or

disability testified to by claimant and others.” Ferraris,

; see also

(a) (1999) (RFC must be

based upon all relevant evidence). In addition, “the ALJ is

entitled to rely upon claimant’s own description of the duties

involved in her former job, as well as her own statements of her

functional limitations.” Santiago,

, at 5 (citing

(a)). During the hearing on March 2 5 , 1997, the

ALJ questioned Zownir about her past relevant work and her

current ability to perform that work. The following colloquy

took place:

ALJ: S o , what I’m interested in is your work from ‘82 to ’87. That would be the relevant period. And you worked as a research assistant during that period?

-31- ZOWNIR: Yes, research assistant (INAUDIBLE).

ALJ: What does a research assistant do?

ZOWNIR: In my case I was doing investigation on scientific projects.

ALJ: Go ahead. What else?

ZOWNIR: Which mainly was laboratory work, doing genetic molecular experiments and molecule biology experiments.

ALJ: Okay. Why did you stop doing that in 1987?

ZOWNIR: Because I was not able to perform my duties...I was very sick. And my professor told m e , if you don’t resign, . . . I have to dismiss you.

ALJ: When you say you were very sick, I don’t know what was wrong with you. You have to tell me what was –- what do you mean by sick?

ZOWNIR: I could not concentrate. I had, like, tension in my head and like a , electrical-like feeling in my mouth. I had noise –

ALJ: What kind of feeling in your mouth?

ZOWNIR: Electrical like feeling in my mouth...and finally, I became generally ill. I had chest pain. I had numbness in my hands. I was dizzy. I was very weak.

R. at 3 5 , 3 6 . Zownir also testified that her daily activities,

between 1987 and 1989, included general housework and taking

-32- English language classes. See

at 4 0 .

Since the ALJ is a lay person, he is not qualified to

“assess residual functional capacity based on a bare medical

record.” Gordils v . Secretary of Health and Human Servs.,

(1st Cir. 1990) (per curiam); see also Manso-

Pizarro,

(observing that the record contained no

analysis of functional capacity by physician or other expert);

Berrios Lopez,

(1st Cir. 1991) (per curiam).

In other words, if the medical evidence only documents the

claimant’s impairments but does not relate them to an exertional

level, such a s , light or sedentary work, then the ALJ may not

make the connection himself. Vital v . Shalala, Civ. A . N o . 92-

12695-MLW,

, at *7 (D. Mass. Aug. 1 1 , 1994).

Dr. Burton A . Nault, medical consultant for the state

Disability Determination Services (“DDS”), reviewed the medical

evidence of record and rendered an assessment of Zownir’s

physical capabilities. He concluded that Zownir retained a

functional capacity for physical activity at the light exertional

-33- level. See R. at 120. D r . Nault also prepared a RFC narrative

which discussed Zownir’s condition for the period in question.11

In this narrative, D r . Nault found that Zownir had a significant

impairment due to facial pain syndrome but no “[l]istings level

impairment or 12 months’ total disability on a physical basis was

identified.”

Dr. Nault opined that Zownir retained the

functional capacity to engage in light work.

In July 1996, psychologist, Udo Rauter, Ph. D., evaluated

Zownir’s medical and psychological evidence, specifically

focusing on the period from her alleged onset date of October

1987 and the date of her last insured status of December 3 1 ,

1988. See

. Dr. Rauter determined that Zownir had an

affective disorder of major depression with psychotic features

which stabilized within five months and was reduced to “non-

11 As discussed earlier, see (supra note 1 ) , Zownir was last insured as of December 3 1 , 1992. Even though Dr. Nault states that his RFC analysis was for a time period from September 1 , 1987 to December 3 1 , 1988, it goes beyond the earlier date of December 1988, and takes into consideration medical evidence extending into December 1991.

-34- severe” by December 3 1 , 1988. Id.

Based on the medical record and Zownir’s testimony, the ALJ

found that Zownir retained the mental alertness and ability to

“understand, remember and carry out instructions; to use

judgment; to respond appropriately to supervisors and to deal

with changes in the work setting.” Id. at 2 0 . The ALJ also

found that “[n]either D r . Drummond nor any other treating or

examining physician found such [disabling] pathology for the

requisite durational period.” R. at 2 0 . The ALJ concluded that

there was no evidence of physical or mental limitations

preventing Zownir from continuing her past work activities. See

id. Zownir claims that the ALJ’s RFC and past relevant work

determinations were not based on substantial evidence. The

record is extensive and it is apparent that all of the relevant

evidence was before the ALJ. Zownir, now represented by counsel,

has not been able to identify any gaps in the evidentiary record

that has prejudiced her claim. There is no indication that the

ALJ failed to consider and weigh the full range of evidence

-35- relevant to Zownir’s alleged mental and physical impairments.

The ALJ specifically found, for example, that since Zownir

continues to read professional journals, “she is actually

performing part of her prior work already.” Id. at 2 1 . The

record contains medical records from the many treating physicians

Zownir visited between 1984 through December 3 1 , 1992 and beyond.

The ALJ’s decision reflects his consideration of this evidence

pursuant to his obligation under SSA regulation 20 C.F.R §

404.1527(d)(2) (1999). See Rodriquez v . Secretary of Health and

Human Servs.,

, N o . 90-1039,

(1st Cir. Sept. 1 1 , 1990) (per curiam) (“An ALJ is not required

to expressly refer to each document in the record, piece-by-

piece. He or she may summarize the medical findings reported

there.”).

The ALJ sufficiently summarized the relevant medical

evidence and testimony from Zownir to substantiate his final

determinations of Zownir’s RFC and ability to return to past

relevant work. Therefore, the ALJ’s RFC and past relevant work

-36- determinations were based on substantial evidence.

-37- D. Zownir’s Subjective Complaints of Pain

Finally, Zownir argues that the ALJ failed to adequately

consider her subjective complaints of pain. I disagree. The SSA

Commission’s regulations require that a claimant’s symptoms,

including complaints of pain, be considered when determining

whether a claimant is disabled.12 An ALJ must follow a two-step

process to evaluate a claimant’s subjective complaints of pain.

First, the ALJ must determine whether the claimant suffers from a

medically determinable impairment which can reasonably be

expected to produce the pain alleged. See

(b) (1999); Da Rosa v . Secretary of Health and Human

Servs.,

4 , 25 (1st Cir. 1986) (per curiam). Then, if

such an impairment exists, the ALJ must evaluate “the intensity

and persistence of [the claimant’s] symptoms so that [the ALJ]

can determine how [the claimant’s] symptoms limit [his or her]

12 Pain can constitute either an independent and separate basis for disability or a nonexertional factor to be considered in conjunction with exertional limitations. See Gagnon v . Secretary of Health and Human Servs.,

, 666 n.8 (1st Cir. 1981).

-38- capacity for work.”

(c)(1) (1999). At this

stage, the ALJ considers “all of the available evidence,

including [the claimant’s] medical history, the medical signs and

laboratory findings, and statements from [the claimant], [the

claimant’s] treating or examining physician or psychologist, or

other persons about how [the claimant’s] symptoms affect [the

claimant].”

The Commissioner recognizes that symptoms such as pain may

suggest a more severe impairment “than can be shown by objective

medical evidence.”

(c)(3). Accordingly, the

ALJ is directed to evaluate claimant’s complaints of pain, in

light of the following factors: (1) the claimant’s daily

activities; (2) the location, duration, frequency, and intensity

of the claimant’s pain; (3) precipitating and aggravating

factors; (4) the type, dosage, effectiveness, and side effects of

any medication that the claimant takes or has taken to alleviate

her pain; (5) treatment, other than medication, the claimant

receives or has received for relief of her pain; (6) any measures

-39- the claimant uses or has used to relieve pain; and (7) any other

factors concerning the claimant’s limitations and restrictions

due to pain. Id.; Avery v . Secretary of Health and Human Servs.,

9 , 29 (1st Cir. 1986). In addition to considering

-40- these factors, the ALJ is entitled to observe the claimant,

evaluate her demeanor, and consider how the claimant’s testimony

fits with the rest of the evidence. See Frustaglia v . Secretary

of Health and Human Servs.,

(1st Cir. 1987)

(per curiam).

In assessing the credibility of a claimant’s subjective

complaints of pain, the ALJ must examine whether these complaints

are consistent with the objective medical evidence and other

evidence in the record. See

(a) (1999). A

claimant’s complaints of pain do not have to be precisely

corroborated with the objective medical evidence; such evidence

only needs to be consistent with the claimant’s complaints. See

Dupuis v . Secretary of Health and Human Servs.,

(1st Cir. 1989) (per curiam).

In this case, the ALJ specifically found that Zownir’s

allegations of severe and disabling pain were not supported by

either the objective medical evidence or the information Zownir

supplied concerning her daily activities. See R. at 2 2 .

-41- Further, the medical evidence in the record supports the ALJ’s

determination that Zownir’s pain did not limit her functional

capacity beyond that already assessed. The medical evidence is

entirely inconsistent with Zownir’s complaints of debilitating

pain. The many physicians who examined Zownir prior to her

alleged onset date all concluded that the medical evidence was

inconsistent with Zownir’s complaints of debilitating pain. For

example, on August 2 4 , 1987, Dr. Huggins concluded that Zownir

was not mechanically injured and was able to work in a different

area of the same vocational field. See id. at 324. On October

3 1 , 1987, Drs. Onstad and Salvo both stated that Zownir’s oral

facial pain was not clinically consistent with what she described

subjectively and suggested psychiatric treatment. See id. at

214.

Between 1986 and March 1988, Zownir was evaluated by three

psychiatrists. She refused to take any of their treatment

advice. As the record indicates, it was not until March 2 9 ,

1988, that Zownir finally sought psychiatric counseling and

-42- treatment. Within eight months of beginning treatment, Zownir

had remarkably improved. See id. at 229-30; 235-46.

There is also substantial evidence in the record to support

the ALJ’s determination that Zownir’s daily activities were

inconsistent with the degree of pain she alleged. See Roe v .

Chater,

(8th Cir. 1996) (“More telling than a

chronicle of [the claimant’s] various ailments are [her] actual

activities, which are incongruous with [her] contention that

[she] cannot work.”); see also Cruze v . Chater,

(8th Cir. 1996) (the ALJ properly disregarded social

security disability claimant's subjective complaints of pain and

light-headedness, where they conflicted with evidence concerning

claimant's daily activities). As in Cruze, the ALJ in this case

concluded that Zownir’s complaints lacked credibility because

they were inconsistent with her “full schedule of social;

cultural and personal activities.” R. at 21. 13

13 In support of this conclusion, the ALJ found the following:

The claimant reports that she cleans house, cooks, shops,

-43- Zownir alleges that the ALJ did not properly evaluate her

subjective complaints of pain, lack of concentration, and

fatigue. It is true that the ALJ’s decision does not provide

express and specific findings for each factor set forth in the

applicable regulations and case law. Notwithstanding this lack

of specificity, I conclude that the ALJ’s adverse credibility

determination is supported by substantial evidence of Zownir’s

daily activities, her refusal to seek treatment and all of the

medical evidence. See Frustaglia,

(“Although

does laundry, reads, writes, goes for walks, listens to music, gardens, attends the theatre and concerts, goes to museums, restores furniture, goes to picnics, watches television, skis, visits family and friends, and drives. Despite these reports, however, she asserts that she has to avoid stressful situations and try to be relaxed in order to relieve her discomfort. This assertion finds no corroboration in objective evidence and is not given credibility.

The claimant’s other assertions of functional limitations so severe that they are disabling are lacking in credibility; for example, she maintains that some days she has to stay in bed because of her discomfort. I find it unreasonable to believe that she could maintain she is bedridden by her complaints because she has not reported this to physicians and because she reports an active schedule which doesn’t really allow time to stay in bed all day. See R. at 2 1 .

-44- more express findings, regarding head pain and credibility, than

those given here are preferable, we have examined the entire

record and their adequacy is supported by substantial

evidence.”).

IV. CONCLUSION

Because I have determined that the Commissioner’s conclusion

that Zownir was “not disabled” during the period of her

eligibility for disability benefits from January 1 1 , 1987, until

December 3 1 , 1992, is supported by substantial evidence, I

affirm. Accordingly, Zownir’s motion to reverse and remand (Doc.

N o . 5 ) is denied, and defendant’s motion for an order affirming

Commissioner (Doc. N o . 7 ) is granted. The clerk shall enter

judgment accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge

-45- March 2 9 , 2000

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

-46-