Bruce Menezes v . SSA CV-99-168-B 05/04/00

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

BRUCE W . MENEZES

v. Civil N o . 99-168-B Opinion N o .

KENNETH S. APFEL, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Bruce W . Menezes applied for Title II Social Security

Disability Income benefits on September 26, 1996, alleging

disability since November 1 , 1991. After the Social Security

Administration (“SSA”) denied Menezes’s application, he requested

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

S . Klingebiel held a hearing on Menezes’s claim on March 2 5 ,

1997. In a decision dated May 2 4 , 1997, the ALJ found that

Menezes was “not disabled” at any time prior to the expiration of

his insured status on December 3 1 , 1991. On February 2 6 , 1999,

the Appeals Council denied Menezes’s request for review, rendering the ALJ’s decision the final decision of the

Commissioner of the SSA.

Menezes brings this action pursuant to § 405(g) of the

Social Security Act (the “Act”), see

(g) (1994),

seeking review of the denial of his claim for benefits. For the

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

Menezes was not entitled to benefits was supported by substantial

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

deny Menezes’s motion to reverse.

I . FACTS1

Bruce W . Menezes was 37 years old when he applied for

benefits. He has a twelfth-grade education and speaks English.

Between 1977 and 1986, Menezes worked as a circuit board cutter.

At various times between 1986 and 1991, he worked in roofing,

general construction, and general property maintenance. See R.

1 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts (Doc. #9) submitted by the parties.

-2- at 7 3 , 9 6 , 9 8 , 538-39, 581-82.2

On November 1 , 1991, Menezes was injured at work when he was

struck by a crane and knocked from the back of a truck. See id.

at 587. In addition to being knocked unconscious, Menezes

suffered injuries to his back, left ankle, and left thumb. He

went directly to S t . Joseph’s Hospital in Lowell, Massachusetts.

X-rays of his skull and left ankle were negative, whereas x-rays

of his left thumb showed a comminuted3 fracture with angulation

of the fragments at the fracture site in the mid-shaft of the

metacarpal bone.

The next day, Menezes was examined by Dr. Lawrence Johnson.

During the examination, Menezes walked with a normal gait and

stated that his left ankle pain was improving. Menezes’s ankle

had a full range of motion, was “minimally tender [and] minimally

swollen,” and was stable to ligament examination. Regarding

2 “R.” refers to the official record submitted to the Court by the SSA in connection with this case. 3 Comminuted means “[b]roken into several pieces.” Stedman’s Medical Dictionary 333 (25th ed. 1990).

-3- Menezes’s fractured thumb, Dr. Johnson recommended open reduction

and internal fixation. On November 3 , 1991, Dr. Johnson

performed a surgical procedure on the thumb. Menezes’s thumb was

in a cast for eight weeks, at the end of which D r . Johnson noted

that it was “minimally tender” and somewhat stiff, but was doing

well overall. Menezes reported that after the operation and

recovery period, his left thumb had “healed up pretty good.”

On December 3 , 1991, Menezes returned to the emergency room

at S t . Joseph’s Hospital complaining of pain in his lower back

and right hip. He reported that he had experienced these pains

since the November 1 accident and that they were getting worse.

X-rays taken of Menezes’s lumbar spine were unremarkable. On

December 1 0 , 1991, Menezes underwent magnetic resonance imaging

(“MRI”) of his lumbar spine. The MRI showed disc degeneration

with central disc bulging at the L3-4 and L4-5 levels and large

right-sided disc herniation at L5-S1 that indented and displaced

the dural sac with significant foraminal4 encroachment. On

4 A foramen (pl. foramina) is “an aperture or perforation through a bone or a membraneous structure.” Stedman’s Medical

-4- December 1 7 , 1991, D r . Johnson examined Menezes, who complained

of pain radiating down his right leg to his toes. The

examination revealed that Menezes had a moderately antalgic gait5

with a list to the left and a positive Lasegue’s sign6 on the

right. The result of a straight leg raising test (“SLR”) 7 was

positive on the right at 60 degrees. As a result of this

examination, Dr. Johnson and Menezes decided that the herniated

Dictionary 605 (25th ed. 1990). 5 An antalgic gait is “a characteristic [gait] resulting from pain on weightbearing in which the stance phase of [gait] is shortened on the affected side.” Stedman’s Medical Dictionary 627 (25th ed. 1990). 6 Lasegue’s sign is positive and indicates lumbar root or sciatic nerve irritation when the patient, in a supine position with his hip flexed, experiences pain or muscle spasm in the posterior thigh upon dorsiflexion of the ankle. See Stedman’s Medical Dictionary 1420 (25th ed. 1990). 7 “The simple straight-leg raising test [SLR] is performed with the patient lying supine, with the backs of the knees flat on the examining table. The knee is held straight, and the foot of one leg is raised while the hip is slowly flexed. Flexion of the leg through a range of 60 to 90 degrees is considered to be normal. The test is positive when pain is reproduced down the posterior thigh below the knee between the angle of 30 to 70 degrees.” Attorneys’ Textbook of Medicine ¶ 15.34(1) (3d ed. 1999).

-5- disc should be excised.

On December 2 3 , 1991, Menezes reported to Dr. Johnson that

he had pain in his right buttock and thigh radiating down to his

calf. By December 3 1 , 1991, Menezes had a more significant limp,

his SLR was more prominent at 60 degrees, and he exhibited pain

with turning on the examining table. D r . Johnson concluded that

a discectomy8 would be required if Menezes’s symptoms persisted.

On January 7 , 1992, Menenzes’s electromyogram9 and nerve

conduction studies indicated a right S1 radiculopathy.10 On

January 1 5 , 1992, D r . Bruce R. Cook determined that, based on

Menezes’s history, physical examination, electrodiagnostic

8 A discectomy is the “excision, in part or whole, of an intervertebral disk.” Stedman’s Medical Dictionary 442-43 (25th ed. 1990). 9 An electromyogram is “[a] graphic representation of the electric currents associated with muscular action.” Stedman’s Medical Dictionary 497 (25th ed. 1990). 10 Radiculopathy is a “[d]isease of the spinal nerve roots.” Stedman’s Medical Dictionary 1308 (25th ed. 1990).

-6- studies, and imaging studies, Menezes needed a laminectomy11 and

disc excision.

A note in Menezes’s chart, dated January 2 1 , 1992, showed

that he canceled the proposed surgery with D r . Johnson after

receiving a second opinion that surgery was not needed. In

response, Dr. Johnson noted that he had “found in recent weeks

that [Menezes’s] symptoms waxed and waned and, certainly, if he

is not feeling very symptomatic, it is appropriate to hold off on

surgery.” R. at 184. Notwithstanding the “second opinion,” on

January 2 3 , 1992, Dr. Cook performed a lumbar hemilaminectomy12

and disc excision upon Menezes. During the operation a sizeable

free fragment and several small pieces of fibrocartilaginous13

11 A laminectomy is an “excision of a vertebral lamina [flattened portion of a vertebra].” Stedman’s Medical Dictionary 839 (25th ed. 1990). 12 A hemilaminectomy is a type of laminectomy where access to the disc is achieved “by cutting away one or both sides of the of the bony structures at the level of the lesion.” Attorneys’ Textbook of Medicine ¶ 15.74 (3d ed. 1999). 13 Fibrocartilage refers to “a variety of cartilage that contains visible collagen fibers.” Stedman’s Medical Dictionary 581 (25th ed. 1990).

-7- tissue were removed from under the nerve root. See id. at 213-

14. After the surgery, Menezes’s leg pain improved. He was

discharged from the hospital on January 2 6 , 1992.

When Menezes was examined by Dr. Cook on February 3 , 1992,

his station and gait were “mildly antalgic” and he was still

having “a little bit of proximal pain in the hip and soreness in

the back.” Dr. Cook noted, however, that Menezes showed a

“marked improvement” in his leg symptoms. By March 1 6 , 1992, Dr.

Cook reported that Menezes was free of all back and leg pain and

was “doing very nicely.” Except for some left ankle difficulties

(discussed below), Menezes was enjoying “full activities.” Dr.

Cook noted that Menezes’s right ankle jerk had returned, that he

had good strength and mobility, and that his SLR was negative

beyond 90 degrees.

On February 1 5 , 1992, Menezes’s left ankle was examined by

Dr. David C . Morley, an orthopedic surgeon. Menezes informed D r .

Morley that he had been experiencing problems with his ankle such

as pain, giving way, limping, and loss of activities ever since

-8- the accident on November 1 , 1991. See id. at 260. The x-rays

showed marked anterior instability and 28 degrees lateral opening

to varus14 stress films. Dr. Cook recommended reconstructive

surgery and performed such a procedure on Menezes’s left ankle on

April 6, 1992. After the surgery, Menezes was placed in a short

leg cast and he began physical therapy. He was discharged on

April 1 2 , 1992. At the time of discharge, Menezes was relegated

to walking with a crutch, was able to achieve regular elevation

of the left leg, and was prescribed Percocet for pain. See id.

at 313.

On the day he was discharged, Menezes fell down some stairs

and injured his back. On April 1 5 , 1992, he was again examined

by Dr. Cook. The x-rays of Menezes’s lumbar spine were

essentially negative with minimal spondylolysis.15 Dr. Cook

14 Varus means “[b]ent or twisted inward toward the midline of the limb or body.” Stedman’s Medical Dictionary 1689 (25th ed. 1990). 15 Spondylolysis is the “[d]egeneration of the articulating part of a vertebra.” Stedman’s Medical Dictionary 1456 (25th ed. 1990).

-9- diagnosed Menezes as suffering from a soft tissue contusion and

sacroiliitis,16 and prescribed anti-inflammatory medication and

physical therapy.

On March 8 , 1993, Dr. Morley reported that there had been

full restoration of motion in Menezes’s ankles,17 but that

subtalar motion18 was about half of normal. Dr. Morley opined

that considering the length of the scars left from surgery and

the decreased range of motion, Menezes had an eight percent

permanent partial physical disability with respect to each ankle.

He suggested that Menezes avoid occupations that require

significant standing or walking and that he be retrained in a

16 Sacroiliitis is the “[i]nflammation of the sacroiliac joint.” Stedman’s Medical Dictionary 1377 (25th ed. 1990). 17 There is evidence in the record regarding an injury to Menezes’s right ankle which he sustained in early April 1992. See R. at 434. However, because this injury occurred after the expiration of Menezes’s insured status, it is irrelevant to his disability determination. 18 Subtalar motion involves extension of the ankle and lowering the talus bone in the foot which articulates with the tibia and fibia in forming the ankle. See Dorland’s Illustrated Medical Dictionary 1598, 1657, 1658 (28th ed. 1994).

-10- more sedentary occupation.

In January 1995, Dr. Cook reported that Menezes’s January

1992 laminectomy had relieved his leg pain, but that he still had

“occasional back pain that is associated with lifting or

activity.” Dr. Cook also reported that Menezes did not notice

any weakness or numbness in his leg and was not taking any

medication for his back. Menezes could bend to 90 degrees, his

reflexes were symmetric, his strength was full throughout, his

SLR status was negative, and he had no sensory loss. Dr. Cook

opined that Menezes would continue to be limited in his ability

to do any lifting or repetitive activity.

In October 1995, Menezes reinjured his back while changing a

flat tire on his car. As a result of this injury, Menezes

required another laminectomy, which was performed by Dr. Cook on

December 1 9 , 1995.

On December 2 1 , 1995, Menezes was transferred to Northeast

Rehabilitation Hospital in Salem, New Hampshire for comprehensive

rehabilitation following his second lumbar disc surgery. See id.

-11- at 532-34. When he arrived at the hospital, Menezes complained

of severe pain and was given narcotic analgesics. Within a few

hours, he improved, was medically stable, and was allowed to go

home with therapy continued on a outpatient basis.

On June 1 7 , 1996, Dr. Richard N . Warnock submitted a medical

opinion regarding Menezes’s condition to the Department of

Industrial Accidents for the Commonwealth of Massachusetts. Dr.

Warnock reported that Menezes experienced right side lower back

pain without radiation, numbness, or paresthesia. Menezes

informed Dr. Warnock that his left ankle no longer gave way but

that he occasionally had calf cramps. Menezes walked with a

normal gait and had a normal stance. Dr. Warnock reported that

Menezes enjoyed unrestricted lateral bending and could forward

flex to about 60 degrees and extend to 5 degrees. Menezes’s SLR

was negative on the left and mildly positive on the right,

particularly beyond 70 degrees. There were no obvious motor or

sensory deficits in his lower extremities and reflexes were

normal except for absent right ankle reflex. There was no

-12- detectable instability in either ankle. Although Dr. Warnock

reported that there was “no disability in regard[] [to] Menezes’s

left thumb or his ankle at the present time,” the doctor opined

that Menezes was “100% disabled from [November 1 , 1991] through

[June 1 7 , 1996].” Dr. Warnock concluded that Menezes was

restricted to job activities that did not require lifting more

than fifty pounds or twenty-five pounds repetitively; that did

not require climbing, bending, or stooping; and that allowed

Menezes the freedom to sit or stand as needed to relieve back

pain.

On October 2 8 , 1996, Dr. Munro Proctor, medical consultant

for the state Disability Determination Services (“DDS”), reviewed

Menezes’s medical records and prepared an assessment of his

physical residual functional capacity (“RFC”). D r . Proctor

concluded that Menezes could lift and carry ten pounds frequently

and twenty pounds occasionally and could stand/walk or sit for

six hours in an eight-hour day. Dr. Proctor further concluded

that Menezes could only occasionally climb, balance, stoop,

-13- kneel, crouch, or crawl. After reviewing the same medical

records, Dr. Burton Nault, another medical consultant for DDS,

concurred with Dr. Proctor’s RFC assessment.

On December 2 , 1996, Menezes stated in a reconsideration of

disability report that he could not climb, kneel, stoop, walk

over rough terrain, or stand or sit for extended periods due to

pain in his ankles and lower back. He also reported that he

could not lift more than fifty pounds, or more than twenty pounds

repeatedly. See id. at 8 3 . This reconsideration report was

completed after Menezes underwent a second operation for his back

and reconstructive surgery on his right ankle. These medical

procedures were performed to treat injuries that Menezes

sustained after the expiration of his insured status under the

Act.

On March 2 0 , 1997, Dr. Cook rendered the opinion that

Menezes was unable to do any heavy or repetitive work, other than

tasks appropriate for a sedentary occupation. Dr. Cook indicated

that Menezes had “persistent back pain following spinal surgery

-14- in 1995 [and that] [m]ultiple efforts at physical therapy and

treatment of medications have not given him relief.”

I I . STANDARD OF REVIEW

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);

(g). The ALJ is

responsible for settling credibility issues, drawing inferences

from the record evidence, and resolving conflicts in the

evidence. See Irlanda Ortiz,

. Therefore, I must

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

-15- 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)) (internal quotation marks omitted).

If the ALJ has misapplied the law or has 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 Slessinger v . Secretary of Health and Human

Servs.,

(1st Cir. 1987) (per curiam) (“The

[ALJ’s] conclusions of law are reviewable by this court.”);

Carroll v . Secretary of Health and Human Servs.,

(2d Cir. 1983). I apply these standards in reviewing the

issues that Menezes 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

-16- 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). When evaluating whether a claimant is

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

analysis is governed by a five-step sequential evaluation

process.19 See

(1999). At step four of the

process, the ALJ must determine whether the claimant’s impairment

prevents him from performing his past work. See

(e). To make this determination, the ALJ must assess

both the claimant’s residual functional capacity (“RFC”), that

i s , what the claimant can do despite his impairments, and the

demands of the claimant’s prior employment. See id.; Santiago v .

19 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; (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).

-17- Secretary of Health and Human Servs.,

, 5 (1st Cir.

1991) (per curiam). The claimant bears the burden of showing

that he does not have the RFC to perform his past relevant work.

See Santiago,

. At step five, the burden shifts to

the Commissioner to show “that there are jobs in the national

economy that [the] claimant can perform.” Heggarty v . Sullivan,

9 0 , 995 (1st Cir. 1991) (per curiam); see also Keating

v . Secretary of Health and Human Servs.,

(1st

Cir. 1988) (per curiam). The Commissioner must show that the

claimant’s limitations do not prevent him from engaging in

substantial gainful work, but need not show that the claimant

could actually find a job. See Keating,

(“The

standard is not employability, but capacity to do the job . . .

.”).

In the present case, the ALJ concluded at step five of the

sequential evaluation process that Menezes was “not disabled.”

See R. at 1 8 , 2 0 . The ALJ found that although Menezes had a

severe impairment that precluded his return to his former

-18- employment, he retained the RFC to perform light work.20 See

at 1 8 , 1 9 . In addition, the ALJ found that Menezes was a high

school graduate, that his previous work experience had been semi-

skilled, and that he did not have transferable skills. See

at 1 8 , 1 9 , 2 0 . Accordingly, the ALJ applied Rule 202.21 of the

Medical-Vocational Guidelines (“the Grid”), which directed a

conclusion of not disabled. See

at 1 8 , 2 0 ; 20 C.F.R. P t .

404, Subpt. P, App. 2 at 202.21 (1999).

Menezes argues that the ALJ’s denial of his application for

benefits at step five was tainted by a variety of legal errors.

First, Menezes alleges that the ALJ should have combined and

considered his non-severe impairments with his severe impairment

20 Light work may involve “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds,” “a good deal of walking or standing,” and/or “sitting most of the time with some pushing and pulling of arm or leg controls.”

(b) (1999). “If 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 frequent “sitting.”

(a) (1999).

-19- throughout the entire sequential evaluation process. Second,

Menezes argues that the ALJ improperly calculated his residual

functional capacity and accordingly applied the incorrect rule

from the Medical-Vocational Guidelines (the “Grid”). Third,

Menezes argues that the ALJ ignored certain medical evidence that

was relevant to his residual functional capacity. Fourth,

Menezes contends that the ALJ failed to give the appropriate

weight to medical evidence submitted by examining physicians.

Finally, Menezes maintains that the ALJ did not properly evaluate

his subjective complaints of pain. I address each of these

arguments in turn.

A. ALJ’s Consideration of Combined Impairments

Menezes argues that the ALJ should have combined and

considered his non-severe impairments, e.g., the injuries to his

thumb and left ankle, along with his severe back impairment

throughout the five-step sequential disability analysis. Menezes

contends that the ALJ failed to do so and, as a result, that the

ALJ erred in concluding that Menezes was not disabled under the

-20- Act. For the following reasons, I disagree.

“[A claimant’s] impairment(s) must be severe and meet the

duration requirement before [the SSA] can find [a claimant] to be

disabled.”

(a) (1999). An impairment or

combination of impairments is “severe” if it significantly limits

a claimant’s ability to perform basic work activities. See

(c) (1999). To meet the duration requirement an

impairment that is not expected to result in death “must have

lasted or must be expected to last for a continuous period of at

least 12 months.”

(1999); see also 42

U.S.C. § 1382c(a)(3)(A) (1994 & Supp. 1996). Regarding the

determination of the duration requirement, some courts have

specifically held that “[t]he first two steps [of the sequential

process] involve threshold determinations as to whether a

claimant is not presently working and has an impairment which is

of the required duration and which significantly limits his

ability to do work.” Maggard v . Apfel,

(7th

Cir. 1999); see also Pate v . Heckler,

(5th

-21- Cir. 1985) (“The twelve month duration requirement is a threshold

requirement for the claimant to prove a disability under the

Social Security Act.”). “If one or more of [a claimant’s]

impairments improves or is expected to improve within 12 months,

so that the combined effect of [the claimant’s] remaining

impairments is no longer severe, [the SSA] will find that [the

claimant] do[es] not meet the 12-month duration test.”

(b) (1999). Also, a claimant may not aggregate

unrelated severe impairments that individually last for a shorter

period to meet the duration requirement. See

(a) (1999) (“[SSA] cannot find you disabled, even though

the two impairments in combination last for 12 months.”).

Moreover, if an impairment can be reasonably remedied by

treatment, it cannot serve as a basis for a finding of

disability. See Bianchi v . Secretary of Health and Human Servs.,

4 , 45 (1st Cir. 1985) (per curiam). Thus, a claimant

whose impairment or impairments are no longer severe, such that

he can return to substantial gainful activity within one year of

-22- his injury, is not entitled to disability benefits. See Titus v .

Sullivan,

(8th Cir. 1993).

At step two of the sequential evaluation process, the ALJ

has an obligation to determine whether a claimant suffers from a

“severe” impairment. See

(c). “[A] claim

may be denied at step 2 for lack of a severe impairment only

where ‘medical evidence establishes only a slight abnormality or

combination of slight abnormalities which would have no more than

a minimal effect on an individual’s ability to work even if the

individual’s age, education, or work experience were specifically

considered . . . .’” Barrientos v . Secretary of Health and Human

Servs.,

, 2 (1st Cir. 1987) (per curiam) (quoting

Social Security Ruling (“SSR”) 85-28,

, at *3

(1985)). The step two severity requirement is intended “to do no

more than screen out groundless claims.” McDonald v . Secretary

of Health and Human Servs.,

(1st Cir. 1986).

If the ALJ finds a medically severe combination of impairments at

step two, he must consider the combined impact of such

-23- impairments throughout the disability determination process. See

(d)(2)(B) (1994).

Menezes argues that the ALJ should have combined his short-

term injuries with his severe back impairment when determining

his RFC. However, the Act, the SSA’s regulations, and relevant

case law clearly state that unless an impairment lasts for a

continuous period of twelve months, it cannot serve as a basis

for a disability determination. See 42 U.S.C. § 1382c(a)(3)(A);

; Maggard,

. If an impairment

cannot serve as a basis for a disability determination, it is

reasonable for an ALJ to screen out that impairment before

performing the RFC analysis. The RFC denotes what a claimant can

do despite his limitations. See

(a) (1999).

Injuries that are remediated within a twelve-month period do not

limit a claimant’s ability to perform work activities and thus

should not be factored into the RFC analysis. Therefore, the ALJ

properly excluded from the RFC analysis Menezes’s short-term

-24- thumb and ankle injuries.21

B. ALJ’s Evaluation at Steps Four and Five

Menezes next argues that the ALJ ignored the raw medical

evidence describing the symptoms upon which the particular

treatment of thumb, ankle and back injuries was based. Menezes

contends that by ignoring this evidence the ALJ erroneously

determined Menezes’s RFC at step four and, as a result, applied

the incorrect rule from the Medical-Vocational Guidelines (the

“Grid”) at step five. I first review the ALJ’s RFC determination

at step four.

21 In his brief on appeal, Menezes argues that his back injury met a listing level impairment and therefore that the ALJ erred by not finding that Menezes was disabled at step three. Menezes contends that the medical evidence demonstrates that he exhibited the listed symptoms of (1) pain, muscle spasms, and a significant limitation of motion in the spine; and (2) appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. See Pl.’s Mot. (Doc. #6) at 7 ; 20 C.F.R. P t . 4 0 4 , Subpt. P, App. 1 at 1.05C. The SSA regulations require, however, that such symptoms persist “for at least 3 months despite prescribed therapy and be expected to last 12 months.” 20 C.F.R. P t . 4 0 4 , Subpt. P, App. 1 at 1.05C. Since there is no evidence that Menezes symptoms persisted for the required duration, I find that the ALJ properly concluded that Menezes did not meet the listing level impairment at step three.

-25- 1. RFC Determination

An RFC determination represents what a claimant is able to

do despite his limitations. See

(a). The

ALJ is responsible for determining a claimant’s RFC. See

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

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

the capacity to perform past relevant work. See Manso-Pizarro v .

Secretary of Health and Human Servs.,

5 , 17 (1st Cir.

1996) (per curiam).

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

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

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

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

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

evidentiary basis for his RFC determination. See White v .

Secretary of Health 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);

-26- SSR 96-8p,

, at * 7 . When making his RFC

determination, an 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 or others.” Ferraris,

; see also

(a) (RFC must be based on all relevant

evidence).

Because an ALJ is a lay person, however, 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,

7 ; Berrios Lopez v . Secretary of

Health and Human Servs.,

(1st Cir. 1991) (per

curiam). This means that if the medical evidence only describes

the claimant’s impairment(s) but does not relate those

impairment(s) to an exertional level, such as light work, the ALJ

may not make the connection himself. See Vital v . Shalala, Civ.

A . N o . 92-12695-MLW,

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

-27- 1994).

In the present case, the ALJ determined at step four of the

sequential evaluation process that Menezes retained the RFC to

perform a full range of light work. See R. at 1 8 . In support of

his decision, the ALJ provided the following function-by-function

assessment:

After reviewing all of the medical evidence and testimony in this case, I find that the claimant did have a herniated disc at L5-S1, resulting from an accident on November 1 , 1991, that did place restrictions on his ability to perform basic work functions and that did persist for at least a year after the alleged onset of disability, November 1 , 1991. The claimant could not have been expected . . . to lift and carry anything in excess of 20 pounds occasionally and 10 pounds frequently.

at 1 7 . Although a more specific function-by-function

analysis is desirable, the ALJ’s RFC assessment was in line with

the assessment offered by the state’s doctors. The state

physicians concluded that Menezes could occasionally lift 20

pounds and frequently lift 10 pounds. See

at 7 6 . They also

found that Menezes could stand and/or walk, with normal breaks,

for about 6 hours in an 8-hour workday. See

The state

-28- physicians’ RFC assessment also stated that Menezes: (1) had

limited ability to push or pull in the upper extremity (due to

the thumb injury), see id.; (2) had some manipulative limitations

(due to the thumb injury), see

at 7 8 ; (3) had no visual,

communicative, or environmental limitations, see

at 7 8 , 7 9 ;

and (4) could occasionally climb, balance, stoop, kneel, crouch,

and crawl. See

at 7 7 . The state physicians’ overall

conclusion was that Menezes was capable of performing light work.

See

at 8 2 . The record contains no other analysis of

Menezes’s RFC for the period prior to the expiration of his

disability insurance. Moreover, the medical evidence that

Menezes contends that the ALJ ignored is not linked to an

specific exertional level. Accordingly, the ALJ would not have

been entitled to rely on that evidence as a basis for the RFC

determination. See Poland v . Apfel, N o . C-99-128-B,

, at *12 (D.N.H. Dec. 2 2 , 1999); Vital,

, at

*7.

2. Application of the Grid Rule.

-29- After determining Menezes’s RFC, the ALJ proceeded to step

five and applied Rule 202.21 of the Grid, 20 C.F.R. P t . 4 0 4 ,

Subpt. P, App. 2 , to reach a finding of not disabled. See R. at

1 8 , 2 0 . Menezes argues that had the ALJ properly determined his

RFC, the ALJ would have found that Menezes was capable of only

performing sedentary work and would have accordingly applied a

different part of the Grid (e.g., Rules 201.00(h) and 202.28) to

find him disabled. In other words, Menezes is challenging the

particular Grid rule applied by the ALJ, not the application of

the Grid itself.22

Because I have determined that the ALJ properly determined

Menezes’s RFC, I find that the application of the particular Grid

rule was also appropriate.

C. The ALJ’s Determinations Must Be Based on Substantial Relevant Evidence

Menezes claims that the ALJ improperly determined his RFC

because he failed to consider certain medical evidence for the

22 Because Menezes does not challenge the propriety of the ALJ’s decision to use the Grid in this case, I do not address that issue.

-30- period between November 1 , 1991 and December 3 1 , 1991. According

to Menezes, this evidence demonstrates that he had his left hand

in a cast, that he had a large right-sided herniated disc with

radiculopathy, that he had a decreased sense of touch in his

lateral right calf, that he had a list, that he had an antalgic

gait, that sitting and walking made the pain worse, that he was

unable to perform household chores, and that his treating

physician observed that he experienced pain while turning on the

examining table. See Pl’s. Mot. (Doc. #6) at 5 . Menezes also

claims that “[t]he ALJ failed to consider the ankle surgeries,

casting, crutches and the effect that they had on [Menezes’s]

ability to work.” Id. at 9. For the reasons set forth below, I

conclude that the ALJ considered this evidence to the extent that

it was relevant and properly determined Menezes’s RFC and non-

disabled status.

To determine whether a claimant is disabled, an ALJ must

consider and evaluate all evidence, whether objective or

subjective, that is relevant to the claim. See Cotter v . Harris,

-31-

(3d Cir. 1981); Parker v . Harris,

(2d Cir. 1980). The SSA’s regulations define “evidence” as

“anything [the claimant] or anyone else submits to [SSA] or that

[SSA] obtain[s] that relates to [the] claim.”

(b) (1999).

A “[c]laimant is not entitled to disability benefits unless

he can demonstrate that his disability existed prior to the

expiration of his insured status.” Cruz Rivera v . Secretary of

Health and Human Servs.,

6 , 97 (1st Cir. 1986) (per

curiam); see also Deblois v . Secretary of Health and Human

Servs.,

6 , 79 (1st Cir. 1982). “It is not sufficient

for a claimant to establish that [his] impairment had its roots

before the date that [his] insured status expired. Rather, the

claimant must show that [his] impairment(s) reached a disabling

level of severity by that date.” Moret Rivera v . Secretary of

Health and Human Servs.,

, Civ. N o . 93-1700,

, at *5 (1st Cir. March 2 3 , 1994) (per curiam) (table, text

available on Westlaw) (citing Deblois, 686 F.2d at 7 9 ; Tremblay

-32- v . Secretary of Health and Human Servs.,

1 , 13 (1st

Cir. 1982) (per curiam)). However, evidence from the post-

insured period is not wholly irrelevant when it sheds light “on

the question whether claimant’s impairment(s) reached disabling

severity before claimant’s insured status expired.”

In his brief on appeal, Menezes fails to differentiate

between injuries he sustained during the time he was insured

under the Act and injuries he sustained after his disability

insurance expired. Relevant evidence is evidence that shows that

Menezes’s impairment(s) reached a disabling level of severity by

the date his disability insurance expired. See id.; Deblois, 686

F.2d at 7 9 ; Tremblay,

3 . Because Menezes’s

insurance expired before he sustained the right ankle injury, the

ALJ properly excluded evidence of that injury from his analysis.

Regarding Menezes’s back injury, the ALJ found that the

November 1 , 1991 accident resulted in a herniated disc that

required surgery. See R. at 1 6 . The ALJ’s opinion reflects

consideration of the medical evidence from Menezes’s treating

-33- physicians, Drs. Johnson and Cook, as well as the opinions of the

state physicians. See

at 1 6 , 1 7 . The ALJ found that

Menezes’s back injury was a severe impairment that restricted his

ability to perform basic work functions for at least one year.

See

at 1 7 . The ALJ further found that Menezes could not have

been expected to lift and carry objects weighing in excess of 20

pounds occasionally and 10 pounds frequently. See

All of

these conclusions are based on substantial evidence in the

record.

Menezes also contends that the ALJ’s determination that

Menezes’s ankle and thumb injuries were “non-severe” is not based

on substantial evidence. However, as noted previously, the ALJ

excluded those injuries from the analysis because they did not

meet the duration requirement under the Act. Therefore, I

address whether the ALJ’s decision to exclude those injuries for

not meeting the duration requirement is supported by substantial

evidence.

The ALJ determined that Menezes’s thumb injury did not meet

-34- the duration requirement and could not be included in his

disability analysis. See R. at 1 5 . This finding is supported by

evidence in the record showing that Menezes’s thumb was healing

well when removed from a cast on the last day of his insured

status. See id. at 183, 595.

Regarding Menezes’s left ankle, the ALJ found that “[a]fter

casting and physical therapy for a brief period of time

[Menezes’s] surgeon, Dr. David Morley, was able to report in July

1992 that the left ankle was doing well and showing excellent

stability.” Id. at 1 5 . Based on this evidence, the ALJ

concluded that Menezes’s left ankle injury did not limit his

ability to perform basic work activity “for a period of time that

met the durational requirements of the Act.” Id.

Menezes contends that the ALJ’s analysis of his left ankle

injury was flawed because the ALJ ignored evidence of the injury

provided by Dr. Morley. See Pl.’s Mot. (Doc. #6) at 8-9. To the

contrary, it is evident that the ALJ did not ignore this

evidence. Although the evidence from Dr. Morley relates to a

-35- period after Menezes’s disability insurance expired, it

demonstrates that Menezes’s left ankle was doing well and showing

excellent stability. Such post-insured status evidence supports

the ALJ’s finding that Menezes’s left ankle impairment did not

reach disabling severity before his insured status expired. See

Moret Rivera,

, at * 5 ; Smith, 849 F.2d at 1225.

In short, Menezes has been unable to demonstrate that the

ALJ failed to consider any evidence relevant to making a

disability determination. To the contrary, it is apparent that

the ALJ considered all relevant evidence in forming the

conclusion that Menezes suffered from a severe back impairment.

In addition, the evidence regarding Menezes’s ankle and thumb

injuries substantiates the ALJ’s determination that those

injuries did not meet the duration requirement under the Act. I

find no error in this regard.

D. Weight Given to Treating/Examining Physicians

Menezes argues that the ALJ erred by ignoring or not

according the appropriate weight to evidence provided by

-36- Menezes’s treating physician, Dr. David Morley, and examining

physician, D r . Richard Warnock. Menezes also contends that the

ALJ accorded inappropriate weight to the state physicians’

report. I disagree with both contentions.

A treating source is “[a claimant’s] own physician or

psychologist who has provided [claimant] with medical treatment

or evaluation and who has or has had an ongoing treatment

relationship with [the claimant].”

(1999).

Although the Social Security regulations ordinarily require an

ALJ to give controlling weight to a treating physician’s opinion

regarding a claimant’s impairment, this mandate is not absolute.

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

supports the treating physician’s opinion and where that opinion

is not inconsistent with other evidence in the record. See

(d)(2) (1999); SSR 96-2p,

, at *1

(1996); Keating v . Secretary of Health and Human Servs.,

(1st Cir. 1988). Additionally, “[a] medical source

opinion that an individual is ‘disabled’ or ‘unable to work’ . .

-37- . is an opinion that is reserved to the Commissioner . . . .

[T]he adjudicator will not give any special significance to [such

an] opinion because of its source.” SSR 96-8p,

,

at *8 n.8; see also Arroyo v . Secretary of Health and Human

Servs.,

2 , 89 (1st Cir. 1991) (per curiam) (“[An ALJ

is] not required to accept the conclusions of claimant’s treating

physicians on the ultimate issue of disability.”). In short, the

ultimate issue of disability is a legal conclusion, not a medical

determination.

An ALJ is entitled to give evidentiary weight to medical

reports prepared by consulting and non-examining physicians. See

Gray v . Heckler,

(1st Cir. 1985); Rodriguez v .

Secretary of Health and Human Servs.,

(1st

Cir. 1981). Such reports, when based on objective medical

evidence, can constitute substantial evidence in support of an

ALJ’s decision. See Berrios Lopez v . Secretary of Health and

Human Servs.,

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

Menezes first argues that the ALJ ignored evidence from Dr.

-38- Morley regarding Menezes’s left ankle. However, since the ALJ

determined that Menezes’s left ankle injury did not meet the

duration requirement, I need not address this argument.

Menezes also claims that the ALJ failed to give appropriate

weight to Dr. Richard N . Warnock’s opinion as an examining

physician. D r . Warnock opined that Menezes was one hundred

percent disabled from November 1 , 1991 to June 1 7 , 1996. See R.

at 550. An ALJ, however, is not required to accept the

conclusions of a treating/examining physician on the ultimate

issue of disability. See Arroyo, 932 F.2d at 8 9 .

Moreover, the ALJ was entitled to reject Dr. Warnock’s

opinion because it was inconsistent with the opinions offered by

Menezes’s own treating physicians. See

(c)(2) (1999). For example, Dr. Bruce Cook, the

orthopedic surgeon who surgically removed Menezes’s L5-S1

herniated disc, reported on March 1 6 , 1992 that Menezes was “free

of all back and leg pain,” “has been doing very nicely,” and was

“enjoying full activities.” R. at 188. The ALJ’s decision not

-39- to credit Dr. Warnock’s opinion is proper in light of the

conflict between that opinion and the evidence from Menezes’s

treating physician, D r . Cook. Further, Dr. Warnock’s opinion was

based on a single examination of Menezes on June 1 7 , 1996, after

Menezes had injured his right ankle and reinjured his back. See

id. at 549. Dr. Warnock’s examination did not differentiate

between injuries sustained prior to the expiration of Menezes’s

insured status and injuries sustained after expiration. For all

of these reasons, I find that the ALJ was not obligated to credit

Dr. Warnock’s opinion.

I also find that the ALJ gave the appropriate weight to the

state physicians’ RFC assessment. Assigning significant weight

to the non-examining physicians’ report is particularly

appropriate in the present case because it appears that, at the

time the state assessed Menezes’s functional limitations, the

state’s doctors had before them all of Menezes’s medical records

then available. Moreover, the record contains no other RFC

assessment prepared by an acceptable medical source.

-40- Menezes argues that one of the state physicians, Dr. Nault,

based his RFC assessment on Menezes’s injury to his left first

metacarpal (thumb). I find that Menezes overstates the

significance of D r . Nault’s references to the thumb injury. Dr.

Nault found that Menezes suffered from certain upper extremity

and manipulative limitations. See R. at 7 6 , 7 8 . Based on the

entire RFC assessment, it is reasonable to conclude that Dr.

Nault’s reference to Menezes’s thumb only relates to his findings

regarding those particular exertional limitations. In other

words, the only reason D r . Nault found limitations in the upper

extremity was because of Menezes’s temporary thumb injury. It is

clear that the state physicians based their RFC determination on

all of the medical evidence on file and not solely on Menezes’s

thumb injury. See id. at 8 2 . In addition, the state physicians

concluded that none of the injuries that Menezes sustained prior

to December 3 1 , 1991 were expected to cause a disability for a

continuous period of twelve months. See id. at 8 1 , 8 2 .

Therefore, I find no error in this regard.

-41- E. Menezes’s Subjective Complaints of Pain

Finally, Menezes argues that the ALJ failed to give adequate

consideration to his subjective complaints of pain. For the

following reasons, I disagree.

The SSA regulations require that a claimant’s symptoms,

including complaints of pain, be considered when determining

whether a claimant is disabled.23 See

(a)

(1999). 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 that 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

23 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).

-42- [the claimant’s] symptoms so that [the ALJ] can determine how

[the claimant’s] symptoms limit [his or her] capacity for work.”

(c)(1) (1999). At this stage, the ALJ must

consider “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 alone.”

(c)(3).

Accordingly, the ALJ is directed to evaluate the 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 his pain; (5) treatment,

-43- other than medication, the claimant receives or has received for

relief of his pain; (6) any measures the claimant uses or has

used to relieve pain; and (7) other factors concerning the

claimant’s limitations and restrictions due to pain. See id.;

Avery v . Secretary of Health and Human Servs.,

9 , 29

(1st Cir. 1986). These factors are sometimes called the “Avery

factors.” In addition to considering these factors, the ALJ is

entitled to observe the claimant, evaluate his 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 consider whether these

complaints are consistent with the objective medical evidence and

other evidence in the record. See

(a). While a

claimant’s complaints of pain must be consistent with the medical

evidence to be credited, they need not be precisely corroborated

with such evidence. See Dupuis v . Secretary of Health and Human

-44- Servs.,

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

Menezes argues that in evaluating his subjective complaints

of pain, the ALJ specifically ignored the “internal fixation of

[Menezes’s] left finger, a positive MRI showing a large right-

sided disc herniation and positive EMG test showing

radiculopathy, that is pain radiating down [Menezes’s] right

leg.” Pl.’s Mot. (Doc. #6) at 7 (emphasis omitted).

The ALJ applied the Avery factors to conclude that Menezes

did not experience pain at a level that would impede his ability

to perform a full range of light work. See R. at 1 7 , 1 8 . For

example, the ALJ found no evidence that Menezes’s daily

activities during the period in question were severely limited.

See

at 1 7 . Based on evidence from Dr. Cook, the ALJ also

found that after surgery Menezes was enjoying full activities and

was planning to pursue additional training for work that was less

physically demanding than slate roofing.

at 1 7 , 188. The

ALJ considered the evidence from Dr. Johnson that Menezes delayed

surgery on his back because his pain waxed and waned and because

-45- he obtained a second medical opinion that back surgery was

unnecessary. See

at 1 7 , 184. The ALJ also noted that after

Menezes’s back surgery Dr. Cook observed that Menezes was doing

well and that “[h]e was free of all back and leg pain.”

at

1 7 , 188. Based on all of this evidence, reviewed pursuant to

the Avery factors, the ALJ concluded that Menezes’s subjective

complaints of pain were inconsistent with the objective medical

evidence and therefore not entirely credible. See

at 1 8 , 1 9 .

Menezes contends that the record is replete with evidence

that he suffered from pain due to his herniated disc and that the

ALJ did not consider this evidence when evaluating his pain. The

record supports Menezes’s claims of pain. See, e.g.,

at 1 4 4 ,

148, 182, 183, 185, 589. It is equally apparent that the ALJ

considered such evidence of pain. See id. at 16-18. However,

because Menezes’s back pain persisted for only a short period and

greatly subsided after his back surgery in January 1992, see id.

at 1 8 8 , the ALJ found that Menezes’s complaints of debilitating

pain lacked credibility. This finding is especially appropriate

-46- in light of the evidence from Menezes’s treating physician that

Menezes was free of all back and leg pain and enjoyed a full

range activities. See id. at 188. “It is the responsibility of

the [Commissioner] to determine issues of credibility and to draw

inferences from the record evidence.” Irlanda Ortiz,

. I conclude that the ALJ’s determination that Menezes’s

complaints of pain were inconsistent with the medical evidence is

supported by substantial evidence and thus entitled to deference.

See Frustaglia,

.

IV. CONCLUSION

Because I have determined that the ALJ’s conclusion that

Menezes was “not disabled” during the period of his eligibility

for disability benefits is supported by substantial evidence, I

affirm the Commissioner’s decision. Accordingly, Menezes’s

motion to reverse and remand (Doc. #6) is denied, and defendant’s

motion for an order affirming Commissioner (Doc. #8) is granted.

The clerk shall enter judgment accordingly.

-47- SO ORDERED.

Paul Barbadoro Chief Judge May 4 , 2000

cc: Edward F. Wallace, Esq. David L. Broderick, Esq.

-48-