Svare v. SSA CV-02-370-B 11/12/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kevin Svare

v. Civil N o . 02-370-B Opinion N o .

Jo Anne B . Barnhart, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Kevin Svare filed for Supplemental Security Income benefits

(“SSI”) on January 1 9 , 2000. His application was denied

initially and upon reconsideration. He then requested a hearing

before an administrative law judge (“ALJ”) which was held on

November 1 4 , 2001. After presiding over the hearing at which

Svare was represented by a non-attorney, a medical expert, and a

vocational expert, the ALJ determined that Svare was not entitled

to SSI because he could return to his past relevant work and was

therefore not disabled. The Appeals Council then denied Svare’s

request for review on June 2 7 , 2002.

Pursuant to

(g) (2000), Svare seeks judicial

review of the Social Security Commissioner’s (“Commissioner”) decision denying his 2000 application. Svare argues that the ALJ

erred at the fourth step in the Social Security Administration

(“SSA”) evaluation process by determining that his Residual

Functional Capacity (“RFC”) allowed him to return to his prior

work as an apartment maintenance worker. In particular, Svare

complains that the ALJ improperly failed to credit a consulting

psychologist’s conclusion that Svare suffered from psychological

impairments that left him unable to handle the stress and

pressure of an entry level job. Svare also complains that the

ALJ failed to support his conclusion that Svare’s testimony

concerning his disability was not entirely credible. (Pet’r Mot.

for Order Reversing the Comm’r.) For these reasons Svare moves

to reverse the ALJ’s decision, while the Commissioner, in turn,

moves to affirm. (Def. Mot. for Order Aff. Comm’r.)

I. BACKGROUND1

A. Education and Work History

Svare was born May 1 6 , 1966, and was 35 at the time of the

administrative hearing. He graduated from high school and

1 All background facts come from the parties Joint Statement of Material Facts.

-2- completed two years of college. Svare has worked as a laborer,

apartment maintenance worker, delivery driver, and a

packing/maintenance worker.

As an apartment maintenance worker, Svare worked eight-hour

days from July 1996 to May 1997. He was required to maintain and

perform repairs on thirteen apartment buildings in a property

management firm. He indicated that he performed small jobs

alone, but had assistance with larger jobs. Svare never had to

lift and/or carry objects weighing more than thirty pounds during

his employment.

B. Medical History

Svare has limited use of his right middle finger and suffers

from varying levels of anxiety, panic attacks, and depression.

He has been seen by several doctors for his anxiety, panic

attacks, and depression. Svare was initially evaluated at

Lakeland Mental Health Center in January 1990, where he was

diagnosed with a somaform disorder, an anxiety disorder, and a

personality disorder. In May of 1992, he was also diagnosed with

a narcissistic personality. Starting on January 1 2 , 2000,

however, Svare was given a psychiatric assessment by Christopher

Thanel, M.D. D r . Thanel’s impression was that Svare had a

-3- history of longstanding anxiety, some depressive features, and

problems concentrating. The initial diagnosis was panic disorder

and depressive disorder NOS (not otherwise specified). (Tr.

341.) D r . Thanel proposed to first “maximize the benefit of

antidepressant treatment,” providing improved focus and

concentration, enabling Svare to control his anxiety and achieve

regular sleep patterns. (Tr. 341-42.) Svare was prescribed

Trazodone and had his dosage of Effexor increased.2

On March 1 5 , 2000, Svare was seen by Dan Nolte, RNC, at Dr.

Thanel’s office. Svare complained to Nolte that Effexor provided

little improvement. (Tr. 292.) Svare was prescribed a

decreasing dosage of Effexor, eventually discontinuing usage, and

was prescribed Wellbutrin instead.3 Nolte noted that Svare’s

anxiety continued to result in panic attacks, but that such

anxiety appeared to be secondary to situational stressors.

Nolte found that Svare’s sleeping had improved, but that his

motivation and energy level were low during the day. Svare’s

2 Effexor and Trazodone are used to treat depression. Physicians’ Desk Reference (PDR) 3392 (57th ed. 2003); Stedman’s Medical Dictionary (Stedman’s) 1626 (25th ed. 1990). 3 Wellbutrin is an antidepressant. PDR, supra note 2 , at 1678.

-4- mood was euthymic4, his insight was fair, and he denied any

suicidal ideation, intent, or plan. Svare still complained of a

rapid thought process that became worse in the evenings.

Svare returned to D r . Thanel’s office on April 4 , 2000,

where he was seen by Nolte and D r . Nancy Torson. (Tr. 291.)

Svare complained that his marital difficulties were causing

increased anxiety and panic. Id. Svare and his wife, however,

noted that Svare’s irritability had lessened by approximately

50%. Id. On examination, Svare was found to be less volatile,

less depressed, and suffering from a low level anxiety. It was

noted that the previous night an emergency room physician had

prescribed Svare .25 mg Xanax, to be taken as necessary, for

anxiety attacks.5 Nolte then increased Svare’s Wellbutrin and

Trazodone dosage, and instructed Svare to use his remaining Xanax

for anxiety and panic attacks.

At the next session with Nolte and D r . Thanel on April 1 2 ,

2000, Svare complained that he was still experiencing elevated

4 Euthymia refers to mental peace or tranquility, not being manic or depressed. Stedman’s, supra note 2 , at 545. 5 Xanax is for the management o f , or short term relief from, anxiety symptoms. PDR, supra note 2 , at 2794.

-5- anxiety and occasional panic attacks. He claimed, however that

his irritability had vastly improved. (Tr. 290.) Svare’s major

concern at that point was that he did not want to attend

employment and job search classes through the county because it

made him highly anxious and panicky. Id. Nolte noted that Svare

had responded well to Wellbutrin for his irritability, but was

still experiencing elevated anxiety which caused panic attacks.

Id. Svare was then taken off Trazodone and Xanax, and prescribed

Remeron and Klonopin instead.6

Svare was treated for a panic attack on April 1 3 , 2000, at

S t . Mary’s Regional Health Center. (Tr. 167.) He was given an

intramuscular injection of Ativan7 and his condition improved.

On April 2 6 , 2000, Svare was seen by D r . Thanel and Nolte.

Svare reported that he was experiencing less anxiety during the

day, was generally not having panic attacks, and was less

depressed. Nolte noted that Svare was sleeping better, his

energy and motivation were improved, he was more in control, and

6 Remeron is used to treat depressive disorders. PDR, supra note 2 , at 2401. Klonopin is used to treat panic disorders. Id. at 2905. 7 Ativan is used to help control anxiety disorders. Id. at 856.

-6- he had a clear focus with respect to his actions. (Tr. 288.)

Svare underwent Neuropsychological Testing with Patrick J.

Konewko, Psy.D., on May 2 5 , 2000, after being referred by his new

primary care physician, D r . Arnett Gaff. (Tr. 207-09, 254.) Dr.

Konewko found that Svare was responding to Wellbutrin and that

Remeron had helped improve his sleep. (Tr. 208.) Svare was

alert and attentive, a little distressed, and concerned with his

attentional and anger management problems. Id. Svare told D r .

Konewko that he wanted to make changes in his life because of his

longstanding problem in keeping jobs. Id. D r . Konewko

chronicled Svare’s history of significant substance abuse

(marijuana) for over 10 years, alcoholism, and probable learning

disability. The doctor concluded that it was difficult to

determine whether Svare’s attention problems were due to a bona

fide attention deficit disorder. Id. The attention problems

were nonspecific symptoms and could be associated with

generalized anxiety as well as the consequence of prior

significant substance abuse. (Tr. 208-09.) D r . Konewko

questioned whether Svare’s psychiatric symptoms were being

adequately controlled by his current medication regime because

Svare reported that he had “trouble stopping all of the thoughts

-7- I have in my mind.” Id. The doctor noted that Svare’s symptoms

needed to be stabilized before a neuropsychologic evaluation

could be helpful, and that he would defer a formal neuro-

psychological evaluation until he had spoken with D r . Thanel.

Id.

Svare returned to seek treatment from Nolte and D r . Thanel

on November 3 0 , 2000. Nolte noted that Svare had not been seen

since May 31 and he had not been taking his prescribed medication

for the last several months. (Tr. 287.) Svare’s reason for not

taking his medication was that he had been working 20 hours per

week for a company that made picture frames and could not see

Nolte or D r . Thanel for a follow up visit. Svare reported that

his condition worsened once he stopped taking his medication, and

that the feelings he currently experienced had previously been

relieved by his medication. Id. Svare complained of poor sleep,

very low energy and motivation levels, decreased appetite, and

increased stress. He also complained of increased irritability

focused on his parents and wife, and a fair degree of anxiety and

panic. Id. As treatment, Svare was again prescribed Wellbutrin

and Remeron and asked to attend a follow-up visit in four to six

weeks. Id.

-8- On March 5 , 2001, Svare was driven by his parents to a

consultative examination with a licensed psychologist, F. Dale

Campbell, Ed.S. (Tr. 210-15.) Svare explained that when he had

panic attacks, he would get hot and sweaty, would shake, cry, and

would occasionally have shortness of breath and a tightening of

his chest. Id. He noted that his depressive symptoms were

constant, but that his panic attacks depended upon the situation,

“sometimes occurring every day and sometimes gone for two or

three months.” Id. Svare also reported that he had a hard time

paying attention to any given task, would lose his concentration,

was easily distracted, and that this caused him a lot of anxiety.

Id. He told D r . Campbell that he thought he was born with an

anxiety and attention deficit condition, and had been diagnosed

with depression in the eighth grade.

When questioned about his interests, Svare indicated that he

enjoyed spending time on his computer, walking, and having time

with his children. (Tr. 211.) Svare would spend two to three

hours per day on a computer he built “from the bottom up.” Id.

He would also spend Tuesday afternoons and evenings with his two

sons, as well as alternate weekends, and when he could visit his

parents, his sons would come over because they lived next door.

-9- When Svare spent time with his sons, he explained that they would

play games, build things with K-NEX, read, color together, and

work on puzzles. He noted he would prepare better meals when his

children were there and would sometimes take them to church.

Svare also said he walked a quarter mile a day during good

weather. Id.

In describing his general routine, Svare said he typically

got up between 9:00 and 10:00 a.m. and would then take his

medication. If his children were not with him, he would rarely

eat breakfast, but would just make coffee and then sit for a

while. Id. He would then mope around, listen to music, or get

on his computer before taking a nap in the afternoon. His

parents would often come over in the afternoon and make him get

cleaned u p , shower, and shave since Svare would normally not do

such things unless he was told. If Svare felt up to i t , his

parents would then take him out for coffee or shopping. Svare

noted he was not good at shopping and hated i t , but he could do

it by himself. Id. Svare had no weekly schedule other than the

visits with his sons. (Tr. 212.)

In regard to household chores, Svare was able to sweep, mop,

and do dishes, but his landlord/manager would do the household

-10- repairs and yard work. Svare would wash his clothes at his

mother’s house with her assistance and go grocery shopping with

her help. He indicated that taking care of his sons was the

weekly activity that took the most time, persistence, and effort,

but because they were his sons, he felt his symptoms interfered

the least with this part of his life. Svare believed, however,

that energy and disinterest problems affected everything he did.

Id.

Dr. Campbell noted that Svare lived in an apartment by

himself, that the only structure in his life was the schedule

with his sons, and that he appeared to have little trouble

adapting to that. When asked how he got along with supervisors,

bosses, or social workers, Svare replied that it depended on

their attitude. He also stated that he had many friends and that

while his mother upset him whenever she criticized him, they got

along well.

On mental status exam, D r . Campbell noted that Svare related

adequately, though without much energy, his psychomotor activity,

behavior, and eye contact were all average, and his speech and

language were clear. (Tr. 213.) When asked about his ability to

concentrate while working on his computer, Svare indicated that

-11- he could stay with simple and easy things and his memory was

fair, but he had a hard time concentrating when he was learning

“difficult stuff.” Id. He stated his only joy in life came from

his sons, and that he experienced a lot of hopelessness and

suicidal thinking. Id.

Dr. Campbell noted that being around groups of people made

Svare uncomfortable. (Tr. 213-14.) His anxiety symptoms were

always present, and he had experienced three or four anxiety

attacks in the past four months, with the attacks occurring in

unusual settings, including his home. (Tr. 214.) D r . Campbell

also noted that the panic attacks Svare described did not appear

to be the kind of unexpected event one typically hears described

as a panic attack as the attacks involved having a discussion

with his sons about their mother and then becoming anxious that

they might tell her what he said. Id. After reviewing the

mental health professional’s descriptions, D r . Campbell noted

there were many references to anxiety and panic, however, they

generally seemed to be tied to stressful situations. Id.

Dr. Campbell diagnosed Svare with social phobia, depressive

disorder NOS, and dependent personality disorder with some

histrionic traits. (Tr. 215.) He concluded that Svare had

-12- adequate mental capacity to understand, remember and follow

instructions, however, there would be many instances when his

self-concern and anxiety would interfere with his ability to

sustain his attention and concentration and would likely

interfere with persistence he brought to work-like tasks. Id.

Dr. Campbell felt Svare should respond to brief and superficial

contact with co-workers, but it was likely there would be

instances when he would respond inappropriately or withdraw. Id.

In conducting the examination however, D r . Campbell noted that

Svare seemed “poorly motivated.” (Tr. 214.) He also noted that

Svare’s “ability to tolerate the stress and pressure typically

found in an entry-level workplace would be marginal at best.”

(Tr. 215.)

On March 2 2 , 2001, Svare was again seen by D r . Thanel. (Tr.

332.) Svare reported being depressed and somewhat socially

withdrawn with decreasing energy and motivation. Id. At that

point Svare was only taking Clonazepam when necessary for severe

anxiety, which he thought was about once a week, and D r . Thanel

advised Svare begin taking Celexa.8

8 Clonazepam is another name for Klonopin and Celexa is used to treat depression. PDR, supra note 2 , at 2905, 1344.

-13- Svare was seen by Howard Winkler, M.D. on May 2 9 , 2001. D r .

Winkler found that Svare appeared to be depressed, was on the

verge of tears, had judgement and insight that was somewhat

impaired, and had marked anxiety. (Tr. 285.) Svare also

complained that he was unable to get Celexa with his Medical

Assistance card. D r . Winkler gave Svare 28 samples of Celexa and

prescribed Klonopin.

On September 1 4 , 2001, Svare underwent a psychological

evaluation with Kathleen Schara, Psy.D., a licensed psychologist.

(Tr. 294-95.) This evaluation was performed upon referral from

the Guardian Ad Litem involved in Svare’s custody dispute over

his two sons. (Tr. 294.) D r . Schara noted that Svare was asked

to complete a test for the evaluation and failed to do s o . She

observed that Svare appeared disheveled, was inappropriately

dressed, and had poor hygiene. She found that Svare’s thought

content was clear and goal-oriented, his memory was intact for

both recent and remote events, his intelligence was within the

low average to average range based on vocabulary and

presentation, his mood appeared euthymic, he expressed a range of

feelings, and he had no suicidal ideation. Id. Svare also

completed a symptom checklist which showed a noticeable lack of

-14- depressive symptomology. (Tr. 295.) The symptoms he did

describe were difficulty in paying attention, racing thoughts,

feeling his actions were controlled against his will, some

cravings, and having difficulty expressing himself or knowing

what he was feeling, but only rarely. Id.

Dr. Schara noted that his evaluation was incomplete because

of his failure to cooperate with the psychological testing, and

that the results were only impressionistic. She felt, however,

that Svare suffered from depressive disorder and panic disorder.

She also felt Svare had a personality disorder NOS with

dependent, schizoid, and self-defeating features, and suffered

from severe stressors (divorce process, custody dispute, chronic

unemployment). D r . Schara reported that while Svare presented

himself as emotionally well for the evaluation, this was

inconsistent with his recent treatment record, suggesting that he

may have attempted to “fake good” by minimizing his problems.

(Tr. 296.)

Svare has also been treated for his various physical

conditions. On February 1 7 , 1999, Svare sought treatment at S t .

Mary’s for chest pain. (Tr. 171.) He was diagnosed with

gastritis and possible reflux esophagitis or panic attacks. On

-15- November 1 0 , 1999, Svare was seen by Aren Graff, M.D., for low

back pain. (Tr. 260.) D r . Graff prescribed Naprosyn and

Flexeril, and recommended Svare attend physical therapy.9

Svare underwent physical therapy for his shoulder between

April 3 , 2001 and April 1 9 , 2001. (Tr. 218-25.) At his last

session, Kari Jo Guttormson, MPT, noted that though Svare had

some pain with general movements of his knee, his left shoulder

range of motion was within functional limits and was almost pain

free. (Tr. 218.)

Svare’s records were also evaluated by non-examining

physicians. On June 2 9 , 2000, Cliff Phibbs, M.D., completed a

Physical RFC assessment. (Tr. 180-87.) D r . Phibbs found that

Svare could frequently lift twenty-five pounds, occasionally lift

fifty pounds, and sit, stand and walk for six hours out of an

eight hour day. (Tr. 181.) The doctor also concluded that Svare

had no limitation to his ability to push or pull, but had a

limited ability to finger with his right hand and was to avoid

extreme heat and cold. (Tr. 1 8 1 , 183, 184.)

9 Flexeril is used as an adjunct to rest and physical therapy for relief of muscle spasms and Naprosyn is used to treat arthritis. PDR, supra note 2 , at 1897, 2891.

-16- Two non-examining psychologists also reviewed Svare’s

records. George Korgeski, Ph.D., and Thomas Kuhlman, Ph.D.,

completed Psychiatric Review techniques on Svare dated September

2 1 , 2000 and April 2 4 , 2001, respectively. (Tr. 188-201, 235-

48.) Both doctors determined that Svare had moderate difficulty

maintaining concentration. (Tr. 1 9 8 , 245.) D r . Korgeski also

determined Svare had mild restrictions to his daily activities

and moderate difficulty maintaining social functioning (Tr. 1 9 8 ) ,

while D r . Kuhlman found Svare had moderate restrictions of his

daily activities and mild to moderate difficulty maintaining

social functioning (Tr. 2 4 5 ) . D r . Korgeski noted that Svare had

marked limitations in his ability to understand, remember, and

carry out detailed instructions, and moderate limitations in his

ability to complete a normal work week, interact appropriately

with the public, accept instructions and criticism from a

supervisor, and respond to changes in the work setting. (Tr.

230-31.) D r . Korgeski also determined, however, that Svare

retained the ability to concentrate o n , understand, and remember

routine repetitive tasks and three to four-step simple

instructions. (Tr. 234.)

-17- Dr. Kuhlman found that Svare had moderate limitations to his

ability to understand, remember, and carry out detailed

instructions, maintain attention and concentration, complete a

normal work week, interact appropriately with the public and

respond to changes in the work setting. (Tr. 226-27.) He

indicated that it was unclear if Svare’s anxiety and depression

had precluded all work from November of 2000 until April of 2001,

but that it was unlikely because at the psychological examination

in February of 2001, Svare reported that his sleep and other

aspects of his mental health condition were improved by

medications which he had resumed taking. (Tr. 220.) D r . Kuhlman

concluded that by November 2001, if not before, Svare would be

able to learn and remember three to four step instructions,

sustain the mental effort for routine and repetitive tasks, and

have brief and frequent contact with co-workers, supervisors, and

the public. He also noted that Svare, at that time, would not

need supervision and would be able to adapt to routine changes

and stresses associated with routine, repetitive task work. (Tr.

228.)

C. Svare’s Testimony

At the November 1 4 , 2001 hearing, Svare testified that he

-18- had recently worked several jobs. He stated he had worked for a

fencing company on a project that lasted three days, worked as a

driver for an inner tube company for a couple of weeks until the

business closed, and worked at a country music festival for a day

until he experienced heat exhaustion. (Tr. 43-45.) He also

noted that the longest he had worked at any job was six months.

He claimed that his depression and panic attacks prevented him

from working, especially when he was attempting to concentrate.

For treatment, Svare testified that he was taking Klonopin and

Wellbutrin, and was seeing a psychiatrist twice a month. (Tr.

61-63.) As far as his physical limitations, Svare stated he had

limited range of motion in his left shoulder and that he could

not lift any amount of weight. Svare also noted that he had been

living with his parents since June or July, but prior to that had

been living by himself in an apartment. (Tr. 52.) While living

alone, Svare’s family would help him pay bills and remind him of

dates and appointments.

D. Testimony of Vocational Expert

James Berglie testified before the ALJ as a vocational

expert. The ALJ inquired of M r . Berglie if a man of Svare’s age,

education, and work experience, who was able to lift fifty pounds

-19- occasionally and twenty-five pounds frequently, but had limited

fine manipulation with his right hand, who was to avoid extremes

in temperature, was restricted to simple routine three and four-

step instructions, and could have only brief and superficial

contact with co-workers and the public, would be able to return

to his past relevant work. Id. M r . Berglie responded that a

person such as Svare would not be able to perform all of his past

laborer jobs because of the exposure to extremes in temperature,

but that he could perform assembly positions, maintenance work,

and some laborer positions. The ALJ also asked if Svare could

return to his past jobs if he was unable to keep a schedule set

by others. M r . Berglie replied that under those circumstances he

could not perform either his past work or other jobs that existed

in the national economy.

Svare’s representative then asked M r . Berglie if the ability

to handle stress was vocationally relevant. M r . Berglie

responded that “if there’s, if it’s poor or no ability to handle

stress that would impact essentially any kind of work. There’s

no job without stress. There certainly are ones with lesser

stress. But again at that level it could potentially preclude

work.” (Tr. 69.)

-20- E. The ALJ’s Decision

The ALJ followed the five step sequential evaluation process

established by the SSA in rendering his decision of February 2 2 ,

2002. First, the ALJ found that Svare had not performed

substantial gainful activity since his alleged onset date of

January 1 , 1998. The ALJ then found that Svare’s anxiety

disorder, depressive disorder, personality disorder, and right

finger condition constituted severe impairments. Third, the ALJ

found that Svare’s impairments did not meet or equal the criteria

of any listed impairment described in 20 C.F.R., Part 4 0 4 ,

Subpart P, App. 1 . At the fourth step however, the ALJ

determined that Svare’s RFC allowed him to perform a wide range

of medium work that included the type of work he had performed in

the past.

The ALJ determined that Svare had fine motor limitations in

his right hand, was to avoid extreme temperatures, was only to

engage in brief and superficial contact with co-workers or the

general public, and was limited to following simple instructions

and engage in simple, repetitive three or four step tasks. (Tr.

3 1 , 33.) The ALJ also found that Svare was capable of lifting

and/or carrying fifty pounds on an occasional basis and could

-21- lift and/or carry twenty five pounds on an occasional basis.

Based upon this RFC, the ALJ determined Svare could return to his

past relevant work as an apartment maintenance worker. Id.

The ALJ also considered and rejected the opinion of D r .

Campbell that Svare’s ability to tolerate the “stress and

pressure typically found in an entry-level workplace would be

‘marginal’ at best.” (Tr. 30.) It was determined that the

record as a whole did not support this statement and therefore

the ALJ assigned very little weight to i t . The ALJ specifically

found the record to reflect that Svare had “good parenting

skills” and was “able to relate to his sons in a positive

manner.” (Tr. 31.) Svare was able to cook for his sons, play

with them, and take them to church. Svare was also able to “work

on the computer for hours at a time”, he got along with his

mother, his children, and “interact[ed] appropriately with his

treating counselors, social workers, and doctors.” Id. It was

the culmination of these factors that led the ALJ to find that

Svare’s impairments did not cause serious limitations in his

ability to tolerate stress commonly found in the typical work

environment. Id.

-22- The ALJ additionally found Svare’s testimony regarding the

alleged severity of his impairments to not be entirely credible.

The ALJ based this decision on Svare’s poor work history, his

documented lack of motivation to work, and the inconsistencies

and incongruities of Svare’s claims with the opinions of the

psychologists and treating doctors.

II. STANDARD OF REVIEW10

Under the Social Security Act, the factual findings of the

ALJ are conclusive if supported by “substantial evidence.”

(g); see also Ortiz v . Sec’y of Health and Human

Servs.,

(1st Cir. 1991). 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.” Rodriguez v . Sec’y of Health and Human

Servs.,

1 8 , 222 (1st Cir. 1981). The ALJ’s decision is

10 I apply First Circuit law in resolving this action even though the plaintiff filed his application for benefits in Minnesota which is within the Eighth Circuit. See Towenson by Mickeal v v . Apfel,

(D. Kan. 1998)(holding that “final decisions of the Commissioner are reviewed under the law of the circuit in which the district court conducting the review is located.”). -23- therefore supported by substantial evidence i f , given all the

evidence, it is reasonable. It is also the function of the ALJ,

and not the courts, to determine issues of credibility, to draw

inferences from the record evidence, and to resolve conflicts in

the evidence. Ortiz,

.

The ALJ’s findings of fact are not conclusive, however,

“when derived by ignoring evidence, misapplying the law, or

judging matters entrusted to experts.” Nguyen v . Chater,

1 , 35 (1st Cir. 1999). If the Commissioner, through the

ALJ, has misapplied the law or failed to provide a fair hearing,

deference to the Commissioner’s decision is not appropriate, and

remand for further development of the record may be necessary.

See Seavey v . Barnhart,

, 11 (1st Cir. 2001). I apply

these standards to the arguments Svare raises in his appeal.

III. ANALYSIS

Svare argues that the ALJ’s ruling that he was capable of

returning to his past relevant work was not supported by

substantial evidence on the record. He additionally argues that

the ALJ failed as a matter of law to adequately explain his

decision regarding Svare’s credibility. I disagree with Svare on

-24- both points.

A. The ALJ’s Decision is Amply Supported by the Record

At the administrative hearing, the ALJ questioned the

vocational expert on the type of work that a person with Svare’s

abilities, experience, and limitations could perform. The

vocational expert excluded some laborer positions because of

exposure to temperature extremes, but maintained that a person in

Svare’s position could return to work as an apartment maintenance

worker, an assembly line worker, or even for some laborer

positions.

The ALJ listened to the vocational expert’s view of how a

person with little or no ability to cope with stress might not

function in any job. In order for a vocational expert’s

testimony to be relevant, however, it must be based upon the

established medical evidence. Arocho v . Sec’y of Health and

Human Servs.,

(1st Cir. 1982). Svare’s limited

ability to handle stress, while mentioned by D r . Campbell, was

not consistent with the evidence on the record as a whole, and

the ALJ exercised his discretion in not crediting it as part of

the established medical record. See

(c)(2)

(If any evidence, including medical opinions, are inconsistent

-25- with the overall record, then the inconsistent evidence will not

be controlling, but will be weighed by the A L J . ) . The ALJ

specifically found that Svare’s ability to interact with his

children by cooking for them, playing with them, and taking them

to church, undercut the notion that Svare could not handle the

typical stress of a job. The ALJ also noted that Svare’s ability

to spend several hours a day on a computer which he built

himself, and his ability to interact appropriately with his

mother, his children, his doctor, counselors, and social workers,

all indicate that his impairments do not seriously limit his

ability to tolerate the stress commonly found in a typical work

environment. Therefore, the ALJ acted within his discretion by

not giving controlling weight to the vocational expert’s

testimony, based on a statement from D r . Campbell, regarding a

person with little or no ability to handle stress.

Additionally, the ALJ was within his discretion to evaluate

Dr. Campbell’s opinion regarding Svare’s ability to handle

stress, and assign the appropriate weight. The ALJ assigned D r .

Campbell’s opinion little weight because it did not fit with the

established facts on the record as a whole. Svare’s ability to

hold down a job for over six months while suffering from his

-26- ailments, his ability to care for his children, and the other

factors mentioned above support the ALJ’s decision to give D r .

Campbell’s opinion little weight. Even if I disagreed with the

ALJ’s determination of Svare’s work capability, which I do not,

the ALJ’s decision is reasonable given the record as a whole, and

I must uphold it as being supported by substantial evidence.

B. The ALJ’s Credibility Determination Was Appropriate

The ALJ correctly established why he gave little weight to

Svare’s testimony. The ALJ stated that in addressing the

credibility of Svare’s allegations, it considered the following

factors: objective medical evidence; the nature, location, onset,

duration, frequency, radiation, and intensity of any pain;

precipitating and aggravating factors; type, dosage,

effectiveness, and adverse side-effects of any pain medication;

treatment, other than medication for relied of pain; functional

restrictions; Svare’s daily activities; any measure Svare uses or

has used to relieve pain or other symptoms; and Svare’s prior

work record. (Tr. 29.)

In finding Svare’s testimony less than credible, the ALJ

specifically cites Svare’s poor work history and his documented

lack of motivation to work. In this regard, the ALJ notes D r .

-27- Campbell’s description of Svare as “poorly motivated” and Nolte’s

remarks that Svare did not want to attend an employment class as

examples of his lack of motivation to work. The ALJ also pointed

to the inconsistency of Svare’s claim to be unable to function

because of stress with the reality of his coping well enough to

hold a job for over six months, care for his children by cooking

for them, playing with them, and taking them to church, building

a computer, working on the computer for hours at a time,

completing chores around the house, and interacting appropriately

with his mother, doctors, counselors, and social workers. (Tr.

30-31.) It also notes that, despite being diagnosed with anxiety

and personality disorders back in 1990 and 1992, Svare was able

to hold a job as an apartment maintenance worker for over six

months. Other than the documented deterioration when Svare

stopped taking his medication, the record shows no significant

deterioration in Svare’s mental disorders since that time to

preclude his ability to work in his past relevant occupation.

Given the record as a whole, I cannot find the ALJ’s

determination on Svare’s credibility as unreasonable. Likewise,

it is for the ALJ, not the court, to determine credibility.

Ortiz,

. Because I find the ALJ’s credibility

-28- determination reasonable and explained adequately, I must uphold

it.

CONCLUSION

The ALJ was reasonable and explicit in determining that

Svare was capable of returning to his past relevant work and that

Svare was not a credible witness. This decision was supported by

the record as a whole, and the ALJ did not misapply the law,

ignore evidence, or completely disregard the testimony of

experts. For these reasons I deny Svare’s motion for an order

reversing the decision of the Commissioner (Doc. N o . 10) and

grant the Commissioner’s motion for an order affirming the

decision of the Commissioner (Doc. N o . 1 2 ) .

SO ORDERED.

Paul Barbadoro Chief Judge

November 1 2 , 2003

cc: T . David Plourde, Esq. D. Lance Tillinghast, Esq.

-29-