Valley v. SSA CV-02-338-M 09/30/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Crystal Valiev, Claimant

v. Civil No. 02-338-M Opinion No.

Jo Anne B. Barnhart, Respondent

O R D E R

Pursuant to

(g), claimant. Crystal Valley,

moves to reverse the Commissioner's decision denying her

application for Supplemental Security Income payments under Title

XVI of the Social Security Act,

(the A c t ) . The

Commissioner objects and moves for an order affirming her

decision.

Factual Background

I. Procedural History.

In February of 2000, claimant filed an application for

Supplemental Security Income payments under Title XVI of the Act,

alleging that on or before January 24, 1998, she became disabled

due to fibromyalgia, depression, anxiety, and attention deficit disorder. See Transcript at 95. The Social Security

Administration denied her application.

On October 9, 2001, claimant and her attorney appeared

before an Administrative Law Judge (ALJ) who considered her claim

de novo. The ALJ issued his order on November 30, 2001,

concluding that, although subject to some restrictions, claimant

was capable of performing sedentary work and was not, therefore,

"disabled" within the meaning of the Act. On May 17, 2002, the

Appeals Council denied claimant's reguest for review, thereby

rendering the ALJ's decision the final decision of the

Commissioner.

In response, claimant filed this timely action, asserting

that the ALJ's decision was not supported by substantial evidence

and seeking a judicial determination that she is disabled within

the meaning of the Act. She then filed a "Motion for Order

Reversing the Decision of the Commissioner" (document no. 9).

The Commissioner objected and filed a "Motion for Order Affirming

the Decision of the Commissioner" (document no. 11). Those

motions are pending.

2 II. Stipulated Facts.

Pursuant to Local Rule 9.1(d), the parties have submitted a

comprehensive statement of stipulated facts which, because it is

part of the court's record (document no. 12), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. Properly Supported Factual Findings by the ALJ _____ are Entitled to Deference.

Pursuant to

(g), the court is empowered "to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing." Factual findings of the Commissioner are

conclusive if supported by substantial evidence. See

(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991) .1 Moreover,

1 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLR B ,

(1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding

3 provided the ALJ's findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the adverse position.

See Tsarelka v. Secretary of Health & Human Services,

(1st Cir. 1988) ("[W]e must uphold the [Commissioner's]

conclusion, even if the record arguably could justify a different

conclusion, so long as it is supported by substantial

evidence."). See also Gwathnev v. Chater,

, 1045

(8th Cir. 1997) (The court "must consider both evidence that

supports and evidence that detracts from the [Commissioner's]

decision, but [the court] may not reverse merely because

substantial evidence exists for the opposite decision.");

Andrews v. Shalala,

(9th Cir. 1995) (The

court "must uphold the ALJ's decision where the evidence is

susceptible to more than one rational interpretation.").

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

of Health & Human Services,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(1st Cir. 1982)). It

from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n.,

(1966).

4 is "the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts." Irlanda Ortiz,

(citation omitted). Accordingly, the court will give deference

to the ALJ's credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v. Secretary of Health & Human Services,

(1st Cir. 1987) (citing Da Rosa v. Secretary of Health &

Human Services,

(1st Cir. 1986)).

II. The Parties' Respective Burdens.

An individual seeking Supplemental Security Income Benefits

is disabled under the Act if he or she is "unable 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 twelve months." 42

U.S.C. § 1382c(a)(3)(A). The Act places a heavy initial burden

on the claimant to establish the existence of a disabling

impairment. See Bowen v. Yuckert,

(1987);

5 Santiago v. Secretary of Health & Human Services,

(1st Cir. 1991). To satisfy that burden, the claimant 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 & Human Services,

(1st Cir. 1982)). Nevertheless, the claimant is not

reguired to establish a doubt-free claim. The initial burden is

satisfied by the usual civil standard: a "preponderance of the

evidence." See Paone v. Schweiker,

(D.

M a s s . 1982).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant's subjective assertions of pain

and disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant's educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote,

. Provided the claimant has shown an

inability to perform her previous work, the burden shifts to the

Commissioner to show that there are other jobs in the national

6 economy that she can perform. See Vazquez v. Secretary of Health

& Human Services,

, 2 (1st Cir. 1982). If the

Commissioner shows the existence of other jobs that the claimant

can perform, then the overall burden to demonstrate disability

remains with the claimant. See Hernandez v. Weinberger,

(1st Cir. 1974); Benko v. Schweiker,

(D.N.H. 1982) .

When determining whether a claimant is disabled, the ALJ is

required to make the following five inquiries:

(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 the claimant from performing past relevant work; and

(5) whether the impairment prevents the claimant from doing any other work.

. Ultimately, a claimant is disabled only if

her:

7 physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.

42 U.S.C. § 1382c (a) (3) (B) .

With those principles in mind, the court reviews claimant's

motion to reverse and the Commissioner's motion to affirm the

ALJ's determination that claimant is not disabled.

Discussion

I. Background - The ALJ's Findings.

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

step seguential evaluation process described in

. Accordingly, he first determined that claimant had not

been engaged in substantial gainful employment since January 24,

1998 (her alleged onset of disability). Next, the ALJ concluded

that the medical evidence of record indicates that claimant

suffers from fibromyalgia - a condition which the ALJ found to be "severe," as that term is used in the Act and pertinent federal

regulations. He also noted that claimant has been diagnosed with

depression and anxiety, but concluded that neither impairment was

"severe."

Next, the ALJ assessed claimant's residual functional

capacity ("RFC") and concluded that, notwithstanding the

limitations caused by her fibromyalgia, she retained the ability

to perform the exertional demands of sedentary work and that she

did not suffer from any significant non-exertional limitations

which might limit the range of work she can perform. Finally,

the ALJ concluded that while claimant lacked the RFC to return to

her former employment (which reguired her to lift more than ten

pounds and stand for prolonged periods), she was capable of

performing substantial gainful work which exists in the national

economy.

II. Claimant's Assertions of Error.

In her motion seeking an order reversing the decision of the

Commissioner, claimant says the ALJ erred in concluding that she

was not disabled by: (1) failing to properly weigh her subjective complaints of pain, thereby erring in his assessment of

claimant's credibility (and, presumably, his calculation of

claimant's RFC); (2) finding that she did not have a "severe"

mental impairment; and (3) relying exclusively upon the Medical-

Vocational Guidelines, 20 C.F.R. p t . 404, subpt. P, A p p . 2 (also

known as the "Grid"), without the benefit of testimony from a

vocational expert.

A. The ALJ's Credibility Determination ___________and RFC Calculation.

When determining a claimant's RFC, the ALJ must review the

medical evidence regarding the claimant's physical limitations as

well as her own description of those physical limitations,

including her subjective complaints of pain. See Manso-Pizarro

v. Secretary of Health & Human Services,

(1st Cir.

1996). When the claimant has demonstrated that she suffers from

an impairment that could reasonably be expected to produce the

pain or side effects she alleges, the ALJ must then evaluate the

intensity, persistence, and limiting effects of the claimant's

symptoms to determine the extent to which those symptoms limit

her ability to do basic work activities.

10 [W]henever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. This includes medical signs and laboratory findings, the individual's own statements about the symptoms, any statements and other information provided by the treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual . . . .

In recognition of the fact that an individual's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individual's statements.

Social Security Ruling ("SSR") 96-7p, Policy Interpretation

Ruling Titles II and XVI: Evaluation of Symptoms in Disability

Claims: Assessing the Credibility of an Individual's Statements,

(July 2, 1996). Those factors include the

claimant's daily activities; the location, duration, freguency,

and intensity of the claimant's pain or other symptoms; factors

that precipitate and aggravate the symptoms; the type, dosage,

effectiveness, and side effects of any medication the claimant

takes (or has taken) to alleviate pain or other symptoms; and any

11 measures other than medication that the claimant receives (or has

received) for relief of pain or other symptoms.

See also

Avery,

;

(c) (3) .

It is, however, the ALJ's role to assess the credibility of

claimant's asserted inability to work in light of the medical

record, to weigh the findings and opinions of both "treating

sources" and other medical professionals who have examined her

and/or reviewed her medical records, and to consider the other

relevant factors identified by the regulations and applicable

case law. Part of his credibility determination necessarily

involves an assessment of a claimant's demeanor, appearance, and

general "believability." Accordingly, if properly supported, the

ALJ's credibility determination is entitled to substantial

deference from this court. See, e.g., Irlanda Ortiz,

(holding that it is "the responsibility of the [Commissioner]

to determine issues of credibility and to draw inferences from

the record evidence. Indeed, the resolution of conflicts in the

evidence is for the [Commissioner] not the courts") (citation

omitted).

12 Here, in reaching the conclusion that claimant's testimony

concerning the disabling nature of her impairments was not

entirely credible, the ALJ considered, among other things, her

daily activities and life style, findings made on physical

examination of claimant, her use of and positive response to

prescribed medications, and the "considerable discrepancy"

between claimant's subjective complaints and the objective,

clinical findings documented by her treating professionals.

Transcript at 18. The ALJ also made the following observations:

Despite chronic complaints, on examination, she has had good range of motion, normal strength and sensory examination. She had a normal neurological examination. It was recommended that she exercise and start a walking program but she failed to do so. She previously has reported a positive response to treatment but this was not acknowledged in her hearing testimony. She has not reguired any recent acute or in-patient treatment for her symptoms. Treatment records from various doctors have guestioned her use/overuse of pain medication and other prescribed medication. As already noted, she is not fully compliant with treatment recommendations. At least one treating source noted she does not always appear for office visits as scheduled. The claimant also has a fairly extensive range of daily activities.

Transcript at 18. With regard to claimant's non-compliance with

treatment recommendations, she does not, for example, wear her

wrist splint as instructed. Compare transcript at 124

13 (instructing claimant to wear her splint "All the time."), with

transcript at 28 (stating that she wears the splint only

occasionally, depending on how her hand feels). Nor has she

complied with her physician's recommendation that she begin a

diet and exercise program (among other things, treating

physicians have opined that claimant's weight and inactivity

contribute to her joint and muscle discomfort). Compare

transcript at 153-54 (Dr. Phillips' recommendations regarding a

daily walking regimen as part of a program designed to address

claimant's obesity, as well as the symptoms of her fibromyalgia)

with transcript at 53 (stating that while she was once walking

daily, claimant now takes a walk roughly once a wee k ) . Nor has

claimant attended scheduled medical/counseling appointments

regularly. See, e.g.. Transcript at 158. And, notwithstanding

her numerous health complaints (including asthma and recurring

sinusitis), claimant has not stopped smoking, as suggested by

several treating physicians.

Perhaps most telling of all is the fact that claimant's own

treating physician. Dr. Elizabeth Sanders, strongly implied that

she believes claimant has a tendency to exaggerate the extent of

14 her disability. As the ALJ noted in his opinion, see transcript

at 17, when asked whether she believed claimant was a

"malingerer," Dr. Sanders wrote, "I am not sure - I believe she

subjectively feels her disability is greater than I do."

Transcript at 268. And, when asked to describe the nature,

freguency, and severity of claimant's pain. Dr. Sanders wrote,

"Subjectively, she will tell you 'severe and constant.'

Impossible to get objective interpretation." Transcript at 269.

Accordingly, the ALJ concluded, "In light of the foregoing

and the numerous inconsistencies in this record, the claimant's

testimony cannot be fully credited," and while "claimant

reasonably could be expected to have some limitations from her

fibromyalgia," those limitations are not as substantial as she

claims. Transcript at 18.

Ultimately, then, while the Commissioner concedes that

claimant's fibromyalgia causes her some measure of pain and

limitation, substantial evidence in the record supports the ALJ's

conclusion that her impairment did not cause the degree of pain

and limitation that she described. And, in light of claimant's

15 fairly substantial non-compliance with treatment recommendations,

the ALJ was justified in concluding that her disability/

discomfort as a result of carpal tunnel syndrome was exaggerated.

Finally, as discussed more fully below, the ALJ was justified in

discounting claimant's complaints of anxiety and depression as

well, given the several references in the record to claimant's

positive response to her medications. See, e.g.. Transcript at

31-32, 172, and 176. See also Transcript at 174 (Dr. Matthews'

observation that, "There were no signs of depression or anxiety

noted during the evaluation, and [claimant] often laughed, was

talkative, and appeared at ease.") and 177 ("The prognosis for

change of psychological symptoms with appropriate treatment is

considered to be good. [Claimant's] treatment appears to be

effective, given that she does not appear to be currently

experiencing any anxiety or depressive symptoms.").

In light of the foregoing, the court cannot conclude that

the ALJ erred in making his assessment of claimant's credibility

or in determining that she retained the RFC to perform sedentary

work.

16 B. Claimant's Mental Impairment.

At step two of the five-step sequential analysis, claimant

bears the burden of demonstrating that she has an impairment (or

impairments) "which significantly limits [her] physical or mental

ability to do basic work activities."

(c).

Claimant asserts that the ALJ's determination that her depression

and anxiety are "not severe" is not supported by substantial

evidence in the record. The court disagrees.

The inquiry that must be made at step two of the sequential

analysis has been described as follows:

Fundamental to the disability determination process is the statutory requirement that to be found disabled, an individual must have a medically determinable impairment "of such severity" that it precludes his or her engaging in any substantial gainful work. A finding of ability to engage in [substantial gainful activity], therefore, may be justified on the basis of medical considerations alone when a medically determinable impairment(s ) is found to be not severe. An impairment is not severe if it is a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on the individual's physical or mental ability(ies) to perform basic work activities.

•k -k -k

The impairment severity requirement cannot be satisfied when medical evidence shows that the impairment(s ) has

17 a minimal effect on a person's ability(ies) to perform basic work activities, that is, when he or she has the abilities and aptitudes necessary to do most jobs. Examples of these are sitting, standing, walking, lifting, carrying, handling, reaching, pushing or pulling; seeing, hearing, and speaking; understanding, carry out, and remembering simple instructions; use judgment, responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work setting.

SSR 86-8, Titles II and XVI: The Sequential Evaluation Process,

(1986) (emphasis supplied). See also SSR 85-28,

Titles II and XVI: Medical Impairments That Are Not Severe,

(1985).

In support of his conclusion that claimant failed to suffer

from severe depression or anxiety, the ALJ made the following

findings: (1) she has been treated for depression and anxiety and

responded well; (2) she has no memory problems and is capable of

caring for herself; (3) she has no apparent problems with

attention and gets along well with others; (4) at the hearing,

claimant testified that her treatment with the prescription

medication Paxil has resulted in "100% improvement"; and (5) she

sought mental health treatment only after having been ordered to

do so by a state court (following an altercation with her

18 boyfriend). Transcript at 15. The ALJ also acknowledged the

report prepared by claimant's therapist, Denise Walderich, who

opined that claimant would have difficulty working on a sustained

basis. However, as claimant concedes, Ms. Walderich is not an

"acceptable medical source" to provide evidence to establish an

impairment. See Claimant's memorandum at 14 n.ll. See also

(a). Moreover, the ALJ correctly observed that

Ms. Walderich's opinion was based entirely upon claimant's

subjective complaints which, as noted above, the ALJ determined

were not entirely credible and likely exaggerated.

The ALJ also adeguately discussed his reasons for

discounting the opinion of claimant's treating physician. Dr.

Elizabeth Sanders. See Transcript at 16-17 (noting, among other

things, that Dr. Sander's opinion regarding claimant's ability to

perform work-related functions was not based primarily upon

medically acceptable clinical and laboratory diagnostic

technigues but, instead, upon claimant's subjective complaints).

See generally

(d)(2) (discussing the

reguirement that the ALJ "give good reasons in [his or her]

notice of determination for the weight [given to claimant's]

19 treating source's opinion."). See also SSR 96-5p, Policy

Interpretation Ruling Titles II and XVI: Medical Source Opinions

on Issues Reserved to the Commissioner,

(July 2,

1996).

The most comprehensive psychological testing performed on

claimant was done in March of 2000, by Loring Mathews, Ph.D., a

licensed clinical psychologist. Among other things. Dr. Mathews

observed: (1) "During the evaluation [claimant] was alert. Her

level of responsiveness did not show obvious effects of pain,

medications, or drugs. Her level of psychological distress

appeared to be mild"; (2) "There were no signs of depression or

anxiety noted during evaluation, and [claimant] often laughed,

was talkative, and appeared at ease. [She] reported that her

mood is much better since she began taking Paxil, and she wakes

up in the morning in a good mood"; (3) "Evaluation of cognitive

processes indicated that [claimant's] attention and concentration

skills appeared within normal limits"; and (4) "[Claimant]

reported that she could easily perform a job where she could sit

down all day, and she would like to be a secretary or work with

computers." Transcript at 171-77. Finally, with regard to

20 claimant's ability to function in a work environment. Dr.

Matthews concluded:

Overall given [claimant's] observed appropriate behavior and ability to understand, remember, and concentrate during the evaluation, she appears able to tolerate most stresses common to a work environment (e.g., decision making, attendance, schedules, and interaction with supervisors).

Transcript at 17 6. Moreover, the state agency psychologist who

reviewed claimant's medical records failed to find any "medically

determinable impairment" based upon claimant's alleged "anxiety

related disorders." Transcript at 187.

Ultimately, based upon his review of claimant's medical

records, the ALJ concluded that:

The objective findings from the past six months of treatment are otherwise minimal. Those limitations that have been identified have been based on the claimant's subjective complaints which as discussed below cannot be fully credited. Indeed, given the past evidence of a positive response to medication and treatment and with the reported improvement in her relationship with her boyfriend, she should experience a positive and rapid response to treatment. Because the record demonstrates that the claimant previously has responded guite well to treatment and medication and because of the very limited objective or clinical support from her treatment which did not begin until April 2001, the undersigned finds that this record

21 fails to document the existence of a severe mental impairment or combination of mental impairments that has affected the claimant's functioning or would be expected to affect her functioning for a continuous 12 month period as reguired by the Social Security Act.

Transcript at 15-16. While there is some evidence in the record

which suggests that claimant suffers (or has suffered) from mild

depression and/or anxiety, the ALJ's conclusion that her mental

impairment is "not severe" is certainly supported by substantial

evidence and, therefore, must be affirmed.

C. The ALJ's Reliance on the Gr i d .

Finally, claimant says because "she has significant

nonexertional impairments impacting on her functional capacity,"

claimant's memorandum at 27, the ALJ erred by relying exclusively

on the Grid, without the benefit of testimony from a vocational

expert. In particular, she points to the fact that she has, over

the years, complained of, and/or been diagnosed with, the

following conditions: depression, anxiety, post traumatic stress

syndrome (PTSD), pain, obesity, asthma, fatigue, a wrist

impairment, non-restorative sleep, ongoing stress, and drowsiness

from the side effects of her medication. Claimant's memorandum

at 2 8.

22 With regard to the Grid, the Court of Appeals for the First

Circuit recently observed:

"The Grid," as it is known, consists of a matrix of the applicant's exertional capacity, age, education, and work experience. If the facts of the applicant's situation fit within the Grid's categories, the Grid directs a conclusion as to whether the individual is or is not disabled. However, if the applicant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust) that restrict his ability to perform jobs he would otherwise be capable of performing, then the Grid is only a framework to guide the decision.

Seavey v. Barnhart,

(1st Cir. 2001) (citations and

internal guotation marks omitted).

The purpose of the Grid is to "streamline" the process by

which the Commissioner may satisfy his burden of proving, at step

five of the seguential analysis, that jobs exist in the national

economy that the claimant can perform. See Ortiz, 890 F.2d at

524. In short, it allows the Commissioner to meet that burden

without hearing testimony by a vocational expert. But, because

the Grid "is meant to reflect the potential occupational base

remaining to a claimant in light of [her] strength limitations,"

Ortiz, 890 F.2d at 524, when a claimant suffers from

23 "nonexertional impairments in addition to exertional limits, the

Grid may not accurately reflect the availability of jobs such a

claimant could perform." Heggartv v. Sullivan,

(1st Cir. 1991) (emphasis supplied) .

Nevertheless, the First Circuit has held that an ALJ may

rely exclusively on the Grid to establish the existence of

occupations in which the claimant can engage provided the

claimant's non-exertional limitations do not impose a significant

or more than marginal limitation on the range of work the

claimant otherwise has the exertional capacity to perform. See

Ortiz, 890 F.2d at 524. Only if the "occupational base is

significantly limited by a nonexertional impairment," Heggartv,

(citation omitted), must the Commissioner look

beyond the Grid to carry the burden of proving that there are

other jobs a claimant can do. Under those circumstances,

" [u]sually, testimony of a vocational expert is reguired."

Here, the ALJ concluded that "claimant has no significant

non-exertional limitations which narrow the range of work she can

perform." Transcript at 19. At least as to claimant's assertion

24 that she suffers from severe depression and anxiety, the ALJ's

decision is supported by substantial evidence, for the reasons

previously discussed. With regard to claimant's remaining

asserted non-exertional limitations (i.e., post traumatic stress

syndrome (PTSD), pain, obesity, asthma, fatigue, a wrist

impairment, non-restorative sleep, ongoing stress, and

drowsiness), the ALJ plainly discounted those claims based upon

his determination that claimant's testimony at the hearing (and,

by extension, her subjective complaints to her treating sources)

was, at best, exaggerated.

Moreover, the record contains little in the way of evidence

from "medically acceptable clinical and laboratory diagnostic

technigues" supportive of claimant's asserted non-exertional

limitations.

(providing that "a physical or

mental impairment must be established by medical evidence

consisting of signs, symptoms, and laboratory findings, not only

by your statement of symptoms"). Instead, the ALJ was presented

with a record that consisted mainly of notes and records of

treating physicians who were simply documenting and responding to

25 claimant's subjective complaints of pain, anxiety, and

discomfort.

As noted above, despite her claims of various non-exertional

impairments, claimant has failed to follow the treatment

recommendations of several physicians (e.g., stop smoking, diet,

exercise, use a wrist splint, etc.) and has a history of failing

to attend scheduled medical appointments. Her asthma is well-

controlled by medication; she testified her medications have

substantially improved the symptoms of her depression, see, e.g.,

transcript at 31-32, 172; she testified that she has no memory

problems, see transcript at 119 (a point confirmed by Dr.

Matthews, see transcript at 175-76); she reported that Flexeril

helps her sleep and "she wakes up feeling refreshed," transcript

at 153; she made similar comments with regard to the efficacy of

her Paxil, transcript at 172; and her wrist injury would, in

light of her limited use of a prescribed splint, appear to be

somewhat overstated.

In light of the ALJ's well-supported conclusion that

claimant's testimony was not entirely credible, claimant's own

26 treating physician's belief that she overstates the severity of

her symptoms (and that physician's inability to conclusively say

whether claimant was a "malingerer"), claimant's failure to

follow several recommended treatment regimens, as well as

suggestions in several parts of the record that claimant

exhibited either drug-seeking behavior or was "inappropriately"

using prescribed medications (e.g., seeking refills prematurely),

see, e.g., transcript at 151 and 158-59, the ALJ's conclusion

that claimant did not suffer from "significant non-exertional

limitations which narrow the range of work she can perform,"

transcript at 19, is well-supported and cannot be disturbed.

Conclusion

The Commissioner concedes that claimant suffers from various

ailments including severe fibromyalgia, obesity, mild asthma, and

depression that appears to be fairly well-managed with

medication. And, it is beyond doubt that those conditions,

particularly in light of her difficult living situation, combine

to make her life uncomfortable and more taxing. Nevertheless,

having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

27 court concludes that there is substantial evidence in the record

to support the ALJ's determination that claimant was not disabled

at any time prior to the date of his decision. The ALJ's five-

step sequential analysis, as well as his discussion of the record

evidence, is thorough, well-reasoned, and his conclusions are

well-supported. While there is certainly some evidence in the

record supportive of claimant's assertion that she is disabled,

because the ALJ's adverse decision is supported by substantial

record evidence, it must be affirmed. See, e.g., Tsarelka,

("[W]e must uphold the [Commissioner's] conclusion,

even if the record arguably could justify a different conclusion,

so long as it is supported by substantial evidence.").

For the foregoing reasons, claimant's motion to reverse the

decision of the Commissioner (document no. 9) is denied, and the

Commissioner's motion to affirm her decision (document no. 11) is

granted. The Clerk of the Court shall enter judgment in

accordance with this order and close the case.

28 SO ORDERED.

Steven J. McAuliffe United States District Judge

September 30, 2003

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

29