Russell v . SSA CV-03-23-B 1/9/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jane Ann Russell

v. Civil No. 03-023-B Opinion No.

Jo Anne B . Barnhart, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Jane Ann Russell applied for Title II Social Security

Disability Insurance Benefits on August 8 , 1996. Russell alleged

an inability to work since June 1 6 , 2000, due to migraines and

backache. The Social Security Administration (“SSA”) denied her

application initially and on reconsideration. Administrative Law

Judge (“ALJ”) Robert Klingebiel held a hearing on Russell’s claim

on April 9, 2002. In a decision dated May 3 0 , 2002, the ALJ

found that Russell was not disabled. On December 9, 2002, the

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

SSA.

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

Social Security Act (the “Act”) seeking review of the denial of

her application for benefits. See

(g) (2000).

She challenges his determination that her subjective claims of

pain and impairment were not credible, his decision not to give

substantial weight to the opinion of the physician’s assistant

who treated her, and his determination that her migraines did not

pose non-exertional limitations on her ability to work, thereby

requiring the testimony of a vocational expert to determine if

there were jobs she could perform. Before me are Plaintiff’s

Motion for Order Reversing the Decision of the Commissioner (Doc.

N o . 8 ) and Defendant’s Motion for an Order Affirming the Decision

of the Commissioner (Doc. N o . 1 0 ) . For the reasons set forth

below, I conclude that the ALJ’s decision that Russell was not

entitled to benefits is supported by substantial evidence.

Therefore, I affirm the Commissioner’s decision and deny

Russell’s motion to reverse.

-2- I. BACKGROUND1

Jane Russell was 41 years old at the time of the

administrative hearing. She had completed eighth grade and

subsequently obtained her GED. Her past relevant work was as a

certified nursing assistant.2

Russell was treated for migraine headaches at the

Hitchcock Clinic. Clinical notes reveal that in April, 1999, she

had full range of motion and full extremity strength, but

tenderness to palpation at the occipital muscles and palpable

tenderness over the paravertebral muscles of the cervical spine

into the trapezia. She was given an injection of Demerol3 by

Elizabeth Doak, a physician’s assistant, which relieved her pain

within fifteen minutes. On August 2 9 , 1999, Russell returned to

the clinic, complaining of another severe migraine. Doak noted

1 Unless otherwise noted, the procedural and factual background set forth in this Memorandum and Order derives (and at points is excepted verbatim) from the parties’ Joint Statement of Material Facts (Doc. N o . 1 1 ) . 2 She testified to two different dates. (Tr. at 3 4 ; T r . at 3 8 ) . It appears that her doctors believed she was going to work at least through August 2000. (Tr. at 2 1 3 ) . 3 Demerol is used for the relief of pain. Physicians’ Desk Reference 2991 (57th ed. 2003).

-3- that Russell had taken medications such as Skelaxin and Midrin4

as well as over-the-counter pills, and continued to smoke. Doak

again administered Demerol, which relieved Russell’s pain within

twenty minutes.

Three days later, Russell returned due to another migraine.

Her symptoms were the same as during her previous visit. Doak

suggested that Russell start exercising and stop smoking. She

gave Russell a prescription for Inderal and Flexeril, and gave

her a Toradol injection which relieved her headache within twenty

minutes.5 On September 8 , Doak found some c r e p i t u s 6

of motion, pain with backward flexion of the neck and palpable

tenderness over the cervical spine and paravertebral muscles.

Otherwise, Russell’s range of motion was full, extremity strength

was five out of five, and there was no evidence of thoracic

4 Midrin is used to treat tension or vascular headaches and Skelaxin is used to treat musculoskeletal discomfort. Physician’s Desk Reference at 3366, 1274. 5 Inderal is used prophylactically for migraines, Flexeril is used to relieve muscle spasms, and Toradol is used for short term pain management. Physicians’ Desk Reference at 1280, 1897, and 2942. 6 Crepitus is the grating of a joint. Stedman’s at 424.

-4- outlet syndrome.7 An X-ray of Russell’s cervical spine was

negative. Doak refilled the prescription for Midrin and prescribed Ultram.8

On March 3 , 2000, Russell was in a car accident. She was

seen in the emergency room of Catholic Medical Hospital.

Although she noted that she was not experiencing any neck pain,

she stated that she had numbness in her left leg and pain in her

mid-back. She was discharged that day with a prescription for

Celebrex9 and Skelaxin and instructions to rest and use ice for

the next 2-3 days. On March 5 , 2000, D r . Gendron noted that

Russell’s lumbar spine X-rays were normal, that her symptoms

appeared to exceed the findings of diffuse tenderness and

decreased range of motion, and that she was requesting Percocet

7 Thoracic outlet syndrome (TOS) consists of a group of distinct disorders that affect the nerves in the brachial plexus (nerves that pass into the arms from the neck) and various nerves and blood vessels between the base of the neck and axilla (armpit). Stedman’s at 1769. 8 Ultram is used to treat pain. Physicians’ Desk Reference at 2510. 9 Celebrex is used as treatment for osteoarthritis. Physicians’ Desk Reference at 2589.

-5- and Darvocet by name.10

On March 2 0 , 2000, D r . Webber examined Russell and noted

that she was reporting more frequent headaches following the

accident. D r . Webber found that Russell had tenderness and pain

radiating to her lower back. She prescribed Paxil11 and

indicated that Russell was to reduce usage of Flexeril and

Celebrex, continue physical therapy, and that she could work up

to four hours at a desk each day. Russell returned one week

later complaining of a migraine and lower extremity numbness.

She was given Imitrex12 subcutaneously and forty minutes later

her headache was partially relieved. On March 2 7 , 2000, Russell

reported that she developed another migraine when she ran out of

Skelaxin, and could not return to work on Monday. D r . Webber

noted that Russell had been “real active scrubbing floors and

mopping” the previous week. (Tr. at 1 9 7 ) .

10 Percocet and Darvocet are used to treat pain. Physicians’ Desk Reference at 1304, 3503. 11 Paxil is an anti-depressant. Physicians’ Desk Reference at 1603. 12 Imitrex is used for migraines. Physicians’ Desk Reference at 1542.

-6- On March 2 8 , 2000, Russell underwent an electromyogram nerve

conduction study,13 which was limited due to her poor tolerance

and only two muscles were examined. D r . Indorf, who performed

the study, determined that her nerve conduction was normal.

Dr. Webber examined Russell on April 2 4 , 2000, and noted

that she complained of being barely able to walk after working

for four hours, but that she was improving with physical therapy.

Her headache diary revealed that she was having headaches 40-50%

of each week, with onset related to ingestion of caffeinated

beverages. D r . Webber found no evidence of neurological

deficits, and instructed Russell to continue with Midrin and to

reduce her caffeine and cheese intake.

On May 2 4 , 2000, D r . Webber, noted that Russell’s headaches

had decreased to one major headache per week, which Russell could

control with Midrin and rest, that her straight leg raising was

positive at sixty degrees bilaterally. He wrote a note

indicating that Russell could work a seven-hour day with a ten

minute break after a four-hour shift.

13 An electromyogram yields a graphic representation of the electric current associated with muscle movement. Stedman’s at 576.

-7- On May 2 6 , 2000, Russell had a rheumatological consultation

with D r . Yost. He observed that her straight leg raise test was

negative and that she had full range of motion in her hips,

shoulders, cervical and thoracic spine. There were marked

reductions to her lumbar spine forward flexion and moderate

restrictions in her extension and lateral flexion, her sensation

was intact and her muscle strength was five-plus out of five

except for some weakness due to hip flexion. He noted a lack of

malingering behavior, and arranged for a lumbrosacral spine M R I ,

the results of which were negative.

On July 2 6 , 2000, D r . Rholl noted that Russell was

complaining of an increase in her headaches, but indicated that

it coincided with her running out of Paxil. He also found that

her gait was slightly stiff and her sensation was subjectively

decreased, but she was able to feel and her strength was normal.

He prescribed Flexeril and Vicodin. D r . Rholl saw her again on

August 3 1 , 2000, because she was complaining that “[s]he just

does not have a life because of her headaches and because of her

back pain.” (Tr. at 2 3 3 ) . Russell was tender in some points,

but not many, and she had full range of motion. He felt Russell

-8- needed to be seen at the Pain Clinic, and was concerned about her

use of narcotics such as Vicodin. He saw her again on September

8 , 2000 for recurrent headaches, one of which lasted from a

Friday through that Sunday.

On October 1 7 , 2000, Russell went to the Pain Clinic, where

she was seen by D r . Caudill-Slosberg. D r . Claudill-Slosberg

observed “considerable pain behavior with wincing and groaning as

well as statements that she was being killed by the examination.”

(Tr. at 238-39). Russell was able to walk on her toes and heels,

her pinprick sensation was intact, and her Babinski reflex was

negative. Plaintiff was prescribed an increased dose of

Amtriptyline,14 Soma for mild to moderate pain, and Zomig15 for

severe pain. She recommended that Russell begin physical therapy

and take Motrin or Naprosyn for her head pain. She noted that

Russell reported that she had stopped taking Paxil due to its

cost.

14 Amtriptyline is an antidepressant. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a682388.htm l (last revised 1/1/03). 15 Zomig is used to treat migraines. Physicians’ Desk Reference at 701.

-9- On November 7 , 2000, Russell consulted with Sharon Lockwood,

a Physician’s Assistant at the Pain Clinic. Russell reported

having four severe headaches each week, which were accompanied by

photophobia (pain induced by exposure to light), nausea and

vomiting. Lockwood found crepitus over the left TMJ and diffuse

tenderness in the posterior neck with decreased extension and

rotation, and observed that Russell’s motor, tone, strength and

sensory systems were normal. Lockwood gave her Prednisone,

Norflex, Amerge and Reglan for pain treatment, and Klonopin to

help her sleep. Russell was advised to eat routinely, drink

fluids, stop smoking, and engage in daily meditation.

On November 2 7 , 2000, Russell had X-rays taken of her left

hip and lumbar spine. They revealed osteoarthritis and

degenerative changes in the lower thoracic spine. On December

1 2 , 2000, Russell reported to Lockwood that she was having four

mild headaches per week, and a more severe headache one to three

times per week.

On January 3 1 , 2001, D r . Beasley determined that Russell had

tenderness over the occipital nerve on the left side. Between

February 20 and May 2 2 , 2001, Russell was seen at the Hitchcock

-10- Clinic five times for her migraines, and prescribed Norco,

Pamelor, Vioxx, Compazine and Dilaudid suppositories and

Neurontin.16 During that time, Lockwood noted that Russell’s

levels of Depakote were much lower than expected if she were

taking the amount prescribed. (Tr. at 2 9 6 ) . Further, Russell

ran out of TENS unit pads and stopped using i t . Russell did not

have medical insurance and therefore had to work with the clinic

for samples and other low-cost options. On March 9, Lockwood

noted that Russell had called i n , to complain of a migraine and

ask for a prescription to be telephoned to her local pharmacy.

She said that she had no transportation to the clinic to be seen.

When her local pharmacy did not have the medicine, however, she

was able to have it picked up at the clinic pharmacy. (Tr. at

293). When asked to explain on March 1 4 , Russell stated that she

been unable to get out of bed, and her daughter had picked it u p .

(Tr. at 2 9 4 ) .

On April 3 , 2001, Russell had an MRI of her head. It

revealed a small area of signal alteration within the subcortical

16 Dilaudid and Norco are used to treat pain and Neurontin is used to treat partial seizures. Compazine is for the control of severe nausea and vomiting. Vioxx is an anti-inflamatory. Physician’s Desk Reference at 3505, 3327, 2563, 1489, 2120.

-11- white matter of the left frontal lobe and the left caudate

nucleus. On May 1 , 2001, Lockwood noted that Russell reported

having been to an emergency room because of a migraine and had

been given a Demerol injection. However, Russell had apparently

changed her medication regime abruptly without consulting

Lockwood. (Tr. at 4 1 3 ) . On June 3 , 2001, Russell went to urgent

care for a Torodol injection due to an acute migraine. At that

time, she reported that she had been to the emergency room the

week before for the same reason.

On June 5 , 2001, Lockwood noted that Russell was only

experiencing one severe headache per week, and that her condition

was responding well to Norco and her TENS unit, which she had

been given to use to reduce her headaches. On that day, Russell

was complaining of a severe migraine, and Lockwood noted that she

was tender and tight in the posterior neck and had pain on

rotation of the neck. Russell’s vision, sensation and hearing

were decreased, but her motor tone, strength, reflexes,

coordination and gait were normal. At a June 2 7 , 2001 visit,

Lockwood noted that Russell had again been to urgent care for an

injection three days earlier.

-12- On July 7,2001, Russell sprained her ankle and was given

Vicodin for four days. After she stopped, she had another severe

headache. (Tr. at 4 1 1 ) . D r . Rholl saw Russell on July 1 9 , 2001,

and noted that she was walking one mile five times each day (Tr.

at 3 1 3 ) , but that she was experiencing three bad headaches each

week. She had full range of motion in her neck and back and her

straight leg raise was negative. D r . Rholl felt that “narcotic

use was not the way to go for her pains.” On August 6, 2001,

Russell was examined by D r . Levin, who also recommended that

Russell decrease her use of narcotics, and opined that she might

be experiencing analgesic rebound and habituation. He diagnosed

her with chronic pain disorder with features of post-concussive

syndrome, headaches, cervicalgia and cervicogenic headache. On

August 2 4 , 2001, she reported to D r . Beasley that she was

experiencing three days of major headaches per week.

On August 2 7 , 2001, Russell underwent an occipital nerve

block. She later told Lockwood that she had been bedridden for

three days afterwards due to pain. However, she was walking four

times per week, and her TENS unit was helpful. Lockwood

increased Russell’s Zanaflex and insisted that she attend pain

-13- group meetings. She had an X-ray on September 2 1 , 2001, which

was normal.

On September 2 5 , 2001, Russell called the clinic, reporting

a headache, and that she had gone to the emergency room the

previous Thursday and Sunday for shots to help with headaches.

She was instructed to exercise, eat regular, balanced meals, stop

smoking, drink water, and attend group. Russell states that she

did all that, but couldn’t afford group. When told that she

could pick up free samples of medication at her convenience, she

said she couldn’t come in that day, and that she guessed she’d

have to suffer. (Tr. at 4 2 8 ) . Russell did not show up for

scheduled appointment on October 2 , 2001, after calling to say

that she had no money for a cab and could not find a ride. (Tr.

at 4 2 0 , 4 3 0 ) . However, on October 9, 2001, Russell told Lockwood

that the previous week she went to the emergency room and

obtained a Demerol injection for a severe headache. Russell also

informed Lockwood that she could not afford pain class. On

November 6, 2001, D r . Levin observed extreme tenderness over the

occipital nerve and posterior cervical musculature, but Russell’s

neurological examination was normal with no signs of

-14- radiculopathy. D r . Levin advised her to stop smoking,

discontinue Neurontin, and increase Zanaflex. They discussed

inpatient care for her migraines, concluding that it was not

indicated. (Tr. at 4 3 3 ) . On November 2 0 , 2001, Russell told

Lockwood that she was experiencing a severe headache three times

per week and had been to the emergency room one to two times each

week since her last visit, but reported that she was walking five

times a week and sleeping six hours. Lockwood noted that Russell

smelled strongly of smoke.

On January 1 6 , 2002, Lockwood noted that Russell had not had

an emergency injection in several months, that Russell was

attending pain group, but had not quit smoking. Her neck

rotation was limited and her hearing slightly decreased on the

left side.

On April 2 , 2002, Lockwood completed a Headache Residual

Functional Capacity Questionnaire. Lockwood noted that Russell

experienced severe pain three times per week at her left

occipital which radiated to her left temple and this pain was

accompanied by vertigo, nausea, photosensitivity and visual

disturbances. Lockwood concluded that Russell would need to lie

down at unpredictable intervals during a work shift, had poor or

-15- no ability to deal with stress and would be absent from work

three or more times a month due to her impairment.

Russell also received medical care for leg numbness. She

complained of paresthesias in her lower left extremity and

anterior tibial area on February 9, 2000, but D r . Webber noted at

the time that she did not appear to be in distress or discomfort.

Dr. Indorf, on referral, found that her gait had an antalgic17

quality, but her cranial nerves were normal and her strength and

tone were normal and her Romberg test was negative. A Venous

Doppler Ultrasound performed on February 2 8 , 2000 was negative.

On January 3 1 , 2001, a non-treating physician, D r . Cataldo,

reviewed Russell’s medical records. He concluded that she could

lift ten pounds frequently, twenty pounds occasionally, and could

sit, stand, or walk for six hours in an eight hour day, as well

as push or pull in an unlimited fashion. (Tr. at 273-78). He

also concluded that she had occasional limitations to her

postural activities. Further, in his narrative he stated that

her allegations of symptoms were partially credible, but not for

her ability to function, as she could do housecleaning, shopping,

In a manner to decrease pain. Stedman’s at 6 7 , 9 4 . -16- leave the house at will, drive a car and socialize outside the

home. No other physician evaluated Russell’s residual capacity

to perform work.

II. STANDARD OF REVIEW

After a final determination by the Commissioner denying a

claimant’s application for benefits, and upon a 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.

(g) (2003). My

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

findings are conclusive if they are supported by substantial

evidence. Id.; see Irlanda Ortiz v . Sec’y of Health and Human

Servs.,

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

is responsible for settling credibility issues, drawing

inferences from the record evidence, and resolving conflicting

evidence. See Ortiz,

. Therefore, I must

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

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

-17- as adequate to support [the ALJ’s] conclusion.’”

(quoting

Rodriguez v . Secretary of Health and Human Servs.,

1 8 ,

222 (1st Cir. 1981)). I apply these standards in reviewing

Russell’s case on appeal.

III. DISCUSSION

The Social Security Act defines “disability” for the

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

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

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

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

(d)(1)(A) (2003). 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.18 See

(2003).

18 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. 20 C.F.R. §

-18- Ultimately, at step five, the burden shifts to the

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

that [the] claimant can perform.”

(f) (2003);

Heggarty v . Sullivan,

9 0 , 995 (1st Cir. 1991) (per

curiam); see also Keating v . Sec’y of Health and Human Servs.,

7 1 , 276 (1st Cir. 1988) (per curiam). The Commissioner

must show that the claimant’s limitations do not prevent her from

engaging in substantial gainful work, but need not show that the

claimant could actually find a job. See Keating,

.

At step five, the ALJ found that Russell had a severe

impairment that precluded a return to her former employment and

limited the range of work she could perform. Nevertheless, he

found that she could perform a full range of light work and thus

was not disabled because there were jobs in the national economy

that she could perform.

Russell challenges this conclusion, stating that the ALJ

erred in his decisions regarding the (1) degree of her

impairment, (2) whether the impairment created had non-exertional

404.1520 (2003).

-19- limitations on her ability to work, and (3) in finding that she

could perform other work.

Her challenge attacks specific conclusions the ALJ made in

determining her credibility. She claims the evidence does not

support his conclusions that (1) her statements regarding her

capabilities were “not supported by objective medical evidence,”

(2) she failed to follow prescribed treatments on a regular

basis, and (3) “her reports are inconsistent both internally and

as compared to the objective medical evidence and her activities

of daily living.” (Tr. at 1 8 ) . Russell asserts that the ALJ did

not consider her subjective complaints of pain in the proper

legal context, distorted the evidence, and was selective in his

consideration of i t . She also contends that the ALJ did not give

proper weight to the opinion of Sharon Lockwood, the Physician’s

Assistant who was her primary contact at the Pain Clinic.

Lastly, she asserts that the ALJ did not adequately

establish that there were other jobs in the national economy that

she could perform because she feels he did not consider or give

appropriate weight to the non-exertional limitations of her

headaches.

-20- A. Weight Given to Subjective Complaints of Pain

The SSA regulations require an ALJ to consider a claimant’s

own subjective statements concerning her symptoms, including

statements regarding how those symptoms affect the claimant’s

ability to work.

(a) (2000). A claimant’s

subjective statements may suggest a more severe impairment “than

can be shown by objective medical evidence alone.”

(c)(3). Accordingly, an ALJ evaluates a claimant’s

complaints 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, 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. Id.; see Avery v .

Sec’y of Health and Human Servs.,

9 , 28-29 (1st Cir.

1986). These factors are sometimes called the “Avery factors.”

In addition to considering these factors, the ALJ is entitled to

-21- observe the claimant, evaluate his demeanor, and consider how the

claimant’s testimony fits with the rest of the evidence. See

Frustaglia v . Sec’y of Health and Human Servs.,

9 2 , 195

(1st Cir. 1987) (per curiam).

In assessing the credibility of a claimant’s subjective

statements, the ALJ must consider whether these complaints are

consistent with the objective medical evidence and other evidence

in the record. See

(a), SSR 96-7(p). While a

claimant’s complaints must be consistent with the medical

evidence to be credited, they need not be precisely corroborated

with such evidence. See Dupuis v . Sec’y of Health and Human

Servs.,

2 2 , 623 (1st Cir. 1989) (per curiam).

Here, the ALJ took into consideration the Avery factors and

listed them in his opinion. (Tr. at 1 6 ) . He cited several

instances from the record which demonstrated that she had not

complied completely with treatment, such as that she never

completely quit smoking, and had run out of medication and not

tried to obtain more until another migraine ensued. (Tr. at 16-

17). 1 9 He also noted that she had been observed walking better

19 Russell also asserts that the major reason for her non- compliance with treatment was that she could not afford her

-22- leaving the examination room than when she entered. (Tr. at 16-

17, 185). He noted that the objective medical evidence was not

strong - the only test that showed anything that might support an

impairment was the M R I , which showed only a slight abnormality.

Keeping in mind that credibility determinations are for the

ALJ, and that here his determination that Russell was not

entirely credible in her assertions of impairment was clearly

supported by evidence, I decline to remand or reverse on that

ground. The ALJ clearly reviewed all the relevant evidence,

considered it in the proper legal context, and came to a

supportable and reasoned conclusion regarding Russell’s

credibility.

B. Weight Given to Opinion of Sharon Lockwood

The ALJ noted that the only assessment that supported

Russell’s asserted level of impairment was that provided by

Lockwood. Because Lockwood is a Physician’s Assistant, the ALJ

prescribed medications and should not be punished therefore. However, the record is replete with instances of the clinic providing her with free samples and offering to work with her to obtain funding for her medication. (Tr. at 2 5 0 ) . The evidence shows a pattern of her taking medication and controlling her headaches successfully until her medications ran out, at which point she then visited first the emergency room and then the clinic for further treatment and narcotics.

-23- determined that her assessment was not an “acceptable medical

source” and therefore did not carry substantial evidentiary

weight.20 All other medical opinions, including those provided

by the state’s medical examiners and other doctors who examined

and treated Russell, did not support a finding of complete

impairment. The ALJ concluded, therefore, that Russell retained

the residual functional capacity to “lift 20 pounds occasionally

and 10 pounds frequently, to stand and walk for 6 hours out of an

8 hour workday, to sit for 6 hours out of an 8 hour workday, and

occasionally to climb, balance, bend, stoop, crouch, crawl, and

kneel.” (Tr. at 1 7 ) . Russell contends that this conclusion was

inappropriate, because the ALJ should have given more weight to

Lockwood’s opinion, although she concedes that he was correct in

his determination that she was not an “acceptable source”.21

(Pl.’s Mot. for Order Reversing the Decision of the Comm’r. at

20 When Russell’s claim was reviewed by the Appeals Council, Lockwood’s assessment had been co-signed by D r . Richmond. However, the assessment itself contains no medical findings, but is merely an opinion on an issue that is for the ALJ to determine. Nor does the assessment suggest that D r . Richmond ever examined Russell himself.

21 A physician’s assistant’s opinion is an “other source” acceptable for consideration as part of the complete record under

(e).

-24- 17). I disagree.

The ultimate decision concerning disability or impairment is

for the commissioner, not the treating doctors. 20 C.F.R §

404(e)(1). Lockwood’s opinion of disability is not

determinative, so it was not error per se for the ALJ to reach a

contrary conclusion. Further, the ALJ clearly considered the

opinion, but given the weight of other acceptable medical sources

supporting his conclusion that Russell could work, his decision

to discount Lockwood’s assessment was not error.

C. Sufficiency of other evidence regarding Residual Functional Capacity

Russell contends that once the ALJ determined that he would

not accept Lockwood’s opinion as authoritative, he should have

requested an opinion from one of her treating doctors, or

employed the services of a medical expert. (Pl.’s Mot. for Order

Reversing the Decision of the Comm’r. at 1 8 ) . While this might

make sense in the absence of other medical evidence and opinion,

the ALJ had the benefit of the opinion of Russell’s primary care

physician from January 2000 to June 2000, D r . Webber (Tr. at 146,

2 1 3 ) , who saw her as early as October 1998 (Tr. at 3 5 2 ) .

Throughout her treatment of Russell, D r . Webber continued to send

-25- Russell to work and wrote notes indicating that she intended to

follow a course of “work hardening.” (Tr. at 2 0 4 , 213, 2 1 5 ) .

Dr. Rholl, who saw Russell off and on before 2000 (Tr. at 351)

and became her primary care physician after D r . Webber (Tr. at

2 1 3 ) , continued to send Russell to work. (Tr. at 2 3 2 ) . Further,

a state medical examiner reviewed Russell’s file in June 2001,

and determined that she could work. (Tr. at 272-80). Given all

of this evidence supporting his conclusion, I believe that

requesting further review or reports from doctors would not have

aided the ALJ in his decision-making, and that he was therefore

justified in declining to request further information.

Russell’s daily activities supported a conclusion that she

could work. Russell reported that she took four hours to clean

her four room apartment, that she occasionally accompanied her

boyfriend on shopping trips, and that she volunteered at her

son’s school. This supported the ALJ’s determination that she

was not disabled.

Russell also complains that the ALJ erred in his conclusion

that her migraines responded well to treatment. As noted above

in footnote 2 0 , the record shows that when Russell complied with

her treatment program and took her prescribed medication, her

-26- migraines were controlled. Further, her insistence on use of

narcotics as opposed to other methods of treatment may have

actually increased her headaches. (Tr at 2 3 7 , 3 1 0 , 3 1 4 ) . I note

that shortly after being told not to use narcotics, she twisted

her ankle and specifically requested them. (Tr. at 315, 3 1 7 ) .

D. The ALJ Appropriately Used the Medical-Vocational

Tables to Establish That Russell Could Perform Other Work

The ALJ relied on Medical-Vocational Rules 202.21 and 202.22

to determine the range of work Russell could perform. Russell

contends that this was improper because she claims that her

migraines constitute a non-exertional limitation that called for

testimony from a vocational expert. However, as pointed out by

the Commissioner, the ALJ found no evidence of any non-exertional

limitation created by the migraines, nor does plaintiff cite any

in her brief. She merely states, without record support, that

her headaches require her to recline in a darkened room.22

Having reviewed the record, the ALJ determined that there was

little or no objective evidence to support the frequency or

22 The statement that “[t]he large volume of evidence in the record clearly supports this contention” is insufficient to carry her burden at this stage, in which she is challenging the ALJ’s decision.

-27- severity of the headaches as reported by Russell. He noted the

MRI which showed a slight abnormality in the white matter of her

left frontal lobe, but observed that her headaches responded well

to treatment23 and that he did not find her statements of

severity credible. Therefore, he did not find that they

influenced, non-exertionally or otherwise, her ability to work.

Since credibility determinations are for the ALJ, and there was

substantial evidence to support his finding that her migraines

had no non-exertional impact on her residual functional capacity,

I decline to remand or reverse on that ground.

IV. CONCLUSION

Since I have determined that the ALJ’s denial of Russell’s

application for benefits was supported by substantial evidence, I

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

Motion to Reverse (Doc. N o . 8 ) is denied, and Defendant’s Motion

for an Order Affirming the Decision of the Commissioner (Doc. N o .

23 Russell also disagrees with this contention. However, given evidence in the record that when she gradually weaned off narcotics, took Paxil, used her TENS unit, and exercised, her headaches reduced, I find that was substantial evidence to support this finding

-28- 10) is granted. The clerk shall enter judgment accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge

January 9, 2004

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

-29-