Graham v . SSA CV-02-243-PB 05/09/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carolyn Graham

v. Case No. 02-cv-243-PB Opinion No.

Jo Anne Barnhart, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Pursuant to

(g), plaintiff Carolyn Graham

challenges the Commissioner of Social Security’s determination

that she is not entitled to disability insurance benefits

(“DIB”). She argues that the Administrative Law Judge (“ALJ”)

who evaluated her claim improperly ignored residual functional

capacity (“RFC”) assessments performed by two of her physicians

and improperly evaluated the credibility of her testimony. For

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

is supported by substantial evidence. I therefore deny Graham’s

motion to reverse (Doc. N o . 18) and grant the Commissioner’s

motion to affirm (Doc. N o . 1 9 ) . I. BACKGROUND

A. Procedural History

Graham’s disability insured status expired on September 3 0 ,

2001. Administrative Record Transcript (“Tr.”) at 290. She

applied for DIB on July 9, 2001.

. She alleged that

she became disabled on September 2 4 , 1999, due to complications

from a masectomy.

Graham’s application was denied,

at 5 9 , and she

requested an administrative hearing.

at 6 5 . On December 1 3 ,

2001, ALJ Frederick Harap held a hearing to evaluate her claim.

at 8 3 . ALJ Harap determined that Graham was not disabled

because she retained the RFC to perform jobs that existed in

substantial numbers in the national economy.

at 5 6 . The

Appeals Council declined to review ALJ Harap’s decision.

.

Graham sought judicial review of ALJ Harap’s decision with

this court, however I remanded the case because the hearing tape

was inaudible.

; see Doc. Entry 9/23/02. ALJ Harap

held a second hearing on May 7 , 2003.

at 2 1 . He reached the

same conclusion,

at 1 9 , and the Appeals Council subsequently

-2- declined to review the decision.

at 7 .

Graham sought judicial review of ALJ Harap’s second

decision, and I remanded the case a second time because the

hearing tape was again inaudible. Id. at 384; see Doc. Entry

7/13/04. On October 2 6 , 2004, ALJ Robert Klingbiel held a third

hearing. He too determined that Graham was not disabled because

her RFC allowed her to perform jobs that existed in substantial

numbers in the national economy. Id. at 294-96. Graham now

seeks review of ALJ Klingbiel’s decision.

B. Graham’s Education and Work History

Graham was born on July 6, 1953. Id. at 304. She was 51

years old when ALJ Klingbiel issued his decision. Id. at 290.

Graham has a ninth-grade education. Id. at 304. In the past,

she worked as a lacer/stamper/sewer in a boot factory, a

tester/assembler in a heater factory, a chambermaid, a

dishwasher/kitchen helper, and a sewer in a sewing factory. Id.

at 340.

C. Medical Evidence

On September 2 4 , 1999, Graham underwent a routine bilateral

mammography examination. Id. at 199. The mammogram revealed an

-3- irregularity in Graham’s right breast. Id. A subsequent biopsy

showed that Graham had breast cancer. Id. at 190. On November

1 2 , 1999, D r . Sean Bears performed a masectomy. Id. at 235.

Graham “tolerated the procedure well” and there were no

complications. Id.

Four days after the surgery, D r . Bears examined Graham and

determined that she was “doing well with mild discomfort in the

surgical site.” Id. at 244. Graham began a course of six

chemotherapy treatments supervised by D r . L . Herbert Maurer. Id.

at 239. On February 2 , 2000, D r . Bears examined Graham and noted

that she was experiencing nausea and sinus problems, but

otherwise was tolerating the chemotherapy well. Id. at 246. Her

surgical wound was healing properly. Id.

By June 2 6 , 2000, Graham had completed chemotherapy. Id. at

248. Although she had gained a significant amount of weight and

was bothered by a mass of scar tissue in her right arm, she was

generally feeling well. Id. On August 2 , 2000, D r . Thomas Davis

examined Graham and noted that she had “good” range of motion in

her right arm. Id. at 204.

On June 1 , 2001, D r . Bears examined Graham and observed that

she was “doing very well from a breast cancer standpoint.” Id.

-4- at 250. Although Graham reported that she had pain in her right

hand and arm if she used them for extended periods of time, D r .

Bears was unable to link the pain to masectomy complications.

Id. He determined that the pain was not severe enough to pursue

any kind of treatment. Id.

On November 2 9 , 2001, nearly a month after her insured

status expired, Graham saw D r . Frank Graf at her attorney’s

suggestion. Id. at 254. D r . Graf observed that Graham had

sensory deficits above and below her surgical incision. He

performed Tinel’s sign testing, which was positive for pain and

tingling in the right arm. Id. at 255. Graham’s reflexes were

intact and she was able to raise both arms and bring her hands to

the back of her head and to the small of her back. Id. D r . Graf

determined that Graham had impaired functioning in her right arm

and hand. Id. He completed an RFC assessment and found that

Graham could lift twenty pounds occasionally (with pain

afterward) and less than ten pounds frequently (with pain

afterward); that she could stand or walk for fewer than two hours

in an eight-hour workday; that she was limited in her ability to

push and pull; that she could not crawl; that she could

occasionally climb, balance, kneel, crouch, stoop, reach, handle,

-5- finger, and feel. Id. at 256-58. This RFC assessment suggests

an inability to perform even sedentary work. Id. at 293. In a

letter dated May 1 5 , 2003, D r . Graf stated that the observations

he made during the November 2 9 , 2001 examination reasonably

reflected Graham’s condition as of the close of the insured

period.

On January 1 1 , 2002, D r . Lawrence Schissel examined Graham.1

Id. at 281. D r . Schissel determined that Graham had normal vital

signs and no focal neurologic deficits or evident loss of

strength or muscle tone. Id. Graham told D r . Schissel that she

had been suffering from profound fatigue, and he diagnosed the

fatigue as resulting from a variety of factors including

depression and the side effects of Tamoxifen, a prescription drug

that Graham takes to prevent cancer recurrence. Id.

On May 1 , 2003, D r . Schissel completed an RFC assessment for

Graham. He found that she could lift ten pounds occasionally and

less than ten pounds frequently; that she could stand or walk for

1 Graham was D r . Schissel’s patient prior to her breast cancer surgery. He referred her to an oncologist, and was “aware of her ongoing treatment for breast cancer through communications with her specialists,” but did not treat her between October 1999 and January 2002. T r . at 263.

-6- less than two hours out of an eight-hour workday; that she could

sit for less than six hours out of an eight-hour workday; that

she needed frequent periods of rest in a reclined position; that

her ability to push and pull was limited by fatigue; and that she

could occasionally climb, balance, kneel, crouch, crawl, and

stoop. Id. at 277-78.

D. Administrative Evidence

On June 2 0 , 2001, Graham completed a Disability

Determination Services (“DDS”) questionnaire about her daily

activities. Graham reported that she could take care of herself,

although she struggled with getting in and out of the tub and

with fixing her hair. Id. at 152. She stated that she could

clean her house and do ordinary household chores, although those

tasks took a long time to complete and she sometimes required

assistance. Id. at 153. Graham also reported caring for her

granddaughter five to seven days per week during the workday.

Id. at 154.

On August 7 , 2001, non-physician DDS consultant Paula LeBrun

reviewed Graham’s file and completed an RFC assessment.2 LeBrun

2 The record is unclear as to LeBrun’s qualifications. The Commissioner has not contested Graham’s assertion that LeBrun is

-7- determined that Graham could occasionally lift 20 pounds; that

she could frequently lift 10 pounds; that she could stand or walk

for about 6 hours in an 8-hour workday and sit for about 6 hours

in an 8-hour workday; that she had unlimited ability to push and

pull; that she had no postural limitations; and that she should

avoid frequent overhead reaching with the right arm. Id. at 164-

171.

E. Graham’s Hearing Testimony

Graham, who was represented by counsel, testified at the

hearing before ALJ Klingbiel. She stated that she has persistent

numbness in her right arm from the shoulder to the elbow and

intermittent shooting pain and numbness in the rest of the right

arm. Id. at 310-11. She also reported that her right arm is

weak, making it difficult for her to lift things. Id. at 315.

Graham’s husband testified that Graham has difficulty completing

household tasks because of pain in her arm. Id. at 335.

Graham also testified that since her masectomy, she tires

very quickly. Id. at 322. She believes this persistent fatigue

not a physician, so I assume that she is not a medical doctor or other “acceptable medical source.” See

(a)(1)-(5).

-8- to be a side effect of Tamoxifen. Id. at 313. Graham explained

that she has to rest for several hours after two hours of

standing or walking. Id. at 316-17. For example, she reported

being too tired to cook meals on a regular basis, id. at 3 2 0 , or

to grocery shop. Id. at 324. Graham’s husband also testified

that she needs to rest after two hours of activity. Id. at 335.

Graham told ALJ Klingbiel that her granddaughter lived with

her between approximately 2000 and 2004. Id. at 331-33. During

that time, Graham regularly cared for the child. Id. at 336.

F. Vocational Expert’s Testimony

Vocational Expert (“VE”) Howard Steinberg also testified at

the hearing. He stated that most of Graham’s past work would be

classified as light, unskilled work by the Dictionary of

Occupational Titles. Id. at 340.

ALJ Klingbiel asked VE Steinberg to consider a hypothetical

claimant with Graham’s education and work history and a capacity

for work consistent with following RFC: occasional lifting of 20

pounds and more frequent lifting of 10 pounds; very little

overhead reaching ability; and limited ability to use the right

hand and arm routinely. VE Steinberg concluded that the

hypothetical claimant would not be able to perform any of

-9- Graham’s past jobs. Id. at 340-41. However, the hypothetical

claimant would be able to perform several other jobs, including

toll collector, officer helper, construction flagger, furniture

rental clerk, security guard, storage facility rental clerk,

school bus monitor, and sales attendant. Id. at 342-43.

Graham’s attorney asked VE Steinberg to consider a

hypothetical claimant with Graham’s education and work history

and a capacity for work consistent with the RFC provided by D r .

Graf. Id. at 344. VE Steinberg concluded that the limitations

described by D r . Graf would significantly impact the hypothetical

claimant’s ability to perform the jobs he mentioned in response

to ALJ Klingbiel’s hypothetical, with the exception of the

security guard job. Id. at 345-47.

Finally, Graham’s attorney asked VE Steinberg to consider a

hypothetical claimant with Graham’s education and work history

and a capacity for work consistent with the RFC provided by D r .

Schissel. VE Steinberg stated that this hypothetical claimant

would essentially have no capacity for work. Id. at 350.

II. STANDARD OF REVIEW

Pursuant to

(g), I am authorized to review

-10- the pleadings submitted by the parties and the transcript of the

administrative record and enter a judgment affirming, modifying,

or reversing the ALJ’s decision. The ALJ’s factual findings are

conclusive if they are supported by substantial evidence.

(g); Ortiz v . Sec’y of Health & Human Servs.,

(1st Cir. 1991). Substantial evidence is that

which “‘a reasonable mind, reviewing the evidence in the record

as a whole, could accept . . . as adequate to support [the]

conclusion.’” Ortiz,

(quoting Rodriguez v . Sec’y

of Health and Human Servs.,

1 8 , 222 (1st Cir. 1981)).

Thus, the ALJ’s decision is supported by substantial evidence if

it is reasonable.

The ALJ is responsible for settling credibility issues,

drawing inferences from the record evidence, and resolving

conflicting evidence. Id. at 769. If the ALJ’s findings as to

these matters are reasonable, I must uphold them “even if the

record arguably could justify a different conclusion.” Tsarelka

v . Sec’y of Health & Human Servs.,

(1st Cir.

1988). On the other hand, the ALJ’s findings are not conclusive

if they were “derived by ignoring evidence, misapplying the law,

or judging matters entrusted to experts.” Nguyen v . Chater, 172

-11- F.3d 3 1 , 35 (1st Cir. 1999). I apply these standards to the

arguments Graham raises in her appeal.

III. ANALYSIS

The Social Security Act defines disability 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). In order to determine

whether a claimant has a disability resulting from a physical or

medical impairment, the ALJ conducts a five-step sequential

analysis.

(a). The claimant has the burden

at each of the first four steps to show that:

(1) the claimant is not engaged in substantial gainful activity; and (2) the claimant has a severe impairment; and (3) the impairment meets or equals a specific impairment listed in the SSA regulations; or (4) the impairment prevents or prevented the claimant from performing past relevant work.

§ 404.1520(a)(4)(i)-(iv). At step five, the burden shifts to

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

-12- economy that [the] claimant can perform.” Heggarty v . Sullivan,

9 0 , 995 (1st Cir. 1991). The ALJ’s conclusions at

steps four and five are informed by his assessment of the

claimant’s RFC, which is a description of the kind of work that

the claimant is able to perform despite her impairments.

, 404.1545.

ALJ Klingbiel found that Graham was not disabled at the

fifth step of the sequential analysis. ALJ Klingbiel determined

that Graham retained the RFC to perform “a substantially full

range of light exertion work . . . . with a limitation for

overhead reaching with her right arm and frequent use of her

right index [finger] and thumb.” T r . at 292-294. Specifically,

he limited Graham to occasional lifting of twenty pounds and six

hours of standing or walking in an eight-hour day. Id. at 292.

Based on this RFC, ALJ Klingbiel concluded that Graham could not

perform any of her previous work, but could perform other light

exertion jobs existing in the national economy. Id. at 294.

Graham challenges ALJ Klingbiel’s assessment of her RFC.

She argues that in formulating the RFC, ALJ Klingbiel (1)

improperly gave little weight to the RFC assessments provided by

Drs. Schissel and Graf; (2) improperly formulated his own RFC

-13- assessment; and (3) improperly discredited Graham’s testimony

about her capacity for work. I discuss each of Graham’s

arguments in turn.

A. Dr. Schissel’s RFC Assessment

ALJ Klingbiel gave little weight to D r . Schissel’s RFC

assessment, which described limitations consistent with sedentary

work rather than light work. T r . at 293. Graham claims that

this was erroneous because D r . Schissel is a “treating source”

whose RFC assessment must be given controlling weight. See

(d)(2); Social Security Ruling (“SSR”) N o . 96-

2 p , 1996 SSR LEXIS 9, at *1 (1996). I disagree.

First, D r . Schissel is not a “treating source.” A

claimant’s physician is a treating source only if he had “an

ongoing treatment relationship” with the claimant.

, 416.902. An “ongoing treatment relationship” is one in

which the claimant sees or has seen the physician “with a

frequency consistent with accepted medical practice for the type

of treatment and/or evaluation required for [the claimant’s]

medical condition(s).”

The time frame relevant to ALJ Klingbiel’s disability

determination (hereinafter, “the insured period”) is the period

-14- of time between the alleged onset of Graham’s disability in

September 1999 and the expiration of her insured status in

September 2001. D r . Schissel referred Graham to an oncologist

for breast cancer surgery in October 1999 and did not see her

again until January 2002. Thus, D r . Schissel was not a treating

source during the insured period.3

Because D r . Schissel was not a treating source, his RFC

assessment was not entitled to controlling weight. In fact, it

was reasonable for ALJ Klingbiel to give little weight to the RFC

assessment. All of the post-masectomy evaluation and treatment

that D r . Schissel provided occurred after Graham’s insured status

expired. A retrospective medical assessment may have probative

value. Perez v . Chater,

1 , 48 (2d Cir. 1996). Here,

though, D r . Schissel gave no indication that his evaluation was

retrospective, and it apparently reflected Graham’s condition at

the time he treated her. Accordingly, his RFC assessment is of

3 Although Graham claims that she became disabled when she was diagnosed with breast cancer in September 1999, her impairments allegedly stem from the masectomy, which was not performed until November 1999. Thus, even if D r . Schissel saw Graham during September 1999 and October 1999, he did not treat her for the impairment which provides the foundation of her disability claim.

-15- little value with respect to Graham’s impairment during the

insured period.

B. Dr. Graf’s RFC Assessment

Next, Graham challenges ALJ Klingbiel’s decision to give

reduced weight to D r . Graf’s RFC assessment, which described

limitations consistent with an inability to perform even

sedentary work. I conclude that it was reasonable for ALJ

Klingbiel to discount the probative value of D r . Graf’s RFC

assessment.

First, an ALJ may properly give less weight to a medical

opinion that is inconsistent with the record as a whole.

(d)(4). D r . Graf evaluated Graham once, after

her insured status expired. His evaluation of her condition is

inconsistent with the evaluation of D r . Bears, who saw her

several times during the insured period. D r . Bears’ records

indicate that Graham felt reasonably well following her surgery,

and he noted that any residual pain was not severe enough to

pursue. The record does not contain any medical evidence

indicating that Graham suffered from severe pain or fatigue

during the insured period.

Second, a medical opinion should be given less weight if it

-16- does not include “relevant evidence to support [the] opinion,

particularly medical signs and laboratory findings.”

§

404.1527(d)(3). D r . Graf offered no support for his conclusion

that Graham could stand for less than two hours in an eight-hour

day, except to say that Graham had “poor tolerance” for sitting

and walking. T r . at 256. In fact, D r . Graf noted that Graham’s

“general health [was] good.” Id. at 254. Accordingly, I

conclude that it was reasonable for ALJ Klingbiel to reduce the

weight given to D r . Graf’s RFC assessment.

C. ALJ Klingbiel’s RFC Assessment

Graham challenges ALJ Klingbiel’s determination that she can

stand or walk for six hours in an eight hour-day.4 She argues

that because the only formal RFC assessment reaching that

conclusion was provided by a non-physician, ALJ Klingbiel’s

finding lacks substantial evidence. I disagree.

In assessing a claimant’s RFC, the ALJ may consider “all of

the relevant medical and other evidence.”

(a)(3) (emphasis added). Here, ALJ Klingbiel “agreed”

4 The length of time during which Graham can stand or walk is the only significant difference between ALJ Klingbiel’s and Dr. Graf’s RFC assessments.

-17- with the RFC assessment provided by DDS consultant LeBrun, who is

not a doctor. T r . at 292. Under the governing SSA regulations,

it is appropriate for ALJ Klingbiel to consider a non-physician’s

RFC assessment, which amounts to “other evidence.” However, it

would be erroneous for ALJ Klingbiel to rely exclusively on that

RFC assessment. See Zebulske v . Barnhart, N o . 04-49-B,

, at *5 n.2 (D. M e . Oct. 2 5 , 2004).

In this case, ALJ Klingbiel did not rely solely on LeBrun’s

RFC assessment. He also considered the medical records of D r .

Davis and D r . Bears, both of whom treated Graham during the

insured period. T r . at 292. Those records are consistent with

LeBrun’s determination as to Graham’s capacity for standing and

walking. Neither D r . Davis nor D r . Bears noted that Graham was

experiencing profound fatigue. D r . Bears specifically indicated

that any lingering pain resulting from the masectomy was not

severe enough to pursue.

Graham contends that D r . Davis’ and D r . Bears’ notes amount

to “bare medical findings” that ALJ Klingbiel is “not qualified

to assess.” See Gordils v . Sec’y of Health and Human Servs.,

2 7 , 329 (1st Cir. 1990). Again, I disagree. An ALJ is not

“precluded from rendering common-sense judgments about functional

-18- capacity based on medical findings.”

Although D r . Davis and

Dr. Bears did not explicitly address Graham’s functional

limitations, they described her as recovering well from her

masectomy and being in generally good health. It was reasonable

for ALJ Klingbiel to make a “common-sense” determination as to

Graham’s RFC based on these medical records. See

(“[I]f the

only medical findings in the record suggested that a claimant

exhibited little in the way of physical impairments, but nowhere

in the record did any physician state in functional terms that

the claimant had the exertional capacity to meet the requirements

of sedentary work, the ALJ would be permitted to reach that

functional conclusion himself.”)

ALJ Klingbiel also considered Graham’s self-report regarding

her ability to care for her granddaughter and perform housework

during the insured period. T r . at 292. In particular, Graham’s

testimony that she cared for her granddaughter several days a

week supports ALJ Klingbiel’s determination that she retained the

RFC to stand or walk for six hours in an eight-hour day.

Because ALJ Klingbiel considered medical evidence and

Graham’s testimony in addition to DDS consultant LeBrun’s RFC

assessment, I conclude that his finding that Graham could stand

-19- or walk for six hours in an eight-hour day is supported by

substantial evidence.

D. Graham’s Credibility

Finally, Graham argues that ALJ Klingbiel improperly

discredited her subjective testimony that she was not capable of

light exertion work, resulting in a flawed RFC assessment. In

particular, Graham argues that ALJ Klingbiel failed to address

each of the so-called “Avery factors” when he evaluated her

credibility. I conclude that ALJ Klingbiel’s Avery analysis was

sufficient and his credibility determination is supported by

substantial evidence.

Assessment of the claimant’s credibility is the exclusive

province of the ALJ, who observes the claimant, evaluates her

demeanor, and considers how her testimony “fit[s] in with the

rest of the evidence.” Frustaglia v . Sec’y of Health and Human

Servs.,

9 2 , 195 (1st Cir. 1987). The ALJ’s credibility

determination is entitled to deference if it is supported by

substantial evidence.

In determining the credibility of a

claimant’s subjective testimony, the ALJ must consider the entire

record, including objective medical evidence, the claimant’s

statements, information provided by physicians and other people,

-20- and any other relevant evidence. SSR N o . 96-7p, 1996 SSR LEXIS

4 , at *3 (1996).

The First Circuit has directed that in evaluating a

claimant’s subjective complaints of pain and other symptoms, the

ALJ should consider a variety of factors (sometimes known as the

Avery factors) including “(1) [t]he nature, location, onset,

duration, frequency, radiation, and intensity of any pain; (2)

[p]recipitating and aggravating factors (e.g., movement,

activity, environmental conditions); (3) [t]ype, dosage,

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

(4) [t]reatment, other than medication, for relief of pain; (5)

[f]unctional restrictions; and (6) [t]he claimant’s daily

activities.” Avery v . Sec’y of Health & Human Servs.,

9 , 28-29 (1st Cir. 1986); see also SSR N o . 96-7p, 1996 SSR LEXIS

4 , at * 8 . The ALJ’s decision “must contain specific reasons for

the finding on credibility, supported by the evidence in the case

record, and must be sufficiently specific to make clear to the

individual and to any subsequent reviewers the weight the

adjudicator gave to the individual’s statements and the reasons

for that weight.” SSR N o . 96-7p, 1996 SSR LEXIS 4 , at * 1 2 .

Graham contends that ALJ Klingbiel failed to address the Avery

-21- factors in sufficient detail.

Detailed written discussion of the Avery factors is

desirable, see Frustaglia,

, but an ALJ complies

with Avery if he explores the factors at the administrative

hearing. See Lopes v . Barnhart,

(D.

Mass. 2005) (ALJ complies with Avery where he covers all of the

factors at the hearing); Braley v . Barnhart, NO. 04-176-B-W,

, at *17 (D. M e . June 7 , 2005) (ALJ need

not “slavishly discuss each Avery factor”). Here, Graham’s

attorney and ALJ Klingbiel asked Graham questions implicating the

four relevant Avery factors at the hearing.5 See T r . at 313

(discussion of the onset/nature of Graham’s fatigue); 320-21

(discussion of precipitating and aggravating factors); 316-17,

322-24 (discussion of functional restrictions as a result of

Graham’s fatigue); 314-15 (discussion of daily activities); see

also

(DDS questionnaire regarding Graham’s daily

activities).

5 Graham disputes ALJ Klingbiel’s RFC assessment chiefly because it does not credit her subjective testimony about fatigue, which she claims prevents her from standing or walking for longer than two hours in an eight-hour day. Thus, the Avery factors addressing pain medication and treatment are simply not relevant in this case.

-22- In keeping with SSR N o . 96-7p, ALJ Klingbiel gave a specific

reason for his determination that Graham’s testimony was not

entirely credible: he found that Graham’s alleged incapacity for

even sedentary work was inconsistent with her daily activities

during the insured period. I conclude that this credibility

determination is supported by substantial evidence. In her DDS

questionnaire, Graham indicated that her daily activities

included cooking breakfast, lunch, and dinner, cleaning her

house, doing household chores, and caring for her granddaughter.

. Given the level of exertion required to complete

household chores and care for a child, it was reasonable for ALJ

Klingbiel to discredit Graham’s testimony that she could not

perform light work. Accordingly, he properly discounted her

testimony in fashioning his RFC assessment.

IV. CONCLUSION

Because I have determined that ALJ Klingbiel’s denial of

Graham’s benefits was supported by substantial evidence, I affirm

the Commissioner’s decision. Accordingly, Graham’s motion for

reversal (Doc. N o . 18) is denied and the Commissioner’s motion

for an order affirming the decision of the Commissioner (Doc. N o .

-23- 19) is granted. The clerk shall enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

May 9, 2006

cc: Francis Jackson, Esq. Karen Nesbitt, Esq. Dennis Bezanson, Esq. David L . Broderick, AUSA

-24-