Alma M. Anderson v. SSA CV-07-099-PB 02/04/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Alma A. Anderson

v. Civil No. 07-099-PB Opinion No. 2 008 DNH 219 Michael J. Astrue, Commissioner, Social Security Administration

REPORT AND RECOMMENDATION

Claimant Alma A. Anderson seeks review of a final decision

of the Commissioner of the Social Security Administration denying

her application for disability insurance benefits. See

(g). Pending before the court are claimant's Motion for

Summary Reversal of the Decision of the Commissioner (document

no. 9) and respondent's Motion for an Order Affirming Decision of

the Commissioner (document no. 10). For the reasons that follow,

I recommend that the court deny claimant's Motion for Summary

Reversal and grant respondent's Motion for an Order Affirming the

Decision of the Commissioner. I. BACKGROUND1

A. Procedural Background

Claimant was 56 years old when an administrative law judge

issued the third final decision in this matter, on December 2,

2005, and was 47 years old when her insurance coverage ended, on

March 31, 1997 (Tr. at 14-22, 238-46, 375-81) . She filed her

first application for benefits on July 23, 1998, alleging

disability beginning July 15, 1995 (Tr. at 103-06). That

application was denied on July 16, 1999. Claimant appealed that

decision to this court, which remanded the matter for further

proceedings due to inconsistencies between the findings of the

administrative law judge ("ALJ") and the testimony of the

vocational expert during the first administrative hearing. See

Anderson v. Comm'r, Soc. Sec. Admin., No. 00-cv-553-JD, slip op.

(D.N.H. Mar. 19, 2002) (Tr. at 287-96) ("Anderson I"). The Court

found that the correct hypothetical question posed to the

vocational expert was the one asked by claimant's counsel, not

the one relied upon by the ALJ. The Court, therefore, reversed

the ALJ's decision, finding it was premised on a factual error.

1The facts are taken from the Joint Statement of Material Facts, filed on September 4, 2007 (document no. 11).

2 On remand, a supplemental hearing was held and a second

final decision was issued, on April 23, 2003, again denying

claimant's application for benefits (Tr. at 235-46). Claimant

appealed that decision to this court, see Anderson v. Comm'r,

Soc. Sec. Admin., No. 04-cv-195-SM, but on September 27, 2004,

by agreement of the parties, the matter was again remanded back

to the Commissioner ("Anderson II").

On this second remand, the Social Security Administration

Appeals Council instructed the ALJ to consider the complete

record of claimant's mental health impairment and her maximum

residual functional capacity, and to obtain additional evidence

from a vocational expert in light of these considerations (Tr. at

402-03). The Appeals Council further instructed the ALJ to

provide specific references to the record evidence that supported

the assessed limitations, and to clarify the effect of the

assessed limitations on claimant's occupational base. The matter

was assigned to a new ALJ, and a de novo hearing was held on

November 9, 2005 (Tr. at 430-466). On December 2, 2005, the ALJ

again denied the claim for benefits (Tr. at 372-81) . The Appeals

Council denied review of this third decision, rendering it the

final decision and subject to this court's review.

3 B. Factual Background

Claimant has a high school education and has past relevant

work experience as a home health aide, a clerical assistant, an

insurance clerk and a receptionist. She alleges that she became

disabled on July 15, 1995, due to pain in her arms and wrists.

The medical evidence related to her physical limitations shows

that she has bilateral upper extremity tendinitis, specifically

in her wrists and forearms.

In November 1994, claimant was first diagnosed with carpal

tunnel syndrome by her family physician. Dr. Barry L. Stern. He

treated claimant with splints and anti-inflammatory medication

and referred her to a neurologist. A nerve conduction test was

performed on December 7, 1994, which revealed no evidence of

carpal tunnel syndrome (Tr. at 148). Claimant then went to an

orthopaedic surgeon. Dr. Stanley Markman, on March 13, 1995, who

examined claimant and stated that she had wrist and forearm

tendinitis due to typing associated with her job, but that the

condition was essentially resolved and she no longer suffered

from any restrictions (Tr. at 161). One week later, however, on

March 21, Dr. Stern, opined that she suffered from "overuse

syndrome of both wrists," and noted that while she could use a

4 telephone and do filing without limitation, use of keyboards and

writing should be limited (Tr. at 149) .

By May 2, 1995, the bilateral tendinitis returned due to

over-exertion. At that time, claimant was examined by Dr. Daniel

Perri, a physiatrist^ and the medical director of Farnum

Rehabilitation Center, Cheshire Medical Center, in Keene, New

Hampshire, who determined the condition could be treated with

rest and non-steroid anti-inflammatory drugs (Tr. at 167). On

June 2, 1995, Dr. Perri noted that claimant had not worked in

seven to eight weeks, and her tendinitis had improved. He

concluded that claimant could return to her job as a clerical

assistant without restrictions (Tr. at 169-70). Claimant did

return to work but was laid off on July 14, 1995 (Tr. at 171) .

On July 13, 1995, plaintiff was examined by Dr. Stern. She

reported that her tendinitis caused occasional pain but, overall,

it was "not too bad," and she hardly used her wrist splints. Dr.

Stern found no evidence of swelling or tenderness, and noted that

upper extremity strength, reflexes, and sensation were all within

normal limits (Tr. at 171) .

iA physiatrist is a medical doctor who specializes in physical medicine and who administers physical therapy. See http://dictionary.reference.com/browse/phvsiatrist.

5 In December 1995, claimant began treatment for depression

with Dr. Richard Stein. Dr. Stein prescribed anti-depression

medication. Claimant reported that she struggled to cope with

the lingering pain in her arms. Although she did not have a job

at that time, she regularly babysat her granddaughter a couple

days a week.

Another orthopedist. Dr. John Chard, examined claimant in

July 1996. Dr. Chard found claimant had developed tendinitis and

a muscle disorder in her forearms. He recommended claimant treat

both her depression and tendinitis with an exercise program. On

October 17, 1996, Dr. Stern saw claimant again and noted that she

suffered from severe tendinitis in both wrists, which caused

considerable general discomfort (Tr. at 152). Dr. Stern also

sought to treat claimant's depression and prescribed medication.

Claimant's attorney requested she see the psychiatrist. Dr.

Stein, again; however, claimant discontinued her therapy with him

for financial reasons.

On November 20, 1996, claimant was seen by Dr. Robert Serro,

who had replaced Dr. Perri at the Farnum Rehabilitation Center.

Dr. Serro found that claimant's wrist pain was in the 5-6 range

on a 10 point scale, which worsened when holding things or

6 typing, but that she had no swelling, asymmetry or abnormality.

He also stated that there had been no significant change in her

condition over the past several years (Tr. at 173). Claimant

reported that she was not using her wrist splints and had stopped

taking anti-inflammatory medication. Dr. Serro concluded that

claimant continued to suffer from severe bilateral flexor

tendinitis and recommended she resume the exercise and medication

program she had done previously, which had helped her condition

improve.

Dr. Serro also ordered a complete functional capacity

evaluation, which was done in January 1997 (Tr. at 174). The

evaluation determined that claimant's ability to lift, carry,

push, pull, and do fine motor tasks with both hands was limited,

but that she was still capable of performing light to medium duty

work (Tr. at 176-81). Based on a number of limitations, the

evaluator noted that claimant's limitations were due to a

breakdown in body mechanics, and he reported she had pain in both

arms (Tr. at 181). The evaluator determined that although

claimant could not perform her past relevant work, she could

perform sedentary work that did not require fine motor tasks (Tr.

at 181).

7 Claimant was referred to a work conditioning program, which

lasted two hours per day for four to six weeks. Plaintiff

attended the program, but was let go after four weeks because,

rather than alleviate her pain, it caused her pain to increase.

She was reevaluated on May 2, 1997, and was found to have

improved her functional capacity to "light-medium" exertional

work. The evaluation form also stated, "improving her present

capacity to Strong Medium level will provide a wider range of

options for return to work plans" (Tr. at 184-87).

On May 27, 1997, Dr. Stern opined that claimant's chronic

tendinitis in the wrists made it impossible for her to work

"unless she found new employment at light to moderate" (Tr. at

156). He also noted that despite physical therapy, she still had

trouble using her hands with any repetitive motion (Tr. at 156).

On December 5, 1997, Dr. Serro concluded that claimant could

perform within the light/medium work capacity, and further noted

that "...there would be no restrictions on bending, kneeling,

squatting, climbing, walking, sitting, reaching or driving.

[Claimant] would have some limitations in fine motor movement,

and she could occasionally do fine motor movement. There should

be limitation of repetitive movements to both wrists. [Claimant] would have difficulty doing any activities such as typing for

more than one hour at a time." (Tr. at 189) .

In October 1997, claimant referred herself to another

orthopedist. Dr. Gerald DeBonis, for a "second opinion" (Tr. at

202). Dr. DeBonis "agreed with her treating physicians to date

that she appears to have an overuse syndrome involving the upper

extremities at the level of the forearm and hand," and concluded

she had symptoms of carpal tunnel syndrome, flexor tendinitis

and, perhaps, myofascial syndrome3 (Tr. at 203) . Dr. DeBonis

referred claimant to a neurologist. Dr. Rand Swenson, who

examined claimant on December 9, 1997 (Tr. at 199).

Claimant told Dr. Swenson that she had stopped taking

medications for her physical limitations, because she had taken

Daypro and other non-steroidals, such as Aleve, for almost a year

without much benefit. Dr. Swenson performed sensory and nerve

conduction tests that showed claimant was within normal limits

(Tr. at 200-01). He concluded that claimant suffered from

tendinitis and myofascial pain. On March 23, 1998, Dr. DeBonis

examined claimant again and concluded she suffered from overuse

3"Myofascial syndrome" describes generally muscle pain, in particular pain and inflammation in the body's soft tissues. See http://www.webmd.com/search.

9 syndrome of both upper extremities, which was causally related to

her work activity. Dr. DeBonis opined that claimant had a

permanent partial (5%) impairment of the upper extremities,

resulting in a 9% impairment of her whole person (Tr. at 206-07) .

On October 28, 1998, Dr. Charles Meader, a state agency

medical consultant, reviewed the medical records and completed a

physical residual functional capacity assessment of claimant (Tr.

at 208-17). He also concluded claimant suffered from tendinitis

of both wrists and mild carpal tunnel syndrom. He determined,

however, that claimant was capable of working at the light

exertional level and could grasp, write and hold objects, but was

limited in both fine and gross manipulation skills. She was to

avoid repetitive overhead lifting and reaching. He explained the

reasons supporting his findings in a detailed narrative (Tr. at

214-15). Dr. Header's assessment was affirmed by a state agency

in December 1998 (Tr. at 292) .

The final administrative hearing was held on November 9,

2005. Claimant testified that she was 56 years old and had not

worked for pay since July 15, 1995 (Tr. at 438-39) . She stated

she had worked as an insurance processing technician, from 1985

to 1989, and as a receptionist. After her last position was

10 eliminated in July 1995, she signed up for temporary work but was

not called (Tr. at 440).

Claimant testified that she had been hospitalized twice for

depression, but could not recall the dates she was hospitalized

(Tr. at 442). She has suffered from abuse, neglect and

depression. She explained that she had been placed on

medication, probably in 1994 although she was not certain of the

date, but had stopped taking it because the anti-depressants did

not work (Tr. at 440). She testified that she had tried

vocational rehabilitation assistance, doing filing on a volunteer

basis, but it proved too much for her so shestopped thattoo.

Claimant noted that in 1995 she was notable to return to

work, after a two month leave of absence. Although she was told

to do whatever she could and she tried to work, it hurt terribly.

She kept a record of which days it hurt the most. She was in

pain all the time. Claimant said she was a loyal person, was

trying to do things and to ignore the injury, and she did the

best she could (Tr. at 449). Her position, however, was

eliminated (Tr. at 446). Claimant also testified that she had

been treated for depression in 1997. She recalled having trouble

interacting with others because she was embarrassed. This made

11 it difficult for her to deal with the public, as she would feel

anxious whether sitting or standing, without any clear

correlation to what she was doing (Tr. at 451) .

She admitted that when Dr. Serro told her he did not think

she would ever type again, and when she received the results of a

functional capacity evaluation test, she withdrew into herself.

She testified that she backed out of invitations and isolated

herself, because she was ashamed and did not want people to know

how much she hurt (Tr. at 447-48). Friends just disappeared.

Claimant has two children who live approximately an hour away,

and she has been able to maintain contact with them. She also

has two grandchildren, ages ten and seven, whom she sees once in

a while; however, she has stopped making family meals (Tr. at

448) .

At the time of the hearing, claimant had a driver's license

and drove a car to a job she had begun in June 2005, that was

located five miles from her home. The job involved answering

phones and was provided to her under "Title Five." She was

participating in a program for people over 55 that have low

income or no income. She earned roughly $100 a week, at a wage

of $5.25 an hour. She stated that she sometimes feels blank.

12 depressed or sad when working, and does not know whether she is

being evaluated on the job (Tr. at 444). She just shows up and

is there (Tr. at 453) .

On the date of the hearing, claimant was taking Klonopin for

anxiety four times a day, as well as Trazadone at night to help

her sleep; however, the antidepressants she had been prescribed

had not helped her (Tr. at 452). At that time, she had

difficulties with concentration and maintaining a certain pace.

She explained that, during the day, she takes breaks to go to the

ladies' room to compose herself, andsometimes she cries at her

desk (Tr. at 454). She also suffers from stomach aches.

Tim Sutton, a vocational expert, also testified at the

November 9, 2005 hearing. He described claimant's past relevant

work as a clerical assistant, insurance clerk and receptionist as

all semi-skilled in nature. The ALJ asked a hypothetical

question, whether claimant could perform any of her past relevant

work given her physical limitations, including no overhead

repetitive lifting, reduced fine manipulation, and no prolonged

positioning of the upper extremities. The expert noted that,

even with these limitations, claimant could perform the job of a

receptionist (Tr. at 460-61). Claimant's attorney then asked the

13 vocational expert whether limiting typing or writing to five

minutes at a time would impact the availability of work as a

receptionist. The vocational expert replied that it would reduce

the job base by half, explaining that the erosion of fifty

percent of the job base assumed that the receptionist would type

for five minutes, rest for five minutes, and again type for five

minutes before resting again (Tr. at 463). When asked further

how the job base would be impacted if one had trouble interacting

with the public due to affect and sadness, which required a break

at least every half hour, the vocational expert acknowledged that

the job base would be eliminated if that difficulty were marked

or severe (Tr. at 465).

After the hearing, the ALJ followed the five-step sequential

evaluation process described in

(a), and

issued a decision on December 2, 2005. The ALJ found: (1) the

claimant met the necessary disability insured status until March

30, 1997, and has not engaged in any substantial gainful

activity, as defined by

, since the onset of

her disability on July 15, 1995; (2) although the claimant has

"severe" impairments, including bilateral upper extremity

tendinitis and depression, no single impairment or combination of

14 impairments met or equaled the severity of an impairment

described in Appendix 1, subpart P, Regulations No. 4; and (3)

the claimant retained the residual functional capacity to perform

her past relevant work as a receptionist (Tr. at 376-78).

Because the impairments did not prevent her from performing her

past relevant work as a receptionist, the ALJ determined that

claimant was not disabled from July 15, 1995 through the date she

was last insured, March 31, 1997 (Tr. at 379-80).

II. Discussion

A. Standard of Review

Claimant has a right to judicial review of the decision to

deny her Social Security benefits. See

(g) (Supp.

2007). The court is empowered to affirm, modify, reverse or

remand the decision of the Commissioner, based upon the pleadings

and transcript of the record. See

The factual findings of

the Commissioner shall be conclusive, however, so long as they

are supported by "substantial evidence" in the record. See Ortiz

v. Sec'v of Health & Human Servs.,

(1st Cir.

1991) (quoting

(g)). "Substantial evidence" is

"'more than a mere scintilla. It is such relevant evidence as a

reasonable mind might accept as adequate to support a

15 conclusion.'" Richardson v. Perales,

(1971)

(quoting Consol. Edison Co. v. NLRB,

(1938));

see also Currier v. Sec'v of Health & Human Servs.,

(1st Cir. 1980). The Commissioner is responsible for

resolving issues of credibility and drawing inferences from the

evidence in the record. See Rodriquez v. Sec'v of Health & Human

Servs.,

(1st Cir. 1981) (reviewing court must

defer to the judgment of the Commissioner). The issue before the

Court is not whether it agrees with the Commissioner's decision,

but whether that decision is supported by substantial evidence.

See

Finally, the court must uphold a final decision denying

benefits unless the decision is based on a legal or factual

error. See Manso-Pizarro v. Sec'v of Health & Human Servs.,

(1st Cir. 1996) (citing Sullivan v. Hudson,

(1989) ) .

B. Claimant's Arguments

Claimant makes several arguments in support of her claim

that the Commissioner's denial of benefits should be reversed.

First she contends that, on remand from Anderson I, the ALJ erred

by not following the clear instructions of Judge DiClerico.

Second, she argues the December 2, 2005, final decision is not

16 supported by substantial evidence. In support of this

contention, claimant asserts that: (a) the ALJ erred by not

attributing controlling weight to the opinions of her treating

physicians; (b) the ALJ erroneously concluded her testimony was

not credible, because he focused on medical evidence which failed

to produce an objective basis for debilitating pain; and (c)

finally, the ALJ should have relied, in part, on her testimony

from the 1999 hearing when her memory was fresher. After

carefully considering claimant's arguments, for the reasons set

forth below, I find that the final decision was correct.

1. Judge DiClerico's Remand Order

Claimant argues that it is legal error for administrative

proceedings to deviate from a remand order, citing Sullivan v.

Hudson,

(1989). "Deviation from the court's

remand order in the subsequent administrative proceedings is

itself legal error, subject to reversal on further judicial

review."

(citations omitted). Claimant asserts that Judge

DiClerico's remand order required an award of benefits based on

the then-current record, and that it was error to reopen the

proceedings and reconsider the evidence.

Judge DiClerico's remand order was based on a finding that

17 the ALJ had made a factual error in reaching his final decision.

See Anderson I, slip op. at 10 (Tr. at 296) ("remand order").

The Court found that the ALJ had posed a hypothetical question to

the vocational expert that assumed claimant could work longer

than the record evidence demonstrated, and that ignored the

evidence that accurately reflected her residual functional

capacity. The ALJ erred when he relied on the expert's answer,

because the hypothetical facts were inconsistent with the record.

The decision, therefore, was reversed and the matter was remanded

for further consideration of the actual evidence. See

slip

op. at 8-10 (Tr. at 294-96).

On remand before the same ALJ, he again found claimant was

not disabled, following the five-step sequential analysis

process. On January 27, 2004, that decision was affirmed by the

Appeals Council, which determined that the ALJ had complied with

the remand order by further evaluating claimant's residual

functional capacity and obtaining additional vocational testimony

about which jobs she could perform given her residual functional

capacity (Tr. at 229). On appeal to this court the second time,

claimant did not assert that the ALJ had neglected to follow the

remand order, but instead challenged the ALJ's failure to

18 consider her mental health problems. See Anderson II. When the

Court remanded this matter back to the Commissioner a second

time, a new ALJ was instructed to evaluate claimant's mental

impairment, to give further consideration to her maximum residual

functional capacity during the entire period at issue, to provide

specific reference to the evidence of record in support of the

assessed limitations, and to obtain evidence from a vocational

expert to clarify the effect of the assessed limitations on

claimant's occupational base. Those instructions led to the

third final decision claimant now challenges here.

I find that the remand order did not require the

Commissioner to award claimant benefits, as she asserts now, but

simply required the ALJ to resolve the claim to be consistent

with the findings in the record about her ability to work. The

remand order specifically stated, "[t]he case is remanded to the

agency for further proceedings, pursuant to sentence four of §

405(g)." Anderson I, slip op. at 10 (Tr. at 296). Sentence four

of § 405(g) empowers the reviewing court to, among other things,

reverse the decision of the Commissioner, "with or without

remanding the cause for a rehearing."

(g). Judge

DiClerico deliberately ordered "further proceedings," when he was

19 not statutorily required to do so. Had Judge DiClerico wanted to

simply reverse the denial and award benefits, he could have done

so. See

The subsequent proceedings followed the remand

order, to resolve the inconsistencies in the first decision and

determine claimant's eligibility for benefits based on the actual

factual record, rather than on a hypothetical factual premise.

The record demonstrates that the Commissioner properly

followed the remand order. Because claimant has not shown that

the subsequent proceedings deviated from the remand order, I do

not find any legal error on which to base a reversal of the final

decision now under review. See Sullivan,

.

Claimant's first argument for reversal fails.

2. Substantial Weight of the Evidence

(a) Opinions of the Treating Physicians

Claimant next argues that the ALJ did not give sufficient

weight to the opinions of Drs. Perri, Swenson, Vidal, Baldwin,

Stern and Serro. She contends that these doctors' opinions

consistently stated that she suffered from some degree of

tendinitis and myofascial pain, which limited her ability to

perform tasks involving prolonged use of her forearms and hands.

Claimant asserts that these opinions are "binding on the fact

20 finder unless contradicted by substantial evidence," citing

(d)(2). She concludes that because defendant's

own consulting physician found her credible and agreed she

suffered from tendinitis, the opinions are supported, not

contradicted, by substantial evidence, and the ALJ's

determination should be reversed.

A treating physician's opinion is entitled to controlling

weight if it is "well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with

other substantial evidence in [the] case record."

(d)(2); see also Sitar v. Schweiker,

(1st

Cir. 1982) (balancing weight given treating physician against the

entire record). If the treating physician's opinion is not

accorded controlling weight, the ALJ will consider all the

evidence, including the results of consultant examinations, see

(c)(2), and will weigh the treating

physician's opinion based on: (i) the length, nature and extent

of treatment; (ii) how much the opinion is supported by objective

medical findings (e.g. laboratory tests); and (iii) how

consistent the opinion is with the entire record, among other

factors. See

(d)(1-6) (listing factors

21 affecting weight given to medical evidence). Opinions of non­

treating physicians that are supported by other evidence in the

record may constitute substantial evidence. See Gordils v. Sec'

of Health & Human Svcs,

(1st Cir. 1990)

(combining the opinions of consulting doctors to find substantial

evidence); see also Sitar,

.

Applying these factors to the final decision before me, it

is apparent that the ALJ gave substantial weight to claimant's

treating physicians, but simply reached the opposite result from

what claimant wanted. As an initial matter, it is undisputed

that claimant's insurance coverage ended on March 31, 1997;

accordingly, claimant may only rely on medical opinions that

address her condition before March 31, 1997, to demonstrate her

claimed disability. See

(explaining insured

status) & §§ 404.130-404.131 (determining insured status).

Claimant correctly notes that the record contains

substantial evidence that claimant has suffered from upper

extremity neuromuscular problems and mental health impairments.

As early as November 1994, claimant's family physician. Dr.

Stern, diagnosed claimant with carpal tunnel syndrome. Although

nerve conduction testing in December 1994 did not support that

22 diagnosis, the tests demonstrated that claimant suffered from

tendinitis caused by over-use in her job, which was confirmed by

Dr. Markman, an orthopaedic surgeon. Dr. Perri, the physiatrist

at the rehabilitation hospital, stated on April 26, 1995, that

claimant could only do sedentary work, which would involve

sitting with limited standing, and which restricted lifting to a

maximum of ten pounds and occasionally carrying small articles.

He also restricted claimant's use of her hands for grasping,

keyboarding, writing, telephone or calculator work, and filing to

an hour at a time, for a total of five hours a day (Tr. at 190).

The diagnosis and restrictions on her work capacity were fairly

consistently acknowledged and upheld throughout the record, e.g..

Dr. Chard's July 1996 diagnosis. Dr. Stern's confirmation of same

in October 1996, and Dr. Serro's January 1997 assessment. The

record also supports the finding that claimant has endured

depression, if not other mental health impairments, and sought

treatment for those problems from Dr. Stern and Dr. Stein.

These medical findings, however, do not prove that claimant

is disabled and cannot work. Claimant would be considered

disabled if she were unable to "engage in any substantial gainful

activity by reason of any determinable physical or mental

23 impairment which can be expected to result in death or has lasted

or can be expected to last for a continuous period of not less

than 12 months." See Thomas v. Sec'v of Health & Human Servs.,

659 F .2d 8, 9 (1st Cir. 1981) (quoting

(1)(1)(A)

and citing § 423(d)(1)(A)). The record here contains no evidence

that claimant suffers from a physical or mental impairment that

can be expected to cause her death or which lasted continuously

for more than one year. To the contrary, the record contains

substantial evidence that, despite her health problems, claimant

could have returned to work in a light to medium exertional level

capacity.

Both Dr. Stern and Dr. Perri concluded that claimant could

have returned to work with restricted conditions. She did return

to work in 1995 and stopped, not because of her medical problems,

but because the job was eliminated. The record demonstrates that

claimant's condition improved from the vocational rehabilitation

program she attended in 1997. The record also shows that while

claimant had been advised to seek counseling, she chose not to

pursue it, and that she also stopped using her splints and taking

her prescribed medications. Claimant testified in 2005 that she,

in fact, did work, babysitting her grandchildren a few days a

24 week and working part-time as a receptionist.

The ALJ concluded that claimant had the residual functional

capacity to lift 20 pounds occasionally, to lift up to 10 pounds

repetitively, and to push/pull up to 80 pounds, but that she

needed to avoid repetitive overhead lifting and prolonged

positioning of the upper body (Tr. at 379). This conclusion was

based on the January 1997 functional capacity testing performed

at the Farnum Rehabilitation Center by Dr. Serro, who believed

that claimant could do light to medium work with limitations, and

that she needed to have a variety of activities to give her

forearms and hands their necessary rest. The ALJ found Dr.

Serro's opinion was consistent with the treating physicians'

opinions, as well as with claimant's activity level. The ALJ

also determined that claimant was not further restricted because

of her depression. The ALJ concluded by noting that "[n]o

treating source reported any problems with performing activities

of daily living, maintaining social functioning or sustaining

attention, concentration and pace." (Tr. at 379).

The final decision denying claimant disability benefits was

supported by the substantial weight of the evidence. The record

demonstrates that the ALJ considered the treating doctors'

25 medical opinions and reached a conclusion that was not

inconsistent with that evidence. Claimant's argument for

reversal on this basis, therefore, is denied.

(b) Claimant's Credibility

Claimant next argues that the ALJ improperly found her not

credible and based that finding on medical evidence that did not

objectively demonstrate her pain. Citing Gray v. Hecklerv,

(1st Cir. 1985), claimant contends that subjective

symptoms can support a claim for disability.

The Commissioner is responsible for resolving issues of

credibility, and deference is accorded those determinations

unless they are not supported by substantial evidence. See

Rodriquez,

; see also Ortiz v. Sec'v Health &

Human Servs.,

(1st Cir. 1989) (deferring to the

ALJ's assessment of subjective complaints of pain); Brown v.

Sec'v of Health & Human Servs.,

(D. Mass.

1990) (citing Frustaqlia v. Sec'v of Health & Human Servs.,

(1st Cir. 1987) for rule that deference must given

the ALJ who has heard the testimony and observed the claimant).

Here, the ALJ specifically considered "claimant's subjective

assertions of disabling symptoms," and found "she cannot be

26 accepted as fully credible in this regard" (Tr. at 379). The ALJ

discounted claimant's alleged pain, because it had not required

her to take any pain medication and had not precluded her from

caring for her grandchildren or traveling with her husband. The

ALJ also found it significant that claimant had opted not to

pursue therapy for her depression.

In Avery v. Sec'v of Health & Human Servs.,

(1st

Cir. 1986), several factors were identified as relevant to the

analysis of alleged disabling pain. See

. The court

explained that pain can establish the severity of a medically

determinable physical or mental impairment. Claimant here seems

to argue that her subjective feeling of pain is greater than the

objective medical findings of her limitations. In such

circumstances, the ALJ is required to obtain information about:

the nature, location, onset, duration, frequency, radiation and

intensity of any pain; precipitating and aggravating factors;

type, dosage, effectiveness and adverse side-effects of any pain

medication; treatment, other than medication, for the pain;

functional restrictions; and descriptions of claimant's daily

activities. See

; see also Mandziei v. Chater,

(D.N.H. 1996) (considering daily exercise

27 regimen in assessing disability); 20 C.F.R. §§ §404.1529 and

416.929(c)(3). "In evaluating a claimant's subjective complaints

of pain, the adjudicator must give full consideration to all of

the available evidence, medical and other, that reflects on the

impairment and any attendant limitations of function." Avery,

797 F .2d at 29.

My review of the final decision and the record supporting it

leads to the conclusion that the ALJ followed the Avery

guidelines in evaluating claimant's alleged disabling pain. The

ALJ specifically cited claimant's decision not to seek therapy

for her depression and her ability to babysit her grandchildren

and travel with her husband as minimizing the alleged severity of

the pain. In addition, the record demonstrates claimant elected

not to wear her wrist splints, chose to stop taking medications

prescribed to treat both her physical and her mental impairments,

and remains able to drive to work. This evidence casts further

doubt on the severity of claimant's alleged pain. I am required

to defer to the credibility determinations and inferences drawn

by the ALJ, as long as they are not inconsistent with the weight

of the evidence. I do not find any reversible error based on the

ALJ's discounting of claimant's credibility.

28 (c) Testimony at the 1999 Hearing

Claimant's final argument is that the ALJ should have

relied, at least in part, on her testimony from the 1999 hearing,

when her memory was fresher. It is not clear for what purpose

claimant advances this argument4, but I will assume she makes it

to counter the ALJ's finding that claimant was not wholly

credible about her disability, i.e., the testimony from 1999

would have made claimant more credible. Claimant seems to argue

that had the ALJ properly understood the remand order, the ALJ

would have considered the 1999 hearing testimony.5

The ALJ, however, stated that she had carefully reviewed the

entire record (Tr. at 379, 380). I find that the ALJ conducted a

comprehensive review of the medical record, including evidence

outside of the covered period. There is no basis to believe that

the ALJ did not consider the transcript of the 1999 hearing when

she reviewed the record. The rationale behind the final decision

reflects a careful review of the entire record, and a careful

4Defendant does not even address this argument.

5In her brief, claimant cites the ALJ's statements at the November 9, 2005, hearing, that the proceedings had gone beyond the remand order and that she was not bound by it (Tr. at 435), to support her position that the ALJ did not properly base her decision on the record adduced at the 1999 hearing.

29 assessing of credibility based on that review. The power to

resolve conflicts in the evidence lies with the Commissioner, not

with the doctors or the courts. See Rodriquez, 647 at 222. In

the resolution of such conflicts, I cannot say that the ALJ's

decision was not supported by substantial evidence. I do not

find that the ALJ ignored any critical factual or legal issue

when issuing the final decision. If there is a substantial basis

in the record for an ALJ's decision, the court must affirm the

decision, whether or not another conclusion is possible. See

Ortiz,

. I cannot conclude that a reversal is

warranted based on the ALJ allegedly not considering the

claimant's testimony from 1999.

CONCLUSION

While claimant may very well have experienced depression

during the covered period, and certainly suffered from severe

bilateral tendinitis which caused her significant pain, the

evidence of record supports the conclusion that her mental

condition in combination with her physical condition did not

manifest themselves in sufficient functional limitations during

the covered period to require a finding of disability prior to

March 30, 1997. Looking at the evidence as a whole, I find that

30 there is no good reason to remand or reverse. I, therefore,

recommend that claimant's Motion for Summary Reversal of the

Decision of the Commissioner (document no. 9) be denied, and that

respondent's Motion for an Order Affirming Decision of the

Commissioner (document no. 10) be granted.

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court's order. See Unauthorized Practice of

Law Comm, v. Gordon,

(1st Cir. 1992);

United States v. Valencia-Copete,

(1st Cir. 1986).

\R. Muirhead V ^eKStates Magistrate Judge

Date: February 4, 2008

cc: Michael C. Shklar, Esq. David L. Broderick, Esq. United States Social Security Administration

31