Lalime v. SSA CV-08-196-PB 04/13/09

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Helen Rena Lalime

v. Case N o . 08-cv-196-PB Opinion N o .

Michael Astrue, Commissioner Social Security Administration

MEMORANDUM AND ORDER

Pursuant to

(g), Helen Rena Lalime challenges

the Commissioner of the Social Security Administration’s (the

“Commissioner”) decision that she is not entitled to Social

Security Disability Benefits under Title II of the Social

Security Act. Lalime argues that this court should either

reverse the Commissioner’s ruling or remand the case for further

hearing. For the reasons set forth below, I deny Lalime’s

request.

I. BACKGROUND

The background facts are set forth in much detail in the

parties’ joint statement of material facts (Doc. N o . 9 ) . The

following is a summary.

A. Lalime’s Medical History

Plaintiff Helen Lalime, currently fifty years old, is a

former liquor store cashier and stocker and airline baggage

handler. (Pl.’s Mot., Doc. N o . 6-2, at 1.) In late 2001, Lalime suffered an injury to her right shoulder, which was later

diagnosed more precisely as a rotator cuff issue, while closing

an aircraft door at work. On January 2 5 , 2005, D r . William

Mitchell, an orthopaedic surgeon, examined Lalime’s right

shoulder, diagnosed symptomatic rotator cuff tear, and

recommended surgery.1 (Joint Statement of Facts, Doc. N o . 9, at

1.) An MRI of Lalime’s right shoulder, dated February 2 6 , 2005,

revealed tendinitis,2 extensive edema3 in the acromioclavicular

joint,4 mild degenerative hypertrophic5 change in the

acromioclavicular joint with caudal spurring6 abutting the

superior aspect of the supraspinatus myoteninous junction region,

1 In January 2005, Lalime was forty-seven years old. 2 The parties have agreed to the appropriate definitions for the various medical terms at issue. This order adopts those definitions. Tendinitis is the “inflamation of tendons and of tendon-muscle attachments.” (Joint Statement of Facts, Doc. N o . 9, at 3 n.6 (quoting Dorland’s Illustrated Medical Dictionary 1746 (30th ed. 2003)). 3 Edema is “the presence or [sic] abnormally large amounts of fluid in the intercellular issue [sic] spaces of the body, usually referring to demonstrable amounts in the subcutaneous tissues.” (Id. at 4 n.7.) 4 “The acromioclavicular joint is the place of union or junction between the acromion and the clavicle.” (Id. at 4 n.8.) 5 Hypertrophic means marked by hypertrophy, which is “the enlargement or overgrowth of an organ or part due to an increase in size of its constituent cells.” (Id. at 4 n . 9.) 6 A spur is “a spiked object or other type of goad.” (Id. at 4 n . 10.)

-2- and small joint effusion7 and a small amount of fluid in the

subacromial-subdeltoid bursa.8 (Id. at 4.)

Lalime first underwent surgery for her shoulder on April 2 0 ,

2005, when D r . Mitchell performed a glenhumeral debridement and

arthoscopic subacromial resection of Lalime’s right rotator cuff.

(Pl.’s Mot., Doc. N o . 6-2, at 1.) Lalime followed a physical

therapy regiment, but in September 2005, “it was reported that

Plaintiff was making slow progress with function.” (Joint

Statement of Facts, Doc. N o . 9, at 5.) A physical exam revealed

persistent apprehension in extremes of motion, stable range, and

intact neurovascular functioning. On January 2 4 , 2006, D r .

Mitchell noted persistent glenohumeral instability, and in March

2006, Lalime had arthrosporic capsulorrhaphy performed on her

right shoulder. (Id.) In April 2006, Lalime had right shoulder

arthroscopy, and again underwent physical therapy shortly

thereafter. (Id. at 6.)

The record contains a function report, dated March 2 9 , 2006,

wherein Lalime detailed the tasks she completed in a typical day.

She reported that she watched television, read, prepared simple

meals, cared for her personal needs, surfed the internet, and

7 Effusion is “the escape of fluid into a part or tissue.” (Id. at 4 n.11.) 8 A bursa is “a sac or saclike cavity filled with a viscid fluid and situated at places in the tissues at which friction would otherwise develop.” (Id. at 4 n.12.)

-3- cared for her dog. (Tr. at 135.) She further stated, “I cannot

work because I have difficulty using my right shoulder due to

pain and weakness.” (Id.) Lalime explained that because she is

right-hand dominant, she had learned to use her left arm when

performing necessary daily tasks. She noted that she cleaned her

home once a week, but was required to take frequent breaks

because of shoulder pain. (Joint Statement of Facts, Doc. N o . 9,

at 8.) Although Lalime reported that she had difficulty reaching

above her head, getting up from a squatting position, and using

her right arm to lift things, she “otherwise stated that she had

no difficulty walking, bending, standing, sitting, talking,

hearing, concentrating, understanding, following instructions, or

getting along with others.” (Id.)

After Lalime filed an application for Disability Insurance

Benefits in February 2006, Hugh Fairley, a state agency

physician, reviewed Lalime’s medical records and completed a

physical residual functional capacity (“RFC”) assessment on May

3 0 , 2006. (Id.) D r . Fairley determined that Lalime had a right

shoulder rotator cuff tear, and he opined that she could “lift 20

pounds occasionally, lift 10 pounds frequently, stand and/or walk

for about six hours in an eight-hour workday, and sit for a total

of about six hours in an eight hour work day.” (Id.) He also

opined that Lalime was limited in her ability to pull, push, and

reach with her upper right extremity, and that she was limited to

-4- occasional climbing and frequent balancing, stooping, kneeling,

and crawling. Fairley recommended that Lalime avoid exposure to

hazards, but concluded that she retained a light work capacity

with upper extremity restrictions. (Id.)

As of July 2006, D r . Mitchell reported that Lalime had good

mobility and intact neurologic status. (Id. at 7.) By the end

of the year, he found that Lalime had made progress and was doing

well in restoring motion, but her strength remained deficient.

Lalime visited D r . Mitchell on March 2 0 , 2007. He found the

following: “Persistent radiculopathy and pain in the shoulder

despite stabilization with capsulorrhaphy. Arc of motion

restored to within 90 degrees without apprehension.

Neurovascular status is intact. Sensitivity on extremes of

motion. Mild apprehension against resistence testing.

Apprehensive with strength testing above the horizontal plane.”

(Tr. at 311.) At this point, D r . Mitchell planned to restrict

Lalime’s work from activities requiring repetitive reaching,

pushing, and pulling on a permanent basis. He also recommended

that she permanently restrict herself to lifting less than five

pounds. (Joint Statement of Facts, Doc. N o . 9, at 7.)

Obviously, this assessment differs from that reached by the

agency physician on May 3 0 , 2006.

Dr. Mitchell’s final medical notation appearing in the

record is from August 2007. At that time, he opined that

-5- Lalime’s shoulder was “stable and functional” and that her

“cervical range of motion and shoulder and arm motion were full.”

(Id. at 8.) He also noted that Lalime had “good strength against

resistive testing,” but also had “persistent pain and sensitivity

and limited function in the right arm.” (Id.) Lalime reported

“pain radiating along upper right arm and forearm and pain with

arc of motion of her shoulder when engaging her neck.” (Id.)

Dr. Mitchell’s notes indicate that his impression was cervical

radiculopathy and his plan was a spine consultation. (Tr. at

312.)

B. Administrative Procedural History

On February 1 7 , 2006, Lalime filed an application for

Disability Insurance Benefits and a period of disability, citing

January 6, 2005, as the onset date. (Joint Statement of Facts,

Doc. N o . 9, at 1.) That application was initially denied on June

5 , 2006. An administrative hearing was then held on August 2 1 ,

2007, before Administrative Law Judge (“ALJ”) Robert S .

Klingebiel. At the hearing, Lalime testified about her previous

employment, the pain and aching she felt in her right shoulder,

and the medications (namely, Hydrocodone and Ibuprofen) she was

taking at the time. (Id. at 9.) She noted that she sometimes

had difficulty sleeping through the night because of pain in her

shoulder, and that she was “able to sleep comfortably for about

six hours tops on an average night.” She explained her daily

-6- routine, including, for example, how she could only use the

computer for approximately sixty to ninety minutes until her

shoulder started to hurt. (Id. at 10.) She also explained how

she had learned to groom herself primarily using her left hand.

As for her daily household chores, Lalime explained that she

vacuumed using her left hand, washed dishes before they

accumulated, and used her left arm to pull items, like milk, out

of the refrigerator. She did light grocery shopping; however,

when she purchased several items, she would bring a friend along

with her to help carry the bags. Finally, Lalime testified that

she felt pain when she reached “up high and across,” but that she

could reach to shoulder height without issue. She explained that

she might be able to lift up to twenty pounds, but afterward

would feel pain, and that she could not lift ten pounds

repetitiously. (Id. at 10-11). Finally, she told the ALJ that

she could stand, sit, and walk for up to six hours in an eight-

hour workday, and that she was not able to reach above her

shoulder with her right arm.

A vocational expert classified the exertional level of

Lalime’s work stocking shelves in the liquor store as medium

unskilled work and her job as a baggage handler as heavy

unskilled work. (Id. at 11.) The ALJ and Lalime’s counsel then

each posed a hypothetical question to the expert, asking the

expert to list any jobs that would be suitable for a person under

-7- the restrictions explained in the hypothetical.

For his question, the ALJ asked what work would be available

to an individual with Lalime’s vocational background and who

could lift a maximum of twenty pounds on occasion (not solely

with the dominant arm and hand) and lift ten pounds frequently,

but who would need to avoid overhead reaching, pushing, and

pulling, as well as postural activities. The expert explained

that an individual with those limitations could perform

unskilled, light work, including work as a toll collector, fast-

food worker, courier, unarmed security guard, rental clerk in a

self-service storage facility, furniture rental clerk, and

construction flagger. He also listed work as a charge account

clerk, which is classified as sedentary and unskilled, as an

available option. The expert explained that “the listing

requirements of the jobs identified, with the exception of the

charge account clerk, could be carried out with the non-dominant

arm.” (Id. at 12.)

Lalime’s attorney then asked the expert what positions would

be available to an individual with the same background explained

in the ALJ’s hypothetical, but with the additional restriction

that lifting not exceed five pounds. The expert eliminated some

of the previously listed jobs, but maintained that the charge

account clerk and construction flagger would not require lifting

in excess of five pounds. (Id. at 13.) He also noted that much

-8- of the work involved in toll collection could be done using the

upper left extremity, and while the job also required carrying a

coin tray, the job generally would not require any overhead

lifting. (Id.)

On September 2 8 , 2007, the ALJ issued his decision and

determined that because Lalime had always retained the RFC to

perform several jobs available in the national economy, she was

not disabled at any time through the date of decision. (Id. at

1-2.) The parties agree that in determining whether Lalime was

disabled, the ALJ followed the sequential evaluation process, as

required by

. (Id. at 13.) The ALJ first

determined that Lalime had not engaged in any substantial gainful

activity since her alleged onset date. Next, the ALJ ruled that

Lalime’s impairments, namely, her rotator cuff tear and obesity,

did not meet the criteria of the listed impairments in the

federal guidelines. The ALJ then assessed Lalime’s RFC. The ALJ

evaluated Lalime’s complaints, and, although he found them to be

credible, he did not think Lalime’s injuries precluded light

work. (Id. at 14.) The full range of jobs available, however,

was significantly reduced by her limitations, and the ALJ found

Lalime unable to perform her past relevant work. After

considering Lalime’s age, education, work experience, RFC, and

testimony from the vocational expert, the ALJ determined that

Lalime could perform other work in the economy. Finally, the ALJ

-9- concluded that at no time through the date of decision was Lalime

disabled. (Id. at 14-15.) Lalime requested review of the ALJ’s

decision, but the Appeals Council denied her request on March 1 4 ,

2008, thus rendering the ALJ’s ruling the final decision of the

Commissioner.

II. STANDARD OF REVIEW

Pursuant to

(g) a district court, following a

timely request, may review the administrative record and “enter .

. . a judgment affirming, modifying, or reversing the decision of

the Commissioner of Social Security, with or without remanding

the cause for a hearing.” However, the “findings of the

Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive.”

(g).

It is also solely within the purview of the Commissioner to make

determinations as to “credibility and to draw inferences from the

record evidence.” Irlanda Ortiz v . Sec'y of Health & Human

Servs.,

(1st Cir. 1991). Accordingly, in

reviewing the record for substantial evidence, a district court

may not reweigh the evidence or substitute its own judgment for

that of the Commissioner's.9

9 Substantial evidence is “more than a mere scintilla” of evidence; it “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Currier v . Sec'y of Health, Educ. & Welfare,

9 4 , 597 (1st Cir. 1980)(quoting Richardson v . Perales,

(1971)).

-10- The reviewing court is not bound to the Commissioner's

findings in all instances. Where the Commissioner has committed

some legal or factual error in his evaluation of the disability

claim, deference will not be appropriate. See Manso-Pizarro v .

Sec'y of Health & Human Servs.,

5 , 16 (1st Cir. 1996).

Further, the ALJ's findings of fact will not be conclusive when

they are “derived by ignoring evidence, misapplying the law, or

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

1 , 35 (1st Cir. 1999) (citation omitted).

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; (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

-11- impairment prevents or prevented the claimant from performing

past relevant work.

At step five, the burden shifts to the

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

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

(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.

The ALJ found that Lalime was not disabled at the fifth step

of the sequential analysis. He determined that Lalime had “the

residual functional capacity to perform basic work activities but

can only lift 20 pounds maximum, needs to avoid overhead reaching

with the right arm, cannot push or pull with the right arm and

cannot climb ladders.” (Tr. at 63.)

Lalime argues that (1) the ALJ did not properly assess the

treating physician’s opinion; (2) the ALJ committed reversible

error by relying solely upon the agency physician’s report in

assessing Lalime’s RFC; and (3-4) the ALJ failed to properly

evaluate Lalime’s non-exertional limitations and her credibility.

Below, I address each of these arguments in turn.

A. The ALJ’s Consideration of Treating Physician’s Opinion

Lalime contends that in finding D r . Mitchell’s assessment of

Lalime’s lifting capacity to be not credible, the ALJ gave

-12- inadequate weight to the treating physician’s medical opinion.

(Pl.’s Mot., Doc. N o . 6-2, at 5.) The government argues that the

ALJ’s ruling that Lalime was not disabled was based on careful

consideration of all the evidence in the record, including both

the evidence from D r . Mitchell and Lalime’s own statements about

her condition. (Def.’s Mot., Doc. N o . 8-2, at 1-2.)

When making disability decisions, ALJs are required to give

a treating physician’s opinion “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 record.

(d)(2).

In Lalime’s case, the ALJ did not think that D r . Mitchell’s

recommendation that the patient refrain from lifting in excess of

five pounds was supported by the record evidence. The ALJ’s

decision references Lalime’s medical history and notes Lalime’s

subjective complaints, namely that “she is able to lift more than

five pounds on occasion – up to 20 pounds - but ‘pays for it’ the

next day.” (Tr. at 61.) In the section addressing Lalime’s RFC,

the ALJ reviewed agency physician D r . Fairley’s assessment that

Lalime “could lift and/or carry 20 pounds occasionally and 10

pounds frequently . . . [but] needs to avoid reaching over the

shoulder with her right arm.” (Id.) D r . Fairley also imposed

additional restrictions, and in agreeing with D r . Fairley’s view,

the ALJ rejected D r . Mitchell’s assessment that Lalime was

-13- permanently unable to life more than five pounds. The ALJ also

considered Lalime’s testimony about her own abilities, namely

that “she was able to lift 20 pounds from a strength point of

view.” (Id.) Thus, the ALJ determined that not all of the

evidence in the record was consistent with D r . Mitchell’s

opinion, and the opinion was not given controlling weight.

When a treating physician’s opinion is not given controlling

weight, the ALJ is next required to determine the appropriate

level of weight that it should be given. Factors to consider

include the length of the treatment relationship and frequency of

examination; the nature and extent of the relationship; the

extent to which the evidence, and the physician’s explanation of

that evidence, supports the opinion; the consistency of the

opinion in the context of the record as a whole; whether the

treating physician is a specialist in the field; and any other

factors that tend to support or contradict the opinion.

(d)(2)-(6). The factors are, no doubt,

malleable, but ALJs are required to “always give good reasons”

explaining the weight given to a particular physician’s opinion.

§ 404.1527(d)(2).

In his written decision, the ALJ referenced Lalime’s history

of problems with her right shoulder, including her own assessment

of her situation. Based on his consideration of the record, the

ALJ decided that Lalime had light duty capacity “to perform basic

-14- work activities,” but that she could only lift up to twenty

pounds, she should avoid overhead reaching, as well as pushing

and pulling, with her right arm, and that she is not able to

climb ladders. (Tr. at 62.) Thus, while the ALJ disregarded D r .

Mitchell’s assessment as to Lalime’s lifting capacity, he adopted

his conclusions with respect to the reaching, pushing, and

pulling restrictions. Although the ALJ’s decision does not

methodically apply the aforementioned factors when determining

the amount of weigh to give to D r . Mitchell’s opinion, the ALJ

does explain that the medical opinions “have been assessed under

the appropriate regulatory criteria in assigning weights to be

given in the decision-making process (see 20 C.F.R. 404. 1527).”

(Id. at 59.) The ALJ’s decision sufficiently makes clear that

the factors were considered. For example, the decision

explicitly references several of the visits that Lalime made to

Dr. Mitchell, as well as the operations D r . Mitchell performed.

The ALJ did not use the prescribed language of

, but did devote four paragraphs of the decision to a

discussion of the treating physician’s history with the patient.

Thus, D r . Mitchell’s opinion was noted, and to the extent that

the ALJ found it in conformity with the record evidence, it was

adopted.

Finally, Lalime argues that the ALJ was required to

recontact D r . Mitchell “to clarify the reasons for his opinion

-15- concerning the claimant’s lifting and other physical

restrictions.” (Pl.’s Mot. Doc. N o . 6-2, at 6.) Lalime here

refers to Social Security Ruling 96-5p, but that instruction only

requires an inquiry “where there is both a lack of evidentiary

basis for a treating source’s opinion and an inability, on the

part of the adjudicator, to ascertain the basis of the opinion.”

Bruso v . Barnhart,

, at *9 (D.N.H. June 2 9 , 2005);

see Conte v . McMahon,

9 , 49 (D. Mass. 2007) (“a

duty exists to re-contact a medical source if the information

provided is inadequate to address the question of disability”).

There is nothing in the ALJ’s decision that suggests he did not

understand the factual foundation for D r . Mitchell’s opinion;

rather, it is apparent that he made a “credibility decision” that

found D r . Fairley’s opinion more consistent with the evidence in

the record as a whole. See Conte, 472 F. Supp. 2d at 4 9 . Under

those circumstances, there was no duty to re-contact D r . Mitchell

to obtain more information.

B. Determining Lalime’s Residual Functioning Capacity

Lalime next disputes the ALJ’s determination of her RFC. In

particular, Lalime argues that he improperly relied solely on

agency physician Fairley’s report when making the RFC assessment,

and that D r . Fairley’s opinion lacks adequate support.10 (Pl.’s

10 Lalime also argues that because D r . Fairley examined her at a point at which her condition had not stabilized, Fairley’s assessment should not have been given much weight. D r . Fairley’s

-16- Mot., Doc. N o . 6-2, at 6.) The government contends that

substantial evidence supports the ALJ’s ultimate determination

about Lalime’s work capacity.

The ALJ considered evidence and testimony from D r . Mitchell,

Dr. Fairley, and Lalime. On March 2 0 , 2007, D r . Mitchell

permanently restricted Lalime from any tasks requiring repeated

reaching, pushing, pulling, or lifting in excess of five pounds.

Late, in August 2007, D r . Mitchell noted that Lalime experienced

pain and limited function in her right arm, but he also reported:

“Cervical range of motion full. Shoulder and arm motion full.

Good strength against resistive testing.” (Tr. at 312.) He

offered no assessment of Lalime’s left arm. His opinion was

different from the one put forth by D r . Fairley, who on May 3 0 ,

2006, “opined that Plaintiff could lift 20 pounds occasionally,

lift 10 pounds frequently, stand and/or walk for about six hours

in an eight-hour workday, and sit for a total of about six hours

in an eight-hour workday.” (Joint Statement of Facts, Doc. N o .

9, at 6.) The ALJ noted Lalime’s testimony that she could sit,

stand, or walk for six hours, and “lift 20 pounds from a strength

point of view.” (Tr. at 61.) Specifically, Lalime testified at

her hearing that she would rely on her left hand when reaching

examination of Lalime took place less than two months after her second surgery, and, at that time, she was undergoing post- surgical physical therapy. Other than repeatedly restating this proposition in her brief, Lalime does little to advance an argument as to why this is relevant.

-17- over her head to get dressed or comb her hair. (Id. at 38.) She

further stated that she could potentially lift or carry twenty

pounds occasionally, but that she might “feel it” the following

day, and claimed that she could not repetitiously lift ten

pounds. (Id. at 43.) Thus, she felt it best to stick to D r .

Mitchell’s recommendation that she avoid lifting more than five

pounds. (Id. at 42.)

After considering this evidence, the ALJ found both D r .

Fairley’s opinion and Lalime’s own descriptions of her daily

activities to be “consistent with the ability to lift or carry

more” than five pounds. (Id. at 61.) Although Lalime stated

that lifting up to twenty pounds might result in pain shortly

thereafter, she did not deny that she could potentially have the

strength to do i t . The government argues that this evidence,

coupled with evidence of Lalime’s daily schedule - which includes

activities like vacuuming her home, washing dishes, and doing

light shopping – does not support a finding that Lalime suffers

from a disabling impairment.

The ALJ did not simply adopt D r . Fairley’s view without

qualification. Although the ALJ’s decision as to Lalime’s RFC

was consistent with D r . Fairley’s view, it was also a result of

the ALJ’s review of the record evidence, including Lalime’s own

testimony. Moreover, rather than completely disregard D r .

Mitchell’s opinion, the ALJ incorporated his recommendation that

-18- Lalime not engage in repetitive pushing and pulling and avoid

overhead reaching. Thus, after considering the record as a

whole, the ALJ determined that while some of D r . Mitchell’s

recommendations were consistent with the evidence, others were

not. As the ALJ’s decision demonstrates, those unsupported

opinions were given less weight to the extent they were refuted

by evidence of Lalime’s daily activities. See Johnson v .

Barnhart,

, at *2 (11th Cir. June 1 7 , 2005) (an

adjudicator need not give the treating physician’s opinion

substantial weight when the evidence supports a contrary

finding). Considering what was before him in the record, the

ALJ’s decision with respect to Lalime’s RFC was supported by

substantial evidence. After factoring in Lalime’s pulling and

pushing limitations with her right arm, as well as her inability

to climb ladders, the ALJ determined that Lalime could perform a

number of the “light jobs that could be done with the nondominant

arm.”11

Lalime also contends that D r . Fairley’s opinion is not

adequately supported. He examined Lalime, and made an assessment

11 Some of the light jobs that the vocational expert identified would not require Lalime to lift over five pounds. Even if one accepts that Lalime’s RFC should have had a lifting restriction of no more than five pounds, she still would have been able to perform some of the tasks identified by the vocational expert, namely, charge account clerk, construction flagger, and possibly toll collector. (Joint Statement of Facts, Doc. N o . 9, at 13.)

-19- of her condition on May 3 0 , 2006. It is not clear what more

Lalime would have had the agency physician d o . Of course, D r .

Fairley’s assessment was made more than a year prior to the ALJ’s

decision, but the ALJ also considered Lalime’s condition after

that date. In particular, he noted Lalime’s own testimony from

August 2007 and D r . Mitchell’s contrary opinion from May 2007.

Lalime also makes much of the fact that Fairley noted that Lalime

is a “poor candidate for resuming heavy tasks with labor,” and

yet, opined in the same assessment that she “is seen to have

retained a light work capacity throughout.” (Tr. at 192.) It is

not clear how this is necessarily contradictory.

C. Consideration of Lalime’s Nonextertional Limitations

Lalime claims that the ALJ failed to consider her other

limitations, namely her ability to use only her nondominant arm,

her obesity, her inability to sleep, and the pain she suffered.

The ALJ’s written decision, however, suggests otherwise. The ALJ

accepted that Lalime had restrictions on the use of her right

arm, particularly with respect to pushing and pulling. As a

result, with the exception of one position, all of the jobs

referred to by the vocational expert “generally can be carried

out with the non-dominant arm.” (Tr. at 48.) Thus, the ALJ

considered, and appropriately accommodated, that limitation.

Lalime also argues that the ALJ should have assessed the

limitations that resulted from her obesity. Obesity is

-20- considered “severe” when “alone or in combination with another

medically determinable physical or mental impairment(s), it

significantly limits an individual’s physical or mental ability

to do basic work activities.” SSR N o . 02-1p. There is no

listing for obesity, unless it “is of such a level that it

results in an inability to ambulate effectively,” and so usually,

an obese petitioner meets “the requirements of a listing if he or

she has another impairment that, by itself . . . or in

combination with obesity, meets the requirements of a listing.”

An ALJ’s assessment of a petitioner’s functioning ability

must consider the extent to which one’s obesity might impact “an

individual’s maximum remaining ability to do sustained work in an

ordinary work setting on a regular and continuing basis.”

While it is sometimes difficult to discern the level of

consideration an ALJ gave to a particular factor when making a

disability decision, the adjudicators’s reference to that factor,

when considered in light of the opinion as a whole, is an

indication. Brown v . Barnhart,

(8th Cir.

2004).

Here, the ALJ adequately considered Lalime’s obesity when

assessing her RFC. The ALJ’s decision notes that Lalime is obese

and that the resulting effects of that condition “are considered

in combination with her upper extremity impairment.” (Tr. at

61.) In addition, the ALJ restricted Lalime from climbing

-21- ladders. Lalime has not identified any other evidence in the

record that suggests her obesity would somehow render her

incapable of performing the prescribed work of lifting no more

than twenty pounds without pushing or pulling. Nor did Lalime

testify to any particular limitations specifically attributable

to her obesity. Given the ALJ’s references, more than once, to

Lalime’s obesity, it is clear that he considered that condition

when evaluating her claim. See Brown,

. In

accordance with regulatory requirements, he also explained that

the obesity and rotator cuff injury do not amount “to an

impairment or combination of impairments listed in or medically

equivalent to one listed in Appendix N o . 1 , Subpart P,

Regulations N o . 4.” (Tr. at 62.) Absent any references from

Lalime as to what limitations resulted from her obesity, her

claim that the ALJ failed to properly consider such limitations

is rejected. See Senay v . Astrue,

, at *13 (D.R.I.

Jan. 3 0 , 2009).

Lalime has failed to show how her alleged sleeping issues

would have any vocational impact. She testified that although

pain in her arm makes sleeping difficult some nights, on average

she gets six hours of sleep a night. Lalime argues that the ALJ

should have analyzed the impact that her “difficulty sleeping”

would have had on her ability to perform gainful employment;

however, it is not clear from the record what impact, if any,

-22- getting six hours of sleep a night might have on one’s ability to

perform work.

Lalime’s final challenge is that the ALJ should have

evaluated her subjective testimony about the pain she suffered as

a result of her shoulder injury. The U.S. Court of Appeals for

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). 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.

Detailed written discussion of the Avery factors is

desirable, see Frustaglia v . Sec'y of Health and Human Servs.,

-23-

9 2 , 195 (1st Cir. 1987), but an ALJ complies with Avery

if he examines the relevant factors at the administrative

hearing, see Graham v . Barnhart,

, at *8 (D.N.H.

2006); see also Braley v . Barnhart,

, at *4 (D.

M e . June 7 , 2005) (an ALJ is not required to “slavishly discuss

each Avery factor”). Here, Lalime's attorney and the ALJ asked

Lalime questions implicating several of the relevant Avery

factors at the hearing. Lalime was asked about the onset of her

pain and injury, as well as the nature of her pain and what kinds

of activity exacerbate i t . (Tr. at 2 7 , 3 7 , 39-42.) She was

asked, and provided extensive commentary, about her daily

activities. (Id. at 35-40.) Lalime also explained her ability

to lift different weights, and explained the way in which her

body would react to lifting those various amounts. (Id. at 43.)

Finally, Lalime testified about the medications she was taking

for her pain. (Id. at 3 0 , 35.)

The ALJ found her complaints about her pain to be “generally

credible but not to the extent that light jobs would be

precluded.” (Id. at 63.) He reached this conclusion after

taking notice of Lalime’s daily activities, which included

preparing meals, doing laundry, walking, washing dishes, and

vacuuming. Given the level of exertion required to perform these

tasks, as well as the restrictions the ALJ imposed on Lalime’s

RFC, there is substantial evidence in the record to support the

-24- ALJ’s decision about the appropriate weight to give to Lalime’s

subjective complaints of pain.

D. Assessment of Lalime’s Credibility

Lalime’s final challenge is that the ALJ failed to properly

assess her credibility with respect to both her claims about her

physical capacity and in general. 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,

. 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, and any other relevant evidence.

SSR N o . 96-7p.

There is substantial evidence to support the ALJ’s

determination that Lalime’s limitations were not disabling. The

ALJ’s decision appropriately examines Lalime’s testimony about

her pain and limitations, her daily routine, and the medical

evidence. The nature of Lalime’s injuries and their impact on

her life, the types of activities that exacerbate her problems,

the treatment she has undergone, and the way in which she copes

with her limitations on a daily basis are all considered in the

-25- decision. See Avery,

; see also

. Lalime testified that she carries one or two bags of

groceries herself, does laundry, cleans her home, is able to lift

a gallon of milk, and carry out other daily tasks without pain or

problem. (Tr. at 38-40.) It is hard to see how one who is able

to carry out these tasks is crippled by disabling limitations.

When asked about her ability to lift weights of ten pounds,

Lalime testified that she could not do so “repetitiously.” (Id.

at 43.) With respect to weights of twenty pounds, she testified

that “I could do it today but because I might feel it tomorrow I

probably couldn’t tomorrow.” (Id.) In the ALJ’s decision, he

wrote that he found this testimony “generally credible insofar as

[Lalime] testified she was not able to perform light work

exertionally.” The decision goes on to note that Lalime

testified that “she is able to sit, stand or walk six hours in a

workday and, further, that she is able to lift 20 pounds from a

strength point of view.” (Id. at 61.) Taking this into account,

the ALJ noted that Lalime would not be precluded from performing

light work, which “only requires lifting 20 pounds on an

occasional basis and lifting 10 pounds on a more frequent basis.”

(Id.) Moreover, the jobs that the vocational expert identified

for someone with Lalime’s limitations “could be done with the

nondominant arm.” (Id. at 62.) Thus, the ALJ fairly considered

Lalime’s limitations, as both she and the medical record

-26- articulated them, and determined a RFC that fairly took those

restrictions into account.

IV. CONCLUSION

For the reasons set forth above, Lalime’s Motion for Order

Reversing Decision of the Commissioner (Doc. N o . 6 ) is denied and

defendant’s Motion for Order Affirming the Decision of the

Commissioner (Doc. N o . 8 ) is granted. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 1 3 , 2009

cc: Seth R. Aframe, AUSA Darlene M . Daniels, Esq.

-27-