Simmons v . SSA CV-09-378-PB 09/08/10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Melissa R. Simmons

v. Case N o . 09-cv-378-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Melissa Simmons appeals from the Social Security

Commissioner’s denial of her application for Disability benefits.

She faults the Administrative Law Judge (“ALJ”) who denied her

claims both for failing to find that she met the requirements of

the listing for multiple sclerosis and for refusing to seek

testimony from a vocational rehabilitation expert before

determining that a significant number of jobs existed in the

national economy that Simmons could perform in spite of her

multiple sclerosis. For the reasons set forth below, I affirm

the Commissioner’s decision. I. BACKGROUND1

A. Procedural History

Simmons applied for DIB on November 2 3 , 2007 claiming

disability caused by the symptoms of her multiple sclerosis.

(Tr. at 4 3 , 91-93). After Simmons’ initial application was

denied by the Commissioner, Simmons sought an administrative

hearing. (Tr. at 47-50, 51-55). At the hearing, Simmons was

represented by counsel and both she and her husband testified.

(Tr. at 20-42).

On June 3 , 2009 the ALJ denied Simmons’ claim. (Tr. at 12-

19). While the ALJ found that Simmons’ multiple sclerosis

constituted a severe impairment, she determined that it did not

meet or equal the criteria for multiple sclerosis identified in

Section 11.09 of the Commissioner’s Listing of Impairments(“the

Listing”). 20 C.F.R. Part 4 0 4 , Subpt. P, App. 1 , § 11.09; (Tr.

at 1 5 ) . In addition, the ALJ found that while Simmons was unable

to perform her past relevant work, she nevertheless retained the

residual functional capacity (“RFC”) to perform work that existed

in significant numbers in the national economy. (Tr. at 15-17).

1 The background facts are presented in detail in the parties’ Joint Statement of Material Facts (Doc. N o . 13) and are summarized here. Citations to the Administrative Record Transcript are indicated by “Tr.” The ALJ’s decision became the final decision of the

Commissioner when the Appeals Council denied Simmons’ request for

review on September 1 1 , 2009. See

,

404.987(a).

B. Education and Work History

Simmons was 42 years old when the ALJ denied her application

on June 3 , 2009. (Tr. at 12-19). She has a college education,

and her past relevant work includes time spent as an executive

assistant, a teacher’s aid and an office manager. (Tr. at 2 9 ,

113-114). Most recently, Simmons has worked from home as a

telemarketer for approximately five hours a week. (Tr. at 2 6 ,

97-99).

C. Medical Evidence

During the spring of 2006, Simmons reported numerous

instances of back pain as well as tingling or numbness in her

lower extremities. (Tr. at 206, 216-18, 226, 242-43). After

multiple visits to the hospital and several different physicians,

an MRI scan of Simmons’ dorsal spine revealed a small enhancing

intrameduallary2 lesion at the T3 level. (Tr. at 256-58). The

2 Intramedullary, refers to an area within the spinal cord. See Stedman’s Medical Dictionary 917 (27th ed. 2000). potential diagnosis was that of a dymelinating disorder3

including multiple sclerosis. (Tr. at 2 5 6 ) .

After her M R I , Simmons saw D r . George Neal, a neurologist.

(Tr. at 294-95). D r . Neal noted his suspicion that the

abnormality noted on the MRI may indicate multiple sclerosis, but

he did not believe it met the conventional diagnostic criteria at

that point. (Tr. at 2 9 4 ) . Therefore, D r . Neal elected to defer

treatment. (Tr. at 2 8 6 ) .

Over the next few months Simmons attended several followup

appointments with D r . Neal. (Tr. at 2 8 4 , 2 8 6 ) . D r . Neal’s

evaluations noted normal strength in Simmons’ legs and no sign of

visual neuropathy4. (Tr. at 255, 2 8 6 ) . Simmons’ motor bulk,

tone and strength, muscle and plantar reflexes, gait, and station

were all normal. (Tr. at 2 8 4 ) . A repeat MRI scan of Simmons’

spine on June 2 9 , 2006 revealed the same lesion at T3 noted on

the March 30 scan. (Tr. at 2 5 3 ) . The lesion was stable, and no

new lesions were noted. (Tr. at 2 5 3 ) .

3 Demyelination, refers to the loss of myelin with preservation of the axons or fiber tracts. Central demyelination occurs within the central nervous system and is seen with multiple sclerosis. See Stedman’s at 472. 4 Neuropathy is a classical term for any disorder affecting any segment of the nervous system. See Stedman’s at 1211. On August 10,2006, in an exam with D r . Neal, Simmons

reported that her symptoms were mostly gone. (Tr. at 2 8 1 ) . Dr.

Neal surmised that Simmons likely had a demyelinating event, the

symptoms of which were mostly resolved. (Tr. at 2 8 1 ) .

Three months later, Simmons visited D r . Neal complaining of

reduced energy levels, episodes of numbness, as well as instances

of crying and constipation. (Tr. at 2 8 0 ) . On exam, D r . Neal

noted that Simmons was awake and alert, showing no signs of

impairment in cognitive function. (Tr. at 2 8 0 ) . Simmons’ motor

bulk, tone and strength, muscle and plantar reflexes, gait,

station, and sensory exam were all normal. (Tr. at 2 8 0 ) . Dr.

Neal suggested further MRI scans of the brain and spine. (Tr. at

280).

On November 3 0 , 2006, Simmons attended an exam with D r .

Maria Houtchens at the Partners Multiple Sclerosis Center. (Tr.

at 207-208). On exam, D r . Houtchens noted that Simmons was alert

and oriented. (Tr. at 2 0 8 ) . Her memory, comprehension,

repetition, and naming were intact. (Tr. at 2 0 8 ) . Motor

examination showed 5/5 muscle strength in muscle groups with

normal muscle tone and bulk. (Tr. at 2 0 8 ) .

Dr. Houtchens opined that Simmons satisfied a diagnosis of clinically isolated syndrome5 on the basis of a myelitis episode.

(Tr. at 2 0 8 ) . She was not convinced that the later weakness and

fatigue Simmons experienced was a relapse, but noted that it was

possible if additional lesions were noted on a follow-up MRI.

(Tr. at 2 0 8 ) . In addition, D r . Houtchens was not certain Simmons

had clinically definite multiple sclerosis at that point, but she

determined that Simmons was a candidate for therapy due to the

delayed conversion to clinically definite multiple sclerosis by

patients who started treatments early. (Tr. at 2 0 8 ) .

On December 2 3 , 2006, Simmons underwent another MRI scan.

(Tr. at 250-52). The scan revealed the same intramedulliary

lesion on the cervical cord at the T3 level. (Tr. at 2 5 0 ) . The

lesion appeared unchanged from the July and March examinations.

(Tr. at 2 5 0 ) . No additional abnormalities were noted. (Tr. at

250-51). An MRI of Simmons brain appeared normal. (Tr. at 2 5 2 ) .

On February 2 , 2007 Simmons saw her primary care physician,

Dr. Rosenbaum, for treatment of depressive symptoms. (Tr. at

5 The term “clinically isolated syndrome” (CIS) has been used to describe a first neurologic episode that lasts at least 24 hours, and is caused by inflammation/demyelination in one or more sites in the central nervous system (CNS). National Multiple Sclerosis Society, Clinically Isolated Syndrome, http://www.nationalmssociety.org/about-multiple-sclerosis/what-we -know-about-ms/diagnosing-ms/cis/index.aspx (last visited Sept. 7 , 2010). 2 4 0 ) . Simmons reported sleep disturbances, mood swings and crying

spells. (Tr. at 2 4 0 ) . D r . Rosenbaum prescribed Celexa 6 . (Tr.

at 2 0 1 ) . Later that month, Simmons reported to D r . Rosenbaum

that she was feeling better with no more crying spells. (Tr. at

239).

On May 2 4 , 2007, Simmons was seen by D r . Houtchens on a

follow-up exam. (Tr. at 1 9 7 ) . Simmons reported fatigue as well

as pain and numbness in her legs. (Tr. at 1 9 7 ) . As a result,

Simmons expressed difficulty doing work, noting one instance

where she was unable to function and get out of bed. (Tr. at

197). D r . Houtchens noted a largely normal neurological exam

with relatively mild physical weakness. (Tr. at 1 9 7 ) . It was

Dr. Houtchens’ opinion that there was no primary strength

deficit. (Tr. at 1 9 7 ) .

6 Celexa is indicated for the treatment of depression. See Physician’s Desk Reference 1293 (57th ed. 2005). On September 1 8 , 2007, Simmons underwent a neuro-

psychological assessment by D r . Meghan Searl. (Tr. at 187-95).

Simmons reported problems concentrating as well as changes in her

levels of interest and motivation. (Tr. at 187-88). She also

described periods of social withdrawal and crying. (Tr. at 187-

88). Simmons noted that she smoked marijuana daily to “take the

edge off” and to relax and sleep. (Tr. at 1 8 8 ) .

On exam, D r . Searl noted that Simmons mood was bright and

her affect was full. (Tr. at 1 9 0 ) . She appeared alert,

attentive, and oriented. (Tr. at 1 9 0 ) . According to D r . Searl,

Simmons was not easily distracted and she did not frustrate or

fatigue easily. (Tr. at 1 9 0 ) . D r . Searl concluded that Simmons

was quite bright and D r . Searl did not see any deficits

whatsoever other than mild weakness in sustained attention.

(Tr. at 1 9 2 ) . D r . Searl recommended consultation with a

psychiatrist or neuropyschitrist to help Simmons construct a

behavioral approach to her motivational treatment. (Tr. at

192). In addition, D r . Searl suggested that Simmons’ daily use

of marijuana may be significantly impacting her motivation,

interest, energy levels and mood. (Tr. at 1 9 2 ) . On October 3 , 2007 Simmons saw D r . Neal on a followup. (Tr.

at 2 6 6 ) . Simmons reported that she had been unable to work since

August as a result of fatigue, reduced emotions, reduced ability

to respond to stimuli and depression. (Tr. at 2 6 6 ) . On exam,

Simmons was alert and awake and showed no impairment in cognitive

or language function. (Tr. at 2 6 6 ) . D r . Neal noted that

Simmons’ strength and muscle reflexes were normal and opined that

Simmons had prominent fatigue and other symptoms possibly related

to depression. (Tr. at 2 6 6 ) .

On November 2 8 , 2007 Simmons saw D r . Houtchens and

complained of depressive periods where she could not do simple

things like grocery shopping and picking up the mail. (Tr. at

185). D r . Houtchens noted that the neurological exam was

entirely normal. (Tr. at 1 8 5 ) . He suggested a referral to D r .

Melissa Frumin for a therapy consultation regarding possible

bipolar disease. (Tr. at 1 8 5 ) .

On December 1 8 , 2007 Simmons saw neurologist D r . Keith

McAvoy and reported endurance related issues as well as

“Novocain-type sensations” radiating from her back to her

abdomen. (Tr. at 3 4 0 ) . On exam, D r . McAvoy noted that Simmons

was alert and oriented and that her mental status was intact.

(Tr. at 3 4 1 ) . Simmons’ motor strength was 5/5 throughout and her coordination was good. (Tr. at 3 4 1 ) . D r . McAvoy did not find

any deficiencies on the neurological exam with respect to

weakness, balance difficulties, or coordination. (Tr. at 3 4 2 ) .

Deep tendon reflexes were 2/4 in the upper extremities and 1/4 in

the lower extremities. (Tr. at 3 4 1 ) . Simmons requested a

rolling walker, which D r . McAvoy provided to her. (Tr. at 3 4 2 ) .

Dr. McAvoy suggested ongoing management with a psychiatrist or

counselor. (Tr. at 3 4 2 ) .

On February 2 5 , 2008, Simmons underwent a neuropsychiatric

evaluation with D r . Frumin based upon D r . Houtchens’ referral for

bipolar disorder. (Tr. at 3 1 8 ) . D r . Frumin noted that Simmons’

mood was happy and optimistic, and her thought process was

logical and coherent. (Tr. at 3 1 9 ) . In D r . Frumin’s opinion,

Simmons affective disorder predated her diagnosis of multiple

sclerosis and he suggested that Simmons’ marijuana use may be

contributing to her apathy and mood instability. (Tr. at 3 1 9 ) .

He recommended that Simmons start a mood stabilizer and possibly

an antidepressant. (Tr. at 3 1 9 ) .

On April 2 , 2008 Simmons had a followup appointment with D r .

McAvoy. (Tr. at 3 7 8 ) . Simmons reported D r . Frumin’s opinion

that she only had mild depression. (Tr. at 3 7 8 ) . Simmons

expressed concern regarding D r . Houtchens’ belief that a diagnosis of multiple sclerosis was not certain. (Tr. at 3 7 8 ) .

Dr. McAvoy stated his opinion that the diagnosis of multiple

sclerosis was not in question. (Tr. at 3 7 8 ) .

On May 8 , Simmons saw D r . Rosenbaum and complained of

fatigue and saddle anesthesia. (Tr. at 3 8 6 ) . Simmons also

expressed her desire to discontinue use of her Celexa. (Tr. at

386). D r . Rosenbaum disagreed with discontinuing the

antidepressant, but relented after Simmons expressed her strong

desire to due s o . (Tr. at 3 8 7 ) .

Over the next few months, Simmons saw D r . Rosenbaum and

reported improvement since stopping Celexa. (Tr. at 3 8 9 ) . Dr.

Rosenbaum noted that she had been doing well over the past

several months and her complaints had generally been mild. (Tr.

at 4 0 3 ) .

On September 1 9 , 2008 Simmons had a followup appointment

with D r . McAvoy. (Tr. at 3 6 8 ) . Simmons noted that her symptoms

had improved significantly since June. (Tr. at 3 6 8 ) . On exam,

Dr. McAvoy noted that Simmons’ motor strength and coordination

was good, her gait was steady, and no abnormalities in her

abdominal reflexes were noted. (Tr. at 3 6 8 ) . D r . McAvoy’s

assessment was probable multiple sclerosis with possible anxiety. (Tr. at 368-69). D r . McAvoy continued Simmons on Rebif7 for the

indefinite future and ordered repeat MRI scans. (Tr. at 3 6 9 ) .

On January 3 , 2009, Simmons underwent an MRI scan of her

brain. (Tr. at 396-97). The scan revealed no indication of

white matter disease and no significant changes since her

December 2007 scan. (Tr. at 396-97). Later that month Simmons

underwent an MRI scan of her spine. (Tr. at 398-400). The MRI

scan revealed no changes since her December 2007 scan. (Tr. at

398-400).

On January 1 9 , 2009, Simmons has a followup visit with D r .

McAvoy. (Tr. at 422-24). Simmons noted that while her fatigue

had improved, she continued aching and numbness in her torso.

(Tr. at 4 2 2 ) . Simmons also noted trouble concentrating. (Tr. at

422). On exam, D r . McAvoy observed that Simmons was alert, her

motor strength and coordination was good, her muscle tone was

normal, and her gait was steady. (Tr. at 4 2 3 ) . The MRI scans

were unchanged when compared with prior studies. (Tr. at 4 2 3 ) .

Dr. McAvoy continued to prescribe Rebif and neither Simmons nor

Dr. McAvoy felt that any additional medication was needed. (Tr.

7 Rebif is indicated for the treatment of patients with relapsing forms of multiple sclerosis to decrease the frequency of clinical exacerbations and delay the accumulation of physical disability. See Physician’s Desk Reference at 2624. at 4 2 3 ) .

D. Opinion Evidence

On March 3 , 2008, state agency physician D r . Joseph Cataldo

reviewed the evidence in the record and completed a Physical RFC

assessment. (Tr. at 345-52). D r . Cataldo determined that

Simmons could lift and carry twenty pounds occasionally and ten

pounds frequently, stand and walk for a total of six hours in an

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

eight-hour workday, and do unlimited pushing and pulling. (Tr.

at 3 4 6 ) .

On March 2 5 , 2008, state agency physician D r . Nicholas

Kalfas reviewed the evidence in the record and completed a

Psychiatric Review Technique form. (Tr. at 353-66). D r . Kalfas

opined that Simmons had a non-severe affective disorder. (Tr. at

353, 3 5 6 ) . D r . Kalfas further determined that Simmons had mild

restrictions in her activities of daily living, mild restrictions

in maintaining social functioning, and mild difficulties in

maintaining concentration, persistence, or pace. (Tr. at 3 6 3 ) .

E. Function Reports

In an undated Disability Report submitted to the

Commissioner, Simmons noted that multiple sclerosis, fatigue, depression, cognitive dysfunction, weakness, and pain

limited her ability to work. (Tr. at 1 1 2 ) . She stated that

fatigue was her greatest challenge, preventing her from doing

more than meeting her own basic needs. (Tr. at 1 1 2 ) . Simmons

also reported that she often was unable to focus on a

conversation, retain details, or organize information. (Tr. at

112).

In a Function Report dated February 2 , 2008, Simmons wrote

that her daily activities on a “bad day” included barely eating,

taking her medications, and showering. (Tr. at 1 4 4 ) . Her

activities on a “good day” included making meals for herself and

her spouse, resting, checking e-mails, paying household bills,

doing light chores, working, showering, doing laundry, watching

television, and using the internet. (Tr. at 1 5 3 ) . Simmons

reported using a cane or a rolling walker when walking a long

distance. (Tr. at 1 5 4 ) . F. Hearing Testimony

At the administrative hearing on March 2 6 , 2009, Simmons

stated that her multiple sclerosis had caused basic tasks, such

as handling paperwork, writing, and using the computer, to become

challenging. (Tr. at 26-28). Simmons indicated that on an

everyday basis, she is able to do some chores such as laundry,

though not as many loads as she would like. (Tr. at 3 2 ) . Her

daily activities include eating and taking care of herself,

cooking meals, keeping up on laundry, and raking in nice weather.

(Tr. at 32-33). She is able to move around, but needs to rest

after walking or being active. (Tr. at 3 3 ) .

Simmons also noted trouble dealing with stimulation. (Tr.

33-34). She drove herself to the hearing, which took 45 minutes,

but otherwise does not drive often. (Tr. at 3 4 ) . Simmons noted

that she currently does not have a lot of pain. (Tr. at 3 2 ) .

Simmons’ husband also testified at the hearing, stating that

since developing multiple sclerosis, Simmons has had trouble

getting up the stairs and carrying on a conversation with more

than two people. (Tr. at 3 9 ) . He noticed a dramatic change from

the past, when she worked hard and was very busy. (Tr. at

39-40). G. ALJ’s Decision

In her June 3 , 2009 decision, the ALJ followed the five-step

sequential evaluation process established by the Commissioner for

determining whether a claimant is disabled. See

(2009). At step one, the ALJ found that Simmons had not

engaged in substantial gainful activity since her alleged onset

date of September 1 5 , 2005. See

(a)(4)(i);

(Tr. at 1 4 ) . At step two, the ALJ found that Simmons’ multiple

sclerosis constituted a severe impairment. See

(a)(4)(ii); (Tr. at 14-15). At step three, the ALJ found

that Simmons’ multiple sclerosis did not meet or equal any of the

listed impairments in 20 C.F.R. Part 4 0 4 , Subpart P, Appendix 1 .

See

(a)(4)(iii); (Tr. at 1 5 ) . The ALJ then

determined that Simmons retained the RFC to perform substantially

the full range of sedentary work, with the exception that she

should avoid excessive heat. See

(e); (Tr.

at 15-17). At step four, the ALJ found that Simmons could not

perform any of her past relevant work. See

(a)(4)(iv); (Tr. at 1 7 ) . At step five, the ALJ relied on

section 201.28 of the Commissioner’s Medical Vocational

Guidelines (“the Grid”) in determining that a significant number

of jobs existed in the national economy that Simmons could perform in spite of her multiple sclerosis. See

(a)(4)(v); (Tr. at 17-18).

The Appeals Council ultimately denied review. Thus, the

ALJ’s decision became the Commissioner’s final decision. See

, 404.987(a).

II. STANDARD OF REVIEW

An individual seeking social security benefits has a right

to judicial review of a decision denying her application. See

(g). I am empowered to affirm, modify, reverse or

remand the decision of the Commissioner based upon the pleadings

submitted by the parties and the transcript of the administrative

record. See

However, my review is limited to determining

whether the ALJ used the proper legal standards and found facts

based on the proper quantum of evidence. See Ward v . Comm’r of

Soc. Sec.,

5 2 , 655 (1st Cir. 2000).

The factual findings of the Commissioner are conclusive if

they are supported by “substantial evidence.” See

Substantial evidence is evidence which a “reasonable mind,

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

. . . as adequate to support [the] conclusion.” Rodriguez v .

Sec'y of Health & Human Servs.,

1 8 , 222 (1st Cir. 1981). I do not have to agree with the Commissioner’s judgment,

instead my review is limited to a determination of whether the

ALJ’s decision is supported by substantial evidence. See Irlanda

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

(1st

Cir. 1991).

In addition, it is “the responsibility of the [ALJ] to

determine issues of credibility and to draw inferences from the

record evidence.”

. It is the role of the ALJ, and

not the role of this court, to resolve conflicts in the evidence.

III. ANALYSIS

Simmons challenges the ALJ’s decision at step 3 that her

disability did not meet the criteria for multiple sclerosis

contained in Listing 11.09 ( C ) . In addition, Simmons contends

that the ALJ erred at step 5 by relying solely on the Grid, and

instead should have obtained the testimony of a vocational

expert. I address each argument in turn.

A. The ALJ’s Listing Determination

At step three in the five-step sequential process, an ALJ

determines whether a claimant’s severe impairment meets or equals one of the impairments listed in 20 C.F.R. Part 4 0 4 , Subpart P,

Appendix 1 . See

(a)(4)(iii). If the

claimant’s impairment meets the pertinent listing, then that

individual is found to be “disabled.” See

Listing 11.09

deals specifically with multiple sclerosis. See 20 C.F.R. Part

404, Subpt. P, App. 1 , § 11.09. Listing 11.09(C), upon which the

Simmons relies, requires that a claimant with multiple sclerosis

suffer from “[s]ignificant, reproducible fatigue of motor

function with substantial muscle weakness on repetitive activity,

demonstrated on physical examination, resulting from neurological

dysfunction in areas of the central nervous system known to be

pathologically involved by the multiple sclerosis process.”

See 20 C.F.R. Part 4 0 4 , Subpt. P, App. 1 , § 11.09(C).

Simmons faults the ALJ’s determination at step 3 because it

fails to consider D r . McAvoy’s finding that her deep tendon

reflexes were 2/4 and 1/4 in the upper and lower extremities

respectively. (See T r . at 3 4 1 ) . Simmons contends that this

test, considered with her multiple sclerosis, effectively

demonstrated the significant fatigue of motor function or

substantial muscle weakness required by the Listing.

There is nothing in the record to suggest, however, that

either the deep tendon reflex test or the overall exam established a deficiency in muscle strength or motor function.

(See T r . at 3 4 1 ) . During the same exam, D r . McAvoy noted that

Simmons’ motor strength was 5/5 throughout and her neurological

exam did not reveal any problems with respect to weakness,

balance difficulties, or coordination. (Tr. at 341-42).

Therefore, in the context of this particular exam, the ALJ

reasonably could have concluded that the deep tendon reflex test

standing alone was not sufficient to indicate “substantial muscle

weakness” or “significant muscle fatigue.” See 20 C.F.R. Part

404, Subpt. P, App. 1 , § 11.09 (C);(Tr. at 341-42).

Moreover, even if D r . McAvoy’s exam did indicate a potential

deficiency, his exam by itself does not demonstrate the

“reproducible” fatigue of motor function required by the listing.

See 20 C.F.R. Part 4 0 4 , Subpt. P, App. 1 , § 11.09(C). In the

remaining evaluations conducted by Simmons’ treating physicians,

Simmons consistently exhibited normal energy level, awareness,

strength, muscle tone, reflexes, gait, etc. (See T r . at 185,

208, 2 8 0 , 2 8 4 , 286, 2 9 4 , 3 0 0 , 3 4 1 , 3 6 8 , 4 2 3 ) . Therefore, the

ALJ’s determination that Simmons’ multiple sclerosis did not meet

Listing 11.09 (C) is supported by substantial evidence. See

Ward,

; Irlanda Ortiz,

.

B. The ALJ’s Reliance on the Grid At step five, the burden shifts to the ALJ to prove that the

claimant can make an adjustment to other work that exists in

significant numbers in the national economy. See

(a)(4)(v). In making this determination, the ALJ must

consider the claimant’s RFC, age, education and work experience.

The Grid is designed to streamline the Commissioner’s burden

of proving the existence of other jobs in the economy that the

claimant can perform without requiring the use of a vocational

expert. Ortiz v . Sec’y of Health & Human Servs.,

2 0 ,

524 (1st Cir. 1989). If a claimant, based upon his or her RFC,

can perform all or substantially all of the exertional demands at

a given level of exertion, the Grid directs a finding of “not

disabled.”8 See

(a)(4)(v).

8 B ecause the Grid is based on a claimant's exertional capacities, it “can only be applied when claimant's non-exertional limitations do not significantly impair claimant's ability to perform at a given exertional level.” Rose v . Shalala,

3 , 19 (1st Cir. 1994). Simmons does suffer from certain nonexertional limitations including fatigue, depression, and lack of concentration. However, as Simmons has not specifically raised these as a basis for her challenge of the ALJ’s decision, they are not addressed here. See Stoll v . Principi,

(1st Cir. 2006)(claim not raised is abandoned). In any event, sufficient evidence exists in the record to support a finding that Simmons’ complaints regarding the severity of her fatigue, depression and other nonexertional limitations were not entirely credible and therefore not significant enough to preclude reliance on the Grid. See Ortiz, 890 F.2d at 524; Frustaglia v . Sec’y of Health & Human Servs., In this case, the ALJ determined that Simmons retained the

ability to perform the full range of sedentary work with the

exception that she should avoid excessive heat. (Tr. at 1 5 ) .

Based on this RFC and Simmons’ age ( 4 2 ) , education (high school

graduate) and work experience (skilled, semi-skilled and not

transferrable), Medical Vocational Rule 201.28 of the Grid

directed a finding of “not disabled.” See 20 C.F.R. Part 4 0 4 ,

Subpart P, App. 2 , § 201.00; (Tr. at 1 8 ) .

In the present case, the ALJ concluded that he could rely on

the Grid rather than a vocational expert to determine that

Simmons was not disabled because Simmons’ RFC permitted her to

perform the full range of sedentary activity without restriction

and she otherwise met the age, education, and work experience

requirements for the use of the Grid. Simmons challenges the

ALJ’s decision to rely on the Grid because she contends that the

decision was based on the incorrect premise that she can perform

the full range of sedentary work. In support of this argument,

Simmons claims that the ALJ failed to properly consider: the

waxing and waning nature of multiple sclerosis, the treatment

records of D r . Houtchens and D r . McAvoy, and her own statements

9 2 , 195 (1st Cir. 1987); (Tr. at 1 9 2 , 3 6 3 ) . at the hearing.

1. Consideration of the Waxing and Waning Nature of MS

First, Simmons argues that the ALJ failed to take into

account the waxing and waning nature of multiple sclerosis.

Simmons’ complaints to her treating physicians regarding the

severity of her symptoms have often varied. (See T r . at 2 8 0 ,

281, 2 8 4 , 286, 2 9 4 ) . During certain periods, Simmons has

reported little to no symptomatic effects. (See T r . at 2 8 1 , 286

389, 4 0 3 ) . However, during periods of exacerbation Simmons has

complained of fatigue, numbness and difficulty concentrating.

(See T r . at 1 9 7 , 2 8 4 , 294-95). In her Function Report, Simmons

highlighted a sharp dichotomy between “good days” and “bad days.”

(Tr. at 144-45). Simmons stated that her daily activities on bad

days were limited to barely eating, taking her medications and

showering, however on good days her activities included checking

email, paying bills, and doing light chores around the house.

(Tr. at 144-45).

While the ALJ did not specifically address the waxing and

waning nature of multiple sclerosis in her decision, the ALJ did

evaluate the severity of Simmons’ ailments and restrictions as

they were experienced during periods of exacerbation. (See T r .

at 15-16). In doing s o , the ALJ determined that Simmons’ statements regarding the intensity and limiting effects of her

symptoms were not credible. (Tr. at 1 6 ) .

As noted above, the ALJ’s credibility determination is

entitled to deference, especially when supported by specific

evidence. See Frustaglia v . Sec’y of Health & Human Servs.,

9 2 , 195 (1st Cir. 1987) (“[t]he credibility determination

by the ALJ, who observed the claimant, evaluated his demeanor,

and considered how that testimony fit in with the rest of the

evidence, is entitled to deference, especially when supported by

specific findings”). In evaluating the severity of a claimant’s

alleged symptoms, the ALJ must first determine the presence of a

medically determinable impairment that could reasonably be

expected to produce the alleged symptoms. See

(b). Once an impairment is established, the ALJ will

consider all available evidence including objective medical

evidence, the opinions of a claimant’s treating or nontreating

sources, and statements by the claimant regarding their symptoms.

See

(c)(1)-(3). The ALJ will also consider

any inconsistencies in the record and “any conflicts between [the

claimant’s] statements and the rest of the evidence . . .

including [the] laboratory findings, and statements by [the

claimant’s] treating, or nontreating sources.”

(c)(4).

In Simmons’ case, the ALJ determined that multiple sclerosis

could reasonably be expected to produce her fatigue and other

symptoms. (Tr. at 1 5 ) . The ALJ then discounted Simmons’

complaints because she determined that Simmons’ symptoms were not

consistent with evidence in the record. (Tr. at 15-16).

Simmons has consistently noted fatigue as her primary

ailment. (See T r . at 150-55, 1 9 1 , 1 9 7 , 273, 2 8 4 , 3 8 1 ) . In

addition, Simmons has complained of episodes of numbness,

depression and difficulty concentrating. (See T r . at 1 9 1 , 1 9 7 ,

207, 216, 2 8 4 ) . However, the various evaluations done by

Simmons’ treating physicians after the discovery of the

intrameduallary lesion have consistently failed to corroborate

her claims of fatigue and weakness or indicate further

exacerbation of the disease. (Tr. at 1 6 , 185, 1 9 1 , 1 9 7 , 2 0 8 ,

280, 2 8 4 , 286, 2 9 4 , 3 0 0 , 3 4 1 , 3 6 8 , 4 2 3 ) .

The majority of the physical and neurological exams that

have been conducted have indicated normal functionality. (Tr. at

1 6 , 185, 1 9 2 , 1 9 7 , 2 0 8 , 2 8 0 , 2 8 4 , 286, 2 9 4 , 3 0 0 , 3 4 1 , 3 6 8 , 4 2 3 ) .

In the physical evaluations conducted by Simmons’ treating

physicians she has consistently exhibited normal energy level,

awareness, strength, muscle tone, reflexes, gait, etc. (Tr. at 185, 2 0 8 , 2 8 0 , 2 8 4 , 286, 2 9 4 , 3 0 0 , 3 4 1 , 3 6 8 , 4 2 3 ) . In addition,

the neuropsychological and neuropsychiatric exams have noted a

euthymic mood with Simmons appearing attentive and oriented.

(Tr. at 1 9 2 , 318-19). In the exam conducted by D r . Searl, D r .

Searl noted that Simmons was note easily distracted and D r . Searl

“did not see any deficits whatsoever.” (Tr. at 1 9 2 ) .

In addition, the subjective evidence was not entirely

consistent with Simmons’ allegations. See

(c)(3); (Tr. at 1 7 ) . In particular, the ALJ recounted Simmons’

testimony that she does not experience a lot of pain and that she

is able to perform a variety of household chores such as laundry

and driving to errands and appointments. (See T r . at 1 7 ) .

Finally, the opinion of the non-treating state agency

medical consultants do not corroborate the severity of Simmons’

alleged symptoms. (See T r . at 1 7 ) . After reviewing Simmons’

medical records and other evidence, it was the opinion of the

state agency medical consultant who conducted the Physical RFC

assessment that Simmons could perform the full range of light

work. (Tr. at 345-52). In addition, the state agency physician

who conducted the Psychiatric Review opined that Simmons has a

non-severe affective disorder with only mild restrictions in

daily living, maintaining concentration, persistence or pace. (Tr. at 353-63).

Based on Simmons’ treating physicians’ notes, the objective

medical evidence, the subjective evidence and the state agency

medical consultants’ opinions, substantial evidence in the record

supports the ALJ’s determination that the alleged intensity and

severity of Simmons’ fatigue and other symptoms during periods of

exacerbation was not entirely credible. (See T r . at 16-17). As

such, the ALJ was justified in her determination that Simmons’

fatigue and other non-exertional symptoms do not impose

significant limitations on the range of work Simmons is

exertionally able to perform. See Ortiz, 890 F.2d at 524.

Therefore her reliance on the Grid was appropriate.

2. Treating Physicians’ Opinions

In addition, Simmons claims that the ALJ failed to give

weight to the opinions of D r . Houtchens and D r . McAvoy. In

making a disability determination, an ALJ must consider medical

opinions in the case record. See

(b). In

evaluating various medical opinions, the ALJ will generally give

greater weight to treating physicians, as these sources provide a

more detailed and longitudinal picture than individual or

consultive examinations. See

(d)(1)-(2).

In this case, both D r . Houtchens and D r . McAvoy are treating physicians. Therefore, their opinions are customarily given

significant weight in the ALJ’s determination. See

However,

contrary to Simmons’ complaint, the ALJ’s decision reveals

consideration of each physician’s opinion. (See T r . at 16-17).

Her conclusion that Simmons suffered from multiple sclerosis, and

the determination that the impairment was severe was based on the

evaluations of her treating physicians including D r . McAvoy and

Dr. Houtchens. (See T r . at 1 4 ) . Indeed, this determination was

likely based specifically on the opinion of D r . McAvoy, who

provided the most certain diagnosis of multiple sclerosis. (See

Tr. at 3 7 8 ) . In contrast, D r . Houtchens remained uncertain of a

diagnosis of clinically definite multiple sclerosis. (See T r . at

208, 3 7 8 ) .

By the same token, the evaluations of both D r . Houtchens and

Dr. McAvoy were also considered by the ALJ in her determination

that the severity of Simmons’ purported symptoms were not

entirely credible. (See T r . at 1 6 , 185, 1 9 7 , 207-08, 340-42,

3 6 8 ) . As noted above, each physician’s evaluations of Simmons

consistently noted normal physical and neurological exams. (See

Tr. at 1 6 , 185, 1 9 7 , 207-08, 340-42, 3 6 8 ) . On several independent

exams, both doctors noted that Simmons exhibited normal muscle

tone, alertness and orientation. (See T r . at 185, 2 0 8 , 3 4 1 ) . As discussed above, the ALJ weighed these examinations and

determined that Simmons’ statements regarding the severity of the

symptoms were not credible. (See T r . at 1 6 ) . Therefore, the ALJ

considered D r . Houtchens’ and McAvoy’s exams and opinions, and

made a determination that based on these exams, and not in spite

of them, Simmons’ alleged symptoms were not entirely credible.

(See T r . at 15-17). The ALJ did not err in failing to give

sufficient weight to these treating source opinions. See

( d ) ; (Tr. at 15-17).

3. Simmons’ Testimony & Credibility

Finally, Simmons contends that the ALJ “misapprehended” her

testimony regarding her pain and her ability to perform household

chores. In support of her contention, Simmons points to

additional testimony from the administrative hearing where she

explained how fatigue and other symptoms limit her daily

activities. (See T r . at 32-35).

As previously noted, credibility determinations are made by

the ALJ and are ordinarily entitled to deference when supported

by specific evidence. See Frustaglia,

. In

evaluating Simmons symptoms, the ALJ considered all available

evidence in accordance with the applicable regulations. See

(c)(1)-(4); (Tr. at 15-17). As noted above, there was substantial evidence based upon Simmons’ medical

records, her treating physicians exams and opinions, the non-

treating state agency physicians and Simmons’ own subjective

evidence to support the ALJ’s credibility determination. See

(c)(1)-(4); (Tr. at 15-17). As such, the ALJ’s

determination that the alleged severity of Simmons’ symptoms and

testimony were not sufficiently credible is entitled to

deference. See Frustaglia,

.

IV. CONCLUSION

The ALJ's decision is supported by substantial evidence in

the record. Therefore, the court is without the authority to

overturn i t . The motion for order affirming the decision of the

Commissioner (Doc. N o . 12) is granted, and the plaintiff’s motion

for order reversing the decision of the Commissioner (Doc. No 11)

is denied. Accordingly, the clerk shall enter judgment and close

the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

September 8 , 2010 cc: John A . Wolkowski, Esq. T . David Plourde, AUSA