St. Louis v . SSA CV-10-347-PB 7/27/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sherilyn St. Louis

v. Case N o . 10-cv-00347-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Sherilyn S t . Louis moves to reverse a decision of the

Commissioner of Social Security denying her application for

Disability Insurance Benefits (“DIB”) under Title II of the

Social Security Act,

(“the Act”). The

Commissioner objects and moves for an order affirming the

decision. For the reasons set forth below, I affirm the

Commissioner’s decision.

I. BACKGROUND1

A. Procedural History

On May 2 3 , 2008, S t . Louis filed an application for DIB,

1 The background information is drawn from the Joint Statement of Material Facts submitted by the parties (Doc. N o . 13) and the Administrative Record. Citations to the Administrative Record are indicated by “Tr.”

1 alleging a disability onset date of July 1 0 , 2007 due to

bilateral knee osteoarthritis, bilateral torn menisci, morbid

obesity, depression, and migraine headaches. After her

application was denied on August 1 3 , 2008, S t . Louis requested a

hearing before an Administrative Law Judge (“ALJ”).

On February 1 6 , 2010, S t . Louis, who was represented by

counsel, appeared and testified before an ALJ. On March 1 5 ,

2010, the ALJ issued his written decision and denied S t . Louis’s

claim. (Tr. 5 ) . The ALJ’s decision was selected for review by

the Decision Review Board of the Social Security Administration,

and became final on June 1 6 , 2010, when the Review Board

affirmed the ALJ’s decision. (Tr. 1 ) . S t . Louis now seeks

judicial review of the ALJ’s decision. See

(g).

B. Medical Evidence Before the ALJ2

1. July 2007 Right Knee Injury

On July 1 7 , 2007, S t . Louis went to the emergency room and

reported that she had injured her knee the night before. (Tr.

302-04). She was diagnosed with a knee sprain and discharged in

2 The ALJ found that S t . Louis had several severe impairments, which were bilateral knee injuries, morbid obesity, depression, and migraine headaches. (Tr. 1 1 ) . S t . Louis’s motion, however, focuses only on her bilateral knee injuries and morbid obesity. The discussion that follows addresses the medical evidence that relates to the impairments on which S t . Louis bases her claim. 2 good condition. (Tr. 3 0 4 ) . Three days later, S t . Louis saw D r .

Laxmi Ramesh at her primary care center and described twisting

her right knee. (Tr. 2 7 9 ) . Examination of her right knee

showed diffuse swelling, effusion,3 and tenderness. (Tr. 2 7 9 ) .

Dr. Ramesh wrote a note that excused S t . Louis from work for one

week while awaiting evaluation by an orthopedist. (Tr. 2 8 1 ) .

On July 2 5 , 2007, S t . Louis was seen by an orthopedist, D r .

Barry Bickley. (Tr. 2 8 3 ) . D r . Bickley noted that right knee x-

rays from July 1 7 , 2007 revealed significant osteoarthritis in

all compartments and ordered an MRI. (Tr. 2 8 3 ) . On September

6, 2007, D r . Bickley observed that the MRI demonstrated a

meniscus tear. (Tr. 3 3 4 ) . On September 1 7 , 2007, D r . Bickley

performed a right knee arthroscopy4 with partial lateral

meniscectomy.5 (Tr. 3 3 7 ) . D r . Bickley’s notes report that in

the lateral compartment there was significant chondral6 fraying,

3 Effusion refers to increased fluid in the cavity of a joint. Stedman’s Medical Dictionary (“Stedman’s”) 570 (27th ed. 2000). 4 Arthroscopy refers to endoscopic examination of the interior of a joint. See

. 5 Meniscectomy refers to excision of a meniscus from the knee joint. See id. at 1091. 6 Chondral refers to cartilaginous. See id. at 340.

3 grade four chondromalacia7 of the lateral tibial plateau, and

grade three changes of the lateral femoral condyle.8 (Tr. 3 3 8 ) .

At a follow up appointment with D r . Bickley three days later, he

noted that S t . Louis was doing well and was no longer using any

pain medication other than Motrin. (Tr. 3 3 3 ) . She was using

one crutch for ambulation. (Tr. 3 3 3 ) . About a month later, D r .

Bickley noted at a follow up appointment that she was

functioning quite well, with some residual swelling, and had

full range of motion and no significant pain in the knee. (Tr.

332).

On February 4 , 2008, S t . Louis had a physical at her

primary care center. (Tr. 3 1 1 ) . It was noted that she had a

normal gait, with full range of motion in all joints and no

musculoskeletal disability. (Tr. 3 1 2 , 3 1 4 ) . On May 2 1 , 2008,

S t . Louis again visited her primary care center, this time

complaining of pain in both knees, and was seen by Nancy Conway-

Clancy, a Physician’s Assistant. (Tr. 3 0 6 ) . S t . Louis reported

that her knee pain had been persistent for a year and was

7 Chondromalacia refers to softening of the cartilage. See id. at 341. 8 Condyle refers to a rounded articular surface at the extremity of a bone. See id. at 397. 4 gradually worsening. (Tr. 3 0 6 ) . The pain was moderate to

severe and was characterized as a dull aching which kept her

awake at night. (Tr. 3 0 6 ) . Conway-Clancy noted that x-rays

indicated moderate to severe degenerative joint disease in both

knees. (Tr. 3 0 7 ) . No swelling was noted, but both knees had

decreased range of motion and painful movements. (Tr. 3 0 7 ) .

On May 2 1 , 2008, x-rays of both knees were obtained. (Tr.

326-27). They showed “tiny” osteophytes9 involving the patella

in the left knee and “small” osteophytes involving the patella,

tibia, and femur in the right knee. (Tr. 326-27). D r . Jeffrey

Chapdelaine, the reviewing physician, also noted subchondral10

sclerosis11 and narrowing of the lateral compartment of S t .

Louis’s right knee. (Tr. 3 3 0 ) .

S t . Louis started physical therapy on May 2 7 , 2008 to

reduce her knee pain. (Tr. 3 9 2 ) . The physical therapist noted

that they planned to see S t . Louis two times per week for four

to six weeks. (Tr. 3 9 2 ) . On June 1 8 , 2008, S t . Louis cancelled

all physical therapy appointments, per the advice of her doctor,

9 An osteophyte is a bony outgrowth. See id. at 1285. 10 Subchondral refers to below the cartilage. See id. at 1715. 11 Schlerosis refers to the process of hardening. See id. at 1604. 5 while undergoing a series of injections. (Tr. 4 0 4 ) .

On the same day, Conway-Clancy referred S t . Louis to

orthopedist D r . Douglas Joseph. (Tr. 3 5 0 ) . D r . Joseph

diagnosed osteoarthritis in both knees but noted that S t .

Louis’s range of motion was fairly normal and that she had no

significant injuries to her knees. He recommended a Euflexxa12

series. (Tr. 3 5 0 ) . On June 2 0 , 2008, S t . Louis began the

Euflexxa series based on D r . Joseph’s consult. (Tr. 5 0 8 ) .

On June 2 6 , 2008, S t . Louis saw D r . Kalyani Eranki, a

rheumatologist. (Tr. 4 1 2 ) . D r . Eranki noted that recent x-rays

of S t . Louis’s knees showed osteoarthritic changes, which seemed

premature given her youth. (Tr. 4 1 4 ) . He remarked that she

could have pattelofemoral13 syndrome with premature

osteoarthritis in her knees, and that her hypermobility14 could

12 Euflexxa is indicated to relieve knee pain due to osteoarthritis in “people who do not get enough relief from simple pain medications such as acetaminophen or from exercise and physical therapy.” Euflexxa Info. for Healthcare Profs., http://www.euflexxa.com/physician (last visited Jul. 1 3 , 2011). 13 Patellofemoral refers to pertaining to the patella and the femur. Dorland’s Illustrated Medical Dictionary 1415 (31st ed. 2007). 14 Hypermobility refers to increased range of movement of joints and joint laxity. See Stedman’s at 851.

6 be contributing to her pain. (Tr. 4 1 4 ) . At a follow-up

appointment with D r . Eranki on August 1 1 , 2008, he assessed that

S t . Louis had possible seronegative15 inflammatory arthritis,

which could be a combination of patellofemoral arthritis as well

as anserine bursitis.16 (Tr. 4 9 1 ) .

On June 2 7 , 2008, Conway-Clancy prepared a physical

capacities assessment. (Tr. 3 5 2 ) . S t . Louis’s condition was

described as significant degenerative arthritis of both knees

with pain, and was deemed to be chronic. (Tr. 3 5 2 ) . Conway-

Clancy opined that S t . Louis was limited to part-time (four

hours of an eight-hour day) sedentary work three to five times

per week. (Tr. 3 5 2 ) . Walking and standing were limited to

short five to thirty minute episodes spread over the day. (Tr.

352). S t . Louis was capable of lifting up to ten pounds. (Tr.

352). She could occasionally bend from the waist, reach above

shoulder level, and twist at the waist, but should avoid

kneeling, crouching, climbing stairs, climbing ladders and

15 Seronegative refers to the absence of an antibody usually found in a given syndrome, e.g., rheumatoid arthritis without rheumatoid factor. See id. at 1623. 16 Anserine bursitis is inflammation of the fluid sac between the tibial collateral ligament of the knee joint and the tendons of the surrounding muscles. See id. at 259, 262.

7 scaffolds, and crawling. (Tr. 3 5 3 ) . Finally, Conway-Clancy

opined that S t . Louis was required to avoid hard floors, extreme

cold, wet or humid conditions, driving long distances, and had

to be in a situation where she could change positions

frequently. (Tr. 3 5 3 ) .

On August 1 1 , 2008, state agency physician D r . Jonathan

Jaffe reviewed the record available at the time and opined that

S t . Louis could perform light work. (Tr. 4 2 8 ) . He determined

that she could lift twenty pounds occasionally and ten pounds

frequently, stand or walk for a total of six hours per eight-

hour workday, and sit for a total of six hours per eight-hour

workday, with occasional climbing, balancing, stooping,

kneeling, crouching, and crawling. (Tr. 422-23).

On August 1 3 , 2008, Conway-Clancy prescribed physical

therapy for bilateral degenerative joint disease of the knee.

(Tr. 5 1 8 ) . Her notes indicate that S t . Louis’s symptoms showed

improvement with daily activities and nighttime pain, but that

S t . Louis was still experiencing a lot of pain when standing for

a long time. (Tr. 5 1 9 ) .

2. September 2008 Left Knee Injury

On September 1 7 , 2008, S t . Louis visited her primary care

8 center, this time complaining of a left knee injury. (Tr. 5 2 3 ) .

Specifically, she stated that she had slipped and heard a

popping sound in her left knee. (Tr. 5 2 3 ) . An MRI of her left

knee indicated a lateral meniscal tear, degenerative changes,

and a small popliteal fossa17 cyst. (Tr. 3 4 0 ) .

S t . Louis saw D r . Heather Killie, an orthopedist, on

September 2 2 , 2008. (Tr. 3 5 7 ) . D r . Killie diagnosed a lateral

meniscus tear with underlying degenerative joint disease. (Tr.

357). D r . Killie noted that S t . Louis had mechanical symptoms

consistent with her MRI findings and a difficult time with

ambulation. (Tr. 3 5 7 ) . She planned to proceed with surgery,

and scheduled it for November 5 , 2008. (Tr. 357-58).

On October 3 1 , 2008, a “Medical Source Statement of Ability

to do Work-Related Activities” was completed by Conway-Clancy.

(Tr. 4 3 3 ) . This evaluation was less restrictive than her first

evaluation, as it allowed S t . Louis to work a full eight-hour

workday. She advised that S t . Louis should be limited to jobs

where she was allowed to take unscheduled breaks to relieve pain

and discomfort and that she would only be able to work under

17 The popliteal fossa is the space posterior to the knee joint. See id. at 708.

9 very specific conditions. (Tr. 4 3 3 ) . Specifically, Conway-

Clancy opined that S t . Louis could never climb, balance, kneel,

crouch, crawl, or stoop, and that long sitting, standing or

walking would increase pain. Thus, in sitting situations, S t .

Louis would have to get up every one to two hours to stretch her

knees, and standing or walking was limited to less than two

hours in an eight-hour work day. (Tr. 430-31). Conway-Clancy

indicated that lifting/carrying as much as ten pounds could be

done occasionally but not frequently. (Tr. 4 3 0 ) .

On November 5 , 2008, D r . Killie performed a left knee

arthroscopy with partial lateral meniscectomy and chondroplasty18

to correct S t . Louis’s torn left meniscus. (Tr. 4 5 0 ) . Dr.

Killie noted at a post-operative appointment on November 1 3 ,

2008 that S t . Louis was doing well, and planned to send her to

physical therapy. (Tr. 3 6 1 ) .

On November 1 8 , 2008, S t . Louis began physical therapy for

her left knee. (Tr. 3 7 3 ) . The physical therapist noted

swelling, range of motion limitation and decreased quad

control/strength. (Tr. 3 7 3 ) . He opined that S t . Louis could

benefit from physical therapy to address these issues. (Tr.

18 Chondroplasty refers to reparative surgery of cartilage. See id. at 342. 10 373). A month later the physical therapist noted that she had

made significant progress with her left knee issues and was

steadily gaining strength. (Tr. 3 7 6 ) . She continued to be

limited with functions however, due to issues with her right

knee. (Tr. 3 7 6 ) . Continued treatment was recommended as well

as evaluation of the right knee. (Tr. 3 7 6 ) .

3. 2009 Right Knee Surgery

On December 1 8 , 2008, S t . Louis saw D r . Killie for another

post-operative follow-up. (Tr. 3 6 4 ) . S t . Louis reported she

had no pain in her left knee, but she had increasing pain in her

right knee. (Tr. 3 6 4 ) . An MRI of her right knee showed

degenerative changes in the knee, most extensively laterally,

where there was narrowing of the joint space and extensive

thinning of the cartilage at both the tibial and femoral

surfaces. (Tr. 3 4 7 ) . The posterior horn of the lateral

meniscus was quite small and deformed, but the configuration was

more suggestive of post-operative change than an acute tear.

(Tr. 347-48). On January 2 , 2009, when S t . Louis saw D r . Killie

for an MRI follow-up appointment, she reported that her right

knee was still problematic. (Tr. 3 6 5 ) . Walking was not a

problem, but she was unable to use stairs or kneel. (Tr. 3 6 5 ) .

11 Dr. Killie recommended physical therapy, anti-inflammatories,

and an arthroscopy. (Tr. 3 6 5 ) . At an appointment on January 5 ,

2009, it was noted that S t . Louis’s gait was normal, but her

ability to exercise was limited by her knee injuries. (Tr. 526-

27).

On January 2 1 , 2009, D r . Killie performed a right knee

arthroscopy with partial lateral meniscectomy and removed

damaged cartilage. (Tr. 4 5 6 ) . At a post-operative appointment

nine days later, D r . Killie ordered physical therapy for range

of motion restoration and strengthening of the right knee. (Tr.

369). She also advised that S t . Louis would do better with a

weight loss program after her knee was feeling better.19 (Tr.

369).

19 S t . Louis stands 5’9” tall, and at the time of her knee injury in July 2007 she weighed 332 pounds. (Tr. 2 7 9 ) . On June 1 1 , 2009, S t . Louis saw D r . Donald Hess in consultation for weight loss surgery. (Tr. 5 7 5 ) . He noted a longstanding history of morbid obesity and assessed S t . Louis as an excellent candidate for the surgery based on a body mass index of 50.6. (Tr. 5 7 6 ) . On August 5 , 2009, S t . Louis saw D r . Lalita Khaodhiar for a preoperational weight loss surgery evaluation, and reported she was exercising four to five times per week. (Tr. 5 8 2 ) . D r . Khaodhiar’s impression was that S t . Louis suffered from obesity, knee osteoarthritis, and depression, but she noted normal mobility. (Tr. 584-85). S t . Louis was scheduled to undergo weight loss surgery in February 2010. The record does not indicate whether or not the surgery was performed. (Tr. 3 8 ) .

12 S t . Louis began physical therapy again on February 3 , 2009

for her right knee. (Tr. 3 8 0 ) . She exhibited decreased range

of motion and strength with typical post-operative swelling.

(Tr. 3 8 0 ) . On February 9, 2009, it was noted during a physical

that S t . Louis’s gait was normal. (Tr. 5 2 9 ) . A physical

therapy re-evaluation was done on March 3 , 2009, at which time

S t . Louis reported that her right knee was starting to “feel

better.” (Tr. 3 8 3 ) . Functionally she was not able to squat,

use stairs, or kneel due to pain, but she was taking short steps

and was “able to walk community distances.” (Tr. 3 8 3 ) .

4. 2009 Left Knee Injury

On March 1 6 , 2009, S t . Louis saw D r . Killie for a second

post-operative appointment. (Tr. 3 7 1 ) . She reported that her

right knee was “doing much better,” but her left knee pain was

increasing. (Tr. 3 7 1 ) . She had slipped and fallen on water a

week before and hyperextended her left knee. (Tr. 3 7 1 ) . Dr.

Killie ordered physical therapy for both knees. (Tr. 3 7 1 ) .

On March 2 4 , 2009, S t . Louis told the physical therapist

that she felt “really good.” (Tr. 3 8 6 ) . It was noted that she

had made excellent progress in physical therapy and had achieved

most of her physical therapy goals, including the ability to go

13 up and down a flight of stairs. (Tr. 3 8 4 , 3 8 6 ) . At a follow-up

appointment with D r . Killie on April 6, 2009, S t . Louis reported

that both knees were becoming “achier,” but that the pain in her

left knee had gone away with therapy. (Tr. 3 7 2 ) . D r . Killie

also noted that they talked about potential lap band surgery and

weight loss, and how this could diminish her pain. (Tr. 3 7 2 ) .

Dr. Killie also wanted to proceed with Euflexxa injections.

(Tr. 3 7 2 ) . S t . Louis saw Conway-Clancy throughout the next few

months for Euflexxa injections in her knees. (Tr. 535, 5 3 8 ,

541, 5 4 4 , 5 4 7 , 5 5 0 ) .

On May 2 6 , 2009, S t . Louis saw D r . Jie Cheng, a specialist

in Rehabilitation at Pain Solutions, for a consultation

regarding her bilateral knee pain. (Tr. 4 9 4 ) . She reported

that the pain was exacerbated by standing or walking, and

somewhat relieved by hot showers or baths. (Tr. 4 9 4 ) . Dr.

Cheng noted that S t . Louis’s knee range of motion was normal.

(Tr. 4 9 5 ) . She assessed arthralgia20 of the knee, and referred

her for chronic pain management. (Tr. 4 9 5 ) .

On July 1 3 , 2009, at a follow-up with Conway-Clancy after

the Euflexxa shots, S t . Louis noted improvement in her overall

Arthralgia refers to pain in a joint. See id. at 149. 14 knee pain and described the pain as mild to moderate. (Tr.

553). Her right side was still more painful than the left, but

she stated that she had joined a gym and was working out. (Tr.

553). An examination showed no pain and full range of motion of

the knees bilaterally. (Tr. 5 5 4 ) .

On August 2 4 , 2009, S t . Louis visited her primary care

center after starting a new diet and exercise program, and it

was noted that her gait was normal. (Tr. 555-56). She returned

on October 1 4 , 2009, after dropping a weight on her foot, and

once again her gait was recorded as normal. (Tr. 566-67). St.

Louis visited her primary care center on November 1 8 , 2009 and

reported recurrent knee pain. (Tr. 5 7 1 ) . She presented with

disturbance of gait, decreased range of motion, and joint pain

in both knees. (Tr. 5 7 1 ) . She reported that the medication she

had taken to relieve the pain was causing her headaches, but she

was still riding an exercise bike. (Tr. 5 7 1 ) . Conway-Clancy

noted she had been doing very well with exercise and weight

loss. (Tr. 5 7 1 ) .

C. Hearing Testimony

At the administrative hearing on February 1 6 , 2010, S t .

15 Louis testified about her previous employment21 and her history

of knee problems and surgeries. She noted that she could stand

in one spot for about fifteen or twenty minutes, but that

walking was more difficult. (Tr. 4 5 ) . She testified she could

walk for about thirty minutes and anything more would put her

“over for the whole day.” (Tr. 4 5 ) . Elaborating further, she

stated that she could walk about a quarter to half a block

before she had to stop, sit down, or rest in some way. (Tr.

50). She also explained that her knees would get stiff when she

rested, causing pain and difficulty walking as soon as she got

up. (Tr. 4 6 ) . Finally, she testified to problems walking on

rough or uneven surfaces, and noted that when climbing stairs

she had to hold on to the railing and take one step at a time.

(Tr. 5 0 ) . S t . Louis also explained her daily routine. She

noted that while her two children are at school she cleans up as

much as she can, does laundry, and rests frequently, but that

she is unable pick up her three-year-old son. (Tr. 48-49).

S t . Louis also indicated that she suffers from migraine

21 Her past relevant work includes time spent as an office assistant, a case worker in human services, a cashier, a hair stylist, and as a reservation clerk. (Tr. 40-42). She left her most recent job as a residential counselor for mentally ill individuals because she felt like she could not fully protect herself due to the condition of her knees. (Tr. 40-41). 16 headaches. (Tr. 4 9 ) . The migraines occur once every three

weeks to a month and they last for three days in a row. (Tr.

50). She takes Motrin or something similar to deal with the

migraines. (Tr. 5 0 ) . When the migraines occur, she is able to

function in a limited way, but has to make sure that she can lie

down and rest. (Tr. 5 0 ) . Finally, she told the ALJ that she

has trouble falling asleep and is frequently awakened by her

knee pain. (Tr. 5 2 ) .

After hearing S t . Louis’s testimony, the ALJ posed three

hypothetical questions to a vocational expert (“VE”). (Tr. 54-

56). In the first hypothetical, the ALJ asked the VE to assume

that the plaintiff had the Residual Functional Capacity (“RFC”)

to perform sedentary work.22 (Tr. 5 4 ) . The ALJ then asked if

the hypothetical claimant would be able to perform any of her

past relevant work either as actually performed, or as generally

performed in the national economy. (Tr. 5 5 ) . The expert

22 This would require a person to stand uninterrupted for about twenty minutes, walk uninterrupted for approximately thirty minutes with no particular limitations on sitting, stand and walk for about two hours in an eight-hour day, and sit for about six hours in an eight-hour day. The hypothetical claimant would also be restricted from climbing ladders, kneeling and crawling, and would need to avoid uneven surfaces, but would otherwise be able to occasionally engage in balancing, stooping, crouching, and climbing stairs. (Tr. 54-55). 17 explained that she would be able to perform her past work as a

reservations clerk. (Tr. 5 5 ) .

For the second hypothetical, the ALJ asked the expert to

assume the first hypothetical but added that the claimant would

be limited to simple, routine, and repetitive tasks at least

several times per month for the days when she was suffering from

migraines or general pain. (Tr. 5 5 ) . The VE felt that the

claimant would not be able to perform S t . Louis’s past relevant

work as a reservations clerk because it was classified as

skilled. (Tr. 5 5 ) . With regard to unskilled jobs, the VE

identified several unskilled jobs available in the national

economy that would fit the hypothetical.23 (Tr. 5 6 ) .

For the third hypothetical, the ALJ asked the expert to

assume the same hypothetical as the second, but added that the

claimant would be limited to jobs where she could be absent

unpredictably from work up to three times per month because of

exacerbations of either headaches or pain. (Tr. 5 6 ) . The

23 Specifically, the VE identified “call out operator” (50 jobs available in the local economy and 10,000 in the national economy), “food and beverage clerk” (75 jobs in the local economy and 17,000 in the national economy), “telephone quotation clerk” (350 jobs in the local economy and 90,000 in the national economy), and “assembler” (175 jobs in the local economy and 60,000 in the national economy). (Tr. 5 6 ) . 18 expert felt that there were no available jobs that such a

claimant could perform. (Tr. 5 6 ) .

D. ALJ’s Analysis

The ALJ employed the five-step sequential evaluation

process established by the Social Security Administration to

determine whether S t . Louis was disabled. (Tr. 9-10); see

(a). At the first step, the ALJ found that S t .

Louis had not engaged in substantial gainful activity since her

application date. (Tr. 1 0 ) ; see

(a)(4)(i).

At the second step, the ALJ found that S t . Louis’s bilateral

knee injuries, morbid obesity, depression, and migraine

headaches constituted severe impairments.24 (Tr. 1 1 ) ; see

(a)(4)(ii). At the third step the ALJ

determined that S t . Louis’s impairments neither met nor equaled

an impairment enumerated in the listings. (Tr. 1 2 ) ; see

(a)(4)(iii). The ALJ then determined that S t .

Louis retained the RFC to perform sedentary work as long as she

had an opportunity to alternate positions frequently, with no

climbing of ladders, kneeling, or crawling. (Tr. 1 3 ) . She

24 Although the ALJ found that S t . Louis’s depression was a severe impairment, he also determined that it was under reasonable control with therapy. 19 would need to avoid uneven surfaces and up to three days monthly

would be limited to simple, routine, and repetitive tasks due to

her depression, pain and headaches. (Tr. 1 3 ) ; see

(e). At the fourth step the ALJ found that S t . Louis

could not perform any of her past relevant work in light of her

RFC. (Tr. 1 5 ) ; see

(a)(4)(iv). At the

fifth step, the ALJ relied on testimony from the VE in

determining that there were jobs available in significant

numbers in the national economy that S t . Louis could perform.

(Tr. 16-17); see

(a)(4)(v).

II. STANDARD OF REVIEW

The Social Security Act provides that “[a]ny individual,

after any final decision of the Commissioner of Social Security

made after a hearing to which he was a party, . . . may obtain a

review of such decision by a civil action.”

(g).

I am empowered to “enter, upon the pleadings and transcript of

the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with or without

remanding the cause for a rehearing.” See

My “review is limited to determining whether the ALJ

20 deployed the proper legal standards and found facts upon the

proper quantum of evidence.” Nguyen v . Chater,

1 , 35

(1st Cir. 1999)(per curiam). The Commissioner’s findings of

fact are conclusive when supported by substantial evidence.

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

(1st Cir. 1991)(per curiam). “Substantial

evidence is more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Consol. Edison C o . v . NLRB,

(1938). In reviewing the record for substantial

evidence, I give deference to the ALJ’s findings, as it is his

responsibility, not the court’s, to determine issues of

credibility and to draw inferences from evidentiary facts.

Rodriguez v . Sec’y of Health & Human Servs.,

1 8 , 222

(1st Cir. 1981). The ALJ’s findings are not conclusive,

however, if they are “derived by ignoring evidence, misapplying

the law, or judging matters entrusted to experts.” Nguyen, 172

F.3d at 3 5 .

III. ANALYSIS

S t . Louis seeks reversal of the ALJ’s decision on three

21 grounds. First, she challenges the ALJ’s step-three

determination because she contends that he failed to consider

the effects of her obesity when determining whether her

impairments met one of the listings. Second, S t . Louis argues

that the ALJ’s RFC determination misapprehended the importance

of her obesity and pain, was not consistent with her treating

source’s opinion, and arbitrarily confined further limitations

to three days per month. Finally S t . Louis claims that the ALJ

failed to prove that there are jobs that exist in significant

numbers in the national economy that S t . Louis could perform. I

will address each argument in turn.

A. The ALJ’s Listing Determination

At the third step of the evaluation process, the ALJ must

consider whether any of the claimant’s severe impairments meet

or equal one of the impairments listed in 20 C.F.R. Part 4 0 4 ,

Subpart P, App. 1 . If an impairment does not meet the criteria

of a listing on its own, it can medically equal the criteria of

the listing if the claimant has other findings related to her

impairment that are at least of equal medical significance to

the required criteria for the listing.

(c)(5), 404.1526(b)(1)(ii).

22 Listing § 1.02 addresses “major dysfunction of a joint(s).”

20 C.F.R. Part 4 0 4 , Subpart P, App. 1 , § 1.02. It characterizes

major dysfunction of a joint a s :

[G]ross anatomical deformity . . . and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis[25] of the affected joint(s). With:

(A) Involvement of one major peripheral weight-bearing joint . . . , resulting in inability to ambulate effectively . . . .

Id.

S t . Louis argues that the ALJ’s determination at step three

failed to follow section 1.00Q of the listing, which counsels

that “adjudicators must consider any additional and cumulative

effects of obesity” on musculoskeletal impairments, as “[t]he

combined effects of obesity with musculoskeletal impairments can

be greater than the effects of each of the impairments

considered separately.” See 20 C.F.R. Part 4 0 4 , Subpart P, App.

1 , § 1.00Q; see also Social Security Ruling (“SSR”) 02-1p,

, *5 (Sep. 1 2 , 2002) (elaborating on the consideration

of obesity in the sequential evaluation process).

25 Ankylosis refers to stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. See Stedman’s at 9 0 . 23 Contrary to S t . Louis’s claims, the ALJ did consider the

impact of her obesity on her knee problems when considering

whether she met the requirements of the listing for joint

dysfunction. (Tr. 1 2 ) . He also commented repeatedly on the

impact of her obesity on her alleged impairments. In

determining S t . Louis’s RFC, the ALJ noted that “the record . .

. reflects that [her] knee pain was aggravated by her

longstanding morbid obesity.” (Tr. 1 1 ) . He specifically

mentioned her height, her consistent excessive weight, and that

ongoing weight loss was encouraged to help diminish her knee

pain. (Tr. 11-12). He also noted S t . Louis’s observation that

she had experienced a significant decrease in knee pain after

losing twenty pounds a year earlier. (Tr. 1 2 ) . Because the ALJ

considered the effects of S t . Louis’s obesity on the

musculoskeletal system as required by § 1.00Q of the listing,

S t . Louis’s argument fails.

S t . Louis next argues that the ALJ’s conclusion that she

was able to ambulate effectively was not supported by

substantial evidence. “To ambulate effectively, individuals

must be capable of sustaining a reasonable walking pace over a

sufficient distance to be able to carry out activities of daily

24 living.”26 20 C.F.R. Part 4 0 4 , Subpart P, App. 1 , §

1.00(B)(2)(b). S t . Louis points to four examples from the

record where medical professionals noted disturbance of gait or

use of a crutch, as well as her testimony before the ALJ

indicating that she had difficulty with uneven surfaces and

stairs. (See T r . 50-51, 306-308, 333, 3 5 7 , 5 7 1 ) . The record,

however, also contains substantial evidence demonstrating S t .

Louis’s ability to ambulate effectively, and it is the ALJ’s

responsibility to resolve factual conflicts in the record. See

Ortiz,

.

At her physical on February 4 , 2008 S t . Louis had a normal

gait with full range of motion in all joints, and no

musculoskeletal disability. (Tr. 3 1 2 , 3 1 4 ) . On March 2 4 ,

2009, the physical therapist noted that she was able to go up

and down a flight of stairs, and could walk “community

distances.” (Tr. 3 8 4 , 3 8 6 ) . On August 5 , 2009 S t . Louis had a

26 S t . Louis also argues that the ALJ defined “inability to ambulate effectively” too narrowly, as requiring an “abnormal gait,” when he stated “that the claimant is able to ambulate with a normal gait.” However, the ALJ was not purporting to define “ambulate effectively” when he referenced medical evidence showing that S t . Louis had a normal gait. He was merely citing appropriate evidence of S t . Louis’s ambulatory capabilities, which he then applied to the correct standard in reaching his conclusion that her knee problems did not meet or equal the level of severity described in § 1.02A. (Tr. 1 2 ) . 25 preoperational surgery evaluation for weight loss surgery, and

it was noted that she had normal mobility. (Tr. 5 8 2 , 5 8 4 ) . On

October 1 4 , 2009, S t . Louis visited her primary care center

after dropping a weight on her foot, and it was noted that there

was no disturbance of gait and her gait was normal. (Tr. 566-

67).

The ALJ’s written order also addresses S t . Louis’s

activities of daily living, specifically noting that she takes

her daughter to and from school, takes care of housekeeping

chores, leaves home daily, and is able to drive a car. (Tr.

13). The record also indicates that physical therapy improved

S t . Louis’s knee pain, and that she was able to work out at a

gym. (Tr. 1 1 ) . These examples, combined with the evidence in

the medical record, illustrate that the ALJ appropriately

concluded that S t . Louis was capable of ambulating effectively.

As a result, substantial evidence supports the ALJ’s

determination that S t . Louis’s knee problems did not meet or

equal the level of severity described in § 1.02A.

B. RFC Determination

S t . Louis next argues that the ALJ made three significant

errors in his determination of her RFC. First, she contends

26 that the ALJ did not adequately consider either the compounding

effect of her obesity on her musculoskeletal system or her

reports of pain. Next, she argues that the ALJ did not give

sufficient weight to a treating source’s opinion. Finally, she

claims that the ALJ’s decision to further restrict her RFC to

simple, routine, and repetitive tasks up to three days per month

was determined arbitrarily.

1. The ALJ’s Consideration of Obesity and Pain

S t . Louis argues that the ALJ misapprehended the effects of

her obesity and pain on her functional limitations in his

determination of her RFC.

Contrary to S t . Louis’s assertion, the ALJ did effectively

consider the effects of her obesity on her musculoskeletal

problems when determining her RFC. This argument is identical

to the argument S t . Louis makes regarding the ALJ’s evaluation

at step three, as SSR 02-1p requires the ALJ to consider the

combined effects of obesity with other impairments both when

evaluating whether an impairment equals a listing and when

determining the RFC. As I previously discussed in the step

three analysis, the record demonstrates that the ALJ gave due

consideration to S t . Louis’s obesity in evaluating her claims.

27 See supra Part III.A.

S t . Louis also claims that the ALJ improperly discounted

her reports of pain in his RFC determination. In evaluating the

intensity and persistence of S t . Louis’s symptoms, the ALJ

considers all of the available evidence from the record. See

(c)(1). ALJs may conclude that a claimant’s

allegations of subjective pain are not supported by evidence

from the record, such as medical evidence and testimony of daily

activities. See Da Rosa v . Sec’y of Health & Human Servs.,

4 , 26 (1st Cir. 1986)(per curiam); Guerin v . Astrue, N o .

10-cv-421-SM,

, at *7 (D.N.H. June 2 4 , 2011).

Such assessments are ordinarily made by the ALJ rather than the

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

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

In this case, the ALJ concluded that S t . Louis’s statements

concerning the intensity, persistence and limiting effects of

her symptoms were not entirely credible. (Tr. 1 5 ) . Substantial

evidence supports this decision. The ALJ noted that while S t .

Louis reported experiencing frequent knee pain, she was not

taking any pain medication, suggesting that “her pain, while no

doubt bothersome, [wa]s tolerable.” (Tr. 1 5 ) ; see Ortiz, 955

28 F.2d at 769 (accepting the ALJ’s inference that claimant would

have secured more treatment had his pain been as intense as

alleged). The ALJ also relied on the fact that S t . Louis used

the gym three to four times per week, including riding a bicycle

and weightlifting. (Tr. 1 5 ) ; see Guerin,

at

*5,*7 (finding no error in ALJ’s assessment of claimant’s

credibility when activities of daily living were not consistent

with purported pain). It was within the ALJ's discretion to

conclude from these findings that, although the plaintiff

suffered pain as reflected in the medical records and in her

testimony, the degree of pain was not as severe as S t . Louis

claimed.

2 . The ALJ’s Consideration of the Treating Source’s Opinion

S t . Louis next alleges that the ALJ did not give adequate

weight to the opinion of Conway-Clancy, a treating Physician’s

Assistant, when determining her RFC. Conway-Clancy prepared two

physical capacity assessments, one in June 2008 and one in

October 2008. (Tr. 352-53, 430-33). The June assessment is

more restrictive than the October assessment.27 The ALJ largely

27 The June assessment limited S t . Louis to four hours of work during an eight-hour day, while the October assessment allowed S t . Louis to work a full eight-hour workday. 29 adopted the October opinion28 when he determined that S t . Louis

had the RFC

[T]o perform sedentary work allowing for an opportunity to alternate positions at will frequently, with no climbing of ladders, kneeling or crawling. [St. Louis] would be able to otherwise perform postural activities occasionally. She would need to avoid uneven surfaces and up to three days monthly would be limited to simple, routine and repetitive tasks due to her depression, pain and headaches.

(Tr. 1 3 ) . Given the contradictory nature of the two reports,

the ALJ had no choice but to give one more weight than the

other. Considering all of the evidence, including the medical

record and activities of daily living that I have already

discussed, here the ALJ made the reasonable decision to follow

Conway-Clancy’s October assessment over her June assessment.

Therefore, in light of the record as a whole, there is

substantial evidence that the ALJ appropriately considered

Conway-Clancy’s opinion.

3 . The Three-Day-Per-Month Limitation

The ALJ determined that S t . Louis was limited to simple,

28 The only element of Conway-Clancy’s opinion from October 3 1 , 2008 that is absent from the ALJ’s RFC determination is her suggestion that S t . Louis should be allowed to take unscheduled breaks. (Tr. 4 3 3 ) . This recommendation by Conway-Clancy was expressly phrased as an “advisement,” not a requirement. (Tr. 433). 30 routine, and repetitive tasks up to three days monthly due to

her depression, pain, and headaches. (Tr. 1 3 ) . S t . Louis

contends that this limitation is arbitrary and not supported by

any medical evidence in the record.

As the ALJ noted, S t . Louis’s migraines were not mentioned

in the medical record other than as a factor regarding her

decision to stop taking pain medications. (Tr. 1 5 ) .

Nevertheless, the ALJ credited S t . Louis’s testimony at the

hearing that she gets migraine headaches once every three weeks

to a month and that they last for three days. (Tr. 1 5 , 5 0 ) .

Thus, far from being arbitrary, the ALJ based his three-day

limitation on S t . Louis’s own hearing testimony. As for the

ALJ’s decision to incorporate S t . Louis’s depression and pain

into the three-day limitation, the medical record showed S t .

Louis’s depression was under reasonable control with therapy,

her pain was tolerable, and there was no specific impairment in

S t . Louis’s ability to concentrate. Given the paucity of

medical evidence and the fact that the three-day limitation was

based on S t . Louis’s own testimony, the ALJ's determination was

supported by substantial evidence in the record.

31 C. Step-Five Determination

At step five of the disability determination process, the

burden shifts to the Commissioner to establish that the claimant

can engage in alternate employment and that such employment

exists in “significant numbers in the national economy.” See

(d)(2)(A); Geoffroy v . Sec.’y of Health & Human

Servs.,

(1st Cir. 1981). S t . Louis contends

that the ALJ’s step-five determination was not supported by

substantial evidence because the number of available jobs listed

by the VE was not a “significant number.”

There is no bright line test establishing the number of

jobs necessary to constitute a “significant number,” and each

case should be evaluated on its individual merits. Johnson v .

Barnhart,

(D. Kan. 2005). Ultimately,

the ALJ must weigh the facts of each case and apply them to the

statutory language, using common sense to make a decision. See

In this case the VE testified as to the availability of

jobs suited to a person of S t . Louis’s age, education, work

experience, and RFC in response to hypotheticals posed by the

32 ALJ and S t . Louis’s attorney.29 (Tr. 55-57). Specifically, the

VE identified “call out operator” (50 jobs in the local economy

and 10,000 in the national economy), “food and beverage clerk”

(75 jobs in the local economy and 17,000 in the national

economy), “telephone quotation clerk” (350 jobs in the local

economy and 90,000 in the national economy), and “assembler”

(175 jobs in the local economy and 60,000 in the national

economy), as jobs available to a person with limitations similar

to S t . Louis’s. (Tr. 5 6 ) .

Aggregating the jobs identified by the V E , S t . Louis argues

that 650 jobs in the local economy and 177,000 jobs nationally

are insufficient to constitute significant numbers. I disagree,

as other courts have determined that even fewer jobs can qualify

as a significant number of jobs. See, e.g., Jenkins v . Bowen,

(8th Cir. 1988)(500 jobs in region was a

significant number); McCallister v . Barnhart, N o . 03-189-P-S,

, at *5 (D. M e . Aug. 2 6 , 2004)(372 jobs in a

29 The VE’s numbers denote all the available jobs S t . Louis would be capable o f , not just a representative sample. S t . Louis argues that the ALJ’s reference in his decision to “representative jobs” indicates he may have assumed there were more jobs available than those specifically named by the V E . This argument has no bearing on my decision, however, since I find that the number of jobs named by the VE is enough to be significant in either case. 33 region and 50,955 in the national economy were significant

numbers). Therefore the ALJ met his burden of proving that

there are jobs S t . Louis can perform with her RFC, and that such

employment exists in significant numbers in the national economy.30

IV. CONCLUSION

The ALJ’s decision is supported by substantial evidence in

the record. The defendant’s motion for an order affirming the

decision of the Commissioner (Doc. N o . 12) is granted, and S t .

Louis’s motion to reverse (Doc. N o . 9 ) is denied. Accordingly,

the clerk shall enter judgment and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge July 2 7 , 2011

cc: Janine Gawryl, Esq. Robert Rabuck, Esq.

30 Finally, S t . Louis argues that the ALJ’s step-five finding was improper because the VE testified that there would not be any jobs available if the individual were required to be absent three times monthly rather than merely limited to simple, routine, repetitive work three times monthly. This testimony is of no consequence because the ALJ did not ultimately find that S t . Louis was so limited. (Tr. 1 3 ) . 34