Connors v . SSA CV-10-197-PB 6/10/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael D . Connors

v. Case N o . 10-cv-197-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Michael Connors moves to reverse the Commissioner of Social

Security’s determination that he is not eligible for disability

insurance benefits (“DIB”). Connors argues that the

Administrative Law Judge (“ALJ”) improperly determined that,

after Connors suffered a back injury, he was nevertheless

capable of performing work available in the national economy and

therefore was not disabled during the relevant time period.1 For

the reasons set forth below, I affirm the Commissioner’s

decision.

1 While Connors originally sought DIB based on his back injury, asthma, chronic obstructive pulmonary disease, and allergies, his appeal focuses only on the ALJ’s decision as it relates to the back injury.

1 I. BACKGROUND2

On February 2 5 , 1997, Connors was diagnosed with

lumbosacral strain3 after sustaining an injury to his lower back

at work several days earlier (Tr. 1 0 9 ) . Upon examination,

Connors was able to heel and toe walk; his reflexes were equal

bilaterally; he was able to flex thirty degrees at the waist

before being stopped by pain; he could bend to the rear and to

the sides without too much difficulty; straight leg raises were

negative; and he had some point tenderness in the right lower

back ( i d . ) . He was released to work with limitations

restricting him from lifting more than ten pounds, five pounds

frequently (Tr. 109-10). He was told to avoid all heavy lifting

and bending (Tr. 1 1 0 ) . He was also told to avoid staying in any

position for long periods of time ( i d . ) . Connors was instructed

not to perform bending, kneeling, squatting, climbing, or

reaching (Tr. 1 1 0 ) . He had two follow-up appointments in March 2 I draw the background information and procedural history from the Joint Statement of Material Facts submitted by the parties (Doc. N o . 10) and the Administrative Record. Citations to the Administrative Record are indicated by “Tr.” 3 A strain is defined as “an overstretching or overexertion of some part of the musculature.” Dorland’s Illustrated Medical Dictionary at 1803 (31st ed. 2007)(Dorland’s). Lumbosacral relates to the lumbar vertebrae and the sacrum. Stedman’s Medical Dictionary (Stedman’s) at 169 (28th ed. 2006). Lumbar is the part of the back and sides between the ribs and the pelvis. Id. at 1121.

2 1997, at which it was noted that Connors was doing better (Tr.

112, 1 1 4 ) .

At a follow-up appointment on April 2 , 1997, Connors

reported continued pain on the right side of his lumbosacral

area with some radiation up into the thoracic area 4 (Tr. 1 1 6 ) .

Upon examination, he walked easily and was able to walk well on

both heel and toe ( i d . ) . He had equal deep tendon reflexes

bilaterally ( i d . ) . Straight leg raising was negative and he was

able to flex and extend at the waist without any great

discomfort ( i d . ) . There was some point tenderness in the right

lumbosacral area and spasm of the paravertebral muscles

extending through the lumbosacral area up into the lower

thoracic area ( i d . ) . His hamstrings were also extremely tight

(id.). He was prescribed Flexeril,5 added to the Naprosyn,6 and

was told to continue to attend physical therapy ( i d . ) . His work

limitations included no lifting of more than twenty pounds or

ten to fifteen pounds frequently, and no bending or reaching

4 The thoracic area is the upper part of the trunk between the neck and the abdomen. Stedman’s at 1982. 5 Flexeril is for use as “an adjunct to rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions.” Physician’s Desk Reference at 1985 (58th ed. 2004)(“PDR”). 6 Naprosyn is a non-steroidal anti-inflammatory drug used to relieve pain. See PDR at 2902-2903. 3 (id.). Connors participated in physical therapy in March and

April 1997 and was discharged from physical therapy with reports

of decreased pain in his lower back (Tr. 118-40).

On September 3 0 , 1997, D r . Coleman Levin completed an

independent medical evaluation of Connors (Tr. 904-09). He

diagnosed right dorsolumbar7 paraspinal muscle strain and

possible right L5-S1 disc herniation8 (Tr. 9 0 4 ) . D r . Levin

stated that Connors had full-time work capacity and was able to

lift up to twenty pounds on an occasional basis ( i d . ) . He stated

that Connors needed the opportunity to change positions and he

needed to avoid repetitive bending ( i d . ) . D r . Levin stated that

the prognosis for recovery was excellent and he did not expect a

permanent impairment (Tr. 9 0 5 ) .

Connors was seen by D r . Roy Hepner for his back pain from

October 1997 through April 1998 (Tr. 169-84). On October 2 0 ,

1997, Connors complained of low back pain (Tr. 1 6 9 ) . He was not

taking any medication at the time ( i d . ) . D r . Hepner noted that

standing spine films demonstrated distinct mild narrowing

through the L4-5 level without evidence of instability

7 Dorsolumbar is the area “pertaining to the back and the loins, especially the region of the lower thoracic and upper lumbar vertebrae.” Dorland’s at 570. 8 A herniated disc is the protrusion of a degenerated or fragmented intervertebral disc into the intervertebral foramen. Dorland’s at 549. 4 (Tr. 1 7 0 ) . He assessed a chronic lumbar strain and referred

Connors to physical therapy ( i d . ) . On December 5 , 1997, Connors

was discharged from physical therapy due to his failure to make

or keep scheduled appointments (Tr. 1 4 8 ) .

On February 1 2 , 1998, D r . Hepner reported that Connors’ MRI

demonstrated desiccation of the L4-5 disc with posterior

protrusion, which was sufficient to be described as herniation

(Tr. 1 8 0 ) . There was also some effacement of the thecal sac

(id.). D r . Hepner assessed Connors with L4-5 disc disruption9

and scheduled a discography ( i d . ) . On March 2 5 , 1998, Connors

underwent a discography with D r . Hepner and was diagnosed with

chronic lumbar sprain (Tr. 1 5 0 ) . On April 1 6 , 1998, D r . Hepner

reported that Connors felt fairly good and avoided heavy lifting

and repetitive bending (Tr. 1 8 3 ) . D r . Hepner noted that Connors

had light duty job offers that he planned to pursue ( i d . ) .

After a physical examination at the April 1 6 , 1998

appointment, D r . Hepner reported that Connors was able to flex

his trunk to reach within seven inches of the floor, which was

“a good improvement over past evaluations” (Tr. 1 8 3 ) . Dr.

Hepner urged Connors to continue his exercises and recommended 9 Disc disruption “occurs when the disc tears or cracks (fissure) allowing the nucleus pulposus to meet the annulus fibrosus.” Discogenic Low Back Bain, http://www.spineuniverse.com/conditions/back-pain/discogenic- low-back-pain (last visited May 2 4 , 2011). 5 that he avoid heavy lifting (forty pounds, twenty pounds

frequently) or repetitive lifting (Tr. 183-84). He also

recommended changing positions frequently ( i d . ) . D r . Hepner

reported that Connors could return to work with modification

(Tr. 1 8 4 ) . He noted that he would see Connors again in one

month for re-evaluation, but there are no further records of

subsequent visits (Tr. 1 8 3 ) .

Connors was also seen by D r . Margaret Tilton from April

1997 through November 1998 with complaints of back pain (Tr.

185-97). On April 2 3 , 1997, a scan of the lumbosacral spine

revealed minimal degenerative facet joint10 changes at L5-S1 that

are consistent with early degenerative disc disease11 (Tr. 1 8 9 ) .

There was no evidence of fracture or subluxation12 ( i d . ) . Dr.

Tilton noted that Connors’ acute low back pain resolved on April

3 0 , 1997 (Tr. 1 9 0 ) .

On October 1 3 , 1998, Connors again complained to D r . Tilton

of constant back pain (Tr. 1 9 2 ) . At the time he was taking

10 Facet joints are the synovial joints between articular processes of the vertebrae. Stedman’s at 1014, 1016. 11 Degenerative disc disease is “a term used to describe the normal changes in your spinal discs as you age.” http://www.webmd.com/back-pain/tc/degenerative-disc-disease- topic-overview (last visited May 2 4 , 2011). 12 Subluxation is “an incomplete or partial dislocation.” Dorland’s at 1817. 6 Aleve for his pain (Tr. 1 9 3 ) . Connors’ neurological evaluation

was normal and his gait remained intact with the ability to

squat and stand without use of his hands (Tr. 1 9 3 ) . Connors

exhibited marked bilateral lumbar paraspinal spasm and reduced

motion on flexion, extension, and bending ( i d . ) . Straight leg

raising, reverse straight leg raising, and Faber’s maneuver were

all negative bilaterally ( i d . ) . D r . Tilton diagnosed Connors

with L4-5 herniated nucleus pulposus13 with intermittent

radicular14 pain ( i d . ) . She noted that Connors was not a

candidate for surgery, but recommended more invasive pain

management such as epidural steroid injections or nerve root

blocks ( i d . ) . At another visit on November 1 7 , 1998, D r . Tilton

listed Connors’ work restrictions as maximum lifting of fifteen

pounds (ten pounds frequently), no bending, and occasional

kneeling, squatting, and climbing (Tr. 195-96).

Upon referral by D r . Tilton, Connors was seen for pain

management with D r . Thomas Menke from December 1998 through

March 1999 (Tr. 202-19). Connors received epidural steroid

injections on December 2 1 , 1998 and January 7 , 1999 (Tr. 2 0 4 ,

209, 2 1 1 ) . After the injections, Connors noted that his pain

13 Nucleus pulposus is “the soft fibrocartilage central portion of the intervertebral disc.” Stedman’s at 1343. 14 Radicular is defined as “of or pertaining to a root (radix) or radicle.” Dorland’s at 1595. 7 symptoms were nearly completely resolved (Tr. 209- 1 1 ) .

Connors received another injection on March 1 1 , 1999, after

feeling increased pain from bending at work (Tr. 2 1 2 , 2 1 8 ) .

On March 1 0 , 1999, Connors’ medical records were reviewed

by D r . Kenneth Polivy (Tr. 198-201). D r . Polivy opined that

Connors sustained an acute lumbosacral sprain which resolved in

April 1997 (Tr. 2 0 0 ) . D r . Polivy stated that he believed

Connors’ L4-5 disc degeneration was present on the basis of

degenerative wear and tear over the years ( i d . ) . He recommended

weight reduction, exercise, and strengthening to help alleviate

Connors’ pain (Tr. 2 0 1 ) .

While Connors continued to seek medical treatment for a

variety of other physical ailments between 1999 and 2005,

Connors did not complain of back pain again until after June 3 0 ,

2005, his date last insured (“DLI”) (Tr. 382-482). Examinations

during that time revealed normal musculoskeletal findings (Tr.

403, 4 1 7 , 4 2 7 , 449, 476, 4 8 1 ) .

In April of 2006 Burton Nault, M.D., a non-examining state

agency medical consultant, reviewed the evidence of record and

completed a Physical Residual Functional Capacity Assessment of

Connors from October 1 , 1997, through June 3 0 , 2005 (Tr. 273-

80). D r . Nault opined that Connors could occasionally lift

and/or carry twenty pounds, frequently lift and/or carry ten 8 pounds, stand and/or walk for about six hours in an eight-hour

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

occasionally perform postural functions (Tr. 274-75).

Connors continued to be seen for back problems at Family

Care of Farmington after his DLI. At an appointment with D r .

Tyler Edwards on December 2 1 , 2006, Connors complained of neck

and lower back pain, which he stated started bothering him more

when he started working again doing pool work (Tr. 3 1 5 ) . Films

of Connors’ lumbar spine taken in October 2006 showed lower

lumbar degenerative changes (Tr. 3 2 0 ) . Films of his cervical

spine were normal (Tr. 5 2 0 ) . A December 2006 MRI revealed

degenerative disc disease at L4-L5 with a broad based disc bulge

and superimposed posterior central/left paracentral disc

herniation; broad based posterior disc bulge at L5-S1; and mild

degenerative change of the facet joints at L4-L5 and L5-S1 (Tr.

312).

On October 2 0 , 2006, Connors underwent an initial physical

therapy evaluation for back pain (Tr. 515-17). He reported

experiencing low back pain for ten years (Tr. 5 1 5 ) . Connors

exhibited decreased bilateral trunk range of motion, bilateral

trunk pain and radicular symptoms down the left lower extremity,

9 increased lumbar lordosis,15 and decreased postural and body

mechanics awareness ( i d . ) . Expected outcome at discharge (after

four to six weeks) included range of motion within normal

limits, decreased pain, compliance with home exercise and

independent pain management, increased activities of daily

living, proper posture and body mechanics, and a return to work

with lifting restrictions ( i d . ) . Connors was seen for a total

of seven visits, but was eventually discharged because he failed

to appear for appointments (Tr. 5 1 7 ) .

From December 2006 through February 2007 Connors also went

to D r . O’Connell’s Paincare Centers and saw John Kane, ARNP,

CRNA, (Tr. 874-83). On December 2 1 , 2006, Connors complained of

chronic back pain radiating into his legs (Tr. 8 7 4 ) . Kane noted

that an MRI of the lumbar spine showed degenerative disc disease

of the lumbar spine with broad base disc bulge and left

paracentral disc herniation that had a mass effect on the L5

nerve root ( i d . ) . Upon examination, Connors’ gait, range of

motion in the extremities, and strength were normal with no

joint enlargement or tenderness (Tr. 875-76). Connors reported

pain and tenderness in his cervical, thoracic, and lumbar spine

(Tr. 8 7 6 ) . Range of motion in his cervical, thoracic, and

15 Lumbar lordosis is “the normal, anteriorly convex curvature of the lumbar segment of the vertebral column.” Stedman’s at 1119. 10 lumbar spine was limited due to pain ( i d . ) . Connors’

neurological functions were largely intact except for absent

reflexes and what appeared to be left leg radicular changes from

his hip to his knee ( i d . ) .

On January 1 0 , 2007, Connors received an epidural steroid

injection and facet injections to help with his back pain (Tr.

878). On January 2 5 , 2007, Connors reported that his pain was

more manageable and his level of function improved since

starting chronic narcotic therapy (Tr. 8 8 0 ) . Upon examination,

Connors was unchanged from December 2 1 , 2006, except pain with

compression over lower lumbar was much less since facet

injections (Tr. 8 8 1 ) . Connors received another epidural steroid

injection on February 2 3 , 2007 (Tr. 8 8 3 ) .

On March 1 4 , 2007, Kane completed a Residual Functional

Capacity questionnaire for Connors, noting that he had first

seen Connors on December 2 1 , 2006 (Tr. 896-900). He reported

that Connors’ pain was moderate in nature (Tr. 8 9 6 ) . Kane

opined that Connors’ pain would frequently interfere with

attention and concentration needed to perform even simple work

tasks (Tr. 8 9 7 ) . He opined that Connors’ back impairment

lasted, or could be expected to last, at its current level of

severity since the late 1990's ( i d . ) . He opined on the

following limitations: Connors could walk one city block without 11 rest or severe pain, sit for fifteen minutes at one time, stand

for fifteen minutes at one time, and sit and stand and/or walk

for less than two hours in an eight-hour workday (Tr. 897-98).

He further opined that Connors needed to walk every sixty

minutes for five to ten minutes (Tr. 8 9 8 ) . Kane stated that

Connors needed a job that allowed him to shift positions and

take unscheduled work breaks ( i d . ) . He noted that Connors

possibly needed a cane to walk ( i d . ) .

Kane also opined that Connors could rarely lift weight of

less than ten pounds and never lift anything more than that (Tr.

899). He stated that Connors could never twist, stoop, crouch,

squat, and climb ladders ( i d . ) . He noted that Connors could

rarely climb stairs ( i d . ) . Kane opined that Connors had no

limitations with reaching, handling, or fingering ( i d . ) . He

stated that Connors was likely to be absent from work for more

than four days per month ( i d . ) . When asked what the first date

was that the limitations and symptoms in the questionnaire

applied, Kane reported that he first saw Connors on December 2 1 ,

2006 ( i d . ) . Kane concluded that he did not feel Connors would

ever be able to go back to manual labor type jobs, but that did

not prevent him from being retrained ( i d . ) .

Kane also reported that Connors had degenerative disc

disease with evidence of nerve root compression and neuro- 12 anatomic distribution of pain (Tr. 9 0 1 ) . He stated that

Connors had limited motion of the spine, an inability to walk on

heels, and an inability to squat ( i d . ) . He stated that Connors

had no muscle weakness ( i d . ) . Kane reported that Connors had

reflex loss and positive straight leg raising only when sitting

(Tr. 9 0 2 ) . He opined that Connors’ impairments were equivalent

to the severity of conditions in Listing 1.04A ( i d . ) .

On January 1 , 2006, Connors completed a function report

(Tr. 69-76). He reported his day as follows: wake up at 6:00

a.m. with his daughter and eat breakfast, take daughter to

babysitter, go home to sit and relax, begin cleaning the house

and doing dishes, eat lunch, pick up daughter at 2:00 p.m., play

with daughter, eat dinner, watch television, and go to bed (Tr.

69). He reported that he bathed and fed his daughter, and

watched television and read with his daughter (Tr. 7 0 ) .

Connors stated that he slept one hour at a time on and off

all night and his loss of energy and breath impacted his ability

to dress and bathe (Tr. 7 0 ) . He stated that he prepared his own

meals, did laundry, and cleaned (Tr. 7 1 ) . Connors reported that

he did not do yard work or any other outdoor activities due to

his asthma and allergies (Tr. 7 2 ) . He stated that he went

outside twice per day ( i d . ) . Connors reported that he drove a

car and went grocery shopping, but that he no longer played 13 pool, rode his bike, or went sledding (Tr. 72-73).

Connors reported that he spent time with his wife and child

(Tr. 7 3 ) . He stated that he called friends a few times per week

and went to watch football once per week, but that he had a hard

time dealing with other people since his injury (Tr. 73-74).

Connors reported that his abilities had diminished since his

injury and that he could only walk 100 feet before needing to

rest ( i d . ) . He reported that he was limited in his ability to

lift, squat, bend, stand, reach, walk, kneel, climb stairs,

concentrate, and get along with others ( i d . ) . Connors stated

that he could pay attention for as long as necessary and had no

problems following instructions ( i d . ) . He noted that he did not

handle stress or changes in his routine well (Tr. 7 5 ) . He

reported that he was able to get along with authority figures if

he was treated with respect ( i d . ) .

At the hearing before the ALJ, Connors testified that he

pulled something in his back while working (Tr. 9 4 0 ) . He stated

that his symptoms improved for a while, but anytime he tried to

go back to work it would go back to the way it was when he first

stopped working ( i d . ) . He stated that when he tried to go back

to work, the jobs entailed manual labor (Tr. 9 4 1 ) . He stated

that bending was a big issue for him and he did not know any

jobs he could get where he did not have to bend ( i d . ) . Connors 14 noted that the pain in his back radiated through the left leg

and made his toes feel like they were asleep (Tr. 9 4 2 ) . He

testified that he did not have surgery because he did not have

insurance ( i d . ) . He stated that when he was married, five years

ago, he got medical insurance (Tr. 9 4 3 ) .

Finally, Connors testified that he has two young children

(Tr. 9 4 8 ) . He stated that they went to the babysitter during the

day because he cannot physically care for them, as he did not

have enough energy anymore (Tr. 9 4 9 ) . He stated that he felt

okay after he woke up in the morning, but after doing something

like laundry, he needed to sit down and rest and watch

television or something because he would start sweating and his

body hurt ( i d . ) .

II. PROCEDURAL HISTORY

Connors filed an application for Disability Insurance

Benefits on March 2 4 , 2005, with an alleged onset date of

October 1 , 1997 (Tr. 50-54, 8 7 ) . On March 1 6 , 2007, ALJ James

J. D’Alessandro held the hearing described above, at which

Connors, who was represented by counsel, and a vocational expert

testified (Tr. 933-56). On April 2 7 , 2007, the ALJ issued a

decision in which he found that Connors was not disabled at any

15 time from October 1 , 1997, through March 2 4 , 2005 (Tr. 16-27). 16

The ALJ’s decision became the final decision of the Commissioner

of Social Security (“Commissioner”) when the Appeals Council

denied Connors’ request for review of the ALJ’s decision on

March 1 7 , 2009 (Tr. 8-10).

On July 1 6 , 2009, this Court remanded Connors’ case to the

Commissioner for further action and a new decision (see

Tr. 9 6 2 ) . On January 2 0 , 2010, the Appeals Council notified

Connors and his representative that it proposed to issue a

decision finding that Connors was not entitled to benefits under

the Social Security Act (Tr. 962-64). On April 7 , 2010, the

Appeals Council issued another decision in which it adopted the

ALJ’s findings and conclusions with the exception of the

findings stating the erroneous date last insured (Tr. 9 6 0 ) .

Connors then filed this action challenging that final

administrative decision.

III. STANDARD OF REVIEW

Under

(g), I am authorized to review the

16 Because plaintiff acquired sufficient quarters of coverage to remain insured for DIB through June 3 0 , 2005 (Tr. 45-46), in order to establish disability for DIB purposes, he had the burden to show that he was disabled on or before that date. See

, 404.130-404.131. The ALJ erroneously reported this date as March 2 4 , 2005. 16 pleadings submitted by the parties and the transcript of the

administrative record and enter a judgment affirming, modifying,

or reversing the “final decision” of the Commissioner of Social

Security. Review is limited to determining whether the ALJ used

the proper legal standards and found facts based upon the proper

quantum of evidence. Ward v . Comm’r of Soc. Sec.,

5 2 ,

655 (1st Cir. 2000).

The findings of fact of the ALJ are accorded deference as

long as they are supported by substantial evidence. Ward,

. Substantial evidence to support factual findings

exists “if a reasonable mind, reviewing the evidence in the

record as a whole, could accept it as adequate to support his

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

(1st Cir. 1991) (per curiam) (quoting Rodriguez v .

Sec’y of Health & Human Servs.,

1 8 , 222 (1st Cir.

1981)). If the substantial evidence standard is met, factual

findings are conclusive even if the record “arguably could

support a different conclusion.” Ortiz,

.

Findings are not conclusive, however, if they are derived by

“ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen v . Chater,

1 , 35 (1st

Cir. 1999). The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence on the 17 record. Ortiz,

. It is the role of the ALJ, not

the court, to resolve conflicts in the evidence.

IV. ANALYSIS

Connors makes two claims in his appeal. First, he contends

that the RFC determination by the ALJ was not supported by

substantial evidence. Second, he argues that the ALJ failed to

give appropriate weight to Kane’s opinion concerning his RFC. I

will address each issue in turn.

A. The RFC Determination

The ALJ in this case determined that Connors retained the

RFC to perform “light exertional work.” That meant he could

“lift a maximum of twenty pounds occasionally and ten pounds

frequently; and stand and walk at least six hours out of an

eight-hour work day.” (Tr. 2 2 ) ; see

(b). At

the hearing a vocational expert (“VE”) testified that for an

individual with Connors’ age, education, work experience, and

RFC, available jobs existed in the national economy (Tr. 2 6 ) .

Specifically, the VE testified that Connors was capable of

performing the requirements of a toll collector or security

guard. Based on the VE’s testimony the ALJ concluded that

Connors was capable of making a successful adjustment to other

work and was therefore not disabled during the relevant time

18 period. Connors now challenges the RFC that was the basis of

the VE’s testimony, arguing that the evidence presented at the

hearing does not support the conclusion that Connors was capable

of performing light work.

In determining a claimant’s RFC, an ALJ is required to

assess all of the relevant evidence in the record and resolve

any conflicts in that record. See 20 C.F.R §404.1545. Here,

the ALJ accorded significant weight to the medical opinion of

Dr. Levin, who opined that Connors’ back injury was not a

permanent impairment and that Connors could work full-time doing

light exertional work. While D r . Levin’s opinion was rendered

in 1997, the ALJ noted that the opinion was consistent with the

medical record as a whole and Connors’ own testimony regarding

his daily activities, which I discuss below. Other medical

opinions in the record also support the ALJ’s conclusion: D r .

Hepner stated that Connors could lift up to forty pounds or

twenty pounds frequently and should be able to return to work,

and D r . Polivy does not appear to have placed any limitations on

Connor, recommending only weight reduction, exercise, and

strengthening to help alleviate pain.

In arguing against the RFC determination, Connors relies

heavily on Kane’s opinion that Connors could never lift more

than ten pounds and only rarely less than ten, could never bend, 19 twist, or squat, and would not be able to go back to manual

labor jobs, and D r . Tilton’s opinion that Connors was unable to

bend. D r . Tilton, however, also opined that Connors would be

able to gradually return to work, and concluded that in the

meantime his work restrictions were only that his maximum

lifting not exceed fifteen pounds, that he not bend, and only

kneel, squat, and climb on an occasional basis. These

limitations are very similar to the requirements of light

exertional work that the ALJ found Connors to be capable of in

his RFC determination. Moreover, even Kane opined that Connors

could be “retrained,” indicating that he thought Connors was

physically capable of jobs that involved sufficiently low

amounts of physical exertion.

Finally, the ALJ reasonably gave significant weight to the

opinion of D r . Burton Nault, a nonexamining state agency medical

consultant. See

(f) (noting that the ALJ may

consider the opinions of nonexamining sources). Nault reviewed

the entire medical record and opined that during the insured

period Connors could occasionally lift and/or carry twenty

pounds, frequently lift and/or carry ten pounds, stand and/or

walk for about six hours in an eight-hour workday, sit for about

six hours in an eight-hour workday, and occasionally perform

postural functions. 20 Kane’s opinion did indicate that Connors was more limited

than the RFC determination eventually made by the ALJ, but it is

the very role of the ALJ to consider opinions of multiple

experts and to resolve conflicting opinions. Evangelista v .

Sec'y of Health & Human Servs.,

(1st Cir.

1987) (noting that the ALJ is entitled “to piece together the

relevant medical facts from the findings and opinions of

multiple physicians”). That is precisely what the ALJ did here,

as he appropriately considered all of the medical opinions

before him and made his own determination of Connors’ RFC.

In addition to medical opinions, evidence that a person

performs daily activities that are inconsistent with a claimed

disability may be considered by an ALJ in determining that

person’s RFC. See Avery v . Sec’y of Health & Human Servs.,

9 , 29 (1st Cir. 1986); see also Dupuis v . Sec’y of Health

and Human Servs.,

2 2 , 624 (1st Cir. 1989) (per curiam)

(upholding denial of disability in part because claimant was

able to work during the period at issue). Here, Connors

testified that his daily activities include having breakfast

with his daughter, dropping her off at the babysitter,

performing household chores, and cooking. Connors also reported

to a doctor in April of 2003 that he had joined a gym and was

considering helping his wife stock shelves at her job. These 21 activities are inconsistent with Connors’ claims that he was

fully disabled and incapable of even light work during that

time, and the ALJ properly considered them.

While Connors argues that the ALJ was selective and focused

only on the activities that Connors testified he was capable of

performing, the ALJ’s decision does not reflect such an

imbalance. The ALJ acknowledged Connors’ claims of loss of

energy and breath, as well as consistent pain, but determined

that the activities he remains capable of “suggest a greater

physical capacity than that alleged by the claimant,” and that

he was thus capable of light work (Tr. 2 4 ) .

Connors’ treatment history also supports the ALJ’s RFC

determination. Gaps in a claimant’s medical record may be

considered as evidence that an injury is not as severe as

alleged. See Ortiz,

. Here, while Connors

sought medical treatment immediately after his back injury in

1997, he failed to effectively pursue physical therapy that was

assigned to him as part of his treatment. In fact, after 1998

Connors did not seek any further treatment for his back until

after his date last insured. When Connors was being seen at

Family Care of Framingham from January 2003 through June of 2005

for problems related to his asthma and COPD, there is no

evidence that he complained of back pain and his examinations 22 did not reveal any abnormal musculoskeletal findings. While he

did undergo a physical therapy evaluation in 2006 for his back

pain, he was discharged from the program after seven visits

because he failed to appear for appointments.

These facts regarding Connors’ treatment history are

further evidence in support of the ALJ’s determination that

Connors was capable of light work. Considered together, the

objective medical evidence, the medical opinions, Connors’ own

testimony regarding his daily activities, and his treatment

history are more than enough to meet the threshold of

substantial evidence needed to support the ALJ’s findings.

B. Weight of Kane’s Opinion

Connors’ second contention is that the ALJ erred by failing

to expressly address Kane’s opinions regarding his RFC. In

particular, he focuses on the ALJ’s failure to adopt Kane’s

opinions that Connors could only sit or stand for fifteen

minutes at one time, could only sit or stand for less than two

hours in an eight-hour workday, and could not ever lift more

than ten pounds while at work (Tr. 897-99). These limitations

correspond to a less-than-sedentary RFC.

While an ALJ may not simply ignore relevant evidence, it is

also not necessary to directly address every piece of evidence

in the administrative record. See Lord v . Apfel,

2d 3 , 13 (D.N.H. 2000); see also Rodriguez v . Sec'y of Health &

Human Servs.,

,

(1st Cir.

1990)(per curiam, table decision)(“An ALJ is not required to

expressly refer to each document in the record, piece-by-

piece.”). In Lord, which Connors relies upon heavily, the ALJ’s

RFC determination was inadequate because it “completely failed

to mention any of the post-hearing evidence,” which in turn made

it impossible for a reviewing court to determine “if significant

probative evidence was not credited or simply ignored.” 114 F.

Supp. 2d at 1 4 .

The same concerns are not present here. The ALJ explicitly

stated that he gave significant weight to Kane’s opinion “to the

extent that the claimant is unable to perform manual labor” (Tr.

24). This statement is sufficient to make clear that the ALJ

fully considered Kane’s opinion and chose to credit some parts

while discrediting others – there is no indication that the ALJ

ignored Kane’s opinions entirely, as there was in Lord. While

the ALJ did not agree with everything Kane concluded,

determinations of credibility and resolving conflicting opinions

are exactly the kinds of decisions ALJ’s are required to make.

See Rodriguez, 647 F.2d at 222. As I have discussed above,

substantial evidence supported the conclusion the ALJ did come

t o , and therefore Connors’ arguments are without merit. 24 V. CONCLUSION

The ALJ did not err at any point in the five-step process.

For the foregoing reasons, I grant the Commissioner’s Motion to

Affirm the Decision of the Commissioner (Doc. N o . 9 ) and deny

Connors’ motion (Doc. N o . 7 ) . The clerk is directed to enter

judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 1 0 , 2011

cc: D. Lance Tillinghast, Esq. Gretchen Leah Witt, Esq.

25