UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Daniel Frost

v. Civil No. 05-cv-225-SM

Jo Anne B. Barnhart, Commissioner,

Social Security Administration

REPORT AND RECOMMENDATION

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant, 

Daniel Frost, moves to reverse the Commissioner’s decision

denying his application for Disability Insurance Benefits (“DIB”)

under Title II of the Social Security Act (the “Act”), 42 U.S.C.

§ 423, and Supplemental Security Income Benefits (“SSI”) under

Title XVI of the Act, 42 U.S.C. §§ 1381-1383c. In support of his

motion, claimant states that the Administrative Law Judge (“ALJ”)

failed to ascribe appropriate weight to the opinions of his

treating physician. In addition, claimant states that the ALJ

erred in assessing his credibility, failing to consider his

inability to obtain medical treatment and failing to consider the

restrictions caused by his depression and inability to maintain a

schedule. The Commissioner objects and moves for an order

affirming her decision.

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Factual Background

I. Procedural History

Claimant filed an application for disability insurance

benefits and supplemental security income benefits on February

27, 2003, with a protective filing date of September 26, 2002,

alleging that he had been unable to work since June 1, 1997 due

to his disability. His complaints of disability included: pain

in his back, knee and right hip; an enlarged bladder; body

shakes; muscle spasms; depression; and anxiety. When his

application was denied at the initial level of review, he sought

de novo review before an Administrative Law Judge (“ALJ”). 

Represented by counsel, claimant appeared and testified

before an ALJ at an administrative hearing held in December 2004. 

On February 14, 2005, the ALJ issued an order, in which he

determined, among other things, that claimant retained the

residual functional capacity to perform at least some of his past

relevant work. The ALJ further determined that claimant’s

allegations regarding his limitations were unsupported by

objective medical evidence and thus were not entirely credible. 

Accordingly, the ALJ concluded that claimant was not disabled, as

that term is defined in the Act, at any time through the date of

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his decision.

Claimant then sought review of the ALJ’s decision before the

Appeals Council. However, on May 20, 2005, the Appeals Council

denied his request, thereby rendering the ALJ’s decision a final

decision of the Commissioner subject to judicial review. On June

22, 2005, claimant filed an action in this Court, asserting that

the ALJ’s decision was unsupported by substantial evidence and

seeking a judicial determination that he is disabled within the

meaning of the Act. He then filed a “Motion for Order Reversing

Decision of the Commissioner” (document no. 10). The

Commissioner objected and filed a “Motion for Order Affirming the

Decision of the Commissioner” (document no. 11). Those motions

are pending. 

II. Stipulated Facts

A. Background

Pursuant to this Court’s Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts (document no. 12). 

Those facts relevant to the disposition of this matter are

discussed below. 

At the time the ALJ issued the administrative decision, the

claimant was 36 years old (Tr. 14-24, 96, 319) and had a tenth

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grade education (Tr. 34, 51-52, 137). For part of the period

under review, from September 1999 through September 2002,

claimant was incarcerated and worked in the prison laundry and

housekeeping departments, although this work did not constitute

substantial gainful activity. (Tr. 32, 47). He was incarcerated

intermittently from 1997 through 1999. (Tr. 32). His primary

past work included performing maintenance for a housing complex,

which he had no difficulty performing despite some pain. (Tr.

33, 35, 50, 132). He testified that he had recently sought work

for Labor Ready and Home Depot but was unsuccessful. (Tr.

41-43). For purposes of his DIB application, claimant must

establish that he was disabled on or before December 31, 1997, as

this is the date his insured status expired. (Tr. 29, 99). 

B. Medical Evidence

1. Physical Impairments

On April 1, 1995, claimant presented to the emergency room

at Wentworth Douglass Hospital with complaints of left leg pain. 

(Tr. 285). Dr. Kelley A. Hails diagnosed medial collateral

sprain of the left knee and provided claimant with a knee

immobilizer. Claimant was advised to remain out of work for

three days as he could not work with a brace. (Tr. 285). He

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returned to the emergency room at Wentworth Douglass Hospital on

June 20, 1995, complaining of left back and left knee pain. (Tr.

155). Claimant informed Dr. Hails that he was injured at work

when the weight of a cable fell on him, causing pain in his left

knee, which worsened with weight bearing, and back pain with

movement. He was diagnosed with lumbar strain and knee strain

for which he ws prescribed Motrin and Vicodin. Claimant

requested a stronger medication, but Dr. Hails declined, noting

that he was not in any distress and that she was concerned for

his potential for medication abuse. (Tr. 155). Claimant

returned to the emergency department three days later complaining

of continued pain in his back and left knee. (Tr. 156). Strain

of the medial collateral left knee was diagnosed and claimant was

instructed to continue with the anti-inflammatory medication and

Vicodin and follow-up with orthopedic services if necessary. 

(Tr. 156). 

On June 28, 1995, claimant was examined at Seacoast Redicare

for his complaints of left knee and back pain stemming from his

work accident the prior week. (Tr. 173). He was diagnosed with

lumbar strain, resolved, and left knee strain and was provided

with a knee sleeve and restricted to “light duty.” (Tr. 173). 

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At a follow-up examination on July 6, 1995, claimant stated that

his symptoms were improving and his pain was decreasing. (Tr.

175). He had full range of motion of his back without pain and

full range of motion of his knee. He was returned to working

full duty. (Tr. 175-176).

Claimant returned to the emergency department at Wentworth

Douglass Hospital on November 30, 1998 with, complaints of back

pain. (Tr. 296-297). He was diagnosed with chronic low back

pain and was instructed to rest for seventy-two hours, applying

heat to the area. He was also prescribed pain medications and

referred to a pain clinic. (Tr. 297). 

On February 16, 1999, Dr. Frank A. Graf performed a

consultative physical examination of the claimant. (Tr. 196-

198). Dr. Graf diagnosed residuals of work-related injuries to

the thoracolumbar spine with persistent chronic pain and

radiating pain into the right buttock and hip, and medial

collateral ligament sprain of the left knee. (Tr. 197). Dr.

Graf opined that claimant’s musculoskeletal pain would limit his

abilities to bend, stoop, lift and carry, though he was able to

sit, stand and walk. (Tr. 197). 

Claimant reported to the emergency department at Portsmouth

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Regional Hospital and Pavilion on March 23, 1999, with complaints

of a tooth ache and back pain. (Tr. 183). He stated that his

back pain started the day before when he was picking up debris

from a windstorm and that he had come to the emergency room from

his job at Wal-Mart. Examination revealed negative straight leg

raising bilaterally with some tenderness in the right

paravertebral area. Claimant was diagnosed with back strain and

an abscessed tooth for which he was prescribed Vicodin and

Penicillin. (Tr. 183). 

After sustaining torsional stress to his left arm in prison,

claimant was examined by Dr. Robert Harrington of Seacoast Sports

Medicine on April 30, 1999, (Tr. 189). Claimant complained of

pain to the inner aspect of his left elbow, with concurrent pain

in his left shoulder and upper back. Dr. Harrington diagnosed

thoracic/shoulder strain and medial collateral sprain of the left

elbow and instructed claimant to ice the area and use ibuprofen

and Tylenol to treat any pain. (Tr. 189).

On May 20, 1999, Claimant returned to the emergency

department at Portsmouth Regional Hospital and Pavilion

complaining of left back pain and pleuritic chest pain. (Tr. 

186). He stated that he had seen his primary care physician, who

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prescribed a pain medication, but he had not taken any of the

medication. He added that his left-sided back pain was worse

when he has a full stomach and with range of motion of his arm. 

The examining physician gave claimant two anti-anxiety pills and

instructed him to take Motrin. He also suggested that claimant

massage, stretch and apply heat to his left rhomboid area and to

return to his primary care physician. (Tr. 185). Claimant was

diagnosed with left rhomboid muscle spasm, pleuritic chest pain

and insomnia. (Tr. 185).

Claimant sought treatment at Avis Goodwin Community Health

Center from September 2003 through April 2004. (Tr. 300-301,

304-309). On September 12, 2003, he complained to Dr. Michael

Thompson of chronic back pain since 1988 and difficulty sleeping. 

(Tr. 300). Dr. Thompson assessed back pain and a sleep disorder. 

(Tr. 301). He recommended that claimant start regular use of

ibuprofen, engage in physical therapy and increase his walking. 

Dr. Thompson prescribed Trazodone to treat claimant’s insomnia

and discussed the importance of regular exercise and a regular

sleep schedule. Dr. Thompson opined that claimant was not

disabled and was able to work in some capacity at that time,

though he would advise against any heavy lifting or prolonged

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periods without changing position. (Tr. 301). On September 25,

2003, claimant was evaluated by physical therapy but was

discharged from treatment on November 13, 2003. (Tr. 302). Upon

discharge, claimant had not attempted his home exercise program,

though his trunk range of motion was grossly within normal limits

and his strength was normal. (Tr. 303). A discharge plan was

not made due to claimant’s failure to make or keep scheduled

appointments. (Tr. 303). 

At an appointment with Dr. Thompson on October 15, 2003,

claimant relayed that the Trazodone was not helping him sleep and

he continued to experience back pain, which worsened with

activity. (Tr. 305). He reported that physical therapy was not

helpful, though he admitted that he had not started his home

exercise program. Claimant further conceded that he was not

taking the Trazodone consistently and that he was going to bed at

various times. Mental status exam was normal without signs of

depression, anxiety or agitation. (Tr. 305). Claimant’s next

visit to Avis Goodwin Community Health Center occurred on April

22, 2004, when he complained to Dr. Deborah Harrigan of a rash. 

(Tr. 306). When asked to compose a letter stating that he is

disabled, Dr. Harrigan advised the claimant that she did not

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think he was disabled and would be unable to write a letter for

him at that time. (Tr. 306-307).

State Agency physician Dr. Graf conducted a second

evaluation of the claimant on January 8, 2004. (Tr. 232-234). 

Claimant reported experiencing low back, hip, mid back and neck

pain as a result of a series of work-related injuries since 1988. 

(Tr. 232). He stated that he injured both knees in a workrelated accident in 1996. Dr. Graf diagnosed chronic spinal

pain, probable cervical and thoracolumbar degenerative disc

changes and facet joint changes with chronic pain; history of

work-related injuries with residual pain; chronic anxiety;

abnormal cholesterol and lipid levels with high cardiac risk;

elevated blood sugars; and, educational restrictions. (Tr. 234). 

Dr. Graf opined that claimant is limited in lifting, carrying and

bending. Dr. Graf added that claimant is restricted

educationally and it “appear[s] that he has a psychiatric

diagnosis of chronic anxiety.” (Tr. 234).

The record contains a medical source statement from Dr.

Paris Khavari dated December 8, 2004. (Tr. 315-317). Noting

that her statements were based on claimant’s last visit in

November 2003, Dr. Khavari suggested that claimant is limited to

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lifting and/or carrying twenty-five pounds occasionally and ten

pounds frequently and standing and/or walking for at least two

hours in an eight-hour workday. (Tr. 315). Claimant’s ability

to sit is not limited, but Dr. Khavari indicated that claimant

cannot perform any heavy pushing or pulling. (Tr. 316). 

Claimant can frequently balance and occasionally climb and stoop,

but never kneel, crouch or crawl. Dr. Khavari did not impose any

manipulative, visual or communicative restrictions. (Tr. 317).

On March 4, 1999, Dr. Carol R. Honeychurch, a State Agency

physician, rendered a residual functional capacity assessment of

the claimant for the current period and for the period from his

alleged onset date, June 1, 1997, to his date last insured,

December 31, 1997. (Tr. 205-214). Dr. Honeychurch explained

that the medical evidence revealed that the claimant has mild low

back strain with minimal findings on physical examination. (Tr. 

213-214). X-rays reveal no degenerative changes and there had

been no surgery. (Tr. 214). Dr. Honeychurch also noted

claimant’s complaints of right hip and left knee pain, but she

relayed that the related examinations and x-rays were

unremarkable. She added that claimant’s complaints of pain were

credible, though the perception of total disability was not

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supported by the medical evidence. Dr. Honeychurch opined that

claimant could lift and/or carry fifty pounds occasionally and

twenty-five pounds frequently, stand and/or walk for about six

hours in an eight-hour workday with normal breaks, sit for about

six hours in an eight-hour workday and push and/or pull with the

upper and lower extremities without restriction. (Tr. 206). She

assessed no postural, manipulative, visual, communicative or

environmental limitations. (Tr. 207-209). 

A second physical residual functional capacity assessment of

the claimant for the current period and for the period from

September 15, 1997, to his date last insured, December 31, 1997,

was completed by Dr. Hugh Fairley, a State Agency physician on

February 5, 2004. (Tr. 242-249). Like Dr. Honeychurch, Dr. 

Fairley opined that claimant could lift and/or carry fifty pounds

occasionally and twenty-five pounds frequently, stand and/or walk

for about six hours in an eight-hour workday with normal breaks,

sit for about six hours in an eight-hour workday and push and/or

pull with the upper and lower extremities without restriction. 

(Tr. 243). As a result of claimant’s chronic back strain, Dr.

Fairley limited claimant to occasional climbing, balancing,

stooping, kneeling, crouching and crawling, but he did not impose

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any manipulative, visual, communicative or environmental

restrictions. (Tr. 244-246, 249). Dr. Fairley indicated that

claimant’s complaints of severe pain were out of proportion to

the medical findings. (Tr. 249).

2. Mental Impairments

On May 19, 1998, claimant was examined by Eric R. Niler,

Ph.D., at Salmon Falls Behavioral Health, P.C. (Tr. 179). 

Claimant stated that his sister, with whom he was living since he

was released from prison in March 1998, referred him for an

assessment and treatment of his stress and paranoia. Claimant

stated that he was having problems resulting from his

homelessness secondary to his ex-fiancée’s restraining order

against him. He relayed that he had become socially fearful and

isolated and that he lived in fear of violating his probation. 

Dr. Niler noted that claimant had a long history of alcohol

abuse, which both claimant and his sister downplayed given his

sobriety since October 1997. (Tr. 179). Dr. Niler provided the

provisional diagnoses of schizophrenia, paranoid type, and

alcohol abuse and referred claimant to Dr. Joyce Blood for a

medication consultation. Dr. Niler opined that claimant was not

capable of gainful employment because of his possible psychosis

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in combination with his alcohol abuse. (Tr. 180). 

On referral from Dr. Niler, claimant met with Joyce Blood,

Ph.D., on June 6, 1998. (Tr. 181-182). On examination, Dr.

Blood noted that claimant had a depressed mood and his memory was

vague. (Tr. 182). There was no evidence of delusions,

hallucinations or suicidal ideation. Dr. Blood diagnosed

claimant with depression, substance abuse disorder and

intermittent expressive disorder. She suggested that claimant

refrain from using alcohol and that he become involved in an

alcohol treatment program. (Tr. 182).

Dr. Niler conducted a second evaluation of the claimant on

February 16, 1999. (Tr. 277-279). Dr. Niler indicated that he

had seen the claimant once before in May 1998 for possible

psychosis due to alcohol dependence, but that claimant now

claimed to be sober for over nine months and denied any psychotic

symptoms over the past year. (Tr. 277). Claimant denied having

any mental disability, stating that his disability was due solely

to a back injury from 1988. Dr. Niler suggested that claimant

would benefit from a medical evaluation of his back pain and he

highlighted that claimant was “neither claiming nor displaying

significant psychological symptoms.” (Tr. 279). He recommended

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that claimant be referred to vocational rehabilitation if it was

determined that he has a medical disability due to back pain. 

Dr. Niler noted that claimant seemed motivated for pain

management treatment and that he was not in need of psychological

treatment at that time. Dr. Niler added that one year ago,

claimant appeared psychotic with decompensation, but there was no

evidence of any psychotic disorder currently. He expected that

claimant would maintain a fairly high level of functioning if he

learned how to manage his pain. Dr. Niler opined that claimant

could perform light duty work, but a medical evaluation would be

needed. (Tr. 279). 

Claimant underwent a consultative psychological examination

by Thomas F. Burns, Ph.D., on February 2, 1999. (Tr. 190-195). 

Claimant stated that he was not working because he suffered a

back injury and that he worries about the domestic problems he

has with his girlfriend. (Tr. 191). Claimant informed Dr. Burns

that he had been convicted of driving while intoxicated in 1988

and 1995 and spent two weeks in a rehabilitation facility in

1995, but he “was never addicted to alcohol” and had not consumed

alcohol for one year. He stated that he attended Alcoholics

Anonymous meetings while in prison and while staying at a

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homeless shelter, but he was not active in this self-help program

or any other type of therapy. In response to Dr. Burns’

questions, claimant denied any history of hallucinations,

delusions or symptoms suggestive of a mood disorder. He stated

that he was not taking any medications and that he had taken pain

medication in the past, only. (Tr. 191).

Dr. Burns administered the WAIS-III and the MMPI-II profile. 

(Tr. 192-193). The WAIS-III scores, which indicated a full scale

IQ of 76, indicated borderline intellectual functioning with no

relative strengths or weaknesses. (Tr. 193). Dr. Burns noted,

however, that the MMPI-II profile was difficult to interpret

because claimant seemed to struggle with full comprehension of

the item meanings and tended to obsess over the responses. Dr.

Burns interpreted the results as indicative of claimant

attempting to present himself in a socially desirable light,

perhaps as a counter to the charges brought by his exfiancée. 

Dr. Burns noted that the main import of the MMPI-II profile was

as further evidence that claimant is a limited, concrete man

whose thoughts are dominated by worries and grievances concerning

his problematic family life. (Tr. 193). Dr. Burns diagnosed

claimant with alcohol abuse, perhaps in remission; borderline

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intellectual functioning; and, self-reported back pain. (Tr.

193). He stated that he was unable to find substantial evidence

to support a diagnosis of a thought or mood disorder. (Tr. 194).

On March 5, 1999, Michael A. Schneider, Psy.D., a State

Agency physician, rendered a mental residual functional capacity

assessment of the claimant, which reflected claimant’s current

abilities and the abilities he possessed as of December 31, 1997,

his date last insured. (Tr. 199-204). Dr. Schneider noted

claimant’s May 1998 diagnosis of schizophrenia, paranoid type,

and stated that the source of the schizophrenia diagnosis was not

clear from the examination. (Tr. 203). He acknowledged that

some paranoia was mentioned, but he stated that the mental status

examination and the history were not consistent with a diagnosis

of paranoid schizophrenia. Dr. Schneider concluded that claimant

had the severe impairments of borderline intellectual functioning

and alcohol abuse, in early remission. (Tr. 204). Despite these

impairments, however, Dr. Schneider opined that claimant has the

ability to understand, remember and carry out short, simple,

concrete directions for reasonably extended periods of time

without one-to-one supervision. Claimant can perform these

activities within a schedule and he is capable of persisting to

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pace for two-hour periods over the course of a normal workday and

workweek. Dr. Schneider added that claimant is able to interact

appropriately with peers and supervisors as long as he is in a

somewhat socially isolated work station where there is minimal

need to interact. Dr. Schneider suggested that it would be

beneficial for claimant to have non-confrontative supervision and

that he can accommodate to routine changes in the work setting,

though he might have some difficulty independently setting more

complex goals because of his limited intellectual functioning. 

(Tr. 204). 

On February 6, 2004, Dr. Schneider completed a mental

residual functional capacity assessment of the claimant for the

current period and for the period from his alleged onset date to

his date last insured. (Tr. 250-254). Based on a review of the

medical evidence of record, Dr. Schneider stated that claimant

retained the ability to understand, remember and carry out short

and simple concrete instructions for extended periods without

special supervision and without an unreasonably high number of

disruptions to pace over the course of a normal workday and

workweek. (Tr. 252). Dr. Schneider opined that claimant would

need an environment where he does not have to interact on a

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regular basis with the general public, his supervision is not

confrontative and there is not a high premium on cleanliness or

neatness. Dr. Schneider added that claimant could interact

appropriately with peers and supervisors and accommodate to

changes in a work setting. (Tr. 252). 

Claimant was referred for a consultative psychological

evaluation for affective disorder, anxiety-related disorders and

learning problems, which occurred on January 17, 2004, and was

performed by Thomas Lynch, Ph.D. (Tr. 235-241). By way of

background, claimant informed that he was currently living with

his sister, where he had resided since his release from prison in

September 2002. (Tr. 235). He stated that he had been in prison

as a result of violating a restraining order on his ex-fiancée

and, also, that he was incarcerated for three years as a result

of a high-speed chase with a stolen car. (Tr. 236). The court

referred the claimant for drug and alcohol rehabilitation and the

claimant attended Alcoholics Anonymous and Narcotics Anonymous

meetings, but he stopped this treatment when he was released from

prison. (Tr. 236). Claimant did not view his drinking as a

problem and minimized it, though he admitted to three arrests for

driving while intoxicated. (Tr. 237). He stated that he

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currently drank in a limited capacity, only. (Tr. 237). 

When asked to describe his problems, claimant stated that he had

chronic back pain problems since being injured at work in 1989,

which had worsened to the point where it affects his sleep. (Tr.

235). He re-injured his back at work in 1996, but his workmen’s

compensation claim was denied. (Tr. 235-236). Claimant stated

that he had difficulty finding work because of his pain. (Tr.

236). He reported that he sleeps all day, awakening at 5:00 pm,

and, thus, has trouble looking for work. He relayed that he had

not sought treatment from physicians until he was evaluated by

Social Security. (Tr. 236).

With regard to his daily activities, claimant indicated that

he has trouble sleeping and, as a result, he does not go to bed

until 3:00 am or 4:00 am, sleeping until 4:00 pm or 5:00 pm. 

(Tr. 239). When he awakens, he has coffee and cigarettes, takes

a shower and listens to music. He spends time watching

television or playing his guitar. Claimant relayed that he does

his own laundry, he does some housecleaning chores for his sister

and he cooks simple meals. He indicated that he believed he

could not work because he feels tired and fatigued all of the

time. (Tr. 239). 

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On mental status examination, Dr. Lynch remarked that

claimant’s long-term memory for information was somewhat vague

and unclear and his short-term memory showed mild problems, but

his common sense reasoning and judgment were within normal

limits. (Tr. 238). Dr. Lynch opined that claimant is able to

perform simple, repetitive tasks. (Tr. 239). He suggested that

claimant would work best in an environment where he could work

independently given his lack of social skills. Although

claimant’s attention span was within normal limits, Dr. Lynch

noted that claimant demonstrated mild difficulties with

concentration and short-term memory, problems which may be due to

mild chronic depression or his inconsistent sleeping patterns. 

Dr. Lynch indicated that claimant showed little motivation to

complete tasks, which he suggested would be claimant’s greatest

impediment. (Tr. 240). Dr. Lynch relayed that claimant blamed

his inability to maintain employment on his fatigue, but he noted

that claimant sleeps all day and stays awake all night. 

Dr. Lynch reiterated claimant’s claim that his arrest and

incarceration for a high-speed chase stemmed from an anxiety

attack, but Dr. Lynch remarked that there was no clear evidence

to support this claim. He also opined that claimant has a more

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1

Dysthymia is defined as “[a] chronic mood disorder

manifested as depression for most of the day, more days than not,

accompanied by some of the following symptoms: poor appetite or

overeating, insomnia or hypersomnia, low energy or fatigue, low

self-esteem, poor concentration, difficulty making decisions, and

feelings of hopelessness. Stedman’s Med. Dictionary, [556] (27th

ed. 2000).

22

serious problem with alcohol than he admits to and that he never

developed effective coping skills. Dr. Lynch diagnosed pain

disorder, chronic, associated with psychological factors and a

general medical condition; alcohol abuse, in partial remission;

dysthymia;1 dependent personality disorder; reported history of

arthritis; and, reported history of back strain and high

cholesterol. (Tr. 240).

The record reveals that claimant was brought to the

emergency room at Concord Hospital on March 4, 2005, by his two

sisters because they were concerned about claimant’s depressed

mood and suicidal statements. (Tr. 344). Claimant reported

feeling down, lethargic and having difficulty sleeping. He

stated that his appetite was poor, he felt nervous, he did not

want to be around other people and he was having trouble

concentrating and remembering things. Claimant denied

experiencing any manic symptoms, but his sister informed the

attending physician, Dr. Megan W. Carman, that claimant goes

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23

through periods of depression then cycles into periods where he

is very energetic, agitated, impulsive and argumentative. 

Claimant’s sister stated that his last manic episode ended about

two months prior and that he had been depressed ever since. She

added that claimant had not been in any ongoing treatment due to

lack of follow through and lack of insurance. Claimant informed

that he did not currently have a primary care physician, but he

stated that he continued to experience back pain that involves

his lower back and neck. (Tr. 345).

Mental status examination revealed a dull and constricted

affect and a dysphoric mood. (Tr. 346). Claimant’s thought

process was slow and logical, but concrete in nature. Claimant

described having passive suicidal thoughts without a present

plan. He denied any history of delusions, hallucinations or

paranoia, but his sister reported a history of these symptoms. 

Although formal cognitive testing was not performed, Dr. Carman

stated that claimant appeared to be of low to average

intelligence. Claimant’s admitting diagnoses were bipolar

disorder, currently depressed, history of alcohol abuse, a

probable learning disorder and a history of back injury and head

trauma. Claimant was started on a mood stabilizer, an antiCase 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 23 of 45
2 Claimant’s admission to Concord Hospital occurred after the

ALJ’s decision of February 14, 2005.

24

depressant and a sedative. (Tr. 346). 

Claimant participated in individual and group psychotherapy

during his hospitalization. (Tr. 328). No management issues

were noted during his stay and although he continued to note

depression, Claimant’s symptoms steadily improved. He denied

suicidal ideation. No side effects to his medications were

reported and he agreed to take his medicines and follow through

with his treatment plan. Claimant was discharged from Concord

Hospital on March 11, 2005, with the diagnoses of bipolar

disorder, currently depressed, severe, without psychotic

features; history of alcohol abuse; and, a learning disorder,

probable. (Tr. 328-329). Claimant was provided with indigent

prescriptions and follow-up appointments were scheduled for the

claimant at Community Partners in Rochester. (Tr. 328).2 

Standard of Review

I. ALJ Findings Supported by Substantial

Evidence are Entitled to Deference

Pursuant to 42 U.S.C. § 405(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

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3 Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938). It is something less than the weight of the evidence,

and the possibility of drawing two inconsistent conclusions from

the evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v. Federal

Maritime Com., 383 U.S. 607, 620 (1966).

25

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings of the Commissioner are

conclusive if supported by substantial evidence.3 See 42 U.S.C.

§§ 405(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health &

Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Moreover,

provided the ALJ’s findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the adverse position. 

See Tsarelka v. Secretary of Health & Human Services, 842 F.2d

529, 535 (1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]

conclusion, even if the record arguably could justify a different

conclusion, so long as it is supported by substantial

evidence.”). See also Rodriguez v. Secretary of Health & Human

Services, 647 F.2d 218, 222-23 (1st Cir. 1981). 

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 25 of 45
26

of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)

(citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence. 

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769

(citation omitted). Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192,

195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health &

Human Services, 803 F.2d 24, 26 (1st Cir. 1986)).

II. The Parties’ Respective Burdens 

An individual seeking Social Security benefits is disabled

under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act

places a heavy initial burden on the claimant to establish the

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27

existence of a disabling impairment. See Bowen v. Yuckert, 482

U.S. 137, 146-47 (1987); Santiago v. Secretary of Health & Human

Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that burden,

the claimant must prove that his impairment prevents him from

performing his former type of work. See Gray v. Heckler, 760

F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v. Secretary of

Health & Human Services, 690 F.2d 5, 7 (1st Cir. 1982)). 

Nevertheless, the claimant is not required to establish a doubtfree claim. The initial burden is satisfied by the usual civil

standard: a “preponderance of the evidence.” See Paone v.

Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982). 

Provided the claimant has shown an inability to perform his

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that he can perform. 

See Vazquez v. Secretary of Health & Human Services, 683 F.2d 1,

2 (1st Cir. 1982). If the Commissioner shows the existence of

other jobs that the claimant can perform, then the overall burden

to demonstrate disability remains with the claimant. See

Hernandez v. Weinberger, 493 F.2d 1120, 1123 (1st Cir. 1974);

Benko v. Schweiker, 551 F. Supp. 698, 701 (D.N.H. 1982). 

In assessing a disability claim, the Commissioner considers

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28

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);

Goodermote, 690 F.2d at 6. When determining whether a claimant

is disabled, the ALJ is also required to make the following five

inquiries: 

(1) whether the claimant is engaged in substantial

gainful activity;

(2) whether the claimant has a severe impairment;

(3) whether the impairment meets or equals a listed

impairment;

(4) whether the impairment prevents the claimant from

performing past relevant work; and

(5) whether the impairment prevents the claimant from

doing any other work.

20 C.F.R. § 404.1520. See also 20 C.F.R. § 416.920. Ultimately,

a claimant is disabled only if his: 

physical or mental impairment or impairments are of

such severity that he is not only unable to do his

previous work but cannot, considering his age,

education, and work experience, engage in any other

kind of substantial gainful work which exists in the

national economy, regardless of whether such work

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29

exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work. 

42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, this Court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm her

decision.

Discussion

I. ALJ Decision

In concluding that Mr. Frost was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory fivestep sequential evaluation process described in 20 C.F.R.

§§ 404.1520 and 416.920. At the first step, he determined that

claimant had not been engaged in substantial gainful employment

since his alleged disability onset date of June 1, 1997, and at

the second step he determined that claimant suffered from severe

impairments including a back disorder, obesity, borderline

intellectual functioning and depression. (Tr. 15-16, 23 at

Findings 2, 3). At the third step, the ALJ determined that

claimant’s impairment did not meet or medically equal one of the

impairments listed in Part 404, Subpart P, Appendix 1 of the

regulations. (Tr. 18, 23 at Finding 4). Consequently, he could

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 29 of 45
2 “RFC is what an individual can still do despite his or her

functional limitations. RFC is an administrative assessment of

the extent to which an individual’s medically determinable

impairment(s), including any related symptoms, such as pain, may

cause physical or mental limitations or restrictions that may

affect his or her capacity to do work-related physical and mental

activities. Ordinarily, RFC is the individual’s maximum

remaining ability to do sustained work activities in an ordinary

work setting on a regular and continuing basis, and the RFC

assessment must include a discussion of the individual’s

abilities on that basis.” Social Security Ruling, Policy

Interpretation Ruling Titles II and XVI: Assessing Residual

Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184

at *2 (July 2, 1996) (citation omitted). 

30

not rely solely upon medical evidence to determine claimant’s

eligibility for disability benefits but, rather, had to consider

claimant’s residual functional capacity (“RFC”) as it related to

his past relevant work as well as other work which existed in the

national economy in significant numbers.4 (Tr. 19-22). 

The ALJ concluded that claimant retained the RFC to perform

the exertional demands of medium exertional work. He noted that

“despite the claimant’s impairments, he had the residual

functional capacity to lift 50 pounds occasionally and 25-pounds

frequently, and to sit, stand, and walk for 6-hours out of an 8

hour workday and could perform postural activities occasionally. 

(Tr. 19, 23 at Finding 7). He further noted that “claimant has

moderate limitations in maintaining social functioning and

concentration, persistence or pace but can perform routine and

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31

repetitive tasks with occasional social interaction.” (Tr. 20,

23 at Finding 7). In light of those findings, the ALJ concluded,

at step four, that claimant’s impairments did not prevent him

from performing his past relevant work as a building maintenance

man and that he was not “disabled,” as that term is defined in

the Act, through the date of his decision. (Tr. 21-22, 23 at

Finding 8). 

II. Opinions of Claimant’s Treating Source 

In challenging the ALJ’s disability determination, claimant

first asserts that the ALJ failed to ascribe proper weight to the

opinions of his treating physician, Dr. Paris Khavari. He refers

to a Residual Functional Capacity Questionnaire completed by Dr.

Khavari on December 8, 2004, indicating that claimant could

occasionally lift 25 pounds, frequently lift 10 pounds, stand

and/or walk for at least 2 hours in an eight hour work day and

sit without limitation. (Tr. 315-16). Dr. Khavari stated that

claimant could not perform any heavy pushing and/or pulling and

that he could never kneel, crouch or crawl and may only

occasionally climb and stoop. (Tr. 316). The RFC assessment was

based on claimant’s last visit with Dr. Khavari on November 3,

2004. (Tr. 315). 

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 31 of 45
32

Claimant contends that the ALJ erred (1) by giving only

limited weight to Dr. Khavari’s opinions and (2) by concluding

that Dr. Khavari’s opinions were not supported by the record

after claimant testified that he had been evaluated by Dr.

Khavari on only two occasions. (Pl’s. Mem. 3-4). Claimant

states that he was evaluated by Dr. Khavari on three occasions

and that he provided Dr. Khavari with copies of “multiple records

and exams.” (Pl’s. Mem. 4). He further states that because of

his long-standing history of back pain, his reports of severe

back pain “to local Emergency Rooms and his primary care

physicians on numerous occasions” and an x-ray that revealed

degenerative changes in his lumbar spine and disc space narrowing

at T12-L1, the AlJ should have given controlling weight to Dr.

Khavari’s opinions. (Pl’s. Mem. 4).

The opinions of a treating physician are entitled to

controlling weight as long as they are well supported by

medically acceptable diagnostic techniques and are not

inconsistent with the medical record. See 20 C.F.R. §

404.1527(d)(2). An ALJ is required to give reasons in the

disability determination for the weight ascribed to the treating

source’s opinion. Id.; SSR 96-2p, 1996 WL 374188, *5. 

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33

Determining a claimant’s RFC, however, is an administrative

decision that is the responsibility of the Commissioner. See 20

C.F.R. § 404.1527(e)(2). For that reason, a treating physician’s

opinion as to the claimant’s RFC, whether his impairments meet or

equal a listed impairment, and whether he is disabled is not

controlling on the ALJ in making that determination. SSR 96-5p,

1996 WL 374183, *3 (July 2, 1996). See also Diaz v. Chater, 55

F.3d 300, 306 n.2 (7th Cir. 1995); West v. Barnhart, 254 F. Supp.

2d 1216, 1221 (D. Kan. 2003); Ileri v. Barnhart, No. Civ. 03-107-

JD, 2003 WL 22843077, *4, (D.N.H. Dec. 1, 2003); Poland v.

Halter, 2001 WL 920038, *6 (D.N.H. Aug. 2, 1001). As provided in

20 C.F.R. § 404.1527(e)(2): 

Opinions on some issues, such as the examples that

follow, are not medical opinions, as described in

paragraph (a)(2) of this section, but are, instead,

opinions on issues reserved to the Commissioner because

they are administrative findings that are dispositive

of a case; i.e., that would direct the determination or

decision of disability. 

(2) Other opinions on issues reserved to the Commissioner. 

We use medical sources, including your treating source, to

provide evidence, including opinions, on the nature and

severity of your impairment(s). Although we consider

medical opinions from medical sources on issues such as

whether your impairment(s) meets or equals the requirements

of any impairment(s) in the Listing of Impairments in

appendix 1 to this subpart, your residual functional

capacity (see §§ 404.1545 and 404.1546), or the application

of vocational factors, the final responsibility for deciding

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 33 of 45
34

these issues is reserved to the Comissioner.

20 C.F.R. § 404.1527(e)(2). 

In this case, the ALJ reviewed the medical evidence of

claimant’s impairments. The ALJ explained that he was giving

only limited weight to the opinions of Dr. Khavari because Dr.

Khavari “was not the claimant’s treating physician, but rather,

only examined him once in November 2003.” The ALJ noted that

while Dr. Khavari completed two RFC assessments of the claimant,

both were based on one visit in November 2003. The ALJ added

that “the assessment from Dr. Khavari, in contrast to the state

agency assessments, does not discuss or cite supportive

clinical/objective findings and does not, in any event, provide

support for Mr. Frost’s allegations of a complete inability to

work but rather contains limitations consistent with the

performance of work at a sedentary level.” (Tr. 19). The AlJ

further explained that he was not giving controlling weight to

Dr. Khavari’s opinions as to the severity of claimant’s

impairments because those opinions were contradicted by the

opinions of Dr. Harrigan, claimant’s treating physician. (Tr.

19-20). As noted by the ALJ, Dr. Harrigan “declined to certify

disability and stated the claimant did not plan to return to Dr.

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 34 of 45
35

Khavari.” (Tr. 20). Therefore, the ALJ appropriately decided to

give only limited weight to Dr. Khavari’s opinions with regard to

claimant’s residual functional capacity. Even assuming that Dr.

Khavari was a treating source, his opinions are not a medical

opinions but rather are opinions as to claimant’s residual

functional capacity, which is an issue expressly reserved to the

Commissioner. See 20 C.F.R. §§ 404.1527(e)(1)-(3), 404.1546,

416.927(e)(1)-(3), 416.946; SSR 96-5p. 

The ALJ’s decision to give only limited weight to the

opinions of Dr. Khavari is supported by substantial evidence in

the record. As the ALJ properly reasoned, Dr. Khavari’s opinions 

were unsupported by clinical and objective findings and were

contradicted by the opinions of claimant’s treating physicians. 

Accordingly, this Court concludes that the ALJ did not err in

giving only limited weight to Dr. Khavari’s opinions. Based on a

careful review of the entire record, this Court is compelled to

conclude that there is substantial evidence to support the ALJ’s

determination that, while claimant’s impairments are undeniably

severe, they do not render him completely disabled, as that term

is defined in the Act.

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 35 of 45
36

III. The ALJ’s Credibility Determination

Claimant next alleges that the ALJ committed reversible

error by concluding that his testimony was not totally credible

and by failing to take into consideration his inability to obtain

medical care. (Compl. ¶ 8). 

When determining a claimant’s RFC, the ALJ must review the

medical evidence regarding the claimant’s physical limitations as

well as the claimant’s own description of those physical

limitations, including his subjective complaints of pain. See

Manso-Pizarro v. Secretary of Health & Human Services, 76 F.3d

15, 17 (1st Cir. 1996). “When, as here, the claimant has

demonstrated that he suffers from an impairment that could

reasonably be expected to produce the pain or symptoms he

alleges, the ALJ must then evaluate the intensity, persistence,

and limiting effects of the claimant’s symptoms to determine the

extent, if any, to which they limit his ability to do basic work

activities.” Smith v. Barnhart, No. Civ. 02-081-M, 2003 WL

1191401, *4 (D.N.H. March 12, 2003).

[W]henever the individual’s statements about the

intensity, persistence, or functionally limiting

effects of pain or other symptoms are not substantiated

by objective medical evidence, the adjudicator must

make a finding on the credibility of the individual’s

statements based on a consideration of the entire case

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 36 of 45
37

record. This includes medical signs and laboratory

findings, the individual’s own statements about the

symptoms, any statements and other information provided

by the treating or examining physicians or

psychologists and other persons about the symptoms and

how they affect the individual . . .

In recognition of the fact that an individual’s

symptoms can sometimes suggest a greater level of

severity of impairment than can be shown by the

objective medical evidence alone, 20 C.F.R. 404.1529(c)

and 416.929(c) describe the kinds of evidence,

including the factors below, that the adjudicator must

consider in addition to the objective medical evidence

when assessing the credibility of an individuals’

statements. 

Social Security Ruling, Policy Interpretation Ruling Titles II

and XVI: Evaluation of Symptoms in Disability Claims: Assessing

the Credibility of an Individual’s Statements, SSR 96-7p, 1996 WL

374186 (July 2, 1996). Factors to be considered include the

claimant’s daily activities; the location, duration, frequency,

and intensity of the claimant’s pain or other symptoms; factors

that precipitate and aggravate the symptoms; the type dosage,

effectiveness, and side effects of any medication the claimant

takes (or has taken) to alleviate pain or other symptoms; and any

measures other than medication that the claimant receives (or has

received) for relief of pain or other symptoms. Ramsey v.

Barnhart, No. Civ. 02-081-M, 2007 WL 496709 slip op. at *6

(D.N.H. Feb. 13, 2007). See also Avery, 797 F.2d at 23; 20

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38

C.F.R. § 404.1529(c)(3). 

It is, however, the ALJ’s role to assess the credibility of

claimant’s asserted inability to work in light of the medical

record, to weigh the findings and opinions of both treating

sources and other professionals who have examined him and/or

reviewed his medical records, and to consider the other relevant

factors identified by the regulations and applicable case law. 

Part of that credibility determination necessarily involves an

assessment of a claimant’s demeanor, appearance, and general

“believability.” Accordingly, if properly supported, the ALJ’s

credibility determination is entitled to substantial deference

from this Court. See, e.g., Irlanda Ortiz, 955 F.2d at 769

(holding that it is “the responsibility of the [Commissioner] to

determine issues of credibility and to draw inferences from the

record evidence. Indeed, the resolution of conflicts in the

evidence is for the [Commissioner] not the courts”). 

Here, claimant asserts that the ALJ erred by concluding that

his testimony was not totally credible and by failing to take

into consideration his inability to obtain medical care. (Compl.

¶ 8). The ALJ found that “the objective medical evidence of

record simply fails to establish an underlying medical basis

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 38 of 45
39

which would reasonably lead one to believe that the claimant is

experiencing such severe pain that he is incapable of working.” 

(Tr. 20). The ALJ then assessed claimant’s credibility and

concluded that “[g]iven the claimant’s activities, his history of

treatment and noncompliance with treatment, as well as the

physician reports of record, I am unable to find his complaints

of a complete inability to work fully credible.” (Tr. 21). 

With regard to claimant’s daily activities, the ALJ noted

that claimant conceded that “he prepares his own meals, does all

his own shopping, laundry and light cleaning and maintenance

around the house and is not dependent on anybody else for his

care.” (Tr. 20). In discounting claimant’s statements regarding

his inability to work and his inability to obtain medical care,

the ALJ reasoned:

The record also includes evidence that the claimant

could reduce his back pain through physical therapy,

but on all occasions the record shows he failed to

comply with this advice or with such treatment (Exhibit

23F, pp. 5, 7, 8). The claimant was discharged from

physical therapy due to failure to make or keep

scheduled appointments. Both physical therapy notes

and his doctor’s notes indicate he had not even

attempted the recommended home exercise program

(Exhibits 23F5, 23F7). This failure to comply with

such a fundamental, non-demanding treatment

recommendation raises a question about the credibility

of the claimant’s complaints. . . 

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 39 of 45
40

Although his treatment has been limited due to a lack

of insurance, he has not always been compliant with

treatment when it was available.

(Tr. 21). In discounting the claimant’s subjective testimony,

the ALJ reasoned:

There is further evidence that the claimant has

exaggerated the degree of his pain in order to get

disability. Dr. David Flavin noted on May 4, 2004 in a

letter to Dr. Deborah Harrigan that the claimant

complained of intense pain but had minimal findings. 

Dr. Flavin noted that the claimant asked for a note

saying that he could not work so he could get on

disability. The request was denied (Exhibit 23F,

p.11). In medical records dated April 22, 2004, Dr.

Harrigan noted the claimant asked her to write that he

could not work. She recorded her answer as, “I advised

him that I would not say that he is not able to work.” 

(Exhibit 23F, p.8). She also declined to write a note

to city welfare stating he was disabled. (Exhibit

23F9). In light of these inconsistencies, I find the

claimant’s subjective testimony to be less than

credible. 

In light of the foregoing, this Court cannot conclude that

the ALJ erred in making his assessment of claimant’s credibility.

There is substantial evidence in the record to support the ALJ’s 

conclusion that claimant’s impairments do not render him totally

disabled. Further, there is substantial evidence in the record

to demonstrate that the ALJ considered claimant’s inability to

obtain medical care. 

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 40 of 45
41

IV. Claimant’s Depression

Lastly, claimant alleges that the ALJ committed reversible

error in failing to consider his “restrictions due to his

depression and inability to maintain a schedule.” (Compl. ¶ 8).

First, the ALJ determined that claimant’s depression did not

meet or medically equal one of the impairments listed in Part

404, Subpart P, Appendix 1 of the regulations. (Tr. 18, 23 at

Finding 4). In reaching this conclusion, the ALJ relied on the

medical records of Drs. Niler and Lynch. Dr. Niler conducted a

psychosocial evaluation of the claimant on May 19, 1998 and found

that claimant was not capable of gainful employment because of

his possible psychosis in combination with his alcohol abuse. 

(Tr. 17, 180). However, in a second evaluation conducted on 

February 16, 1999, Dr. Niler found that claimant no longer

displayed psychotic symptoms or any evidence of a psychotic

disorder. (Tr. 17, 277-79). In fact, Dr. Niler noted that

claimant denied having any mental disability and stated that he

was pursuing disability only for his back impairment. Id. Dr.

Niler opined that claimant was not in need of psychiatric

treatment and was capable of performing light duty work. (Tr.

17, 279).

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 41 of 45
42

The ALJ also relied on a consultative psychological

evaluation on the claimant performed by Dr. Lynch on January 17,

2004. (Tr. 17, 235-241). While claimant continued to have

difficulty sleeping due to his physical pain and naps during the

day, (Tr. 17, 235), Dr. Lynch found him capable of performing his

activities of daily living simple and capable of learning simple,

repetitive tasks, (Tr. 17, 239). Dr. Lynch noted that claimant’s

concentration was only mildly limited and possibly related to

mild chronic depression (Tr. 239) or his sleeping patterns, (Tr.

18, 239). He also noted that claimant showed little motivation

to complete tasks, which he suggested would be claimant’s

greatest impediment. (Tr. 18, 240). 

Second, the ALJ determined that despite claimant’s mental

impairments, he can still perform simple, repetitive tasks that

only require occasional social interaction. (Tr. 20). In

reaching this conclusion, the ALJ relied on a Psychiatric Review

Technique form completed by Dr. Schneider on February 6, 2004,

stating there was insufficient medical evidence to determine

whether claimant had a mental impairment from his alleged onset

date through the date he was last insured, December 31, 1997. 

(Tr. 20, 250-54). As noted by the ALJ, “Dr. Schneider found the

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43

claimant currently had evidence of an affective disorder, a

somatoform disorder, and a personality disorder, but for the

affective disorder the claimant met none of the criteria under

subsection (A) for depression, and under subsection (B) had only

moderate restrictions in his activities of daily living, social

functioning,, concentration, persistence or pace and he had no

episodes of decompensation.” (Tr. 20, 250-54). 

The ALJ also relied on a mental residual functional capacity

assessment rendered by Dr. Schneider on March 5, 1999, finding

“that claimant was only moderately impaired in his ability to

remember and carry out detailed instructions, interact

appropriately with the general public, respond appropriately to

instructions from supervisors and changes in the work setting and

to get along with co-workers.” (Tr. 20, 204 ). The record

reflects that Dr. Schneider noted claimant’s May 1998 diagnosis

of schizophrenia, paranoid type, but stated that the source of

the schizophrenia diagnosis was not clear from the examination. 

(Tr. 203). While he acknowledged that some paranoia was

mentioned, he stated that the mental status examination and the

history were not consistent with a diagnosis of paranoid

schizophrenia.

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 43 of 45
44

 In light of the foregoing, this Court cannot conclude that

the ALJ erred in considering claimant’s restrictions caused by

his depression and his inability to maintain a schedule. The

ALJ’s findings with regard to claimant’s depression are

adequately supported by the record.

Conclusion

For the reasons stated above, this Court cannot conclude

that the ALJ erred in failing to give controlling weight to the

opinions of claimant’s treating source. Nor can this Court

conclude that the ALJ erred in assessing claimant’s credibility

or in considering his inability to obtain medical treatment and

his restrictions caused by his depression. To be sure, claimant

suffers from impairments that the ALJ recognized as severe. 

Importantly, however, there is substantial evidence in the record

to support the ALJ’s conclusion that, while claimant’s

impairments are undeniably severe, claimant remains capable of

performing work at the medium exertional level. 

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, this

Court concludes that there is substantial evidence in the record

to support the ALJ’s determination that claimant was not disabled

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 44 of 45
45

at any time prior to and through the date of the ALJ’s decision. 

The ALJ’s use of opinions offered by claimant’s treating

physician, his credibility determination and his consideration of

the restrictions caused by claimant’s depression and inability to

maintain a schedule are well-reasoned and well-supported by

substantial documentary evidence. 

For the foregoing reasons, I recommend that claimant’s

motion to reverse the decision of the Commissioner (document no.

10) be denied, and the Commissioner’s motion to affirm her

decision (document no. 11) be granted. 

____________________________

James R. Muirhead

United States Magistrate Judge

Date: March 21, 2007

cc: Vicki S. Roundy, Esq.

 David L. Broderick, Esq.

Case 1:05-cv-00225-SM Document 13 Filed 03/21/07 Page 45 of 45