UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Cynthia Yeager

v. Civil No. 05-cv-412-JD

Jo Anne B. Barnhart, Commissioner

Social Security Administration

O R D E R

Cynthia Yeager seeks judicial review pursuant to 42 U.S.C. §

405(g) of the denial of her application for disability insurance

benefits. She contends that the effects of fibromyalgia,

degenerative disc disease, and Lyme disease prevent her from

engaging in any substantial gainful activity and that the

Administrative Law Judge (“ALJ”), Robert Klingebiel, erred in

denying her application. The Commissioner moves to affirm the

decision denying benefits.

Background

Yeager filed an application for social security benefits on

August 15, 2001, after she hurt her back at work on September 7,

2000. The ALJ held a hearing on her application and then issued

a decision on November 25, 2002, denying her application. Yeager

sought judicial review, and on May 28, 2004, this court remanded

the case for further administrative proceedings. A second

hearing was held on April 7, 2005, following which the ALJ again

determined that Yeager was not disabled. Yeager again seeks

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2

judicial review of the decision to deny her application for

benefits.

Yeager has a high school education and was forty-six years

old when the ALJ denied her application for benefits. She has

worked previously in a variety of grocery store jobs and as a

payroll clerk, an assembly line worker, and a warehouse worker. 

She has not worked since March of 2001 and claims that she is

disabled due to fibromyalgia, chronic back pain, and the effects

of Lyme disease.

After her back injury at work, Yeager was seen by Jennifer

Warren, M.D., on September 12, 2000. X-rays and a bone density

scan showed normal results. Dr. Warren referred her to physical

therapy. Dr. Warren noted that Yeager has improved with physical

therapy but still had back pain. Dr. Lux evaluated Yeager on

October 19, 2000. Yeager reported that she had returned to work

for three hours a day. Dr. Lux reported that Yeager was taking

Zoloft and over-the-counter medications for pain. Dr. Lux found

that she had low back pain in the setting of fibromyalgia, which

was complicating her recovery, and that she had not made much

progress. In November of 2000, Dr. Lux found normal results on

examination but Yeager complained of pain and of difficulty doing

household chores.

Yeager saw Dr. Glassman on November 28, 2000, who found

normal results on examination except that she had limited hip

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extension due to pain. Dr. Glassman diagnosed lumbar strain,

prescribed medications to address back pain, and released Yeager

to part-time work. He found the same results in December.

On January 29, 2001, Yeager had a lumbar magnetic resonance

imaging study that showed degenerative disc disease in the lumbar

area. In February, Dr. Lux noted that Yeager did not appear

uncomfortable and that she said she had recovered eighty percent

but could not lift more than ten pounds. At her appointment in

March, Dr. Glassman found no problems on examination and released

her to full-time work as of April 9, 2001. On April 10, 2001,

Yeager began treatments with Robert Bishop, D.O., for right

shoulder pain and headaches. A “head Computed Tomography Scan”

showed normal results. 

In July of 2001, Yeager saw Kathleen Kidder, a nurse

practitioner (“NP”) who worked with Dr. Lux. NP Kidder reported

that Yeager’s depression was stable, her fibromyalgia was worse

due to working, her hands and ankles were swollen, and she

appeared tired. NP Kidder gave Yeager a note not to lift at work

and referred Yeager to Dr. Roger Diegel at Dartmouth Hitchcock

Medical Center, who evaluated Yeager on July 17, 2001. Dr.

Diegel found no abnormal results on range of motion, reflexes, or

flexion but stated that Yeager’s fibromyalgia and low back pain

decreased her endurance and functional abilities. He encouraged

Yeager to do daily exercises and physical therapy and to take

anti-depressant medication.

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In August of 2001, Yeager completed an Activities of Daily

Living Questionnaire in which she stated that each morning she

fed her cat, her rabbits, and her sheep; fixed coffee, and

checked her email. During the day, she watched television,

knitted, spun wool, did laundry and light cleaning, and walked

outside. She said she was frustrated because she could not do

things as well has she had in the past and that her husband did

the cooking and shopping because she could not lift anything

heavier than five pounds. 

NP Kidder reported that Yeager was worse at her August

appointment. In November of 2001, NP Kidder reported that Yeager

was taking Zoloft and occasionally walked as if in pain. She

diagnosed back pain and fibromyalgia with stable depression. In

January of 2002, NP Kidder reported that Yeager’s depression had

improved, her back pain was stable, and that she had muscle and

joint pain due to fibromyalgia. 

Also in January of 2002, a state agency physician, Dr.

Fairley, provided a functional capacity assessment, based on

Yeager’s medical records. He found that Yeager could perform at

a level consistent with light work but that she should avoid

frequent bending, stooping, and similar activities and should

avoid work that required frequent overhead reaching and tight

grasping. NP Kidder completed a mental impairment questionnaire

in which she indicated that although Yeager had depression

secondary to pain, she had normal process and interaction and

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could perform activities of daily living. Evaluations of

Yeager’s psychological condition done in February reported that

she would have difficulty maintaining concentration for an eighthour period, although she could concentrate for extended periods

and could interact appropriately with co-workers. In May of

2002, Dr. Levy of Concord Orthopedics Professional Association

noted that Yeager’s MRI showed degenerative disc disease but that

she was not a surgical candidate because she had no significant

disc herniation or nerve root impingement.

In July of 2002, NP Kidder completed a functional capacity

questionnaire in which she found that Yeager could lift twenty

pounds occasionally and less than ten pounds frequently, that she

could stand less than two hours in an eight hour day, and would

need to alternate between sitting and standing. She also limited

other activities such as balancing, stooping, and fingering to

occasional. NP Kidder noted that her answers on the

questionnaire were based on Yeager’s reports to her. Similarly,

Dr. Bishop wrote in July of 2002 that he could not do a

functional capacity assessment of Yeager because it would have to

be based entirely on her subjective complaints.

In April of 2003, Yeager began treatment with Dr. Carr. He

found she could walk on her heels and toes and had good back

flexibility and concurred that her diagnosis of fibromyalgia was

probably appropriate. The test results showed a fifty percent

possibility that Yeager also had Lyme disease which could cause

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muscle pain. Dr. Carr prescribed antibiotic therapy in May of

2003. In June, Yeager reported a decrease in back pain and an

increase in energy but also that the medication was causing

nausea and body aches. Over the next several months, Dr. Carr

adjusted Yeager’s Zoloft prescription due to sleep problems. 

Yeager’s reports to Dr. Carr and to NP Kidder over the next

several months showed some increases and decreases in her pain

and fatigue levels. Dr. Carr adjusted her medications to avoid

side effects.

In 2004, Yeager saw NP Kidder for complaints of chronic pain

but she found normal muscle tone, strength, attention span, and

concentration. Yeager reported to Dr. Carr that she had only

mild pain and fatigue eighty percent of the time but felt worse

the rest of the time. Dr. Carr reported that Yeager was worse at

the end of October, noted that her illness was the type that

waxed and waned, and that she could not maintain full-time

gainful employment. 

Also in October of 2004, Dr. Bishop completed a functional

capacity questionnaire in which he stated that Yeager could

occasionally lift and carry ten pounds but less than that

frequently, that she could stand for at least two hours, that she

would need to alternate between sitting and standing, that she

had a limited ability to push, pull, and reach, and that she

could never crouch or stoop. Dr. Carr completed a residual

functional capacity questionnaire in November of 2004 in which he

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diagnosed Yeager with chronic Lyme disease, low back pain, and a

sleep and mood disorder. He cited a positive trigger point exam

and her response to antibiotics as objective signs of her

conditions. He found that she could stand for less than two

hours in a day, that she would often need bed rest and reclining,

that she could rarely lift ten pounds, that she could never bend,

twist, crouch, or climb, and that she would miss more than four

days a month from work. 

NP Kidder also did a physical and mental functional capacity

assessment of Yeager in November of 2004. She found that Yeager

could lift and carry less than ten pounds, could stand for six

hours in an eight hour day, could only occasionally balance,

kneel, and similar activities, and would have no manipulative

limitations. Kidder found that Yeager had no mental limitations.

The first hearing on Yeager’s claim was held on August 6,

2002, which resulted in a decision denying her claims. That

decision was remanded for further proceedings following review by

this court. The second hearing was held on April 7, 2005. 

Yeager testified at the second hearing that she had

fibromyalgia and Lyme disease that caused swelling in her hands,

feet, and hips and that she had increased pain due to the

antibiotics she took for Lyme disease. She said she had been

diagnosed with fibromyalgia and had been receiving treatment for

her back for twenty years. She also testified that she had lost

her fine motor skills and dropped things, that she had difficulty

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1Although the parties provided this version of the ALJ’s

hypothetical in their joint factual statement, his actual words

were as follows: “if 20 pounds was the maximum but that’s only

occasionally perhaps even infrequently, 10 pounds being the norm

for the most part and perhaps even lighter than 10 pounds as part

of the typical work activity.” Tr. at 315.

8

with speech and balance, and that she had difficulty with shortterm memory. She said that she was able to knit small items that

she sometimes sold at the farmers’ market, that she was able to

feed and water her flock of sheep and lambs every day, but that

she could not do housework for any extended time. She said that

she could not bend, stoop, or crouch, but that she could drive a

car for about a half an hour. She described her pain level

generally as a five out of ten with ten being the most severe. 

She used aspirin to relieve back pain and headaches. At the time

of the hearing, she was not on medication for Lyme disease,

because her doctor had taken her off medication to determine

whether the Lyme disease was gone. She described her pain during

the hearing as at a level of eight.

In his question to the vocational expert, the ALJ described

a hypothetical person with Yeager’s age, educational level, and

work experience and who could lift twenty pounds occasionally and

ten pounds frequently, could do overhead reaching only

occasionally, would need to alternate between sitting and

standing, and would have to avoid frequent use of the hands.1

The vocational expert responded that those criteria ruled out

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Yeager’s past work but would permit work as an information clerk,

a surveillance systems monitor, a companion, and a gate guard. 

In response to questions from Yeager’s counsel, the vocational

expert testified that a limitation that required the person to

leave her work station for ten minutes every half hour would

preclude all of the jobs.

The ALJ issued his decision on July 21, 2005, in which he

found that Yeager had severe impairments caused by her chronic

low back pain, fibromyalgia syndrome, and Lyme disease but that

she retained the functional capacity to lift twenty pounds

occasionally and up to ten pounds frequently, which is consistent

with work at the light exertional level. The ALJ also found that

Yeager needed to be able to sit and stand as needed, could only

do overhead reaching occasionally, and could not do repetitive

hand activities. The ALJ stated that using the MedicalVocational Guidelines (“the Grid”) as a framework, there were a

significant number of jobs she could do and listed the jobs found

by the vocational expert as examples of work Yeager could do. As

a result, the ALJ determined that Yeager was not disabled. 

The parties’ joint factual statement indicates that Yeager’s

counsel sent certain additional medical records to the Appeals

Council, and the administrative record includes the cover letter

to the Appeals Council, forwarding those materials. The record,

however, does not include any disposition of the case by the

Appeals Council nor do the parties indicate in their joint

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factual statement what disposition issued. Instead, the parties

state that Yeager has exhausted her administrative remedies. 

Because it appears that Yeager at least requested review by the

Appeals Council, she has exhausted her administrative remedies. 

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000). However, because

the ALJ’s decision is deemed to be the decision of the

Commissioner and Yeager does not contend that the Appeals

Council’s decision was egregiously mistaken, the additional

medical records will not be included in the review here. Mills

v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001).

Discussion

The court must uphold a final decision of the Commissioner

denying benefits unless the decision is based on legal or factual

error. Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d

15, 16 (1st Cir. 1996) (citing Sullivan v. Hudson, 490 U.S. 877,

885 (1989)). The Commissioner’s factual findings are conclusive

if based on substantial evidence in the record. 42 U.S.C. § 

405(g). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)

(internal quotation marks omitted). In making the disability

determination, “[i]t is the responsibility of the [Commissioner]

to determine issues of credibility and to draw inferences from

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2The ALJ is required to make the following five inquiries

when determining if a claimant is disabled:

 (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. See 20 C.F.R. § 404.1520. 

11

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

Servs., 955 F.2d 765, 769 (1st Cir. 1991).

Yeager contends that the ALJ erred in his evaluation of her

subjective complaints, erred in his residual functional capacity

assessment, and failed to sustain the Commissioner’s burden to

show that Yeager can do work other than her previous work. 

Yeager’s application was denied at step five of the sequential

evaluation process set forth in 20 C.F.R. § 404.1520.2 At step

five, the Commissioner has the burden to show that despite the

applicant’s severe impairment, she retained the residual

functional capacity to do work other than her prior work and that

work the claimant can do exists in significant numbers in the

relevant economies. See Seavey v. Barnhart, 276 F.3d 1, 5 (1st

Cir. 2001); Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir.

1991). The opinion of a vocational expert constitutes

substantial evidence to support the Commissioner’s decision at

step five as long as the hypothetical posed to the vocational

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expert accurately reflected the claimant’s residual functional

capacity and limitations. Rose v. Sec’y of Health & Human

Servs., 35 F.3d 13, 19 (1st Cir. 1994); Arocho v. Sec’y of Health

& Human Servs., 670 F.2d 374 (1st Cir. 1982). 

A. Subjective Complaints of Pain

Yeager contends that the ALJ erred in concluding that she

was not entirely credible as to the limitations she claimed were

caused by pain due to fibromyalgia, Lyme disease, and

degenerative disc disease. She argues that the ALJ ignored

pertinent evidence and “provided a slanted interpretation of the

evidence in the record as it applied to credibility.” Pl. Mem.

at 7. The Commissioner argues that the ALJ properly evaluated

Yeager’s subjective complaints and that substantial evidence

supports his credibility determination. 

Fibromyalgia is “a rheumatic syndrome that causes pain in

muscles, tendons, and fibrous and other connective tissues.”

Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 267

(5th Cir. 2004); see also Licciardi v. TIG Ins. Group, 140 F.3d

357, 359 at n.3 & 363 (1st Cir. 1998). Fibromyalgia presents a

difficult problem for assessing credibility because the disease

does not cause objective medical symptoms, other than trigger

points, and evaluation of the disease is largely based on a

claimant’s subjective reports. See Benecke v. Barnhart, 379 F.3d

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13

587, 590 (9th Cir. 2004); Green-Younger v. Barnhart, 335 F.3d 99,

108 (2d Cir. 2002). Nevertheless, a disability claimant’s

subjective reports of her limitations due to fibromyalgia are not

immune from a credibility determination. Boardman v. Prudential

Ins. Co. of Am., 337 F.3d 9, 17 n.5 (1st Cir. 2003); Lacroix v.

Barnhart, 352 F. Supp. 2d 100, 114 (D. Mass. 2005); 

Because a claimant’s impairments may be greater due to pain

than the objective medical evidence would otherwise suggest, an

ALJ must also consider a claimant’s subjective complaints of

pain. 20 C.F.R. §§ 404.1529(c)(1); Avery v. Sec’y of Health &

Human Servs., 797 F.2d 19, 21 (1st Cir. 1986). The ALJ’s

evaluation of the claimant’s subjective complaint “cannot be

based on an intangible or intuitive notion about an individual’s

credibility . . . [and][i]t is not sufficient to make a

conclusory statement . . . [or] simply to recite the factors that

are described in the regulations for evaluating symptoms.” 

S.S.R. 96-7p, 1996 WL 374286, at *4 (July 2, 1996). Instead, the

ALJ is required to consider the claimant’s descriptions of her

daily activities; the location, duration, frequency, and

intensity of her pain; the type and amount of any medications she

is taking or has taken for pain or other symptoms; other

treatments she has received or is receiving for pain or other

symptoms; any measures she is using or has used to relieve pain,

and other information about her limitations and restrictions due

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3Yeager testified that she feeds her flock of sheep every

morning, on both her good days and bad days. That activity

entails walking 200 feet from the house to the barn, opening the

sliding barn door, sliding the gate to the sheep pen open, and

throwing hay in with a pitchfork, which she completes in ten to

fifteen minutes.

14

to pain or other symptoms. § 404.1529(c)(3). The ALJ must then

provide specific reasons in his decision for the credibility

findings as to each of the required factors, supported by

references to the evidence of record. S.S.R. 96- 7p, 1996 WL

374286, at *4 (July 2, 1996). 

The ALJ considered Yeager’s descriptions of her daily

activities, including walking two miles a day, caring for her

animals, knitting and spinning wool, working part time,

performing household chores, reading, driving, and interacting

with friends.3 Yeager contends that the ALJ unfairly depicted

her as remaining “quite active,” when she was more limited in her

activities than the ALJ described. In particular, Yeager argues

that her descriptions of her activities show that she cannot

sustain any of the described activities over a full day and

therefore cannot do substantial gainful activity. At this stage

in the analysis, however, the ALJ assesses the credibility of

Yeager’s complaints, not the effect of her described limitations,

and the record supports the ALJ’s description of her activities.

With respect to the location, duration, frequency, and

intensity of Yeager’s pain, the ALJ noted the discrepancies and

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variations among her complaints and her health care providers’

findings and recommendations. The ALJ also noted that the health

care providers relied on Yeager’s own reports about her pain in

the absence of objective medical findings. He found Yeager’s

descriptions of the degree of her pain and limitations to be

inconsistent with the remainder of the record. Although

variations in symptoms and the lack of objective medical findings

are consistent with fibromyalgia and therefore not a basis for

discounting a claimant’s credibility, the ALJ correctly noted the

wide variations in the reports of Yeager’s medical care providers

about her condition. 

Yeager testified that she had been treated for fibromyalgia

and back pain for twenty years, although her claim for benefits

indicated that her impairments began with a work injury in

September of 2000. She also testified that many of her worse

symptoms were the result of Lyme disease and the antibiotics used

to treat it. At the time of the second hearing, however, she was

not being treated for Lyme disease, because her doctor was

testing to see if she had recovered from it. Yeager testified at

the second hearing that her pain level was at an eight with ten

being the highest, and yet she was able to participate in the

hearing without difficulty. Although the ALJ erred in expecting

to find objective symptoms of fibromyalgia, other than the

diagnostic trigger points, the record otherwise supports the

inconsistencies in Yeager’s complaints that the ALJ noted.

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4Most of these medications were not included in the parties’

joint factual statement. Zoloft was prescribed to treat

depression; Flexeril is a muscle relaxant, and Relafen is an

anti-inflammatory medication. 

5Yeager testified that she had been taking three tablets of

extra-strength Tylenol or aspirin every three or four hours. She

had stopped taking Tylenol, and it was not clear if she was still

taking aspirin. She also testified that she had stopped taking

Flexeril.

16

The ALJ found that Yeager has not required strong pain

medication and that her physical therapy treatments had been

brief and intermittent. In response, Yeager lists a variety of

medications that had been prescribed for her in the past.4

Yeager testified, however, that she was taking no medication at

the time of her first hearing on August 6, 2002, and she

testified that at the time of the second hearing, on April 7,

2005, she had been taking aspirin and Tylenol for pain, but no

other medications.5 Although she apparently had tried other pain

medications at times, including Naprosyn and Vioxx, it is not

clear what course of treatment she followed as to any pain

medication.

Given the difficulty of assessing the effects of

fibromyalgia, the record could be interpreted in different ways

that are more or less sympathetic to Yeager and to her version of

the extent and degree of her pain. As is noted above, however,

the ALJ is responsible for deciding credibility issues, including

drawing inferences from the record and resolving conflicts in the

evidence. Irlanda Ortiz, 955 F.2d at 769. Further, the court

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6In addition, the ALJ had the opportunity to observe Yeager

during two hearings that were separated by more than three years. 

Based on her testimony, she was taking little or no pain

medication or any other medication to treat her symptoms at those

times. See Ortiz v. Sec’y of Health & Human Servs., 890 F.2d

520, 523 (1st Cir. 1989).

17

will remand a case based on an ALJ’s credibility determination

only if it is “patently wrong.” Schmidt v. Barnhart, 395 F.3d

737, 746-47 (7th Cir. 2005). Therefore, the ALJ adequately

assessed Yeager’s credibility as to her subjective complaints

under the applicable factors.6

B. Residual Functional Capacity

Determining a Social Security applicant’s residual

functional capacity is an administrative decision that is the

responsibility of the Commissioner. 20 C.F.R. § 404.1527(e)(2).

“Ordinarily, [residual functional capacity] is an assessment of

an individual’s ability to do sustained work-related physical and

mental activities in a work setting on a regular and continuing

basis. A ‘regular and continuing basis’ means 8 hours a day, for

5 days a week, or an equivalent work schedule." S.S.R. 96-8P,

1996 WL 374184, at *1 (July 2, 1996). In making that

determination on behalf of the Commissioner, the ALJ must

consider all relevant evidence in the record, including the

opinions and statements by all medical sources. 20 C.F.R. §

404.1545(a) & 404.1564; S.S.R. 96-5P, 1996 WL 374183, at *4 (July

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2, 1996) ; Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001);

Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000). The residual

functional capacity determination must provide a clear

explanation for its evidentiary basis and reasons for rejecting

medical source opinions. See Fargnoli, 247 F.3d at 41; Clifford

v. Apfel, 227 F.3d 863, 874 (7th Cir. 2000); Newton, 209 F.3d at

456; Goatcher v. HHS, 52 F.3d 288, 290 (10th Cir. 1995).

The ALJ found that Yeager retained the functional capacity

to lift up to twenty pounds occasionally and up to ten pounds

frequently as long as she was able to alternate sitting and

standing as needed. He found that she could only do overhead

reaching occasionally and could not do repetitive activities with

her hands. That assessment is consistent with the ability to do

less than the full range of light work. In making his residual

functional capacity finding, the ALJ primarily relied on the

assessment done by the state consulting physician, Dr. Fairley. 

He rejected Dr. Carr’s opinion that Yeager is completely

disabled. Yeager contends that the ALJ’s residual functional

capacity assessment is wrong because the record shows she is not

capable of working on a sustained basis. She argues that the

residual functional capacity assessment by Dr. Carr is the only

accurate view of her limitations and that the ALJ erred in not

giving Dr. Carr’s opinion controlling weight.

Dr. Carr, who is a specialist in physical medicine and

rehabilitation, completed a physical residual functional capacity

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questionnaire on November 9, 2004. At that time, Dr. Carr had

been seeing Yeager every two to four weeks for eighteen months. 

He wrote that Yeager was precluded from working because of joint

pain, low back pain, fatigue, and reduced cognition. He stated

that she could walk only up to one quarter of a block, could sit

for up to thirty minutes, and could stand for up to ten minutes. 

In an eight-hour work day, Dr. Carr indicated that Yeager would

often need bed rest or to recline, that she could stand for less

than two hours, that she could lift less than ten pounds and only

rarely, and that could never twist, bend, crouch, or climb. He

also said that she had not recently experienced any “good days,”

and that she would miss more than four days of work each month. 

NP Kidder completed physical and mental functional capacity

questionnaires on November 11, 2004, after over three years of

treating Yeager on a regular basis. NP Kidder found that Yeager

could occasionally lift and carry less than ten pounds and

indicated that she could not lift and carry any weight

frequently. She found that Yeager could stand for six hours in

an eight-hour work day and had no limitations on her ability to

sit. NP Kidder also found that Yeager could never climb a rope

or scaffold but that she could occasionally climb stairs,

balance, kneel, crouch, crawl, and stoop. She found no

limitations in Yeager’s capacity for manipulative functions and

communication and no limitations in her mental capacity. 

Previously, in July of 2002, NP Kidder found that Yeager could

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20

lift and carry twenty pounds occasionally but could only lift and

carry less than ten pounds frequently, that she could stand for

less than two hours and would need to alternate between sitting

and standing.

Dr. Bishop, who is a doctor of osteopathic medicine, 

completed a physical functional capacity questionnaire on October

26, 2004, after he had been treating her for three and a half

years. Dr. Bishop found that Yeager was capable of lifting ten

pounds occasionally and less than ten pounds frequently. He

found that she could stand for at least two hours in an eighthour work day and that her capacity to sit was not affected

except that she would need to be able to periodically alternate

between sitting and standing. He indicated that her ability to

push and pull with her arms was affected but did not explain the

degree of limitation. Dr. Bishop also found that Yeager could

never crouch or stoop and that she could only climb, balance,

kneel, and crawl occasionally. Dr. Bishop had not completed a

functional capacity assessment when asked to do so in 2002

because he stated that he would have to base his findings solely

on Yeager’s subjective statements.

Dr. Fairley was a state agency physician who reviewed

Yeager’s records in January of 2002 and provided a functional

capacity assessment, based on those records, that was consistent

with an ability to do light work. He found that Yeager could

lift and carry twenty pounds occasionally and ten pounds

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21

frequently, that she could stand for six hours and sit for six

hours. He also found that she would have to avoid work that

required frequent bending, stooping, climbing, crawling,

kneeling, overhead reaching, and strong grasping.

An ALJ is directed to give controlling weight to the opinion

of a treating physician if the opinion “is well-supported by

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the claimant’s] case record.” 20 C.F.R. §

404.1527(d)(2). On the other hand, an ALJ may give greater

weight to the opinion of a non-treating physician or disregard

the opinion of a treating physician only if the ALJ first

properly considers the following factors: (1) the frequency of

examination and the length, nature, and extent of the treatment

relationship, (2) the evidence supporting the treating

physician’s opinion, (3) the consistency of the opinion with the

record as a whole, (4) whether the opinion is from a specialist,

and (5) the nature and extent of non-treating sources’

explanations for their opinions. § 404.1527(d)(2) & (d)(3). If

the ALJ decides not to give controlling weight to a treating

physician’s opinion, however, he is obligated to give good

reasons in his decision for making that choice. § 404.1527(d). 

Because the ultimate decision as to disability is reserved for

the Commission, a medical source opinion that a claimant is

disabled is not a medical opinion and is not entitled to any

Case 1:05-cv-00412-JD Document 17 Filed 04/17/06 Page 21 of 27
22

weight. 20 C.F.R. § 404.1527(e)(1).

In this case, the ALJ explained that he rejected Dr. Carr’s

opinion of Yeager’s functional capacity as being inconsistent

with Dr. Carr’s examination notes and with the rest of the

record. The discrepancy the ALJ noted is apparent in that Dr.

Carr reported improvement in Yeager’s symptoms and functioning

capacity over the course of his treatment until the time he was

asked to provide his opinion for purposes of Yeager’s social

security application. He then found her completely disabled from

work due to pain and fatigue. Dr. Carr’s evaluation of Yeager’s

capacity is markedly different from the assessments done by Dr.

Bishop and NP Kidder at the same time, and Dr. Carr had treated

Yeager for about half of the time that Dr. Bishop and NP Kidder

had treated her. In addition, Dr. Carr’s opinion that Yeager is

totally disabled is not entitled to weight. Therefore, the ALJ

did not err in deciding not to give Dr. Carr’s opinions

controlling weight. 

The ALJ’s decision to rely on Dr. Fairley’s assessment,

however, is not properly supported. The ALJ explained that he

found Dr. Fairley’s assessment to be more reliable, based on the

entire record, because of the wide variations in the findings by

Yeager’s treating sources. He does not explain, however, why he

ignored the postural limitations found by Dr. Fairley and others. 

He also does not explain why he did not consider the more recent

assessments by Dr. Bishop and NP Kidder to be more persuasive

Case 1:05-cv-00412-JD Document 17 Filed 04/17/06 Page 22 of 27
7“Sedentary work involves lifting no more than 10 pounds at

a time and occasionally lifting or carrying articles like docket

files, ledgers, and small tools. Although a sedentary job is

defined as one which involves sitting, a certain amount of

walking and standing is often necessary in carrying out job

duties. Jobs are sedentary if walking and standing are 

required occasionally and other sedentary criteria are met.”

20 C.F.R. § 404.1567(a); see also Lopes v. Metro. Life Ins. Co.,

332 F.3d 1, 3 n.2 (1st Cir. 2003).

23

than Dr. Fairley’s assessment, which was three years old at the

time of the second hearing. Dr. Fairley’s assessment also was

based on Yeager’s medical records before January of 2002, which

did not include Dr. Carr’s treatment notes or the more recent

records from Dr. Bishop and NP Kidder. Further, Dr. Bishop is a

treating physician whose opinion is entitled to controlling

weight unless the ALJ gives good reasons for not following it,

which he failed to do in this case. § 404.1527(d)(2); 20 C.F.R.

§ 404.1513(a). Therefore, the ALJ’s residual function capacity

assessment that Yeager was capable of light work is not

adequately explained or supported by the record. 

Nevertheless, Dr. Bishop assessed Yeager’s residual

functional capacity at a level that is consistent with the

ability to do sedentary work, with some additional limitations,

and NP Kidder’s two assessments were similar.7 Despite the ALJ’s

errors, “remand is not essential if it will amount to no more

than an empty exercise.” See Ward v. Comm’r of Soc. Sec., 211

F.3d 652, 656 (1st Cir. 2000). Therefore, if substantial

Case 1:05-cv-00412-JD Document 17 Filed 04/17/06 Page 23 of 27
24

evidence supports the Commissioner’s disability determination, a

remand will not be necessary.

C. Disability Determination

As part of the disability analysis at step five, the ALJ

must decide whether work exists in sufficient numbers in the

relevant economies that the claimant could do. Heggarty, 947

F.2d at 995-96. If the claimant does not have non-exertional

impairments that significantly interfere with a full range of

work at a particular exertional level, the ALJ may rely on the

Grid to determine whether the claimant is disabled. See Seavey,

276 F.3d at 5. If, on the other hand, the claimant has

significant non-exertional limitations that would restrict her

ability to do work which would otherwise be appropriate at her

exertional level, the ALJ may use the Grid only as a framework to

guide the disability decision. Id. In that case, the testimony

of a vocational expert is necessary. Heggarty, 947 F.2d at 996. 

The Commissioner bears the burden at the fifth step of the

sequential analysis to show that substantial evidence in the

record supports the decision. Goodermote v. Sec’y of Health &

Human Servs., 690 F.2d 5, 7 (1st Cir. 1982). 

In addition to the identified deficiencies in the ALJ’s

residual functional capacity finding, Yeager asserts that the ALJ

failed to articulate a sit-or-stand option to the vocational

expert, improperly relied on the Grid, failed to make a finding

Case 1:05-cv-00412-JD Document 17 Filed 04/17/06 Page 24 of 27
25

as to transferable skills, and failed to resolve a conflict

between the vocational expert’s opinion and the Dictionary of

Occupational Titles (“DOT”) description of the identified jobs. 

Contrary to Yeager’s complaints, the ALJ adequately included a

sit-or-stand option in the hypothetical, which the vocational

expert incorporated into his opinions, and did not rely on the

Grid to satisfy the Commissioner’s burden at step five. Further,

the DOT descriptions of the jobs identified by the vocational

expert do not conflict with the vocational expert’s opinion as to

the sit-or-stand option. The vocational expert addressed the

issue of transferable skills and because Yeager has a high school

education, she is considered capable of semi-skilled work. See

20 C.F.R. § 404.1564(b)(4). Further, one of the identified jobs

at the sedentary level is non-skilled work.

Yeager also contends that the hypothetical the ALJ used did

not properly reflect her limitations as Dr. Carr found them and

as the ALJ ultimately found in his decision. While that is true,

the record nevertheless supports the opinions the vocational

expert provided, which in turn support the Commissioner’s

conclusion that Yeager was not disabled.

The record supports the assessment of Yeager’s residual

functional capacity found by Dr. Bishop, which is consistent with

an ability to do work at the sedentary level, with the additional

requirements of a sit or stand option, a limited ability to push

or pull with her arms, a restriction against crouching or

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26

stooping, and only occasional climbing, balancing, kneeling,

crawling, and reaching. The vocational expert responded to the

ALJ’s hypothetical, which included a sit or stand option and

limited her ability to reach and to do repetitive hand activity,

by identifying two sedentary jobs, along with two jobs at the

light exertional level. The vocational expert also provided the

DOT identification numbers for each of the identified jobs. The

sedentary jobs the vocational expert identified are information

clerk and surveillance system monitor. The DOT descriptions of

those jobs show that neither requires the postures that had been

limited or precluded by Dr. Bishop.

 Therefore, despite the ALJ’s errors in this case,

substantial evidence exists in the record to support the

Commissioner’s decision that Yeager is not disabled. The errors

made by ALJ Klingebiel required a remand after his first decision

and very nearly required a second remand here. In the court’s

experience, decisions issued by ALJ Klingebiel are often reversed

and remanded, following judicial review, requiring unnecessary

additional expenditures of resources by the court, the claimant,

and the Social Security Administration. A second remand is not

necessary here only because substantial evidence in the record

happens to support the conclusion that Yeager is not disabled,

despite the ALJ’s erroneous findings. It is apparent to the

court that ALJ Klingebiel is either unable or unwilling to comply

with the review process mandated by the Social Security

Administration and the applicable law. 

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27

Conclusion

For the foregoing reasons, the claimant’s motion to reverse

and remand (document no. 9) is denied. The Commmissioner’s

motion to affirm (document no. 12) is granted.

The clerk of court shall enter judgment accordingly and

close the case. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 17, 2006

cc: Raymond J. Kelly, Esquire

David L. Broderick, Esquire

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