UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

James M. Smolinsky

v. Civil No. 08-cv-210-JD

Michael J. Astrue, Commissioner,

Social Security Administration

REPORT AND RECOMMENDATION

Currently before the court for a recommendation of

disposition is an appeal from a November 2007 decision by the

Commissioner of the Social Security Administration (“SSA”)

denying claimant James M. Smolinsky’s application for benefits. 

See 42 U.S.C. § 405(g) (Supp. 2008) (providing for district court

review of final decisions of the SSA); see also 28 U.S.C. §

636(b)(1)(B). Plaintiff has filed a Motion to Reverse (document

no. 7) and defendant has filed a Motion to Affirm (document no.

8). The parties submitted a Joint Statement of Material Facts

(document no. 9) (“J.S.”), and both parties objected to the other

party’s filings (document nos. 11 & 12). For the reasons set

forth below, I recommend that the decision of the SSA be

affirmed. 

Case 1:08-cv-00210-JD Document 13 Filed 04/24/09 Page 1 of 30
1The parties submitted a “Joint Statement of Facts”

(document no. 9), on which this background account is based.

2

Background1

1. Procedural History

Claimant first filed for Child Insurance Benefits (“CIB”)

and Supplemental Security Income (“SSI”) on June 8, 2006, because

he no longer qualified for the benefits he had been receiving as

a child on account of his father’s disability. He claimed he was

disabled because of abdominal problems and mental health issues

and represented the onset date of his disabilities as September

1, 2005. The applications were initially denied on September 29,

2006, after which claimant requested a hearing. One year later,

on September 18, 2007, a hearing was held, at which claimant

appeared with counsel and testified. On November 30, 2007, an

administrative law judge (“ALJ”) determined that claimant had not

been disabled since the alleged September 1, 2005 onset date and

had a residual functional capacity to perform several jobs. At

that time, claimant was 19 years old, with a general equivalency

diploma (“GED”) but no further education or training. Claimant

appealed the denial of benefits, which was affirmed on March 28,

2008. As the final order of the SSA, the matter is now properly

before this court for review. See 42 U.S.C. § 405(g).

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2. Medical History

In May 1998, when claimant was 10 years old, he had an

appendectomy. He suffered complications from the surgery, which

required additional surgery in June 1998 to repair abdominal

abscesses and obstructing small bowel adhesions and to treat a

wound infection. The record does not indicate that claimant

missed school or was otherwise restricted for any extended period

of time because of the abdominal complications until four years

later, at the beginning of the 2002-03 school year, when claimant

was 14 and presumably starting ninth grade. In September 2002,

he missed 10 of 18 days of school and then withdrew for the year. 

The next year, in 2003-04, claimant attended school for 93

days and missed school 83 days. In December 2003, claimant was

admitted to the hospital because of abdominal pain and vomiting.

He was diagnosed with a small bowel obstruction, treated

intravenously and released two days later. A month later, in

January 2004, claimant went to Dr. John Bentwood, complaining

again of abdominal pain. He received a “computed tomography (CT)

scan” to look for abnormalities in the abdomen and pelvis, which

appeared normal. Dr. Bentwood concluded claimant had a partial

small bowel obstruction and recommended he eat a restricted diet

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and avoid nondigestable foods.

In March 2004, claimant saw Dr. Susan Edwards for further

care of his lower abdominal pain. Claimant had not been eating

much and had lost 30 pounds, which placed him in the 75th

percentile for his height and weight. Claimant also told Dr.

Edwards that he felt anxiety about social issues, was slightly

depressed and lethargic. Dr. Edwards attributed the weight loss

to claimant’s anxiety over the bowel obstruction and self-imposed

decreased food intake. She concluded that claimant may have had

an adhesion or stricture that self-corrected, and she encouraged

him to eat more, specifically two instant breakfasts a day.

In April 2004, claimant went back to the doctor complaining

of nausea and vomiting for six days. He also had chills, a fever

and a headache. Claimant was seen by a nurse practitioner, Anita

Reid. NP Reid determined his gastrointestinal exam was normal,

that there was no correlation between his symptoms and his diet,

and she recommended that he rest and follow a clear liquid diet

for 12 hours. She also noted claimant appeared tired.

On May 18, 2004, claimant saw Dr. John Jehl as an outpatient

at the hospital for his psychological problems. Dr. Jehl

questioned claimant, his mother interrupted with the answers and

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stated that she wanted claimant out of school until they could

see NP Reid again. Claimant told Dr. Jehl he felt overwhelmingly

tired and moved slowly but that his pulse was fast. Dr. Jehl’s

examination found claimant to have a normal pulse, at 72 beats

per minute, and to be alert, oriented and cooperative but with a

flat affect. Claimant was taking an anti-depressant at that

time, but reported not feeling any effect positively or

negatively from the drug. Dr. Jehl concluded that claimant had

anxiety and depression and perhaps other issues which claimant

clearly did not want to discuss at that time. Claimant requested

a doctor’s order to remain out of school, which Dr. Jehl granted. 

A week later, on May 27, 2004, claimant returned to NP Reid. 

Her observations of claimant were identical to Dr. Jehl’s notes: 

alert, oriented and cooperative, again with a flat affect. She

concluded that claimant’s anxiety and depression were the same as

they had been and advised him to return if his condition worsened

and to return in two months for a routine follow-up.

Claimant went back to Dr. Bentwood in June 2004 to check on

his small bowel obstruction. He had gained weight and reported

feeling better. Dr. Bentwood advised claimant to continue with a

restricted diet, in particular avoiding nondigestable foods.

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In July 2004, claimant visited Dr. Andrew Connery for a

psychological evaluation. Dr. Connery reviewed claimant’s

complete medical file and administered a battery of tests. 

Claimant tested very well, demonstrating average and above

average intelligence, excellent reading skills, clear writing,

and no problems with confusion or distractability. His test

answers reflected a good sense of accomplishment and productivity

and an ability to work intensely for periods of time. He also

indicated that he enjoyed sports and writing stories. 

Claimant did exhibit some signs of depression, including

thought and sleep problems. Dr. Connery noted the sleep problems

may have been contributing to or resulting from claimant’s

distress. Answers to other test questions revealed that claimant

felt anxiety while at school and felt more relaxed at home and

with males. The results indicated that claimant perceived

himself as having mental difficulties, that he feared dying, and

that he was concerned about his mother’s multiple sclerosis. 

Claimant identified himself as “moody/irritable” and admitted he

was concerned about his “career goals.” Test results

characterized him as being depressed, fearful, socially anxious,

self-pitying and pessimistic. The test results also indicated,

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however, that he perceived these characteristics as engendering

sympathy and hoped they would elicit supportive and protective

responses from those around him.

Claimant’s mother was also interviewed. She stated she

thought her son was generally healthy, but wanted counseling for

his depression and anxiety. Claimant’s mother believed that the

small bowel problems had caused emotional problems for her son

and that, since the December 2003 hospitalization in particular,

claimant’s mood had declined sharply. She noted that he had

received four counseling sessions after his December 2003

surgery, but then was simply prescribed the anti-depressant,

Lexapro, by NP Reid. She was concerned that because he had

missed so much school that year, he would be unable to pass to

the next grade. She believed his problems with school were

caused by his anxiety, disorganization and peer pressure. She

also felt he had low energy and poor concentration, and that he

was unable to sleep because of anxiety. She stated he did have

good relationships with some friends and his family. She

reported claimant worked part-time, played his guitar, spent time

on the computer and enjoyed fishing, wrestling and cars.

Unlike his mother, claimant did not think his emotional

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problems were caused by his small bowel difficulties, but instead

said that he was frightened by the amount of illegal drugs used

at school. He also stated he was upset that he had been

corrected in his driver’s education class, and he admitted that

he fought with peers outside of school. He wanted to finish high

school either by being home schooled or earning his GED, and then

attend college. Claimant said he enjoyed history, politics and

sociology and often read on his own.

Dr. Connery concluded that claimant had a generalized

anxiety disorder, insomnia related to that disorder, and mixed

personality traits, including avoidance and depressive traits. 

He advised claimant to begin psychotherapy. He also recommended

claimant visit a nearby college to alleviate his school-related

anxiety.

The record indicates claimant next sought medical care 18

months later, when he visited NP Reid for an annual physical

examination in February 2006. His height and weight were normal,

and he exhibited no signs and expressed no complaints of any

physical or psychiatric problems. He was living at home with his

parents and siblings, and his hobbies included playing the guitar

and wrestling. He denied smoking, drinking or illicit substance

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usage. Although claimant had recently had an upper respiratory

infection, he was healthy, with normal affect and demeanor.

In April 2006, claimant went to the hospital again, twice,

for abdominal pain, cramping, bloating and vomiting. He was

admitted for testing, and x-rays showed a partial small bowel

obstruction. Dr. Alex Medlicott diagnosed an intermittent

partial small bowel obstruction due to adhesions, and admitted

claimant for the day for intravenous therapy. The next day

claimant returned to the hospital with the same symptoms. Dr.

Joseph Casey operated on claimant to remove adhesions and close a

leak in his small intestines. Although claimant initially did

well postoperatively, he began to suffer from abdominal

distention and had to have another surgery, this time performed

by Dr. Bentwood, to remove a segment of his small intestine. 

Following the second surgery, claimant reported feeling well, and

Dr. Bentwood assessed that his condition had improved. After

this second surgery, claimant resumed his same life-style. He

lived at home, spent time with his younger brother, and occupied

himself with the computer and television. 

In July 2006, as part of his June 2006 application for SSI

benefits, claimant reported that he could not socialize with

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others or eat normally because of his intestinal problems, and

reported that his sleep problems persisted. He explained that he

did little housework or yard work because it aggravated his

stomach problems. Claimant was able to drive, shop in stores and

walk for five to ten minutes at a time. He described himself as

having difficulty concentrating and following instructions, as

not getting along well with authority figures, and has having

difficulty handling stress or changes in routine. He also said,

however, that he did not have any difficulty getting along with

others and simply preferred not to socialize. 

In August 2006, claimant went back to NP Reid because of

problems with anxiety and depression. He explained feeling manic

and depressed, approximately 50% of the time, but during the

office visit he felt normal. When he was symptomatic, the

problems persisted for approximately a week and interfered with

his daily activities. He had no suicidal tendencies. He told NP

Reid he had been traumatized by his past surgeries and the health 

complications from his medical problems. He also told NP Reid he

was not currently under any psychiatric care. NP Reid observed

claimant to be physically healthy and normal. He had an

appropriate affect and demeanor, with normal speech and memory

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but she referred claimant to a psychologist, Dr. Vincent Scalese,

for further treatment of his anxiety and depressive disorder. 

 Claimant saw Dr. Scalese in September 2006. He reported an

eight year history of a moderately severe adjustment disorder,

with mixed anxiety and depression. Claimant told Dr. Scalese

that his abdominal problems were stable, and he was at a point to

make a decision about work and further education. He explained

to Dr. Scalese that he had dropped out of high school at age 16

because of social problems, but had earned his GED and wanted to

attend college. He had a girlfriend although his social contacts

were limited. He still enjoyed spending time on the computer,

fishing, reading and playing video games.

Dr. Scalese examined claimant and determined that he was

quite healthy. He had normal appearance and speech, appropriate

affect, good cognitive functioning and good psychological

insight. He had no suicidal or homicidal ideation, and reported

that he had not abused any alcohol or drugs in the past two

years. Dr. Scalese rated claimant as being only moderately

impaired in his social, occupational and school functioning, and

assessed claimant as having an adjustment disorder with mixed

anxiety and a depressed mood. Dr. Scalese noted that claimant

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did not want to continue with behavioral therapy and told him

that he could cope with life, had plans to meet with an academic

adviser at a local college, and would call if he felt it was

necessary.

In connection with his pending application for SSI benefits,

the state SSI benefits administrator referred claimant to a

consulting psychologist, Dr. Rexford Burnette, for an adult

“Comprehensive Psychological Profile.” Dr. Burnette noted that

claimant complained of the same symptoms of periodic anxiety,

depression and mood swings, which persisted for about a week when

they occurred. Claimant told Dr. Burnette that he had been

traumatized by his earlier abdominal surgeries and continued to

be distressed by related stomach pains, nightmares and insomnia. 

He explained his irregular sleep was partially caused by his

irritable bowel syndrome. Claimant attributed his inability to

focus or concentrate on the stomach-related distress, and also

admitted to having had suicidal thoughts and having dabbled in

substance abuse, previously but not presently. Claimant also

told Dr. Burnette he was not presently receiving any mental

health care, in the form of medication or counseling. Claimant

described his activities as including watching television and

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playing video games, working out, driving, shopping and assisting

with domestic chores. He also described himself as being

socially limited, but was less anxious in social situations than

when he was younger. Claimant said he got along well with his

family, but admitted he still had difficulties with peers and in

some job situations. Claimant said he still avoided certain

foods that were difficult to digest, but had gained twenty pounds

recently and was healthy. 

Dr. Burnette assessed claimant as being cooperative and

cordial, with normal speech and appropriate affect. Though he

was somewhat focused on his abdominal problems, claimant was not

obsessed with them. His memory was good, and claimant had no

impairment with comprehension, concentration or task completion. 

Dr. Burnette did not discern any problems with work or work-like

situations. He noted that claimant could perform all “ADLs,” or

activities of daily life, independently. Dr. Burnette noted a

need to “rule out” claimant suffering from a conduct disorder, an

unspecified substance abuse or a depressive disorder. 

Also in September 2006, the SSA had a state agency

psychologist, Michael Schneider, and a state agency physician,

Jonathan Jaffe, review claimant’s record, although they did not

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examine claimant. Dr. Schneider concluded claimant had no

medically determinable mental impairment. Dr. Jaffe concluded

claimant had no physical limitations or environmental

restrictions. 

Claimant next sought medical care on January 24, 2007, when

he went to the hospital again complaining of abdominal pain and

vomiting. After receiving a liter of fluids, claimant felt

better and chose not to be admitted. His treating physician, Dr.

James Kelsey, noted that claimant might have a bowel obstruction

and advised him to return if his symptoms persisted and to limit

his diet to clear fluids until he felt better.

The record contains no further evidence of medical care

received before claimant’s September 18, 2007 SSI hearing. At

the hearing, claimant testified that he had quit his job because

his abdominal problems prevented him from reporting to work on

time. He testified that his intestinal obstruction would cause a

blockage that would make him feel nauseous and then make him

vomit, requiring him to wait for some period of time without

eating or drinking to enable his system to quiet and the blockage

to clear. Claimant stated this occurred several times a week and

could impede his activities for as much as a full day. The last

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time it had persisted for the entire day claimant had gone to the

emergency room, in January 2007. Claimant did not know of any

medical care he could receive to cure this problem. Finally,

claimant explained that, since finishing high school, he had not

looked seriously for work because of his stomach problems and the

impact it had on his daily life. 

3. The ALJ’s Decision

 After considering all the evidence, the ALJ first determined

that claimant had not engaged in substantial gainful activity

since the alleged September 1, 2005 onset date. See 20 C.F.R. §§ 

404.1520 & 416.920. The ALJ concluded that claimant did have a

severe impairment in the form of his small bowel obstruction, but

that this impairment did not meet or equal a listed impairment

under Appendix 1, Subpart P of the Social Security Regulations

No. 4. The ALJ then concluded that claimant retained the

residual functional capacity (“RFC”) to perform a full range of

light work. Despite claimant not having past relevant work

experience, the ALJ found claimant could perform a significant

number of other jobs in the national economy, rendering him not

disabled within the meaning of the Social Security Act and,

therefore, ineligible for disability benefits. 

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Discussion

1. Standard of Review

Claimant has a right to judicial review of the decision to

deny his social security benefits. See 42 U.S.C. § 405(g) (Supp.

2008). The court is empowered to affirm, modify, reverse or

remand the decision of the Commissioner, based upon the pleadings

and transcript of the record. See id. The factual findings of

the Commissioner shall be conclusive, however, so long as they

are supported by “substantial evidence” in the record. See Ortiz

v. Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting 42

U.S.C. § 405(g)). “Substantial evidence” is “‘more than a mere

scintilla. It 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) (quoting Consol. Edison Co.

v. NLRB, 305 U.S. 197, 229 (1938)); see also Currier v. Sec’y of

HHS, 612 F.2d 594, 597 (1st Cir. 1980). The Commissioner is

responsible for resolving issues of credibility and drawing

inferences from the evidence in the record. See Rodriguez v.

Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981) (reviewing court

must defer to the judgment of the Commissioner). The Court does

not need to agree with the Commissioner’s decision but only to

Case 1:08-cv-00210-JD Document 13 Filed 04/24/09 Page 16 of 30
2In his Reply Memorandum (document no. 11), claimant changes

his argument from the ALJ erred in not finding his mental health

issues are severe at step 2 of the disability evaluation process,

see 20 C.F.R. § 404.1520(a)(4)(ii), to the ALJ was required to

consider even his nonsevere impairments, citing 20 C.F.R. §

404.1545(e) which deals with RFC assessments. The record shows 

that the ALJ properly considered all claimant’s impairments when

he assessed his RFC after concluding he had a severe impairment

in the form of his small bowel obstructions. See CR at 16

(citing 20 C.F.R. Part 404, Subpart P, App. 1, §§ 5.06

(inflammatory bowel disease) & 5.07 (short bowel syndrome)); see

also 20 C.F.R. §§ 404.1523 & 404.1545. The ALJ specifically

stated that he “considered all symptoms” and gave “qualified

weight” to the September 2006 state agency medical consultant

reports which addressed claimant’s mental health issues. See CR

at 16-18. To the extent claimant intends to advance this as a

new argument to justify a reversal or remand, it is untimely and

warrants no further analysis since it is undermined by the

record. 

17

determine whether it is supported by substantial evidence. See

id. Finally, the court must uphold a final decision denying

benefits unless the decision is based on a legal or factual

error. See Manso-Pizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st

Cir. 1996) (citing Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

2. Claimant’s Arguments

Claimant argues the ALJ erred in not finding his mental

health conditions were severe, specifically his generalized

anxiety and depressive disorders and his insomnia problems.2

Claimant contends that the ALJ made his decision relying only the

one evaluation by Dr. Burnette, which concluded that claimant had

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3Claimant relies heavily on Dr. Connery’s diagnoses of

generalized anxiety disorder, insomnia related to generalized

anxiety, and mixed personality traits that include avoidance and

depressive traits. He argues Dr. Schneider did not consider Dr.

Connery’s assessment and limited his evaluation to a review of

Dr. Burnette’s assessment. Nothing in the record supports

claimant’s assertion that his medical file was incomplete when

Dr. Schneider reviewed it.

18

no diagnosable mental health disorder yet indicated a need to

“rule out” conduct disorder, unspecified substance abuse and

depressive disorder. Claimant asserts the ALJ misunderstood Dr.

Burnette’s use of the phrase “rule out” to mean those conditions

had been eliminated, when in fact Dr. Burnette intended that

further testing needed to be done in order to eliminate those

possible conditions. 

To support this reading of Dr. Burnette’s conclusion, 

claimant submits that three other psychological evaluations

resulted in a finding that he suffered from anxiety, depression,

adjustment disorder and insomnia associated with these mental

health problems. Those assessments were made by Dr. Connery, NP

Reid and Dr. Scalese, but allegedly not considered by the ALJ or

by the consulting psychologist, Dr. Schneider, who allegedly

reviewed claimant’s medical file before those three evaluations

were added to the record.3 Claimant contends the ALJ erred by

not considering these three assessments, citing 20 C.F.R. §

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404.1527(d), which requires every medical opinion to be evaluated

in the disability determination. 

Defendant counters that substantial evidence supports the

ALJ’s conclusions that both claimant’s mental impairments and his

insomnia are non-severe. Defendant explains that Dr. Burnette’s

use of the phrase “rule out” conveyed that he had insufficient

information to diagnose the conditions. This position is

actually consistent with claimant’s argument, that Dr. Burnette

simply concluded that further testing needed to be done to

diagnose whether or not claimant suffered from the self-reported

conditions. Defendant contends that if the ALJ misunderstood Dr.

Burnette’s opinion it was harmless, because (1) the medical

evidence supports the finding that claimant did not have any

mental impairment that significantly limited his ability to work;

(2) claimant’s life activities undermined his claimed mental

impairments; and (3) claimant’s failure to seek treatment for

these alleged mental conditions further evinces their lack of

severity. Defendant is correct. 

As an initial matter, claimant bears the burden of proving

he is disabled. See Picard v. McMahon, Comm. of the Soc. Sec.

Admin., 472 F. Supp. 2d 95, 99 (D. Mass. 2007) (citing Santiago

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4Since parts 404 and 416 of Title 20 mirror one another, for

simplicity’s sake I refer only to Part 404. See Mills v. Apfel,

Comm. of the Soc. Sec. Admin., 244 F.3d 1, 2 n.1 (1st Cir. 2001). 

20

v. Sec. of HHS, 944 F.2d 1, 45 (1st Cir. 1991). To do this, he

must show “‘an inability 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

which has lasted or can be expected to last for a continuous

period of not less than 12 months.’” Id. (citing 42 U.S.C. §

423(d)(1)(A)). Claimant must demonstrate he has one or more

medical impairments 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. .

..’” Id. (citing § 423(d)(2)(A)). When, as is the case here,

claimant is not doing any substantial activity, his alleged

mental impairment must “be established by medical evidence

consisting of signs, symptoms, and laboratory findings, not only

by [his] statement of symptoms.” 40 C.F.R. § 404.1508 (2008

ed.).4 He has not carried his burden of proof here. 

First, the record contains medical evidence to support the

ALJ’s conclusion, even if he misunderstood Dr. Burnette’s intent

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about other mental health disorders being “ruled out.” In

reaching his decision, the ALJ relied on claimant’s entire

treatment history, which did not support claimant’s alleged

symptoms. See Certified Record of the Proceedings before the SSA

(“CR”) at 17-18, 22, 35-36, 38 & 44 (referring to the medical

records). Although claimant did not have any regular treatment

provider for his mental health problems, the record indicates

that NP Reid treated him most regularly and that the ALJ reviewed

and considered her records. See id. at 35-36, 44, 89. She twice

saw claimant for symptoms of anxiety, depression and sleep

deprivation, in May 2004 and August 2006. See id. at 413-14 (May

2004 report) & 156-58 (August 2006 report). In both reports, NP

Reid noted that claimant complained of anxiety, depression and

insomnia, but also noted that these symptoms were episodic,

occurring intermittently and lasting only about 1 week at a time. 

She observed that claimant’s affect and appearance were good,

with normal speech pattern, grossly normal memory, alert

orientation and a cooperative yet flat affect. Id. at 413, 158. 

NP Reid prescribed an anti-depressant for him in May 2004, but

claimant stopped taking the medication after a short while. See

id. at 156 & 413. Though a treating physician’s opinion is

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“binding on the fact finder unless contradicted by substantial

evidence,” 20 C.F.R. § 404.1527(d)(2), claimant did not have a

treatment provider for his mental health problems for any period. 

NP Reid’s assessments were not controlling therefore, but were

considered in light of the entire record. See id. (giving

treating physician’s opinion controlling weight if it is “wellsupported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with other

substantial evidence in [the] case record”); see also Sitar v.

Schweiker, 671 F.2d 19, 22 (1st Cir. 1982) (balancing weight

given treating physician against the entire record).

NP Reid referred claimant to Drs. Connery and Scalese, both

of whom evaluated claimant and whose reports are part of the

record the ALJ reviewed. See CR at 22, 44, 415-16,432-42 & 409-

10; see also 20 C.F.R. § 404.1527(c)(2) (providing for review of

consulting physicians). Their evaluations support the ALJ’s

conclusion that claimant’s mental impairments did not limit his

functioning sufficiently to be considered severe. See 20 C.F.R.

Pt. 404, Subpt. 2, App. 1 at § 12.00C (assessing severity based

on how impairment limits “activities of daily living; social

functioning; concentration, persistence or pace; and episodes of

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decompensation”). Like NP Reid, the doctors found generalized

anxiety and depressive disorders with some related insomnia, see

CR at 409, 413 & 441, but also found claimant was not debilitated

by the symptoms. Despite these problems, Dr. Connery also noted

that claimant had average to superior intellectual capacity and

enjoyed a wide variety of activities and interests. See id. at

435-36 (finding claimant to be “tremendously academically skilled

in most regards”). Similarly, Dr. Scalese found that claimant’s

symptoms were only moderately severe, that his appearance and

speech were normal, his affect was appropriate, and his cognitive

functions were “grossly intact with good psychological insight.” 

Id. at 409.

The record demonstrates that the ALJ properly weighed the

opinions of these doctors and evaluated them based on several

factors, including how consistent they were with the consulting

physicians, Drs. Burnette and Schneider, and the entire record

evidence. See 20 C.F.R. §§ 404.1527(d)(1-6) (listing how

medical opinions are evaluated) & § 404.1520a(e)(1) (giving

overall responsibility for assessing medical severity to the

medical and psychological consultants); see also Picard, 472 F.

Supp. 2d at 100 (citing authority for balancing various medical

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opinions); see also Frost v. Barnhart, 121 Fed.Appx. 399, 2005 WL

248161 (1st Cir. Feb. 3, 2005) (holding ALJ not required to

discuss all the evidence). The treating and consulting doctors’

notes consistently show that despite claimant’s issues with

anxiety, depression and sleep, they did not markedly impair his

appearance, affect or intellect, which are relevant indicators of

mental health. See 20 C.F.R. Pt. 404, Subpt. P. App. 1, § 12.00C 

(listing observable behaviors relevant to assessing severity of

mental health problem). The record is devoid of any laboratory

findings or other objective evidence to substantiate claimant’s

alleged problems. See id. at § 12.00B (describing need for

medical evidence to document mental disorders); see also 20

C.F.R. § 404.1513(a) & (b) (listing sources of medical evidence). 

In reaching his decision, the ALJ specifically considered both

claimant’s physical and mental impairments, see CR at 15-16, see

also 20 C.F.R. § 404.1523 (requiring combination of impairments

be considered), yet concluded they did not render him disabled. 

The medical record readily demonstrates the ALJ’s decision is

supported by substantial evidence. See Gordils v. Sec’ of Health

& Human Svcs, 921 F.2d 327, 329 (1st Cir. 1990) (combining the

opinions of consulting doctors to find substantial evidence). 

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Second, claimant’s “activities of daily living,” or “ADL,”

provided additional evidence that his mental health issues did

not severely disable him. See 20 C.F.R. Pt. 404, Subpt. P, App.

1, § 12.00C (listing behavioral factors assessed to determine the

severity of mental impairment). The record consistently shows 

that claimant was highly functional, despite not working. He was

able to care for his personal hygiene independently, to do a

myriad of domestic chores, to drive and to go shopping with and

without his mother, to maintain social relationships, including

having a girlfriend, and to enjoy video games, computers,

wrestling, fishing and reading. The regulations specifically

describe an impairment or combination of impairments as being

non-severe if they do not limit claimant’s ability to do basic

work activities, all of which the record evidences claimant has

the capacity to do and, in fact, has been doing. See CR at 35-

38, 168-95 (discussing claimant’s activities and abilities); see

also 20 C.F.R. § 404.1521 (describing “basic work activities” to

include very simple physical and mental capabilities); Goodermote

v. Sec. HHS, 690 F.2d 5, 8 (1st Cir. 1982) (finding no disability

despite moderate depression where no evidence of “deterioration

in personal habits, marked restriction in daily activities or

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26

serious impaired ability to relate to other people.”). This

evidence of claimant’s activities demonstrates he was not

significantly impaired by his mental health problems and provides

further support for ALJ’s decision. See e.g. Picard, 472 F.

Supp. 2d at 100-01 (finding no disability despite treating

physician’s opinion because it was inconsistent with other

medical evidence and with claimant’s ability to participate fully

in daily activities); Morales v. Sec. HHS, 976 F.2d 724, 1992 WL

240283, *9 (1st Cir. 1992) (finding no disability even though

claimant suffered from anxiety and depression because of her

mental acuity and appropriate behavior); Mandziej v. Chater, 944

F.Supp. 121, 133 (D.N.H. 1996) (considering daily exercise

regimen in assessing disability). 

Third and finally, claimant’s decision not to seek treatment

for any length of time further undermines the alleged severity of

his mental health disability. See 20 C.F.R. § 404.1527(d)(1-6)

(listing factors the ALJ is to consider, including the length,

nature and extent of treatment sought); see also Giltner v.

Astrue, __ F. Supp. 2d __, 2009 WL 884748, *3 (D. Me. 2009)

(finding no disability even though signficant social impairment

where claiant sought no treatment); Gonzalez-Rodriguez v.

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27

Barnhart, 11 F.3d.Appx. 23, 2004 WL 2260096, *1 (1st Cir. 2004)

(same). “‘The fact that claimant did not receive any treatment

for his mental impairment during his insured status is evidence

that this impairment was not bothersome enough to require

treatment.’” Id. (quoting Ortiz v. Sec., HHS, 955 F.2d 765, 769

(1st Cir. 1991) (per curiam) (emphasis in original)). Claimant

stopped taking Lexapro shortly after NP Reid prescribed it and

took no other medications to alleviate his symptoms, which

further undermines his claimed disability. See Tsarelka v. Sec.,

HHS, 842 F.3d 529, 534-35 (1st Cir. 1988) (requiring not just an

impairment but also a lack of any remedial treatment before

disability can be found). Dr. Connery, on whom claimant

currently relies to support his claimed disability, recommended

several avenues for treatment, including an Individualized

Education Plan, a sleep clinic and sleep-aiding medications, and

psychotherapy, see CR at 442, but claimant did not pursue any of

his recommendations. Two years later, in 2006, claimant told Dr.

Scalese “he does not want to continue with behavioral health

interventions . . . he feels he can cope with his life.” Id. at

410. This failure to pursue treatment undermines the purported

severity of the disability, both because there is no evidence

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that the alleged impairment persisted continuously for more than

12 months as statutorily required, see 42 U.S.C. § 423(d)(1)(A),

20 C.F.R. § 404.1509, and because it indicates that claimant did

not perceive a need for the treatment. See Ortiz, 955 F.2d at

769; Tsarelka, 842 F.2d at 535.

The rationale behind the final decision reflects a careful

review of the entire record, and a careful assessing of

credibility based on that review. The power to resolve conflicts

in the evidence lies with the ALJ, not with the doctors or the

courts, see Rodriguez, 647 at 222, and he is responsible for

making the ultimate determination of whether claimant was

disabled. See 20 C.F.R. § 404.1527(e); see also Pariseau v.

Astrue, __ F. Supp. 2d. ___, 2008 WL 2414851, *4 (D.R.I. 2008)

(citing authority). I do not find that the ALJ ignored any

critical factual or legal issue when issuing the final decision. 

When, as is the case here, there is a substantial basis in the

record for an ALJ’s decision, the court must affirm the decision,

whether or not another conclusion is possible. See Ortiz, 955

F.2d at 769.

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CONCLUSION

While claimant may very well have experienced some anxiety

and depression since September 2005, and certainly suffered from

small bowel problems which have caused him some discomfort and

disruption in daily activities, the evidence of record supports

the conclusion that his combination of impairments did not cause

him sufficient functional limitations to require a finding of

disability. I cannot find any basis to remand or reverse and, 

therefore, recommend that claimant’s Motion for Summary Reversal

of the Decision of the Commissioner (document no. 7) be denied,

and that respondent’s Motion for an Order Affirming Decision of

the Commissioner (document no. 8) be granted. 

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

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Date: April 24, 2009

cc: Francis M. Jackson, Esq.

Gretchen Leah Witt, Esq.

United States Social Security

 Administration

 

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