UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William J. Connolly, Sr.

v. Civil No. 08-cv-509-JD

Michael J. Astrue,

Commissioner, 

Social Security Administration

REPORT AND RECOMMENDATION

Before the court is plaintiff William J. Connolly’s motion

for an order reversing the October 15, 2008 final decision

denying his applications for disability insurance benefits and

supplemental income benefits under the Social Security Act

(referred to hereinafter jointly as “social security benefits”)

(document no. 9). Plaintiff alleged a disability onset date of

June 16, 2006, based on several physical and mental impairments,

including cervical and lumbar degenerative discs, depression,

anxiety, arm and leg numbness, and pain. Defendant objects and

seeks an order affirming the denial of benefits. (document no.

12). For the reasons set forth below, I recommend that

plaintiff’s motion be denied and the decision to deny benefits be

affirmed.

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Discussion

1. Statement of Uncontested Facts.

Pursuant to this court’s local rules, see United States

District Court for the District of New Hampshire Rule 9.1(d), the

parties filed a joint statement of material facts (document no.

13) which are part of the record and which I have reviewed. Only

those facts relevant to the disposition of this matter are

discussed below, as needed. 

2. Standard of Review

An individual seeking social security benefits has a right

to judicial review of a decision denying the application. 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, as 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 means such relevant evidence as a

reasonable mind might accept as adequate to support a

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

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3

(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 needs to determine whether it is

supported by substantial evidence. See id. 

A final decision denying benefits must be upheld unless it

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)). If the ALJ made a legal or

factual error, the decision may either be reversed or remanded to

consider new, material evidence or to apply the correct legal

standard. See 42 U.S.C. § 405(g); see also Martin v. Astrue, No.

C.A. 07-388A, 2008 WL 5111918, *2-3 (D.R.I. Dec. 2, 2008) (citing

authority about when to remand and when to reverse); Evangelista

v. Sec’y HHS, 826 F.2d 136, 139 (1st Cir. 1987) (describing the

newness/materiality and the good cause showings that justify a

remand). 

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3. Analysis

Plaintiff applied for social security benefits because of a

back injury and depression precipitated by the limitations that

back injury caused. Following the five step disability analysis,

see 40 C.F.R. § 404.1520, the administrative law judge (“ALJ”)

found that plaintiff: (1) has not been engaged in any gainful

activity since his June 16, 2006 alleged disability onset date;

(2) that his back problems stem from degenerative disc disease of

the spine which affects his ability to perform basic work

functions and is a severe impairment, but his depression has not

lasted for the requisite twelve month period so is not severe;

(3) that the impairments did not meet or equal a listed

impairment in the regulations, see 20 C.F.R. Ch. III, Pt. 404,

Subpt. P, App. 1, (“Listings”); (4) that he retained the residual

functional capacity (“RFC”) to engage in light work; and (5) that

though plaintiff could not perform his past relevant work, the

Medical-Vocational Rules, see id. App. 2 (the “Grid”), direct a

finding of not disabled because there are a number of jobs in the

national economy which he could do. See CR at 9-13. Plaintiff

argues the decision to deny him benefits should be reversed

because (a) the determination that his mental impairment had not

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lasted for 12 months is not supported by substantial evidence,

(b) his treating physicians’ opinions were not weighed

appropriately, and (c) his alleged pain was not evaluated

properly. I address each argument below in turn.

(a) Duration of Mental Impairment 

Plaintiff was injured on June 16, 2006 while moving heavy

boxes at work, sustaining cervical strain and lumbar spine

strain. He first applied for social security benefits on

December 30, 2006, just six months after his alleged onset date;

however, his disability hearing before the ALJ did not occur

until July 8, 2008, more than two years after plaintiff was

injured. At that time he had not worked since his June 2006

alleged onset date. Plaintiff contends that since his June 2006

injury he has struggled with depression because of his pain and

resulting inability to work and to engage in many activities

which he enjoyed previously, like snowmobiling and fishing. The

ALJ accepted that plaintiff had suffered from depression, based

on his complaints in August 2006, but concluded that it was not

severe because it had not lasted for twelve months. See CR at

11. Plaintiff now asserts that he continues to fight depression

and has not pursued treatment for it only because he has not had

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1As plaintiff explained in his February 2008 appeal: “I

don’t have any health insurnance [sic] right now so I can’t

afford any doctor visits or medications. I am in great pain, but

can’t afford to see anyone.” CR at 150.

2Because the regulations governing disability insurance

benefits, set forth in Part 404, are the same as the regulations

governing supplemental security income, set forth in Part 416,

hereinafter I will cite just one regulation. See Reagan v. Sec’y

HHS, 877 F.2d 123, 124 (1st Cir. 1989) (two sets of regulations

“are identical”).

6

health insurance to cover the cost of therapy or medication.1

In order to qualify for social security benefits, plaintiff,

who bears the burden of proof, must establish both that he has a

severe impairment and that it has lasted for a continuous twelve

month period. See 42 U.S.C. §§ 416(i)(1) & 423(d); 20 C.F.R. §§

404.1505(a) & 416.905(a) (defining disability)2; id. § 404.1509

(duration requirement); id. § 404.1512 (burden of proof).

Disability is defined as:

the inability to do any substantial gainful

activity by reason of any medically determinable

physical or mental impairment which . . . has

lasted for a continuous period of not less than

12 months. To meet this definition, you must

have a severe impairment(s) that makes you

unable to do your past relevant work . . . or 

any substantial gainful work that exists in the

national economy. If your severe impairment(s)

does not meet or medically equal a listing in 

appendix 1, we will assess your residual 

functional capacity. . ..

Id. § 404.1505. 

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3The Listings set forth medical findings, referred to as

“Paragraph A” criteria, and impairment-related functional

limitations, referred to as “Paragraph B” criteria. See id. §

12.00A. There are additional functional criteria set forth in

Paragraph C, which become relevant only if the Paragraph B

criteria are not satisfied. See id. 

7

The ALJ determined that the record “does not establish that

the claimant has a mental impairment that has lasted for the

twelve month period required to be considered severe.” CR at 11. 

As an initial matter, it bears noting that the severity of the

impairment is not determined by its duration, but instead is

determined based on medical evidence that documents physical or

mental limitations. See 20 C.F.R. §§ 404.1520(c)-(d) (describing

the severity analysis) & 404.1525(a) (providing the Listings

describe impairments that are considered to be severe enough to

prevent an individual from doing any gainful activity); see also

Listings, § 12.04A & § 12.04B (listing characteristics of severe

depression)3. An impairment must be both severe and last

continuously for a twelve month period, rendering both factors

indispensable to the disability determination. See 20 C.F.R. §

404.1505. The ALJ’s error appears to be semantic, however,

because the ALJ’s finding that plaintiff’s depression was not

severe because his functional ability was only mildly impaired is

supported by substantial evidence and is consistent with the

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4The evidence must show that plaintiff had at least four of

the following: pervasive loss of interest in almost all

activities; appetite disturbances; sleep disturbances,

psychomotor agitation, decreased energy; difficulty concentrating

or thinking; suicidal thoughts, feelings of worthlessness, or

paranoid thinking; which resulted in at least two of the

following: marked restriction on claimant’s activities of daily

living (“ADL”); marked difficulty with claimant’s ability to

maintain social function or to maintain his concentration,

persistence or pace; or which caused episodes of decompensation. 

See Listings, § 12.04A & § 12.04B. The record simply does not

demonstrate that plaintiff suffered such extreme problems. 

8

Listings requirement that there must be marked impairment before

depression may be deemed severe. See CR at 9-11 (declining to

find disability based on depression at step 2 of the evaluation

process)4 & CR at 309-11, 326-28 (assessment of his ability to

perform basic work-related activities); see also 20 C.F.R. §

1520(a)(4)(ii) & (iii) (assessing the medical severity of an

impairment based on the Listings); id. § 404.1520a (providing

steps for evaluation of mental impairments in particular); Ward

v. Comm’r HHS, 211 F.3d 652, 656 (1st Cir. 2000) (declining to

remand because of error if result would be the same). On this

record, and given plaintiff’s oblique challenge to the severity

determination specifically, no further analysis of it is

warranted. 

Plaintiff directly challenges the ALJ’s conclusion that his

depression did not persist for the requisite 12 month period and

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5Dr. Lynch predicted that plaintiff should improve, opining

that his “overall prognosis is fair,” given his “generally good

adjustment in the past.” CR at 311.

9

proffers as an explanation for the lack of medical evidence

documenting his mental impairment the fact that he could not

afford to seek treatment. Plaintiff relies heavily on Dr. Thomas

P. Lynch’s diagnosis of him as having “an adjustment disorder

with depressed mood, chronic, and pain disorder, chronic, due to

his medical condition,” as evidence that the ALJ erred. See

Pl.’s Mem. in Supp. of Mot. to Remand (document no. 9.1) (“Pl.’s

Mem.”) at 5; see also CR at 306-11 (Dr. Lynch’s report). Dr.

Lynch’s evaluation occurred on April 19, 2007, however, only 10

months after plaintiff’s injury in June 2006. There are no later

notes or more recent evaluations of plaintiff by Dr. Lynch.5 The

latest assessment of plaintiff’s mental impairment was on May 1,

2007, by Dr. Edward G. Martin, who completed a Psychiatric Review

Technique form that indicated plaintiff had both an affective

disorder and a somatoform disorder. See CR at 312-29. Again,

however, that evaluation was done within the initial twelve month 

period so cannot be considered evidence that plaintiff’s

depression continued for at least twelve months.

The record’s lack of more recent documentation evidencing

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plaintiff’s alleged continuing struggle with depression could be

excused if he had a justifiable reason for failing to pursue any

treatment for it. Social Security Ruling 82-59 provides, in

relevant part:

An individual who would otherwise be found

to be under a disability, but who fails 

without justifiable cause to follow treatment

prescribed by a treating source which the 

Social Security Administration determines 

can be expected to restore the individual’s 

ability to work, cannot by virtue of such 

“failure” be found to be under a disability.

Santos-Isaac v. Sec’y HHS, No. 95-1227, 1995 WL 522415, *2 (1st

Cir. Sept. 6, 1995) (rejecting plaintiff’s justification that he

failed to understand the importance of taking his medication

because he was otherwise not disabled). A justifiable cause for

failing to follow treatment cannot be willful and must be

reasonable. See Schena v. Sec’y HHS, 635 F.2d 15, 19 (1st Cir.

1980) (identifying reasonable factors to excuse failing to

undergo treatment as the risks involved, the likelihood of

success, the consequences of failure and the availability of

alternative treatment); see also Spindel v. Comm’r Soc. Sec.

Admin., No. 07-35742, 333 Fed. Appx. 174, 2009 WL 1416745 (9th

Cir. May 21, 2009) (an unexplained or inadequate failure to seek

treatment casts doubt on a claimant’s credibility). 

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Among the reasons that are considered justifiable is the

inability to afford prescribed treatment. See West’s Soc. Sec.

Reporting Service - Rulings: 1975-1982 at 793-800, Social

Security Program Policy Statement (“SSR”) 82-59, 1982 WL 31384. 

The ruling explains:

Although a free or subsidized source of 

treatment is often available, the claim 

may be allowed where such treatment is not

reasonably available in the local community.

All possible resources (e.g., clinics, 

charitable and public assistance agencies, 

etc.), must be explored. Contacts with such

resources and the claimant’s financial

circumstances must be documented. Where

treatment is not available, the case will be

referred to VR.

Id. at 797. The ALJ is required to fully evaluate the proffered

reason for failing to follow prescribed treatment before

concluding whether it is justifiable. See id.

Plaintiff has not made the requisite showing that he tried

to pursue therapy or to acquire prescription medication despite

his financial limitations but to no avail, and his bald assertion

now does not carry his burden of proof. The record demonstrates

that although he has not worked since his June 2006 injury, he 

was treated and prescribed medication through February 2007. 

Based on his own admission, he stopped going to the doctor for

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strategic reasons related to his worker’s compensation claim. 

See CR at 295. The record also shows that he had enrolled in a

program for free medication and was receiving it. See CR at 276

& 293-96. There is no evidence that he tried to participate in

any publicly or privately funded free mental health services, and

he admitted he had made no effort to pursue any vocational

rehabilitation service either. See CR at 143 (2/1/07 disability

report). Other examples that he could have received some care

had he wanted to are the recommendations that he go to the

emergency room and to a local clinic, yet there is no medical

evidence to indicate that he pursued either option. See id. at

248, 265, 293-94. The record is devoid of any proof that

substantiates his claim that he was financially precluded from

receiving medical treatment for his allegedly continuing

depression. Cf. Myles v. Astrue, 582 F.3d 672, 677 (7th Cir.

2009) (remanding to explore whether prescribed medication was

covered by the public assistance claimant was receiving).

Sometimes the failure to pursue mental health care can be

fairly understood as a manifestation of the actual psychological

impairment for which care is needed. “Although none of the

listed circumstances [in SSR 82-59] pertain to mental illness,

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federal courts have recognized a mentally ill person’s

noncompliance with psychiatric medications can be, and usually

is, the ‘result of [the] mental impairment [itself] and,

therefore, neither willful nor without a justifiable excuse.’” 

Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (citing

cases). The record does not contain any evidence to support an

inference, let alone the conclusion, that plaintiff’s depression

impaired his mental functioning to such a degree that he was

unable to realize the significance of prescription medication. 

Cf. id. (reversing where plaintiff’s refusal to take medication

was a manifestation of her mental illness). To the contrary, the

record shows that plaintiff reported feeling better when on

Zoloft. He also actively sought medication in the fall of 2006

and early 2007 and enrolled himself in a free prescription drug

program. See CR at 276 & 293-96. This evidence undermines

plaintiff’s claim that he did not continue to pursue therapy or

take medication because he could not afford to do so. 

The record readily establishes that although plaintiff may

have struggled with depression based on his frustration and pain,

he responded well to medication and declined to pursue any

further treatment for his depression after the spring of 2007,

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well within the critical 12 month duration requirement. See e.g.

CR at 295-96, 311. Without a justifiable excuse for not pursuing 

treatment that had improved his mental impairment, see CR at 295-

96, his failure to continue the prescribed treatment and the lack

of medical evidence documenting some continued difficulty with

depression preclude a finding of disability based on that alleged

impairment. See SSR 82-52, 1982 WL 31376; see also SSR 83-59,

1983 WL 31384. Even accepting as true that plaintiff could not

afford treatment, he bore the burden of proving that his

depression continued. See 20 C.F.R. § 404.1512. To that end, he

could have obtained, at no cost to him, a more recent evaluation

of his mental impairment to provide the medical evidence needed

to satisfy the duration requirement. See id. §§ 404.1514 &

404.1517 (providing that medical evidence may be paid for at the

Social Security Administration’s expense). The ALJ’s

determination that plaintiff’s depression did not satisfy the

duration requirement is supported by substantial evidence.

(b) Weight Given Treating Physicians

Plaintiff next argues the ALJ failed to give appropriate

weight to his treating physicians, in particular in relation to

the ALJ’s assessment of plaintiff’s RFC. He argues that the ALJ

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erroneously relied on the consulting examination done by Dr.

Jonathan Jaffe on April 13, 2007, see CR at 298-305, which was

not consistent with the opinions of plaintiff’s treating

physicians or the other medical evidence on record, including his

own testimony about his limitations. He also contends that his

failure to seek treatment cannot be construed as evidence of

improvement, because his lack of insurance was the reason he

stopped getting medical care. 

To support his claim that the ALJ did not properly evaluate

the treating doctors’ assessments, plaintiff cites the early

diagnoses of Drs. Geoffrey Stein and William Brewster, at

Seacoast Redicare, which were confirmed a month later by Dr.

Gavin Webb and his assistant, Bronna Eckelman. These doctors

diagnosed plaintiff with an acute cervical sprain and aggravated

underlying mild cervical spondylosis, which restricted

plaintiff’s abilities to lift, bend, kneel, squat and climb, and

limited him to only occasionally stand, walk, reach and drive. 

CR at 182-83, 191-92, 237-39 & 246. Plaintiff was referred to

Seacoast Area Physiatry, id. at 251, where a physician assistant,

Stephanie Diamond, began treating him in October 2006. Her

opinion was consistent with the other doctors, that plaintiff had

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a cervical sprain with cervical and thoracic somatic dysfunction,

which was causing him chronic pain and related depression. Id.

at 288-90. Ms. Diamond opined similarly about his work-related

restrictions, including that he should limit his lifting and

length of his work day. Id. Though Ms. Diamond stated on

October 6, 2006, that plaintiff’s complaints of pain were

disproportionate to his injuries, her notes indicate she was

concerned that his reported pain may have been attributable to

his depression, which in turn was aggravated by his injury and

restricted life style. Id. Plaintiff did not see Ms. Diamond

again until February 2007, when he returned for more prescription

medication. At that time, her opinion remained fairly consistent

with her prior opinion and the initial diagnoses, that he had

sustained the cervical strain and had some cervical and thoracic

somatic dysfunction, that together were impacting his work

capacity. CR at 295-97.

Plaintiff neglects to recognize that these treating sources

predicted that he would fully recover within a short time frame. 

See id. at 185 (June 2006 report that goal was to return to work

without restrictions), 209 (July 2006 report that his “rehab

potential” was excellent and that treatment would last no more

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than 6-12 weeks); 247 (August 2006 expectation that his condition

would improve with continued time and physical therapy), 264

(September 2006 report that plaintiff was improving with physical

therapy and appeared much brighter); & 289 (October 2006

assessment that physical therapy was helping him but he needed to

cut down on his cigarette smoking and alcohol intake). From the

very beginning, the doctors opined that plaintiff could continue

to work, just with modifications. See id. at 183 (June 28, 2006

visit with Dr. Stein), 192 (Dr. Brewster’s July 6, 2006

evaluation) & 238 (Dr. Webb’s July 12, 2006 plan for “light duty

restrictions with no significant lifting”). Plaintiff did not

continue working, however, and he both neglected to keep

appointments to continue receiving the care that was helping him,

and aggravated his health by smoking and drinking. Id. at 293

(February 2007 note declining to refill Zoloft prescription

because plaintiff “had not been seen for an extended period of

time”), 296 (noting “no change in work capacity” but need for a

treatment course to include trigger point injections and reduced

alcohol and nicotine abuse), & 206 (Marsh Brook Rehabilitation

outpatient physical therapy service discharging plaintiff because

of a “series of no-shows and cancellations”). 

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The regulations require that all medical opinions be

evaluated, see 20 C.F.R. § 404.1527(b) & (d), and that treating

physician’s opinions be weighed more heavily than consulting or

examining physician’s opinions because treating physicians are

“most able to provide a detailed, longitudinal picture of your

medical impairment(s).” See id. § 404.1527(d); see also Leahy v.

Raytheon Co., 315 F.3d 11, 20 (1st Cir. 2002) (deferring to

treating physician who “have the best opportunity to know and

observe the patient as an individual” (internal quotation

omitted)); Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994)

(explaining weight to be accorded various medical opinions). The

regulations also provide that doctors’ opinions do not determine

whether plaintiff is disabled, but rather the ALJ makes the

disability determination based on all the medical evidence, which

includes non-examining sources such as Dr. Jaffe’s report. See

id. § 404.1512(b)(6) (defining disability evidence as including

the findings made by State agency medical or psychological

consultants) & §§ 404.1520, 404.1527(c) & 404.1527(e) (providing

how the ALJ, not the doctors or consultants, makes the disability

determination). The record demonstrates the ALJ properly weighed

the opinions of the doctors who saw plaintiff in 2006 and 2007,

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as explained below.

First, though plaintiff refers to these doctors as his

treating physicians, the record reveals that plaintiff did not

have a primary care physician or any other medical care provider

that could be understood as having treated him for a sufficient

time period to provide the longitudinal perspective and detailed

knowledge base that a treating physician typically is understood

to have. See Rose, 34 F.3d at 18; see also 20 C.F.R. § 404.1527

(d)(2). The opinions of Drs. Stein, Brewster and Webb, and PAs

Eckelman and Diamond, therefore, were not required to have been

given controlling weight but need only have been accorded that

weight justified by the length, nature and extent of the

treatment relationship. See id. § 404.1527(d)(i) & (ii). 

Second, the ALJ properly discounted these opinions because

not one demonstrated that plaintiff’s back injury had persisted

beyond the requisite 12 month duration period and none supported

the inference that the injury would continue. As discussed

above, the doctors who treated plaintiff were optimistic that he

would fully recover. Although plaintiff again explains that he

does not have current medical evidence of his continuing problems 

because he has not had insurance, his failure to seek treatment

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or to obtain a more recent medical evaluation is not persuasive

for the reasons set forth supra, in section (a).

Third and finally, the record demonstrates that the ALJ

evaluated all of the evidence before deciding whether plaintiff

was disabled. See CR at 9-10 (discussing the findings of Drs.

Stein, Brewster and Webb, and PAs Eckelman and Diamond). The ALJ

found that plaintiff had a severe impairment in the form of

degenerative disc disease of the cervical spine but concluded he

retained the RFC to do the full range of light work. See id. at

11-12. Dr. Jaffe reviewed the medical evidence in plaintiff’s

file and made specific findings about his physical RFC based on

that evidence. See CR at 298-305. Dr. Jaffe’s findings were

consistent with plaintiff’s treatment notes, and were properly

weighted by the ALJ. See 20 C.F.R. § 404.1527(f)(1) & (2)

(providing weight to be given State agency medical consultants

whose “highly qualified” expert opinions inform the decision

about the existence and severity of an impairment). Though

plaintiff argues the record does not substantiate Dr. Jaffe’s

prediction that plaintiff would sustain improvement that would

render him capable of functioning by June 2007, within one year

of his alleged onset date, see Pl.’s Mem. at 13, the record does

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not contain any evidence that contradicts or undermines that

conclusion. Again it was plaintiff’s burden to proffer evidence

of a medically determinable impairment that existed continuously

for at least twelve months, and the record simply contains no

medical evidence beyond the spring of 2007. Dr. Jaffe’s opinion,

therefore, is supported by the record. 

Plaintiff’s second argument for reversal is unpersuasive.

(c) Evaluation of Plaintiff’s Pain

Plaintiff’s final argument contends the ALJ improperly

discredited his complaints of pain which, had they been evaluated

correctly, would have further limited his RFC beyond what the

objective medical evidence established. In support of this

argument, plaintiff asserts that the ALJ did not follow the

analysis set forth in Avery v. Sec’y HHS, 797 F.2d 19 (1st Cir.

1986), and claims that the ALJ did not fully analyze the record,

because 

the ALJ’s explanation revolves primarily around 

Plaintiff’s failure to seek treatment after a

February 9, 2007 office visit at Seacoast Area

Physiatry, which has been previously discussed,

and the issue of the Plaintiff’s symptoms being

out of proportion to the findings, which has 

also been previously discussed.

Pl.’s Mem at 15 (citing CR at 12). Without further elaboration

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22

of this argument, I assume plaintiff intends to assert that his

failure to seek treatment is excusable and his reported pain was

credible. 

Plaintiff’s reports of pain “must be evaluated with due

consideration for credibility, motivation and medical evidence of

impairment.” Santos-Isaac v. Sec’y HHS, No. 95-1227, 1995 WL

522415, *1 (1st Cir. Sept. 6, 1995) (citing Gray v. Heckler, 760

F.2d 369, 374 (1st Cir. 1985)(per curiam)). Pain is a subjective

symptom of an impairment’s severity and so may be relevant to the

ALJ’s disability determination. See 20 C.F.R. § 404.1529(c)

(evaluating intensity and persistence of symptoms to determine

RFC). The ALJ is responsible for resolving issues of credibility

like plaintiff’s alleged pain, and his decision must be upheld

unless it is not supported by substantial evidence. See Ortiz,

890 F.2d at 523 (upholding the ALJ’s assessment of subjective

pain where he has heard the testimony and observed the claimant). 

My review of his decision and the record supporting it leads to

the conclusion that the ALJ followed the Avery guidelines in

evaluating plaintiff’s alleged disabling pain and his credibility

determination is supported by substantial evidence.

 In Avery, the First Circuit identified several factors that

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are relevant to the analysis of alleged disabling pain and about

which the ALJ must obtain information. See id., 797 F.2d at 28. 

Those factors are: the nature, location, onset, duration,

frequency, radiation and intensity of any pain; precipitating and

aggravating factors; type, dosage, effectiveness and adverse

side-effects of any pain medication; treatment, other than

medication, for the pain; functional restrictions; and

descriptions of claimant’s daily activities. See id. at 29; see

also Russell v. Barnhart, No. 03-23-B, 2004 WL 51315, *6 (D.N.H.

Jan 9, 2004), aff’d, 111 Fed.Appx. 26 (1st Cir. 2004) (following

Avery to assess plaintiff’s credibility with respect to his pain

symptoms); 20 C.F.R. § 404.1529 (providing how to evaluate

symptoms, including pain). “In evaluating a claimant’s

subjective complaints of pain, the adjudicator must give full

consideration to all of the available evidence, medical and

other, that reflects on the impairment and any attendant

limitations of function.” Avery, 797 F.2d at 29.

SSR 96-7p elaborates on the Avery factors. See West’s Soc.

Sec. Reporting Serv. - Rulings: 1992-2009 at 133-42 (Supp.

2009). The Ruling provides in relevant part:

Because symptoms, such as pain, sometimes 

suggest a greater severity of impairment than

Case 1:08-cv-00509-JD Document 14 Filed 12/23/09 Page 23 of 31
24

can be shown by objective medical evidence alone,

the adjudicator must carefully consider the 

individual’s statements about symptoms with 

the rest of the relevant evidence in the case

record in reaching a conclusion about the 

credibility of the individual’s statements if

a disability determination or decision that

is fully favorable to the individual cannot be

made solely on the basis of objective medical

evidence. 

Id. at 133-34. A claimant’s medical treatment history can be

considered corroborative evidence of the reported pain. See id.

at 140 (listing evidence that lends support to allegations of

intense and persistent symptoms). Likewise, the failure to

follow prescribed treatment may serve to undermine a claimant’s

alleged pain; however, the adjudicator must first explore whether

there are good reasons for failing to pursue medical treatment. 

See id. 

One justification for not seeking medical care may be the

inability to afford treatment and the lack of access to free or

low-cost medical services. See id. at 141. Many courts have 

followed this directive to conclude that a claimant’s complaints

of pain cannot be discredited based on gaps in the medical record

when the claimant was financially precluded from obtaining needed

care. See e.g. Myles, 582 F.3d at 677 (remanding to explore

whether claimant’s public assistance prevented her from obtaining

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25

the care she needed); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir.

2007) (failing to seek medical treatment when claimant had no

insurance cannot lead to an adverse credibility determination);

Kinney v. Comm’r of Soc. Sec.. 244 Fed.Appx. 467, 470 (3rd Cir.

2007) (excusing failure to seek treatment where physicians did

not accept Medicaid); Miranda v. Barnhart, 205 Fed. Appx. 638,

642 (10th Cir. 2005) (requiring adjudicator to consider proffered

explanation of inability to afford treatment before benefits may

be denied). Plaintiff would like to fall into this line of cases

to explain his lack of medical evidence and reverse the ALJ’s

credibility assessment. The facts here, however, do not show the

type of documented financial barrier that prevented the claimants

in those cases from receiving necessary care. 

Here, plaintiff’s failure to continue prescribed treatment

or seek additional care was not justified for all the reasons set

forth, supra, in subsection (a). To reiterate just a few of the

more compelling facts, plaintiff was referred to a clinic to get

a primary care physician, yet declined to follow that advice. 

Plaintiff also had been accepted into a free medicine program,

but stopped receiving the prescribed drugs because he had not

kept medical appointments. The record reflects that plaintiff

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26

did not pursue any self-help options, in the form of vocational

rehabilitation programs or continuing at home the exercise regime

he presumably would have learned from those physical therapy

sessions he did attend which, had he done, might have given some

credence to his claimed desire to receive help. The evidence

also reflects that he was able to engage in activities, like

simple household chores and socializing with friends, which

required the type of skill set that should have also enabled him

to pursue avenues for free or subsidized care, but there is no

evidence he made any effort to avail himself of such help. The

only evidence in the record of plaintiff’s financial inability to

receive care is his own representation, which, based on the

entire record, the ALJ was free to discredit. See SSR 96-7p,

(gaps in medical evidence can demonstrate the pain did not

warrant continued care).

Since the record does not support the conclusion that

plaintiff’s failure to seek treatment was justified, the lack of

medical evidence supporting his alleged pain was reasonably

interpreted by the ALJ as undermining plaintiff’s credibility. 

The record demonstrates that the ALJ applied the Avery factors to

find plaintiff’s complaints about the persistence and intensity

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27

of his pain were simply not that credible. The record suggests

plaintiff’s injury caused him pain, which in turn precipitated

his depression, which came full circle and aggravated the pain

caused by his injury. See CR at 289 (PA Diamond’s observation

that though his chronic pain appeared disproportionate to his

injury, that pain was probably aggravated by his depression). 

Plaintiff’s problem again, however, is that the record contains

no medical evidence that could be understood as documenting the

“duration, frequency, . . or intensity of any pain,” Avery, 797

F.2d at 29, beyond the spring of 2007. See 20 C.F.R. §

404.1529(a) (requiring medical signs and laboratory findings

which show a medical impairment which could reasonably produce

the reported pain). The record also shows that since April 2007

plaintiff has not taken regular medication for his mental health

needs, despite having adjusted his medication and having found an

effective drug. See CR at 140 & 142; see also Avery, 797 F.2d at

29 (type, dosage and effectiveness of medication must be

assessed). Without this medication, plaintiff claims he became

more depressed. CR at 140. 

He reported on May 29, 2007 that since the spring and summer

Case 1:08-cv-00509-JD Document 14 Filed 12/23/09 Page 27 of 31
6The record is unclear whether plaintiff meant 2006 or 2007. 

28

of 20076, his pain had progressively gotten worse in his back,

neck and hip, which was preventing him from working and which, in

turn, aggravated his depression because he was unable to help his

wife financially. Id. Though plaintiff testified that his ADLs

were becoming more limited, to include only minimal personal

hygiene activities, napping more frequently, and driving with his

wife, the record fairly consistently showed that he had done

little since early 2007 to help himself despite retaining the

ability to engage in a variety of ADLs. See e.g. at 142-43

(admission that he had not participated in any vocational

programs or used any other employment services to help him get

back to work) & 105-11 (plaintiff’s description of his ADLs). 

All this evidence is in the record which the ALJ reviewed. See

Avery, 797 F.2d at 29 (requiring ALJ to assess precipitating and

aggravating factors and ADLs). 

There is no other evidence in the record that plaintiff

sought treatment for his depression or pursued any course of

treatment that had been prescribed. The only additional evidence

of plaintiff’s pain are his own report and testimony. He claimed

in February 2008, see CR at 146-51, that his condition had

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29

deteriorated:

I am in pain all the time now. The physical

therapist that I was seeing told me to lay 

down when I am in pain, but if I lay down too

long, I get stiff and can’t move. My back 

hurts so much now that even my back pillow

does not help.

Id. at 147. He also reported that he was taking ibuprofen and

muscle relaxers for the pain and that his ADLs were now further

limited to exclude all driving and many household chores like

shoveling or vacuuming. Id. at 148-49. Yet plaintiff still had

not seen nor had any plans to see a doctor, hospital, clinic or

anyone else or had any testing done to monitor or treat his

physical and mental conditions. Id. at 147. 

The failure to seek treatment for this allegedly disabling

pain, particularly where plaintiff had responded favorably to the

physical therapy and prescribed medications, undermines his

credibility about the severity of his pain. See Avery, 797 F.2d

at 29 (including in the credibility assessment the treatment or

medication sought for pain relief); see also Russell, 111

Fed.Appx. at 27 (failing to follow treatment contradicts

subjective complaints of pain); Parra v. Astrue, 481 F.3d 742,

750-51 (9th Cir. 2007) (inferring pain was not as all-disabling

as claimed where conservative treatment like physical therapy and

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30

anti-inflammatory medication was not followed). Plaintiff’s

“statements about his pain or other symptoms will not alone

establish that [he is] disabled.” See 20 C.F.R. § 404.1529(a). 

He was required to prove he had a medically determinable

impairment, and he was required to proffer evidence of medical

signs that showed he had an “impairment which could reasonably be

expected to produce the pain . . . alleged.” Id. Plaintiff has

not carried his burden of proof. On this record, the ALJ’s

finding that the plaintiff’s reported symptoms of pain were not

wholly credible is supported by substantial evidence and must be

upheld. See Ortiz, 890 F.2d at 523. 

Conclusion

For the reasons set forth above, I recommend that

plaintiff’s motion to reverse (document no. 9) be denied and

defendant’s motion to affirm (document no. 12) be granted.

Any objections to this report and recommendation must be

filed within fourteen (14) 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.

Case 1:08-cv-00509-JD Document 14 Filed 12/23/09 Page 30 of 31
31

1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 23, 2009 

cc: D. Lance Tillinghast, Esq.

 Robert J. Rabuck, Esq.

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