UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Nicholas R. Zyla,

Claimant

v. Civil No. 08-cv-86-SM

Opinion No. 2009 DNH 052

Michael J. Astrue,

Commissioner, Social

Security Administration,

Respondent

O R D E R

Pursuant to 42 U.S.C. § 405(g), claimant, Nicholas R. Zyla,

moves to reverse the Commissioner’s decision denying his

application for Social Security disability insurance benefits

under Title II of the Social Security Act, 42 U.S.C. § 423, and

asks the court to remand the case. The Commissioner, in turn,

moves for an order affirming his decision. For the reasons given

below, the decision of the Commissioner is affirmed.

Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power to enter, upon

the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without

remanding the cause for a rehearing. The findings of

the Commissioner of Social Security as to any fact, if

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2

supported by substantial evidence, shall be conclusive

. . .

42 U.S.C. § 405(g). However, the court “must uphold a denial of

social security disability benefits unless ‘the [Commissioner]

has committed a legal or factual error in evaluating a particular

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

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

As for the statutory requirement that the Commissioner’s

findings of fact be supported by substantial evidence, “[t]he

substantial evidence test applies not only to findings of basic

evidentiary facts, but also to inferences and conclusions drawn

from such facts.” Alexandrou v. Sullivan, 764 F. Supp. 916, 917-

18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727, 730

(2d Cir. 1966)). In turn, “[s]ubstantial evidence is ‘more than

[a] mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.’” Currier v. Sec’y of HEW, 612 F.2d 594, 597 (1st

Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)). Finally, when determining whether a decision of the

Commissioner is supported by substantial evidence, the court must

“review[] the evidence in the record as a whole.” Irlanda Ortiz

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1 “It is the responsibility of the [Commissioner] to

determine issues of credibility and to draw inferences from the

record evidence. Indeed, the resolution of conflicts in the

evidence is for the [Commissioner], not the courts.” Irlanda

Ortiz, 955 F.2d at 769 (citations omitted). Moreover, the court

“must uphold the [Commissioner’s] conclusion, even if the record

arguably could justify a different conclusion, so long as it is

supported by substantial evidence.” Tsarelka v. Sec’y of HHS,

842 F.2d 529, 535 (1st Cir. 1988). 

2 Zyla worked as a subcontractor/taxicab driver from January

through March, 2004, but the Administrative Law Judge who ruled

on Zyla’s 2003 application found that work not to qualify as

3

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

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

Background

The parties have submitted a Joint Statement of Material

Facts (document no. 17). That statement is part of the court’s

record, and will be summarized, rather than repeated in full.

Based on an application filed on April 18, 2003, which is

not at issue, Zyla was awarded disability insurance benefits for

a closed period of disability beginning on August 2, 2002, and

ending on October 31, 2003, when he returned to work. Claimant

worked until at least April 1, 2004 (Administrative Transcript

(“Tr.”) at 87), but the parties agree that he had ceased engaging

in substantial gainful activity by January 1 of that year, the

claimed onset date for the alleged disability in this case (Jt.

Statement of Material Facts (“Jt. Statement”) at 2).2 From

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substantial gainful activity. (See Tr. at 22.) There is also

some suggestion that “in April 2004, the claimant became an

independent contractor after leasing a car.” (Tr. at 21.)

4

August, 2006, through November 29, 2006, the date of his hearing

before the Administrative Law Judge (“ALJ”), Zyla worked as a

project manager for an HVAC company. (Tr. at 232.) The record

is unclear as to whether Zyla engaged in substantial gainful

activity between the end date of his claimed period of disability

(April 13, 2006) and August, 2006, when he began his HVAC work.

On January 17, 2005, more than twelve months after Zyla’s

claimed onset date, he saw Dr. Michael Cooney of the Palm Beach

Orthopaedic Institute, complaining of right shoulder pain, right

knee pain, neck pain, and left arm weakness. Based upon a

physical examination and x-rays of Zyla’s shoulder, neck, and

knees, Dr. Cooney assessed Zyla as having a right rotator-cuff

tear; bilateral knee osteoarthritis, status-post anterior

cruciate ligament reconstruction; and a significant post-surgical

radicular problem from a laminectomy at C5-6 and C6-7. 

Subsequent MRIs disclosed multilevel degenerative changes to the

cervical spine, posterior disc bulges at several levels, a rightof-midline disc herniation at the C4-5 level, marked thinning of

the rotator cuff with a full-thickness tear and degenerative

changes in the acromioclavicular joint without clear impingement

on the subjacent rotator cuff. After a second examination,

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5

conducted ten days after the first one, Dr. Cooney opined that

Zyla had a complex myriad of orthopaedic problems causing a

significant amount of chronic pain. More specifically, he

diagnosed Zyla as having a right rotator-cuff tear with

retraction, right C5 cervical radiculopathy secondary to a

herniated nucleus pulposus at C4-5, a fairly complete left C7

nerve injury status-post surgical decompression and cervical

laminectomy, and right knee osteoarthritis status-post anterior

cruciate ligament reconstruction with residual laxity.

Based upon his examinations, Dr. Cooney wrote that Zyla was

not healthy enough to undertake any kind of employment, as he

was, in Cooney’s view, completely disabled. Dr. Cooney

prescribed Percocet and also recommended that Zyla: (1) pursue a

disability claim with the federal government; (2) make

arrangements to be evaluated for chronic pain management; and (3)

return for a follow-up appointment. There is no evidence in the

record that Zyla arranged for a pain-management evaluation or

returned for a follow-up appointment with Dr. Cooney.

On April 25, 2005, Zyla filed the application for benefits

that gives rise to this case. On June 29, Zyla was given an

independent medical evaluation by Dr. Alvin Barber, a

consultative physician. In addition, Physical Functional

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6

Capacity Assessments, based solely on the records, were completed

on July 6 and December 12.

Dr. Barber’s impression of Zyla was that he suffered from

chronic pain in both knees, chronic pain in the right rotator

cuff, and chronic pain with radiculopathy in the cervical spine. 

He further reported that Zyla could be limited in walking and

standing for long periods of time due to decreased range of

motion in the upper extremities, lower extremities, and back

caused by pain and tight muscles; that he could be limited in

lifting and carrying heavy objects, crawling, squatting, and

kneeling; and that his symptoms could limit him in activities

that require the use of upper-body movements and coordinated

activities with hands.

According to the first non-examining state-agency physician,

Zyla could: lift and/or carry twenty pounds occasionally and ten

pounds frequently, stand and/or walk for about six hours in an

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

workday. That physician also opined that claimant had occasional

postural limitations, but no other limitations.

According to the second non-examining state-agency

physician, Zyla could: lift and/or carry twenty pounds

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7

occasionally and ten pounds frequently, stand and/or walk for

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

hours in an eight-hour workday. That physician also opined that

claimant had limitations in his ability to push and/or pull with

his upper and lower extremities and had occasional postural

limitations, but no other limitations.

After conducting a hearing at which claimant was

represented, albeit by a non-attorney, the ALJ issued a decision

which included the following findings:

3. The claimant has the following severe impairments:

degenerative joint disease of the knees, status-post

surgeries; right rotator cuff injury, status-post

surgery; cervical spondylosis, status-post surgery;

multi-level degenerative disc disease of the lower

back; and chronic pain syndrome (20 CFR 404.1520(c)). 

. . . .

4. The claimant does not have an impairment or

combination of impairments that meets or medically

equals one of the listed impairments in 20 CFR Part

404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

404.1525 and 404.1526).

. . . .

5. After careful consideration of the entire record,

the undersigned finds that from his alleged onset date

of January 2004 the claimant has had the residual

functional capacity to perform at least a full range of

light work. Light work is defined as work which

involves lifting up to 20 pounds at a time, frequently

lifting or carrying of object[s] weighing up to 10

pounds, walking or standing of up to six hours in an

eight-hour workday, or some pushing and pulling of arm

or leg controls (20 CFR 404.1567).

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8

The claimant has the ability to lift and/or carry 10

pounds frequently and 20 pounds occasionally and sit,

stand and/or walk for approximately six hours in an

eight-hour workday with normal breaks. The claimant

has also had the ability to perform functions that

involve limited pushing and/or pulling with upper and

lower extremities and occasional reaching, climbing,

balancing, and stooping. The claimant would need to

avoid any activities that involve repetitive overhead

reaching, particularly on the right, and/or any

functions that involve crawling, squatting, and/or

kneeling.

. . . .

6. The claimant is capable of performing past relevant

work as limousine/taxicab driver. This work does not

require the performance of work-related activities

precluded by the claimant’s residual functional

capacity (20 CFR 404.1565).

. . . .

7. The claimant has not been under a disability, as

defined in the Social Security Act, from January 1,

2004, through the date of this decision (20 CFR

404.1520(f)).

(Tr. 22-27).

Discussion

Claimant argues that the ALJ’s decision should be reversed,

and the case remanded, because the ALJ: (1) adjudicated a period

of disability beyond the period he claimed at the hearing; (2)

failed to give adequate weight to his treating physician’s

opinion and failed to explain why he rejected it; (3) found that

he had a capacity for light work; (4) determined that his

capacity for light work qualified him to perform his past

relevant work as a limousine/taxi driver; and (5) failed to

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9

consider his psychiatric impairments and their likely impact on

his ability to engage in any substantial gainful activity.

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under a

disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question in

this case is whether claimant was under a disability during the

period for which he seeks benefits.

For the purpose of determining eligibility for disability

insurance benefits, 

[t]he term “disability” means . . . 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.

42 U.S.C. § 423(d)(1)(A). 

In order to determine whether a claimant is disabled for the

purpose of determining eligibility for disability insurance

benefits, an ALJ is required to employ a five-step process. See

20 U.S.C. §§ 404.1520.

The steps are: 1) if the [claimant] is engaged in

substantial gainful work activity, the application is

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10

denied; 2) if the [claimant] does not have, or has not

had within the relevant time period, a severe

impairment or combination of impairments, the

application is denied; 3) if the impairment meets the

conditions for one of the “listed” impairments in the

Social Security regulations, then the application is

granted; 4) if the [claimant’s] “residual functional

capacity” is such that he or she can still perform past

relevant work, then the application is denied; 5) if

the [claimant], given his or her residual functional

capacity, education, work experience, and age, is

unable to do any other work, the application is

granted.

Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20

C.F.R. § 416.920, which outlines the same five-step process as

the one prescribed in 20 C.F.R. § 1520).

The claimant bears the burden of proving that he is

disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). He

must do so by a preponderance of the evidence. See Mandziej v.

Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.

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

In assessing a disability claim, the [Commissioner]

considers objective and subjective factors, including:

(1) objective medical facts; (2) plaintiff’s subjective

claims of pain and disability as supported by the

testimony of the plaintiff or other witness; and (3)

the plaintiff’s educational background, age, and work

experience.

Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797

F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690 F.2d

5, 6 (1st Cir. 1982)).

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11

A. The Period of Disability

Claimant objects, in part, to the ALJ’s determination that

he was not under a disability from January 1, 2004, through April

11, 2007. According to claimant, he sought benefits for a closed

period of disability ending on March 13, 2006, and thus, never

litigated the question of his disability at any time after that

date. In claimant’s view, the ALJ’s decision should be vacated

to the extent it includes findings pertaining to the period from

March 14, 2006, through April 11, 2007. The Commissioner

counters that there is no need to vacate the ALJ’s finding that

claimant was not disabled during that period because he returned

to full-time work on March 14, 2006.

This issue is somewhat puzzling. Presumably, claimant seeks

to avoid some future application of res judicata. On the other

hand, if he did, indeed, work full time from March 14, 2006,

through April 11, 2007, it is difficult to see how he could get

past step one of the five-step process. See Seavey, 276 F.3d at

5 (“if the [claimant] is engaged in substantial gainful work

activity, the application is denied”). But, then again, it is

difficult to see why the Commissioner is opposed to vacating that

portion of the ALJ’s finding pertaining to the disputed period. 

And, the issue is further complicated by ambiguity in the record

concerning claimant’s activity during that period. While the

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3 Claimant mischaracterizes the ALJ’s decision. The ALJ did

not “cite[ ] the lack of medical treatment as the catalyst for .

. . relying heavily on the State agency medical consultant.” 

12

Commissioner asserts that claimant “was working full-time after

March 13, 2006” (Comm’r’s Mem. of Law, at 4), and the ALJ

referred to a “return to work activity beginning March 14, 2006”

(Tr. at 22), the hearing transcript indicates that claimant began

his job as an HVAC project manager in August, 2006, and that he

was doing something else up through July, 2006. What, exactly,

he was doing, is unclear, and given the history, in this case, of

“work activity [that] did not constitute substantial gainful

activity” (Tr. at 22), there is no basis for concluding that

claimant’s work activity between March 14 and the end of July,

2006, would necessarily preclude a determination that he was

disabled during that period. All things considered, the best

course is to vacate the ALJ’s decision in part, limiting his

factual finding concerning claimant’s disability to the closed

period of disability that was actually claimed and litigated.

B. Consideration of the Treating Physician’s Opinion

Claimant argues that the ALJ erred by failing to give

adequate weight to his treating physician’s medical opinion, by

failing to explain his rejection of that opinion, and by citing

the lack of medical treatment as the reason for his reliance upon

the reports of a state-agency medical consultant.3 The

Case 1:08-cv-00086-SM Document 18 Filed 04/06/09 Page 12 of 26
(Cl.’s Mem. of Law, at 4.) Rather, the ALJ identified “the

absence of regular treating physician records or reports” (Tr. at

26), as the reason for having claimant evaluated by a

consultative examiner. Regarding claimant’s lack of treatment,

the ALJ considered that as a factor bearing on the credibility of

claimant’s allegations of disabling pain. (Id.) 

Claimant further argues that the ALJ erred by failing to

inquire into the reasons for his lack of medical treatment,

averring that had the ALJ done so, “he would have found that

[claimant’s] lack of treatment was justifiable and would not have

used the lack of treatment against him.” (Id.) Even now,

however, claimant does not indicate what justification he would

have given the ALJ, and does not indicate why his representative

at the hearing was unable to inquire into that matter.

13

Commissioner counters that: (1) Dr. Cooney does not qualify as a

treating physician; (2) the ALJ did consider Dr. Cooney’s medical

opinions; (3) Dr. Cooney’s opinion that claimant was unable to

work is not a medical opinion but, rather, an opinion on an issue

reserved to the Commissioner; and (4) the ALJ was entitled to

consider claimant’s lack of treatment as evidence that his

symptoms were not as severe as he alleged.

Claimant’s principal argument is that the ALJ failed to

properly consider the following statement by Dr. Cooney: “I

don’t think [claimant] is confident enough or healthy enough to

undergo any type of employment at this point.” (Tr. at 164.) 

Dr. Cooney also stated: “I believe him to be 100% disabled.” 

(Id.)

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14

As a general rule, when considering medical opinions, an ALJ

should 

give more weight to opinions from . . . treating

sources, since these sources are likely to be the

medical professionals most able to provide a detailed,

longitudinal picture of [a claimant’s] medical

impairment(s) and may bring a unique perspective to the

medical evidence that cannot be obtained from the

objective medical findings alone or from reports of

individual examinations, such as consultative

examinations or brief hospitalizations.

20 C.F.R. § 404.1527(d)(2). Medical opinions from treating

sources may even be given controlling weight. See id. Moreover,

an ALJ is obligated “always [to] give good reasons in [his] . . .

decision for the weight [he] gives [a claimant’s] treating

source’s opinion.” Id. 

The term “medical opinions” refers to “statements from

physicians and psychologists or other acceptable medical sources

that reflect judgments about the nature and severity of [a

claimant’s] impairment(s), including [the claimant’s] symptoms,

diagnosis and prognosis, what [the claimant] can still do despite

impairment(s), and [the claimant’s] physical or mental

restrictions.” 20 C.F.R. § 404.1527(a)(2). But, the category of

“medical opinions” does not include a medical source’s statement

that a claimant is “disabled” or “unable to work.” See 20 C.F.R.

§ 404.1527(e)(1). Rather, such a statement addresses an issue

Case 1:08-cv-00086-SM Document 18 Filed 04/06/09 Page 14 of 26
15

reserved to the Commissioner, and the ALJ need “not give any

special significance” to it. See 20 C.F.R. § 404.1527(e)(3). 

Here, the statement by Dr. Cooney on which claimant relies

is not a medical opinion; it is a statement about an issue

reserved to the Commissioner. Thus, the ALJ was not obligated to

give it any weight, or explain the reasons for giving it the

weight he did. See Arroyo v. Sec’y of HHS, 932 F.2d 82, 89 (1st

Cir. 1991) (“The ALJ was not required to accept the conclusions

of claimant’s treating physicians on the ultimate issue of

disability.”) And, as the Commissioner correctly observes, the

ALJ did consider the medical opinions offered by Dr. Cooney. Dr.

Cooney’s assessment of claimant’s physical condition is fully and

accurately described in the ALJ’s decision (see Tr. at 23), and

the ALJ’s findings concerning claimant’s impairments appear to be

consistent with Dr. Cooney’s medical assessment (see id. at 22-

23).

In sum, the ALJ committed no error in his consideration of

Dr. Cooney’s medical opinions and other statements.

C. Capacity for Light Work

Claimant argues that the ALJ erroneously found that he had a

residual functional capacity (“RFC”) to perform light work

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4 Claimant offers no legal support for his argument that

“[a]ny reliance on Dr. Barber’s report for the proposition that

Mr. Zyla had a light work capacity is erroneous and unfounded.” 

(Cl.’s Mem. of Law, at 5.) 

16

because the ALJ: (1) disregarded Dr. Cooney’s opinion that he was

totally disabled; (2) relied on Dr. Barber’s report, which did

not give him a work capacity of any type; (3) relied on opinions

of non-examining physicians that are not supported by his

treatment records; and (4) failed to adequately develop the

record on the issue of his credibility. The Commissioner

counters that his RFC determination was supported by substantial

evidence, and that he properly considered claimant’s credibility.

As explained above, the ALJ committed no error in his

consideration of Dr. Cooney’s statement that claimant was totally

disabled. Moreover, given the ALJ’s obligation to consider all

the evidence in the record when determining claimant’s RFC, see

20 C.F.R. 404.1545(a)(1), (3), it is difficult to see how he

could be faulted for considering Dr. Barber’s report in reaching

his conclusion on claimant’s RFC.4 Regarding the ALJ’s reliance

on the opinions of the non-examining physicians, claimant is

factually incorrect when he asserts that those physicians ignored

Dr. Cooney’s opinion; the July 6, 2005, RFC assessment expressly

mentioned claimant’s office visit with Dr. Cooney. (See Tr. at

183.) 

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17

Further, while claimant argues that the opinions presented

in the RFC assessments are not supported by his treatment

records, it is not at all clear that Dr. Cooney’s notes qualify

as “treatment records,” given that Dr. Cooney’s “treatment”

consisted of two physical examinations, performed ten days apart,

a set of x-rays, a set of MRIs, and a set of recommendations with

no documented follow-up. That is, Dr. Cooney’s “treatment

relationship” with claimant is more like an individual

examination than a relationship that could “provide a detailed,

longitudinal picture of [claimant’s] medical impairments” and

“bring a unique perspective to the medical evidence that cannot

be obtained from the objective medical findings alone or from

reports of individual examinations . . .” 20 C.F.R. §1526(d)(2). 

Moreover, claimant does not identify any aspect of Dr. Cooney’s

“treatment records” that does not support the RFC determination

other than his statement about total disability. But, again,

that statement is entitled to no weight.

Claimant’s argument concerning the ALJ’s credibility

determination is also unavailing. According to claimant, the ALJ

failed to properly develop the record on his credibility. 

Claimant is mistaken.

Case 1:08-cv-00086-SM Document 18 Filed 04/06/09 Page 17 of 26
5 “A symptom is an individual’s own description of his or

her physical or mental impairment(s).” SSR 96-7p, 1996 WL

374186, at *2.

18

According to Social Security Ruling (“SSR”) 96-7p, 1996 WL

374186 (S.S.A.), “an individual’s statement(s) about his or her

symptoms5 is not in itself enough to establish the existence of a

physical or mental impairment or that the individual is

disabled.” Id. at *2. When “symptoms, such as pain, fatigue,

shortness of breath, weakness, or nervousness,” id., are alleged,

SSR 96-7p prescribes a two-step evaluation process:

* First, the adjudicator must consider whether

there is an underlying medically determinable physical

or mental impairment(s) – i.e., an impairment(s) that

can be shown by medically acceptable clinical and

laboratory diagnostic techniques – that could

reasonably be expected to produce the individual’s pain

or other symptoms. . . . If there is no medically

determinable physical or mental impairment(s), or if

there is a medically determinable physical or mental

impairment(s) but the impairment(s) could not

reasonably be expected to produce the individual’s pain

or other symptoms, the symptoms cannot be found to

affect the individual’s ability to do basic work

activities.

* Second, once an underlying physical or mental

impairment(s) that could reasonably be expected to

produce the individual’s pain or other symptoms has

been shown, the adjudicator must evaluate the

intensity, persistence, and limiting effects of the

individual’s symptoms to determine the extent to which

the symptoms limit the individual’s ability to do basic

work activities. For this purpose, whenever the

individual’s statements about the intensity,

persistence, or functionally limiting effects of pain

or other symptoms are not substantiated by objective

medical evidence, the adjudicator must make a finding

on the credibility of the individual’s statements based

on a consideration of the entire case record.

Case 1:08-cv-00086-SM Document 18 Filed 04/06/09 Page 18 of 26
19

Id. In addition:

When additional information is needed to assess

the credibility of the individual’s statements about

symptoms and their effects, the adjudicator must make

every reasonable effort to obtain available information

that could shed light on the credibility of the

individual’s statements. In recognition of the fact

that an individual’s symptoms can sometimes suggest a

greater level of severity of impairment than can be

shown by the objective medical evidence alone, 20 CFR

404.1529(c) and 416.929(c) describe the kinds of

evidence, including the factors below, that the

adjudicator must consider in addition to the objective

medical evidence when assessing the credibility of an

individual’s statements:

1. The individual’s daily activities;

2. The location, duration, frequency, and

intensity of the individual’s pain or other

symptoms;

3. Factors that precipitate and aggravate the

symptoms;

4. The type, dosage, effectiveness, and side

effects of any medication the individual takes or

has taken to alleviate pain or other symptoms;

5. Treatment, other than medication, the

individual receives or has received for relief of

pain or other symptoms;

6. Any measures other than treatment the

individual uses or has used to relieve pain or

other symptoms (e.g., lying flat on his or her

back, standing for 15 to 20 minutes every hour, or

sleeping on a board); and

7. Any other factors concerning the individual’s

functional limitations and restrictions due to

pain or other symptoms.

Id. at *3.

Case 1:08-cv-00086-SM Document 18 Filed 04/06/09 Page 19 of 26
20

Here, it is evident from the ALJ’s decision that he followed

the two-step process set out in SSR 96-7p, and considered the

seven factors described therein. Claimant – who was represented

at the hearing – criticizes the ALJ for failing to pose questions

concerning the SSR 96-7p factors during the hearing. But the

decision demonstrates that the ALJ used claimant’s written

statements to make findings on many of those factors. Moreover,

claimant does not say what testimony he would have offered if the

ALJ had questioned him on the SSR 96-7p factors. See Born v.

Sec’y of HHS, 923 F.2d 1168, 1172 (6th Cir. 1990) (noting, in

decision affirming determination of non-disability over argument

that ALJ failed to properly develop the record, that “claimant .

. . failed to suggest what other information could have been

brought forth by further questioning of him which would have

enhanced a determination of disability”). Finally, while

claimant criticizes the ALJ for conducting a hearing that lasted

only eleven minutes, the ALJ concluded the hearing by asking

claimant whether he had anything else to add to the record, and

his representative responded: “Nothing else, Your Honor.” In

other words, claimant himself, through his representative, had

the opportunity to provide the ALJ with the (unidentified)

information he claims the ALJ failed to elicit, but he did not do

so. Accordingly, claimant’s argument that the ALJ failed to

properly develop the record is not persuasive.

Case 1:08-cv-00086-SM Document 18 Filed 04/06/09 Page 20 of 26
6 If the ALJ had found claimant unable to perform his past

relevant work, he would not have found claimant disabled; he

would have gone on to determine whether claimant was able to do

any other work. See Seavey, 276 F.3d at 5.

21

Because the ALJ’s finding that claimant had the residual

functional capacity to perform light work is supported by

substantial evidence, in the form of the two RFC assessments, it

must stand as conclusive. See 42 U.S.C. § 405(g).

D. Capacity to Perform Past Relevant Work

Claimant argues that once the ALJ found him capable of

performing light work, the ALJ erred by finding that he had the

residual functional capacity to perform his past relevant work as

a limousine driver because that job is classified as medium

exertional job in the Dictionary of Occupational Titles. He also

contends that the ALJ failed to follow the mandate of SSR 82-62

and fully develop the record concerning the physical and mental

demands of his past work as a limousine driver. According to

claimant: “If the ALJ had addressed these issues he would have

noted that the past relevant work requires medium exertion as

stated in the Dictionary of Occupational Titles. Had the ALJ

noted that Mr. Zyla’s past relevant work is classified as medium

exertion the ALJ would have found Mr. Zyla disabled.”6 (Cl.’s

Mem. of Law, at 8.) The Commissioner counters that claimant

failed to carry his burden of showing how his functional

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22

limitations rendered him incapable of performing his past

relevant work, because his own description of limousine driving,

as he performed it, demonstrates his ability to perform that job.

At step four of the five-step process, claimant had the

burden of showing that he was unable to do his past relevant

work. See Seavey, 276 F.3d at 5. Moreover, “[t]he claimant is

the primary source for vocational documentation, and statements

by the claimant regarding past work are generally sufficient for

determining the skill level, exertional demands, and nonexertional demands of such work.” Santiago v. Sec’y of HHS, 944

F.2d 1, 5 (1st Cir. 1991). Here, the record before the ALJ

included information from claimant himself indicating that when

he worked as a limousine driver, the heaviest weight he lifted

was less than ten pounds, and the amount he frequently lifted was

less than ten pounds. (Tr. at 88.) He also indicated that he

did no walking, standing, climbing, stooping, kneeling,

crouching, crawling, handling of big objects, reaching or

writing. (Id.) While the DOT classifies limousine driving as

medium work, the ALJ had better evidence before him, see

Santiago, 944 F.2d at 5, claimant’s own characterization of

limousine driving, as he performed that job. Given the ALJ’s

properly supported finding that claimant was capable of light

work, and claimant’s own characterization of limousine driving as

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23

light work, there was substantial evidence before the ALJ that

claimant was capable of performing his former job as he actually

performed it, and thus, was not disabled. See Santiago, 944 F.2d

at 5. Because the ALJ’s finding is supported by substantial

evidence, it must stand as conclusive. See 42 U.S.C. § 405(g).

E. Consideration of Claimant’s Psychiatric Conditions

Finally, claimant argues that the ALJ ignored his long

history of treatment for depression, and failed to properly

evaluate the limitations imposed on his ability to work by his

psychiatric condition. The Commissioner counters that the ALJ

properly considered claimant’s mental impairment and found it not

to be severe.

Zyla received mental-health treatment from the Mental Health

Center of Greater Manchester from April 1, 2003, through January

2, 2004, the day after the onset date of the period of disability

he now claims. He was treated for major depressive disorder,

single episode, moderate; opioid abuse; and alcohol dependence in

sustained partial remission. On January 2, Zyla’s mental-healthcare provider noted: “Nick states he is doing fairly well –

feels that stopping all psychotropics has been [positive] – feels

more energy, return of sex drive. He is working many hours/week

for Limo Co – airport service.” (Tr. at 100.) The provider

Case 1:08-cv-00086-SM Document 18 Filed 04/06/09 Page 23 of 26
7 Claimant also reported that “he [was] not taking any pain

meds, either.” (Tr. at 100.)

24

further noted: “He desires to resume counseling, about monthly,

he states. Does not wish to resume medications.”7 (Id.) The

record includes no evidence of any mental-health treatment after

January 2, 2004.

On July 1, 2005, Zyla received a “general clinical

evaluation with mental status” from Dr. Malcolm J. Graham, III, a

clinical psychologist. Regarding Zyla’s functional ability, Dr.

Graham reported: “During his evaluation, there were no problems

noted in his attention or concentration or in his recent or

remote memory. There are no behavior[al] indications of anxiety,

depression or thought disorder.” (Tr. at 180.) The record also

includes psychiatric review technique forms completed by nonexamining psychologists on July 19, and November 9, 2005. With

regard to Zyla’s functional limitations, both psychologists

reported mild restrictions of activities of daily living, mild

difficulties in maintaining social functioning, mild difficulties

in maintaining concentration, persistence, or pace, and no

episodes of decompensation of extended duration. (Tr. at 160,

200.) 

Case 1:08-cv-00086-SM Document 18 Filed 04/06/09 Page 24 of 26
25

Based upon the reports of Dr. Graham and the two nonexamining psychologists, the ALJ found that “[t]he claimant’s

psychiatric impairment . . . does not significantly limit the

claimant’s ability to perform basic work activities and,

therefore, is considered not ‘severe.’” (Tr. at 24.) The ALJ’s

findings are supported by substantial evidence, and are based

upon a correct application of 20 C.F.R. § 404.1520a(d)(1). While

the record contains considerable documentation of claimant’s

mental-health treatment in 2003, that information was not

relevant to the question before the ALJ, which was claimant’s

functional capacity during his claimed period of disability,

which began one day after claimant’s last documented contact with

a mental-health-care provider. Accordingly, claimant’s

observation that the ALJ failed to consider any records of his

pre-onset mental-health treatment is not significant. The ALJ

did acknowledge claimant’s 2003 diagnosis and treatment in his

decision. (See Tr. at 10.) To restate, the ALJ’s finding that

claimant’s psychiatric impairment did not significantly limit his

ability to perform basic work activities is supported by

substantial evidence, and must, therefore, stand as conclusive. 

See 42 U.S.C. § 405(g).

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Conclusion

For the reasons given, claimant’s motion to reverse and

remand (document no. 15) is denied, and the Commissioner’s motion

for an order affirming the ALJ’s decision (document no. 16) is

granted. The clerk of the court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

April 6, 2009

cc: Maureen R. Manning, Esq.

Gretchen L. Witt, Esq.

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