Gendel v. Astrue

Filing 21

MEMORANDUM DECISION AND ORDER. The decision of the Commissioner is AFFIRMED and this action is DISMISSED in its entirety with prejudice. Signed by Judge Larry M. Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
FRED L. GENDEL,
Petitioner,
Case No. 2:11-CV-00106-LMB
v.
MEMORANDUM DECISION AND
ORDER

MICHAEL J. ASTRUE,
Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court is Fred Gendel’s Petition for Review (Dkt. 1).
He seeks judicial review to set aside the final decision of the Commissioner’s denial of
his claim for Disability Insurance Benefits under Title II of the Social Security Act.
Gendel brings this action pursuant to 42 U.S.C. §§ 405(g), 1383(c).
Having carefully reviewed the record, and being otherwise fully advised, the Court
enters the following Memorandum Decision and Order.

MEMORANDUM DECISION AND ORDER - 1

ADMINISTRATIVE PROCEEDINGS
On March 3, 2009, Fred Gendel (hereinafter, “Petitioner” or “Claimant”) applied
for disability insurance benefits under Title II of the Social Security Act (the “Act”). (AR
130-31). This is Petitioner’s second application for such benefits.1 (AR 61-77). In this
application, Petitioner alleges disability beginning March 27, 2007, due to degenerative
disc disease of the cervical, thoracic and lumbar spine, cyanosis of the right index finger
and hypertension. (AR 144). The Commissioner denied Petitioner’s initial application,
(AR 78-79), and then again after reconsideration. (AR 80-81). Thereafter, Petitioner filed
a timely request for a hearing before an Administrative Law Judge (“ALJ”). (AR 97).
ALJ Marie Palachuk held a hearing on May 20, 2010, in Spokane, WA. (AR 105-24).
Petitioner appeared personally, and was represented by attorney Mark B. Jones at that
hearing. (AR 21-60). Dr. George W. Wyatt, medical expert, and Deborah Nelson Lapoint,
vocational expert, were also present and testified at that hearing. (AR 21).
On May 26, 2010, the ALJ denied Petitioner’s claim based on a finding that during
the period of the claimed disability, Petitioner “had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except the claimant should kneel,
crawl, and squat only on an occasional basis and should avoid concentrated exposure to
dangerous equipment and industrial vibrations.” (AR 12). Thus, “[c]laimant was capable
of performing past relevant work as a network control operator, data communications
1

Petitioner previously filed for disability benefits in February 2004. That claim was
denied at the hearing level on March 26, 2007. (AR 61-73).
MEMORANDUM DECISION AND ORDER - 2

technician and field engineer” because “this work did not require the performance of any
work-related activities precluded by the claimant’s residual functional capacity (20 CFR
404.1565).” (AR 16).
Petitioner requested the Appeals Council review the ALJ’s decision. (AR 4). The
Appeals Council denied review on March 25, 2008, making the AJL’s decision the final
determination of the Commissioner of Social Security. (AR 1-3).
Having exhausted his administrative remedies, Petitioner timely filed the instant
action requesting that the Commissioner’s determination be reversed or, in the alternative,
that this matter be remanded for an ALJ hearing de novo. (Petition for Review, Dkt. 1 at
2).
BACKGROUND
At the time of the hearing before the ALJ, Petitioner was fifty-seven (57) years
old. (AR 130). Petitioner has a 12th grade education, as well as two years vocational
school training in electronics. (AR 152). Petitioner has past relevant work experience as a
technician in several industries, including as a data communications technician, network
control operator, and field engineer. (AR 155-66). Petitioner states that due to his
disability, he has been unable to perform any of those past job functions. (AR 4).
In her May 26, 2010, decision, the ALJ determined that Petitioner has the
following combination of severe impairments: “degenerative disc disease of the cervical,
thoracic and lumbar spine; cyanosis of the right index finger; and hypertension.” (AR 10).

MEMORANDUM DECISION AND ORDER - 3

However, the ALJ concluded that, in denying his application, Petitioner had not met his
burden of proving that he had been under a disability as defined by the Social Security
Act during the period under consideration. (AR 17).
STANDARD OF REVIEW
It is undisputed that the burden of proof rests upon the Petitioner to establish
entitlement to disability benefits. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). In
evaluating the evidence at an administrative hearing, the ALJ must follow a five-part
sequential process. 20 C.F.R. §§ 404.1520, 416.920 (2005).
If the Commissioner’s decision is supported by substantial evidence and based
upon proper legal standards, then it will be upheld. 42 U.S.C. § 405(g) (2000); Matney ex
rel. Matney v. Sullivan, 921 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914
F.2d 1197, 1200 (9th Cir. 1990). Findings of fact by the ALJ are conclusive if supported
by substantial evidence. 42 U.S.C. § 405(g); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir.
1981). In other words, if there is substantial evidence to support the ALJ’s factual
determinations, they must be upheld, even in the face of conflicting evidence. Hall v.
Sec’y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
Substantial evidence is relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health &
Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). This standard requires “more than a

MEMORANDUM DECISION AND ORDER - 4

scintilla,” but “less than a preponderance,” Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.
1990), and “does not mean a large or considerable amount of evidence,” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a
whole to determine whether it contains evidence that would allow a reasonable mind to
accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; Matney, 981 F.2d at
1019. The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, see
Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984), and drawing
inferences logically flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642
(9th Cir. 1982). When the evidence is susceptible to more than one rational interpretation
in a disability proceeding, the reviewing court may not substitute its judgment or
interpretation of the record for that of the ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler,
754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will only be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis
in law. See id. However, reviewing courts “will not rubber-stamp an administrative
decision that is inconsistent with the statutory mandate or that frustrates the congressional
purpose underlying the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).

MEMORANDUM DECISION AND ORDER - 5

Reviewing courts must bear in mind that the Social Security Act is remedial and should
be construed liberally and “not so as to withhold benefits in marginal cases.” Id. at 1095
(citations omitted).
Finally, the court will not reverse an ALJ’s decision for “harmless error, which
exists when it is clear from the record that the ALJ’s error was ‘inconsequential to the
ultimate . . . determination.’” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006).
The issue presented in the instant appeal is whether the Administrative Law
Judge’s finding that Petitioner was not disabled is supported by substantial evidence and
whether the finding is based on an application of proper legal standards.
SEQUENTIAL PROCESS
When evaluating evidence presented at an administrative hearing, the ALJ must
follow a five-step sequential process in determining whether a person is disabled within
the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. “The burden of proof is on
claimant as to steps one through four[, but] as to step five, the burden shifts to [the]
Commissioner.” Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999).
The first step of the sequential process requires the ALJ to determine whether the
claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so,
Petitioner is not disabled, and benefits are denied. 20 C.F.R. § 404.1520(b). In the instant
action, the ALJ concluded that Petitioner did not perform substantial gainful activity

MEMORANDUM DECISION AND ORDER - 6

“during the period from his alleged onset date of March 27, 2007 through his date last
insured of September 30, 2008 (20 C.F.R. 404.1571 et seq.).” (AR 10).
The second step requires the ALJ to determine whether the claimant’s impairment
or combination of impairments are severe. 20 C.F.R. § 404.1520(a)(4)(ii). If the answer is
in the negative, disability benefits are denied. 20 C.F.R. § 404.1520(c). Here, the ALJ
found that Petitioner has a severe combination of three impairments: “degenerative disc
disease of the cervical, thoracic and lumbar spine; cyanosis of the right index finger; and,
hypertension.” (AR 10-11).
At the third step, the ALJ must determine whether the claimant’s impairments
meet or equal a listed impairment under the 20 C.F.R. Pt. 404, Subpt. P, App. 1. If so, the
claimant is disabled and entitled to disability insurance benefits. 20 C.F.R. § 404.1520(d).
“If the claimant’s impairment neither meets nor equals one of the impairments listed in
the regulations, then the claimant’s case cannot be resolved at step three and the
evaluation proceeds to step four.” Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir.
2006), citing 20 C.F.R. § 404.1520(d). In the instant action, the ALJ concluded that
Petitioner did not have an impairment or combination of impairments that meets, or
medically equals, one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
(AR 11-12).
The fourth step of the evaluation process requires the ALJ to determine whether
the claimant’s residual functional capacity is sufficient for the claimant to perform past

MEMORANDUM DECISION AND ORDER - 7

relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is “not disabled” and
thus not entitled to disability insurance benefits. See 20 C.F.R. § 404.1520(e). “If the
claimant cannot do any work he or she did in the past, then the claimant’s case cannot be
resolved at step four and the evaluation proceeds to the fifth and final step.” Lounsburry,
468 F.3d at 1114. In this regard, the ALJ first concluded that Petitioner “had the residual
functional capacity to perform light work . . . except the claimant should kneel, crawl, and
squat only on an occasional basis and should avoid concentrated exposure to dangerous
equipment and industrial vibrations.” (AR 12). Relying on the testimony of the vocational
expert, the ALJ further concluded that Petitioner was “capable of performing past
relevant work as a network control operator, data communication technician and field
engineer” because “[t]his work did not require the performance of work-related activities
precluded by the claimant’s residual functional capacity.” (AR 16). Accordingly, the ALJ
held that Petitioner “was not under a disability, as defined in the Social Security Act, at
any time from March 27, 2007, the alleged onset date, through September 30, 2008, the
date last insured.” 2 (AR 17).
DISCUSSION
Petitioner challenges the Commissioner’s determination that Petitioner was
capable of performing past relevant work as a network control operator, data
communications technician and field engineer, claiming that petitioner cannot perform

2

Because the case was resolved at step four, the ALJ did not reach step five and so the
court need not consider step five on appeal here.
MEMORANDUM DECISION AND ORDER - 8

these jobs under the determined residual functional capacity. (Petitioner’s Brief, Dkt. 1 at
3.) This Court will not consider the ALJ’s determinations regarding the past relevant
work positions of data communications technician or field engineer because
determinations regarding this past relevant work do not affect the outcome of the case.
Any error is harmless because the ALJ need only determine that Petitioner can perform
some past relevant work in order to deny benefits. Tommasetti v. Astrue, 533 F.3d 1035,
1038 (9th Cir. 2008); See Brawner v. Sec’y of Health & Human Services, 839 F.2d 432,
434 (9th Cir. 1988) (“[Petitioner] contends that the ALJ erred in classifying his past
relevant work as ‘light.’ Even if the ALJ erred in this respect, he also found that
[Petitioner] was able to perform other light work and was therefore not disabled. Any
such error was therefore harmless and establishes no cause for remand.”).3 Thus, this
Court will only consider the network control operator past relevant work.
As such, despite Petitioner’s contentions, this Court finds that the ALJ’s step four
finding that Petitioner could perform his past relevant work as a network control operator
(AR 17) is supported by substantial evidence and is free of legal error.

3

As to the Data Communications Technician, the Respondent concedes that the ALJ
should not have relied on this work because the work is, by definition and as supported by the
vocational expert, (AR 58), at the medium exertion level. This disqualifies the Petitioner from
performing that work pursuant to the ALJ’s residual functional capacity determination of light
exertion work only. (Respondent’s Brief, Dkt. 16 at 8.)
As to the Field Engineer job description, this Court does not make any findings or
conclusions because the ALJ’s determination regarding the network control operator is
controlling and is supported by substantial evidence.
MEMORANDUM DECISION AND ORDER - 9

In making determinations about past relevant work, the claimant is the primary
source for vocational information, but corroborative information from other sources
regarding the requirements of the work as generally performed in the national economy
may also be considered by the ALJ. SSR 82-62, 1982 WL 31386 at *3. A vocational
expert (“VE”) may be called upon to offer expert opinion testimony concerning the
physical and mental demands of a claimant’s past relevant work, either as actually
performed, or as generally performed in the national economy. 20 C.F.R.
§ 404.1560(b)(2). In addition, the Ninth Circuit Court of Appeals has held that “[t]he
DOT4 is ‘the best source for how a job is generally performed.’” Carmickle v.
Commissioner, 533 F.3d 1155, 1166 (9th Cir. 2008), citing Pinto v. Massanari, 249 F.3d
840, 845 (9th Cir. 2001).
Petitioner alleges three errors in the ALJ’s determinations that the Petitioner could
perform the past relevant work of network control operator, DOT No. 031-262-014: (1)
the VE’s testimony erroneously failed to contemplate installation as part of work
requirements, undermining the ALJ’s reliance on that testimony; (2) the work exceeds the
residual functional capacity limitations of kneeling, crawling, and squatting; and (3) the
work is precluded by petitioner's inability to carry items in front of him.

4

U.S. Dep’t of Labor, Dictionary of Occupational Titles, (4th ed. Rev. 1991).

MEMORANDUM DECISION AND ORDER - 10

1. VE’s Testimony Contemplated Installation as Part of Work Requirements
Petitioner first contends that the vocational expert did not contemplate installation
as a component of the network control operator job, thus undermining the testimony of
the VE regarding the exertion level of this work sufficiently to preclude the ALJ from
relying on that testimony. (Petitioner’s Brief, Dkt. 16 at 5). The DOT for network control
operator does, in fact, address the possibility that the position “may coordinate installation
of or install communications lines.” (Ex. 2 to Respondent’s Brief, Dkt. 18). However,
while the VE did state that the network technician does not involve installation of
equipment, the VE continued, stating that if the work does involve installation, “it’s
within the light range.” (AR 58). Thus, the VE not only provided for the possibility of
installation requirements, but she further opined that any possible installation
responsibilities were within the light range. This testimony comports with the holding of
the ALJ that the Petitioner could perform the network operations controller work because
it is a light exertion level job. Thus, the ALJ could rely on this evidence to support the
conclusion that Petitioner could perform this work.
2. Work Does Not Exceed the Residual Functional Capacity Limitations
Petitioner next contends that even if the test equipment used in this work is in the
light exertion range, the work cannot be done without exceeding the residual functional
capacity limitation to occasional kneeling, crawling, and squatting. (Petitioner’s Brief,
Dkt. 16 at 5). The DOT identifies the physical, mental, and environmental requirements

MEMORANDUM DECISION AND ORDER - 11

of the work. (Ex. 2 to Respondent’s Brief, Dkt. 18). Network control operator work
requires kneeling only occasionally; crouching5 is not present,and crawling is not present.
Id. The ALJ relied on the DOT report and the VE’s testimony in determining that
Petitioner could perform the network control operator work given the limitations of the
residual functional capacity, including the limitations on kneeling, crawling, and
squatting. (AR 16). Under Carmickle, 533 F.3d at 1166 and 20 C.F.R. § 404.1560(b)(2),
the ALJ is justified in relying on the DOT and VE’s testimony, so the ALJ’s
determination that Petitioner could perform the network control operator work was
supported by substantial facts.
3. Credibility Finding Regarding Restrictions Supported by Substantial Evidence
Petitioner contends that the ALJ did not sufficiently consider his evidence
regarding the restriction of carrying items in front of him, and that was in error. Id. The
Petitioner’s inability to carry equipment in front of him was set out in the ALJ’s second
hypothetical. (AR 41). In addition, when the VE was asked if the two jobs would involve
lifting or carrying items out in front at the light exertion level, the VE stated they would.
(AR 58-59). The VE then testified that “if any kind of carrying in front is precluded then
that work would be precluded as well.” (AR 59). Petitioner contends that all of these facts
combined show that the ALJ did not have substantial evidence to determine that
Petitioner could perform this past relevant work.

5

The DOT does not list squatting, but lists crouching, which is bending the spine and legs.

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It is true that if the front-carrying restriction was credible, then the ALJ erred in
finding petitioner could perform the past relevant work. However, the ALJ determined
that the Petitioner’s claim regarding the front-carrying restriction was not credible. (AR
14). In fact, the ALJ found that the only restrictions were on lifting, bending, and
squatting as described above. (AR 16). Thus, the issue is whether the ALJ had substantial
evidence to dismiss Petitioner’s subjective pain testimony about his front-carrying
restriction for lack of credibility.
A. Rule of Law for Evaluating Credibility of Subjective Pain Evidence
In evaluating subjective pain evidence, the ALJ follows a two-step process. See 20
C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186. First, the ALJ must consider whether
there is an underlying medically determinable physical impairment that could be
reasonably expected to produce the individual's pain or other symptoms. 20 C.F.R.
§ 404.1529 (b). In this regard, the ALJ concluded that "the severe impairments listed . . .
demonstrated with adequate sufficiency within the record to give the claimant the benefit
of the doubt with respect to his pain symptoms.” (AR 13).
Second, once an underlying physical impairment that could reasonably be expected
to produce the individual's pain or other symptoms has been shown, the ALJ must
evaluate the intensity, persistence and limiting effects of the claimant's symptoms to
determine the extent to which the symptoms limit the claimant's ability to do basic work
activities. 20 C.F.R. § 404.1529(c). If the claimant's stated symptoms are not

MEMORANDUM DECISION AND ORDER - 13

substantiated by objective medical evidence, the ALJ must make a finding on the
credibility of the reported symptoms based on a consideration of the entire case. Id. In the
instant case, the ALJ found, and the Court agrees, that claimant's stated symptom of frontcarrying restrictions were not substantiated by objective medical evidence, so the ALJ
made findings regarding Petitioner's credibility. (AR 13-17).
In making credibility determinations based on a consideration of the entire case,
“the ALJ’s reasons for rejecting pain testimony must be clear and convincing.” Burch v.
Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). The ALJ must “specify what testimony is
not credible and identify the evidence that undermines the claimant’s complaints–general
findings are insufficient.” Id., citing Reddick v. Chater, 427 F.3d 1211, 1216 (9th Cir.
2005). The ALJ’s findings “must be sufficiently specific to allow a reviewing court to
conclude the [ALJ] rejected the claimant's testimony on permissible grounds and did not
arbitrarily discredit [the] claimant's testimony.” Rollins v. Massanari, 261 F.3d 853, 85657 (9th Cir. 2001); See SSR 96-7p, 1996 WL 374186.
In addition, “while an ALJ may find testimony not credible in part or in whole, he
or she may not disregard it solely because it is not substantiated affirmatively by objective
medical evidence.” Robbins v. Soc. Sec. Admin., 566 F.3d 880, 883 (9th Cir. 2006); See
SSR 96-7p, 1996 WL 374186 at *1. The ALJ must also “consider whether there are any
inconsistencies in the evidence and the extent to which there are any conflicts between
[Petitioner's] statements and the rest of the evidence.” 20 C.F.R. § 404.1529(c)(3). In

MEMORANDUM DECISION AND ORDER - 14

determining the credibility of the individual’s statements, the ALJ must consider the
entire case record. SSR 96-7p, 1996 WL 374186.
B. Discussion of Credibility Determination
There is substantial evidence to support the ALJ’s determination regarding
Petitioner’s credibility and the her findings were sufficiently specific and clear. (See AR
12-16). The ALJ in the instant case found that “the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the . . . residual functional capacity assessment.” (AR 14). The
ALJ supported this credibility determination by describing supporting evidence to hold
that: (1) The description of limitations by petitioner was inconsistent and unpersuasive;
(2) There is extremely limited objective medical evidence, and what evidence there is
suggests the pain symptoms may not have been as serious as alleged.
(1) Description of Limitations Was Inconsistent and Unpersuasive
The ALJ first premised the unfavorable credibility finding on evidence that
showed that, “[o]verall, the description of the severe symptoms and limitations, which the
claimant has provided throughout the record has generally been inconsistent and
unpersuasive.” (AR 14). “This is especially true after listening to the claimant's admitted
abilities and activities of daily living at hearing.” (Id.). The ALJ expounded this
inconsistent evidence:
The claimant testified he is still capable (although slow) of splitting and
cutting wood for heating of his home, which ... exceeds the residual functional
MEMORANDUM DECISION AND ORDER - 15

capacity in this case. (AR 44) Moreover, he testified he was able to carry fifty
pounds on his back, but not in front of him, which still is a significant
exertional activity and demonstration of a functional capacity exceeding even
the residual functional capacity in this case. (AR 46). However, he then
testified he could lift ten to twenty pounds without excessive pain. (AR 46-48).
When the claimant was asked if he was able to get a job that allowed sitting
and standing as needed, with breaks every hour, where he did not have to lift,
he testified he could not do it because a 17 mile commute to get to work would
likely be a problem for his back. (AR 50-51).
(AR 13, citations from the Administrative Record for specific statements added).
The ALJ also points out that in 2009, Petitioner appeared at Pinnacle Health
Center complaining of pain in his neck and back, but he reported his pain symptoms on a
“pain severity scale” a 3 out of 10. (AR 16, 210). This information, the ALJ explained “is
a stark contrast to how he described his pain symptoms in connection with this
application and appeal.” (AR 16; Cf., e.g., AR 144). The ALJ concluded that “based on
this information in the file the [ALJ] could get the impression the claimant has
consciously attempted to portray limitations that are not actually present in order to
increase the chance of obtaining benefits.” (AR 16).
Because the ALJ has given more than a scintilla of specific contradicting
statements and facts, this Court finds that there was substantial evidence supporting the
ALJ’s determination on credibility. See 20 C.F.R. § 404.1529(c)(3). In addition, this
Court holds that the ALJ did not commit legal error in this holding because the ALJ’s
decision “contained specific reasons for the finding on credibility.” SSR 96-7p, 1996 WL
374186; see Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001).

MEMORANDUM DECISION AND ORDER - 16

(2) Pattern of Failing to Follow-Up Suggests Less Serious Symptoms
The ALJ also supported her credibility finding by finding that Petitioner's pattern
of failing to follow-up on recommendation suggests the petitioner's pain symptoms may
not have been as serious as alleged. (AR 15). The ALJ explored in detail the Petitioner's
many visits to his treating physician with no record of Petitioner following up on
recommended procedures:
Dr. Dibenedetto6 recommended the claimant see a spine surgeon. (AR 195).
There is no evidence he received a surgical work-up or evaluation from a
specialist. (AR 194) . . . [T]he claimant received a recommendation by Dr.
DiBenedetto to undergo an MRI in 2006 for his back condition . . . and the
claimant failed to do so. (AR 193) . . . Dr. DiBenedetto . . . recommended an
angiogram. However, the claimant failed to follow-up on that recommendation
as well. (AR 193).
(AR15 (Administrative Record citations added)). Based on this evidence, the ALJ
concluded that “the record revealed the claimant demonstrated a pattern of failing to
follow-up on recommendations made by his treating doctor, which suggest the symptoms
may not have been as serious as has been alleged in connection with this application and
appeal.” (AR 15).
The ALJ determined that the Petitioner was not credible by expounding from the
record multiple specific failures to follow up on recommended procedures. (AR 15). This
evidence is relevant evidence that a reasonable mind might accept as adequate to support
the unfavorable credibility determination.

6

The Petitioner's treating physician from 2001 to 2007. (AR 188-204).

MEMORANDUM DECISION AND ORDER - 17

C. Conclusion Regarding Credibility Determination
The ALJ’s determinations concerning the credibility of Petitioner’s subjective pain
statements are supported by substantial evidence in the record and are sufficiently laid out
in the ALJ’s decision. As such, the ALJ’s conclusion that the claimant’s “subjective
complaints and alleged limitations are not fully persuasive and the claimant retains the
ability despite his impairments to perform work activities with the limitations set forth
above" is supported by substantial evidence and is free of legal error. (AR 17).
CONCLUSION
Therefore, the Court finds, and thus concludes, that the ALJ based her decision on
substantial evidence, sufficient to support the denial of disability benefits and committed
no legal error in so denying Petitioner’s claim. Accordingly, the Court affirms the
decision of the ALJ.
ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED and this
action is DISMISSED in its entirety with prejudice.

DATED: August 2, 2012.

Honorable Larry M. Boyle
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 18