Nadeau v . SSA CV-01-310-B 05/21/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bryan D . Nadeau

v. Civil N o . 01-310-B Opinion N o .

Jo Anne Barnhart

MEMORANDUM AND ORDER

On March 1 6 , 1999, Bryan Nadeau filed an application with

the Social Security Administration (“SSA”) for Title II

disability insurance benefits (“DIB”). After his application was

denied, both initially and on reconsideration, Barrett requested

a hearing. Administrative law judge (“ALJ”), Robert S .

Klingebier, held a hearing, and on November 1 5 , 2000, determined

that Nadeau was not disabled. Nadeau appealed, but on September

2 8 , 2001, the Appeals Council denied his request for review.

Nadeau brings this action pursuant to

(g)

(1991 & Supp. 2002), seeking review of the denial of his

application for DIB. Nadeau argues that the finding that his subjective reports of pain and disability lacked credibility is

unsupported by substantial evidence.

I. BACKGROUND

A. Work History

Nadeau was forty years old when he filed his application for

DIB. He is a high school graduate and took a number of college

courses, but he did not earn a college degree. Nadeau’s work

experience includes owning and operating a plumbing and heating

business, working as a certified nurse’s assistant, working in

the computer aided design field, and managing service oriented

businesses. He closed his plumbing and heating business in 1999,

when he contends he became disabled and could no longer work.

Since then, Nadeau has not worked, relying upon friends, family,

and unemployment benefits for support.

B. Medical History

Nadeau claims that he has had pain in his joints since he

was at least fourteen. He claims that he was in an automobile

accident at age twelve, and that soon thereafter he began to

suffer from pain in his joints. Nadeau’s treatment for this

-2- pain, according to the administrative record, began in 1998.1

In February 1998, Nadeau told his primary care physician,

Dr. Gary Shapiro, that he had pain in his knees, shoulders, and

back. D r . Shapiro referred him to D r . John Schlegelmilch for a

rheumatology consultation. D r . Schlegelmilch conducted an

examination of Nadeau on March 1 1 , 1998. Nadeau’s joint

examination was negative. However, given Nadeau’s self-reported

history of musculoskeletal symptoms of unclear etiology, D r .

Schlegelmilch opined that he may have a sero-negative

spondyloarthropathy.2 D r . Schlegelmilch ruled out fibromyalgia.

Nadeau was prescribed Prednisone.3

On a follow-up examination by D r . Schlegelmilch, Nadeau

reported an excellent response to the Prednisone, noting an

increase in energy and a reduction in stiffness and pain.

1 Nadeau also complained of asthma and depression during the course of his treatment with various doctors. Because the focus of Nadeau’s claim involves his complaints of chronic joint pain, I do not include a detailed explanation of Nadeau’s asthma and depression in this background section. 2 Spondyloarthropathy is a disease of the joints of the spine. Dorland’s Illustrated Medical Dictionary (Dorland’s) 1563 (28th ed. 1994). 3 Prednisone is a steroid used for its anti-inflammatory properties. Dorland’s at 1346.

-3- However, Nadeau returned to D r . Schlegelmilch in August 1998 and

complained of trouble working and difficulty making a fist

because of joint swelling. After a reduced Prednisone dose

increased Nadeau’s arthritic symptoms, D r . Schlegelmilch

prescribed an aggressive treatment plan in order to allow Nadeau

to continue working. D r . Schlegelmilch also prescribed Methotrexate.4

Nadeau’s condition improved with the aggressive Prednisone

treatment. However, in January 1999, he complained to D r .

Schlegelmilch of joint pain and stiffness. D r . Schlegelmilch

examined Nadeau and found no joint swelling, but based upon his

symptoms and presentation D r . Schegelmilch diagnosed him with

inflammatory arthritis. Nadeau continued to complain of pain in

his joints and back during the months following the January

examination, despite further aggressive Prednisone treatment.

Dr. Shlegelmilch noted that Nadeau’s problems were a “mystery”

and “all-in-all very confusing.” D r . Schlegelmilch did note that

stress and depression may be a factor involved in Nadeau’s joint

4 Methotrexate is used, inter alia, in the treatment of adult rheumatoid arthritis and psoriatic arthritis. Dorland’s at 1029.

-4- pain. He prescribed hydroxychloroquine5 for Nadeau’s joint

inflammation and Paxil for his depression.

Dr. Shapiro saw Nadeau on May 6, 1999. Nadeau reported that

he continued to experience pain in his lower back, hands, knees,

feet and toes. D r . Shapiro noted that he “appear[ed] well,” but

he had some tenderness in his lower back. Nadeau could bend

easily, but he could not touch his toes. There was no focal

tenderness in his knees and no ligament instability. D r . Shapiro

remarked that Nadeau’s medical history and examinations were

“confusing,” yet they “seem[ed] most compatible with a

fibromyalgia-type picture, rather than an inflammatory

arthritis.”

On May 1 2 , 1999, Nadeau saw Linda J. Groiss, PA-C. Nadeau

stated that his job as a plumber and heating contractor required

him to frequently squat and kneel. This, according to Nadeau,

aggravated his knees. Groiss’s examination revealed that Nadeau

had suffered from Osgood-Schlatter6 disease as a child, but that

5 Hydroxychloroquine is an anti-inflammatory frequently used in the treatment of arthritis. Dorland’s at 787. 6 Osgood-Schlatter’s disease is a degeneration and later recalcification of the tibia. Dorland’s at 487. It occurs most commonly in boys ages 10 to 1 5 . The Merck Manual 2414 (17th ed.

-5- presently he had a full range of motion and no grinding or

rubbing of the bones. Groiss noted that x-rays of his knees

looked “great” and that the patellae were lined up “nicely” in

the femoral groove. Groiss concluded that Nadeau had bilateral

patellofemoral pain with a history of joint pain and athritic-

type problems. She referred him to a quad strengthening program

and fitted him with an elastic knee support.

Nadeau returned to D r . Schlegelmilch on June 1 4 , 1999,

complaining that he could not work because of joint pain. After

examination, D r . Schlegelmilch again concluded that there was no

evidence of joint swelling. He diagnosed Nadeau as suffering

from fibromyalgia with an element of depression. D r . H . Roger

Hansen also evaluated Nadeau on June 1 4 , 1999 for his complaints

of knee pain. Although some tenderness was noted by D r . Hansen,

x-rays of Nadeau’s knees were unremarkable and a magnetic

resonance imaging scan (“MRI”) was essentially normal. D r .

Hansen concluded that Nadeau had patellofemoral pain syndrome,7

and nothing more serious. He suggested that Nadeau continue with

1999). 7 Pain in the knee and femur.

-6- a conservative treatment.

On August 1 1 , 1999, D r . Nancy Johnson evaluated Nadeau’s

reports of chronic pain. She did not diagnose Nadeau with

fibromyalgia because there were no active trigger points and no

evidence of joint redness, warmth or swelling. Rather, she

concluded that he had an unknown type of inflammatory arthritis.

Her examination revealed no outward thickening of the joints, and

no warmth or redness of the joints. She recommended a trial

therapy of hot wax treatments, which Nadeau later reported were

unhelpful, and shoe orthotics. At a follow-up examination in

September 1999, Nadeau reported that his foot pain had subsided

with the use of the orthotics.

Nadeau saw D r . William Swinburne for a consultative mental

evaluation. Nadeau told D r . Swinburne that his day was defined

and controlled by his chronic pain. D r . Swinburne’s examination

concluded that Nadeau suffered from “major depression, recurrent,

moderate.” D r . Swinburne noted that Nadeau’s difficulty in

functioning at a job appeared more physical than psychological.

However, D r . Thomas Stearns, who examined Nadeau in September

1999, concluded that psychological factors contributed to

Nadeau’s complaints of pain. D r . Stearns observed that Nadeau

-7- was verbal and cooperative, although he sensed that Nadeau was

somewhat guarded. Pain behaviors were not notable. D r . Stearns

diagnosed Nadeau with dysthymic disorder.8 Nadeau was to undergo

a series of psychological inventories related to his pain and

depression, however, the record is devoid of any evidence that

such inventories were completed.

Nadeau returned to D r . Stearns a year later. D r . Stearns

noted that a number of medications had been tried and

discontinued in an effort to abate Nadeau’s pain. Nadeau

reported that his pain was mitigated by pacing his daily

activities, including basic housework, visiting his parents,

running errands, and taking warm baths. He reported that he had

come to accept the presence of pain and that his stress level had

decreased. D r . Stearns remarked that Nadeau had applied

constructive pain management strategies in an effort to engage in

daily activities. D r . Stearns suggested that Nadeau enroll in a

stress management group and mindfulness meditation program.

8 Dysthymic disorder is depression marked by episodes of major depression. It begins in childhood or adolescence and continues along a low-grade course over many years or decades. Merck Manual at 1538.

-8- In February 2000, D r . Shapiro conducted a general physical

examination on Nadeau and reported no swelling in the extremities

and good peripheral pulsations. D r . Shapiro diagnosed Nadeau with chronic arthralgias.9

C. Residual Functional Capacity Assessments

In June 1999, D r . Burton Nault, a state agency physician,

completed a residual functional capacity (RFC) assessment. The

RFC concluded that Nadeau could lift and/or carry twenty pounds

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

about six hours with normal breaks given an eight hour workday,

sit for about six hours in an eight hour workday, and push and/or

pull with the upper and lower extremities without restriction.

Furthermore, the RFC concluded that Nadeau could occasionally

climb, balance, stoop, kneel, crouch and crawl. Nadeau was not

found to be subject to any manipulative, visual, communicative or

environmental limitations. D r . Nault noted that no treating or

evaluating physician identified a total disability on a physical

basis.

Arthralgia is pain in the joints. Dorland’s at 140. -9- A second RFC was conducted by a state agency physician10 in

January 2000. The results of this RFC were substantially similar

to D r . Nault’s RFC completed in 1999. The January 2000 RFC

specifically noted Nadeau’s subjective complaints of pain, but

concluded that the results of the RFC were reasonable given the

medical evidence. However, the RFC did note that Nadeau should

avoid concentrated exposure to extreme cold, fumes, odors, dusts,

and gases.

D. Psychiatric Review Technique Forms

Dr. Michael A . Schneider completed a psychiatric review

technique form (PRTF) and rendered a mental residual functional

capacity assessment in August 1999. Based upon D r . Swinburne’s

consultative report, D r . Schneider concluded that Nadeau suffered

from recurrent major depression. He noted that Nadeau exhibited

some signs of social isolation and depressed mood, as well as a

decrease in motivation and capacity. However, he concluded that

Nadeau could perform tasks without supervision and was able to

complete scheduled activities within a normal work week. He also

noted that Nadeau could perform normally in a low-stress setting.

The physician’s name is undecipherable from the record. -10- Dr. Carol McKenna completed a PRTF in December 1999. Based

upon a review of the medical record, she also concluded that

Nadeau suffered from depression. The only limitation she noted

was Nadeau’s moderate limitation in his ability to interact with

co-workers.

E. The ALJ’s Decision

In his November 1 5 , 2000 decision, the ALJ applied the five-

step sequential evaluation process under which disability

applications are reviewed. See

. In the

first step, the ALJ found that Nadeau had not engaged in

substantial gainful activity since his alleged date of onset of

disability. At the second step, the ALJ found that Nadeau’s

asthma, chronic complaints of pain, and depression constituted

severe impairments. At the third step, he found that Nadeau’s

impairments, although severe, did not meet or equal the criteria

of any listed impairment described in

0 4 , Subpart P,

Appendix 1 .

In assessing Nadeau’s RFC, the ALJ found that, prior to his

date last insured, Nadeau could lift and carry more than twenty

pounds occasionally or more than ten pounds frequently. But, the

ALJ found that Nadeau should avoid exposure to dust and fumes,

-11- and should avoid waiting upon the public. Based on this RFC, the

ALJ found at step four of the disability evaluation process that

Nadeau could return to his former employment, as it did not

require the performance of work-related activities precluded by

his limitations. Because the plaintiff was able to return to his

past relevant work, he was not under a disability (as defined by

the Act) prior to his date last insured.

In reaching this conclusion, the ALJ noted that Nadeau

reported knee and joint pain, but that the reports of D r .

Schlegelmilch indicated that Nadeau had a normal evaluation and

that his MRI testing was negative. Furthermore, D r . Swinborne

concluded that Nadeau had a normal posture and gait. The ALJ

also pointed out that Nadeau reported to D r . Shapiro that after

he sold his business he was spending more time with his family.

During a pain management consultation with D r . Stearns in

September 2000, Nadeau told the doctor that he suffered from pain

but was able to spend time doing housework, running errands, and

visiting with friends and family. The ALJ indicated that the

medical records note that Nadeau’s x-rays, MRIs, and joint

function were consistently normal, and that Nadeau was fully

weight bearing.

-12- Finally, the ALJ also found that Nadeau’s allegations of a

disabling pain and other subjective symptoms were not entirely

credible. Since Nadeau’s alleged onset of disability, the ALJ

noted that Nadeau acknowledged improvement in his symptoms after

resolving his financial troubles. He found that Nadeau did not

require strong pain medication to control his reported symptoms,

and that Nadeau remained “quite active.” Relying upon the

medical record and the RFCs, the ALJ concluded that while Nadeau

did experience some limitations as a result of his impairments

(i.e., lifting more than 20 pounds occasionally and more than 10

pounds frequently; avoiding fumes and dust; avoiding waiting upon

the public), he did not experience pain or other subjective

symptoms at a level that would interfere with him performing his

past relevant work.

II. STANDARD OF REVIEW

After a final determination by the Commissioner denying a

claimant’s application for benefits and upon a timely request by

the claimant, I am authorized to review the pleadings submitted

by the parties and the transcript of the administrative record

and enter a judgment affirming, modifying, or reversing the

-13- Commissioner’s decision. See

(g). The court’s

review is limited in scope, however, as the Commissioner’s

factual findings are conclusive only if they are supported by

substantial evidence. See id.; Irlanda Ortiz v . Sec’y of Health

& Human Servs.,

(1st Cir. 1991). The

Commissioner is responsible for settling credibility issues,

drawing inferences from the record evidence, and resolving

conflicting evidence. See Irlanda Ortiz,

;

Frustaglia v . Sec’y of Health & Human Servs.,

9 2 , 195

(1st Cir. 1987); see also Tsarelka v . Sec’y of Health & Human

Servs.,

(1st Cir. 1988) (“[W]e must uphold the

[C]ommissioner’s conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.”) (citations omitted). Therefore, the

court must “‘uphold the [Commissioner’s] findings . . . if a

reasonable mind, reviewing the evidence in the record as a whole,

could accept it as adequate to support [the Commissioner’s]

conclusion.’” Irlanda Ortiz,

(quoting Rodriguez

v . Sec’y of Health & Human Servs.,

1 8 , 222 (1st Cir.

1981)).

-14- While the ALJ’s findings of fact are conclusive when

supported by substantial evidence, they “are not conclusive when

derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts.” Nguyen v . Charter,

1 ,

35 (1st Cir. 1999) (per curiam) (citations omitted). If the

Commissioner has misapplied the law or has failed to provide a

fair hearing, however, deference to the Commissioner’s decision

is not appropriate, and remand for further development of the

record may be necessary. See Carroll v . Sec’y of Health & Human

Servs.,

3 8 , 644 (2d Cir. 1983); see also Slessinger v .

Sec’y of Health & Human Servs.,

3 7 , 939 (1st Cir. 1987)

(“The [Commissioner’s] conclusions of law are reviewable by this

court.”) I apply these standards in reviewing the issues Barrett

raises on appeal.

III. ANALYSIS

Nadeau argues that the ALJ failed to follow SSR 96-7p when

assessing his credibility. Specifically, he complains that the

ALJ failed to consider the record as a whole and failed to

consider the factors outlined in SSR 96-7p in determining that

Nadeau was not fully credible. I disagree.

-15- SSA regulations require that the ALJ consider a claimant’s

symptoms, including complaints of pain, when he or she is

determining whether a claimant is disabled. See

(a). When determining whether a claimant’s subjective

statements are credible, an ALJ must evaluate the medical signs

and laboratory findings, any diagnosis, prognosis or other

medical opinions, and any statements/reports from the plaintiff

or treating or examining physicians or psychologists about the

patient’s medical history. SSR 96-7p. In addition, because an

individual’s pain can sometimes result in a greater severity of

impairment than can be shown by the objective medical evidence,

the adjudicator must consider the following evidence, known as

“the Avery factors,” when assessing the credibility of an

individual’s statements: (1) the claimant’s daily activities;

(2) the location, duration, frequency and intensity of the

individual’s pain; (3) factors that precipitate and aggravate the

symptoms; (4) the type, dosage, effectiveness, and side effects

of any pain medication; (5) treatment other than pain medication;

(6) any other measures that the claimant has used to relieve

pain; and (7) other factors concerning the claimant’s limitations

and restrictions due to pain or other symptoms. See 20 C.F.R. §

-16- 416.929(c)(3); SSR 96-7p; Avery v . Sec’y of Health and Human

Servs.,

9 , 22-23 (1st Cir. 1986). In addition to these

factors, the ALJ is entitled to observe the claimant, evaluate

his demeanor, and consider how the claimant’s testimony fits with

the rest of the evidence. See Frustaglia,

.

An ALJ’s credibility determination must include specific

findings and be based on a substantially accurate view of the

record evidence. See Da Rosa v . Sec’y of Health and Human

Servs.,

4 , 26 (1st Cir. 1986) (per curiam) (ALJ’s

finding that a claimant is not credible “must be supported by

substantial evidence” and must be based on “specific findings as

to the relevant evidence he considered in determining to

disbelieve the [claimant].”). Moreover, the ALJ’s findings with

respect to credibility “must be sufficiently specific to make

clear to the individual and to any subsequent reviewers the

weight the adjudicator gave to the individual’s statements and

the reasons for that weight.” SSR 96-7p. When properly

supported by record evidence, the ALJ’s credibility determination

is entitled to substantial deference from this court. See

Frustaglia,

.

-17- The record reflects that the ALJ considered the entire

record and took into account the Avery factors. He considered

Nadeau’s daily activities, noting that Nadeau reported to D r .

Stearns that he performs basic housework, visits his parents and

friends, and runs errands. Furthermore, the ALJ considered the

duration, frequency, and intensity of Nadeau’s pain, noting that

since Nadeau’s alleged onset of disability he acknowledged

improvement in his symptoms. The ALJ also noted that Nadeau’s x-

rays, MRIs, and joint function were consistently normal, and that

Nadeau was fully weight bearing.

The ALJ also considered Nadeau’s use of pain medication,

stating that Nadeau did not require strong doses to control his

alleged intense and chronic pain. The absence of the need to

use, or the actual use o f , stronger pain medications is

inconsistent with the severity of the pain Nadeau alleged. See

Albors v . Sec’y of Health and Human Servs.,

(1st Cir. 1986) (per curiam) (“[The medical evidence], together

with the fact that claimant apparently takes nothing stronger

than aspirin, supports the ALJ's rejection of claimant's

assertions of disabling pain.”); Boisvert v . Callahan, 997 F.

-18- Supp. 183, 186 (D. Mass. 1998) (“[The ALJ] found that the

plaintiff could not reasonably suffer the degree of pain that she

alleged without seeking more active treatment or taking pain

medication stronger than Tylenol.”).

Finally, the ALJ considered the fact that Nadeau’s

activities and physical capabilities are limited to some degree.

Indeed, he specifically found that Nadeau could lift no more than

20 pounds occasionally and 10 pounds frequently. The ALJ also

found that Nadeau should avoid excessive dust and fumes, and

should not wait upon the public. However, he ultimately

concluded that his RFC indicated he would have been able to

perform his past relevant work activity. The medical evidence in

the record supports the ALJ's determination that Nadeau's pain

did not limit his functional capacity beyond that already

assessed.

The ALJ’s decision that Nadeau’s complaints of pain were not

fully credible is supported by substantial evidence. See

Frustaglia,

. (finding that more express findings

would be preferable, but examination of the record demonstrated

that substantial evidence supported the ALJ’s findings).

-19- IV. CONCLUSION

Pursuant to sentence four of

(g), I deny the

plaintiff’s motion for an order reversing the decision of the

Commissioner (Doc. N o . 8 ) , and grant the defendant’s motion for

an order affirming the decision of the Commissioner (Doc. N o . 9 ) .

The Clerk of Court is directed to enter judgement in accordance

with this order and close the case.

SO ORDERED.

Paul Barbadoro Chief Judge

May 2 1 , 2003

c c : Gerald D. Neiman, Esq. David L . Broderick, Esq.

-20-