Wenzel v . SSA CV-11-269-PB 7/6/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas Bruce Wenzel

v. Civil N o . 11-cv-269-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Thomas Wenzel seeks judicial review of a decision by the

Commissioner of the Social Security Administration denying his

application for disability insurance benefits. He contends that

the Administrative Law Judge (“ALJ”) who heard his case failed

to properly weigh the medical opinion evidence and erred in

assessing the credibility of his subjective reports of pain.

For the reasons provided below, I affirm the Commissioner’s

decision.

I. BACKGROUND1

Wenzel applied for disability insurance benefits on March

1 Except where otherwise noted, the background information is drawn from the parties’ Joint Statement of Material Facts (Doc. N o . 1 3 ) . See LR 9.1(b). I cite to the administrative record with the notation “Tr.” 1 2 , 2009, when he was fifty-one years old. T r . 2 0 . He alleged a

disability onset date of October 2 , 2008, due to a back injury,

arthritis, carpal tunnel syndrome, and depression. Wenzel

completed high school, and worked as a painter for approximately

twenty-five years. T r . 20-21.

A. Medical Evidence

Between April 16 and May 3 0 , 2008, Wenzel sought treatment

for his back pain at the New Hampshire NeuroSpine Institute. He

complained of a twenty-five-year history of lower back pain that

was caused by his heavy workload as a self-employed painter. He

reported that his pain had become worse over the past eighteen

months. An MRI of Wenzel’s lumbar spine showed minor

degenerative disc and facet joint disease.

Dr. Theodore Jacobs, who treated Wenzel at the NeuroSpine

Institute, reported in a May 1 6 , 2008 letter that, upon

examination, Wenzel’s upper and lower extremities were

neurologically intact; his spine was nontender; a straight leg

raise test was negative 2 ; and extension and flexion did not

produce discomfort in his neck or lower back. D r . Jacobs noted

that he was unsure whether Wenzel had a surgically correctable

2 In his brief, Wenzel notes that a straight leg raise test is used to determine whether a patient’s back pain is due to an underlying herniated disc. Doc. N o . 9-1 at 6 n.1. 2 abnormality in his spine.

Wenzel again complained of lower back pain to D r . Jacobs on

May 3 0 , but, upon examination, movement of his neck and lower

back did not produce discomfort and a straight leg raise test

was again negative. D r . Jacobs noted that an M R I , which

revealed severe spinal stenosis and disc herniation, T r . 183,

“overstated any disease in his lumbar spine,” T r . 1 8 1 , and that

a myelogram and CT scan showed only “some mild stenosis” at L4-

5 , T r . 181. D r . Jacobs stated that Wenzel’s exam was benign.

He reassured Wenzel that he was not a surgical candidate, and

recommended that Wenzel seek pain management.

Beginning in February 2008, Wenzel saw D r . Robert Quirbach

of the S t . Joseph Family Medical Center for his complaints of

chronic back pain.3 Examinations performed through June 2009

showed that Wenzel had tightness or tenderness, along with

decreased range of motion, in his lumbosacral spine, and that he

also had some pain and tenderness in his cervical spine. In

July 2008, D r . Quirbach noted that Wenzel was bilaterally

positive on straight leg raise tests. At a number of

appointments, D r . Quirbach stated that Wenzel was doing fairly

3 Wenzel also complained to D r . Quirbach about his depression, a fact that is not relevant to the issues presented for my review. 3 well and/or that his back pain was stable. T r . 1 5 1 , 2 0 8 , 2 1 4 ,

215, 216, 2 2 0 , 225. He also reported that Wenzel was taking

Oxycontin, which was working well and sometimes controlled his

pain.

On June 1 6 , 2009, D r . Hugh Fairley, a non-examining state

agency physician, completed a physical RFC assessment of Wenzel.

Dr. Fairley opined that Wenzel could occasionally lift and/or

carry twenty pounds; frequently lift and/or carry ten pounds;

stand and/or walk for about six hours in an eight-hour workday;

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

and/or pull without limitations. D r . Fairley opined that Wenzel

had occasional postural limitations, and had no manipulative,

visual, communicative, or environmental limitations.

Between late-June 2009 and October 2010, Wenzel continued

to see D r . Quirbach for his back pain. Across a number of

examinations, Wenzel continued to exhibit back pain and a

decreased range of motion, along with variable levels of

pain/distress. T r . 238-277. Wenzel was bilaterally positive on

a straight leg raise test performed in October 2009, and was

again positive in several straight leg raise tests performed in

the following months. T r . 238-73.

In a September 2010 appointment, D r . Quirbach noted that 4 Wenzel’s back pain had “been doing better recently.” T r . 242.

After an examination performed the following month, D r . Quirbach

reported that Wenzel’s back pain had been “stable,” but that

Wenzel was experiencing difficulty transitioning to a lower dose

of Oxycontin. T r . 238.

On November 2 , 2010, D r . Quirbach completed a medical

assessment of Wenzel’s physical ability to perform work-related

activities. D r . Quirbach stated that in an eight-hour day

Wenzel could occasionally lift and carry twenty pounds;

frequently lift and carry ten pounds; stand and walk with normal

breaks for about three hours; and sit with normal breaks for

about four hours. D r . Quirbach also stated that Wenzel could

never twist, but could occasionally bend, crouch, climb stairs,

and climb ladders. He opined that Wenzel’s impairments would

cause him to be absent from work more than three times per

month, and that Wenzel could not work eight hours a day, five

days a week.

B. Hearing Testimony

After Wenzel’s application for disability insurance

benefits was denied initially and upon reconsideration, he

requested a hearing before an ALJ. At his November 1 5 , 2010

hearing, Wenzel was represented by an attorney, and appeared and 5 testified on his own behalf. A vocational expert also

testified.

Wenzel reported that in 2003, he injured his arms when he

fell off a ladder. He testified that he experienced shooting

pains in his right arm, was unable to stretch his left arm, and

experienced arthritis in his hands. He stated that he also

experienced pain due to a lower back and neck condition. He

testified that as a result of the Oxycontin that he took for his

hands and back pain, he experienced side effects, including

difficulty driving, a loss of concentration, and memory

problems. He reported that he was not receiving any treatment

at the time aside from pain medication because his insurance

company would not cover additional treatment.

Speaking about his functional capabilities, Wenzel stated

that he could not sit for much more than an hour before needing

to move around. He reported that he could sometimes walk for

twenty minutes at a time without sitting down or lying down.

When asked about his activities of daily living, Wenzel

testified that during the day he watched television, stretched,

and did some chores.

C. ALJ’s Decision

The ALJ denied Wenzel’s application in a decision dated 6 December 2 3 , 2010. After determining that Wenzel had not

engaged in substantial gainful activity since his disability

onset date and that Wenzel’s degenerative disc disease with

associated back and neck pain was a severe -- though not a

listing level -- impairment, the ALJ found that Wenzel retained

the RFC to perform a full range of light work. In accordance

with that RFC, the ALJ determined that Wenzel, though unable to

perform his past relevant work as a painter, could perform jobs

existing in significant numbers in the national economy and

therefore was not disabled. Although the Decision Review Board

selected Wenzel’s claim for review, it did not complete its

review during the time permitted, thereby leaving the ALJ’s

decision as the final decision of the Commissioner.

II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

“final decision” of the Commissioner. My review “is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence.” Ward

v . Comm’r of Soc. Sec.,

5 2 , 655 (1st Cir. 2000). 7 The findings of fact made by the ALJ are accorded deference

so long as they are supported by substantial evidence.

Substantial evidence to support factual findings exists “‘if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.’”

Irlanda Ortiz v . Sec’y of Health and Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriquez v . Sec’y of

Health and Human Servs.,

1 8 , 222 (1st Cir. 1981)). If

the substantial evidence standard is met, factual findings are

conclusive even if the record “arguably could support a

different conclusion.” Id. at 770. Findings are not

conclusive, however, if they are derived by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts.”

Nguyen v . Chater,

1 , 35 (1st Cir. 1999) (per curiam).

The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence on the

record. Ortiz,

. It is the role of the ALJ, not

the court, to resolve conflicts in the evidence.

The ALJ follows a five-step sequential analysis for

determining whether an applicant is disabled.

, 416.920. The applicant bears the burden, through the

first four steps, of proving that her impairments preclude her 8 from working. Freeman v . Barnhart,

(1st Cir.

2001). At the fifth step, the Commissioner determines whether

work that the claimant can d o , despite her impairments, exists

in significant numbers in the national economy and must produce

substantial evidence to support that finding. Seavey v .

Barnhart,

, 5 (1st Cir. 2001).

III. ANALYSIS

Wenzel challenges the Commissioner’s decision on two

principal grounds. First, he contends that errors in the ALJ’s

evaluation of the medical opinion evidence led to an RFC

determination that is unsupported by substantial evidence.

Second, he contends that the ALJ failed to sufficiently explain,

by reference to the relevant criteria set out in

, why his subjective complaints of pain were not

credible. I address each argument in turn.

A. Medical Opinion Evidence & RFC Determination

An ALJ must take into account the medical opinions in a

claimant’s case record when making a disability determination.

(b). When the opinion of a treating

physician is well supported and not inconsistent with other

record evidence, it must be given controlling weight. Id.; 9 Social Security Ruling 96-2p,

(July 2 , 1996)

[hereinafter SSR 96-2p]. In all other instances, an ALJ must

assess a number of factors to determine how much weight to give

to an opinion, including: the length of the treatment

relationship and frequency of examination; the nature and extent

of the treatment relationship; the record evidence supporting

the opinion; the consistency of the opinion with other record

evidence; and whether the source is a specialist.

(c)(2).

An ALJ must always provide “good reasons” in his decision

for the weight accorded to a treating source’s opinion.

When an ALJ’s decision is not favorable to the claimant, the

decision must contain reasons for discounting the treating

source’s opinion that are “sufficiently specific to make clear

to any subsequent reviewers” both “the weight the adjudicator

gave” to the opinion and “the reasons for that weight.” SSR 96-

2p.

Wenzel first argues that the ALJ could not have relied on

Dr. Fairley’s June 1 6 , 2009 opinion because D r . Quirbach’s

treatment notes subsequent to that date undermine the basis of

Dr. Fairley’s opinion. I disagree. Although a medical opinion

may no longer be due significant weight if it was based on a 10 materially incomplete record, see, e.g., Alcantara v . Astrue,

(1st Cir. 2007) (agency physician’s

opinion not due significant weight where, inter alia, claimant’s

condition deteriorated after date of opinion due to father’s

death); Shinn ex. rel. Shinn v . Comm’r of Soc. Sec.,

(11th Cir. 2004) (because agency physicians were not

privy to the many crises for which claimant had not been

hospitalized, their opinions were “based on woefully incomplete

evidence” and should not have been accorded significant weight),

in this case Wenzel has not identified any symptom or condition

described by the treatment notes after June 1 6 , 2009 that is not

also indicated in the prior treatment notes. Wenzel draws

attention to two observations in D r . Quirbach’s more recent

treatment notes: Wenzel’s positive straight leg raise tests and

limited range of motion in his lumbar region. Both findings,

however, were also described in the treatment notes prior to

that date, see T r . 145, 1 5 1 , 1 5 2 , and were therefore included in

the portion of the record considered by D r . Fairley.

In other words, the ALJ was entitled to accord substantial

weight to D r . Fairley’s opinion because the treatment notes of

Dr. Quirbach that postdated D r . Fairley’s assessment continued

to document the same complaints of pain and the same clinical 11 findings of which D r . Fairley was already aware. Moreover,

though they were not available to D r . Fairley, D r . Quirbach’s

post-June 1 6 , 2009 treatment notes were available for

consideration by the ALJ.4 In his decision, the ALJ cited to

recent instances where D r . Quirbach described Wenzel’s back

condition as doing well or as stable, and I perceive no error in

the ALJ’s determination that those notes were not inconsistent

with D r . Fairley’s opinion. See Ferland v . Astrue, N o . 11-cv-

123-SM,

, at *4 (D.N.H. Oct. 3 1 , 2011) (ALJ may

rely on opinion of non-examining consultant who has not examined

full record where other evidence does not establish greater

limitations or where other evidence is arguably consistent with

the assessment).

4 Focusing on one aspect of D r . Quirbach’s more recent treatment notes, Wenzel briefly argues that the ALJ erred by noting a negative straight leg test result found by D r . Jacobs while ignoring the several positive results found by D r . Quirbach since October 2009. Wenzel reads too much into this small omission. First, the ALJ accurately described the results of Dr. Jacobs’s neurological examination by noting that a straight leg test had come up negative. Second, an ALJ is not bound to directly address every piece of evidence in the record, see Rodriguez v . Sec’y of Health & Human Servs.,

,

(1st Cir. 1990) (per curiam; table, text available on Westlaw), and throughout his decision the ALJ demonstrated a strong understanding of the record evidence both supporting and contradicting his view. I find no error in the ALJ’s decision to omit a single of D r . Quirbach’s clinical findings that was never described as important by any medical treatment provider, including D r . Quirbach himself. 12 Wenzel next attacks the ALJ for giving limited weight to

Dr. Quirbach’s opinion. The ALJ provided a number of “good

reasons,” however, for his decision to accord only limited

weight to the opinion of Wenzel’s treating physician, and those

reasons are “sufficiently specific to make clear . . . the

reasons for that weight.”

(c)(2); SSR 96-

2p. In particular, the ALJ explained: D r . Quirbach’s opinion

was conclusory; the opinion lacked a meaningful explanation for

why Wenzel could not work full time, even though he was

generally capable of light work; the opinion relied on Wenzel’s

subjective complaints, which the ALJ found not to be credible;

and the opinion was, at least to a degree, undercut by D r .

Quirbach’s own treatment notes, which indicated that Wenzel had

recently done some amount of physical work fixing up apartments.

Although other allocations of weight to the medical opinions may

have been possible on this record, the ALJ adequately explained

his reasons for discounting D r . Quirbach’s opinion, and those

reasons are supported by substantial evidence in the record.

B. Credibility Determination

Wenzel argues that the ALJ erred in finding that his

subjective reports of pain and functional limitations were not

credible. “Because symptoms, such as pain, sometimes suggest a 13 greater severity of impairment than can be shown by objective

medical evidence alone, any statements of the individual

concerning his or her symptoms must be carefully considered[.]”

SSR 96-7p,

, at *3 (July 2 , 1996); see also

(c)(3), 416.929(c)(3). A two-step analysis

governs an ALJ’s evaluation of symptoms such as pain. SSR 96-

7 p ,

, at * 2 . First, the ALJ considers whether the

claimant is suffering from “an underlying medically determinable

physical or mental impairment . . . that could reasonably be

expected to produce the individual’s pain or other symptoms.”

If the claimant meets that threshold, the ALJ moves to the

second step:

[T]he 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.

At step one, the ALJ in this case found that Wenzel’s

medically determinable symptoms could reasonably be expected to

cause his alleged symptoms. At step two, however, the ALJ found 14 that his “statements concerning the intensity, persistence and

limiting effects of those symptoms are not credible to the

extent they are inconsistent with the [ ] residual functional

capacity assessment.” T r . 1 2 . Wenzel contends that the ALJ

misconstrued several treatment notes to support his negative

credibility finding, and failed to adequately consider the

limiting effects of his use of narcotic pain medication. I

disagree.

Wenzel quibbles with a number of the record citations the

ALJ used to explain his determination. Specifically, he argues

that the ALJ: put too much emphasis on instances where his

physicians noted that his pain was mild or stable or improving;

failed to explain why either his doctors’ statements that he was

able to work or the treatment notes indicating that he had

engaged in some work supported a finding that he was able to

work on a full-time basis; noted that a single straight leg

raise test was negative without mentioning the many positive

straight leg raise tests; referenced several diagnostic tests as

support for his position when the tests did not rule out his

symptoms; failed to explain why his decision not to follow up

with physical therapy appointments is relevant in light of his

ability to do the same exercises at home; and determined that he 15 had not used his pain medicines appropriately on the sole basis

of a single treatment note indicating that he needed a refill a

little early.

Wenzel’s contentions have some force, insofar as he

accurately details why each of the ALJ’s record citations is

limited in its probative value. Nonetheless, each citation does

still have some probative value, and the combined weight of the

record support is enough to meet the substantial evidence bar.

Most persuasively, the ALJ’s credibility determination finds

support in the diagnostic imaging tests that revealed only

“minor” degenerative disk and facet joint disease, T r . 176, the

various record references to Wenzel continuing to do some amount

of physical work painting and refurbishing, see Teixeira v .

Astrue,

4 0 , 347 (D. Mass. 2010) (although

“performance of household chores or the like ought not be

equated to an ability to participate effectively in the

workforce, evidence of daily activities can be used to support a

negative credibility finding”), and the several instances in the

treatment notes where Wenzel was described as being in only mild

pain or distress. I must defer to the ALJ’s determination

where, as here, it is supported by specific findings and is

based on substantial record evidence. See Frustaglia v . Sec’y 16 of Health & Human Servs.,

9 2 , 195 (1st Cir. 1987).

Moreover, to the extent that the record also contains contrary

evidence that supports Wenzel’s reports of disabling pain, the

ALJ’s opinion demonstrates that he reviewed the entire record,

and it is the duty of the ALJ, not a reviewing court, to resolve

conflicts in the evidence. See Irlanda Ortiz,

.

Wenzel’s next argument is that the ALJ failed to adequately

address the side effects of his Oxycontin use. Pursuant to

Avery v . Secretary of Health and Human Services, an ALJ must

consider a number of factors in his credibility analysis,

including “[t]he type, dosage, effectiveness, and side effects

of any medication” the claimant has taken.

9 , 22-23

(1st Cir. 1986); see 20 C.F.R. 404.1529(c). Although an ALJ is

expected to inquire into and consider all relevant factors, his

decision need not contain an explicit written analysis of each.

Vega v . Astrue, Civ. N o . 11-10406-WGY,

, at *19-21 (D. Mass. Mar. 3 0 , 2012) (citing several cases

for that proposition).

In this case, Wenzel argues that the ALJ failed to consider

his hearing testimony vis-à-vis the side effects of his

Oxycontin use. At the hearing, Wenzel became disoriented and

explained to the ALJ that he had just “spaced out” because his 17 Oxycontin had “kick[ed] in.” T r . 3 4 . He also testified that he

had difficulties with memory and concentration and could not

drive while taking the medication. These limitations do not

appear to infringe on his ability to perform light work,

however, and neither the treatment notes nor the medical

opinions indicate that any of the side effects of Wenzel’s

Oxycontin use would limit his ability to perform a job at that

level of exertion. Accordingly, it was not error for the ALJ to

opt against including a written discussion of the side effects

of Wenzel’s medication. See Vega,

,

at *19-21.

IV. CONCLUSION

For the foregoing reasons, I grant the Commissioner’s

motion to affirm (Doc. N o . 12) and deny Wenzel’s motion to

reverse (Doc. N o . 9 ) . The clerk is directed to enter judgment

accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

July 6, 2012

18 cc: Jeffry A . Schapira, Esq. Robert J. Rabuck, Esq.

19