Proulx v . SSA CV-11-496-PB 10/11/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Melissa Day Proulx

v. Case N o . 11-cv-496-PB Opinion N o .

Michael J. Astrue, Commissioner Social Security Administration

MEMORANDUM AND ORDER

Melissa Day Proulx seeks judicial review of a ruling by the

Commissioner of the Social Security Administration denying her

application for disability insurance benefits. Proulx contends

that the Administrative Law Judge (“ALJ”) who initially denied

her claim failed to properly evaluate the expert medical

evidence. Proulx urges this court to either reverse the

Commissioner’s ruling or remand the case for further hearing.

For the reasons set forth below, I deny Proulx’s request.

I. BACKGROUND1

Proulx was 33 years old when she applied for disability

insurance benefits. She obtained her high school diploma in

1 The background information is taken from the parties’ Joint Statement of Material Facts (Doc. N o . 9 ) . See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by “Tr.” 1993 and completed a licensed nursing assistant's course in

1995. Her work experience includes jobs as a retail cashier and

a licensed nursing assistant. Proulx alleged a disability onset

date of October 1 5 , 1999 in her original application for

benefits, but she later amended the date to December 1 1 , 2002.

She claimed disability due to ankylosing spondylitis,2 injuries

from a car accident in 1998, and memory issues.

On December 2 4 , 2009, the Social Security Administration

denied Proulx’s claim. She requested a hearing, and after

appearing and testifying on March 3 , 2011, the ALJ issued a

decision denying her request for benefits. This decision became

final on August 3 0 , 2011 when the Appeals Council declined to

review i t .

A. Medical History

1. Medical Conditions and Treatment Summary

On August 3 1 , 2001, Proulx began receiving treatment from

Dr. Margaret Tilton, a physiatrist, for chronic neck, shoulder,

arm, and hand pain. Proulx explained that her symptoms were

sporadic and began after a car accident on July 2 3 , 1998. D r .

Tilton’s exam revealed soft tissue trigger points and reduced

range of cervical motion. D r . Tilton diagnosed Proulx with

2 Ankylosing spondylitis is arthritis of the spine. Stedman’s Medical Dictionary 1456 (25th ed. 1990) [hereinafter Stedman’s].

2 chronic cervical and thoracic myofascial pain superimposed on

cervical and thoracic sprain/strain.

Dr. Tilton recommended a series of trigger point injections

which Proulx began receiving on September 6, 2001. At her

second treatment on October 4 , 2001, Proulx reported that the

injections provided significant, but temporary, relief. Proulx

received trigger point injections every few weeks until April

2 3 , 2002, at which point treatment was suspended because Proulx

was due to give birth. She gave birth via Caesarean section on

April 2 6 , 2002. The hospital released her three days later.

On August 2 3 , 2002, Proulx visited D r . Tilton for the first

time after giving birth. Proulx reported that her pain

management had improved since delivery.3 D r . Tilton examined her

and reported that she looked “quite good,” but noted trigger

points on her trapezius and left scapulae. Accordingly, D r .

Tilton ordered another series of trigger point injections.

Dr. Tilton continued to administer trigger point injections

to Proulx every few weeks from August 2002 through June 2003 and

also in November and December 2003. In her clinical notes from

several visits with Proulx, D r . Tilton reported that Proulx was

exercising, including pushing her children outside for a walk,

3 Proulx had begun to use a transcutaneous electrical nerve stimulation (“TENS”) unit daily after her son was born.

3 and participating in water therapy, swim, and yoga. T r . 5 3 1 ,

559, 569.

On December 1 1 , 2002, D r . Tilton drafted a “Permanent

Medical Impairment Report,” which summarized Proulx’s treatment

and explained how the relatively low impact collision and

resulting soft tissue injury of July 2 3 , 1998 precipitated her

symptoms. D r . Tilton concluded that Proulx could not perform

her past relevant work as a certified nurse’s assistant, but

“has a capacity for full-time sedentary work, or work in the

light category, that would allow her to change position

frequently, and not involve any sustained or repetitive cervical

motion, or lifting.”

On February 1 2 , 2003, Proulx began treatment with D r . Bruce

Samuels, a rheumatologist, for chronic myofascial pain syndrome.

Dr. Samuels observed tenderness in her neck, shoulders,

deltoids, trapezius, elbows, and lower back. He opined in his

treatment notes that Proulx appeared to have fibromyalgia, or at

least a chronic myofascial pain syndrome. D r . Samuels noted

that Proulx was receiving trigger point injections and, more

recently, Botox for her stiff neck and discomfort. D r . Samuels

commented that a low dose of steroids could help to alleviate

her pain. Thus, on May 1 5 , 2003, Proulx started taking

4 Prednisone. In June, 4 D r . Samuels noted that Prednisone helped

to eliminate pain in Proulx’s lower extremities, but not her

upper extremities and neck.

On June 3 0 , 2003, Proulx reported severe pain and cried

during her exam with D r . Samuels. Proulx explained that she was

now taking four Percocet pills each day for pain. D r . Samuels

noted that he was “at a loss of what to do” or where to send

Proulx for treatment. He provided Proulx with OxyContin and

ordered a bone scan. On July 2 1 , 2003, the bone densitometry

report indicated normal bone mineral density.

On August 5 , 2003, Proulx was feeling better during her

exam with D r . Samuels, but her complaints remained the same.

Tr. 596. D r . Samuels noted that Proulx had a cervical epidural

steroid injection, with minimal relief, but was going back for a

second injection.

On August 2 7 , 2003, a cervical MRI revealed mid-cervical

spondylotic change with mild spinal stenosis at C3-4 and C4-5 as

a result of disc-osteophyte complex.5 A thoracic MRI on the same

date was unremarkable.

4 The date in the record is unclear. T r . 597. 5 Spondylitic refers to inflammation of one or more of the vertebrae. Stedman’s at 1456. Spinal stenosis is the narrowing of the spinal column. Id. at 1473. An osteophyte is a bony outgrowth. Id. at 1110. 5 Proulx continued to receive treatment from D r . Samuels

between 2003 and 2011. On February 1 5 , 2011, D r . Samuels

assessed Proulx’s residual functional capacity and stated that

she was unable to work. In an addendum to the February 15th

report, D r . Samuels stated that the limitations he noted in the

assessment were present in 2003 and have essentially been

constant since then. T r . 669.

In his February 1 5 , 2011 report, D r . Samuels stated that

Proulx frequently suffered from pain, was incapable of

performing even low stress jobs due to her pain, and could not

walk any city blocks without rest or severe pain. Further, he

stated that Proulx could sit for twenty minutes and stand for

ten minutes at a time and could only sit or stand and walk for

less than two hours in an eight-hour workday. He added that

Proulx could never lift or carry even less than ten pounds and

suffered from significant limitations regarding repetitive

reaching, handling, and fingering. Also, he stated that Proulx

could not stoop or crouch, would have “bad days and not so bad

days,” and would always have to miss some work days due to her

impairments. Finally, D r . Samuels opined that Proulx was

sensitive to heat and humidity and needed to avoid extreme cold

temperatures, dust, fumes, and gas.

6 2. Agency Examination

On December 2 1 , 2009, consulting physician, D r . Louis

Rosenthal reviewed Proulx’s treatment records and completed a

residual functional capacity assessment. D r . Rosenthal opined

that Proulx could perform light work with occasional postural

and exertional limitations.

B. Administrative Hearing

1. Proulx’s Testimony

At the March 3 , 2011 administrative hearing Proulx

testified that she had suffered pain since her car accident in

July 1998 and was unable to care for her small children without

outside assistance. Proulx testified that during the relevant

period she had problems with self-care and activities of daily

living and required help from her husband. Proulx said it was

difficult to drive because she had trouble looking over her

shoulder. It was painful to breastfeed her children or stand up

to prepare meals. She explained that her friends, family

members, and some of her husband’s employees often helped care

for the children when her husband was not home. She had to take

medication to fall asleep and she was unable to sleep through

the night.

2. Proulx’s Husband’s Testimony

Proulx’s husband testified that she received two to five 7 days of relief after receiving trigger point injections. He

testified that Proulx was unable to care for her children and

family and some of his employees have come to the home to help.

He noted that he took care of daily household activities,

including cleaning, cooking, and laundry.

3. Vocational Expert’s Testimony

A vocational expert (“VE”) testified that Proulx had worked

as a nurse’s assistant and as a salesperson. The VE testified

that Proulx could not perform her past relevant work because

those positions exceed the light exertional level.

The ALJ asked the VE to consider a hypothetical individual

with the same vocational factors as the claimant and assume the

person has the ability to perform light exertional work and the

opportunity to alternate positions every thirty minutes. The

ALJ asked the VE to assume that this hypothetical person must

occasionally climb stairs, stoop, crouch, kneel and crawl, but

is able to avoid climbing ladders, ropes, and scaffolds. The VE

testified that such a hypothetical individual could perform

unskilled occupations such as a small products assembler,

electronics worker, or an escort.

The ALJ also asked the VE to consider an individual with

the same vocational factors as the claimant, but instead assume

the ability to perform sedentary exertional work. The VE 8 testified that such a hypothetical individual could perform

unskilled occupations such as addresser, loader, or surveillance

system monitor.

C. Administrative Law Judge’s Decision

The ALJ issued his decision on March 2 1 , 2011, finding that

Proulx was not disabled within the meaning of the Social

Security Act from December 1 1 , 2002 through December 3 1 , 2003,

her date last insured, because she retained the residual

functional capacity ("RFC") to perform light work so long as she

could alternate positions every thirty minutes and stand from a

seated position for a few minutes and stretch. T r . 1 7 . The ALJ

determined that jobs exist in significant numbers in the

national economy that Proulx could perform. Id. at 2 0 .

The ALJ’s decision became the final decision of the

Commissioner on August 3 0 , 2011, when the Decision Review Board

failed to complete a timely review.

I I . 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 9 found facts [based] upon the proper quantum of evidence.” Ward

v . Comm’r of Soc. Sec.,

5 2 , 655 (1st Cir. 2000).

The findings of fact made by the ALJ are accorded deference

as 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 & Human Servs.,

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

Health & 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. Irlanda 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 10 first four steps, of proving that her impairments preclude her

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

Proulx challenges the ALJ'S decision to deny her disability

claim by arguing that he erroneously gave greater weight to the

opinions of Drs. Tilton and Rosenthal than he gave to the

conflicting opinion of D r . Samuels.

A. Evaluating Conflicting Medical Opinions

The court reviews an ALJ’s factual findings under the

deferential “substantial evidence” standard and must uphold the

ALJ’s determinations if substantial evidence in the record

supports them. Ward,

. When determining a

claimant’s eligibility for disability benefits, an ALJ must

consider all medical opinions in the case record.

(b). To the extent that the record includes evidentiary

conflicts, the agency, not the court, must resolve them.

Irlanda Ortiz,

. 11 Generally, if there is a treating physician, the ALJ must

give his or her opinion controlling weight if it is “well-

supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with other

substantial evidence in the record.” See

(d)(2); Leahy v . Raytheon Co.,

1 , 20 (1st Cir.

2002). If there are two treating physicians who reach contrary

conclusions, however, the ALJ cannot give controlling weight to

both opinions and must therefore weigh the conflicting evidence.

See Shaw v . Sec’y of Health & Human Services,

(Table),

, at *3 (1st Cir. June 9, 1994) (per

curiam); Irlanda Ortiz,

.

In resolving conflicts in the medical evidence, the ALJ

must articulate “good reasons” for the weight given to each

treating source’s opinion. See

(c)(2). The

ALJ considers several factors when weighing conflicting medical

opinions including: the length of the treatment relationship and

frequency of examination; the nature and extent of the

relationship; the extent to which the evidence, and the

physician’s explanation of that evidence, supports the opinion;

the consistency of the opinion in the context of the record as a

whole; whether the treating physician is a specialist in the

field; and any other factors that tend to support or contradict 12 the opinion. Id.; § 404.1527(c)(2)-(6). The ALJ’s order “must

be sufficiently specific to make clear to any subsequent

reviewers the weight the adjudicator gave to the treating

source's medical opinion and reasons for that weight.” Young v .

Astrue, Civil N o . 10-CV-417-JL,

, at *9 (D.N.H.

Sept. 1 5 , 2011) (quoting SSR 96-2P,

(July 2 ,

1996)).

B. ALJ’s Treatment of Opinion Evidence

Reading Proulx's argument through the lens of the

controlling legal standard, his principal claim is that reversal

or remand is required because the ALJ lacked "good reasons" for

the way in which he resolved conflicts in the opinion evidence.

I disagree.6

The ALJ articulated good reasons to discount D r . Samuels’s

opinion. An ALJ may discount a treating source opinion if it

6 Proulx alludes to two additional arguments that do not require extensive discussion. To the extent that Proulx argues that the ALJ was required to give controlling weight to D r . Samuels' opinion because he was a treating source, his argument fails because his opinion was in conflict with the opinion of D r . Tilton, who was also a treating source. See Shaw,

(Table),

, at * 3 . As I have explained, an ALJ cannot simply defer to the opinion of one treating source when it is in conflict with the opinion of another treating source. Proulx's alternative argument, that the ALJ was required to adopt D r . Samuels' opinion because he is a specialist, is also a nonstarter because a treating physician's specialty is only one of many factors that the ALJ considers when weighing a medical opinion.

(d)(1)-(6). 13 conflicts with “the claimant’s documented complaints,” evidence

of his activity level, and other medical evidence in the record

or if the opinion is conclusory. See

(d);

Young,

, at * 8 . The ALJ discounted D r . Samuels’s

opinion because D r . Samuels’s treatment notes prior to December

3 1 , 2003 do not support his conclusions about Proulx’s level of

functional limitation and his opinion is inconsistent with other

evidence in the record, including the findings of Drs. Tilton

and Rosenthal. See Shaw,

(Table),

,

at * 3 ; Webster v . Astrue,

(D. Neb.

2009); T r . 14–21.

Dr. Samuels found that Proulx was incapable of even “low

stress” jobs because of the chronic pain she was experiencing.

Tr. 665. To support his conclusion, D r . Samuels refers to a

note from February 2 , 2011, but most of the clinical findings

and diagnostic history discussed in the note occurred after

December 3 1 , 2003.

at 684–88. In the RFC questionnaire,

Dr. Samuels indicated that he first saw Proulx in 2001 and

listed her diagnosis as ankylosis spondylitis and chronic pain. 7

He noted observing symptoms of fatigue, pain, and tenderness,

7 D r . Samuels filled out a “new patient” report for Proulx on February 1 2 , 2003. T r . 599–600. 14 but never mentioned a diagnosis of fibromyalgia in the RFC

questionnaire. See

at 664–68.

Furthermore, D r . Samuels’ treatment notes from 2003 do not

document any observed functional limitations that would support

the level of disability he asserts in the questionnaire. See

at 596–600. On February 1 2 , 2003, D r . Samuels noted that

Proulx had a full range of motion, but tenderness at trigger

points. Id. at 600. On June 3 0 , 2003, D r . Samuels stated that

he had no explanation for her pain. Id. at 597. The ALJ

reasonably found that D r . Samuels’s conclusions about Proulx’s

RFC were not supported by D r . Samuels’s treatment notes.

As the ALJ notes, there is no evidence in the medical

record of Proulx’s inability to ambulate or perform fine and

gross movements effectively. Id. at 1 7 . In fact, there is

evidence that Proulx was able to exercise and volunteer part-

time in a pet grooming business. D r . Tilton noted that her

motor strength is “5/5.” Id. at 582. While treatment notes

often indicate that Proulx often complained of pain, on several

occasions D r . Tilton notes that Proulx was feeling better and

even described herself as “not too bad” and “doing pretty well.”

Id. at 513, 5 1 4 , 518. D r . Tilton’s clinical notes indicate that

Proulx was exercising: pushing her kids outside for a walk,

engaging in water therapy twice a week, swimming, and yoga. Id. 15 at 5 3 1 , 559, 569. Even D r . Samuels’s notes state that Proulx

was able to exercise occasionally. Id. at 685. In 2002, Proulx

was volunteering at her mother’s pet grooming business. Id. at

539. This record evidence runs counter to D r . Samuels’s

assessment of Proulx’s residual functional capacity.

The ALJ instead credits Drs. Tilton and Rosenthal’s

findings. The record includes substantial evidence to support

the ALJ’s decision to afford great weight to the opinions of

Drs. Rosenthal and Tilton and discount D r . Samuels’ opinion.

Both Drs. Rosenthal and Tilton opined that Proulx retained the

RFC to perform a range of work at the light exertional level and

supported their opinions with references to the record and

Proulx’s complaints. Id. at 19–20.

Dr. Tilton is a physiatrist, or a specialist in physical

medicine. See White v . Barnhart,

5 4 , 660 (7th Cir.

2005) (“physiatrists are experts in diagnosing and treating

acute and chronic pain and musculoskeletal disorders”);

Stedman’s at 1197. D r . Tilton treated Proulx regularly for

myofascial pain and fibromyalgia with medication management and

regular trigger point injections since August 3 1 , 2001. D r .

Tilton’s opinion was offered prior to the date last insured and

is consistent with the evidence of record. T r . 1 9 . On December

1 1 , 2002, D r . Tilton assessed Proulx’s RFC and noted that Proulx 16 suffered from significant pain despite treatment, but that she

nonetheless retained the functional capacity for “full-time

sedentary work, or work in the light category, that would allow

her to change position frequently, and not involve any sustained

or repetitive cervical motion, or lifting.” Id. at 540.

Proulx asserts that D r . Tilton was only opining about her

functional limitations caused by a car crash, and did not intend

to provide a full evaluation of all of Proulx’s limitations.

There is no indication in the record, however, that D r . Tilton

intended to ignore Proulx’s underlying and preexisting

conditions when assessing Proulx’s work capacity.

Next, Proulx challenges the weight the ALJ afforded D r .

Rosenthal’s opinion. She asserts that the ALJ failed to

consider (1) that D r . Rosenthal’s opinion is based on objective

clinical evidence that is not germane to an evaluation of her

primary disabling condition of fibromyalgia; and (2) D r .

Rosenthal is not a specialist in rheumatology. As discussed

above, a physician’s specialty is only one of many factors the

ALJ must consider.

(d)(1)-(6). Drs.

Rosenthal, Tilton, and the ALJ accept D r . Samuels’ diagnosis of

fibromyalgia, credit Proulx’s complaints, and acknowledge the

existence of trigger points. The ALJ did not accept D r . Samuels

assessment of Proulx’s degree of functional limitation; he found 17 Dr. Tilton’s and D r . Rosenthal’s opinions more credible. Dr.

Rosenthal’s opinion cites and is consistent with the opinion of

Dr. Tilton, a treating physician, and the record evidence.

IV. CONCLUSION

For the reasons set forth above, Proulx’s Motion for Order

Reversing Decision of the Commissioner (Doc. N o . 7 ) is denied

and defendant’s Motion for Order Affirming the Decision of the

Commissioner (Doc. N o . 8 ) is granted. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

October 1 1 , 2012

cc: Gretchen Leah Witt, AUSA Christopher G. Roundy, Esq.

18