UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Theresa Trumbull

v. Civil No. 14-cv-218-JD Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Theresa Trumbull seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

the Social Security Administration, denying her application for

disability insurance benefits. In support of reversing the

decision, Trumbull contends that the Administrative Law Judge

(“ALJ”) erred in evaluating the medical opinion evidence, failed

to consider the record evidence, and erred in making the residual

functional capacity and credibility assessments. The Acting

Commissioner moves to affirm.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s factual

findings as long as they are supported by substantial evidence. § 405(g). “Substantial evidence is more than a scintilla. It

means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Astralis Condo. Ass’n v.

Sec’y Dep’t of Housing & Urban Dev.,

(1st Cir.

2010). Substantial evidence, however, “does not approach the

preponderance-of-the-evidence standard normally found in civil

cases.” Truczinskas v. Dir., Office of Workers’ Compensation

Programs,

(1st Cir. 2012).

Background

In February of 2012, Trumbull filed an application for

social security benefits, claiming a disability that began in

April of 2010. Trumbull alleged that she was disabled by

fibromyalgia, multiple sclerosis, chronic lower back pain,

depression, and anxiety. She has a high school education and

previously worked as a construction site cleaner and a bartender.

Trumbull was forty-nine years old at the time of her application.

A. Medical Records Evidence

The medical evidence begins with records of an incident in

the early morning of February 3, 2010, when a passerby found

Trumbull outside and unable to walk. She was transported by

ambulance to a hospital emergency room where she said she had

consumed alcohol and taken anti-anxiety medication and then went

outside to look at the stars. She fell asleep outside and had

difficulty walking when she awoke. Trumbull had knee pain due to

2 abrasions, bruising, and frostbite. She was diagnosed with

alcohol abuse, polysubstance abuse, and methadone withdrawal.

Trumbull saw Dr. Russell Brummett at Concord Orthopedics in

March of 2010 for back pain following a car accident in February.

On examination, Trumbull walked normally but slowly, had a

diminished cervical range of motion, normal arm and leg strength,

and tenderness along her lumbar spine. Dr. Brummett diagnosed

cervical, thoracic, and lumbosacral sprain or strain caused by

the accident without neurological deficits. He recommended physical therapy.

In May of 2010, Trumbull reported to Dr. Brummett that she

had tried physical therapy but stopped because the physical

therapist was not comfortable continuing due to Trumbull’s low

back pain. Trumbull had a normal gait, full cervical range of

motion, and was neurovascularly intact in her arms and legs. She

said that her pain was in her low back, and she had diminished

lumbosacral range of motion although she had no discernible

tenderness in the lumbosacral spine area. Dr. Brummett made the

same diagnosis as previously and advised Trumbull to continue

home exercises. At a follow up appointment in August, Dr.

Brummett diagnosed lumbar degenerative disc disease and facet

arthritis. He scheduled cortisone injections but advised

Trumbull that the relief from injections was only temporary and

that she would have to make lifestyle changes to include

exercise, strengthening, and conditioning for improvement.

3 In October of 2010, her primary care practice referred

Trumbull to Pain Care Centers, where she saw a physician’s

assistant, Christopher Clough, for a consultation about her low

back pain and neck pain. Trumbull complained of a plethora of

ills, including back pain, fevers, chills, sweats, amenorrhea,

stiffness, arthritis, paresthesias, tremors, vertigo, and

anxiety. P.A. Clough performed an examination, noting that

Trumbull was in no acute distress and had normal gait and

station. He found that Trumbull had normal range of motion with no joint enlargement or tenderness. Her neurologic examination

was unremarkable. P.A. Clough assessed Trumbull with sacroiliac

backache, chronic low back pain, and depression. He prescribed

Flexeril and recommended sacroiliac injections.

Examinations in November, December, and January of 2011

yielded similar results, but P.A. Clough added the pain

medication, Vicodin, and tried trigger point injections in

January. In February of 2011, Trumbull reported improvement, and

her examination results were similar to previous examinations.

In March, Trumbull reported back spasms, but her examination

results were similar to previous results. P.A. Clough changed

Trumbull’s pain medication prescription to Norco.

In May of 2011, Trumbull raised new symptoms at her

appointment with P.A. Clough reporting a sudden onset of multiple

joint pain. P.A. Clough’s examination showed that Trumbull was

in no acute distress, had normal gait and station, had some mild

or minimal spinal tenderness, and had the same test results as

4 prior examinations. A month later, Trumbull again complained of

multiple joint pains, but P.A. Clough’s examination had the same

results as the prior examinations. P.A. Clough prescribed

Oxycodone and Norco, pain medications.

Trumbull saw her primary care physician, Peter Cook, M.D.,

in July of 2011. Dr. Cook noted Trumbull’s history of right back

pain following the accident in February of 2010, along with

anxiety and depression. On examination, Dr. Cook found that

Trumbull was alert; in no acute distress; had normal motor function, gait, and station; was oriented in all spheres, and had

appropriate affect and mood. He assessed Trumbull with fatigue,

depression, and anxiety and questioned a bipolar disorder. He

noted that she was doing well and would continue with the same

medications.

Trumbull had appointments with P.A. Clough in August and

September of 2011. P.A. Clough found the same results on

examination that he had found previously. He administered

trigger point injections and prescribed Roxicodone, a pain

medication.

Dr. Cook and P.A. Clough referred Trumbull to a

rheumatologist, Dr. John Shearman, who saw her in September of

2011. On examination, Dr. Shearman found that Trumbull’s motor,

sensory, mental, and gait systems were normal. Although she had

trigger points in several parts of her body, particularly the

hips, her joints had full range of motion without tenderness.

Dr. Shearman concluded that Trumbull did not have inflammatory

5 disease but might have fibromyalgia or pain amplification

syndrome. He also noted that treatment would be difficult

because of pain amplification.

In October, Trumbull reported to P.A. Clough that she was

generally doing better, but she complained of the same list of

symptoms. P.A. Clough found the same results on examination as

he had previously.

Trumbull reported to Dr. Cook in December of 2011 that she

had had a back spasm while shopping that caused her to fall forward onto her face. She said that she had continued to have

spasms and went to the emergency room where she was diagnosed

with a concussion. She said she was having a lot more back

spasms and asked about increasing her medications. Dr. Cook’s

examination produced the same normal results as he had previously

found, but he noted Trumbull’s complaints of pain and prescribed

a trial of Flexeril.

In January of 2012, Trumbull complained to Dr. Cook that she

was having trouble walking. Dr. Cook noted an abnormal gait and

assessed gait disturbance and paresthesia. He recommended that

Trumbull have a brain MRI to rule out multiple sclerosis.1

Trumbull continued to have follow up appointments with P.A.

Clough through 2012. Although Trumbull complained of increased

1 The parties’ joint factual statement does not indicate that an MRI was done.

6 pain, the examination results remained largely the same, with

normal findings.

In September of 2012, P.A. Clough referred Trumbull to Ann

Cabot, D.O. for an evaluation of multiple sclerosis. At the

appointment with Dr. Cabot, Trumbull complained of problems with

her memory, gait and balance issues, and bad anxiety and

nervousness. Trumbull also reported that she had just returned

from her honeymoon in Hawaii.

Dr. Cabot found that Trumbull was alert, in no acute distress, had normal spinal mobility, full range of motion in her

neck, and normal leg raising. Although Trumbull had an abnormal

gait in the examination room, Dr. Cabot noted that her gait

improved when she walked a longer distance to the check-out

window. The mental status examination showed that Trumbull was

oriented in all spheres but had difficulty with attention. Dr.

Cabot found that Trumbull had an abnormal gait and thought that

anxiety was a large component of Trumbull’s problems. Dr. Cabot

recommended a psychiatrist, yoga, and meditation.

In October of 2012, Trumbull was seen by Dr. Ashleigh Byrne

who noted that Trumbull had a normal gait and station and normal

head and neck alignment and mobility. Trumbull also had normal

range of motion and strength in her arms and legs and full

systemic muscle strength. Dr. Byrne assessed joint pain, chronic

low back pain, lumbar disc displacement, hyerlipidemia, and

depression.

7 B. Opinion Evidence

John MacEachran, M.D., a state agency physician, reviewed

Trumbull’s records and completed a residual functional capacity

assessment on May 16, 2012. Dr. MacEachran concluded that

Trumbull could lift and carry twenty pounds occasionally and ten

pounds frequently; could sit, stand, or walk for about six hours

in a work day, and could occasionally do postural activities.

In October of 2012, P.A. Clough completed a “Medical Source

Statement of Ability to Do Work-Related Activities (Physical).” He checked boxes on the form that Trumbull could occasionally

lift or carry up to ten pounds; could not sit, stand, or walk for

more than fifteen to forty-five minutes in a work day; could use

her hands occasionally for manipulative activities but could not

push or pull; could never use her feet for foot controls, and

could never do postural activities. To support his findings,

P.A. Clough referred generally to his treatment notes but

provided no specific findings or factors to support his

assessments.

P.A. Clough completed a “Medical Source Statement of Ability

to Work-Related Activities (Mental)” on the same day. He found

no limitation in Trumbull’s ability to carry out simple

instructions, make judgments on simple work related matters, and

interact appropriately. He found that she had mild limitations

in her ability to remember simple instructions and to respond

appropriately in work settings but marked limitations in her

ability to understand, remember, and carry out complex

8 instructions and make judgments on complex matters. Again, Mr.

Clough referred generally to his notes without any specific

support for his findings.

Dr. Cook completed a form titled “Medical Source Statement-

Physical” in October of 2012. He found that Trumbull could

occasionally lift and carry up to ten pounds; could sit for two

hours, stand for ten minutes, and walk for ten minutes in a work

day; could occasionally do manipulative activities with her hands

but not push or pull; could never use her feet for foot controls; and could not do postural activities. Dr. Cook also said that

Trumbull would sometimes need a cane and would need to lie down

at times. Dr. Cook also referred generally to his treatment

notes without citing any specific support.

C. Hearing

A hearing on Trumbull’s application was held before an ALJ

in December of 2012. Trumbull testified that she did not drive,

although she had a license, because she was afraid of having a

spasm while driving. She said that her disability began when she

injured herself by lifting something at work in April of 2012 and

that she could no longer work because of pain and depression.

She also said she spent two-thirds of her time in bed and that

she was miserable the rest of the time. Trumbull testified to

severe limitations in her activities because of physical and

mental symptoms.

9 A vocational expert appeared and testified at the hearing.

The ALJ posed a hypothetical claimant who could do work at the

light exertional level but was limited to routine tasks, could

tolerate only occasional workplace changes, could tolerate only

occasional interaction with co-workers and no cooperative tasks,

and could have no more than occasional and superficial contact

with the public. The vocational expert testified that the

hypothetical claimant could not return to the work Trumbull has

previously done but that there were other jobs the claimant could do. Specifically, the vocational expert identified jobs as a

night cleaner, hand packager, and laundry worker.

The ALJ issued the decision on January 11, 2013, in which he

found that Trumbull was not disabled.

Discussion

Trumbull contends that the ALJ erred in finding that her

allegations of the severity of her physical and mental

limitations were not credible and that she was capable of light

work. Trumbull argues that the ALJ should have given more weight

to the opinions of her treating medical providers and that the

ALJ failed to consider all of the record evidence. The Acting

Commissioner moves to affirm the decision on the ground that

substantial evidence supports the ALJ’s findings.

10 A. Medical Opinions

The ALJ is required to consider the medical opinions in a

claimant’s record.

(b). Medical opinions

are evaluated based on the examining relationship, the treatment

relationship, the amount of supporting evidence the medical

source provides, the consistency of the opinion with the record,

the medical source’s specialization, and other factors brought to

the ALJ’s attention. § 404.1527(c). A treating medical source’s

opinion about the nature and severity of a claimant’s impairment will be given controlling weight if it “is well-supported by

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the] case record.” § 404.1527(c)(2). A treating

medical source is the applicant’s own physician, psychiatrist,

psychologist, or other acceptable medical source. 20 C.F.R

§ 404.1502.

The ALJ considered the medical source statements provided by

Dr. Cook and P.A. Clough that ascribed severe limitations to

Trumbull’s physical capacity.2 The ALJ gave those opinions

little weight because the findings were provided by checks on a

form without explanation and because neither the medical records

generated by those providers nor the other medical records

2 Although P.A. Clough is not an acceptable medical source whose opinion could be entitled to controlling weight, the ALJ did not discount his opinion on that basis. See, e.g., Phan v. Colvin,

, at *9 (D.R.I. Nov. 12, 2014); Anderson v. Colvin,

, at *5 (D.N.H. Nov. 4, 2014).

11 supported those findings. As such, the ALJ provided appropriate

and adequate reasons for the weight given to those opinions. See

Disano v. Colvin,

, at *12 (D.R.I. Nov. 5, 2014).

B. Credibility

It is the responsibility of ALJ to determine whether the

claimant’s description of her symptoms is credible. Irlanda

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

(1st

Cir. 1991). In making that determination, the ALJ must first determine whether the claimant has an impairment that could

reasonably be expected produce the symptoms described. and, if

so, whether the record evidence supports the claimant’s

statements. Policy Interpretation Ruling Titles II and XVI:

Evaluation of Symptoms in Disability Claims: Assessing the

Credibility of an Individual’s Statements, SSR 96-7p,

, at *4 (July 2, 1996); see also Brown v. Colvin,

, at *10 (D.N.H. Nov. 24, 2014). The ALJ considers the

objective medical evidence in the record, the claimant’s

statements about the intensity and persistence of symptoms, and

other evidence, such as the claimant’s daily activities,

precipitating and aggravating factors, treatment, and

medications.

(c).

Trumbull argues that the record includes much evidence that

supports her claim of disability and that the ALJ erred in

relying on only some of the record evidence. Contrary to

Trumbull’s theory, “[i]t is the ALJ’s prerogative to resolve

12 conflicting evidence, and [the court] must affirm such a

determination, even if the record could justify a different

conclusion so long as it is supported by substantial evidence.”

Vazquez-Rosario v. Barnhart, 149 F. App’s 8, 10 (1st Cir. 2005)

(internal quotation marks omitted); see also Rodriguez v. Sec’y

of Health & Human Servs.,

(1st Cir. 1981). In

addition, while an ALJ must consider all of the record evidence,

an ALJ need not discuss every piece of evidence in the decision.

Dias v. Colvin, --- F. Supp. 2d ---,

(D. Mass. Sept. 30, 2014); Perry v. Colvin,

, at *2

(D.N.H. Sept. 23, 2014).

As the Acting Commissioner points out, the ALJ primarily

relied on the objective findings in the medical treatment notes

to conclude that Trumbull’s statements about the severity of her

symptoms were not credible. The medical records report that

Trumbull had a normal gait and station and normal examination

results.3 Trumbull cites parts of the medical records that

repeat her complaints and her descriptions of her pain and

limitations, which are her own subjective view of her

3 There are two exceptions. Dr. Cook noted in January of 2012 that Trumbull complained of trouble walking, and his examination showed an abnormal gait. Two weeks later, however, P.A. Clough noted that Trumbull had normal gait and station. Dr. Cabot noted in September of 2012 that Trumbull had an abnormal gait, but she also noted that Trumbull’s gait improved when she walked a longer distance. The next month Dr. Byrne reported that Trumbull had a normal gait.

13 impairments. The ALJ concluded that the medical record showed

that Trumbull’s impairments were not as severe as she claimed.

The ALJ also noted that Trumbull had traveled to Hawaii for

her honeymoon in September of 2012, only a few months before the

hearing. The ALJ concluded that if Trumbull’s physical and

mental limitations were as severe as she claimed, she would not

have been able to endure the approximately eleven-hour flight

each way. In response to the ALJ’s decision, Trumbull solicited

a letter from P.A. Clough that explained the treatment he provided, before Trumbull left, to make the trip possible, and

she relies on that evidence to refute the ALJ’s analysis.

Because P.A. Clough’s letter was not part of the record before

the ALJ, it cannot be considered here. Mills v. Apfel,

(1st Cir. 2001). Further, even if the letter were properly

part of the record, it would support a conclusion that with

appropriate treatment Trumbull is not disabled.

C. Residual Functional Capacity

A residual functional capacity assessment determines the

most a person can do in a work setting despite his limitations

caused by impairments.

(a)(1). The Acting

Commissioner’s residual functional capacity assessment is

reviewed to determine whether it is supported by substantial

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

(1st Cir. 1991); Pacensa v. Astrue,

(D. Mass. 2012).

14 The ALJ found that Trumbull had the residual functional

capacity to do light work that was limited to routine tasks. She

would also be limited to work environments with only occasional

changes in the workplace and only occasional interaction with co-

workers and the public. The ALJ also ruled out cooperative

tasks.

In making that finding, the ALJ evaluated all of the medical

evidence and relied on the opinion of the state agency

consultant, Dr. John MacEachran, that the ALJ concluded was consistent with Trumbull’s medical records. A properly supported

opinion of a non-examining consulting physician provides

substantial evidence to support an ALJ’s finding of residual

functional capacity particularly when, as here, the capacity

assessment is based on all of the medical evidence in the record.

Blackette v. Colvin, --- F. Supp. 3d ---,

(D. Mass. Sept. 25, 2014). Therefore, the ALJ’s residual

functional capacity finding is supported by substantial evidence.

Conclusion

For the foregoing reasons, the claimant’s motion to reverse

the decision of the Acting Commissioner (document no. 7) is

denied. The Acting Commissioner’s motion to affirm (document no.

10) is granted.

15 The decision of the Acting Commissioner is affirmed. The

clerk of court shall enter judgment accordingly and close the

case.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

January 8, 2015

cc: Christine Woodman Casa, Esq. Robert J. Rabuck, Esq.

16