UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Marie Carmo Gruhler

v. Civil No. 17-cv-208-JD Opinion No.

Nancy Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Marie Gruhler seeks judicial review, pursuant to

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

Security, denying her application for disability benefits under

Title II the Social Security Act. Gruhler moves to reverse on

the grounds that the Administrative Law Judge (“ALJ”) erred in

weighing opinion evidence, in considering her impairments, and

in failing to find that she is disabled. 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); see also Fischer v. Colvin,

(1st Cir. 2016). Substantial evidence is “more than a mere

scintilla.” Richardson v. Perales,

(1971).

When the record could support differing conclusions, the court

must uphold the ALJ’s findings “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)

(internal quotation marks omitted).

Background

Gruhler applied for social security benefits in June of

2014 when she was sixty-one years old. She completed the

twelfth grade in school and had previously worked as an

electronics inspector at Sylvania.

After a fall in August of 2012, Gruhler was examined in the

emergency room at Concord Hospital. Despite tender spots along

her spine, Gruhler’s strength, sensation, and gait were normal.

A CT scan and xrays showed were negative. A second review of

her xrays showed “a non-displaced proximal scaphoid wrist

fracture.”

2 Gruhler began physical therapy in September of 2012,

because of constant head and neck pain, back pain, and short-

term memory problems. At an appointment in October of 2012,

Gruhler’s right ankle was swollen after a two-mile walk.

Gruhler was referred to a foot doctor because of right ankle

pain.

Dr. Ronald Resnick noted swelling in Gruhler’s foot and

ankle. Gruhler explained that when she hurt her wrist in the

August fall she also injured her ankle. Dr. Resnick noted that

x-rays did not show a fracture but put Gruhler in a removable

cast boot. A CT scan of Gruhler’s ankle on October 11, 2012,

“showed a tiny avulsion type fracture at the tip of the lateral

malleolus with focal soft tissue swelling.” At subsequent

appointments Gruhler continued to complain of right ankle pain.

Gruhler also began physical therapy for her ankle. The

physical therapist noted that Gruhler had exceeding

hypersensitivity in the ankle and was concerned about potential

Complex Regional Pain Syndrome (“CRPS”). Dr. Resnick referred

Gruhler to pain management.

Gruhler continued to have pain in her wrist following the

fall. Dr. Mollano recommended that she use a stimulator and

wrist splints.

Through November of 2012, Gruhler continued to complain of

pain in her ankle and continued to wear the boot, although she

3 was told she did not need the boot. Dr. Resnick told Gruhler to

take off the boot and “to push through the pain.” Dr. Resnick

believed that Gruhler’s pain was due to CRPS because nothing was

structurally wrong with her ankle.

An occupational therapist, Paul Bonzani, evaluated

Gruhler’s wrist pain in November of 2012. He concluded that her

pain suggested CRPS and planned a therapy program to control

pain and increase her function.

Gruhler saw Dr. James Mirazita in December of 2012 for pain

management related to her ankle. Dr. Mirazita diagnosed

myofascial pain syndrome and scheduled a right lumbar

sympathetic block. Dr. Resnick saw Gruhler in January of 2013

for reevaluation of her ankle. Dr. Resnick noted that there was

no structural cause for the pain Gruhler claimed.

Dr. Davis Clark evaluated Gruhler’s back pain in January of

2013. He found that Gruhler had tenderness at some spinal

points but not others and that her range of motion in her legs

and hips was limited. Gruhler’s neurological examination of her

legs was normal.

Dr. Mirazita did nerve blocks in February and March of

2013, which improved Gruhler’s pain level and mobility. During

his examinations between January and July of 2013, Dr. Mirazita

found that Gruhler was not in acute distress, her neck and back

ranges of motion were normal, no evidence of spasms, and no pain

4 due to facet joint disease. Her arm and leg ranges of motion

were also normal, except for a reduced range of motion in her

right ankle. Gruhler’s ankle pain reduced to two out of ten by

July of 2013.

Dr. Clark found minimal lumbar spine tenderness in April of

2013. During physical therapy, the therapist noted that Gruhler

continued to be very limited in her functioning because of her

“right ankle fracture.” Dr. Mirazita noted that Gruhler had

increased ankle pain with walking.

In September of 2014, Gruhler reported worsened ankle pain.

Dr. Russell Brummett noted that Gruhler had a difficult time

standing and walking but was in no acute distress, her cervical

range of motion was intact, motor testing on her legs was normal

and she was walking with a stable upright gait. Dr. Mollano

diagnosed Gruhler with bilateral carpal tunnel syndrome in

October of 2014.

Dr. Peter Loeser did a consultative examination of Gruhler

on October 2, 2014. Based on Gruhler’s records, Dr. Loeser

noted early degenerative disease in the lumbar spine. He found

on examination that Gruhler was in no apparent distress, had

normal cervical range of motion, no tender points on spinal

palpation, and no spasms. The examination of her thoracic spine

was also normal. Gruhler had mild tenderness in the lower

lumbar areas. Dr. Loeser found that Gruhler had normal range of

5 motion and strength in her arms and legs with no pain. She had

mild pain in her right ankle. Dr. Loeser found that Gruhler had

a normal ability to sit, stand, get on and off the examination

table, squat, and walk.

Gruhler had an MRI of the lumbar spine the week after her

examination with Dr. Loeser. Dr. Brummett examined Gruhler in

mid-October and found that the MRI indicated only mild

degenerative changes. He noted that it would be reasonable for

Gruhler to try exercise and therapy, although Gruhler found it

exacerbated her issues. Dr. Brummett recommended chiropractic

treatment and a physiatrist.

Dr. John MacEachran assessed Gruhler’s functional capacity

on October 21, 2014. He found that Gruhler could do work at the

light exertional level and could occasionally do postural

activities. Gruhler saw Dr. Sarah Glover on October 25, 2014,

who found on examination that Gruhler was tender over lower back

muscles but had normal strength in her arms and legs and her

sensation was intact. Dr. Glover noted that Gruhler’s gait was

antalgic.

After another nerve block, Gruhler saw Dr. Glover in

November of 2014. Dr. Glover noted that Gruhler was doing well,

walking better, and was in no acute distress. On examination,

Dr. Glover found normal results.

6 Dr. Brummett asked Dr. Lewis to evaluate Gruhler because of

low back problems. Based on his examination in November of

2014, Dr. Lewis thought that Gruhler fit the criteria for

fibromyalgia. In December, Dr. Lewis noted that Gruhler had

improved with manipulation and that the fibromyalgia tender

points were much better.

Dr. Glover reviewed a bone scan in December of 2014 and

found osteoporosis. In January of 2015, Dr. Glover completed a

residual functional capacity questionnaire in which she noted

that she had seen Gruhler three times, beginning in October of

2014. Dr. Glover found that Gruhler was limited in her ability

to stand and walk in a work day, and in her ability to lift

weight and use her hands for grasping and turning. Dr. Glover

also thought that Gruhler would miss more than four work days

each month.

Dr. Lewis examined Gruhler in January of 2015, the day

after Dr. Glover completed the questionnaire. Dr. Lewis found

that Gruhler had improved. Gruhler’s subsequent medical records

also generally show improvement and normal results on

examination.

In March of 2015, Dr. Mollano found that Gruhler had

tenderness in her right thumb and a positive test for carpal

tunnel syndrome. Dr. Mollano also found that her right hand

sensation and finger flexors and extensors were intact and that

7 she had no atrophy in her hands. Dr. Mollano recommended that

she use a brace as needed for symptoms. When Gruhler reported a

flare up of pain in her right foot after dancing at a wedding,

Dr. Mirazita noted her reports and also noted a diagnosis of

CRPS in October of 2015.

Gruhler testified at a hearing before an ALJ in January of

2016. She reported difficulty with sitting for more than

fifteen minutes, difficulty with reaching and picking up

objects, and problems with memory and concentration due to pain.

She reported pain down the whole right side of her body and

numbness in her hands and fingers.

A vocational expert also testified at the hearing. In

response to the ALJ’s questions, the vocational expert testified

that Gruhler’s past work as an inspector was at the light

exertional level.

The ALJ found that Gruhler had severe impairments due to

degenerative disc disease, right ankle fracture, osteoarthritis

of her knees, right shoulder, and left hip. Despite those

impairments, the ALJ found that Gruhler retained the functional

capacity to do light work with limitations to occasionally doing

postural activities. The ALJ found that Gruhler could return to

her past work as an inspector. The Appeals Council denied

Gruhler’s request for review of the ALJ’s decision.

8 Discussion

Gruhler moves to reverse the ALJ’s decision. In support

she contends that the ALJ failed to properly weigh Dr. Glover’s

opinion, erred in relying on the opinions of non-examining

consultants, failed to consider her impairment due to Complex

Regional Pain Syndrome (“CRPS”), and erred in failing to find

her disabled under the Medical Vocational Guidelines. The

Acting Commissioner moves to affirm.

A. Dr. Glover’s Opinion

An ALJ is required to consider the medical opinions along

with all other relevant evidence in a claimant’s record.

(b). “Medical opinions are statements from

acceptable medical sources that reflect judgments about the

nature and severity of [the claimant’s] impairment(s), including

[the claimant’s] symptoms, diagnosis and prognosis, what [the

claimant] can still do despite impairment(s), and [the

claimant’s] physical or mental restrictions.” § 404.1527(a)(1).

Medical opinions are evaluated based on the nature of the

medical source’s relationship with the claimant, the consistency

of the opinion with the other record evidence, the medical

source’s specialty, and other factors that support or detract

from the opinion. § 404.1527(c).

9 A “treating source” is a physician or other acceptable

medical source who has provided “medical treatment or evaluation

and who has, or has had, an ongoing treatment relationship with

[the claimant].” § 404.1527(a)(2). An “ongoing treatment

relationship” exists “when the medical evidence establishes that

[the claimant] see[s], or ha[s] seen the [physician] with a

frequency consistent with accepted medical practice for the type

of treatment and/or evaluation required for your medical

condition(s).” Id. A treating physician’s opinion is generally

given more weight because they are likely to be “able to provide

a detailed, longitudinal picture of [the claimant’s] medical

impairment(s) and may bring a unique perspective to the medical

evidence.” § 404.1527(c)(2).

If a treating physician’s opinion is well-supported by

objective medical evidence and not inconsistent with other

medical evidence in the record, the ALJ will give the opinion

controlling weight. Id. When the ALJ does not give a treating

physician’s opinion controlling weight, the ALJ will consider

the length of the treatment relationship and the frequency of

examinations along with the other factors used to assess all

medical opinions. § 404.1527(c).

Dr. Glover is a primary care physician who first met with

Gruhler on October 24, 2014, “to establish care” and to re-start

Gruhler’s medication for depression. Dr. Glover saw Gruhler

10 again on November 7, 2014, for a physical, and on December 2,

2014, for a follow up visit on the results of Gruhler’s dexa

scan for bone density.

On January 12, 2015, Dr. Glover completed a physical

residual functional capacity questionnaire in which she noted

that Gruhler’s prognosis for improvement was good but that she

could not do work at even the sedentary level, had very limited

use of her hands, had pain that would interfere with her

attention and concentration, and would be absent from work for

more than four days each month. Dr. Glover stated that

Gruhler’s symptoms and limitations began in August of 2012,

based on Gruhler’s report.

The ALJ gave Dr. Glover’s opinions in the questionnaire

little weight. The ALJ explained that the opinions were based

on only three office visits and conflicted with Dr. Glover’s own

statement that Gruhler had a good prognosis. The ALJ also found

that Dr. Glover’s opinions conflicted with the objective medical

evidence, including normal neurological examination results, and

noted that Dr. Glover appeared to base her opinions on Gruhler’s

subjective reports which were not supported by the record.

Gruhler faults the ALJ for noting that she had had only

three visits with Dr. Glover. Gruhler argues that because Dr.

Glover is a treating physician, her opinion should have been

given greater weight than the opinions of the state agency

11 physicians who did not have a treating relationship with her.1

She also contends that the ALJ ignored the record evidence

available to Dr. Glover and that Dr. Glover’s opinions were

based on the record evidence, not on Gruhler’s subjective

complaints.

The ALJ properly considered the length of the treatment

relationship and the frequency of visits in Gruhler’s

relationship with Dr. Glover. § 404.1527(c)(2)(i) & (ii). In

addition, the ALJ did not evaluate the opinion based on only the

length and frequency of the treatment relationship. The ALJ

also noted the inconsistencies in Dr. Glover’s opinions and the

inconsistencies with Gruhler’s medical record as a whole.

Dr. Glover provided opinions on functions that she does not

appear to have assessed in the course of her three treatment

visits with Gruhler, such as Gruhler’s hand function and

interference in her attention and concentration. Dr. Glover

also provided no explanation of the source of her opinions in

the questionnaire other than Gruhler’s own reports and her

observation that Gruhler was limping. Contrary to the

1 There is no requirement that treating physician’s opinions be given more weight that the opinions of state agency consultants. Instead, all medical evidence must be considered and weighed as provided in § 404.1527. An ALJ may rely on the opinion of a state agency consultant as medical opinion evidence. § 404.1527(e).

12 questionnaire opinions, Dr. Glover’s treatment notes from her

physical examination on October 24, 2014, show that Gruhler was

in no acute distress, had no edema or discoloration in her

extremities, had normal muscle strength, and intact sensations.

The ALJ considered Dr. Glover’s opinions in the questionnaire

and appropriately gave them little weight.

B. State Consultant Physician Opinions

Gruhler contends that the ALJ erred in relying on the

opinions of consultant physicians, Dr. Loeser and Dr.

MacEachran, because they did not review later medical evidence.2

Gruhler cites an MRI of the lumbar spine done on October 7,

2014, “imaging of the wrists that later revealed bilateral

carpal tunnel syndrome,” and examinations that “confirm the

presence of CRPS of the right ankle” as new evidence that Dr.

Loeser and Dr. MacEachran did not review.

The opinion of a non-examining reviewing consultant that is

based on “a significantly incomplete record” is not substantial

evidence to support an ALJ’s decision. Alcantara v. Astrue,

(1st Cir. 2007). An ALJ may rely on an

opinion based on an incomplete record as long as any new

2 Dr. Loeser examined Gruhler on October 2, 2014, and based his opinions on his examination, along with his review of her record. For that reason, Dr. Loeser was not a non-examining consultant.

13 evidence does not show a material change for the worse in the

claimant’s limitations. Giandomenico v. U.S. Social Security

Admin.,

, at *4 (D.N.H. Nov. 15, 2017). The ALJ

bears the burden to determine and explain that any new evidence

is not material. Id.

1. MRI of the Lumbar Spine

The ALJ explained in the decision that the MRI of the

lumbar spine was assessed by Dr. Brummett who found only mild

degenerative changes and recommended chiropractic treatment.

Dr. Brummett also found normal range of motion and normal

neurological results. For that reason, the ALJ concluded that

the later MRI did not show a material change. Therefore, the

ALJ properly explained why the MRI of the lumbar spine did not

affect the completeness of the record.

2. Wrist

Both Dr. Loeser and Dr. MacEachern noted that Gruhler had

injured her wrists and claimed disability because of it. Dr.

Loeser wrote that Gruhler had a history of carpal tunnel

syndrome and that she wore splints for that reasons. On

examination, Dr. Loeser found that Gruhler had no abnormalities

in her wrists, had normal range of motion without pain, and had

no pain in the wrists with palpation. Dr. MacEachern relied on

Dr. Loeser’s examination in forming his opinion.

14 In support of her argument that the record includes new

evidence to support her wrist impairment, Gruhler cites Dr.

Mollano’s treatment note from October 1, 2014. In his notes,

Dr. Mollano states that “[t]wo views of each wrist reveal ulnar-

neutral variance with left ulnar-shortening osteotomy plate

visible at the distal ulna with decent joint spaces overall.”3 On

examination, Dr. Mollano found tenderness in Gruhler’s hands and

a positive test for carpal tunnel syndrome. Dr. Mollano also

found, however, that both hands had intact flexors and

extensors, full wrist and forearm range of motion, and other

normal results.

Dr. Mollano examined Gruhler on October 1, 2014, and Dr.

Loeser examined her on October 2, 2014.4 Both noted carpal

tunnel syndrome and both otherwise found normal results on

examination of Gruhler’s wrists. Given that record, there is no

new evidence to show that Gruhler’s wrist impairments were

materially worse than Dr. Loeser found in his examination.

3 It is not clear whether this note refers to new x-rays or to x-rays done previously.

4 Although Dr. Mollano’s treatment preceded the consultant’s opinions, apparently Dr. Loeser and Dr. MacEachern did not have Dr. Mollano’s notes to review.

15 3. CRPS

Gruhler also contends that the consultant physicians failed

to consider her impairment due to CRPS of the right ankle. As

she acknowledges, however, the record reviewed by the consultant

physicians included findings related to CRPS. Dr. Loeser also

examined Gruhler’s ankle and found a normal range of motion, no

deformities or abnormalities, and no pain on palpation.

Findings related to CRPS do not provide new evidence that post-

dated the consultant opinions, and Gruhler does not suggest that

naming the syndrome would change the results of Dr. Loeser’s

physical examination.

4. Result

The ALJ properly explained why the lumbar MRI results,

which the consultant doctors did not review, did not show

material worsening of Gruhler’s impairments. Neither the wrist

imaging nor findings related to CRPS presented new evidence of

worsening impairments.

C. ALJ’s Consideration of CRPS

Gruhler contends that the ALJ erred in failing to consider

her CRPS of the right ankle and contends that the ALJ should

have found CRPS to be a severe medically determinable impairment

16 at step two.5 In support, she cites Social Security Ruling 03-

2p, Titles II and XVI: Evaluating Cases Involving Reflex

Sympathetic Distrophy Syndrome/Complex Regional Pain Syndrome to

show that transient pain symptoms are consistent with CRPS and

that CRPS can be a severe medically determinable impairment.

Even if the ALJ erred in failing to find that CRPS of Gruhler’s

right ankle was a severe medically determinable impairment at

step two, any error is harmless as long as the ALJ considered

that impairment in assessing Gruhler’s residual functional

capacity at step four. See, e.g., Delia v. Comm’r of Social

Security,

(11th Cir. 2011); Fortin v.

Colvin,

, at *10 (D. Mass. Mar. 31, 2017).

The ALJ did not ignore Gruhler’s right ankle pain and CRPS.

Instead, the ALJ found at step two that Gruhler’s history of

right ankle fracture was a severe impairment. In the context of

assessing her residual functional capacity, the ALJ noted Dr.

Resnick’s assessment of CRPS in November of 2012. The ALJ

relied on the opinions of Dr. Loeser and Dr. MacEachern that

5 In determining whether a claimant is disabled, the ALJ follows a five-step sequential analysis.

. The steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether she has a severe impairment; (3) determining whether the impairment meets or equals a listed impairment; (4) assessing the claimant’s residual functional capacity and her ability to do past relevant work; and (5) determining whether the claimant can make an adjustment to other work. § 404.1520(a).

17 Gruhler could do light work with certain postural limitations

despite her right ankle pain and CRPS.

Therefore, Gruhler has not shown that the ALJ erred in

failing to identify CRPS as a severe medical determinable

impairment or that any error would require reversal.

D. Medical-Vocational Guidelines

The Medical-Vocational Guidelines, Appendix 2 to 20 C.F.R.

Part 404, Subpart P, provide a “streamlined method” for

determining whether a claimant who meets certain criteria is

disabled. Heggarty v. Sullivan,

(1st Cir.

1991); Holmes v. Colvin,

, at *11 (D. Mass. Dec.

22, 2016). Pertinent to this case, Gruhler contends that she

should have been found to be disabled under section 202.06

because she is only capable of sedentary work, is of advanced

age, and lacks transferable skills. The ALJ, however, found

that she is capable of light work. Therefore, section 202.06

does not apply.

Conclusion

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

(document no. 13) is denied. The Acting Commissioner’s motion

to affirm (document no. 15) is granted.

18 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge December 20, 2017

cc: Mathew Beausoleil, Esq. Terry L. Ollila, Esq. T. David Plourde, Esq. D. Lance Tillinghast, Esq.

19