Trumbull v. Colvin

Filing 12

///ORDER denying 7 Motion to Reverse Decision of Commissioner; granting 10 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Theresa Trumbull
v.

Civil No. 14-cv-218-JD
Opinion No. 2015 DNH 004

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
O R D E R
Theresa Trumbull seeks judicial review, pursuant to 42
U.S.C. § 405(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,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (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., 620 F.3d 62, 66 (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, 699 F. 3d 672, 677 (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.
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Trumbull had knee pain due to

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.
was unremarkable.

Her neurologic examination

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
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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
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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.
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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.

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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
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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 StatementPhysical” 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.

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A.

Medical Opinions

The ALJ is required to consider the medical opinions in a
claimant’s record.

20 C.F.R. § 404.1527(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, 2014 WL 5847557, at *9 (D.R.I. Nov. 12, 2014); Anderson
v. Colvin, 2014 WL 5605124, 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, 2014 WL 5771885, 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., 955 F.2d 765, 769 (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, 1996 WL
374186, at *4 (July 2, 1996); see also Brown v. Colvin, 2014 WL
6670637, 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.

20 C.F.R. § 404.1529(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
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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., 647 F.2d 218, 222 (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 ---, 2014 WL 5151294, at *14 (D.
Mass. Sept. 30, 2014); Perry v. Colvin, 2014 WL 4725380, 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.
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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.
1, 5 (1st Cir. 2001).

Mills v. Apfel, 244 F.3d

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.

20 C.F.R. § 404.1545(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., 955

F.2d 765, 769 (1st Cir. 1991); Pacensa v. Astrue, 848 F. Supp. 2d
80, 87 (D. Mass. 2012).
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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 coworkers 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 ---, 2014 WL 5151312, at *12
(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.

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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.

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