Duquette v . SSA CV-10-204-PB 07/28/11
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Loranda Sue Duquette
v. Civil N o . 10-cv-204-PB Opinion N o . 2011 DNH 121 Michael Astrue, Commissioner, Social Security Administrat
MEMORANDUM AND ORDER
Loranda Sue Duquette filed a complaint seeking review,
pursuant to 28 U.S.C. § 405(g), of the Commissioner’s decision
denying her application for disability insurance benefits and
supplemental security income. Duquette moves to reverse the
Commissioner’s decision on the grounds that the Administrative
Law Judge (“ALJ”) erred in failing to give controlling weight to
the opinion of her treating physician and that substantial
evidence is lacking to support the ALJ’s residual functional
capacity (“RFC”) assessment. The Commissioner moves to affirm
the decision. For the reasons provided below, I affirm the
Commissioner’s decision. I. BACKGROUND1
Loranda Sue Duquette was thirty-eight years old when she
applied for Social Security benefits due to cervical and spinal
problems, right arm pain, and a right foot injury from a
motorcycle accident. She left high school in the eleventh grade
and had worked as an assembler, a caretaker, a personal care
attendant, a camp cook, and a bookkeeper. Duquette’s last
insured date was December 3 1 , 2008.
A. Medical Treatment Records
In June 2006, Duquette saw her primary care physician, D r .
Judith Boule, at Dartmouth-Hitchcock Medical Center, “Medical
Center,” to request additional Percocet, an opioid and analgesic
medication used to treat moderate to severe pain, for her back
pain. Duquette explained that she planned to attend the
motorcycle events at “Bike Week” and needed medication to be able
to ride a motorcycle. D r . Boule prescribed the additional
Percocet, along with muscle relaxant medication, cyclobenzaprine.
During Bike Week, on June 1 8 , 2006, Duquette was in a
motorcycle accident and was transported to Lakes Region General
Hospital. On examination in the emergency room, Duquette was
1 The background information is taken from the parties’ Joint Statement of Material Facts. See LR 9.1(b). Citations to the Administrative Transcript are indicated by “Tr.”
2 found to have a subtle fracture of her right big toe, a contusion
of the pelvis, and abrasions. She was prescribed Vicodin for
pain control. D r . Boule examined Duquette the next day. Because
of her abrasions and abdominal pain, D r . Boule refilled
Duquette’s prescription for Percocet and provided other
medications. A week later, Duquette saw a physician’s assistant in D r . Boule’s office because of rib pain. Although testing
showed no abnormalities, Duquette’s Percocet prescription was
refilled. A month later, D r . Boule referred Duquette to a
podiatrist to address foot pain.
In August 2006, Duquette saw Linda Groiss, a physician’s
assistant, complaining of foot pain. Examination and testing
showed abnormalities in Duquette’s foot possibly related to
plantar fasciitis. Duquette continued treatment with Groiss; D r .
Boule; D r . Ruelle, podiatrist, and underwent physical therapy for right foot pain until February 2007, when she was determined to
have met her therapeutic goals. In April 2007, however, Duquette
saw D r . Ruelle again for foot pain and was then fitted for
orthotics.
Duquette reported a “list of concerns” to D r . Boule in May
2007, which included reflux, foot pain, anxiety, and attention
deficit hyperactivity disorder (“ADHD”). D r . Boule prescribed
medications including Percocet. Two weeks later, Duquette told
3 Dr. Boule that she was having shoulder pain and that her
Oxycodone had been stolen from her car. D r . Boule told Duquette
to file a police report about the theft, gave her an injection
for her shoulder pain, and diagnosed chronic back pain and ADHD.
In June, Duquette returned because of shoulder pain, and D r .
Boule refilled her Percocet prescription, prescribed a steroid, and referred Duquette to an orthopedist.
In July 2007, Duquette went to the Medical Center’s
emergency room because of arm pain. Examination showed no
abnormalities, and she was discharged with topical pain relief
cream. Duquette went to D r . Boule’s office the same day, in
tears, asking for pain medication because of her shoulder pain.
An MRI scan done on July 27 showed disc herniation at C6-7
causing severe spinal stenosis, meaning encroachment of the bone
into the space of the spine. D r . Boule prescribed Oxycodone. During the remainder of 2007, Duquette had appointments with
Dr. Boule, a physician’s assistant, and D r . Mark Silbey for right
arm pain and numbness in her hands. Based on an MRI scan, D r .
Silbey concluded that Duquette likely had nerve impingement in
her spine. Duquette had a steroid injection in September.
On August 1 0 , 2007, D r . Boule completed an RFC assessment.
Dr. Boule stated that Duquette would not be able to work for six
to twelve months because she could not sit continuously. Dr.
4 Boule also stated that Duquette could only lift or carry ten
pounds occasionally and could not use her right hand and could
use her left hand only occasionally for grasping, fine
manipulation, pushing, and pulling. D r . Boule also excluded
Duquette from kneeling, bending, crouching, climbing, crawling,
reaching above shoulder level, and twisting. In September 2007, Duquette again reported that her pain
medications had been stolen from her car and asked for refills.
Despite the lack of a police report to confirm the theft, D r .
Boule refilled Duquette’s prescriptions. D r . Boule, however,
required a urine sample for testing, which was positive for,
among other things, cocaine. Testing in October again showed
positive results for cocaine, and the Medical Center refused to
provide additional pain medications. As a result, Duquette hired
an attorney who threatened the Medical Center with legal action if Duquette were not provided with pain medications. Dr.
Heneghan at the Medical Center told Duquette to go to the
emergency room and refused to prescribe pain medications.
On November 2 6 , 2007, Duquette saw D r . Dilip Sengupta on
referral from D r . Boule. D r . Sengupta found a two level disc
degeneration with herniation of mild to moderate size. His
examination revealed normal gait, free movement of the shoulders,
full cervical range of motion with complaints of pain, and
5 complaints of numbness in the fingers but no objective weakness
there. D r . Sengupta recommended conservative treatment rather
than surgery. D r . Joseph Signorelli saw Duquette the same day
for her neck and arm problems. He reported that Duquette said
she continued to take Percocet, obtaining it any way she could.
He found Duquette had trouble sitting still but that her gait, neck, and strength were all normal.
On December 6, 2007, D r . Hugh Fairley, a state agency
consulting physician, completed a physical RFC assessment based
on Duquette’s medical records. D r . Fairley concluded that
Duquette could lift and carry twenty pounds occasionally and ten
pounds frequently, could stand, walk, or sit for six hours during
an eight-hour day, should avoid overhead reaching with her right
arm, and could do work at the light exertional level. D r .
Fairley considered D r . Boule’s assessment but found that it was not supported by the record.
Duquette again tried to obtain Percocet from D r . Boule’s
office in December 2007. D r . Ruelle also saw Duquette for foot
pain in December. On examination, D r . Ruelle found no pain on
palpitation and concluded that the foot problem was almost
resolved.
On April 7 , 2008, D r . Sengupta examined Duquette because of
her complaints of neck and arm pain. Duquette had not followed
6 Dr. Sengupta’s previous treatment advice and asked for narcotic
pain medication. When D r . Sengupta offered non-narcotic
medication, Duquette was not interested and was rude. She said
she would not have surgery without first getting a prescription
for narcotic medications.
On June 2 6 , 2008, D r . Avigdor Niv completed a medical source statement of Duquette’s ability to do work-related activities for
the Social Security Administration. D r . Niv concluded that
Duquette could lift and carry ten pounds frequently and twenty
pounds occasionally and could sit, stand, and walk for a total of
six hours in an eight-hour work day. D r . Niv indicated some
limitations in Duquette’s ability to use her hands and to engage
in posture activities such as climbing.
In August 2008, Duquette was treated at the Medical Center
emergency room for injuries caused by a fall at home. She was diagnosed with dizziness and right clavicle fracture. She
returned in September seeking additional Vicodin for pain. She
was prescribed Percocet and discharged. On follow up for her
shoulder injury, the provider noted that Duquette had tried to
work but could not carry a vacuum pack. She was prescribed a
muscle relaxant in addition to Vicodin and was instructed to
avoid working as a housekeeper.
7 In early October 2008, Duquette was treated at the Medical
Center emergency room for injuries caused during a fight with a
friend while they were drinking. Duquette’s blood alcohol level
was . 1 5 . She was discharged in good condition and was instructed
to avoid strenuous activity for two days.
On April 3 , 2009, Duquette was again treated at the Medical Center emergency room following a fall at home. She complained
of lower back pain, but imaging did not confirm a fracture. She
was prescribed Percocet. On April 1 0 , 2009, Duquette saw a nurse
practitioner for neck pain. The nurse practitioner assessed
mechanical cervical pain with probable radiation and mechanical
lower back pain.
On June 2 9 , 2009, Duquette met with D r . Marika Ostroski at
the Cheshire Medical Center. Duquette described chronic neck
pain with numbness and tingling in her neck and arms. Dr. Ostroski referred Duquette to a neurosurgeon and prescribed pain
medication.
Duquette was referred to D r . Somail Mirza on July 2 2 , , 2009.
Duquette told D r . Mirza that she was limited in her daily
activities because of pain in her left shoulder, radiating to her
fingers, and weakness in her arms. On examination, Duquette
showed normal gait and normal strength and reflexes. D r . Mirza
reviewed the April 2009 MRI results and found some degenerative
8 changes but no nerve root compression or disc protrusion and no
spinal cord signal change. He did not recommend surgery but did
recommend further testing because of the severity of Duquette’s
subjective complaints.
On August 2 4 , 2009, Joan Van Saun, an occupational
therapist, conducted a functional capacity evaluation of Duquette. Duquette described problems with her left arm and
neck. On examination, Van Saun found normal grip and arm
strength. Nevertheless, Van Saun wrote that Duquette could only
perform fine motor or handling tasks for up to one hour, that she
could lift up to twenty pounds occasionally, and that she was
limited to part-time sedentary work.
Duquette was taken by ambulance to Cheshire Medical Center
on September 4 , 2009, after she was injured while riding an ATV
and doing “doughnuts.” Her primary injury was a facial fracture. All other results of examination were normal, and the
degenerative cervical changes were described as minor.
On September 1 0 , 2009, D r . Nancy Bagley did a nerve
conduction and EMG test to further examine Duquette’s claims of
arm and finger pain. Although Duquette claimed weakness in her
left arm, the tests yielded normal results. The tests did not
conclusively rule out plexopathy or radiculopathy. Duquette
again tested positive for illegal drugs.
9 In October, Duquette had another accident on an ATV. This
time she complained of rib pain. She had pain in the rib area on
palpation, but no abnormalities were found through imaging. She
was prescribed a Fentanyl pain patch.
Dr. Ostroski completed an RFC assessment on December 1 0 ,
2009. D r . Ostroski did not provide a diagnosis of Duquette’s condition. Instead, she repeated Duquette’s subjective
complaints of neck and left arm pain, numbness, tingling, and
weakness. D r . Ostroski also said that Duquette’s symptoms
affected her right side as well. She also wrote that clinical
findings and objective signs supported neck and arm pain and
weakness, along with anxiety and depression. She stated that
Duquette’s symptoms had been at the same level since March 2007,
that Duquette’s impairments were consistent with her symptoms,
and that her pain would frequently interfere with her attention and concentration. D r . Ostroski also stated that Duquette was
capable of doing low-stress work that would allow a sit or stand
option and unscheduled breaks. She said that Duquette could walk
for up to one mile and could sit or stand for an hour before
changing position, that she could lift only ten pounds rarely and
could rarely turn her head, and that she had significant
limitations in reaching, handling, and fingering. D r . Ostroski
also thought that Duquette would miss more than four days of work
10 in a month.
B. Procedural History
Duquette applied for Social Security benefits in August of
2007, alleging a disability beginning March 3 1 , 2007. When her
application was denied, she requested a hearing before an ALJ. A
hearing was held on December 7 , 2009. Duquette, who was represented by counsel, testified at the
hearing. She stated that she originally had problems with her
right arm, but the pain later transferred to her left arm. She
said that she could not sit very long, that she had pain in her
neck if she did not sit properly, and that her foot hurt if she
stood for too long. She testified that she avoided lifting
anything heavier than a gallon of milk, that she could drive,
that she could walk for a half mile, and that she could stand for
a half an hour. A vocational expert (“VE”) also testified. In response to a
hypothetical question posed by the ALJ pertaining to a person
limited to work at the light exertional level with certain other
restrictions, the VE testified that such a person could perform
Duquette’s former work as a bookkeeper and a cook. The ALJ then
added additional weight and other limitations, and the VE
responded that those restrictions did not preclude work as a data
examination clerk or telephone solicitor. Duquette’s counsel
11 asked about restrictions that required an option to recline for
half an hour to an hour twice in a work day, and the VE responded
that such restrictions would preclude all work.
The ALJ issued a decision on January 4 , 2010. He found that
Duquette had severe impairments of mild degenerative disc
disease, status post resolved clavicle fracture, and post resolved plantar fasciitis. The ALJ found that with those
impairments Duquette retained the functional capacity for light
work, although she might require a sit/stand option and had
limitations in her ability to reach, climb, and do other postural
activities. Based on that RFC and the VE’s opinion, the ALJ
concluded that Duquette could return to her former work as a
bookkeeper and a cook and could also perform other work that
existed in significant numbers in the national economy. The ALJ,
therefore, found that Duquette was not disabled. The ALJ’s decision became the final decision of the
Commissioner when the Decision Review Board failed to complete
its review within the time allowed.
I I . STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
12 or reversing the “final decision” of the Commissioner. 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., 211 F.3d 6 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. Id.
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., 955 F.2d 765, 769 (1st
Cir. 1991) (per curiam) (quoting Rodriguez v . Sec’y of Health &
Human Servs., 647 F.2d 2 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.” Ortiz, 955 F.2d 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, 172 F.3d 3 1 , 35 (1st
Cir. 1999). The ALJ is responsible for determining issues of
credibility and for drawing inferences from evidence on the
record. Ortiz, 955 F.2d at 769. It is the role of the ALJ, not
the court, to resolve conflicts in the evidence. Id.
13 III. ANALYSIS
Duquette contends that the ALJ’s RFC assessment that she
retained the ability to do work at the light exertional level
with certain other limitations was not supported by substantial
evidence. She also contends that the ALJ erred by not according
controlling weight to D r . Ostroski’s opinions and by giving
greater weight to the state agency consulting physicians’
opinions. The Commissioner moves to affirm the decision.
Because the weight given to the medical opinions could affect
review of the ALJ’s RFC assessment, I begin with that issue.
A. Weight of Opinions
A treatment provider’s opinions will be given controlling
weight if the “treating source’s opinion on the issue(s) of the
nature and severity of [the applicant’s] impairment(s) is well-
supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.” 20 C.F.R. §
404.1527(d)(2). The ALJ “‘may reject a treating physician’s
opinion as controlling if it is inconsistent with other
substantial evidence in the record, even if that evidence
consists of reports from non-treating doctors.’” Coggon v .
Barnhart, 345 F. Supp. 2d 4 0 , 52 (D. Mass. 2005) (quoting Castro
v . Barnhart, 198 F. Supp. 2d 4 7 , 54 (D. Mass. 2002), and citing
14 Rosario v . Apfel, 85 F. Supp. 2d 6 2 , 67 (D. Mass. 2000)).
When a treating source’s opinion is not entitled to
controlling weight, the ALJ determines the amount of weight based
on factors that include the nature and extent of the source’s
relationship with the applicant, whether the source provided
evidence in support of the opinion, whether the opinion is consistent with the record as a whole, and whether the source is
a specialist in the field. 20 C.F.R. § 404.1527(d)(1-6). In
addition, the ALJ must give reasons for the weight given to
treating source opinions. Id.; see also Soto-Cedeno v . Astrue,
380 Fed. Appx. 1-2 (1st Cir. 2010).
1. Dr. Ostroski’s Opinions
Dr. Ostroski stated that Duquette could sit for only two
hours, could walk or stand for two hours in an eight-hour work
day, could rarely lift even ten pounds, would need to change positions at will and need unscheduled breaks, and had other
postural limitations. The ALJ decided that D r . Ostroski’s
opinion was entitled to little weight because it was inconsistent
with the medical evidence in the record. The ALJ cited the
contrary evidence and also noted that despite her severely
limited assessment, D r . Ostroski concluded that Duquette was
capable of working at a low stress job. Duquette disputes the
ALJ’s analysis, citing her subjective complaints of pain reported
15 to the occupational therapist and other health care providers.
The medical records cited by the ALJ provide substantial
evidence to support his conclusion. In addition, as the ALJ
wrote, despite Duquette’s complaints, she was able to ride an
ATV, which resulted in an accident and injuries in September of
2009, and objective testing done in September 2009 showed normal results. Therefore, the ALJ properly decided not to give
controlling weight to D r . Ostroski’s opinions to the extent those
opinions limited Duquette’s RFC beyond the scope of light work
with certain other restrictions.
2. State Agency Physicians’ Opinions
Duquette contends that the ALJ erred in giving more weight
to the opinions of the state agency physicians, D r . Fairley and
Dr. Niv than to D r . Ostroski’s opinion. Duquette challenges the
opinions of D r . Fairley and D r . Niv on the ground that they did not have the occupational therapist’s vocational capacity report
and D r . Ostroski’s RFC assessment.
SSR 96-6p provides that state agency consultants’ opinions can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence including any evidence received at the administrative law judge and Appeals Council levels that was not before the State agency, the consistency of the opinion with the record as a whole, including other medical opinions, and any explanation for the opinion provided by the . . . consultant.
16 SSR 96-6p, 1996 WL 374180, at *2 (July 2 , 1996). In addition,
consultants’ opinions “may be entitled to greater weight than the
opinions of treating or examining sources” in some circumstances,
including but not limited to a situation when the opinion is
based on a review of a more complete case record than what was
available to the treating or examining source. See id. at * 3 . In this case, the ALJ acknowledged that Duquette’s
allegations of pain had changed since D r . Fairley gave his
opinion and that the medical record generated after his opinion
supported slightly greater limitations. For that reason, the ALJ
gave D r . Fairley’s opinion only some weight. The ALJ found that
Dr. Niv’s opinion was “fairly consistent” with Duquette’s medical
evidence, but based on Duquette’s testimony at the hearing, the
ALJ found that she had no significant limitation in her ability
to reach, which was contrary to D r . Niv’s opinion. The ALJ gave Dr. Niv’s opinion more weight than D r . Fairley’s opinion but
slightly less than “great weight.”
Because the ALJ carefully explained the weight given to the
state agency physicians’ opinions and the reasons are consistent
with the record, substantial evidence supports the ALJ’s
determination.
B. Residual Functional Capacity
An individual’s RFC is ordinarily that individual’s “maximum
17 remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis,” and any RFC
assessment “must include a discussion of the individual’s
abilities on that basis.” SSR 96-8p, 1996 WL 374184, at *2 (July
2 , 1996); see also 20 C.F.R. § 404.1545. In making that
assessment, the ALJ “will consider all of [the applicant’s] medically determinable impairments of which [the ALJ is] aware,
including [the applicant’s] medically determinable impairments
that are not ‘severe’ . . . .” 20 C.F.R. § 404.1545(a)(2).
The ALJ found that Duquette retained the functional capacity
to do light work, although she could only occasionally reach
overhead with her left arm, climb ladders and ramps, and crawl
and she might require a sit or stand option. Duquette contends
that the ALJ’s assessment is not supported by substantial
evidence, relying on her history of treatment for back and shoulder problems and the opinions of the occupational therapist
and D r . Ostroski.
The ALJ did not find Duquette’s description of the severity
and limiting effects of her symptoms fully credible. In support
of his RFC assessment, the ALJ reviewed the medical evidence,
which included evidence that Duquette’s symptoms were resolved or
not as severe as she claimed and evidence of “noncompliance with
treatment and drug seeking behavior.” (Tr. 1 3 ) . The ALJ also
18 noted that Duquette’s attempt to return to work in September 2008
was unsuccessful only because of her clavicle injury at that
time. The ALJ further noted that by 2009, Duquette was able to
function well without narcotic medication, which supported a
conclusion that her symptoms were not as severe as she had
alleged. As is discussed above, the ALJ explained and appropriately
discounted D r . Ostroski’s opinions as to the severity of
Duquette’s limitations. The ALJ noted that the occupational
therapist, Joan Van Saun, found that Duquette had a full range of
motion and full strength in her arms and legs and reported to Van
Saun that she walked to relieve her pain. The ALJ’s RFC
assessment is supported by substantial evidence.
IV. CONCLUSION
The ALJ’s decision is supported by substantial evidence in
the record. Therefore, I lack the authority to overturn i t .
Plaintiff’s Motion for Order Reversing the Commissioner’s
Decision (Doc. N o . 8 ) is denied. The Commissi1oner’s Motion for
Order Affirming the Decision (Doc. N o . 10) is granted.
The clerk shall enter judgment accordingly and close the
case.
19 SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
July 2 8 , 2011
cc: D. Lance Tillinghast, Esq. T . David Plourde, Esq.