UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kary R. Estabrook
v. Case No. 13-cv-478-PB Opinion No. 2014 DNH 222 Carolyn Colvin, Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Kary Estabrook seeks judicial review of a ruling by the
Social Security Administration denying her application for
disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). For the reasons set forth below, I deny
Estabrook’s request and affirm the decision of the Commissioner.
I. BACKGROUND1
On August 5, 2010, Estabrook applied for DIB and SSI. At
that time, she was 38 years old and working part time as a
technician for a pest control company. Estabrook alleges that
beginning around May 1, 2010, she became disabled. She states
1 Sections A, B, and C of the background section are taken verbatim from the parties’ joint statement of material facts (Doc. No. 12). See L.R. 9.1(b). Minor stylistic changes have been made, citations to the administrative transcript have been omitted, and headings and medical definitions have been added. that her impairments stem from lupus, neuropathy in her legs,
and degenerative disc disease, as well as other mental and
physical impairments.
A. Medical Evidence
1. Physical Impairment
a. Dr. Guiry
Plaintiff treated with primary care physician Colleen Guiry,
M.D. Dr. Guiry’s records indicate that she treated plaintiff for:
(1) systemic lupus erythematosus (lupus),2 starting July 2, 2010;
(2) back pain, starting June 28, 2010; (3) chest pain, starting May
18, 2010; (4) a tick bite, on May 11, 2010; (5) nausea, starting
May 10, 2010; (6) joint pain, starting May 10, 2010; and (7) asthma
and pleurisy,3 starting on March 14, 2009. After a tick bite,
plaintiff went to the emergency room on May 7, 2010, complaining of
lower back pain, abdominal cramping, tingling and burning in the
legs, a general feeling of fatigue, and difficulty focusing. She
had blood work to evaluate for Lyme disease and was prescribed
antibiotics as a precaution. Plaintiff saw Dr. Guiry on May 10,
2 Systemic lupus erythematosus is a chronic, inflammatory multi- systemic disorder of connective tissue that proceeds through remissions and relapses and is characterized by involvement of the skin, joints, kidneys, and serosal membranes. Dorland’s Illustrated Medical Dictionary 1080 (32nd ed. 2012). 3 Pleurisy is inflammation of the pleura, the membrane surrounding the lungs and lining of the chest cavity. Dorland’s, supra note 2, at 1460-61.
2 2010, after her evaluation for Lyme disease in the emergency room,
as she was still experiencing nausea and body aches. Plaintiff was
advised to return to the hospital for additional blood work for
other tick-borne diseases and rheumatologic conditions that could
cause the sudden onset of joint pain.
Plaintiff saw Dr. Guiry on May 18, 2010 for chest pain and
joint pain, which she reported at a pain level of two out of ten
when she took Aleve and six out of ten at its worst. Dr. Guiry
prescribed diclofenac sodium4 and ordered a chest x-ray. The chest
x-ray was negative for acute cardiac or pulmonary pathology.
Plaintiff contacted her primary care office on May 28, 2010 to ask
for a note for her employer so she could begin an every-other-day
work schedule, as she was not getting relief from her joint pain.
Dr. Guiry’s office prescribed Tramadol5 for her pain on June 14,
2010, until she was able to see John Gorman, M.D., the
rheumatologist.
Plaintiff went to the emergency room on June 27, 2010, for a
possible lupus flare-up. She was experiencing increased pains in
her back, joints, legs, and arms. The emergency room physician,
4 Diclofenac sodium is used in the treatment of rheumatoid arthritis and other inflammatory conditions. Dorland’s, supra note 2, at 513. 5 Tramadol is an opioid analgesic used to treat moderate to moderately severe pain. Dorland’s, supra note 2, at 1950.
3 Brian Miller, D.O., prescribed Percocet6 for the pain and
recommended that plaintiff follow-up with her rheumatologist, Dr.
Gorman, or with Dr. Guiry to discuss steroids as a course of
treatment. Plaintiff was seen at Dr. Guiry’s office on June 28,
2010, complaining of pain in her back and feet. She informed
Jennifer Thebodeau, M.A., of her possible lupus diagnosis.
Plaintiff stated the medication Dr. Gorman prescribed, Plaquenil,7
could take months to work. Plaintiff reported she was in too much
pain to work and requested a note saying she could not work at all
so that she could “get disability or [asked the doctor to give her]
something to take away the pain so that she c[ould] work.”
Thebodeau suggested x-rays of the back, to see if plaintiff’s pain
had another origin. The x-ray of the lumbar spine was negative,
showing a normal alignment and no degenerative changes.
Plaintiff saw Dr. Guiry on July 2, 2010, for follow-up after
her possible lupus diagnosis. Plaintiff reported that her pain was
not better and she had pain in her upper back, chest, legs, hips,
ankles, and on her left side with radiation to the left arm; the
record notes plaintiff had the left side pain for years. No new
recommendations were given and plaintiff was told to follow-up with
6 Percocet is indicated for the relief of moderate to moderately severe pain. Physician’s Desk Reference 1245 (58th ed. 2004). 7 Plaquenil is the trade name for hydroxychloroquine sulfate, an anti-inflammatory used to treat lupus. Dorland’s, supra note 2, at 881, 1456.
4 Dr. Gorman. Plaintiff saw Dr. Guiry on July 20, 2010 for an acute
visit, due to the pain on the left side of her chest and numbness
of the left arm. Plaintiff reported that she had not taken
anything for the pain, including the Diclofenac, which Dr. Guiry
previously prescribed to her. Dr. Guiry scheduled an
echocardiogram and urged Plaintiff to quit smoking.8 Plaintiff’s
echocardiogram on July 23, 2010 demonstrated normal heart function
and structure.
b. Dr. Gorman
Plaintiff began seeing Dr. Gorman on June 24, 2010. Plaintiff
reported pain in the lower back, hips, and knees, swelling of the
knees and ankles, frequent nasal ulcers, dry mouth, pleurisy,
facial rash with sun exposure, and discomfort in her fingers when
exposed to cold. Dr. Gorman reported that plaintiff’s blood work
was positive for antinuclear antibodies9 and a number of her
symptoms were consistent with lupus. Dr. Gorman recommended
plaintiff have further studies done to detect antibodies and
prescribed Hydroxychloroquine (“HCQ”).10
8 Plaintiff’s records indicate she smokes between one and one and a half packs of cigarettes per day. 9 These are antibodies directed against nuclear antigens and are usually found in individuals with lupus. Dorland’s, supra note 2, at 101. 10 HCQ is an anti-inflammatory used to suppress lupus. Dorland’s, supra note 2, at 881.
5 Plaintiff saw Dr. Gorman for follow-up on August 5, 2010. The
doctor stated that plaintiff was tolerating HCQ well but still had
considerable generalized pain, her pleurisy was not improved, and
her energy was a little diminished. Dr. Gorman opined that
plaintiff’s lab data was not completely supportive of a lupus
diagnosis, but he was still concerned given her other symptoms.
The doctor questioned whether plaintiff’s chronic pain could be
from a different musculoskeletal pain condition. He prescribed
Prednisone,11 to taper over a 12-day period.
Plaintiff saw Dr. Gorman on August 17, 2010, the day after
completing her Prednisone taper. Plaintiff reported that the
medication helped her pain significantly the first three days, but
her pain returned as the dose decreased. The Prednisone did
eliminate her rash, mouth ulcers, and pleurisy, which had not
returned. Dr. Gorman noted that plaintiff was “[s]till very achy,”
but concluded that her suspected lupus was “a little improved.”
On September 28, 2010, plaintiff reported to Dr. Gorman that
she still had pain in her lower lumbar area radiating into her
buttocks and legs. Plaintiff believed the HCQ was controlling her
rash, mouth ulcers, and pleurisy. On examination, plaintiff had no
fibromyalgia tender points or joint swelling or tenderness, but did
11 Prednisone is an anti-inflammatory or immunosuppressant used in a wide variety of disorders. Dorland’s, supra note 2, at 1509.
6 have mild lower lumbar tenderness. Dr. Gorman opined that
plaintiff had a lumbar strain and recommended physical therapy.12
c. Dr. Couture
On March 21, 2011, plaintiff was referred to Christopher
Couture, M.D., a sports medicine specialist, by Gary Fleischer,
M.D., to treat her lower back pain and a bulging disk. Plaintiff’s
MRI showed a “slightly desiccated disc and annular tear at L4-5,”
but Dr. Fleischer did not think this was the cause of her symptoms.
Plaintiff also had an electromyogram,13 which showed
polyneuropathy,14 with no evidence of lumbar radiculopathy,15 which
was being treated with Gabapentin.16 Dr. Couture opined that
12 Plaintiff saw Dr. Gorman on October 19, 2010 for the urgent evaluation of a rash, but the doctor found that the rash was dermatitis with an unknown origin, not related to lupus. 13 An electromyogram is a study to show the activity of skeletal muscles at rest, during contraction, and during electrical stimulation. Dorland’s, supra note 2, at 602. 14 Polyneuropathy is the functional disturbance or pathological change in the peripheral nervous system, affecting several nerves. Dorland’s, supra note 2, at 1268, 1491. 15 Radiculopathy is a disease of the nerve roots, such as from inflammation or impingement by a tumor or bony spur. Dorland’s, supra note 2, at 1571. 16 Gabapentin is an anticonvulsant that is used as adjunctive therapy in the treatment of partial seizures. Dorland’s, supra note 2, at 759. Plaintiff had a follow-up neurology appointment with Andreja Packard, M.D., Ph.D., on November 28, 2011, and the doctor stated that plaintiff was doing “really well with daily [G]abapentin therapy [and plaintiff had] no sensory symptoms [and] reported no discomfort.”
7 plaintiff had an iliolumbar ligament sprain and gave her an
injection of an anti-inflammatory steroid. Physical therapy was
recommended to treat plaintiff’s iliolumbar ligament and neuropathy
pain.17
Plaintiff returned to Dr. Couture on May 2, 2011, as her back
pain had started to return in the previous two weeks. Plaintiff
reported that her back pain was relieved for about four weeks after
her last visit and the steroid injection. Plaintiff stated that
her physical therapy was going well overall; she saw the physical
therapist about once a week and supplemented with at home
exercises. Plaintiff received an autologous blood injection in the
left iliolumbar ligament and experienced immediate relief of her
pain. Plaintiff followed up with Dr. Couture on June 8, 2011, and
reported she was going “quite a bit better[,] . . . still getting
episodes of pain about once or twice a week but [not] nearly the
frequency or intensity as before starting physical therapy.”
Plaintiff received a second autologous blood injection at the left
iliolumbar ligament and again experienced immediate improvement in
her pain. Plaintiff received a third and fourth injection with
similar results on July 13, 2011 and August 17, 2011.
On September 15, 2011, Plaintiff returned to Dr. Couture
17 Plaintiff received physical therapy at Elite Rehab & Sports Therapy from March 28, 2011 through October 26, 2011.
8 because the pain in her lower back had returned, after being out of
physical therapy and relatively inactive. Plaintiff’s sacroiliac
joints on both sides were tender to touch. Plaintiff was advised
to resume physical therapy and she received cortisone injections in
each of her sacroiliac joints, experiencing immediate relief of
fifty percent of her pain. Plaintiff saw Dr. Couture on October
11, 2011 to follow-up after her sacroiliac joint injections.
Plaintiff reported that her pain had improved but she still had
“good days and bad days.” The doctor opined that plaintiff was
symptomatically improved and should transition from physical
therapy to an independent home exercise program.
d. Dr. Fairley
Hugh Fairley, M.D., a state Disability Determination Services
(“DDS”) consultant and family medicine specialist, evaluated
plaintiff’s physical residual functional capacity (“RFC”) on
November 23, 2010. As to exertional limitations, he opined that
plaintiff could occasionally lift/carry 20 pounds, frequently
lift/carry 10 pounds, stand or walk for 6 hours in an 8-hour
workday, sit for 6 hours in an 8-hour workday, and push and/or pull
without limitation, except those described for lifting and
carrying. Dr. Fairley stated that Plaintiff could never climb
ladders, ropes, or scaffolds, but could occasionally climb stairs,
balance, stoop, kneel, crouch, and crawl. He also stated that
9 plaintiff had no manipulative, visual, or communicative
limitations, but should avoid hazards.
e. Application to City of Nashua Welfare Department
Plaintiff applied to the City of Nashua Welfare Department for
financial assistance on April 21, 2011. Dr. Guiry completed a
statement of plaintiff’s capabilities on November 10, 2010, which
was submitted with her application. Dr. Guiry reported plaintiff’s
diagnosis of lupus, with a prognosis of “fair,” and stated that
plaintiff had been in pain for seven months and it was not clear
when she would respond to medication. Dr. Guiry opined that
plaintiff could perform sedentary activities, including frequent
sitting or occasional standing or walking, such as classroom
situations, desk work, counseling sessions, or other appointments.
Dr. Guiry also noted that, depending on the day, plaintiff could
perform light work activities. The doctor reported that plaintiff
could sit, stand, or walk for one hour per day, but that she needs
to change position every 20 to 30 minutes. Dr. Guiry stated that
plaintiff could occasionally: lift and carry up to 20 pounds,
kneel, bend from the waist, crouch, climb stairs, climb ladders or
scaffolds, crawl, reach above shoulder level, twist at the waist,
use both hands for simple grasping, fine manipulation, and pushing
and pulling, and use both feet. She stated that plaintiff should
also avoid fumes or dust, hard floors, extreme cold and heat,
10 hazardous areas, and outside terrain. Dr. Guiry’s ultimate opinion
was that plaintiff was not capable of participating in work-related
activities at that time.
Dr. Guiry completed a second evaluation of plaintiff’s
physical capabilities on April 21, 2011, which was also submitted
with her welfare application. This evaluation was substantially
the same as the November 2010 evaluation, except that in addition
to plaintiff’s lupus, Dr. Guiry listed degenerative disc disease
and neuropathy as diagnoses. Plaintiff’s prognosis was again
reported as “fair” and Dr. Guiry again noted that Plaintiff could
perform sedentary work or light work, depending on the day. Her
exertional and non-exertional limitation findings were the same as
the prior report and she again concluded that plaintiff was unable
to perform work-related activities.
On December 16, 2011, Dr. Guiry completed a medical opinion
form describing Plaintiff’s ability to engage in physical
activities. She listed plaintiff’s diagnoses as sacroiliac joint
dysfunction, polyneuropathy, headache, pleurisy, and probable
lupus, all with a prognosis of fair. Dr. Guiry opined that
plaintiff could walk eight blocks without rest, sit and stand for
30 minutes at one time, and “sit” and “stand/walk” for four non-
continuous hours each in an eight-hour workday.18 Dr. Guiry stated
18 In the joint statement of material facts, the parties stated
11 that plaintiff needs a job where she can shift positions at will,
will need to take unscheduled breaks every hour during an eight-
hour workday, and will need to stop to rest for the remainder of
the day after working one-to-two hours. The doctor opined that
plaintiff could frequently lift less than 10 pounds and
occasionally lift 10 to 20 pounds, had significant limitations in
repetitive reaching, handling, or fingering, and could bend and
twist very little due to her pain. Dr. Guiry stated that plaintiff
should avoid exposure to extreme cold, fumes, odors, dusts, gases,
perfumes, cigarette smoke, solvents and cleaners, and chemicals.
She also stated that plaintiff should never stand or crouch and
could occasionally twist and climb stairs and ladders. Finally,
she opined that plaintiff’s impairments cause good days and bad
days and she would be absent from work more than twice a month
because of her impairments and/or treatments.
2. Mental Impairment
On August 24, 2011, plaintiff began therapy with Miriam Dunn,
that Dr. Guiry’s December 16, 2011 opinion stated that Estabrook could “sit and stand or walk for a total of 4 non-continuous hours in an 8-hour workday.” Doc. No. 12 at 9. I have clarified this sentence, however, to reflect Dr. Guiry’s opinion form, which indicates that Estabrook could “sit” four approximately four hours each day and “stand/walk” for approximately four hours each day. The ALJ’s opinion also reflects the latter understanding of Dr. Guiry’s opinion.
12 M.A., L.M.H.19 At her first appointment, plaintiff discussed the
onset of her symptoms and the diagnosis of lupus, her difficulty in
sharing her feelings, and her frustration in being unable to do
things she used to do. Plaintiff had twenty visits with Dunn
between August 24, 2011 and March 14, 2012. Plaintiff discussed
her fears and frustrations concerning her physical symptoms and
limitations, including her bladder issues, fatigue, an inability to
maintain an active lifestyle, an inability to provide for her
family, pain, and memory issues. Plaintiff also reported stress at
home and problems with her stepdaughter. In plaintiff’s later
appointments, she stressed her fatigue. She also indicated that
she was in pain and needed to take naps to try to stay relaxed and
to try to have good days.
In connection with plaintiff’s application to the City of
Nashua for welfare, Dr. Guiry submitted an evaluation of
plaintiff’s psychological capacities. Dr. Guiry reported that
plaintiff did not have any diagnoses of a mental condition and
that she did not take any medications that would affect her work
capabilities. Dr. Guiry opined that plaintiff’s abilities were
not limited in interacting appropriately with others,
maintaining socially acceptable behavior, asking questions or
19 Plaintiff’s primary care physician prescribed Citalopram on August 6, 2011 for depression.
13 requesting assistance, adhering to basic standards of neatness
and hygiene, being aware of hazards and taking precautions,
remembering locations and work-like procedures, understanding
and remembering short, simple instructions, maintaining
attention for extended periods of time, sustaining a routine
without frequent supervision, making simple work-related
decisions, performing at a consistent pace, and driving. Dr.
Guiry’s ultimate conclusion remained that plaintiff was not
capable of performing work-related activities at this time.
On December 7, 2011, Dunn completed a “Medical Opinion
Questionnaire” related to plaintiff’s mental impairments. Dunn
listed a diagnosis of “300.02 Anxiety due to illness,” which she
noted would continue to be an issue as plaintiff has lupus, a
lifelong condition. Dunn opined that plaintiff has a poor
ability to: (1) travel in an unfamiliar place; (2) use public
transportation; (3) remember work-like procedures because of
issues with memory; (4) understand, remember, and carry out very
short and simple instructions; (5) maintain attention for a two-
hour segment; (6) work in coordination with or proximity to
others without being unduly distracted; (7) complete a normal
workday or workweek without interruptions from psychologically
based symptoms; (8) perform at a consistent pace without an
14 unreasonable number and length of rest periods; (9) deal with
normal work stress; (10) understand, remember, and carry out
detailed instructions; (11) set realistic goals or make plans
independently of others; and (12) deal with the stress of
semiskilled and skilled work. Dunn found that plaintiff’s ability
to maintain regular attendance at work, be punctual at work, and
sustain an ordinary routine at work without supervision would be
unpredictable due to her lupus. Dunn found that plaintiff would
have a fair ability to ask simple questions or request assistance
and to accept instructions and respond appropriately to criticism
from supervisors, depending on her medication. Finally, Dunn found
that plaintiff would have a very good ability to adhere to basic
standards of neatness and cleanliness and a good ability to: (1)
interact appropriately with the general public; (2) maintain
socially appropriate behavior; (3) get along with co-workers
without unduly distracting them or exhibiting behavioral extremes;
(4) respond appropriately to changes in a routine work setting; and
(5) be aware of normal hazards and take appropriate precautions.
Dunn stated that plaintiff’s impairments or treatment would cause
her to be absent from work more than twice a month.
B. Non-Medical Evidence
1. Plaintiff’s Disability Application and Function Report
Plaintiff reported in her disability application that the
15 physical and mental conditions limiting her ability to work were
lupus, rheumatoid arthritis, and asthma. She also reported that
she was “currently working” as a technician for a pest control
company, but her conditions had caused her to make changes in her
work activity on June 1, 2010. Plaintiff listed her only
medications as HCQ and prednisolone acetate,20 both prescribed for
her lupus by Dr. Gorman. At the time of her application, plaintiff
reported that she had not seen a doctor or received treatment for
any mental conditions.
In plaintiff’s function report, she stated that her pain was
“moderate to bad” four to six days a week. On days when
plaintiff’s pain was bad, she reported that she stayed in bed and
on days when her pain was moderate, she reported that she played
with her stepchildren and did minor cleaning around the house. On
days when her pain was low, plaintiff said that she could go to
work.
Plaintiff reported that she purchased food for and fed her
dog, but the dog was temporarily staying with her parents until
she found a place to live. Plaintiff stated that her wife
walked the dog and prepared most of the meals for the family.
Plaintiff said that she had a hard time falling asleep or
20 Given as a soft-tissue injection, Prednisolone acetate is an anti-inflammatory and immunosuppressant used to treat a wide variety of disorders. Dorland’s, supra note 2, at 1508.
16 staying asleep because of her pain. Plaintiff did not need any
reminders to take of personal needs, grooming, or to take
medications. She was able to dress, bathe, care for her hair,
shave, feed herself, and use the toilet without effect from her
impairments.
Plaintiff stated that her wife prepared most meals, but she
“c[ould] do most things” and would pick simple things to make if
her pain was bad. She reported that it took her a normal amount
of time to prepare a meal if she needed to. Plaintiff was able
to do some cleaning and take out the trash, when her pain level
was “ok,” but she reported that she did not do these chores
“very often right now.” Plaintiff reported that she did not do
yard work because she was renting and her landlord did most of
that work.
When plaintiff went out, she stated it was to do errands
and to go to work, when she could. Plaintiff reported that she
drove a car and was able to go out alone, but she usually drove
for work only. She stated that she went to the store for food
shopping. She was able to pay bills, count change, handle a
savings account, and use a checkbook. Plaintiff said that her
ability to play with her kids was minimal now and that she could
not be physical due to her pain and swelling.
17 Plaintiff stated that she spent time talking and watching
TV and movies with her children. She also talked with customers
when she worked. Plaintiff reported that the places she went
regularly were to doctor’s visits and counseling for her
stepdaughter. Plaintiff said that she had problems getting
along with family and friends because “there [we]re days [when
she was] down on what is going on with [herself] and [her]
illness [and she] [got] frustrated easy and either cr[ied] or
overreact[ed].”
Plaintiff reported that the following abilities were
affected by her conditions: lifting, squatting, bending,
standing, reaching, walking, kneeling, stair climbing,
concentrating, and getting along with others. Plaintiff stated
that her ability to sit, talk, hear, see, complete tasks,
understand, and follow instructions, as well as her memory and
the use of her hands, were not affected by her condition. She
said that her limitations were based on her pain level and some
of the limitations would vary, depending on whether she needed
to perform several of the exertions at the same time. Plaintiff
said that she could walk for up to 30 minutes depending on her
pain level. Plaintiff could finish what she starts, follow
written and oral instructions, get along well with authority
18 figures, handle changes in routine “ok,” and had never been
fired from a job.
Plaintiff stated that she could typically handle stress well
but now stress caused her more pain, exhausted her, and would make
her want to cry a lot. Plaintiff reported that she was “very
withdrawn” and had more problems dealing with things that bother
her. Plaintiff said that she did not get pain relief from her
lupus medication, although she was trying HCQ to try to reduce her
pain. Plaintiff reported that she did not have the financial means
to support herself or her stepchildren because she could barely
2. Plaintiff’s Work Activity and Work History Reports
Plaintiff completed a work activity report on August 10,
2010. She alleged a disability onset date of May 1, 2010. She
also reported that she worked forty hours per week at JP Pest in
Milford, New Hampshire through June 2010 and had worked 10 to 20
hours per week between June and August. Plaintiff reported that
she was given special work conditions at JP Pest and worked
irregular hours or took frequent rest periods and had different,
fewer, or easier duties.
In her work history report, plaintiff described her past
work as a fast-food manager, where she worked from 2006 to 2007.
Plaintiff worked ten hours per day, five days a week. She
19 described her duties as running shifts, counting drawers,
serving and making food, valuing trucks, and all other manager
duties. As a manager, she used machines, tools, or equipment,
used technical knowledge or skills, wrote and completed reports,
was standing or walking eight to ten hours a day, frequently
lifted ten pounds, supervised up to eight people a day, hired
and fired employees, and was a lead worker. In her job at the
pest control company, plaintiff stated that, as of August 2010,
she worked two hours a day, five days a week. She reported that
her hours and duties had changed due to her condition.
On December 3, 2010, DDS examiner Joanne Degnan determined
that plaintiff had the RFC to perform light work, with occasional
postural activities, and should avoid heights. She opined that
plaintiff could return to her previous work as a food service
manager, which, when performed in the national economy, is
considered light.
3. Plaintiff’s Testimony
At her administrative hearing, Plaintiff testified that she
lived in an apartment with her wife, their son, and her brother.
The last job she performed was pest control at JP Pest, where
she had worked for two and half years. Plaintiff testified that
the pest control company tried to provide accommodation for her
lupus by allowing her to work three days a week, Monday,
20 Wednesday, and Friday, so she would have a break between
workdays. Plaintiff stated that even with the spacing between
days she was not able to recover enough to work every other day
and transitioned to working only one day a week after five
months on the modified schedule. She worked one day a week for
about one month and then stopped working altogether. Plaintiff
testified that her alleged date of disability, in May 2010, was
about the time she transitioned to working three days a week.
Plaintiff said that increased pain in her hips, knees, and
feet, beginning in the middle of May 2010, was the reason she
began cutting back her work; she did not know at that time what
caused her pain, but Dr. Gorman eventually diagnosed her with
lupus. Plaintiff reported that the following conditions also
affected her ability to work: neuropathy in her legs,
degenerative disc disease of the lower back, urinary retention,21
21 Plaintiff treated with Matthew Stanizzi, M.D., of New England Urology for her urinary retention from September 8, 2011 through November 7, 2011. Plaintiff was instructed on the procedure to catheterize herself on September 8 and told to perform the procedure intermittently twice a day. On October 7, 2011, Plaintiff was referred for rehabilitation to retrain her pelvic floor muscles. On November 7, Plaintiff phoned Dr. Stanizzi’s office and stated “she [wa]s done with self-catheterization.” Plaintiff was asymptomatic at the time and was told to self- catheterize if needed.
21 Raynaud’s phenomenon in her fingers and toes,22 and memory issues
and pleurisy associated with her lupus.
Plaintiff takes HCQ for her lupus but she reported that
none of her pain medications or steroids helped with the pain
associated with lupus. She testified that her pain level was a
three out of ten at its lowest and a ten out of ten at its
highest, when she could not even get up. She reported that she
has burning, tingling, and stabbing feelings from her neuropathy
at least once a day for a couple of hours. Plaintiff stated
that she rotated the way she was sitting or standing to help
relieve the neuropathy symptoms. Plaintiff was diagnosed with
degenerative disc disease in June 2011 and received plasma
injections and physical therapy as treatment; although the
treatments had worked “good” and been “helpful,” plaintiff said
surgery had not been ruled out.
Plaintiff testified that she needed to catheterize herself
between 3 to 5 times a day, a 15-minute process, to treat for
urinary retention. She stated that she could spread those out
evenly during the day, unless she felt that her bladder was
full, but that she could not catheterize herself on a schedule.
22 This phenomenon is an intermittent bilateral deficiency of blood in the fingers, toes, and sometimes ears, with severe paleness and often pain, usually brought on by cold or emotional stimuli and relieved by heat. Dorland’s, supra note 2, at 1430.
22 For her pleurisy, Plaintiff stated that she has chest pain and
her left arm goes numb, which lasted anywhere from three minutes
to two weeks. She treated this condition with pain medication,
an inhaler, and trying to relax. Plaintiff reported her
pleurisy was irregular and could be three times a week or only
once a month.
Plaintiff stated that her lupus caused memory problems.
For example, when driving home from work, she said she took a
different exit due to traffic and then did not know where she
was. She reportedly “lost . . . what was even going on.” She
also reported that she forgets to put the car in park and leaves
the car in gear and just shuts the car off. Plaintiff stated
that she missed appointments and had problems with dates and
times, but she could not think of any examples when asked. She
reported that she needed reminders for her appointments, but
used calendars, her phone, and calls from the doctor’s office to
help.
Plaintiff testified that she, her wife, and their four-
year-old son live with plaintiff’s brother, who supported her
family because Plaintiff is out of work. Plaintiff stated she
was unable to play with her son for long periods and, when she
did play with him, she needed to take a four-hour nap because of
23 pain and exhaustion. She reported that she was able to sit for
30 minutes to an hour. In terms of her pain, plaintiff
testified she had no good days and three tolerable, “okay,” days
a week.
If her activity level was higher, plaintiff stated that she
would have all bad days. On a bad day, plaintiff said she
needed help getting out of bed. She tried to bathe on the bad
days to lessen the pain. After that, she would try to change
positions, between sitting, standing, and lying down. She said
that getting down on the floor was the worst position for her
and she could not “get down on the floor and play.” Plaintiff
stated she had trouble focusing and did not watch movies because
she lost track of what was happening. On bad days, she took a
four-hour nap and “pretty much [stayed] laying down,” which was the
most comfortable position.
Plaintiff reported she was able to stand for 30 to 60
minutes at a time. She stated that she could walk to a store
three blocks from her house, there and back, but would need to
sit or lay down for a couple of hours after that exertion.
Plaintiff testified that she was able to do minimal chores
around the house; she reported that she could sweep the kitchen
and do the dishes, but she did not cook, beyond simple things,
24 because she could not stand in one position for long. She said
that she was not able to clean any more than one room per day
and would need to take a break and lay down after cleaning one
room. She said that she was not able to take out the trash and
there was no yard work to do, as she lived in an apartment.
Plaintiff reported that her memory issues had been going on
since her diagnosis with lupus, but seemed to be getting worse.
She said that she began having problems at work, remembering the
steps of what to do. Plaintiff said that she had trouble
remembering conversations and had a hard time concentrating, on
television shows and when playing cards with her son.
Plaintiff testified that her pain medications had not been
effective with her joint and leg pain, which she had every day,
“all the time.” She said that she had “gotten better control
of” some of the side effects associated with her lupus as she
knew not to push her limits. When questioned, plaintiff
responded that she felt a little better because she was aware of
activities that she should avoid. She stated that to feel
better she needed to have a nap, avoid doing more than one thing
at a time in the house, and keep her activity level low.
Plaintiff reported that she was receiving psychological
treatment with Miriam Dunn from Harmony Counseling. In her
25 therapy, she said she discussed the effects of lupus, her pain,
how she deals with her pain, and the stressors in her life that
can cause lupus to flare. She said that the treatment had been
“really good” for her and allowed her to discuss feelings she
could not discuss outside of therapy. She also reported taking
an anti-depressant, Celapram.23
As to her ability to work, Plaintiff testified that she
would not be able to do a “simple job” where she could sit and
stand as she pleased because after a short period of time she
would need a nap and she would need to self-catheterize, which
she would need to do one to three times in an eight-hour day.
She stated that if she worked a full day, she would not be able
to get out of bed the following day and it could take several
days to recover from working a full day. Plaintiff reported
that she struggled with no longer being able to be physical and
be employed.
C. ALJ’s Decision
ALJ D’Alessandro applied the regulatory sequential evaluation
process for evaluating DIB and SSI claims. At step one, the ALJ
found that plaintiff had not engaged in substantial gainful
23 This is a trade name for citalopram hydrobromide, a selective reuptake inhibitor (SSRI), used to treat depression. Dorland’s, supra note 2, at 366.
26 activity since May 1, 2010. At step two, the ALJ found that
plaintiff had the following severe impairment: systemic lupus
erythematous. At step three, the ALJ found that plaintiff did not
have an impairment or combination of impairments that met or
medically equaled one of the impairments in the Commissioner’s
Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app. 1.
The ALJ then found that plaintiff had the RFC to perform “light
work . . . except she can never climb ladder[s], ropes, and
scaffolds. [Plaintiff] can occasionally perform all other postural
activities. She should avoid all exposure to heights.” At step
four, the ALJ found that plaintiff was capable of performing her
past relevant work as a fast-food manager, which does not require
the performance of work-related activities precluded by her RFC.
Accordingly, the ALJ concluded that plaintiff was not disabled
under the Social Security Act.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the administrative record
and enter a judgment affirming, modifying, or reversing the
“final decision” of the Commissioner. My review “is limited to
determining whether the ALJ used the proper legal standards and
found facts [based] upon the proper quantum of evidence.” Ward
27 v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
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 218, 222 (1st Cir. 1981)). If
the substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.” Id. at 770. Findings are not
conclusive, however, if they are derived by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
The ALJ is responsible for determining issues of credibility and
for drawing inferences from evidence in the record. Irlanda
Ortiz, 955 F.2d at 769. It is the role of the ALJ, not the
court, to resolve conflicts in the evidence. Id.
III. ANALYSIS
Estabrook argues that the ALJ erred by failing to (1)
28 classify her mental impairments as severe at step two; and (2)
assign appropriate weight to her treating physician’s physical
impairment evaluation. I address each argument in turn.
A. Mental Impairment
Estabrook first attacks the ALJ’s opinion for failing to
classify her mental impairments as “severe” at step two. I do
not need to resolve this issue. Any error at step two would be
harmless in this case because the ALJ found another impairment
“severe” and therefore continued his analysis. See McDonough v.
U.S. Soc. Sec. Admin., 2014 DNH 142, at 27. In evaluating
Estabrook’s residual functional capacity (“RFC”), the
ALJ “must consider limitations and restrictions imposed by all
of an individual’s impairments, even those that are not
‘severe.’” Id. at 28 (quoting Stephenson v. Halter, 2001 DNH
154, at 5); see 20 C.F.R. § 404.1545(a)(2).
The issue is therefore whether the ALJ properly analyzed
Estabrook’s mental impairment in his evaluation of her RFC. In
determining RFC, the ALJ must consider all of a claimant’s
medically determinable impairments, including those that are not
“severe.” 20 C.F.R. § 404.1545(a)(2). The ALJ considers the
claimant’s “ability to meet the physical, mental, sensory, and
other requirements of work.” 20 C.F.R. § 404.1545(a)(4). For
29 mental impairments, this means the ALJ should consider
“limitations in understanding, remembering, and carrying out
instructions, and in responding appropriately to supervision,
co-workers, and work pressures in a work setting.” 20 C.F.R. §
404.1545(c).
When there is inconsistency in any of the evidence in the
case record, the ALJ must weigh the relevant evidence. 20
C.F.R. § 404.1520b(b). The ALJ’s review includes “objective
medical evidence,” “other evidence from medical sources,
including their opinions,” and “statements by the individual and
others about the impairment(s) and how it affects the
individual’s functioning.” SSR 06-03p, 2006 WL 2329939, at *1
(Aug. 9, 2006). The Social Security Administration divides
“medical sources” into “acceptable medical sources” and “other
sources.” Id. at *2. Only “acceptable medical sources” can
establish a medically determinable impairment, provide medical
opinions, and be considered treating sources. Id. “Other
sources,” however, can offer opinions reflecting their judgment
about some of the same issues. Id. The weight given to “other
source” opinions is case-specific, and the ALJ’s decision should
be “based on a consideration of the probative value of the
opinions and a weighing of all the evidence in that particular
30 case.” Id. at *5.
The ALJ determined that Estabrook had an RFC to perform
“light work,”24 “except she can never climb ladder[s], ropes, and
scaffolds. [She] can occasionally perform all other postural
activities. She should avoid all exposure to heights.” Tr. at
22. Regarding mental impairments, the ALJ concluded that
Estabrook had a medically determinable impairment of depression.
Tr. at 20. He concluded, however, that her mental impairments
did not limit her ability to work during the relevant period.
Tr. at 24.
The ALJ’s determination that Estabrook’s mental impairment
was not limiting is supported by substantial evidence. He noted
that during the period, Estabrook “sought minimal mental health
treatment, and was consistently noted to exhibit normal
attention, concentration, mood, and affect.” Id. Furthermore,
24 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b); 20 C.F.R. § 416.967(b).
31 he noted that Estabrook denied “experiencing any mental health
symptoms” during a medical visit in 2011. Tr. at 25.
Estabrook argues that the ALJ failed to accord sufficient
weight to the opinion of her therapist, Miriam Dunn, who opined
that Estabrook had poor or no work ability in the following:
“ability to remember work procedures, understand short
instructions, make simple decisions, complete a normal workday,
and deal with normal work stress[,] among others.” Tr. at 25.
The ALJ accorded Dunn’s opinion “very limited weight.”
Dunn is not considered an “acceptable medical source.” As
a result, Dunn cannot establish a medically determinable
impairment or provide a medical opinion. Nonetheless, the ALJ
may consider Dunn’s opinion. The weight the ALJ accords Dunn’s
opinion should reflect factors such as her relationship with
Estabrook, how consistent her opinion is with other evidence,
the degree of supporting evidence provided, how well she
explained the opinion, her specialty, and any other factors that
tend to support or refute her opinion. See SSR 06-03p, 2006 WL
2329939, at *4-5 (Aug. 9, 2006).
After weighing the relevant evidence, the ALJ concluded
that Dunn’s opinions should be accorded very limited weight
because they were inconsistent with substantial evidence in the
32 record. The ALJ noted that “all objective evidence” showed that
Estabrook had a normal mental status throughout the relevant
period. Tr. at 25. Specifically, Dunn’s own treatment notes
showed that Estabrook’s mood, affect, thought process, behavior,
and functioning were all “unremarkable” during their treatment
sessions. Tr. at 25 (citing Tr. at 795-99). Additionally, the
ALJ noted Estabrook’s own denial of mental health symptoms in
late 2011. Because of the inconsistency of Dunn’s opinion with
the rest of the evidence, the ALJ was entitled to accord very
limited weight to her opinion.
B. Dr. Guiry’s Opinion
Estabrook also argues that the ALJ erred by assigning
“little weight” to her treating primary care physician’s
opinions. She argues that the opinions of her primary care
physician, Dr. Guiry, “are consistent only with a finding that
Ms. Estabrook met her burden of showing that she is ‘disabled.’”
See Doc. No. 10-1, at 13.
Generally, the ALJ must give controlling weight to a
treating source’s opinion if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
record.” 20 C.F.R. § 404.1527(c)(2). If, however, the ALJ
33 finds that the treating physician’s opinion is inconsistent with
other substantial evidence in the record, the ALJ will instead
consider the treating physician’s opinion along with the other
medical opinions in the record, weighted according to certain
factors, including: the length, nature, and extent of the
source’s relationship with the claimant; the supportability of
the opinion; the consistency of the opinion with the record as a
whole; the source’s specialization; and any other factors which
tend to support or refute the opinion. See 20 C.F.R. §
404.1527(c).
Where a treating source provides multiple opinions over the
course of the relevant period and does not explain material
differences among them, the ALJ is not in a position to give
controlling weight to any of those opinions. See 20 C.F.R. §
404.1527(c)(2). In cases where multiple treating physicians
offer materially inconsistent opinions, the ALJ must resolve
those inconsistencies. See Watkinson v. Colvin, 2013 DNH 161,
at 5 n.2 (ALJ did not err in resolving contrary opinion evidence
from multiple treating physicians). The same principle applies
here where one treating physician offers multiple opinions that
are inconsistent.25 See Cruze v. Chater, 85 F.3d 1320, 1325 (8th
25 Although claimant provides a plausible explanation in her
34 Cir. 1996) (according limited weight to inconsistent statements
from a single treating physician). The resolution of these
conflicts in evidence is the province of the ALJ. See Irlanda
Ortiz, 955 F.2d at 769.
Regarding Estabrook’s physical exertion limits, Dr. Guiry’s
three opinions were inconsistent with each other. Dr. Guiry’s
November 2010 and April 2011 opinions state that Estabrook could
sit, stand, and walk for a maximum of one hour each per day, but
her December 2011 opinion states that she can sit and stand for
four hours each per day. See Tr. at 87 (November 2010), 90
(April 2011), 613 (December 2011). Dr. Guiry does not provide
an explanation for this material change. Given the
inconsistency, the ALJ need not give controlling weight to the
opinions and should give more weight to an opinion that is more
consistent with the record as a whole. See 20 C.F.R. §
404.1527(c)(4). On the issue of physical exertion, the ALJ
found that Dr. Guiry’s December 2011 opinion was more consistent
with the record as a whole. Specifically, the ALJ concluded
that the objective evidence showed Estabrook had full strength
in her extremities, no swelling or joint tenderness, normal
brief that her condition changed over time, there is no evidence that Dr. Guiry observed such a change or that a change in condition was the basis for the changes in her opinion.
35 gait, no weakness, the ability to heel and toe walk without pain
or difficulty, full range of motion of the back, and normal
finger dexterity, which were all inconsistent with a limited
ability to stand, walk, and sit. Therefore, the objective
evidence was more consistent with the physical exertion limits
listed in Dr. Guiry’s December 2011 opinion than in her prior
two opinions.
Regarding Estabrook’s ability to use her hands for
grasping, turning, or twisting objects, Dr. Guiry’s opinions
were also inconsistent. Dr. Guiry’s November 2010 and April
2011 opinions state that Estabrook could “occasionally” use her
hands to grasp, turn, and twist objects. Tr. at 88, 91. Dr.
Guiry’s December 2011 opinion states that Estabrook could
“never” use her hands for those purposes. Tr. at 614. Again,
it is the province of the ALJ to resolve this inconsistency.
See Irlanda Ortiz, 955 F.2d at 769. The ALJ noted that
Estabrook denied any neuropathy pain in January 2011 and that
Estabrook stated that Gabapentin was working very well to
control her symptoms. Tr. at 23, 25 (citing Tr. at 769).
Further, the ALJ pointed to Estabrook’s reported activities of
cooking, cleaning, and chasing her 3-year-old child as evidence
inconsistent with having no ability to use her hands to grasp,
36 turn, and twist objects.
Although the record also contains evidence supporting
Estabrook’s allegations of physical impairments, it is the ALJ’s
role, not mine, to weigh and resolve conflicts in the evidence.
See Rodriguez, 647 F.2d at 222 (citing Richardson v. Perales,
402 U.S. 389, 399 (1971)). Here, the ALJ’s decision in
assessing the medical opinions and other evidence is supported
by substantial evidence.
IV. CONCLUSION
For the foregoing reasons, I grant the Commissioner’s
motion to affirm (Doc. No. 11) and deny Estabrook’s motion to
reverse (Doc. No. 10). The clerk is directed to enter judgment
accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
October 21, 2014
cc: Karl E. Osterhout Daniel McKenna Robert J. Rabuck