UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Marie Carmo Gruhler
v. Civil No. 17-cv-208-JD Opinion No. 2017 DNH 252 Nancy Berryhill, Acting Commissioner, Social Security Administration
O R D E R
Marie Gruhler seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of Social
Security, denying her application for disability benefits under
Title II the Social Security Act. Gruhler moves to reverse on
the grounds that the Administrative Law Judge (“ALJ”) erred in
weighing opinion evidence, in considering her impairments, and
in failing to find that she is disabled. The Acting
Commissioner moves to affirm.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.” Nguyen v. Chater,
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); see also Fischer v. Colvin, 831 F.3d 31, 34
(1st Cir. 2016). Substantial evidence is “more than a mere
scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
When the record could support differing conclusions, the court
must uphold the ALJ’s findings “if a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
adequate to support his conclusion.” Irlanda Ortiz v. Sec’y of
Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(internal quotation marks omitted).
Background
Gruhler applied for social security benefits in June of
2014 when she was sixty-one years old. She completed the
twelfth grade in school and had previously worked as an
electronics inspector at Sylvania.
After a fall in August of 2012, Gruhler was examined in the
emergency room at Concord Hospital. Despite tender spots along
her spine, Gruhler’s strength, sensation, and gait were normal.
A CT scan and xrays showed were negative. A second review of
her xrays showed “a non-displaced proximal scaphoid wrist
fracture.”
2 Gruhler began physical therapy in September of 2012,
because of constant head and neck pain, back pain, and short-
term memory problems. At an appointment in October of 2012,
Gruhler’s right ankle was swollen after a two-mile walk.
Gruhler was referred to a foot doctor because of right ankle
pain.
Dr. Ronald Resnick noted swelling in Gruhler’s foot and
ankle. Gruhler explained that when she hurt her wrist in the
August fall she also injured her ankle. Dr. Resnick noted that
x-rays did not show a fracture but put Gruhler in a removable
cast boot. A CT scan of Gruhler’s ankle on October 11, 2012,
“showed a tiny avulsion type fracture at the tip of the lateral
malleolus with focal soft tissue swelling.” At subsequent
appointments Gruhler continued to complain of right ankle pain.
Gruhler also began physical therapy for her ankle. The
physical therapist noted that Gruhler had exceeding
hypersensitivity in the ankle and was concerned about potential
Complex Regional Pain Syndrome (“CRPS”). Dr. Resnick referred
Gruhler to pain management.
Gruhler continued to have pain in her wrist following the
fall. Dr. Mollano recommended that she use a stimulator and
wrist splints.
Through November of 2012, Gruhler continued to complain of
pain in her ankle and continued to wear the boot, although she
3 was told she did not need the boot. Dr. Resnick told Gruhler to
take off the boot and “to push through the pain.” Dr. Resnick
believed that Gruhler’s pain was due to CRPS because nothing was
structurally wrong with her ankle.
An occupational therapist, Paul Bonzani, evaluated
Gruhler’s wrist pain in November of 2012. He concluded that her
pain suggested CRPS and planned a therapy program to control
pain and increase her function.
Gruhler saw Dr. James Mirazita in December of 2012 for pain
management related to her ankle. Dr. Mirazita diagnosed
myofascial pain syndrome and scheduled a right lumbar
sympathetic block. Dr. Resnick saw Gruhler in January of 2013
for reevaluation of her ankle. Dr. Resnick noted that there was
no structural cause for the pain Gruhler claimed.
Dr. Davis Clark evaluated Gruhler’s back pain in January of
2013. He found that Gruhler had tenderness at some spinal
points but not others and that her range of motion in her legs
and hips was limited. Gruhler’s neurological examination of her
legs was normal.
Dr. Mirazita did nerve blocks in February and March of
2013, which improved Gruhler’s pain level and mobility. During
his examinations between January and July of 2013, Dr. Mirazita
found that Gruhler was not in acute distress, her neck and back
ranges of motion were normal, no evidence of spasms, and no pain
4 due to facet joint disease. Her arm and leg ranges of motion
were also normal, except for a reduced range of motion in her
right ankle. Gruhler’s ankle pain reduced to two out of ten by
July of 2013.
Dr. Clark found minimal lumbar spine tenderness in April of
2013. During physical therapy, the therapist noted that Gruhler
continued to be very limited in her functioning because of her
“right ankle fracture.” Dr. Mirazita noted that Gruhler had
increased ankle pain with walking.
In September of 2014, Gruhler reported worsened ankle pain.
Dr. Russell Brummett noted that Gruhler had a difficult time
standing and walking but was in no acute distress, her cervical
range of motion was intact, motor testing on her legs was normal
and she was walking with a stable upright gait. Dr. Mollano
diagnosed Gruhler with bilateral carpal tunnel syndrome in
October of 2014.
Dr. Peter Loeser did a consultative examination of Gruhler
on October 2, 2014. Based on Gruhler’s records, Dr. Loeser
noted early degenerative disease in the lumbar spine. He found
on examination that Gruhler was in no apparent distress, had
normal cervical range of motion, no tender points on spinal
palpation, and no spasms. The examination of her thoracic spine
was also normal. Gruhler had mild tenderness in the lower
lumbar areas. Dr. Loeser found that Gruhler had normal range of
5 motion and strength in her arms and legs with no pain. She had
mild pain in her right ankle. Dr. Loeser found that Gruhler had
a normal ability to sit, stand, get on and off the examination
table, squat, and walk.
Gruhler had an MRI of the lumbar spine the week after her
examination with Dr. Loeser. Dr. Brummett examined Gruhler in
mid-October and found that the MRI indicated only mild
degenerative changes. He noted that it would be reasonable for
Gruhler to try exercise and therapy, although Gruhler found it
exacerbated her issues. Dr. Brummett recommended chiropractic
treatment and a physiatrist.
Dr. John MacEachran assessed Gruhler’s functional capacity
on October 21, 2014. He found that Gruhler could do work at the
light exertional level and could occasionally do postural
activities. Gruhler saw Dr. Sarah Glover on October 25, 2014,
who found on examination that Gruhler was tender over lower back
muscles but had normal strength in her arms and legs and her
sensation was intact. Dr. Glover noted that Gruhler’s gait was
antalgic.
After another nerve block, Gruhler saw Dr. Glover in
November of 2014. Dr. Glover noted that Gruhler was doing well,
walking better, and was in no acute distress. On examination,
Dr. Glover found normal results.
6 Dr. Brummett asked Dr. Lewis to evaluate Gruhler because of
low back problems. Based on his examination in November of
2014, Dr. Lewis thought that Gruhler fit the criteria for
fibromyalgia. In December, Dr. Lewis noted that Gruhler had
improved with manipulation and that the fibromyalgia tender
points were much better.
Dr. Glover reviewed a bone scan in December of 2014 and
found osteoporosis. In January of 2015, Dr. Glover completed a
residual functional capacity questionnaire in which she noted
that she had seen Gruhler three times, beginning in October of
2014. Dr. Glover found that Gruhler was limited in her ability
to stand and walk in a work day, and in her ability to lift
weight and use her hands for grasping and turning. Dr. Glover
also thought that Gruhler would miss more than four work days
each month.
Dr. Lewis examined Gruhler in January of 2015, the day
after Dr. Glover completed the questionnaire. Dr. Lewis found
that Gruhler had improved. Gruhler’s subsequent medical records
also generally show improvement and normal results on
examination.
In March of 2015, Dr. Mollano found that Gruhler had
tenderness in her right thumb and a positive test for carpal
tunnel syndrome. Dr. Mollano also found that her right hand
sensation and finger flexors and extensors were intact and that
7 she had no atrophy in her hands. Dr. Mollano recommended that
she use a brace as needed for symptoms. When Gruhler reported a
flare up of pain in her right foot after dancing at a wedding,
Dr. Mirazita noted her reports and also noted a diagnosis of
CRPS in October of 2015.
Gruhler testified at a hearing before an ALJ in January of
2016. She reported difficulty with sitting for more than
fifteen minutes, difficulty with reaching and picking up
objects, and problems with memory and concentration due to pain.
She reported pain down the whole right side of her body and
numbness in her hands and fingers.
A vocational expert also testified at the hearing. In
response to the ALJ’s questions, the vocational expert testified
that Gruhler’s past work as an inspector was at the light
exertional level.
The ALJ found that Gruhler had severe impairments due to
degenerative disc disease, right ankle fracture, osteoarthritis
of her knees, right shoulder, and left hip. Despite those
impairments, the ALJ found that Gruhler retained the functional
capacity to do light work with limitations to occasionally doing
postural activities. The ALJ found that Gruhler could return to
her past work as an inspector. The Appeals Council denied
Gruhler’s request for review of the ALJ’s decision.
8 Discussion
Gruhler moves to reverse the ALJ’s decision. In support
she contends that the ALJ failed to properly weigh Dr. Glover’s
opinion, erred in relying on the opinions of non-examining
consultants, failed to consider her impairment due to Complex
Regional Pain Syndrome (“CRPS”), and erred in failing to find
her disabled under the Medical Vocational Guidelines. The
Acting Commissioner moves to affirm.
A. Dr. Glover’s Opinion
An ALJ is required to consider the medical opinions along
with all other relevant evidence in a claimant’s record. 20
C.F.R. § 404.1527(b). “Medical opinions are statements from
acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s), including
[the claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.” § 404.1527(a)(1).
Medical opinions are evaluated based on the nature of the
medical source’s relationship with the claimant, the consistency
of the opinion with the other record evidence, the medical
source’s specialty, and other factors that support or detract
from the opinion. § 404.1527(c).
9 A “treating source” is a physician or other acceptable
medical source who has provided “medical treatment or evaluation
and who has, or has had, an ongoing treatment relationship with
[the claimant].” § 404.1527(a)(2). An “ongoing treatment
relationship” exists “when the medical evidence establishes that
[the claimant] see[s], or ha[s] seen the [physician] with a
frequency consistent with accepted medical practice for the type
of treatment and/or evaluation required for your medical
condition(s).” Id. A treating physician’s opinion is generally
given more weight because they are likely to be “able to provide
a detailed, longitudinal picture of [the claimant’s] medical
impairment(s) and may bring a unique perspective to the medical
evidence.” § 404.1527(c)(2).
If a treating physician’s opinion is well-supported by
objective medical evidence and not inconsistent with other
medical evidence in the record, the ALJ will give the opinion
controlling weight. Id. When the ALJ does not give a treating
physician’s opinion controlling weight, the ALJ will consider
the length of the treatment relationship and the frequency of
examinations along with the other factors used to assess all
medical opinions. § 404.1527(c).
Dr. Glover is a primary care physician who first met with
Gruhler on October 24, 2014, “to establish care” and to re-start
Gruhler’s medication for depression. Dr. Glover saw Gruhler
10 again on November 7, 2014, for a physical, and on December 2,
2014, for a follow up visit on the results of Gruhler’s dexa
scan for bone density.
On January 12, 2015, Dr. Glover completed a physical
residual functional capacity questionnaire in which she noted
that Gruhler’s prognosis for improvement was good but that she
could not do work at even the sedentary level, had very limited
use of her hands, had pain that would interfere with her
attention and concentration, and would be absent from work for
more than four days each month. Dr. Glover stated that
Gruhler’s symptoms and limitations began in August of 2012,
based on Gruhler’s report.
The ALJ gave Dr. Glover’s opinions in the questionnaire
little weight. The ALJ explained that the opinions were based
on only three office visits and conflicted with Dr. Glover’s own
statement that Gruhler had a good prognosis. The ALJ also found
that Dr. Glover’s opinions conflicted with the objective medical
evidence, including normal neurological examination results, and
noted that Dr. Glover appeared to base her opinions on Gruhler’s
subjective reports which were not supported by the record.
Gruhler faults the ALJ for noting that she had had only
three visits with Dr. Glover. Gruhler argues that because Dr.
Glover is a treating physician, her opinion should have been
given greater weight than the opinions of the state agency
11 physicians who did not have a treating relationship with her.1
She also contends that the ALJ ignored the record evidence
available to Dr. Glover and that Dr. Glover’s opinions were
based on the record evidence, not on Gruhler’s subjective
complaints.
The ALJ properly considered the length of the treatment
relationship and the frequency of visits in Gruhler’s
relationship with Dr. Glover. § 404.1527(c)(2)(i) & (ii). In
addition, the ALJ did not evaluate the opinion based on only the
length and frequency of the treatment relationship. The ALJ
also noted the inconsistencies in Dr. Glover’s opinions and the
inconsistencies with Gruhler’s medical record as a whole.
Dr. Glover provided opinions on functions that she does not
appear to have assessed in the course of her three treatment
visits with Gruhler, such as Gruhler’s hand function and
interference in her attention and concentration. Dr. Glover
also provided no explanation of the source of her opinions in
the questionnaire other than Gruhler’s own reports and her
observation that Gruhler was limping. Contrary to the
1 There is no requirement that treating physician’s opinions be given more weight that the opinions of state agency consultants. Instead, all medical evidence must be considered and weighed as provided in § 404.1527. An ALJ may rely on the opinion of a state agency consultant as medical opinion evidence. § 404.1527(e).
12 questionnaire opinions, Dr. Glover’s treatment notes from her
physical examination on October 24, 2014, show that Gruhler was
in no acute distress, had no edema or discoloration in her
extremities, had normal muscle strength, and intact sensations.
The ALJ considered Dr. Glover’s opinions in the questionnaire
and appropriately gave them little weight.
B. State Consultant Physician Opinions
Gruhler contends that the ALJ erred in relying on the
opinions of consultant physicians, Dr. Loeser and Dr.
MacEachran, because they did not review later medical evidence.2
Gruhler cites an MRI of the lumbar spine done on October 7,
2014, “imaging of the wrists that later revealed bilateral
carpal tunnel syndrome,” and examinations that “confirm the
presence of CRPS of the right ankle” as new evidence that Dr.
Loeser and Dr. MacEachran did not review.
The opinion of a non-examining reviewing consultant that is
based on “a significantly incomplete record” is not substantial
evidence to support an ALJ’s decision. Alcantara v. Astrue, 257
Fed. Appx. 333, 334 (1st Cir. 2007). An ALJ may rely on an
opinion based on an incomplete record as long as any new
2 Dr. Loeser examined Gruhler on October 2, 2014, and based his opinions on his examination, along with his review of her record. For that reason, Dr. Loeser was not a non-examining consultant.
13 evidence does not show a material change for the worse in the
claimant’s limitations. Giandomenico v. U.S. Social Security
Admin., 2017 WL 5484657, at *4 (D.N.H. Nov. 15, 2017). The ALJ
bears the burden to determine and explain that any new evidence
is not material. Id.
1. MRI of the Lumbar Spine
The ALJ explained in the decision that the MRI of the
lumbar spine was assessed by Dr. Brummett who found only mild
degenerative changes and recommended chiropractic treatment.
Dr. Brummett also found normal range of motion and normal
neurological results. For that reason, the ALJ concluded that
the later MRI did not show a material change. Therefore, the
ALJ properly explained why the MRI of the lumbar spine did not
affect the completeness of the record.
2. Wrist
Both Dr. Loeser and Dr. MacEachern noted that Gruhler had
injured her wrists and claimed disability because of it. Dr.
Loeser wrote that Gruhler had a history of carpal tunnel
syndrome and that she wore splints for that reasons. On
examination, Dr. Loeser found that Gruhler had no abnormalities
in her wrists, had normal range of motion without pain, and had
no pain in the wrists with palpation. Dr. MacEachern relied on
Dr. Loeser’s examination in forming his opinion.
14 In support of her argument that the record includes new
evidence to support her wrist impairment, Gruhler cites Dr.
Mollano’s treatment note from October 1, 2014. In his notes,
Dr. Mollano states that “[t]wo views of each wrist reveal ulnar-
neutral variance with left ulnar-shortening osteotomy plate
visible at the distal ulna with decent joint spaces overall.”3 On
examination, Dr. Mollano found tenderness in Gruhler’s hands and
a positive test for carpal tunnel syndrome. Dr. Mollano also
found, however, that both hands had intact flexors and
extensors, full wrist and forearm range of motion, and other
normal results.
Dr. Mollano examined Gruhler on October 1, 2014, and Dr.
Loeser examined her on October 2, 2014.4 Both noted carpal
tunnel syndrome and both otherwise found normal results on
examination of Gruhler’s wrists. Given that record, there is no
new evidence to show that Gruhler’s wrist impairments were
materially worse than Dr. Loeser found in his examination.
3 It is not clear whether this note refers to new x-rays or to x-rays done previously.
4 Although Dr. Mollano’s treatment preceded the consultant’s opinions, apparently Dr. Loeser and Dr. MacEachern did not have Dr. Mollano’s notes to review.
15 3. CRPS
Gruhler also contends that the consultant physicians failed
to consider her impairment due to CRPS of the right ankle. As
she acknowledges, however, the record reviewed by the consultant
physicians included findings related to CRPS. Dr. Loeser also
examined Gruhler’s ankle and found a normal range of motion, no
deformities or abnormalities, and no pain on palpation.
Findings related to CRPS do not provide new evidence that post-
dated the consultant opinions, and Gruhler does not suggest that
naming the syndrome would change the results of Dr. Loeser’s
physical examination.
4. Result
The ALJ properly explained why the lumbar MRI results,
which the consultant doctors did not review, did not show
material worsening of Gruhler’s impairments. Neither the wrist
imaging nor findings related to CRPS presented new evidence of
worsening impairments.
C. ALJ’s Consideration of CRPS
Gruhler contends that the ALJ erred in failing to consider
her CRPS of the right ankle and contends that the ALJ should
have found CRPS to be a severe medically determinable impairment
16 at step two.5 In support, she cites Social Security Ruling 03-
2p, Titles II and XVI: Evaluating Cases Involving Reflex
Sympathetic Distrophy Syndrome/Complex Regional Pain Syndrome to
show that transient pain symptoms are consistent with CRPS and
that CRPS can be a severe medically determinable impairment.
Even if the ALJ erred in failing to find that CRPS of Gruhler’s
right ankle was a severe medically determinable impairment at
step two, any error is harmless as long as the ALJ considered
that impairment in assessing Gruhler’s residual functional
capacity at step four. See, e.g., Delia v. Comm’r of Social
Security, 433 Fed. Appx. 885, 887 (11th Cir. 2011); Fortin v.
Colvin, 2017 WL 1217117, at *10 (D. Mass. Mar. 31, 2017).
The ALJ did not ignore Gruhler’s right ankle pain and CRPS.
Instead, the ALJ found at step two that Gruhler’s history of
right ankle fracture was a severe impairment. In the context of
assessing her residual functional capacity, the ALJ noted Dr.
Resnick’s assessment of CRPS in November of 2012. The ALJ
relied on the opinions of Dr. Loeser and Dr. MacEachern that
5 In determining whether a claimant is disabled, the ALJ follows a five-step sequential analysis. 20 C.F.R. § 404.1520. The steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether she has a severe impairment; (3) determining whether the impairment meets or equals a listed impairment; (4) assessing the claimant’s residual functional capacity and her ability to do past relevant work; and (5) determining whether the claimant can make an adjustment to other work. § 404.1520(a).
17 Gruhler could do light work with certain postural limitations
despite her right ankle pain and CRPS.
Therefore, Gruhler has not shown that the ALJ erred in
failing to identify CRPS as a severe medical determinable
impairment or that any error would require reversal.
D. Medical-Vocational Guidelines
The Medical-Vocational Guidelines, Appendix 2 to 20 C.F.R.
Part 404, Subpart P, provide a “streamlined method” for
determining whether a claimant who meets certain criteria is
disabled. Heggarty v. Sullivan, 947 F. 2d 990, 995 (1st Cir.
1991); Holmes v. Colvin, 2016 WL 7410775, at *11 (D. Mass. Dec.
22, 2016). Pertinent to this case, Gruhler contends that she
should have been found to be disabled under section 202.06
because she is only capable of sedentary work, is of advanced
age, and lacks transferable skills. The ALJ, however, found
that she is capable of light work. Therefore, section 202.06
does not apply.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 13) is denied. The Acting Commissioner’s motion
to affirm (document no. 15) is granted.
18 The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Joseph A. DiClerico, Jr. United States District Judge December 20, 2017
cc: Mathew Beausoleil, Esq. Terry L. Ollila, Esq. T. David Plourde, Esq. D. Lance Tillinghast, Esq.