Nadeau v . SSA CV-01-310-B 05/21/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Bryan D . Nadeau
v. Civil N o . 01-310-B Opinion N o . 2003 DNH 083 Jo Anne Barnhart
MEMORANDUM AND ORDER
On March 1 6 , 1999, Bryan Nadeau filed an application with
the Social Security Administration (“SSA”) for Title II
disability insurance benefits (“DIB”). After his application was
denied, both initially and on reconsideration, Barrett requested
a hearing. Administrative law judge (“ALJ”), Robert S .
Klingebier, held a hearing, and on November 1 5 , 2000, determined
that Nadeau was not disabled. Nadeau appealed, but on September
2 8 , 2001, the Appeals Council denied his request for review.
Nadeau brings this action pursuant to 42 U.S.C. § 405(g)
(1991 & Supp. 2002), seeking review of the denial of his
application for DIB. Nadeau argues that the finding that his subjective reports of pain and disability lacked credibility is
unsupported by substantial evidence.
I. BACKGROUND
A. Work History
Nadeau was forty years old when he filed his application for
DIB. He is a high school graduate and took a number of college
courses, but he did not earn a college degree. Nadeau’s work
experience includes owning and operating a plumbing and heating
business, working as a certified nurse’s assistant, working in
the computer aided design field, and managing service oriented
businesses. He closed his plumbing and heating business in 1999,
when he contends he became disabled and could no longer work.
Since then, Nadeau has not worked, relying upon friends, family,
and unemployment benefits for support.
B. Medical History
Nadeau claims that he has had pain in his joints since he
was at least fourteen. He claims that he was in an automobile
accident at age twelve, and that soon thereafter he began to
suffer from pain in his joints. Nadeau’s treatment for this
-2- pain, according to the administrative record, began in 1998.1
In February 1998, Nadeau told his primary care physician,
Dr. Gary Shapiro, that he had pain in his knees, shoulders, and
back. D r . Shapiro referred him to D r . John Schlegelmilch for a
rheumatology consultation. D r . Schlegelmilch conducted an
examination of Nadeau on March 1 1 , 1998. Nadeau’s joint
examination was negative. However, given Nadeau’s self-reported
history of musculoskeletal symptoms of unclear etiology, D r .
Schlegelmilch opined that he may have a sero-negative
spondyloarthropathy.2 D r . Schlegelmilch ruled out fibromyalgia.
Nadeau was prescribed Prednisone.3
On a follow-up examination by D r . Schlegelmilch, Nadeau
reported an excellent response to the Prednisone, noting an
increase in energy and a reduction in stiffness and pain.
1 Nadeau also complained of asthma and depression during the course of his treatment with various doctors. Because the focus of Nadeau’s claim involves his complaints of chronic joint pain, I do not include a detailed explanation of Nadeau’s asthma and depression in this background section. 2 Spondyloarthropathy is a disease of the joints of the spine. Dorland’s Illustrated Medical Dictionary (Dorland’s) 1563 (28th ed. 1994). 3 Prednisone is a steroid used for its anti-inflammatory properties. Dorland’s at 1346.
-3- However, Nadeau returned to D r . Schlegelmilch in August 1998 and
complained of trouble working and difficulty making a fist
because of joint swelling. After a reduced Prednisone dose
increased Nadeau’s arthritic symptoms, D r . Schlegelmilch
prescribed an aggressive treatment plan in order to allow Nadeau
to continue working. D r . Schlegelmilch also prescribed Methotrexate.4
Nadeau’s condition improved with the aggressive Prednisone
treatment. However, in January 1999, he complained to D r .
Schlegelmilch of joint pain and stiffness. D r . Schlegelmilch
examined Nadeau and found no joint swelling, but based upon his
symptoms and presentation D r . Schegelmilch diagnosed him with
inflammatory arthritis. Nadeau continued to complain of pain in
his joints and back during the months following the January
examination, despite further aggressive Prednisone treatment.
Dr. Shlegelmilch noted that Nadeau’s problems were a “mystery”
and “all-in-all very confusing.” D r . Schlegelmilch did note that
stress and depression may be a factor involved in Nadeau’s joint
4 Methotrexate is used, inter alia, in the treatment of adult rheumatoid arthritis and psoriatic arthritis. Dorland’s at 1029.
-4- pain. He prescribed hydroxychloroquine5 for Nadeau’s joint
inflammation and Paxil for his depression.
Dr. Shapiro saw Nadeau on May 6, 1999. Nadeau reported that
he continued to experience pain in his lower back, hands, knees,
feet and toes. D r . Shapiro noted that he “appear[ed] well,” but
he had some tenderness in his lower back. Nadeau could bend
easily, but he could not touch his toes. There was no focal
tenderness in his knees and no ligament instability. D r . Shapiro
remarked that Nadeau’s medical history and examinations were
“confusing,” yet they “seem[ed] most compatible with a
fibromyalgia-type picture, rather than an inflammatory
arthritis.”
On May 1 2 , 1999, Nadeau saw Linda J. Groiss, PA-C. Nadeau
stated that his job as a plumber and heating contractor required
him to frequently squat and kneel. This, according to Nadeau,
aggravated his knees. Groiss’s examination revealed that Nadeau
had suffered from Osgood-Schlatter6 disease as a child, but that
5 Hydroxychloroquine is an anti-inflammatory frequently used in the treatment of arthritis. Dorland’s at 787. 6 Osgood-Schlatter’s disease is a degeneration and later recalcification of the tibia. Dorland’s at 487. It occurs most commonly in boys ages 10 to 1 5 . The Merck Manual 2414 (17th ed.
-5- presently he had a full range of motion and no grinding or
rubbing of the bones. Groiss noted that x-rays of his knees
looked “great” and that the patellae were lined up “nicely” in
the femoral groove. Groiss concluded that Nadeau had bilateral
patellofemoral pain with a history of joint pain and athritic-
type problems. She referred him to a quad strengthening program
and fitted him with an elastic knee support.
Nadeau returned to D r . Schlegelmilch on June 1 4 , 1999,
complaining that he could not work because of joint pain. After
examination, D r . Schlegelmilch again concluded that there was no
evidence of joint swelling. He diagnosed Nadeau as suffering
from fibromyalgia with an element of depression. D r . H . Roger
Hansen also evaluated Nadeau on June 1 4 , 1999 for his complaints
of knee pain. Although some tenderness was noted by D r . Hansen,
x-rays of Nadeau’s knees were unremarkable and a magnetic
resonance imaging scan (“MRI”) was essentially normal. D r .
Hansen concluded that Nadeau had patellofemoral pain syndrome,7
and nothing more serious. He suggested that Nadeau continue with
1999). 7 Pain in the knee and femur.
-6- a conservative treatment.
On August 1 1 , 1999, D r . Nancy Johnson evaluated Nadeau’s
reports of chronic pain. She did not diagnose Nadeau with
fibromyalgia because there were no active trigger points and no
evidence of joint redness, warmth or swelling. Rather, she
concluded that he had an unknown type of inflammatory arthritis.
Her examination revealed no outward thickening of the joints, and
no warmth or redness of the joints. She recommended a trial
therapy of hot wax treatments, which Nadeau later reported were
unhelpful, and shoe orthotics. At a follow-up examination in
September 1999, Nadeau reported that his foot pain had subsided
with the use of the orthotics.
Nadeau saw D r . William Swinburne for a consultative mental
evaluation. Nadeau told D r . Swinburne that his day was defined
and controlled by his chronic pain. D r . Swinburne’s examination
concluded that Nadeau suffered from “major depression, recurrent,
moderate.” D r . Swinburne noted that Nadeau’s difficulty in
functioning at a job appeared more physical than psychological.
However, D r . Thomas Stearns, who examined Nadeau in September
1999, concluded that psychological factors contributed to
Nadeau’s complaints of pain. D r . Stearns observed that Nadeau
-7- was verbal and cooperative, although he sensed that Nadeau was
somewhat guarded. Pain behaviors were not notable. D r . Stearns
diagnosed Nadeau with dysthymic disorder.8 Nadeau was to undergo
a series of psychological inventories related to his pain and
depression, however, the record is devoid of any evidence that
such inventories were completed.
Nadeau returned to D r . Stearns a year later. D r . Stearns
noted that a number of medications had been tried and
discontinued in an effort to abate Nadeau’s pain. Nadeau
reported that his pain was mitigated by pacing his daily
activities, including basic housework, visiting his parents,
running errands, and taking warm baths. He reported that he had
come to accept the presence of pain and that his stress level had
decreased. D r . Stearns remarked that Nadeau had applied
constructive pain management strategies in an effort to engage in
daily activities. D r . Stearns suggested that Nadeau enroll in a
stress management group and mindfulness meditation program.
8 Dysthymic disorder is depression marked by episodes of major depression. It begins in childhood or adolescence and continues along a low-grade course over many years or decades. Merck Manual at 1538.
-8- In February 2000, D r . Shapiro conducted a general physical
examination on Nadeau and reported no swelling in the extremities
and good peripheral pulsations. D r . Shapiro diagnosed Nadeau with chronic arthralgias.9
C. Residual Functional Capacity Assessments
In June 1999, D r . Burton Nault, a state agency physician,
completed a residual functional capacity (RFC) assessment. The
RFC concluded that Nadeau could lift and/or carry twenty pounds
occasionally and ten pounds frequently, stand and/or walk for
about six hours with normal breaks given an eight hour workday,
sit for about six hours in an eight hour workday, and push and/or
pull with the upper and lower extremities without restriction.
Furthermore, the RFC concluded that Nadeau could occasionally
climb, balance, stoop, kneel, crouch and crawl. Nadeau was not
found to be subject to any manipulative, visual, communicative or
environmental limitations. D r . Nault noted that no treating or
evaluating physician identified a total disability on a physical
basis.
Arthralgia is pain in the joints. Dorland’s at 140. -9- A second RFC was conducted by a state agency physician10 in
January 2000. The results of this RFC were substantially similar
to D r . Nault’s RFC completed in 1999. The January 2000 RFC
specifically noted Nadeau’s subjective complaints of pain, but
concluded that the results of the RFC were reasonable given the
medical evidence. However, the RFC did note that Nadeau should
avoid concentrated exposure to extreme cold, fumes, odors, dusts,
and gases.
D. Psychiatric Review Technique Forms
Dr. Michael A . Schneider completed a psychiatric review
technique form (PRTF) and rendered a mental residual functional
capacity assessment in August 1999. Based upon D r . Swinburne’s
consultative report, D r . Schneider concluded that Nadeau suffered
from recurrent major depression. He noted that Nadeau exhibited
some signs of social isolation and depressed mood, as well as a
decrease in motivation and capacity. However, he concluded that
Nadeau could perform tasks without supervision and was able to
complete scheduled activities within a normal work week. He also
noted that Nadeau could perform normally in a low-stress setting.
The physician’s name is undecipherable from the record. -10- Dr. Carol McKenna completed a PRTF in December 1999. Based
upon a review of the medical record, she also concluded that
Nadeau suffered from depression. The only limitation she noted
was Nadeau’s moderate limitation in his ability to interact with
co-workers.
E. The ALJ’s Decision
In his November 1 5 , 2000 decision, the ALJ applied the five-
step sequential evaluation process under which disability
applications are reviewed. See 20 C.F.R. § 404.1520. In the
first step, the ALJ found that Nadeau had not engaged in
substantial gainful activity since his alleged date of onset of
disability. At the second step, the ALJ found that Nadeau’s
asthma, chronic complaints of pain, and depression constituted
severe impairments. At the third step, he found that Nadeau’s
impairments, although severe, did not meet or equal the criteria
of any listed impairment described in 20 C.F.R. § 4 0 4 , Subpart P,
Appendix 1 .
In assessing Nadeau’s RFC, the ALJ found that, prior to his
date last insured, Nadeau could lift and carry more than twenty
pounds occasionally or more than ten pounds frequently. But, the
ALJ found that Nadeau should avoid exposure to dust and fumes,
-11- and should avoid waiting upon the public. Based on this RFC, the
ALJ found at step four of the disability evaluation process that
Nadeau could return to his former employment, as it did not
require the performance of work-related activities precluded by
his limitations. Because the plaintiff was able to return to his
past relevant work, he was not under a disability (as defined by
the Act) prior to his date last insured.
In reaching this conclusion, the ALJ noted that Nadeau
reported knee and joint pain, but that the reports of D r .
Schlegelmilch indicated that Nadeau had a normal evaluation and
that his MRI testing was negative. Furthermore, D r . Swinborne
concluded that Nadeau had a normal posture and gait. The ALJ
also pointed out that Nadeau reported to D r . Shapiro that after
he sold his business he was spending more time with his family.
During a pain management consultation with D r . Stearns in
September 2000, Nadeau told the doctor that he suffered from pain
but was able to spend time doing housework, running errands, and
visiting with friends and family. The ALJ indicated that the
medical records note that Nadeau’s x-rays, MRIs, and joint
function were consistently normal, and that Nadeau was fully
weight bearing.
-12- Finally, the ALJ also found that Nadeau’s allegations of a
disabling pain and other subjective symptoms were not entirely
credible. Since Nadeau’s alleged onset of disability, the ALJ
noted that Nadeau acknowledged improvement in his symptoms after
resolving his financial troubles. He found that Nadeau did not
require strong pain medication to control his reported symptoms,
and that Nadeau remained “quite active.” Relying upon the
medical record and the RFCs, the ALJ concluded that while Nadeau
did experience some limitations as a result of his impairments
(i.e., lifting more than 20 pounds occasionally and more than 10
pounds frequently; avoiding fumes and dust; avoiding waiting upon
the public), he did not experience pain or other subjective
symptoms at a level that would interfere with him performing his
past relevant work.
II. STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant’s application for benefits and upon a timely request by
the claimant, I am authorized to review the pleadings submitted
by the parties and the transcript of the administrative record
and enter a judgment affirming, modifying, or reversing the
-13- Commissioner’s decision. See 42 U.S.C. § 405(g). The court’s
review is limited in scope, however, as the Commissioner’s
factual findings are conclusive only if they are supported by
substantial evidence. See id.; Irlanda Ortiz v . Sec’y of Health
& Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The
Commissioner is responsible for settling credibility issues,
drawing inferences from the record evidence, and resolving
conflicting evidence. See Irlanda Ortiz, 955 F.2d at 769;
Frustaglia v . Sec’y of Health & Human Servs., 829 F.2d 1 9 2 , 195
(1st Cir. 1987); see also Tsarelka v . Sec’y of Health & Human
Servs., 842 F.2d 529, 535 (1st Cir. 1988) (“[W]e must uphold the
[C]ommissioner’s conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.”) (citations omitted). Therefore, the
court must “‘uphold the [Commissioner’s] findings . . . if a
reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adequate to support [the Commissioner’s]
conclusion.’” Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez
v . Sec’y of Health & Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir.
1981)).
-14- While the ALJ’s findings of fact are conclusive when
supported by substantial evidence, they “are not conclusive when
derived by ignoring evidence, misapplying the law, or judging
matters entrusted to experts.” Nguyen v . Charter, 172 F.3d 3 1 ,
35 (1st Cir. 1999) (per curiam) (citations omitted). If the
Commissioner has misapplied the law or has failed to provide a
fair hearing, however, deference to the Commissioner’s decision
is not appropriate, and remand for further development of the
record may be necessary. See Carroll v . Sec’y of Health & Human
Servs., 705 F.2d 6 3 8 , 644 (2d Cir. 1983); see also Slessinger v .
Sec’y of Health & Human Servs., 835 F.2d 9 3 7 , 939 (1st Cir. 1987)
(“The [Commissioner’s] conclusions of law are reviewable by this
court.”) I apply these standards in reviewing the issues Barrett
raises on appeal.
III. ANALYSIS
Nadeau argues that the ALJ failed to follow SSR 96-7p when
assessing his credibility. Specifically, he complains that the
ALJ failed to consider the record as a whole and failed to
consider the factors outlined in SSR 96-7p in determining that
Nadeau was not fully credible. I disagree.
-15- SSA regulations require that the ALJ consider a claimant’s
symptoms, including complaints of pain, when he or she is
determining whether a claimant is disabled. See 20 C.F.R. §
404.1529(a). When determining whether a claimant’s subjective
statements are credible, an ALJ must evaluate the medical signs
and laboratory findings, any diagnosis, prognosis or other
medical opinions, and any statements/reports from the plaintiff
or treating or examining physicians or psychologists about the
patient’s medical history. SSR 96-7p. In addition, because an
individual’s pain can sometimes result in a greater severity of
impairment than can be shown by the objective medical evidence,
the adjudicator must consider the following evidence, known as
“the Avery factors,” when assessing the credibility of an
individual’s statements: (1) the claimant’s daily activities;
(2) the location, duration, frequency and intensity of the
individual’s pain; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects
of any pain medication; (5) treatment other than pain medication;
(6) any other measures that the claimant has used to relieve
pain; and (7) other factors concerning the claimant’s limitations
and restrictions due to pain or other symptoms. See 20 C.F.R. §
-16- 416.929(c)(3); SSR 96-7p; Avery v . Sec’y of Health and Human
Servs., 797 F.2d 1 9 , 22-23 (1st Cir. 1986). In addition to these
factors, the ALJ is entitled to observe the claimant, evaluate
his demeanor, and consider how the claimant’s testimony fits with
the rest of the evidence. See Frustaglia, 829 F.2d at 195.
An ALJ’s credibility determination must include specific
findings and be based on a substantially accurate view of the
record evidence. See Da Rosa v . Sec’y of Health and Human
Servs., 803 F.2d 2 4 , 26 (1st Cir. 1986) (per curiam) (ALJ’s
finding that a claimant is not credible “must be supported by
substantial evidence” and must be based on “specific findings as
to the relevant evidence he considered in determining to
disbelieve the [claimant].”). Moreover, the ALJ’s findings with
respect to credibility “must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and
the reasons for that weight.” SSR 96-7p. When properly
supported by record evidence, the ALJ’s credibility determination
is entitled to substantial deference from this court. See
Frustaglia, 829 F.2d at 195.
-17- The record reflects that the ALJ considered the entire
record and took into account the Avery factors. He considered
Nadeau’s daily activities, noting that Nadeau reported to D r .
Stearns that he performs basic housework, visits his parents and
friends, and runs errands. Furthermore, the ALJ considered the
duration, frequency, and intensity of Nadeau’s pain, noting that
since Nadeau’s alleged onset of disability he acknowledged
improvement in his symptoms. The ALJ also noted that Nadeau’s x-
rays, MRIs, and joint function were consistently normal, and that
Nadeau was fully weight bearing.
The ALJ also considered Nadeau’s use of pain medication,
stating that Nadeau did not require strong doses to control his
alleged intense and chronic pain. The absence of the need to
use, or the actual use o f , stronger pain medications is
inconsistent with the severity of the pain Nadeau alleged. See
Albors v . Sec’y of Health and Human Servs., 817 F.2d 146, 147
(1st Cir. 1986) (per curiam) (“[The medical evidence], together
with the fact that claimant apparently takes nothing stronger
than aspirin, supports the ALJ's rejection of claimant's
assertions of disabling pain.”); Boisvert v . Callahan, 997 F.
-18- Supp. 183, 186 (D. Mass. 1998) (“[The ALJ] found that the
plaintiff could not reasonably suffer the degree of pain that she
alleged without seeking more active treatment or taking pain
medication stronger than Tylenol.”).
Finally, the ALJ considered the fact that Nadeau’s
activities and physical capabilities are limited to some degree.
Indeed, he specifically found that Nadeau could lift no more than
20 pounds occasionally and 10 pounds frequently. The ALJ also
found that Nadeau should avoid excessive dust and fumes, and
should not wait upon the public. However, he ultimately
concluded that his RFC indicated he would have been able to
perform his past relevant work activity. The medical evidence in
the record supports the ALJ's determination that Nadeau's pain
did not limit his functional capacity beyond that already
assessed.
The ALJ’s decision that Nadeau’s complaints of pain were not
fully credible is supported by substantial evidence. See
Frustaglia, 829 F.2d at 195. (finding that more express findings
would be preferable, but examination of the record demonstrated
that substantial evidence supported the ALJ’s findings).
-19- IV. CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), I deny the
plaintiff’s motion for an order reversing the decision of the
Commissioner (Doc. N o . 8 ) , and grant the defendant’s motion for
an order affirming the decision of the Commissioner (Doc. N o . 9 ) .
The Clerk of Court is directed to enter judgement in accordance
with this order and close the case.
SO ORDERED.
Paul Barbadoro Chief Judge
May 2 1 , 2003
c c : Gerald D. Neiman, Esq. David L . Broderick, Esq.
-20-