Proulx v . SSA CV-11-496-PB 10/11/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Melissa Day Proulx
v. Case N o . 11-cv-496-PB Opinion N o . 2012 DNH 180 Michael J. Astrue, Commissioner Social Security Administration
MEMORANDUM AND ORDER
Melissa Day Proulx seeks judicial review of a ruling by the
Commissioner of the Social Security Administration denying her
application for disability insurance benefits. Proulx contends
that the Administrative Law Judge (“ALJ”) who initially denied
her claim failed to properly evaluate the expert medical
evidence. Proulx urges this court to either reverse the
Commissioner’s ruling or remand the case for further hearing.
For the reasons set forth below, I deny Proulx’s request.
I. BACKGROUND1
Proulx was 33 years old when she applied for disability
insurance benefits. She obtained her high school diploma in
1 The background information is taken from the parties’ Joint Statement of Material Facts (Doc. N o . 9 ) . See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by “Tr.” 1993 and completed a licensed nursing assistant's course in
1995. Her work experience includes jobs as a retail cashier and
a licensed nursing assistant. Proulx alleged a disability onset
date of October 1 5 , 1999 in her original application for
benefits, but she later amended the date to December 1 1 , 2002.
She claimed disability due to ankylosing spondylitis,2 injuries
from a car accident in 1998, and memory issues.
On December 2 4 , 2009, the Social Security Administration
denied Proulx’s claim. She requested a hearing, and after
appearing and testifying on March 3 , 2011, the ALJ issued a
decision denying her request for benefits. This decision became
final on August 3 0 , 2011 when the Appeals Council declined to
review i t .
A. Medical History
1. Medical Conditions and Treatment Summary
On August 3 1 , 2001, Proulx began receiving treatment from
Dr. Margaret Tilton, a physiatrist, for chronic neck, shoulder,
arm, and hand pain. Proulx explained that her symptoms were
sporadic and began after a car accident on July 2 3 , 1998. D r .
Tilton’s exam revealed soft tissue trigger points and reduced
range of cervical motion. D r . Tilton diagnosed Proulx with
2 Ankylosing spondylitis is arthritis of the spine. Stedman’s Medical Dictionary 1456 (25th ed. 1990) [hereinafter Stedman’s].
2 chronic cervical and thoracic myofascial pain superimposed on
cervical and thoracic sprain/strain.
Dr. Tilton recommended a series of trigger point injections
which Proulx began receiving on September 6, 2001. At her
second treatment on October 4 , 2001, Proulx reported that the
injections provided significant, but temporary, relief. Proulx
received trigger point injections every few weeks until April
2 3 , 2002, at which point treatment was suspended because Proulx
was due to give birth. She gave birth via Caesarean section on
April 2 6 , 2002. The hospital released her three days later.
On August 2 3 , 2002, Proulx visited D r . Tilton for the first
time after giving birth. Proulx reported that her pain
management had improved since delivery.3 D r . Tilton examined her
and reported that she looked “quite good,” but noted trigger
points on her trapezius and left scapulae. Accordingly, D r .
Tilton ordered another series of trigger point injections.
Dr. Tilton continued to administer trigger point injections
to Proulx every few weeks from August 2002 through June 2003 and
also in November and December 2003. In her clinical notes from
several visits with Proulx, D r . Tilton reported that Proulx was
exercising, including pushing her children outside for a walk,
3 Proulx had begun to use a transcutaneous electrical nerve stimulation (“TENS”) unit daily after her son was born.
3 and participating in water therapy, swim, and yoga. T r . 5 3 1 ,
559, 569.
On December 1 1 , 2002, D r . Tilton drafted a “Permanent
Medical Impairment Report,” which summarized Proulx’s treatment
and explained how the relatively low impact collision and
resulting soft tissue injury of July 2 3 , 1998 precipitated her
symptoms. D r . Tilton concluded that Proulx could not perform
her past relevant work as a certified nurse’s assistant, but
“has a capacity for full-time sedentary work, or work in the
light category, that would allow her to change position
frequently, and not involve any sustained or repetitive cervical
motion, or lifting.”
On February 1 2 , 2003, Proulx began treatment with D r . Bruce
Samuels, a rheumatologist, for chronic myofascial pain syndrome.
Dr. Samuels observed tenderness in her neck, shoulders,
deltoids, trapezius, elbows, and lower back. He opined in his
treatment notes that Proulx appeared to have fibromyalgia, or at
least a chronic myofascial pain syndrome. D r . Samuels noted
that Proulx was receiving trigger point injections and, more
recently, Botox for her stiff neck and discomfort. D r . Samuels
commented that a low dose of steroids could help to alleviate
her pain. Thus, on May 1 5 , 2003, Proulx started taking
4 Prednisone. In June, 4 D r . Samuels noted that Prednisone helped
to eliminate pain in Proulx’s lower extremities, but not her
upper extremities and neck.
On June 3 0 , 2003, Proulx reported severe pain and cried
during her exam with D r . Samuels. Proulx explained that she was
now taking four Percocet pills each day for pain. D r . Samuels
noted that he was “at a loss of what to do” or where to send
Proulx for treatment. He provided Proulx with OxyContin and
ordered a bone scan. On July 2 1 , 2003, the bone densitometry
report indicated normal bone mineral density.
On August 5 , 2003, Proulx was feeling better during her
exam with D r . Samuels, but her complaints remained the same.
Tr. 596. D r . Samuels noted that Proulx had a cervical epidural
steroid injection, with minimal relief, but was going back for a
second injection.
On August 2 7 , 2003, a cervical MRI revealed mid-cervical
spondylotic change with mild spinal stenosis at C3-4 and C4-5 as
a result of disc-osteophyte complex.5 A thoracic MRI on the same
date was unremarkable.
4 The date in the record is unclear. T r . 597. 5 Spondylitic refers to inflammation of one or more of the vertebrae. Stedman’s at 1456. Spinal stenosis is the narrowing of the spinal column. Id. at 1473. An osteophyte is a bony outgrowth. Id. at 1110. 5 Proulx continued to receive treatment from D r . Samuels
between 2003 and 2011. On February 1 5 , 2011, D r . Samuels
assessed Proulx’s residual functional capacity and stated that
she was unable to work. In an addendum to the February 15th
report, D r . Samuels stated that the limitations he noted in the
assessment were present in 2003 and have essentially been
constant since then. T r . 669.
In his February 1 5 , 2011 report, D r . Samuels stated that
Proulx frequently suffered from pain, was incapable of
performing even low stress jobs due to her pain, and could not
walk any city blocks without rest or severe pain. Further, he
stated that Proulx could sit for twenty minutes and stand for
ten minutes at a time and could only sit or stand and walk for
less than two hours in an eight-hour workday. He added that
Proulx could never lift or carry even less than ten pounds and
suffered from significant limitations regarding repetitive
reaching, handling, and fingering. Also, he stated that Proulx
could not stoop or crouch, would have “bad days and not so bad
days,” and would always have to miss some work days due to her
impairments. Finally, D r . Samuels opined that Proulx was
sensitive to heat and humidity and needed to avoid extreme cold
temperatures, dust, fumes, and gas.
6 2. Agency Examination
On December 2 1 , 2009, consulting physician, D r . Louis
Rosenthal reviewed Proulx’s treatment records and completed a
residual functional capacity assessment. D r . Rosenthal opined
that Proulx could perform light work with occasional postural
and exertional limitations.
B. Administrative Hearing
1. Proulx’s Testimony
At the March 3 , 2011 administrative hearing Proulx
testified that she had suffered pain since her car accident in
July 1998 and was unable to care for her small children without
outside assistance. Proulx testified that during the relevant
period she had problems with self-care and activities of daily
living and required help from her husband. Proulx said it was
difficult to drive because she had trouble looking over her
shoulder. It was painful to breastfeed her children or stand up
to prepare meals. She explained that her friends, family
members, and some of her husband’s employees often helped care
for the children when her husband was not home. She had to take
medication to fall asleep and she was unable to sleep through
the night.
2. Proulx’s Husband’s Testimony
Proulx’s husband testified that she received two to five 7 days of relief after receiving trigger point injections. He
testified that Proulx was unable to care for her children and
family and some of his employees have come to the home to help.
He noted that he took care of daily household activities,
including cleaning, cooking, and laundry.
3. Vocational Expert’s Testimony
A vocational expert (“VE”) testified that Proulx had worked
as a nurse’s assistant and as a salesperson. The VE testified
that Proulx could not perform her past relevant work because
those positions exceed the light exertional level.
The ALJ asked the VE to consider a hypothetical individual
with the same vocational factors as the claimant and assume the
person has the ability to perform light exertional work and the
opportunity to alternate positions every thirty minutes. The
ALJ asked the VE to assume that this hypothetical person must
occasionally climb stairs, stoop, crouch, kneel and crawl, but
is able to avoid climbing ladders, ropes, and scaffolds. The VE
testified that such a hypothetical individual could perform
unskilled occupations such as a small products assembler,
electronics worker, or an escort.
The ALJ also asked the VE to consider an individual with
the same vocational factors as the claimant, but instead assume
the ability to perform sedentary exertional work. The VE 8 testified that such a hypothetical individual could perform
unskilled occupations such as addresser, loader, or surveillance
system monitor.
C. Administrative Law Judge’s Decision
The ALJ issued his decision on March 2 1 , 2011, finding that
Proulx was not disabled within the meaning of the Social
Security Act from December 1 1 , 2002 through December 3 1 , 2003,
her date last insured, because she retained the residual
functional capacity ("RFC") to perform light work so long as she
could alternate positions every thirty minutes and stand from a
seated position for a few minutes and stretch. T r . 1 7 . The ALJ
determined that jobs exist in significant numbers in the
national economy that Proulx could perform. Id. at 2 0 .
The ALJ’s decision became the final decision of the
Commissioner on August 3 0 , 2011, when the Decision Review Board
failed to complete a timely review.
I I . STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the 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 9 found facts [based] upon the proper quantum of evidence.” Ward
v . Comm’r of Soc. Sec., 211 F.3d 6 5 2 , 655 (1st Cir. 2000).
The findings of fact made by the ALJ are accorded deference
as long as they are supported by substantial evidence. Id.
Substantial evidence to support factual findings exists “‘if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.’”
Irlanda Ortiz v . Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (per curiam) (quoting Rodriquez v . Sec’y of
Health & Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981)). If
the substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.” 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 3 1 , 35 (1st Cir. 1999) (per curiam).
The ALJ is responsible for determining issues of
credibility and for drawing inferences from evidence on 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.
The ALJ follows a five-step sequential analysis for
determining whether an applicant is disabled. 20 C.F.R. §§
404.1520, 416.920. The applicant bears the burden, through the 10 first four steps, of proving that her impairments preclude her
from working. Freeman v . Barnhart, 274 F.3d 606, 608 (1st Cir.
2001). At the fifth step, the Commissioner determines whether
work that the claimant can d o , despite her impairments, exists
in significant numbers in the national economy and must produce
substantial evidence to support that finding. Seavey v .
Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001).
III. ANALYSIS
Proulx challenges the ALJ'S decision to deny her disability
claim by arguing that he erroneously gave greater weight to the
opinions of Drs. Tilton and Rosenthal than he gave to the
conflicting opinion of D r . Samuels.
A. Evaluating Conflicting Medical Opinions
The court reviews an ALJ’s factual findings under the
deferential “substantial evidence” standard and must uphold the
ALJ’s determinations if substantial evidence in the record
supports them. Ward, 211 F.3d at 655. When determining a
claimant’s eligibility for disability benefits, an ALJ must
consider all medical opinions in the case record. 20 C.F.R. §
404.1527(b). To the extent that the record includes evidentiary
conflicts, the agency, not the court, must resolve them.
Irlanda Ortiz, 955 F.2d at 769. 11 Generally, if there is a treating physician, the ALJ must
give his or her opinion controlling weight if it is “well-
supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other
substantial evidence in the record.” See 20 C.F.R. §
404.1527(d)(2); Leahy v . Raytheon Co., 315 F.3d 1 1 , 20 (1st Cir.
2002). If there are two treating physicians who reach contrary
conclusions, however, the ALJ cannot give controlling weight to
both opinions and must therefore weigh the conflicting evidence.
See Shaw v . Sec’y of Health & Human Services, 25 F.3d 1037
(Table), 1994 WL 251000, at *3 (1st Cir. June 9, 1994) (per
curiam); Irlanda Ortiz, 955 F.2d at 769.
In resolving conflicts in the medical evidence, the ALJ
must articulate “good reasons” for the weight given to each
treating source’s opinion. See 20 C.F.R. § 404.1527(c)(2). The
ALJ considers several factors when weighing conflicting medical
opinions including: the length of the treatment relationship and
frequency of examination; the nature and extent of the
relationship; the extent to which the evidence, and the
physician’s explanation of that evidence, supports the opinion;
the consistency of the opinion in the context of the record as a
whole; whether the treating physician is a specialist in the
field; and any other factors that tend to support or contradict 12 the opinion. Id.; § 404.1527(c)(2)-(6). The ALJ’s order “must
be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating
source's medical opinion and reasons for that weight.” Young v .
Astrue, Civil N o . 10-CV-417-JL, 2011 WL 4340896, at *9 (D.N.H.
Sept. 1 5 , 2011) (quoting SSR 96-2P, 1996 WL 374188 (July 2 ,
1996)).
B. ALJ’s Treatment of Opinion Evidence
Reading Proulx's argument through the lens of the
controlling legal standard, his principal claim is that reversal
or remand is required because the ALJ lacked "good reasons" for
the way in which he resolved conflicts in the opinion evidence.
I disagree.6
The ALJ articulated good reasons to discount D r . Samuels’s
opinion. An ALJ may discount a treating source opinion if it
6 Proulx alludes to two additional arguments that do not require extensive discussion. To the extent that Proulx argues that the ALJ was required to give controlling weight to D r . Samuels' opinion because he was a treating source, his argument fails because his opinion was in conflict with the opinion of D r . Tilton, who was also a treating source. See Shaw, 25 F.3d 1037 (Table), 1994 WL 251000, at * 3 . As I have explained, an ALJ cannot simply defer to the opinion of one treating source when it is in conflict with the opinion of another treating source. Proulx's alternative argument, that the ALJ was required to adopt D r . Samuels' opinion because he is a specialist, is also a nonstarter because a treating physician's specialty is only one of many factors that the ALJ considers when weighing a medical opinion. 20 C.F.R. § 404.1527(d)(1)-(6). 13 conflicts with “the claimant’s documented complaints,” evidence
of his activity level, and other medical evidence in the record
or if the opinion is conclusory. See 20 C.F.R. §§ 404.1527(d);
Young, 2011 WL 4340896, at * 8 . The ALJ discounted D r . Samuels’s
opinion because D r . Samuels’s treatment notes prior to December
3 1 , 2003 do not support his conclusions about Proulx’s level of
functional limitation and his opinion is inconsistent with other
evidence in the record, including the findings of Drs. Tilton
and Rosenthal. See Shaw, 25 F.3d 1037 (Table), 1994 WL 251000,
at * 3 ; Webster v . Astrue, 628 F. Supp. 2d 1073, 1087 (D. Neb.
2009); T r . 14–21.
Dr. Samuels found that Proulx was incapable of even “low
stress” jobs because of the chronic pain she was experiencing.
Tr. 665. To support his conclusion, D r . Samuels refers to a
note from February 2 , 2011, but most of the clinical findings
and diagnostic history discussed in the note occurred after
December 3 1 , 2003. Id. at 684–88. In the RFC questionnaire,
Dr. Samuels indicated that he first saw Proulx in 2001 and
listed her diagnosis as ankylosis spondylitis and chronic pain. 7
He noted observing symptoms of fatigue, pain, and tenderness,
7 D r . Samuels filled out a “new patient” report for Proulx on February 1 2 , 2003. T r . 599–600. 14 but never mentioned a diagnosis of fibromyalgia in the RFC
questionnaire. See id. at 664–68.
Furthermore, D r . Samuels’ treatment notes from 2003 do not
document any observed functional limitations that would support
the level of disability he asserts in the questionnaire. See
id. at 596–600. On February 1 2 , 2003, D r . Samuels noted that
Proulx had a full range of motion, but tenderness at trigger
points. Id. at 600. On June 3 0 , 2003, D r . Samuels stated that
he had no explanation for her pain. Id. at 597. The ALJ
reasonably found that D r . Samuels’s conclusions about Proulx’s
RFC were not supported by D r . Samuels’s treatment notes.
As the ALJ notes, there is no evidence in the medical
record of Proulx’s inability to ambulate or perform fine and
gross movements effectively. Id. at 1 7 . In fact, there is
evidence that Proulx was able to exercise and volunteer part-
time in a pet grooming business. D r . Tilton noted that her
motor strength is “5/5.” Id. at 582. While treatment notes
often indicate that Proulx often complained of pain, on several
occasions D r . Tilton notes that Proulx was feeling better and
even described herself as “not too bad” and “doing pretty well.”
Id. at 513, 5 1 4 , 518. D r . Tilton’s clinical notes indicate that
Proulx was exercising: pushing her kids outside for a walk,
engaging in water therapy twice a week, swimming, and yoga. Id. 15 at 5 3 1 , 559, 569. Even D r . Samuels’s notes state that Proulx
was able to exercise occasionally. Id. at 685. In 2002, Proulx
was volunteering at her mother’s pet grooming business. Id. at
539. This record evidence runs counter to D r . Samuels’s
assessment of Proulx’s residual functional capacity.
The ALJ instead credits Drs. Tilton and Rosenthal’s
findings. The record includes substantial evidence to support
the ALJ’s decision to afford great weight to the opinions of
Drs. Rosenthal and Tilton and discount D r . Samuels’ opinion.
Both Drs. Rosenthal and Tilton opined that Proulx retained the
RFC to perform a range of work at the light exertional level and
supported their opinions with references to the record and
Proulx’s complaints. Id. at 19–20.
Dr. Tilton is a physiatrist, or a specialist in physical
medicine. See White v . Barnhart, 415 F.3d 6 5 4 , 660 (7th Cir.
2005) (“physiatrists are experts in diagnosing and treating
acute and chronic pain and musculoskeletal disorders”);
Stedman’s at 1197. D r . Tilton treated Proulx regularly for
myofascial pain and fibromyalgia with medication management and
regular trigger point injections since August 3 1 , 2001. D r .
Tilton’s opinion was offered prior to the date last insured and
is consistent with the evidence of record. T r . 1 9 . On December
1 1 , 2002, D r . Tilton assessed Proulx’s RFC and noted that Proulx 16 suffered from significant pain despite treatment, but that she
nonetheless retained the functional capacity for “full-time
sedentary work, or work in the light category, that would allow
her to change position frequently, and not involve any sustained
or repetitive cervical motion, or lifting.” Id. at 540.
Proulx asserts that D r . Tilton was only opining about her
functional limitations caused by a car crash, and did not intend
to provide a full evaluation of all of Proulx’s limitations.
There is no indication in the record, however, that D r . Tilton
intended to ignore Proulx’s underlying and preexisting
conditions when assessing Proulx’s work capacity.
Next, Proulx challenges the weight the ALJ afforded D r .
Rosenthal’s opinion. She asserts that the ALJ failed to
consider (1) that D r . Rosenthal’s opinion is based on objective
clinical evidence that is not germane to an evaluation of her
primary disabling condition of fibromyalgia; and (2) D r .
Rosenthal is not a specialist in rheumatology. As discussed
above, a physician’s specialty is only one of many factors the
ALJ must consider. 20 C.F.R. § 404.1527(d)(1)-(6). Drs.
Rosenthal, Tilton, and the ALJ accept D r . Samuels’ diagnosis of
fibromyalgia, credit Proulx’s complaints, and acknowledge the
existence of trigger points. The ALJ did not accept D r . Samuels
assessment of Proulx’s degree of functional limitation; he found 17 Dr. Tilton’s and D r . Rosenthal’s opinions more credible. Dr.
Rosenthal’s opinion cites and is consistent with the opinion of
Dr. Tilton, a treating physician, and the record evidence.
IV. CONCLUSION
For the reasons set forth above, Proulx’s Motion for Order
Reversing Decision of the Commissioner (Doc. N o . 7 ) is denied
and defendant’s Motion for Order Affirming the Decision of the
Commissioner (Doc. N o . 8 ) is granted. The clerk shall enter
judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
October 1 1 , 2012
cc: Gretchen Leah Witt, AUSA Christopher G. Roundy, Esq.