Remick v. SSA CV-10-578-PB 10/21/11
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gary Arlon Remick
v. Case N o . 10-cv-578-PB Opinion N o . 2011 DNH 176 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Gary Arlon Remick filed a complaint, pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of the decision of the
Commissioner denying his application for supplemental social
security benefits. Remick contends that the Administrative Law
Judge (“ALJ”) failed to consider the combined effect of Remick’s
impairments in determining his residual functional capacity
(“RFC”), and gave insufficient weight to the opinion of Remick’s
treating physician, Dr. Sebastian Strobel. The Commissioner
moves to affirm the decision. For the reasons provided below, I
affirm the Commissioner’s decision.
I. BACKGROUND1
Remick applied for supplemental social security benefits on
April 9, 2008, when he was fifty years old. He alleged an
1 The background information is taken from the parties’ Joint Statement of Material Facts. See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by "Tr."
1 inability to work as of February 1 8 , 2008, due to multiple
impairments, including diabetes mellitus,2 atrial fibrillation,3
neurogenic bladder,4 dysthymic disorder,5 and anxiety disorder.6
He completed the tenth grade of high school, and in the past, he
worked as a custodian in a school system and as a laborer in a
lumber yard.
A. Medical History
Remick was hospitalized on February 1 8 , 2008, following a
visit to the emergency room at the Dartmouth Hitchcock Medical
Center (“DHMC”), where he requested alcohol detoxification.
Upon discharge on March 5 , 2008, the primary diagnoses were:
diabetes mellitus, atrial fibrillation, alcohol detoxification,
and urinary retention from either bladder outlet obstruction or
2 Diabetes mellitus is “a chronic metabolic disorder in which the use of carbohydrate is impaired and that of lipid and protein enhanced. It is caused by an absolute or relative deficiency of insulin . . . .” Stedman’s Medical Dictionary at 529 (28th ed. 2006) (“Stedman’s”). 3 Atrial fibrillation is “[v]ermicular twitching . . . of individual muscular fibers . . . in which the normal rhythmic contractions of the cardiac atria are replaced by rapid irregular twitchings of the muscular wall . . . .” Stedman’s at 722-23. 4 Neurogenic bladder is “any defective functioning of bladder due to impaired innervation . . . .” Stedman’s at 226. 5 Dysthymic disorder is “a chronic disturbance of mood characterized by mild depression or loss of interest in usual activities.” Stedman’s at 569. 6 Anxiety disorder is characterized by “chronic, repeated episodes of anxiety reactions.” Stedman’s at 569. 2 urinary tract infection (“UTI”). During this admission, he was
placed on insulin, and at the time of discharge, his glucose was
well controlled. He also began taking diltiazem, a medication
for atrial fibrillation. Lastly, a catheter was inserted to
address urinary retention and he was taught to straight-
catheterize.
1. Atrial Fibrillation
On March 1 1 , 2008, at a first doctor’s visit following his
hospitalization, Remick reported that he had not noticed
problems with his heart rate being too fast or slow. Dr. Dhaval
Parikh, who saw Remick on April 1 7 , 2008 at the DHMC, noted that
at that time, Remick was completely asymptomatic with atrial
fibrillation and that his heart rate was mostly controlled.
During a May 1 9 , 2008 visit with Dr. Strobel, Remick’s primary
care provider, no cardiovascular symptoms were noted. The
assessment was that Remick’s atrial fibrillation rate was
controlled. The only symptom noted was gravity dependent edema
in the afternoon, most likely from diltiazem. At a subsequent
visit, on July 1 6 , 2008, Remick again reported no difficulties
with his heart and no chest pain, but reported that he still had
lower extremity edema that would be gone in the morning, and
that while exercising he experienced shortness of breath. Dr.
Strobel indicated that Remick did a lot of walking. Dr. Strobel
also noted that on June 1 3 , 2008, while following a Bruce
3 protocol,7 Remick had to stop because of fatigue, the target rate
was not reached, and Remick developed atrial flutter8 during
recovery. A Holter monitor9 test was performed on August 1 8 ,
2008. The physician’s interpretation was periods of normal
sinus rhythm with multiple episodes of fibrillation, flutter,
and supraventricular tachycardia10.
In a subsequent visit with Dr. Strobel on August 2 6 , 2008,
Remick’s heart rate was normal and there was no edema in his
extremities. There was a follow-up cardiology visit on August
2 7 , 2008, during which Remick reported that he continued to go
for walks and expressed no functional limitations. On October
1 5 , 2008, Dr. Strobel again found that Remick’s heart rate was
well controlled. Upon examination, there was no edema in his
extremities. During the next visit, on January 2 1 , 2009, Remick
reported to Dr. Strobel that he was exercising well and had
7 Bruce protocol is “a standardized protocol for electrocardiogram-monitored exercise using increasing speeds and elevations of the treadmill.” Stedman’s at 1584. 8 Atrial flutter is characterized by “rapid regular atrial contractions occurring usually at rates between 250 and 330 per minute . . . .” Stedman’s at 749. 9 Holter monitor is “a technique for long-term, continuous[,] usually ambulatory, recording of electrocardiographic signals on magnetic tape for scanning and selection of significant but fleeting changes that might otherwise escape notice.” Stedman’s at 1222. 10 Tachycardia is “[r]apid beating of the heart, conventionally applied to rates over 90 beats per minute.” Stedman’s at 1931. Supraventricular tachycardia occurs “anywhere above the ventricular level, i.e., sinus node, atrium, atrioventricular junction.” Id. 4 decreased leg swelling. Dr. Strobel again noted that there was
no edema in his extremities and that his heart rate was well
controlled. On the same date, Dr. Grossman reported that Remick
was exercising without difficulty and that he was not
experiencing shortness of breath.
When Dr. Strobel saw Remick on May 1 3 , 2009, Remick
reported swelling in his right leg, especially at night. Dr.
Strobel found that his heart rate seemed to be well controlled
but that Remick was flipping in and out of fibrillation and
flutter. During a cardiology visit on June 3 , 2009, Remick
reported that he had more dependent edema over the past year and
that although his legs were usually free of fluid in the
morning, the fluid accumulated progressively during the day.
The assessment was that his ventricular responses to atrial
arrhythmias appeared to be well controlled, and that the
swelling was related to diltiazem.
Remick saw Dr. Strobel again on July 2 1 , 2009 and reported
that he was “okay” on metoprolol and diltiazem, the two atrial
fibrillation prescriptions he was taking, and that he had less
swelling in his ankles. At follow-up visits on October 1 6 , 2009,
November 3 , 2009, January 1 5 , 2010, and March 5 , 2010, Dr.
Strobel noted that Remick’s heart rate continued to be well
controlled and that there was no edema in his extremities.
5 2. Bladder Dysfunction
During his March 1 1 , 2008 visit at the DHMC, Remick
reported straight-catheterizing every three hours to address his
bladder dysfunction. At a subsequent visit, on April 1 7 , 2008,
a urodynamic study showed that he had atonic bladder with
impaired sensation and the resulting treatment plan was to
continue to cath often enough to keep his urine volume under 500
cc. The diagnosis was confirmed in a GI/Hepatology consultation
on May 6, 2008.
On May 1 9 , 2008, Dr. Strobel noted that Remick had to cath
himself every three hours. Although there was no burning or
pain, Dr. Strobel intended to contact urology for alternatives
to straight-catheterization. That same day, Dr. Eisenberg, in
consultation with Dr. Strobel, noted that Remick was
experiencing fatigue and sleep interruption due to having to use
a catheter. Remick told Dr. Strobel on his next visit on July
1 6 , 2008, that he felt tired from the straight-catheterization,
as it was interrupting his sleep. There was again no burning or
blood in the urine.
On December 3 1 , 2008, Remick had a UTI which caused a large
blood clot. A report culture performed on January 2 , 2009,
showed that the infection was gone. As of January 2 1 , 2009,
Remick reported cathing approximately every 4 hours, that his
urine volume was rarely over 500 c c , that he did not void at all
6 on his own, and that he had no difficulties cathing. The same
was reported during a urology consultation on July 2 1 , 2009. At
that time, Dr. Gromley, a urologist, did not recommend any
alternatives to cathing.
On October 1 , 2009, Remick was treated for another UTI.
His physicians noted that he had not retained bladder function
and that he had experienced two to three UTIs. Improvement was
noted on November 3 , 2009, when Dr. Strobel stated that Remick
was having less frequent UTIs. On March 5 , 2010, the date of
his last visit addressing the condition, Remick reported using a
catheter every four hours and had no further UTIs.
3. Diabetes
On March 1 1 , 2008, at a follow-up visit to his
hospitalization, Remick’s diabetes was under control with
insulin. He reported feeling a little shaky on two to four
occasions. On March 2 6 , 2008, his medication for diabetes was
adjusted based on a report that he had gone to the emergency
room for hypoglycemia. Remick then went to the Diabetes Clinic
for diabetes patient education on April 3 , 2008, April 1 8 , 2008,
May 2 3 , 2008, July 1 7 , 2008, and October 3 , 2008. A barrier to
diabetes education learning was identified as a cognitive issue.
Dr. Strobel noted following a May 1 9 , 2008 visit that
Remick’s diabetes was well controlled. On July 1 6 , 2008,
however, Remick reported to Dr. Strobel that his blood sugar was
7 poorly controlled and that sometimes he “cheat[ed]” by eating
cake. At a subsequent visit, on August 2 6 , 2008, Dr. Strobel
noted that Remick’s blood sugar was still not well controlled
and increased his insulin regimen. On October 1 5 , 2008, Dr.
Strobel found that his diabetes seemed to be better controlled
with the new regimen. Improvement was again noted on January
2 1 , 2009, when Remick reported no hypoglycemia episodes and Dr.
Strobel stated that his diabetes was well controlled. Dr.
Strobel did not address Remick’s diabetes again until October
1 6 , 2009, when he noted that Remick stopped taking the noon
dosage of insulin because he had experienced an episode of
hypoglycemia. At a follow-up visit on November 3 , 2009, Remick
reported that his sugars were doing “ok.” On March 5 , 2010, at
the last visit addressing diabetes, Dr. Strobel noted that
Remick’s diabetes showed improvement on a stricter diet.
4. Depression
On February 2 1 , 2008, Remick underwent a psychiatric
consultation due to depressive symptoms contributing to an
increased alcohol intake. A mental status examination revealed
Remick to be cooperative, and he reported feeling good at the
moment. Although his speech was slurred at times, Remick spoke
at a normal volume and rate. His affect was full, thought
process was goal directed and linear, cognition was alert and
oriented, insight was good, and judgment was good. No treatment
8 for depressive symptoms was recommended at that time, but the
consult recommended reevaluating Remick’s mood when he reached
one month of sobriety to determine if there was an underlying
mood disorder.
Remick made no reports of sadness, depression, or anxiety
to Dr. Strobel until August 6, 2008, when he presented a letter
from his counselor stating that he was very depressed and that
they had talked about antidepressant therapy. Remick reported
that he was not refreshed in the morning and that he experienced
a loss of energy. Dr. Strobel started him on citalopram for
depression. Dr. Medora discussed with Dr. Strobel that day that
Remick was presenting with symptoms of major depressive
disorder.
When Dr. Strobel saw Remick again on August 2 6 , 2008, he
reported that he was sleepy and had no energy. Dr. Strobel
changed the depression medication to Prozac because of the
sedative effect of citalopram. On October 1 5 , 2008, Dr. Strobel
continued the medication for depression, which seemed to help,
although Remick reported he was still sleepy but more energetic.
During a visit on January 2 1 , 2009, Dr. Strobel noted that
Prozac was working well for the depression and that Remick had
finished Alcoholics Anonymous (“AA”) counseling. On May 1 3 ,
2009, Dr. Strobel again noted that Remick’s mood had improved.
9 At a subsequent visit, on July 2 1 , 2009, Remick reported
that his mood had been unstable in the prior couple of weeks.
On November 3 , 2009, however, Dr. Strobel noted that Remick’s
depression was mild and that mild irritability persisted.
Remick reported that, overall, his depression had improved and
that only afternoon irritability bothered him. During follow-up
visits on January 1 5 , 2010 and March 5 , 2010, Dr. Strobel again
noted that Remick’s depression had improved.
5. Functional Capacity Exam
Dr. Strobel referred Remick for a functional capacity exam,
which Remick completed on August 2 0 , 2009, with David Minshall,
a physical therapist. During the evaluation, Remick was able to
work continuously for five hours without much need for rest. He
rated the functional capacity exam as fairly light to somewhat
hard when compared with his daily activities, which he rated as
very hard work. Based on his observations of muscle tension,
body mechanics, movement patterns, and competitive test
performance, Minshall concluded that Remick had not reached his
physical maximum during the evaluation.
Minshall also noted that Remick was not fully reliable in
his disability reporting. The self-report functional outcome
scales demonstrated that Remick rated himself as low-
functioning. He was relatively accurate about his ability to
lift approximately 25 pounds, but underestimated his reported
10 sitting tolerance of 10 minutes and standing tolerance of 30
minutes. Remick was able to sit for 155 minutes and stand for
122 minutes with a five-minute break during the standing.
Remick did not appear uncomfortable, as he did not shift his
weight considerably during the sitting or standing tasks.
Although Remick’s actual physical strength may have been
greater than he demonstrated, Minshall opined that the results
of the evaluation gave a reasonable estimate of his capacity to
dependably sustain performance in the workplace. He found that,
overall, Remick performed at a full-sedentary and into the
light-physical demand level in most lifting levels, and that he
could not return to his previous work. With some physical
conditioning and body mechanic training, Minshall opined that
Remick would likely be able to progress into the full-light
physical demand level. Further, he found that Remick could
tolerate part-time work based upon the functional capacity
evaluation, where he performed five hours of activity. The
recommendation was vocational rehabilitation, work-hardening
pending medical clearance, and, after work-hardening, returning
to work on a part-time basis and increasing work hours as
tolerated.
On May 7 , 2010, Dr. Strobel reviewed the functional
capacity evaluation and concurred with the findings in the
report. Dr. Strobel wrote that Remick’s combination of
11 diabetes, depression, and urinary retention, with the need to
straight-catheterize every four hours, limited his ability to
work, especially as his sleep was interrupted by the catheter
use. Dr. Strobel concluded that Remick could only work part-
time. Following a discussion with Dr. Strobel that day
regarding Remick’s medical care, Dr. Herndon wrote that, based
on Remick’s diabetes, atrial fibrillation, and depression, Dr.
Strobel did not think that Remick was able to perform full-time
work.
B. Psychological Evaluations
The Social Security Administration sent Remick to a
consultative examination with a psychologist, Anna Hutton,
Psy.D., in June of 2008. Dr. Hutton diagnosed Remick with a
history of alcohol abuse and alcohol dependence, dysthymic
disorder, and generalized anxiety disorder. Dr. Hutton noted
that Remick’s symptoms of depression and anxiety had been
problematic prior to the onset of his alcohol abuse. She noted
that Remick was well-groomed and that his speech was clear,
spontaneous, and logical. Remick’s mood was positive, and he
presented with a calm demeanor. He had a generally positive and
bright affect. He did not demonstrate any loose associations,
delusions, misinterpretations, preoccupations, obsessions, or
phobic ideas. He denied homicidal and suicidal ideation.
12 Dr. Hutton noted that Remick was generally independent in
matters of personal affairs. He was able to conduct shopping
activities with a list, cook, and take public transportation.
He completed his daily household chores and activities in
combination with his partner.
Dr. Hutton also stated that Remick generally had good
memory of dates and good recall for personal information, but
that he complained of memory loss, including that he often
forgot to take his medication, that he had to write everything
down, and that he would forget conversations he just had and the
names of people with whom he was generally familiar. Dr. Hutton
noted that Remick’s working memory skills and attentional skills
were below average. She stated that his ability to focus on
work-related tasks might be somewhat impaired but should not
completely prohibit his ability to function in a work setting.
Dr. Hutton opined that Remick would have difficulty recalling
novel instructions or novel information, but his ability to
understand the same was within normal limits. She further
opined that Remick could interact appropriately and communicate
effectively with others, would not have significant difficulty
making decisions in a work environment, should be able to
maintain attendance and schedules in a work environment, and
should be able to interact appropriately with supervisors.
13 Craig Stenslie, Ph.D., reviewed the evidence of record
gathered by the Social Security Administration as of July 1 5 ,
2008, including Dr. Hutton’s evaluation. Dr. Stenslie opined
that Remick was able t o : deal adequately with short and simple
instructions, but would need help with complexities; maintain
attention for two hours and sustain an ordinary work routine
without special supervision; complete an ordinary workday and
workweek without undue interruption; work in coordination with
others if such work was a small part of his job description; and
deal adequately with change in a low-stress environment.
In a consultative examination conducted on September 1 5 ,
2008 to assess Remick’s eligibility for state disability
benefits, psychologist Michael Schneider, Psy.D, found that
Remick would have frequent task performance loss because of
inconsistent memory and concentration. He would require
repetition of instructions, but would be able to understand and
carry out short and simple instructions. Dr. Schneider
diagnosed him with 294.9 Cognitive Disorder Not Otherwise
Specified11 and recommended further assessment to determine the
extent of his cognitive problems.
11 294.9 Cognitive Disorder Not Otherwise Specified is a “category [ ] for disorders that are characterized by cognitive dysfunction presumed to be due to the direct physiological effect of a general medical condition that do not meet criteria for any of the specific deliriums, dementias, or amnestic disorders listed in this section . . . .” Diagnostic &
14 In addition to state consultant examinations, Remick
underwent a neuropsychological evaluation at the DHMC on June
1 0 , 2010, upon referral by Dr. Strobel. The behavioral
observation was that during testing, Remick seemed somewhat
lethargic and gave up rather quickly on more difficult items.
Embedded validity indicators suggested that he had difficulty
maintaining an optimal level of effort throughout the day, and
the examiners felt that the test results may have underestimated
his maximal level of cognitive functioning. The results
revealed impaired and borderline raw score ranges in
attention/concentration, memory, and learning areas. The
examiners stated that it was difficult to characterize the
nature and extent of Remick’s cognitive impairment, but that for
the most part his performance was generally consistent with
baseline estimates of functioning, with greater difficulties in
verbal fluency and visual learning and memory. They recommended
adding more structure to Remick’s day and advised him to take
responsibility for simple domestic chores. They stated that
Remick had mild comprehension difficulties, and would perform
best when complex novel tasks were broken down into single steps
for him to complete sequentially, as he reported difficulty
multitasking. They stated that those working with him should be
Statistical Manual of Mental Disorders: DSM-IV-TR at 179 (4th ed. 2000). 15 encouraged to speak slowly, use concrete terms, and be brief and
to the point. The examiners also felt that Remick may benefit
from repeating important information back in his own terms to
aid in comprehension and later recall.
C. Administrative Proceedings
Remick’s claim for supplemental social security benefits
was denied at the initial level on July 1 8 , 2008. He requested
a hearing, which was held on April 1 4 , 2010. Remick attended
the hearing via video and testified. He was represented by
counsel. A vocational expert also testified.
The ALJ issued a decision denying Remick’s claim on July 6,
2010. The ALJ found that Remick had the following severe
impairments: neurogenic bladder, dysthymic disorder, and anxiety
disorder. The ALJ found that Remick’s diabetes mellitus and
atrial fibrillation were non-severe as defined by the Social
Security Act. The ALJ also found that Remick retained the
residual functional capacity (“RFC”) to perform light, routine,
and repetitive work in a low-stress environment, with certain
limitations in lifting weight; standing, walking, and sitting;
and dealing with the public and other employees. The ALJ gave
limited weight to Dr. Strobel’s opinion that Remick’s combined
impairments precluded him from working full-time, finding that
Dr. Strobel’s opinion was not consistent with his own treatment
16 notes and the medical evidence as a whole. Based on those
findings and the vocational expert’s opinion, the ALJ concluded
that Remick could do jobs that existed in significant numbers in
the national economy, and that his exertional and non-exertional
limitations had little or no effect on the light unskilled
occupational base. Therefore, the ALJ found that Remick was not
disabled for the purposes of his social security application.
On July 6, 2010, the Decision Review Board (“DRB”) selected
Remick’s claim for review. On October 1 2 , 2010, he was notified
that the DRB did not complete the review of his claim during the
time allowed, rendering the ALJ’s decision the final decision of
the Commissioner, subject to judicial review.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
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 v . Comm’r of Soc. Sec., 211 F.3d
652, 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.
17 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 3 1 , 35 (1st
Cir. 1999). The ALJ is responsible for determining issues of
credibility and for drawing inferences from evidence on the
record. Ortiz, 955 F.2d at 769. It is the role of the ALJ, not
the court, to resolve conflicts in the evidence. Id.
The ALJ follows a five-step sequential analysis for
determining whether an applicant is disabled. 20 C.F.R. §
404.1520; 20 C.F.R. § 416.920. The applicant bears the burden,
through the first four steps, of proving that his impairments
preclude him from working. Freeman v . Barnhart, 274 F.3d 606,
608 (1st Cir. 2001). At the fifth step, the ALJ determines
whether work that the claimant can d o , despite his impairments,
exists in significant numbers in the national economy and must
18 produce substantial evidence to support that finding. Seavey v .
Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001).
III. ANALYSIS
Remick moves to reverse and remand the decision denying his
application for benefits on the grounds that the ALJ failed to
consider the combined effect of Remick’s impairments in
determining Remick’s RFC and gave improper weight to the opinion
of his treating physician, Dr. Strobel.12 In response, the
Commissioner argues that the ALJ appropriately considered all
the relevant evidence and that her decision is substantially
supported by the record.
A. The Combined Effect of Remick’s Multiple Impairments
Remick contends that the ALJ erred because she did not
consider the combination of his physical and psychological
impairments in assessing his residual functional capacity. This
contention is without merit.
12 In his memorandum of law, Remick divides his challenge into three separate arguments: (1) the ALJ failed to consider the combined effects of Remick’s impairments on his ability to work; (2) the ALJ gave insufficient weight to the opinion of his treating physician, Dr. Strobel; and (3) as a result of failing to consider his combination of impairments and Dr. Strobel’s opinion, the ALJ erred in finding that Remick retained RFC to perform full-time work. Pl.’s Mem. of Law in Supp. of Mot. to Reverse, Doc. N o . 7-1. Given that his third argument is subsumed within the first two, I do not address it separately.
19 In determining whether a claimant is disabled, an ALJ must
consider “the combined effect of all of a claimant’s
impairments.” McDonald v . Sec’y of Health & Human Servs., 795
F.2d 1118, 1126 (1st Cir. 1986) (citing 42 U.S.C. §
423(d)(2)(C)); see also 20 C.F.R. § 404.1520(a). It is “simply
a matter of common sense that various physical, mental, and
psychological defects, each non-severe in and of itself, might
in combination, in some cases, make it impossible for a claimant
to work.” McDonald, 795 F.2d at 1127. Thus, in assessing a
claimant’s ability to work, the ALJ should not disregard
individual, non-severe impairments where the claimant’s
collective impairments are severe.
Here, the record does not support Remick’s assertion that
the ALJ failed to consider the combined effect of his multiple
impairments. At Step Two of the sequential analysis, the ALJ
determined that Remick’s neurogenic bladder, dysthymic disorder,
and anxiety disorder were severe impairments, but that his
diabetes mellitus and atrial fibrillation were not severe. She
then plainly took into consideration both his severe and non-
severe impairments when determining the level and type of
exertion he was capable of performing. Specifically, the ALJ
“recogniz[ed] that the claimant does have a combination of both
physical and mental impairments, which credibly limit him to a
range of light, unskilled work,” but she found “a lack of
20 evidence of any medically documented objective findings which
would preclude him from performing [light] level of work
activity on a regular and continuing basis . . . .” (Tr. 1 9 ) .
I conclude that the ALJ’s analysis sufficiently took into
account the combined effect of Remick’s impairments and is
supported by substantial evidence. See Raney v . Barnhart, 396
F.3d 1007, 1011 (8th Cir. 2005) (rejecting the argument that ALJ
failed to consider impairments in combination where he
specifically stated he h a d ) ; Lalime v . Astrue, N o . 08-cv-196-PB,
2009 WL 995575, at *8 (D.N.H. April 1 4 , 2009) (rejecting the
argument that ALJ failed to account for the claimant’s obesity
where it was “clear that he considered that condition when
evaluating her claim”).
The ALJ’s decision detailed her findings of both the
physical and mental impairments and their effect on Remick’s
functional capacity. First, she evaluated Remick’s physical
conditions, detailing the medical evidence extensively. In
determining that Remick retained light residual functional
capacity, the ALJ considered as one factor sleep disturbance and
daytime fatigue resulting from Remick’s need to catheterize
himself once every four hours due to bladder dysfunction.
Consistent with the vocational expert’s testimony, the ALJ found
that Remick would be able to catheterize himself during normally
scheduled breaks in an eight-hour workday. She found no
21 evidence of additional symptoms related to Remick’s bladder
impairments that would preclude him from performing light-
exertion work. Apart from relatively infrequent UTIs (two in a
two-year period), the record reveals no additional bladder-
related symptoms.
The ALJ also found that Remick’s medical records revealed
no evidence of any symptoms related to either diabetes mellitus
or atrial fibrillation that warranted further reduction in his
RFC. There is substantial evidence in the record that supports
the ALJ’s finding that both conditions were controlled with
medication and generally asymptomatic since early 2008.
Specifically, Dr. Strobel’s notes indicate that, with the
exception of two episodes of hypoglycemia, Remick’s diabetes was
generally well controlled, especially when Remick complied with
the prescribed diet. As for atrial fibrillation, the condition
was similarly stabilized with medication since April 2008 and
Remick’s heart rate was normal throughout the relevant period of
time. Remick did experience leg edema, a symptom associated
with atrial fibrillation, at times between May and August 2008,
but subsequent examinations found no edema. Although Remick
testified that he was experiencing shortness of breath related
to his heart impairment, the ALJ instead credited his treatment
providers’ records noting his denials of this symptom, as well
as any other cardiac-related symptoms. Given that his medical
22 records indicate no other symptom associated with either
diabetes or atrial fibrillation, the ALJ’s decision not to
further reduce Remick’s RFC is supported by substantial
evidence.
The ALJ also considered how Remick’s mental disorders
affect his RFC and concluded that he was able to perform
routine, repetitive work in a low-stress environment that
requires only brief, occasional interaction with the public and
only occasional interpersonal interaction with other employees.
The ALJ noted that treatment records describe Remick’s
depression as “mild.” As for the claim that Remick suffered
from diminished cognitive functioning, the ALJ noted that the
record revealed only mild deficiencies and accounted for those
deficiencies in deriving Remick’s RFC.
There is substantial evidence in the record to support the
ALJ’s decision that Remick’s psychological conditions did not
prevent him from full-time work. Dr. Strobel’s notes indicate
that Remick’s depression improved with Prozac and that only mild
afternoon irritability persisted. The neuropsychological
evaluation Remick completed at the DHMC failed to reveal
substantial cognitive deficiencies, with the examiners noting
only mild comprehension difficulties. The examiners stated that
his performance was generally consistent with baseline estimates
of functioning, with greater difficulties noted in verbal
23 fluency and visual learning and memory. The ALJ also gave
substantial weight to the evaluation of Dr. Stenslie, a state
agency consultant who reviewed SSA evidence, that Remick could
work in a low-stress environment.
The ALJ’s findings are conclusive if supported by
substantial evidence and should be upheld even in those cases in
which the reviewing court, had it heard the same evidence de
novo, might have found otherwise. Lizotte v . Sec’y of Health &
Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). A review of
the medical record in this case reveals that the ALJ’s
conclusions in assessing Remick’s RFC included analysis of all
of his impairments. I therefore find that her conclusion that
Remick’s combination of physical and mental impairments did not
preclude him from full-time work was supported by substantial
evidence, and should be affirmed.
B. Weight Given to Treating Physician’s Opinion
Remick next argues that the ALJ failed to give proper
weight to the opinion of Remick’s treating physician, Dr.
Strobel, that Remick was limited to part-time work.
A treatment provider’s opinions must be given controlling
weight if the “treating source’s opinion on the issue(s) of the
nature and severity of [the applicant’s] impairment(s) is well-
supported by medically acceptable clinical and laboratory
24 diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record . . . .” 20 C.F.R. §
404.1527(d)(2). The ALJ “may reject a treating physician’s
opinion as controlling if it is inconsistent with other
substantial evidence in the record, even if that evidence
consists of reports from non-treating doctors.” Coggon v .
Barnhart, 354 F.Supp.2d 4 0 , 52 (D. Mass. 2005) (internal
quotation marks and citations omitted); see 20 C.F.R. §
404.1527(d)(2).
When a treating physician’s opinion is not entitled to
controlling weight, the ALJ determines the amount of weight
based on factors that include the nature and extent of the
physician’s relationship with the applicant, whether the
physician provided evidence in support of the opinion, whether
the opinion is consistent with the record as a whole, and
whether the physician is a specialist in the field. 20 C.F.R. §
404.1527(d)(1-6). In addition, the ALJ must give reasons for
the weight given to treating physician’s opinions. Id.; see
also Soto-Cedeño v . Astrue, 380 Fed. Appx. 1 , 4 (1st Cir. 2010).
Dr. Strobel indicated that Remick’s combination of
diabetes, depression, atrial fibrillation, and urinary retention
preclude him from working full-time. Significantly, Dr. Strobel
did not elaborate on the basis for his opinion and merely stated
25 that he relied upon the functional capacity evaluation by
Minshall. (Tr. 6 2 0 ) . The ALJ concluded that Dr. Strobel’s
opinion was entitled to little weight because it was
“inconsistent with his own treatment notes as well as with the
medical evidence of record as a whole . . . .” (Tr. 1 9 ) .
Dr. Strobel’s opinion is inconsistent with substantial
evidence in the record and therefore the ALJ was justified in
according his opinion less weight. See 20 C.F.R. §
404.1527(d)(2)-(4); Ortiz, 955 F.2d at 769-70; Graham v .
Barnhart, N o . 02-CV-243-PB, 2006 WL 1236837, at *6 (D.N.H. May
9, 2006) (medical opinion given less weight because it was
inconsistent with the record as a whole). First, Dr. Strobel’s
opinion is inconsistent with his objective findings. See 20
C.F.R. § 404.1527(d)(2)-(4). His treatment notes document
consistent improvement in all of Remick’s conditions. He noted
that Remick’s atrial fibrillation was well controlled with
medication and generally asymptomatic. During the vast majority
of examinations, there was no edema present in the extremities,
and at times when Remick complained of increased edema that
would recede overnight, adjustments in medication resulted in
improvement. Further, except on rare occasions, Remick reported
no functional limitations, as he was able to walk and exercise
without difficulty. Similarly, Dr. Strobel’s notes indicate
good management of diabetes during the relevant period of time.
26 Except for two instances of hypoglycemia and a two-month period
when Remick’s glucose was not well controlled, at least in part
due to diet, the majority of Dr. Strobel’s treatment notes
indicate that the diabetes was under control. Although Remick
must use a catheter every four hours due to bladder dysfunction,
resulting in some sleep interruption and daytime fatigue, Dr.
Strobel’s notes indicate no fatigue during examinations and no
other problems using the device. Remick did experience two UTIs
during the two-year period that Dr. Strobel treated him, but
both infections were successfully treated with medication.
Lastly, Dr. Strobel described Remick’s depression as mild and
improved on medication.
Second, Dr. Strobel’s opinion that Remick is limited to
part-time work is not entirely consistent with the results of
the functional capacity evaluation that Remick completed with
Minshall. During the evaluation, Remick was active for five
hours without need for much rest and yet had not reached his
physical maximum. Minshall also noted that Remick was not
entirely reliable in his disability reporting. Moreover,
although Minshall concluded Remick could perform part-time work,
he did not suggest that this was a permanent limitation. To the
contrary, Minshall noted that Remick’s work hours should be
increased as tolerated and suggested a work-hardening program
and vocational rehabilitation. Lastly, none of the mental
27 health providers who examined Remick stated that he could only
perform part-time work. Rather, their assessments noted his
ability to function in low-stress work environments.
The ALJ’s decision not to credit Dr. Strobel’s opinion is
further bolstered by the fact that Dr. Strobel neither discussed
his reasons for the assessment nor cited objective medical
testing or records in support of his assessment, apart from
noting that he relied upon the functional capacity evaluation.
(Tr. 6 2 0 ) . “[A] medical opinion should be given less weight if
it does not include relevant evidence to support the opinion,
particularly medical signs and laboratory findings.” Graham,
2006 WL 1236837, at *6 (internal quotation marks and brackets
omitted); see 20 C.F.R. §§ 404.1527(d)(2)-(3). While other
aspects of the record support Dr. Strobel’s opinion, the fact
remains that his opinion is also inconsistent with substantial
evidence in the record. As a result, it was within the ALJ’s
discretion to afford his opinion less weight. I cannot upset
this decision. See Lizotte, 654 F.2d at 128 (“[T]he resolution
of conflicts in the evidence and the determination of the
ultimate question of disability is for [the A L J ] , not for the
doctors or for the courts.”) (quoting Rodriguez, 647 F.2d at
222).
28 IV. CONCLUSION
For the foregoing reasons, Remick’s motion to reverse the
decision of the Commissioner (Doc. N o . 7 ) is denied. The
Commissioner’s motion to affirm (Doc. N o . 9 ) is granted.
Accordingly, the clerk shall enter judgment and close the case.
SO ORDERED.
/ s / Paul Barbadoro Paul Barbadoro United States District Judge
October 2 1 , 2011
cc: Bennett B . Mortell, Esq. T . David Plourde, Esq.