Opinion
CIVIL ACTION NO. 06-10215-RGS.
December 1, 2006
MEMORANDUM AND ORDER ON CROSS-MOTIONS REGARDING THE DECISION OF THE COMMISSIONER
Fresa Triunfel seeks review of the decision of the Commissioner of Social Security that she is not disabled within the meaning of the Social Security Act. Triunfel maintains that she is permanently unable to work because of chronic back pain and associated functional limitations. The issue on appeal is whether substantial evidence in the record supports the Commissioner's determination that Triunfel is able to engage in "substantial gainful activities." For reasons that will be explained below, the Commissioner's decision will be affirmed.
BACKGROUND
Triunfel was born on November 8, 1951, in Santa Domingo, Dominican Republic, where she attended high school into the eleventh grade. Triunfel emigrated from the Dominican Republic to the United States in January of 1969. While Spanish is Triunfel's native language, she has a command of basic English. Triunfel is the divorced mother of three grown children. Lenny Vazquez, her youngest son, together with his wife, lives with Triunfel in a shared apartment.
Triunfel worked as an assembler at Lucent Technologies for twenty-three years. In February of 2003, she was laid off by Lucent and took "early retirement." Triunfel was trained to assemble "the entire [circuit] board" at the Lucent factory, working six hour shifts during which she would sit and stand while performing her job. According to Triunfel, she depends on her daughter-in-law for help with housecleaning and her son for assistance in doing the shopping. She is unable to sleep for more than two to three hours at a stretch; she elevates her legs "more than half the time she is sitting," as when she "watches television" or when "people are over," but "generally at home [she is] doing things."
Triunfel claims disability from the last day of her employment at Lucent. Triunfel identifies lower back pain, diabetes and "forgetfulness" as her debilitating medical issues. She receives regular medical treatment at Lawrence General Hospital, Holy Family Hospital, and at New England Neurological Associates and Orthopaedics Northeast (where Dr. Gabriel Yuil is her primary physician). On January 14, 2003, Triunfel underwent a lumbar spine MRI scan, which revealed that she had a moderate-sized left posterolateral disc protrusion at L3-4. On February 13, 2003, Dr. Peter Grillo at New England Neurological Associates performed a neurological examination of Triunfel. He noted that
[s]he does have degenerative disc disease. There is lateral bulging of the disc at L3-4 with impingement upon the foramen of the left L3 nerve root. Her pain however is not in the L3 dermatomal distribution. She does not have related neurological deficit, hence I do not think that surgical treatment is indicated. She will begin conservative management including outpatient physical therapy and we will follow-up with physiatry. I will see her again as her physicians think necessary.
Triunfel testifies that she could have continued her work at Lucent if she had not been laid off because "they gave her considerations" like leaving early when she was experiencing back pain. Triunfel stated that she "wouldn't have the confidence" to work for a similar company "because they wouldn't have had [her] records and the intentions I had."
On April 21, 2003, Dr. Yuil noted that while Triunfel was experiencing back pain, she was in no distress, and that her mood and affect were normal. Dr. Yuil also found that Triunfel's spine "was normal without deformity or tenderness and she had no crepitation, tenderness, effusion, decreased range of motion, atrophy or abnormal strength in her head, neck, spine, ribs or extremities." He further observed that her gait and station were normal and that her memory, judgment, and insight were intact. Dr. Yuil made similar findings on May 12 and November 21, 2003, and counseled Triunfel about the importance of regular exercise.
Effusion is the escape of fluid from the blood vessels or lymphatics into the tissues or body cavity. Stedman's Medical Dictionary 547 (26th ed. 1995).
On December 9, 2003, Dr. Scott Masterson, one of Triunfel's treating neurologists at New England Neurological Associates, noted that she was experiencing left side back pain while in bed. Triunfel added that her pain was aggravated by physical activities, but that "moving around" tended to resolve her symptoms. Dr. Masterson also noted that Dr. Grillo had previously recommended a regimen of physical therapy, which Triunfel had not pursued. Dr. Masterson found that Triunfel was in no acute distress, her gait pattern was normal, and her straight leg raising was negative bilaterally. He also observed that while Triunfel had pain with forward flexion, her trunk range of motion was otherwise normal, her sensation was intact, and her strength was rated as five out of five in her lower extremities. Dr. Masterson recommended that Triunfel attend physical therapy two times a week for the next four to six weeks.
The record does not disclose whether Triunfel did so.
On February 17 and March 4, 2004, Dr. Yuil noted Triunfel's complaint of downward-radiating lower back pain. Dr. Yuil referred Triunfel to Dr. Rami Rustum for pain management and Dr. Masterson for continued neurological treatment. On March 17, 2004, Triunfel reported that her pain was constant and measured a seven to nine on a scale of ten. She also stated that her symptoms were alleviated by walking and taking Lodine; when she did so, her pain score was two out of ten. Dr. Rustum found that while palpation of Triunfel's lumbar spine revealed diffuse tenderness over L3, L4 and L5, there was no pain triggered by the examination, her lumbar spine extension and flexion were within normal limits and her straight leg raising and Patrick's testing were negative bilaterally. Dr. Rustum further observed that Triunfel's cranial nerves and gait were within normal limits, her Romberg test was negative, her motor strength was rated as five out of five in her lower extremities, and she was not experiencing any muscle spasms or atrophy. Dr. Rustum prescribed Skelaxin and scheduled Triunfel for a lumbar epidural steroid injection. Triunfel underwent a lumbar spine MRI scan on October 1, 2004, which revealed a far lateral disc herniation at L3-4.
Dr. Yuil's notes indicate that Triunfel's spine was normal without deformity or tenderness, her gait and station were normal, and she had no crepitation, tenderness, decreased range of motion, atrophy or abnormal strength in her head, neck, spine, ribs or extremities. Dr. Yuil made identical observations at Triunfel's July 13, September 20, and October 19, 2004 appointments.
Patrick's test is used to determine the presence or absence of sacroiliac disease. Stedman's at 1782.
Romberg sign is an exercise to test a patient's "steadiness." The individual stands with her eyes open and then closed. The test is positive if the patient is unsteady when her eyes are closed. Id. at 1619.
Skelaxin is indicated as an adjunct to rest, physical therapy and other measures for relief of the discomfort associated with musculoskeletal conditions. Physicians' Desk Reference 2181 (58th ed. 2004).
Intermittently in 2004 and 2005, Triunfel saw Drs. Richard M. Bargar and Richard J. Choi, orthopedists at Orthopaedics Northeast in North Andover. On October 4, 2004, Dr. Choi found that Triunfel had a positive impingement sign in her right shoulder and had experienced pain during rotator cuff testing. Dr. Choi also observed that Triunfel had no limitation on her passive range of shoulder motion and that her sensory and motor examinations were unremarkable. Two weeks later, Dr. Bargar found that Triunfel was able to flex and extend to thirty degrees and rotate bilaterally to forty-five degrees. He also observed that while Triunfel experienced tenderness over her shoulder, her sensation, motion, and motor strength were within normal limits. Dr. Bargar noted that Triunfel's cervical spine films demonstrated straightening consistent with muscle spasms, but that her right shoulder X-rays revealed only minor degenerative changes.
Dr. Grillo noted on October 21, 2004, that Triunfel's follow-up lumbar MRI scan indicated that her far lateral disc herniation on the left L3-L4 had progressed and become more severe. Triunfel reported that her pain was most bothersome at night when lying in bed. On examination, Dr. Grillo found that Triunfel's straight leg raising was negative bilaterally, she had no weakness in her lower extremity muscles, her gait was normal, and she was able to walk on her heels and toes. Dr. Grillo concluded that surgical treatment was not warranted. Similarly, Dr. Masterson noted on October 27, 2004, that Triunfel's "main complaint is discomfort in the leg at night and inability to sleep." Dr. Masterson suggested that Triunfel have electrodiagnostic studies performed to determine whether there was any nerve root impingement and prescribed Skelaxin for pain relief.
The electrodiagnostic study was conducted on November 8, 2004. Dr. Elizardo Carandang concluded that the study was normal as there was no electrophysiologic evidence of focal neuropathy or left-sided lumbosacral radiculopathy. Triunfel had uneventful visits with Dr. Yuil and Dr. Bargar on November 15, 2004. Triunfel reported to Dr. Masterson on December 15, 2004, that she could control her back pain by taking Skelaxin three times a day. Triunfel told Dr. Masterson that she was concerned about the number of medications she was taking. Dr. Masterson advised Triunfel that Skelaxin was the only viable treatment for her back pain, but that she might get by with a lighter dosage in warmer weather.
Radiculopathy is a disorder of the spinal nerve roots.Stedman's at 1503.
At Triunfel's appointments from February through May of 2005, Dr. Yuil found that she was in no distress and that her gait and sensation were normal. Dr. Yuil completed a Physical Residual Functional Capacity Questionnaire for the Social Security Administration (SSA) on March 1, 2005, indicating that Triunfel had chronic back pain that "frequently" interfered with her concentration and that during an eight hour day she could sit, walk or stand for less than two hours, and only occasionally lift 10 pounds or more.
On August 1, 2005, Dr. Bargar found that while Triunfel had pain in her neck which radiated to her left shoulder and arm, she was in no acute distress and that her sensation, motion and motor strength were within normal limits. Four days later, Triunfel underwent a cervical spine MRI scan, which demonstrated that she had "a slight loss of normal cervical lordosis," but "no evidence of a disc herniation or other acute pathology." Triunfel's records were also reviewed by Dr. Coblentz, a non-examining SSA physician on February 10, 2005. Dr. Coblentz found that Triunfel could lift 10 pounds frequently and 20 pounds occasionally, and could sit, stand and walk for six hours during an eight hour day.
Lordosis is an abnormal curvature of the spine commonly known as "saddle back." Stedman's at 1302.
Triunfel filed an application for disability benefits with the SSA on September 22, 2004, claiming disability as of July 2, 2003, attributable to kidney stones, diabetes, lower back pain, and numbness in her hands. Triunfel's claim was administratively denied. At an August 18, 2005 evidentiary hearing, Administrative Law Judge (ALJ) Robert Halfyard heard testimony from Triunfel, Gerald Winkler, a neurologist designated as a medical expert (ME) by the SSA, and Ruth Baruch, a vocational rehabilitation expert.
Triunfel also later claimed to be suffering from memory loss.
Triunfel testified through an interpreter.
The ALJ issued a written decision on October 17, 2005, affirming the denial of Triunfel's benefits application. The ALJ made the following findings:
1. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability of July 2, 2003.
3. The claimant has the following impairments: A history of disc disease with radiculopathy, and a myofascial pain disorder, which are nonexertional impairments.
4. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
5. The claimant's allegations regarding her limitation are not totally credible for the reasons set forth in the body of the decision. She has many inconsistencies, and was obviously trying to dramatize her discomfort in an exaggerated manner at the outset of the hearing.
6. The claimant has the residual functional capacity to perform a range of light work. She can fully perform exertional requirements of sedentary work.
7. The claimant's past relevant work as a sedentary bench assembler did not require the performance of work-related activities precluded by her residual functional capacity ( 20 CFR § 404.1565).
8. The claimant's medically determinable impairments do not prevent the claimant from performing her past relevant work as an assembler, or making an adjustment to other unskilled jobs identified by the vocational expert.
9. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision ( 20 CFR § 404.1520(f)).
On December 16, 2005, the Appeals Council declined to review Triunfel's case, thereby ratifying the decision of the ALJ as the final decision of the Commissioner. 20 CFR §§ 404.955,404.981 (2005). Triunfel's appeal of the Commissioner's decision is before the district court pursuant to 42 U.S.C. § 405(g).
DISCUSSION
The Social Security Act defines disability as the
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months. . . .42 U.S.C. §§ 416(i)(1) and 423(d)(1)(A). The Act further provides that:
[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.42 U.S.C. § 423(d)(2)(A). A "physical or mental impairment" is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). Finally, the Act provides that "[a]n individual shall not be considered under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner may require." 42 U.S.C. § 423(d)(5).
The burden rests with Triunfel to establish her inability to return to her past employment, either as she performed it, or as it is typically performed in the national economy. Santiago v. Sec'y of Health and Human Servs., 944 F.2d 1, 5 (1st Cir. 1991). The Commissioner's findings of fact in this regard are conclusive if supported by substantial evidence. Manso-Pizarro v. Sec'y of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). "Substantial evidence . . . means evidence reasonably sufficient to support a conclusion. Sufficiency, of course, does not disappear merely by reason of contradictory evidence. . . . [The] question [is] not which side [the court] believe[s] is right, but whether [the ALJ] had substantial evidentiary grounds for a reasonable decision. . . ." Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998). The Commissioner's findings, however, "are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts."Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
Disability determinations follow the "sequential step analysis" mandated by 20 CFR § 404.1520. The analysis requires that the ALJ first determine whether or not a claimant was gainfully employed prior to the onset of the disabling condition. At the second step, the ALJ must determine whether the claimant suffers from a severe impairment limiting her ability to work. If the impairment is the same as, or equal in its effect to, an impairment (or combination of impairments) listed in Appendix 1 of the regulations, the claimant is presumptively deemed disabled. If the impairment is not covered by Appendix 1, the fourth step of the analysis requires that the claimant prove that the disability is sufficiently serious to preclude a return to her former occupation. If she meets that burden, the Commissioner at the fifth step is obligated to prove that there are other jobs in the national economy that the claimant could alternatively perform.Gonzalez Perez v. Sec'y of HEW, 572 F.2d 886, 888 (1st Cir. 1978).
In applying the sequential step analysis in Triunfel's case, the ALJ found that she had been gainfully employed prior to the claim of disability, and that while there were "inconsistenc[ies] in the record, her myofascial pain syndrome presented a `meaningful' impairment." However the ALJ found that Triunfel had not met her burden at Step Four of proving that she was incapable of performing her past relevant work as a circuit board assembler. Consequently, the ALJ found that Triunfel was not disabled within the meaning of the Social Security Act.
On appeal, Triunfel alleges three principal grounds of error. She argues that the ALJ erred: (1) in his finding that she could perform work at a light exertional level; (2) by failing to consult and apply the Medical Vocational Guidelines (Grids); and (3) in his finding that myofascial pain syndrome was her only "meaningful" impairment.
The "Grids," which are set out in 20 CFR Part 404, Subpart P, App. 2, describe the major functional and vocational patterns which are encountered in SSA cases
which cannot be evaluated on medical considerations alone, where an individual with a severe medically determinable physical or mental impairment(s) is not engaging in substantial gainful activity and the individual's impairment(s) prevents the performance of his or her vocationally relevant past work. They also reflect the analysis of the various vocational factors (i.e., age, education, and work experience) in combination with the individual's residual functional capacity (used to determine his or her maximum sustained work capability for sedentary, light, medium, heavy, or very heavy work) in evaluating the individual's ability to engage in substantial gainful activity in other than his or her vocationally relevant past work.
Triunfel contends that the only evidence that the ALJ relied upon in finding her capable of light work was the "conclusory" testimony of the ME (Dr. Winkler). Triunfel contends that Dr. Winkler's testimony exceeded his area of expertise. She notes that on cross-examination Dr. Winkler admitted that he was unfamiliar with the specialized terminology used by the SSA to define "light work." Triunfel also notes that Dr. Winkler "never stated any specifics about lifting, particularly that [she] could occasionally lift 20 pounds and frequently lift 10 pounds," while her "treating physician of greater than 15 years offered an opinion that [she] could not lift more than 10 pounds."
Triunfel claims that "[w]hen asked to clarify his testimony regarding Triunfel's lifting capacity, Dr. Winkler stated that he `was speaking generically. Precise functional capacity testing has not been performed.'"
SSA regulations (as Triunfel points out) caution against reliance on an ME's description of a claimant's exertional level in determining her capacity to work.
From time-to-time, medical sources may provide opinions that an individual is limited to "sedentary work," "sedentary activity," "light work," or similar statements that appear to use the terms set out in our regulations and Rulings to describe exertional levels of maximum sustained work capability. Adjudicators must not assume that a medical source using terms such as "sedentary" and "light" is aware of our definitions of these terms. The judgment regarding the extent to which an individual is able to perform exertional ranges of work goes beyond medical judgment regarding what an individual can still do and is a finding that may be dispositive of the issue of disability.
SSR 96-5p (1996). There is, however, no persuasive indication in the record that the ALJ overly relied on Dr. Winkler's opinion. Rather, the ALJ painstakingly reviewed Triunfel's medical records, took note of the testimony that Triunfel's pain was tolerable and (at least during the daytime) manageable. He also noted that Dr. Coblentz (whose qualifications are not challenged) came to the same conclusion as Dr. Winkler that Triunfel could lift 20 pounds occasionally and 10 pounds frequently.
Triunfel also complains that the ALJ "ignor[ed]" the Physical Residual Functional Capacity Questionnaire completed by Dr. Yuil in which he opined that Triunfel was able to sit, stand or walk less than two hours during an eight hour day. It is clear, however, from the record that the ALJ did not ignore Dr. Yuil's opinion — he specifically referenced it in his decision — he rather discounted it. Under SSA regulations, the ALJ should ordinarily give "more weight" to treating physicians' opinions, "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations." 20 CFR § 404.1527(d)(2). That being said, the ALJ is not required to give a treating physician's opinion controlling weight. Arroyo v. Sec'y of Health and Human Servs., 932 F.2d 82, 89 (1st Cir. 1991); Rodríguez Pagán v. Sec'y of Health and Human Servs., 819 F.2d 1, 4 (1st Cir. 1987). If the treating physician's opinion is inconsistent with other evidence in the record, the conflict is for the Commissioner — and not the court — to resolve.Rodríguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The ALJ commented that if Dr. Yuil were correct, "[t]his would mean [Triunfel] would have to maintain a prone position most of the work day." This suggestion he found inconsistent with the medical record, with his own observations of Triunfel, and with her testimony at the hearing.
As to the second ground of alleged error, Triunfel asserts that the ALJ erred in finding that she could perform her previous job and that he should have consequently consulted the Grids. However, where the ALJ credibly finds that a claimant can perform her previous employment, the Grids have no application.
Under the final test in the five-stage sequential analysis, once a claimant has demonstrated a severe impairment that prohibits return to his previous employment, the Secretary has the burden of proving the existence of other jobs in the national economy that the claimant can perform. 20 CFR § 404.1520(f) (1988). The Grid is designed to enable the Secretary to satisfy this burden in a "streamlined" fashion without resorting to "the live testimony of vocational experts." Sherwin, 685 F.2d at 4. Nonetheless, the Grid is "predicated on an individual's having an impairment which manifests itself by limitations in meeting the strength requirements of jobs. . . ." 20 CFR Part 404, Subpart P, App. 2, § 200.00(e).Ortiz v. Sec'y of Health and Human Servs., 890 F.2d 520, 524 (1st Cir. 1989).
The evidence in the record supports the ALJ's determination that Triunfel is capable of returning to work as a circuit board assembler. Triunfel's job at Lucent was performed while sitting or standing, and involved only minimal standing and walking. She was not required to climb, stoop, kneel, crouch, or crawl. The heaviest weight she was required to lift as an assembler was 10 pounds. Moreover, Triunfel admitted in her testimony that she would have remained at Lucent had her job not been terminated.
Case law encourages, and in many situations, requires the testimony of a vocational expert to supplement or supplant the Grids, especially where the claimant, as here, is claiming non-exertional disabilities (diabetes, kidney stones, numbness in her hands). See Nguyen, 172 F.3d at 36 ("Pain can constitute a significant non-exertional impairment which precludes naked application of the Grid and requires use of a vocational expert."); Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994) ("The medical-vocational grid is based on claimant's exertional capacity and can only be applied when claimant's nonexertional limitations do not significantly impair claimant's ability to perform at given exertional level."); Da Rosa v. Sec'y of HHS, 803 F.2d 24, 26 (1st Cir. 1986) ("In mixed exertional/nonexertional limitations cases, the First Circuit has cautioned against the mechanical application of the Grid.").
Finally, Triunfel contends that the ALJ erred in finding that myofascial pain syndrome was her only "meaningful" impairment, and that he "failed to consider plaintiff's objectively documented tendonitis and resulting shoulder pain." Triunfel's counsel notes that
[o]n August 1, 2003, [sic] Dr. Barger diagnosed left cervical radiculopathy and prescribed Darvocet for pain. He indicated degenerative changes in the right shoulder and also diagnosed tendonitis of the right shoulder with positive impingement sign.
Appellant's Brief, at 5, 13-14. Counsel maintains that the ALJ overlooked the evidence of Triunfel's shoulder injury in focusing solely on her myofascial pain syndrome.
Contrary to counsel's representation, the ALJ's reference to myofascial pain syndrome as Triunfel's "only meaningful" impairment is taken out of context. The statement appears in a three sentence paragraph discussing Exhibit 2E, the SSA Function Report submitted by Triunfel. In the body of his opinion, the ALJ acknowledged that Triunfel "has a history of disc disease with radiculopathy, and a myofascial pain disorder." Decision, at 7. As the ALJ noted, a diagnosis of right shoulder tendonitis only first appears in a tentative diagnosis made by Dr. Choi on July 28, 2004. Triunfel refused a recommended Cortisone injection and was referred to Dr. Barger. His examination of her right shoulder on October 18, 2004, disclosed only "minor degenerative changes of the acromioclavicular joint." Dr. Bargar "start[ed] [Triunfel] on conservative management" and noted "symptomatic improvement" and "good motion of the neck and right shoulder" less than a month later. Triunfel did not return to Dr. Barger's care until August of 2005 (not 2003 as claimed in Triunfel's brief). During the August 2005 visit, Dr. Barger noted that "the right [shoulder] has been doing well but over the past three weeks she has developed pain in the neck radiating into the left shoulder." Dr. Bargar's diagnosis was "[l]eft cervical radiculopathy." The record amply supports the ALJ's conclusion that Triunfel's tendonitis was not "a severe impairment limiting her ability to work."
ORDER
For the foregoing reasons, the decision of the Commissioner denying Triunfel's application for disability benefits isAFFIRMED.
SO ORDERED.