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Thomas Bruce Wenzel v. Michael J. Astrue

July 6, 2012

THOMAS BRUCE WENZEL
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION



The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 117

MEMORANDUM AND ORDER

Thomas Wenzel seeks judicial review of a decision by the Commissioner of the Social Security Administration denying his application for disability insurance benefits. He contends that the Administrative Law Judge ("ALJ") who heard his case failed to properly weigh the medical opinion evidence and erred in assessing the credibility of his subjective reports of pain. For the reasons provided below, I affirm the Commissioner's decision.

I. BACKGROUND*fn1

Wenzel applied for disability insurance benefits on March 2, 2009, when he was fifty-one years old. Tr. 20. He alleged a disability onset date of October 2, 2008, due to a back injury, arthritis, carpal tunnel syndrome, and depression. Wenzel completed high school, and worked as a painter for approximately twenty-five years. Tr. 20-21.

A. Medical Evidence

Between April 16 and May 30, 2008, Wenzel sought treatment for his back pain at the New Hampshire NeuroSpine Institute. He complained of a twenty-five-year history of lower back pain that was caused by his heavy workload as a self-employed painter. He reported that his pain had become worse over the past eighteen months. An MRI of Wenzel's lumbar spine showed minor degenerative disc and facet joint disease.

Dr. Theodore Jacobs, who treated Wenzel at the NeuroSpine Institute, reported in a May 16, 2008 letter that, upon examination, Wenzel's upper and lower extremities were neurologically intact; his spine was nontender; a straight leg raise test was negative*fn2 ; and extension and flexion did not produce discomfort in his neck or lower back. Dr. Jacobs noted that he was unsure whether Wenzel had a surgically correctable abnormality in his spine.

Wenzel again complained of lower back pain to Dr. Jacobs on May 30, but, upon examination, movement of his neck and lower back did not produce discomfort and a straight leg raise test was again negative. Dr. Jacobs noted that an MRI, which revealed severe spinal stenosis and disc herniation, Tr. 183, "overstated any disease in his lumbar spine," Tr. 181, and that a myelogram and CT scan showed only "some mild stenosis" at L4-5, Tr. 181. Dr. Jacobs stated that Wenzel's exam was benign. He reassured Wenzel that he was not a surgical candidate, and recommended that Wenzel seek pain management.

Beginning in February 2008, Wenzel saw Dr. Robert Quirbach of the St. Joseph Family Medical Center for his complaints of chronic back pain.*fn3 Examinations performed through June 2009 showed that Wenzel had tightness or tenderness, along with decreased range of motion, in his lumbosacral spine, and that he also had some pain and tenderness in his cervical spine. In July 2008, Dr. Quirbach noted that Wenzel was bilaterally positive on straight leg raise tests. At a number of appointments, Dr. Quirbach stated that Wenzel was doing fairly well and/or that his back pain was stable. Tr. 151, 208, 214, 215, 216, 220, 225. He also reported that Wenzel was taking Oxycontin, which was working well and sometimes controlled his pain.

On June 16, 2009, Dr. Hugh Fairley, a non-examining state agency physician, completed a physical RFC assessment of Wenzel. Dr. Fairley opined that Wenzel could occasionally lift and/or carry twenty pounds; frequently lift and/or carry ten pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; and push and/or pull without limitations. Dr. Fairley opined that Wenzel had occasional postural limitations, and had no manipulative, visual, communicative, or environmental limitations.

Between late-June 2009 and October 2010, Wenzel continued to see Dr. Quirbach for his back pain. Across a number of examinations, Wenzel continued to exhibit back pain and a decreased range of motion, along with variable levels of pain/distress. Tr. 238-277. Wenzel was bilaterally positive on a straight leg raise test performed in October 2009, and was again positive in several straight leg raise tests performed in the following months. Tr. 238-73.

In a September 2010 appointment, Dr. Quirbach noted that Wenzel's back pain had "been doing better recently." Tr. 242. After an examination performed the following month, Dr. Quirbach reported that Wenzel's back pain had been "stable," but that Wenzel was experiencing difficulty transitioning to a lower dose of Oxycontin. Tr. 238.

On November 2, 2010, Dr. Quirbach completed a medical assessment of Wenzel's physical ability to perform work-related activities. Dr. Quirbach stated that in an eight-hour day Wenzel could occasionally lift and carry twenty pounds; frequently lift and carry ten pounds; stand and walk with normal breaks for about three hours; and sit with normal breaks for about four hours. Dr. Quirbach also stated that Wenzel could never twist, but could occasionally bend, crouch, climb stairs, and climb ladders. He opined that Wenzel's impairments ...


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