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Gordon v. Colvin

United States District Court, D. Connecticut

March 2, 2017

MELISSA GORDON, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          Vanessa L. Bryant, U.S.D.J.

         This is an administrative appeal following the denial of the Plaintiff, Melissa Haman's, application for disability insurance benefits (“DIB”).[1] It is brought pursuant to 42 U.S.C. §§ 405(g). Melissa Haman[2] (“Plaintiff” or “Haman”) has moved for an order reversing the decision of the Commissioner of the Social Security Administration (“Commissioner”), or remanding the case for rehearing. [Dkt. No. 17.] The Commissioner, in turn, has moved for an order affirming the decision. [Dkt. No. 24.] On April 8, 2016 the case was fully briefed. For the following reasons, Messina's Motion for an Order Reversing or Remanding the Commissioner's Decision [Dkt. No. 17] is DENIED, and the Commissioner's Motion to Affirm that Decision [Dkt. No. 24] is GRANTED.

         I. Factual Background

         The following facts are taken from the parties' Joint Stipulation of Facts (“Joint Stipulation”) [Dkt. No. 37] unless otherwise indicated.

         a. Plaintiff's Background

         Haman was born in 1970. [Dkt. No. 11-3 at 33.] She graduated from high school and has no further education. Id. at 33, 36. She worked as a receptionist and show room salesperson at Southington Glass Company for eight and a half years and stopped when she broke her ankle on April 6, 2010. [Id. at 36-38.] She was last insured on December 31, 2015.[3] [Dkt. No. 11-3 at 12.] On August 9, 2011, Haman applied for a Period of Disability and Disability Insurance Benefits. [Dkt. No. 11-6 at 189.] On October 19, 2011, a disability adjudicator in the Social Security Administration denied her initial request for disability benefits and thereafter denied her request for reconsideration. [Dkt. No. 11-4 at 71, 85.]

         On January 22, 2013, Haman appeared (with counsel) for a hearing before an Administrative Law Judge (“ALJ”). [Dkt. No. 11-3 at 29.] On February 19, 2013, the ALJ issued a decision denying benefits. Id. at 12. On July 12, 2014, the appeals council denied Messina's request for review of that decision thereby making the ALJ's decision the final decision of the Commissioner. Id. at 1. This appeal followed.

         b. Plaintiff's Medical History

         On February 11, 2010, Haman visited Dr. Phil Watsky, her primary care physician, complaining of anxiety and fibromyalgia. [Dkt. No. 11-8 at 316.] Dr. Watsky noted Haman experienced leg aches, exhaustion, and dizziness, and indicated an impression that she suffered from fibromyalgia. [Dkt. No. 11-8 at 316.]

         On March 5, 2010, Haman visited Ellen Babcock, a therapist with the Bristol Hospital Counseling Center. Id. at 324. Ms. Babcock recommended Haman practice coping skills to manage her anxiety and depression. Id. On March 10, 2010, Ms. Babcock conducted an individual therapy session to discuss Haman's feelings of depression, frustration, and anger. Id. at 322.

         On April 5, 2010, Haman fell and fractured her right ankle. [Dkt. No. 11-8 at 273.] That day, Dr. Frank Gerratana surgically added stabilizing hardware to her ankle to address the fracture. Id. at 286, 310. On May 2, 2010, Haman tripped again, causing “a snapping sensation in her ankle” and “increased pain.” Id. at 310. Dr. Gerratana examined her the following day and noted some swelling, moderately restricted motion, and some diffuse tenderness of the ankle, but x-rays indicated the stabilizing hardware was still in place. Id. at 310. Dr. Gerratana instructed Haman to continue using a CAM walker (a medical walking boot) and report back for reassessment in one month. Id. at 310. At her follow-up appointment on June 3, 2010, Dr. Gerratana noted continued ankle discomfort and stiffness, but x-rays indicated further healing. Id. at 309. Dr. Gerratana instructed her to continue using her CAM walker as well as an ankle brace. Id. On month later, on July 15, 2010, Dr. Gerratana noted Haman limped, had some right ankle weakness, and still took Tylenol and ibuprofen for pain. Id. at 308. X-rays revealed the right ankle fracture had healed and showed her right knee was normal. Id. Dr. Gerratana instructed Haman to begin physical therapy. Id. On August 19, 2010, Dr. Gerratana noted physical therapy had “improved motion and strength of her ankle, ” but had not completely restored its range of motion. Id. at 307. He ordered Haman to continue the exercise program. Id.

         On September 1, 2010, Haman returned to Ms. Babcock for the first time since her ankle surgery, and reported continued anxiety and depressed mood. Id. at 323. Ms. Babcock rated Haman's Global Assessment of Functioning (“GAF”) score as 52 out of 100 and recommended continued psychiatric treatment to stabilize her mentally and help her gain the skills needed to maximize her functional level. Id.

         On December 2, 2010, Dr. Gerratana noted increased range of motion in Haman's right ankle, determined she would “be allowed increased activities, ” and “expected that she will continue to improve with time.” Id. at 305.

         On December 3, 2010, Haman ceased psychiatric treatment at Bristol Hospital Counseling Center. Id. at 321. Haman reported she would no longer attend treatment because she lost her job after she fractured her ankle and had no source of transportation to counseling appointments. Id. at 321. Discharge notes indicate Haman's symptoms of anxiety and depression “waxed and waned” throughout her treatment. Id. Ms. Babcock included in Haman's final diagnosis that she experienced post-traumatic stress disorder[4] and mood disorder in addition to anxiety and depression. Id. She rated Haman's treatment goals as “generally met to not met” and characterized her treatment as “successful or partially successful.” Id.

         On March 4, 2011, Haman reported residual right ankle discomfort as well as knee discomfort which worsened with activity or changes in the weather. Id. at 304. Dr. Gerratana noted she walked with a limp and had some diffuse tenderness in her knees; x-rays revealed some right knee diffuse osteoporosis. Id. Three months later, on June 13, 2011, Dr. Gerratana noted Haman continued to walk with a limp, had mild right ankle swelling and some tenderness, and had slightly decreased range of motion in her ankle. Id. at 303. X-rays showed the right ankle was “solidly united.” Id. Dr. Gerratana also noted mildly restricted motion and some tenderness in Haman's knees, gave her heel lifts, and instructed her to continue taking Tylenol and Motrin. Id.

         On August 12, 2011, Dr. Watsky examined Haman and found her legs were puffy and she had multiple tender points.[5] Id. He prescribed Cymbalta for her fibromyalgia. Id.

         On September 21, 2011, Dr. Sabeen Anwar, a rheumatologist, examined Haman on referral from Dr. Gerratana. Id. at 325. She reviewed Haman's medical history including her ankle fracture and residual pain, fibromyalgia diagnosis in 1993, and related musculoskeletal pain and stiffness in her fingers, knees, ankles, hips, and upper back. Id. Dr. Anwar found no evidence of synovitis, [6] restricted range of motion only in her right ankle, tenderness in her hands, and several tender points. Id. at 325-26. Dr. Anwar assessed Haman has “5/5 upper and lower extremity strength with the exception of the right quadricepts which is limited slightly due to pain.” Id. at 326. X-rays revealed diffuse osteoarthritis of the right knee. Id. Dr. Anwar recommended a gradual exercise regimen, yoga, and tai chi. Id.

         On March 12, 2012, Haman visited the Grove Hill Medical Center Orthopedic Surgery and Sports Medicine Center (Dr. Anwar's place of work) regarding her continued ankle discomfort and fibromyalgia pain. Id. at 345. The examiner[7] found Haman continued to experience decreased range of motion in her ankle which caused her to limp. Id. Haman also reported she was not satisfied with Dr. Anwar's treatment[8] and would be seeking a different rheumatologist. Id.

         On March 22, 2012, Dr. Nicholas Formica, a rheumatologist, examined Haman and found she had a “slight antalgic[9] gait, although [she] walked without the use of a cane, ” and had “slight soft tissue swelling about the right ankle region.” Id. at 349. Dr. Formica found Haman had “18/18 tender points . . . which were quite significant, ” as well as “diffuse mild to moderate muscle tenderness” and decreased range of motion of the right ankle. Id. at 350. Dr. Formica found no obvious hand swelling but some mild tenderness. Id. Haman's motor strength was intact. Id. Dr. Formica reviewed results of lab tests Dr. Anwar had conducted and found no inflammation, further confirming his fibromyalgia diagnosis. Id. He also noted that Haman had difficulty sleeping. Id. Dr. Formica recommended an alternative non-steroidal agent to manage Haman's symptoms and an alternative medication to aid her sleep if medicine prescribed by Dr. Gerratana proved ineffective. Id.

         On May 31, 2012, Dr. Formica examined Haman again and confirmed she still had “18 out of 18 tender points [and] diffuse muscle tenderness . . . in all extremities.” Id. at 360. Dr. Formica prescribed pain medication to manage her fibromyalgia. Id. at 361. However, that medication caused Haman's legs to swell, and Dr. Formica instructed her to stop taking it on June 8, 2012. Id. at 356.

         On June 25, 2012, Dr. Gerratana found Haman's right ankle had become symptomatic of posttraumatic arthritis, with mildly restricted range of motion and some diffuse tenderness. Id. at 379.

         On September 6, 2012, Dr. Formica noted Haman had “normal strength, normal gait, . . . [and] no significant joint swelling.” Id. at 375. He instructed Haman to take ibuprofen and Tylenol together to manage her fibromyalgia since she could not afford the cost of Lyrica. Id.

         On September 24, 2012, Dr. Gerratana noted Haman's continued limp, moderately restricted range of motion and diffuse tenderness in her right ankle and knees. Id. at 378. Otherwise, Haman had “good motion, strength, and stability” in her left ankle and knees, good hip motion, and “appropriate mood, affect, orientation, and coordination.” Id. Dr. Gerratana supplied Haman with heel lifts and instructed her to continue her current medications. Id.

         On October 12, 2012, Dr. Formica noted Haman continued to have 18 out of 18 tender points and diffuse muscle tenderness in all extremities to a moderate degree. Id. at 371. Dr. Formica prescribed Flexeril for her fibromyalgia pain. Id.

         On December 6, 2012, Dr. Formica noted that Haman's “overall condition ha[d] improved slightly since she is using the Flexeril” and her sleep pattern had improved. Id. at 367. However, Haman's overall pain registered as ten out of ten, she had 18 out of 18 tender points, and she continued to experience diffuse muscle tenderness in all extremities. Id. at 367-68. Dr. Formica also noted Haman was “quite anxious about her upcoming hearing” regarding disability eligibility. Id. at 369. He instructed Haman to continue her current therapy. Id. at 368.

         c. Medical Examinations and Opinions

         The Plaintiff underwent several independent medical examinations by non-treating medical experts. Those experts, as well as Haman's treating physicians, rendered opinions which follow.

         Hamon was referred by Disability Determination Services for a mental status examination by consulting psychologist Dr. Diana Badillo Martinez, Ph.D who reviewed Haman's medical and psychiatric history, conducted a psychiatric examination and rendered an opinion. [Dkt. No. 11-8 at 342.] Dr. Badillo Martinez assessed that Haman is “polite, cooperative, and engages easily, ” has a normal affect, clear but slow speech, and average attention span. Id. at 342-43. However, Dr. Badillo Martinez also found Haman had difficulty sleeping, below average thought processes, weak reasoning ability, and feelings of inadequacy, with overall intellectual abilities within the low to average range. Id. at 343. Dr. Badillo Martinez noted Haman's low intellectual ability “does not facilitate recovery” from her physical problems. Id. She diagnosed Haman with pain disorder associated with psychological medical factors, panic disorder, and personality disorder not otherwise specified (“NOS”). Id. at 344. Dr. Badillo Martinez recommended individual psychotherapy to gain awareness of the relationship between her emotions and physical distress, improve her coping skills, and help her to overcome her feelings of incapacity. Id. Dr. Badillo Martinez opined that Haman could engage in sedentary work on a part-time basis given her condition. Id.

         On October 12, 2012, Dr. Formica, who had been treating Haman since March 22, 2012, rendered an opinion on Haman's physical limitations. [Dkt. No. 11-8 at 365.] He explained that fibromyalgia patients experience severe fatigue, poor concentration, anxiety, poor sleep, and difficulty coping with normal activities of daily life, as well as muscular pain and tenderness. Id. He found Haman's daily limitations and chronic pain could be exacerbated unpredictably and a flare up of her symptoms could last seven to ten days. Id. Dr. Formica also stated Haman has a permanent limp, a seven percent disability of her left knee due to a fall in 2001, and pain in her right ankle. Id. As a result, Dr. Formica concluded Haman is not a candidate for employment of any kind. Id.

         State agency consultant Dr. Khurshid Khan reviewed the Plaintiff's medical record and determined Haman had multiple medically determinable impairments including fractures of a lower limb, fibromyalgia, osteoporosis, anxiety, personality disorder, and somatoform disorder.[10] [Dkt. No. 11-4 at 76.] He found Haman retained the Residual Functional Capacity (“RFC) to occasionally lift 20 pounds, frequently lift 10 pounds, stand, walk, or sit for six hours in an eight-hour workday, and push or pull an unlimited amount. Id. at 77. He opined that Haman could occasionally climb ramps, stairs, ladders, ropes, or scaffolds, could frequently balance, stoop, or kneel, and could occasionally crouch or crawl. Id. at 78-79. Limitations were attributed to Haman's fibromyalgia and fractured right ankle. Id. at 78.

         Dr. Pamela Fadakar, PsyD, examined Haman's mental health records in supplementation of Dr. Khan's review to determine whether Haman had any qualifying mental health conditions and their impact on her residual functional capacity. In her opinion, Id. at 76-77. none of Haman's mental impairments met or equaled the requirements of a listed impairment, as Haman was only mildly restricted in activities of daily living and social functioning and had no recorded episodes of decompensation. Id. Dr. Fadakar opined that Haman's mental limitations render her moderately limited in ability to follow detailed instructions, maintain attention or concentration for extended periods, perform at a consistent pace without an unreasonable number of rest periods, or complete a normal workday without interruptions from psychologically-based symptoms. Id. at 80. She opined that Haman could “perform simple/routine tasks for 2 [hour] periods during a [normal] work day/ [week] in a setting [without] strict time or production requirements” and could “adhere to a set schedule up to her physical limits and work around others, ” but would “have difficulty performing more complex tasks in a timely manner.” Id. at 80. Dr. Fadakar also opined that Haman is “better suited for non-public work” but can “relate adequately w[ith] supervisors and coworkers on a superficial basis and request help when needed.” Id. at 80.

         Dr. Carol Honeychurch, a State agency consultant, reviewed the medical record, found Haman has three medically determinable impairments and assessed her Residual Functional Capacity (“RFC”). Based on her findings that Haman had a fracture of a lower limb, fibromyalgia, anxiety, and personality disorders, all of which were medically determinable impairments, Dr. Honeychurch opined that Haman retains the RFC to occasionally lift 20 pounds, frequently lift 10 pounds, stand, walk, or sit for six hours in an eight-hour workday, and is unlimited in ability to push or pull. Id. at 91-92. She opined that Haman could occasionally climb ramps or stairs, could never climb ladders, ropes, or scaffolds, and could occasionally balance, stoop, kneel, crouch or crawl. Id. at 92-93. Limitations were identified as arising from Haman's fibromyalgia and fractured right ankle. Id. at 93.

         Dr. Warren Leib provided a mental health analysis to supplement Dr. Honeychurch's analysis. He found Haman's anxiety and personality disorders do not qualify as listed impairments, and found her impairments render her moderately limited in ability to follow detailed instructions, maintain attention or concentration for extended periods, perform at a consistent pace without an unreasonable number of rest periods, or complete a normal workday without interruptions from psychologically-based symptoms. Id. at 94-95. He explained that Haman could perform simple or routine tasks for two hours at a time during a normal workday in a setting without strict time or production requirements, and could adhere to a set schedule up to her physical limits and work around others, but would have difficulty performing more complex tasks in a timely manner. Id. at 95. In addition, Dr. Leib noted Haman's moderately limited ability to interact with the general public appropriately made her better suited for work in a non-public setting, although she could relate adequately with supervisors and coworkers on a superficial basis. Id. at 95. Dr. Leib also noted Haman is moderately limited in her ability to respond appropriately to changes in the work setting, but could adapt to minor or routine work adjustments, travel, avoid safety hazards, and set simple work goals. Id. at 95.

         d. The Hearing Before the ALJ

         On January 22, 2012, ALJ James E. Thomas (“ALJ Thomas”) held a hearing to consider Haman's disability claim. [Dkt. No. 11-3 at 31.] Haman was represented by counsel. Id. at 34. Haman testified she last worked on April 6, 2010, as a receptionist and show room salesperson at Southington Glass Company. Id. at 36-37. She worked at Southington Glass for eight and a half years answering phones, scheduling appointments, and handling sales. Id. at 37-38. She sometimes lifted and carried glass, but asked for assistance lifting items weighing over eight to ten pounds due to her fibromyalgia. Id. at 43-44. She stopped working in April 2010 when she tripped and fractured her ankle. Id. at 38. Haman explained she completed five months of physical therapy after her ankle surgery and continued to practice at-home physical therapy as of the hearing date. Id. at 39. She still had residual pain in her ankle, as well as fibromyalgia pain “throughout [her] whole body every minute of every day.” Id. at 39-40. Her fibromyalgia pain worsened after her 2010 accident. Id. at 44.

         Haman also described her daily living conditions. She walks with a cane when she needs to leave her house and the weather is inclement or her legs are swollen. Id. at 40-41. She explained she walks with a limp and walking is more difficult when her legs swell. Id. With a cane, she can walk “maybe a quarter mile” at a time. Id. at 51. Haman also noted her left knee is arthritic and prevents her from kneeling, squatting, bending, or running. Id. at 41-42.

         Haman added that she gets “really, really bad headaches to the point that [she] can't think straight.” Id. at 47. She also testified she is more forgetful than she used to be, and has to write things down to remember them. Id. Her headaches last three to four days at a time and occur four to five times per month. Id. at 47-48. She takes ibuprofen or Tylenol to manage her headaches but is allergic to migraine medication. Id. at 48.

         Haman's average daily pain level is a six or seven out of ten, but on “really bad days” her pain level rises to nine. Id. at 49. Weather affects her pain level; in the winter, Haman has a “really bad” day about eighteen to twenty out of every thirty days. Id. Her fibromyalgia pain, combined with anxiety, “keeps [her] from doing daily life” and has led her not to leave her house alone anymore. Id. at 48-49. When her fibromyalgia pain is particularly bad, Haman lays down for twenty to thirty minutes to “try to calm down.” Id. at 53. She stated she lays down due to fibromyalgia pain one to four times per day. Id.

         Haman also testified she has arthritis in her hands[11] and her fingers swell roughly twice a week, which makes it difficult for her to pick things up, hold onto things, or wash her hair. Id. at 56, 63. When her fingers are swollen, Haman can use a computer for half an hour at a time. Id. at 57.

         Haman testified she has had anxiety since she was fifteen years old but stopped seeing a therapist after her fall in April 2010. Id. at 53-54. Haman stopped attending therapy because she was using crutches which made it “hard to get around” and could not drive. Id. Once she was sufficiently healed to go to therapy again it had been over a year since her last appointment. Id. at 54. Because of the delay, she would have had to pay for a renewed intake meeting, which she could not afford. Id. at 54. ...


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