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Dimauro v. Berryhill

United States District Court, D. Connecticut

March 23, 2017

NATALE DIMAURO, Plaintiff,
v.
NANCY A. BERRYHILL, [1]ACTING 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

          Dominic J. Squatrito United States District Judge

         This is an administrative appeal following the denial of an application filed by the plaintiff, Natale DiMauro (“DiMauro”), for disability insurance benefits (“DIB”) and supplemental security income benefits (“SSI”).[2] It is brought pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).

         DiMauro now moves for an order reversing the decision of the Commissioner of the Social Security Administration (“Commissioner”). In the alternative, DiMauro seeks an order remanding his case for a rehearing. The Commissioner, in turn, has moved for an order affirming her decision.

         The issues presented are whether the ALJ: (1) properly weighed the medical opinion evidence; and (2) properly evaluated DiMauro's credibility with regard to his symptoms. For the following reasons, DiMauro's motion for an order reversing or remanding the Commissioner's decision is granted in part and denied in part, and the Commissioner's motion for an order affirming her decision is granted in part and denied in part.

         FACTS [3]

         DiMauro filed applications for DIB and SSI on November 30, 2013, and December 18, 2013, respectively, for an alleged disability that commenced on August 1, 2013. For purposes of DIB, DiMauro's date last insured (“DLI”) is September 30, 2017.[4] His applications were denied both initially and upon reconsideration.

         On April 9, 2015, DiMauro appeared with counsel for a hearing before an ALJ. On April 23, 2015, the ALJ issued a decision denying benefits. On August 26, 20156, the appeals council denied DiMauro's request for review of that decision, thereby making the ALJ's decision the final decision of the Commissioner. This appeal followed.

         DiMauro, who was born in 1964, has a high school education. His relevant past work experience was as a stucco setter helper and a tile setter. According to DiMauro, he had to stop working in August 2013 because of constant pain in his neck and back due to a pinched nerve.

         Medical Evidence

         Middlesex Orthopedic Surgeons

         DiMauro was evaluated for lower back and neck pain by Janice Desi, P.A.-C (Certified Physician Assistant) on January 14, 2013. Although DiMauro indicated that he had intermittent neck pain, his principal complaint was lower back pain that radiated from his back down both of his legs into his feet along with numbness and tingling. DiMauro further indicated that increasing pain was affecting his ability to work. Lumbar radiculopathy[5] was diagnosed and Percocet was prescribed. He was also scheduled for an epidural steroid injection.

         DiMauro was seen again by P.A. Desi on three occasions between April and June 2013. On April 5, 2013, he indicated that he had not gotten the epidural injection because his pain had improved. He also stated that he had increasing pain in his right elbow and had trouble lifting objects. He had numbness in his fingers and had been dropping things. At that time he was diagnosed with resolving lumbar radiculopathy, medial epicondylitis[6] right elbow, and ulnar neuropathy[7] right elbow. On May 2, 2013, he was seen for neck pain with limited mobility and also for pain in his upper back. Cervical spine x-rays revealed mild degenerative disc disease and a straightening of the cervical curve. On June 28, 2013, DiMauro reported low back and right elbow pain and indicated that his right elbow pain worsened when he lifted heavy loads at work. At that visit P.A. Desi diagnosed lumbar radiculopathy and lateral epicondylitis[8] of the right elbow.

         Dr. Bruce H. Moeckel (“Dr. Moeckel”), an orthopedic surgeon, saw DiMauro on July 26, 2013 for continued back and right elbow pain. At that time DiMauro reported having difficulties with day-to-day activities due to pain. Dr. Moeckel's physical examination found tenderness across the lower back, pain into the buttocks caused by a straight leg raise, tenderness over the lateral epicondyle, and pain with resisted wrist extension. Dr. Moeckel administered a cortisone shot in the right elbow. On August 23, 2013, DiMauro reported significant right elbow pain as well as pain on the inside of his right arm with numbness and tingling in his right hand. At that time, Dr. Moeckel diagnosed lumbar radiculopathy, lateral epicondylitis of the right elbow, and ulnar neuropathy involving the right elbow. Dr. Moeckel stated he was concerned about DiMauro's severe elbow and back symptoms and whether he could continue working.

         On September 25, 2013, Dr. Moeckel completed a Summary Impairment Questionnaire concerning DiMauro. Dr. Moeckel indicated diagnoses of lumbar radiculopathy, lateral epicondylitis of the right elbow, and ulnar neuropathy. The clinical and laboratory findings cited by Dr. Moeckel in support of his diagnoses were tenderness across DiMauro's lower back, decreased range of motion, and increased pain with range of motion. DiMauro's primary symptoms were listed as lower back pain, right elbow pain, and increased pain when attempting to lift heavy loads. Dr. Moeckel offered his opinion that DiMauro was able to sit less than one one hour and stand/walk less than one hour in an eight-hour workday. He further opined that it was medically necessary for Dimauro to elevate both of his legs to waist level at all times when seated, that DiMauro was incapable of lifting and/or carrying even five pounds, and that he had significant limitations that allowed only occasional use of his hands/fingers for fine manipulation. The doctor indicated that DiMauro was likely to be absent from work more than three times a month as a result of his impairments or treatments. According to Dr. Moeckel, DiMauro's limitations applied at least as far back as August 1, 2013.

         Dr. Moeckel evalutated DiMauro again on October 4, 2013, at which time DiMauro indicated that his biggest problem was pain and stiffness in his neck. He also had pain in his lower back and trouble with day-to-day activities. Dr. Mockel ordered cervical and lumbar MRIs and continued Percocet at a higher dose. On November 7, 2013, DiMauro reported to Dr. Moeckel that he continued to have right elbow, neck, and back pain. On that occasion, a steroid injection was administered to his right elbow and prescribed medications were continued.

         On December 27, 2013, the cervical and lumbar MRIs that had been ordered by Dr. Moeckel were performed. The results of the cervical spine MRI were interpreted as showing mild degenerative changes of the cervical spine and no abnormal signal in the cervical spinal cord. The results of the lumbar spine MRI were interpreted as showing stable mild degenerative changes of the lumbar spine.

         DiMauro was seen by Dr. Moeckel again on January 8, 2014, and February 5, 2014. Dr. Moeckel continued to feel that DiMauro was disabled. There were no changes made to prescribed medications. Findings based on the doctor's physical examination of DiMauro remained unchanged from previous visits. According to Dr. Moeckel's February 5, 2014 note, DiMauro was trying to arrange a cervical epidural steroid injection.

         DiMauro saw P.A. Desi on March 6, 2014 for increased pain in his back and down both legs. He indicated that he had been clearing snow and experienced increased pain in his lower back and down both legs. He complained of trouble with day-to-day activities and was unable to lift anything. On March 26, 2014, an epidural steroid injection was administered to DiMauro.

         On April 2, 2014, DiMauro reported to Dr. Moeckel that his back pain continued, although the epidural steroid injection gave him some relief. Dr. Moeckel referred DiMauro for a second lumbar injection which was administered on April 23, 2014. No significant changes were noted at subsequent follow-up visits through October 13, 2014.

         Dr. Moeckel completed a second Summary Impairment Questionnaire on October 13, 2014. He indicated diagnoses of lumbar radiculopathy, cervical radiculopathy, and status post shoulder surgery[9]. Dr. Moeckel listed MRIs of the cervical and lumbar spines as the clinical findings that supported his diagnoses. DiMauro's primary symptoms were reported as neck and back pain. According to Dr. Moeckel, DiMauro was able to sit for up to two hours and stand/walk for no more than one hour in an eight- hour workday. He could occasionally lift and/or carry up to five pounds, but never more than five pounds. He could only occasionally use his hands and fingers for fine manipulation. Dr. Moeckel further opined that DiMauro was likely to be absent from work more than three times per month due to his impairments or treatments.

         On January 14, 2015, DiMauro reported that his neck and back pain had worsened. Physical examination revealed tenderness across the lower back, pain into his buttocks caused by a straight leg raise, and neck pain radiating into his shoulder blades caused by range of motion of his neck. At the same time, physical examination also revealed that “upper extremity motor strength is 5/5, sensation is intact [and] [r]eflexes are symmetric.” (Doc. # 9-8, at 71, p. 435).[10]

         On April 11, 2015, Dr. Moeckel completed a Disability Impairment Questionnaire in which he repeated the findings reported in his second Summary Impairment Questionnaire. Dr. Moeckel again listed MRIs of the cervical and lumbar spines, as well as an x-ray, as the clinical findings that supported his diagnoses of cervical radiculopathy and lumbar radiculopathy. He also opined that it was medically necessary for DiMauro to avoid continuous sitting in an eight-hour workday, and that if seated, he would need to get up and move around every 15-20 minutes for a period of 15-20 minutes before sitting again. DiMauro could occasionally lift and/or carry up to ten pounds but never more. He could frequently use his hands and fingers for fine manipulations, but could only occasionally grasp, turn, and twist objects. According to Dr. Mocekel, DiMauros's pain, fatigue, and other symptoms were frequently severe enough to interfere with his attention and concentration. He would need to take unscheduled rests at unpredictable intervals during an eight-hour workday for 10-15 minutes each time before returning to work. Dr. Moeckel estimated that DiMauro was likely to be absent from work two or three times per month as a result of his impairments or treatment. Pranav Kapoor, M.D.

         Dr. Pranav Kapoor (“Dr. Kapoor”), DiMauro's primary care physician, first saw DiMauro on December 10, 2013. At that time Dr. Kapoor diagnosed obesity, elevated blood pressure without diagnosis of hypertension, and gastroesophageal reflux disease (“GERD”). At a follow-up visit on January 20, 2014, Dr. Kapoor diagnosed hypertension and chronic back pain.

         On January 24, 2014, Dr. Kapoor completed a Mental Impairment Questionnaire at the request of the Social Security Administration. He diagnosed a prior history of depression and listed medications that included Escitalopram, which is used to treat anxiety and major depressive disorder. DiMauro's mental status was reported as appropriate and normal. According to Dr. Kapoor, DiMauro had a slight problem using appropriate coping skills to meet the ordinary demands of a work environment, but had a serious problem performing work activity on a sustained basis due to his physical limitations from chronic pain.

         On March 10, 2014, DiMauro reported to Dr. Kapoor that he had experienced a little dizziness and shortness of breath. DiMauro expressed his belief that these symptoms were “secondary to back pain when he was replacing parts on the ventilation unit above his range. He was twisted in an unusual position and when he stood up straight he began to feel symptoms and sharp pain.” (Doc. # 9-8, at 51, p. 415). During the period from March 2014 through October 2014 DiMauro saw Dr. Kapoor on three occasions. During these visits DiMauro reported feeling anxious and depressed. He indicated that he had tried to go back to work but had to stop after three weeks due to unbearable pain. Dr. Kapoor diagnosed hypertension, depression, chronic low back pain, and being overweight. He prescribed medications that included antidepressants.

         On February 13, 2015, Dr. Kapoor completed a Disability Impairment Questionnaire. He indicated diagnoses of GERD, hypertension, depression, impaired fasting glucose (pre-diabetes), and chronic low back pain. DiMauro's primary symptoms of depression were listed as poor sleep and increased stress. According to Dr. Kapoor, DiMauro's symptoms and limitations applied as far back as August 1, 2013. Dr. Kapoor stated that he only treated DiMauro for his blood pressure and impaired fasting glucose and that another doctor treated him for his back pain. He also indicated that he had not assessed DiMauro's capacity for work.

         In a report dated March 23, 2015, Dr. Kapoor stated that he believed chronic back pain was the primary basis of DiMauro's disability. He reported that DiMauro's hypertension and GERD were well controlled with medication. Dr. Kapoor also indicated that DiMauro's depression had ...


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