United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR ORDER REVERSING
THE DECISION OF THE COMMISSIONER AND ON DEFENDANT'S
MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE
GLAZER MARGOLIS, UNITED STATES MAGISTRATE JUDGE.
action, filed under § 205(g) of the Social Security Act,
42 U.S.C. § 405(g), seeks review of a final decision by
the Commissioner of Social Security [“SSA”]
denying plaintiff Disability Insurance Benefits
16, 2013, plaintiff filed an application for DIB benefits
claiming that she has been disabled since August 19, 2011,
due to a protruding disc in her back; numbness in her arm and
feet; back injury; arthritis; headaches (migraines); pain in
her neck and shoulders; pain running down her legs; pain in
her knees; cramping in her arms, legs, feet, toes, and
fingers; “chronic fatiage [sic]”; dizzy spells;
and loss of balance. (Certified Transcript of Administrative
Proceedings, dated November 30, 2016 [“Tr.”]
165-66, 181). Plaintiff's application was denied
initially (Tr. 92-99; see also Tr. 91, 110-13) and
upon reconsideration (Tr. 101-09; see also Tr. 100,
114-16). On December 2, 2013, plaintiff requested a
hearing before an Administrative Law Judge
[“ALJ”](Tr. 119-20; see also Tr. 121-52,
159-62). ALJ Eskunder Boyd held plaintiff’s hearing on
January 26, 2015, at which time plaintiff and a vocational
expert, who was present by telephone, testified. (Tr. 49-90;
see also Tr. 153-58, 163-64). On March 10, 2015, ALJ
Boyd issued an unfavorable decision. (Tr. 30-48). On May 4,
2015, plaintiff requested review of the hearing decision, and
additional time to submit a statement in support of her
request for review. (Tr. 27-29; see also Tr.
248-56). By letter dated June 7, 2015, plaintiff was granted
an additional twenty-five days to submit evidence for review
by the Appeals Council (Tr. 25-26); on March 15, 2016,
plaintiff submitted additional medical evidence. (Tr. 7-24,
257). On August 24, 2016, the Appeals Council denied
plaintiff’s request for review, thereby rendering the
ALJ's decision the final decision of the Commissioner.
October 17, 2016, plaintiff filed her complaint in this
pending action (Dkt. #1), and on December 22, 2016, defendant
filed her answer. (Dkt. #10). On January 10, 2017, the case was
transferred to this Magistrate Judge upon consent of the
parties. (Dkt. #13; see also Dkt. #12). On February
17, 2017, plaintiff filed her Motion for Order Reversing the
Decision of the Commissioner, with brief in support (Dkt.
#14), which was followed by defendant's
Motion for an Order Affirming the Decision of the
Commissioner and brief in support on June 19, 2017. (Dkt.
#20; see also Dkts. ##15-19). On July 19, 2017,
plaintiff filed a Memorandum in Opposition to
Defendant’s Motion for an Order Affirming the Decision
of the Commissioner. (Dkt. #24; see also Dkts.
reasons stated below, plaintiff's Motion for Order
Reversing the Decision of the Commissioner (Dkt. #14) is
granted in part and denied in part, and
defendant's Motion to Affirm the Decision of the
Commissioner (Dkt. #20) is denied.
HEARING TESTIMONY AND ACTIVITIES OF DAILY LIVING
time of her hearing, plaintiff was sixty-three years old and
lived in a one-level home with her husband and two adult
children. (Tr. 60-61). Plaintiff has had vertigo her
“whole life” and has trouble going up and down
stairs, is off-balance and unsteady on her feet, gets
light-headed and dizzy, and “walk[s] around hanging
onto the table or the chair” in order to avoid
falling. (Tr. 70). Plaintiff experiences daily pain
“more or less from the neck down to [her]
feet[,]” which is aggravated by walking short distances
and by back spasms that cause shooting pain in her shoulders
and neck. (Tr. 72; see also Tr. 191, 194). Plaintiff
estimated that her pain rating averages as an eight on a
one-to-ten scale (Tr. 73), and she treats it at home with a
heating pad, cold compress, and “a lot of
Aleve” to reduce the pain to “about six.”
(Tr. 72-73). Plaintiff testified that she has been prescribed
different pain medications, including morphine, Percocet,
Voltaren, Prednisone, and Fentanyl patches, many of which
caused her to be “sick for  days” with
vomiting, light-headedness, and dizziness, and none of which
significantly improved her pain. (Tr. 71, 73, 81). Plaintiff
was supposed to go for pain management but “never made
it.” (Tr. 81). Plaintiff testified that Dr. Varma told
her that “pain medicine really wouldn’t help with
what [she] ha[s].” (Id.). Plaintiff sleeps
only two to two-and-a-half hours each night and experiences
back spasms and charley horses in her legs, her elbows
“lock up on [her]” and she “sleep[s] with
pillows everywhere on [her] body.” (Tr. 69; see
also Tr. 191).
last worked on August 19, 2011 as a full-time slot machine
attendant at Mohegan Sun; she testified that she
“couldn’t do [the job]” because of
“surgery on [her] neck and . . . arms[,]” a fall
at the casino, “leg pains, cramping, numbness[,]”
back spasms, numbness in her feet, and trouble with her lower
back and the back of her neck (Tr. 63-64), and because of
“all the equipment that [she had] to carry . . . [and]
[a]ll the walking.” (Tr. 67). Plaintiff attempted to
reduce her pain at work by wearing “a hard pair of
leather shoes[,]” wrapping her knees, wearing a back
brace, and wearing suspenders to redistribute the weight of
the belt she was required to wear, which held a radio,
“ninjas,” her wallet, pad, pencils, and a
calculator; these adjustments did not help. (Tr. 79).
Plaintiff testified that she was often reprimanded on the
casino floor for trying to sit down or lean against something
“just to alleviate some of the pain[,]” or for
taking the radio off her belt to “eliminate some of
that weight.” (Tr. 80). Plaintiff collected
unemployment benefits after leaving Mohegan Sun, but
testified that she would have tried to work had she found a
job that did not require her to stand as much. (Tr. 64-66,
“occasionally” relies on a wall as an assistive
device for keeping her balance (Tr. 62); her hands
“cramp up” when she writes for five to thirty
minutes (Tr. 63); and she is able to dress, groom and bathe
herself, but uses a shower chair and only showers when
someone else is home because she has “passed out in the
shower and fallen.” (Tr. 67; see also Tr. 191,
212). Plaintiff helps her husband get up in the morning,
makes coffee, and then returns to bed to lay down once he
leaves for work. (Tr. 69). Plaintiff cooks small meals,
vacuums “very small rooms” in her home while
sitting down, and dusts “the lower part of the
house” to avoid reaching. (Tr. 68, 192). Plaintiff
rarely drives; she “may run to the store to pick up
milk” but she testified that the drive to her
administrative hearing “was pretty challenging for
[her].” (Tr. 69; see also Tr. 193, 211).
Plaintiff’s son or husband takes care of the
family’s grocery shopping and her son does “most
of” the family’s laundry. (Tr. 70; see
also Tr. 194). Plaintiff’s ability to perform
household chores is limited by her COPD and fibromyalgia,
which “make it difficult to breath[e] [and] move
freely.” (Tr. 193, 211). She uses a back brace and a
Tens device at home. (Tr. 196).
can lift “two pounds” and carry “light
groceries” such as cereal and bread, and can lift,
but not carry, a gallon of milk. (Tr. 74-75). Plaintiff
explained that she cannot carry grocery items because she has
“a hard time walking” such that she requires a
shopping cart to support her. (Tr. 74-75, 80; see
also Tr. 194). Plaintiff can walk from the parking lot
into the store, but cannot walk for even half a city block
without stopping. (Tr. 75). Plaintiff can walk short
distances from her home, but needs to sit down and take a
break before returning home. (Tr. 196, 207). In a single
stretch, plaintiff can stand for thirty to forty-five
minutes. (Tr. 76). Plaintiff can “sit for a
while” but cannot, while standing, bend over to touch
her toes without falling. (Id.). She can touch her
knees from a standing position and lean over the sink to do
dishes, but cannot squat or climb stairs due to pain in her
back and the back of her legs; she can reach her right arm,
but not her left, over her head; she can reach her arms out
in front of her; she can use her hands to hold larger objects
like a grapefruit; but she has “a hard time”
using her fingers on small objects like buttons or zippers,
and cannot shuffle and deal a deck of cards or hold an orange
in one hand while peeling it with the other. (Tr. 76-77).
Plaintiff completed two Activities of Daily Living
[“ADL”] forms: on August 6, 2013 (Tr. 190-97) and
November 2, 2013 (Tr. 206-13). Plaintiff reported that she is
always in pain; does not sleep well; experiences cramps in
her legs, knees, and feet; and cannot climb stairs, do
laundry, clean her home, shop for groceries, go for long
walks, use both arms, go for long car rides, or do arts and
crafts. (Tr. 191, 194). She further reported that her
conditions affect lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, stair climbing,
completing tasks, and using her hands (Tr. 195, 209), because
she has a “pinch[ed] nerve in [her] lower back that
press[es] on the nerve [which] cause[s] a lot of pain in
[her] lower back that radiates down [her] legs [and] knees
and into [her] feet.” (Tr. 195). Exposure to cold,
humidity, and wetness aggravate plaintiff’s symptoms.
vocational expert testified that plaintiff’s only past
relevant work was as a slot machine attendant, which is
unskilled, light work. (Tr. 84). The vocational expert
testified that a hypothetical person limited to light work
who can never climb ladders, ropes or scaffolds; occasionally
climb stairs and ramps; occasionally balance, stoop and
crouch; never kneel or crawl; frequently handle and finger;
but not work in exposure to cold, could perform
plaintiff’s past relevant work. (Id.).
Assuming the same hypothetical, except that the person can
never climb stairs and cannot reach overhead with the left
upper extremity, the vocational expert testified that such a
person would still be able to perform plaintiff’s past
relevant work. (Tr. 85). If that person were also limited to
standing and walking for up to two hours total and sitting
for up to six hours total, the vocational expert testified
that such a person would not be able to perform
plaintiff’s past relevant work. (Id.). The
vocational expert testified that plaintiff has no
transferrable skills. (Tr. 86).
administrative transcript includes medical records from April
2000 (Tr. 300-01) through November 2015 (Tr. 17-19); however,
many of these records do not relate to plaintiff’s
conditions during the relevant time, do not discuss
plaintiff’s alleged impairments, or are duplicative.
While the Court has reviewed all medical records in the
Administrative Transcript, it will focus on plaintiff’s
medical records from the alleged onset of her disability on
August 19, 2011, through her date last insured on December
31, 2016. Similarly, this decision will not address medical
records that do not relate to plaintiff’s alleged
causes of disability. (See, e.g., Tr. 311-31, 439,
457-67, 477-82, 491-92, 494-500, 502-08, 532-34, 537-50,
555-60 (uninterpreted lab results); 332-36 (radiology
reports); 337-41 (sinus rhythm); 342 (testing request)).
However, the Court will discuss any additional records that
may shed light on plaintiff’s condition during the
relevant time period.
MEDICAL RECORDS PRECEDING ALLEGED ONSET OF DISABILITY
in April 2000 (Tr. 300-02), plaintiff began medical treatment
for vertigo and headaches (Tr. 258, 262-64, 267-69, 280-81,
283-87, 300-01, 347-48), which were suggestive of migraine
(Tr. 263-69, 273, 302-03, 347-48) and sometimes caused her to
miss work (Tr. 267-68, 273, 286). Plaintiff sometimes treated
her vertigo with Zyrtec, which made her sleepy (Tr. 286,
295-96), or with Calan and Antivert (Tr. 281). Although
Imitrex resolved plaintiff’s vertigo and headaches,
plaintiff was a smoker with high cholesterol and this
medication put plaintiff at increased risk such that it
required close supervision. (Tr. 266-67). In August 2003,
plaintiff presented to Dr. Claire Warren, a family physician,
reporting that she became dizzy getting out of bed, fell, and
“pass[ed] out” a few minutes later. (Tr. 279).
When she awoke, plaintiff experienced discomfort on the left
side of her chest, but her chest X-ray was normal.
(Id.). Plaintiff was treated for chest wall strain
and vertigo with a syncopal episode. (Tr. 275-79). Plaintiff
reported additional syncopal episodes in June 2006, at which
time she was referred for further evaluation (Tr. 259,
351-52) but had a normal EEG and brain MRI (Tr. 350, 353).
to her alleged onset of disability, plaintiff experienced two
orthopedic injuries, each of which resulted in lengthy
treatment and surgery. First, on January 29, 2009, plaintiff
reported to Dr. Mohammad Pasha, her physiatrist at Norwich
Orthopedic Group [“NOG”], that she slipped on ice
outside of Mohegan Sun Casino on December 22, 2008, landed on
her left buttock and lower back, and experienced pain ranging
from a three to a seven and that increased with standing,
walking, twisting, and rotating. (Tr. 406-07). X-rays of
plaintiff’s lumbosacral spine and hip were
unremarkable, and Dr. Pasha diagnosed plaintiff with low back
pain with left lumbar radiculitis and left groin pain; he
prescribed her Naprosyn, Flexeril, and Darvoset, and allowed
her to perform work at full duty without restriction.
(Id.). An MRI of plaintiff’s lumbar spine in
February 2009 revealed subtle central/left paracentral disc
bulging at L3-4 and L4-5; plaintiff was prescribed Prednisone
40mg for ten days and Neurontin 300-600mg at bedtime, and
permitted to continue work at full duty. (Tr. 404-05).
Plaintiff continued to experience low back pain which
radiated to her lower extremities in April (Tr. 403), May
(Tr. 402), June (Tr. 401), July (Tr. 400), August (Tr. 399)
and October 2009 (Tr. 398). In October 2009, Dr. Pasha opined
that plaintiff had reached maximal medical improvement of her
back symptoms unless she would consider an epidural
2, 2010, plaintiff presented to Backus Hospital reporting a
second injury from being rear-ended in her vehicle, resulting
in pain and tenderness in her neck and left shoulder. (Tr.
453-56). Plaintiff was diagnosed with cervical strain, sent
home in stable condition, and advised to return to her normal
activities gradually. (Tr. 454-56).
2010, plaintiff received a lumbar epidural injection at the
L5-S1 level, after which she reported that she experienced
about fifty percent improvement. (Tr. 396). In July 2010,
plaintiff reported that an epidural injection at ¶ 4-5
did not reduce her pain and she missed four or five days of
work. (Tr. 393). In August 2010, Dr. Pasha placed plaintiff
on light duty with restrictions, and referred her to Dr.
Kenneth Paonessa, an orthopedic surgeon, for a surgical
consultation. (Id.). That month, plaintiff underwent
a lumbar spine MRI and a cervical MRI. (Tr. 390-92). In
September 2010, Dr. Paonessa noted some bulging at the L3-4
and L4-5 level of plaintiff’s lumbar spine, but without
severe enough compression to recommend decompression and/or
fusion; he opined that plaintiff should continue with
conservative care. (Tr. 389). In plaintiff’s cervical
MRI, Dr. Paonessa identified a small bulge at C4-5 and a
significant disc problem with compression of the spinal cord
at C6-7; Dr. Paonessa recommended that plaintiff try a
cervical epidural injection and, if that did not improve her
pain, he would refer her for surgical treatment. (Tr. 388).
neck pain continued in September 2010, and Dr. Pasha ordered
an EMG and referred her to Dr. Tarik Kardestuncer, an
orthopedist at NOG. (Tr. 385). Dr. Kardestuncer performed a
physical examination and reviewed plaintiff’s EMG,
finding that plaintiff had “significant intrinsic
weakness” on the left side and decreased sensation in
the ulnar nerve distribution. (Tr. 383-84). Dr. Kardestuncer
opined that plaintiff had “severe findings” and
was in need of an ulnar nerve transposition. (Tr. 384).
awaiting this surgery, plaintiff continued to report
significant neck and low back pain in October 2010 (Tr.
381-82, 433), which sometimes required her to miss work (Tr.
381). Dr. Pasha opined that after she recovered from the
ulnar nerve transposition, he would schedule plaintiff for
cervical surgery with anterior surgical diskectomy and fusion
of C5-6 and C6-7. (Tr. 382, 433). Plaintiff underwent both
the left ulnar nerve transposition (Tr. 377-78, 428-32, 440,
444-47) and the anterior cervical diskectomy with fusion of
C5-6 and C6-7 (Tr. 421-32, 435-41) in December 2010.
the left ulnar transposition, plaintiff continued to report
numbness, tingling or pain in her left hand in January (Tr.
375), March (Tr. 372), April (Tr. 370), May (Tr. 367), and
July 2011 (Tr. 365). In May, Lisa Shea, Dr.
Kardestuncer’s PA-C, noted that plaintiff had weak left
side interosseous strength compared to her right side and
difficulty crossing her left, compared to her right, fingers.
(Tr. 367). In July 2011, Dr. Paonessa noted that plaintiff
had finished physical therapy but was still reporting a lot
of pain in the left side of her neck as well as numbness in
the fourth and fifth fingers of her left hand. (Tr. 365). Dr.
Kardestuncer opined that plaintiff’s hand symptomology
may be caused by problems in her neck (Tr. 372), while Dr.
Paonessa opined that this symptomology was due to an ulnar
nerve problem (Tr. 365, 370).
surgery in February 2011, plaintiff continued to report
significant low back pain that sometimes radiated to her left
groin and left knee. (Tr. 374). Dr. Pasha’s physical
examination found that plaintiff had painful internal and
external rotation of her left hip, and mild to moderate
tenderness in the lumbar area. (Id.). Dr. Pasha
opined that plaintiff had persistent low back pain, disc
protrusions at L3-4 and L4-5, and possible left lumbar
radiculopathy, and referred her for evaluation of possible
left hip internal derangement. (Id.). Plaintiff
reported ongoing severe low back pain to Dr. Pasha in March
2011, requiring her to miss two days of work. (Tr. 371). In
April 2011, Dr. Daniel Glenney conducted a normal hip
examination finding trochanteric bursitis on
plaintiff’s left hip. (Tr. 368-69). Dr. Glenney offered
plaintiff injections, but plaintiff declined because she
could not miss work for the potential increased pain
post-injection. (Id.). Plaintiff returned to Dr.
Pasha in August 2011 with continuing significant back pain
and left groin pain that radiated to the left lower
extremity; Dr. Pasha advised plaintiff to have an MRI of her
left hip and follow up with Dr. Glenney. (Tr. 364). On August
17, 2011, Dr. Glenney examined plaintiff and found no real
irritability of her hip, although she did have some pain over
the trochanteric flare. (Tr. 363). Dr. Glenney opined that
the location of plaintiff’s pain suggested a lumbar
radicular pain problem, and he deferred to Dr. Pasha on
plaintiff’s duty status. (Id.).
MEDICAL RECORDS AT START OF ALLEGED DISABILITY
August 19, 2011, plaintiff presented to Dr. Pasha in moderate
acute distress from lower back pain. (Tr. 362). Dr. Pasha
placed plaintiff on light duty with restrictions on lifting
weight at work. (Id.). Four days later, on August
23, 2011, Dr. Kardestuncer examined plaintiff for pain in her
left thumb. (Tr. 360-61). Plaintiff’s numbness had
improved since the operation, but she still had some
ulnar-sided hand numbness and pain in her left thumb, which
was getting worse and affecting her ADLs. (Id.). Dr.
Kardestuncer’s physical examination revealed mild
sensory deficits in the left ulnar nerve distribution, and
positive CMC crepitus and CMC grind tests in her left thumb.
(Id.). Dr. Kardestuncer diagnosed plaintiff with CMS
arthrosis and prescribed a custom molded orthosis for her
left thumb; he also discussed the possibility of treatment
with a cortisone shot or surgery, but plaintiff declined.
September 30, 2011, plaintiff presented to Dr. Pasha with low
back and groin pain. (Tr. 359). Dr. Pasha refilled
plaintiff’s Mobic and Zanaflex prescriptions, started
her on Neurontin 300mg at bedtime, and advised her to
continue home exercises and light duty restrictions at work.
(Id.). Plaintiff presented again to Dr. Pasha on
November 11, 2011 reporting she was still experiencing back
pain that radiated to her lower left extremity, but that she
was unable to get authorization from her insurer “to
see Dr. Salame[.]” (Tr. 358). Dr. Pasha observed
plaintiff was in mild acute distress, and he refilled her
prescriptions and advised her to continue with light duty.
November 21, 2011, plaintiff presented to Dr. Paonessa with
tingling in her left hand; a burning, weak feeling in the
back of her right shoulder blade; and some achiness in the
back of her shoulder and base of her neck. (Tr. 356-57). Dr.
Paonessa’s physical examination noted that plaintiff
was able to flex her neck forward to about 60 degrees and
extend to about 20 degrees, with 50 degree left and right
rotation. (Id.). Plaintiff was mildly tender to
palpation on her posterior neck, trapezius and upper thoracic
area. (Id.). She also experienced some numbness on
the fourth and fifth fingers of her left hand.
(Id.). Dr. Paonessa reviewed plaintiff’s
diagnostic imaging and opined that her neck had reached
maximal medical improvement. (Id.).
December 2, 2011, plaintiff returned to Dr. Pasha after an
independent medical examination [“IME”],
reporting that her insurer had still not authorized an
evaluation by Dr. Salame. (Tr. 355). Plaintiff reported that
she was experiencing moderate low back pain and was unable do
to her current job. (Id.). Dr. Pasha reviewed the
IME report done by Dr. Willets, who reported that plaintiff
can do her job and has reached maximal medical improvement;
Dr. Pasha opined that he wanted to wait for plaintiff to be
evaluated by Dr. Salame before opining on maximal medical
improvement and impairment ratings. (Id.). On
December 20, 2011, diagnostic imaging of plaintiff’s
lumbar spine was performed at Backus Hospital. (Tr. 420). Dr.
Nathaniel Dueker opined that plaintiff had mild to moderate
lower lumbar degenerative disk disease and facet changes.
February 16, 2012, plaintiff returned to Dr. Pasha reporting
that her most recent flare-up of low back pain was so severe
that she had to go to the emergency room; she also reported a
flare-up of neck pain. (Tr. 354). Plaintiff wanted to see Dr.
Paggioli for pain management. (Id.). Dr.
Pasha’s physical examination revealed mild to moderate
paralumbar muscle spasm and diffuse tenderness.
(Id.). The range of motion in both of
plaintiff’s hips was within normal limits.
(Id.). Dr. Pasha diagnosed plaintiff with chronic
low back pain with small disc protrusion at L3-4 and L4-5,
and referred her to Dr. Paggioli. (Id.). Dr. Pasha
opined that plaintiff was on permanent light duty, and he
rated her at 10% ...