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McCarthy v. Colvin

United States District Court, D. Connecticut

January 22, 2018

DONNA MARIE MCCARTHY
v.
CAROLYN W. COLVIN,[1]ACTING COMMISSIONER OF SOCIAL SECURITY

          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 COMMISSIONER

          JOAN GLAZER MARGOLIS, UNITED STATES MAGISTRATE JUDGE.

         This 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 [“DIB”].

         I. ADMINISTRATIVE PROCEEDINGS

         On July 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).[2] 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. (Tr. 1-6).

         On October 17, 2016, plaintiff filed her complaint in this pending action (Dkt. #1), and on December 22, 2016, defendant filed her answer. (Dkt. #10).[3] 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),[4] 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. ##21-23).

         For the 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.

         II. FACTUAL BACKGROUND

         A. HEARING TESTIMONY AND ACTIVITIES OF DAILY LIVING

         At the 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).

         Plaintiff 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, 79).

         Plaintiff “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).

         Plaintiff 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. (Tr. 77-78).

         The 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).

         B. MEDICAL RECORDS

         The 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.

         1. MEDICAL RECORDS PRECEDING ALLEGED ONSET OF DISABILITY

         Starting 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).

         Prior 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 injection. (Id.).

         On June 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).

         In June 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).

         Plaintiff’s 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).

         While 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.

         After 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).

         After 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.).

         2. MEDICAL RECORDS AT START OF ALLEGED DISABILITY

         On 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. (Id.).

         On 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. (Id.).

         On 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.).

         On 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. (Id.).

         On 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% ...


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