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Elderkin v. Berryhill

United States District Court, D. Connecticut

February 5, 2018




         This action, filed under ' 205(g) of the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), as amended, seeks review of a final decision by the Commissioner of Social Security [“SSA”] denying plaintiff Social Security Disability Insurance benefits [“DIB”].


         On August 29, 2013, plaintiff applied for DIB benefits claiming that she has been disabled since February 8, 2012 due to fibromyalgia, anxiety, carpal tunnel syndrome, depression, high blood pressure, and endometriosis. (Certified Transcript of Administrative Proceedings, dated March 21, 2017 [“Tr.”] 249-51; see Tr. 129-30, 141-42, 279, 282, 297, 309). The Commissioner denied plaintiff's application initially and upon reconsideration. (Tr. 157-60, 163-65; see Tr. 128, 140, 161-62). Plaintiff requested a hearing before an Administrative Law Judge [“ALJ”] (Tr. 185-86; see Tr. 166-70, 187-88), and on July 8, 2015, plaintiff and Michael Laraia, a vocational expert, testified at a hearing before ALJ John Noel. (Tr. 83-127; see Tr. 203-36).[1] In a decision dated August 11, 2015, ALJ Noel denied plaintiff's request for benefits. (Tr. 17-32). On August 19, 2015, plaintiff filed a request for review of the ALJ's decision (Tr. 14-16; see Tr. 329), and on September 30, 2016, the Appeals Council filed its notice denying plaintiff's request for review, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 7-13).[2]

         On January 23, 2017, plaintiff commenced this action (Dkt. #1; see Tr. 1-3 (granting additional time to file civil action); see also Tr. 4-6), and on February 24, 2017, the parties consented to this Magistrate Judge and the case was transferred accordingly. (Dkt. #14). On April 10, 2017, defendant filed her answer and a copy of the Certified Administrative Transcript, dated March 21, 2017. (Dkt. #15).[3] On June 9, 2017, plaintiff filed her Motion to Reverse, or in the alternative, Motion to Remand for a Rehearing (Dkt. #17), attached to which is her brief in support and a joint Stipulation of Medical Facts. On August 9, 2017, defendant filed her Motion to Affirm, with brief in support. (Dkt. #19; see Dkts. ##18, 20).

         For the reasons stated below, plaintiff's Motion for Order to Reverse the Decision of the Commissioner, or in the alternative, Motion for Remand for a Rehearing (Dkt. #17) is denied in part and granted in part such that the matter is remanded consistent with this Ruling, and defendant's Motion to Affirm the Decision of the Commissioner (Dkt. #19) is denied in large part and granted in limited part.



         Plaintiff was born in 1967 and is fifty years old. (Tr. 279). Plaintiff is single (Tr. 87); she lives with her family part-time, and otherwise lives alone with her dog. (Tr. 88, 289). To “the best of [plaintiff's] ability[, ]” she cares for her mother, who is disabled, and she cares for her dog. (Tr. 289, 291).

         According to plaintiff, she only makes complete meals with assistance, and she can perform her own personal care “very carefully and slow due to pain and range of motion[.]” (Tr. 290-91). Plaintiff does laundry, dishes, sweeps, vacuums, dusts, and does “very minimal” yard work (Tr. 292), and she shops for her groceries and household necessities. (Tr. 293). She spends time watching television, taking “short” walks, and doing “minimal planting [and] gardening with help[.]” (Id.).

         Plaintiff reported that she gets “moderate to severe anxiety at times” when with family or friends, although she does go to homes of her friends and occasionally goes out to dinner. (Tr. 294). However, at her hearing, she testified that she had not gone out with friends in “[a]t least a year.” (Tr. 110-11). She drives, but “sometimes get[s] anxiety from it[]” (Tr. 88; see Tr. 109-10 (cannot drive distances)), and she has panic attacks when she is stressed, although she reported that she handles changes in routine “fairly well[.]” (Tr. 295). Her anxiety causes her to feel like she cannot breathe, and she shakes and cries. (Tr. 95). Additionally, her anxiety affects her social life such that she “always cancel[s]” when she has plans to get together with her friends. (Tr. 96).

         According to plaintiff, she can lift up to ten pounds, she is limited to standing, sitting and walking for brief periods of time due to her pain, and her hands cramp and become numb which causes difficulty when driving. (Tr. 294; see Tr. 102, 104-05 (she can lift about ten pounds, but her family does not let her lift because “they don't want [her] crying to them[]”)). She wears “wrist/arm braces for carpal tunnel [and] numbness” and has done so for more than ten years. (Tr. 295; see also Tr. 98-99). Plaintiff testified that she cannot do her hair, and she can “probably” walk a half mile, if she “push[ed] [her]self.” (Tr. 100). She cannot sit because she is restless, and she cannot sleep. (Tr. 101; see Tr. 114). She has pain in her back when she does dishes, and she does stretching exercises for her spine. (Tr. 102, 105-06). Additionally, she has pain in her left collarbone, and her neck. (Tr. 113). According to plaintiff, she cannot work because she cannot “even get out of bed every day[, ]” her hands cramp up and are “all twisted[, ]” and she is unable to “do much housework at all.” (Tr. 94). Plaintiff testified that when she has a flare-up of soreness, she is “in bed for a couple of days.” (Tr. 98).

         Plaintiff also testified that she suffers from depression (Tr. 109) and has gained almost fifty pounds. (Tr. 114). She takes or has taken Cymbalta, Gabapentin, Lisinopril, Lithium Carbonate, Verapamil, Diovan, Flexeril, Lyrica, Mobic, Norvasc, Oxycodone, Synthroid, Xanax, Lunesta and various vitamins. (Tr. 44, 285, 290).

         Plaintiff worked as an office manager for Pioneer Gas from August 2008 to February 2012 or 2013 (Tr. 284, 322; see Tr. 323), and Hocon Gas from January 1992 to August 2008. (Tr. 89, 284, 322; see Tr. 324). In her role as the office manager at Hocon Gas, plaintiff did accounting work and purchasing (Tr. 89), and for both employers, she supervised up to four people. (Tr. 323-24). She was also responsible for hiring and firing employees. (Id.). Plaintiff's ability to kneel, crouch, and stoop while working was limited due to pain (Tr. 323-24), and as of the time she worked at Pioneer Gas, her pain from fibromyalgia and arthritis had “gotten a lot worse[]” which caused her “anxiety [to] set in.” (Tr. 90; see Tr. 112). She was “let . . . go” from Pioneer Gas because she “just - - . . . could[ not] do the work anymore.” (Tr. 93).

         At her hearing, the vocational expert testified that a hypothetical person with the full range of medium work but who could only have occasional contact with the public, could not perform plaintiff's past work as an office manager (Tr. 118), but could work as a machine operator or cleaner, and could perform packaging work. (Id.). He also testified that if such a person was limited to only sitting, standing or walking for one hour at a time, with occasional balancing, stoopping, kneeling, crouching, and crawling, and frequent reaching with the left upper extremity, frequent fingering with both extremities, frequent climbing of ramps or stairs, never climbing ladders, and only occasional contact with the public, such person could not perform plaintiff's past work, nor could such person perform medium work. (Tr. 119-20). However, such a person could perform some light level work such as assembly positions, quality control work, or work as a machine tender, but the number of jobs would be diminished based on sitting, standing, and walking limitations. (Tr. 120-21). Similarly, at the sedentary level, such a person could perform the work of a quality control worker, assembler, or machine tender. (Tr. 121). If such a hypothetical person could perform a full range of light work, but only have occasional contact with the public, such person could be a machine operator, assembler, or packager. (Tr. 122). The number of those jobs would be reduced if such person was limited to a sedentary restriction. (Tr. 122-23). The vocational expert added that if such a person was off task fifteen percent of the time, employment would be precluded. (Tr. 123).


         As discussed above, plaintiff's alleged onset date of disability is February 8, 2012; accordingly, while plaintiff's medical records date back to 2003 (see Tr. 409, 478, 522-654), plaintiff's treatment from 2012 forward will be discussed below.[5]

         Plaintiff was seen on January 4, 2012 at the Arthritis Center of Connecticut's Rheumatology Division, under the care of supervising physician Brian Peck, MD, for fibromyalgia; at that time, she was “[o]verall well[, ] doing well pain wise.” (Tr. 347). Five days later, plaintiff was seen by her gynecologist who noted that plaintiff was healthy overall, with no complaints, and her musculoskeletal system, extremities, and neurology were within normal limits. (Tr. 363).[6] Plaintiff returned on February 4, 2012 to Jon Lum, PA-C, under the supervision of Dr. Peck, with complaints of back pain that she had “for quite a while[, ] however [the pain was] not significant enough to warrant [a] cortisone injection.” (Tr. 346, 521). Plaintiff was still experiencing anxiety at work, and muscle spasms were noted, as well as tenderness in the upper trapezius muscle groups. (Id.).

         On February 29, 2012, the first date following plaintiff's alleged onset date of disability, plaintiff was seen by Lum for low back pain and fibromyalgia. (Tr. 345, 520). Plaintiff reported that her fibromyalgia was so severe at times that she was unable to function. (Id.). Upon examination, muscle spasms were noted throughout “the entire cervical, thoracic and lumbosacral paravertebral spinal muscles[, ]” as well as “tender point areas noted in all of the fibromyalgia tender point areas[.]” (Id.).[7] A month later, plaintiff returned to the Arthritis Center with complaints of back pain and increased anxiety. (Tr. 344, 519). She reported difficulty at her job and with her family, and Lum noted that plaintiff's medication “does help her cope with the discomfort, and she's able to function in and around her community.” (Id.). At her appointment on April 25, 2012, Lum noted that plaintiff's back pain “comes and goes, and is dependent on the weather, as well as with activities.” (Tr. 343, 518). He noted that her pain “could be weather related[, ]” and that she is experiencing a lot of anxiety at work, but Xanax “does help her.” (Id.).[8] On May 24, 2012, Lum noted that plaintiff's pain “has slowly been getting worse[]”; she was assessed with chronic low back pain, degenerative disc disease, osteoarthritis of the right and left knees, and fatigue and increased pain, with etiology to be determined. (Tr. 342, 517). A month later, plaintiff was assessed with acute back pain secondary to muscle spasms, and fibromyalgia. (Tr. 341, 516). On July 19, 2012, plaintiff reported increased back pain resulting from a long car ride on a then-recent vacation. (Tr. 340, 515). A single tender point was identified along the left thoracic paravertebral spinal muscles, and a cortisone injection was administered. (Id.). Lum also noted that plaintiff has “had anxiety for quite a while. It mainly stems from her place of business.” (Id.). On August 15, 2012, plaintiff reported that the injection helped, but at the time of the appointment, she was feeling “a little more pain than she did in the past.” (Tr. 339, 514). She also reported that her pain medication “help[ed] [her] cope better with the discomfort, and she [was] able to function in and around the community after taking it.” (Id.). Upon examination, there were “muscle spasms noted through the entire cervical thoracic and upper trapezius muscle groups.” (Id.).

         When plaintiff returned to Lum in September, she reported that her current pain level was a nine on a scale to ten. (Tr. 338, 513). On October 11, 2012, plaintiff continued to report generalized pain with muscle spasms; she was assessed with chronic low back pain, degenerative disc disease and fibromyalgia. (Tr. 337, 512). On November 7, 2012, plaintiff's chief complaints were generalized pain and anxiety. (Tr. 336, 511). On December 4, 2012, Lum assessed plaintiff with chronic low back pain and degenerative disc disease. (Tr. 335, 510).

         As of January and February 2013, plaintiff reported that the Oxycontin was not completely relieving her discomfort, and her anxiety, which was “mostly work related[, ]” continued. (Tr. 333-34, 508-09). On June 11, 2013, plaintiff complained to Lum of chronic low back pain, with fibromyalgia and anxiety. (Tr. 332, 507). Lum noted plaintiff's “[h]istory of fibromyalgia, [and] [i]ncrease[d] global pains.” (Id.). He added that at times, plaintiff is “[u]nable to function.” (Id.). Plaintiff continued to report anxiety, and she also reported that she was “recently laid off.” (Id.). A month later, plaintiff reported anxiety over unemployment, and Lum noted that plaintiff's pain medication relieved her discomfort and after taking her medication, she was “able to function in and around the community[.]” (Tr. 331, 506). At her appointment on August 12, 2013, plaintiff's chief complaint was acute back pain and depression. (Tr. 330, 505). On September 12, 2013, plaintiff no longer had insurance and was paying cash for her appointments; her unemployment and lack of insurance caused anxiety. (Tr. 504). At that point, plaintiff was “[c]ontemplating disability.” (Id.). A month later, on October 15, 2013, plaintiff's chief complaint to Lum was her chronic low back pain, which “[u]fortunately, [was so] severe [that] she [was] unable to work.” (Tr. 503). Lum also noted plaintiff's continued anxiety and depression over the loss of her job, and the loss of income. (Id.). Plaintiff returned on October 22, 2013 for Lum to complete her disability paperwork. (Tr. 502). Lum's note reflected that plaintiff was “[u]nable to perform duties at work. She[] [was] just having [a] hard time physically and mentally.” (Id.). On November 11, 2013, her complaints regarding her chronic low back pain were consistent with her prior appointments. (Tr. 501). A month later, on December 12, 2013, plaintiff's chief complaint to Lum was chronic pains, as well as increasing anxiety. (Tr. 499-500).

         Plaintiff returned to Lum on January 16, 2014 for her chronic back pain; she requested an injection, and Lum discontinued Xanax and started plaintiff on Valium. (Tr. 498). On January 22, 2014, plaintiff was seen for complaints of left shoulder pain; plaintiff requested a cortisone injection. (Tr. 497). Upon examination, Lum found muscle spasms throughout plaintiff's cervical and upper trapezius muscle groups, and identified two tender points in the left upper trapezius muscle groups before administering a cortisone injection. (Id.). Plaintiff was seen again on February 11 and March 11, 2014 with continued complaints of back pain and anxiety. (Tr. 495-96). After identifying muscle spasms throughout plaintiff's cervical, thoracic, and upper trapezius muscle groups, and a single tender point between the scapula and thoracic spine, Lum administered a cortisone injection on March 17, 2014. (Tr. 494).

         On April 16, 2014, an MRI of plaintiff's low back revealed a small broad based central disc protrusion at ¶ 1-L2, with mild degenerative facet changes at this level but no evidence of nerve root compression. (Tr. 414). Additionally, at ¶ 2-L3, there was a mild disc bulge with degenerative facet changes; at ¶ 3-L4, there was minimal disc bulge and degenerative facet changes; and, at ¶ 5-S1 there was a small central disc protrusion, and minimal hypertrophic degenerative changes, but no evidence of nerve root compression. (Id.). The impression was “[m]ild degenerative changes throughout the lumbar spine. Small dis[c] protrusions at ¶ 1-2 and L5-S1. No. evidence of neural compromise.” (Id.).

         On May 6, 2014, a gynecology note (Tr. 435-37) reflected that plaintiff did not complain of any fatigue, malaise or chronic stress conditions, but also noted that “Neurology: Positive for headaches, numbness, trouble walking, sensory symptoms and motor symptoms[, ]” as well as positive for “depression, anxiety/panic, psychiatric illness and emotional distress.” (Tr. 435). Additionally, plaintiff was “[p]ositive for muscle weakness, swelling/muscle pain, joint pain, leg cramps and back ache.” (Id.). Seven days later, plaintiff was seen by Matthew Letko, PA-C at the Arthritis Center for acute back pain. (Tr. 408). Letko noted plaintiff's history of fibromyalgia syndrome and diffuse myalgias, and noted that plaintiff remained on medications for pain management which improved her overall pain level. (Id.). An x-ray of plaintiff's lumbar spine taken the same day showed scoliosis, convex between T2 and 3, and some ...

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