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Lawson v. Berryhill

United States District Court, D. Connecticut

March 20, 2018



          Joan Glazer Margolis United States Magistrate Judge

         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 Disability Insurance Benefits [“DIB”].


         On January 27, 2012, plaintiff applied for DIB benefits claiming that he has been disabled since August 14, 2011 due to anxiety, severe pain in his back and legs, depression, and diabetes. (Certified Transcript of Administrative Proceedings, dated March 31, 2017 [“Tr.”] 70-71, 86-87; see Tr. 90, 183-85, 203). The Commissioner denied plaintiff's application initially, and upon reconsideration. (Tr. 100-06). On or about December 3, 2013, plaintiff requested a hearing before an Administrative Law Judge [“ALJ”](see Tr. 108-09; see also Tr. 107, 110-11), and on February 10, 2015, plaintiff and Joseph Goodman, a vocational expert, testified at a hearing before ALJ Matthew Kuperstein. (Tr. 33-68; see Tr. 112-48).[1]Plaintiff proceeded without counsel. (See Tr. 36-40; see also Tr. 149). In a decision dated August 6, 2015, ALJ Kuperstein denied plaintiff's request for benefits. (Tr. 11-26). On October 1, 2015, plaintiff filed a request for review of the ALJ's decision (Tr. 7-8; see Tr. 9-10), and on July 29, 2016, an attorney from the Herman Law Group submitted a memorandum in support of plaintiff's appeal. (Tr. 301-05). On December 23, 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. 1-3; see Tr. 4-6).

         On February 17, 2017, plaintiff commenced this current action (Dkt. #1), and on March 30, 2017, the parties consented to this Magistrate Judge's jurisdiction and the case was transferred accordingly. (Dkt. #14). Thereafter, on April 26, 2017, defendant filed her answer and copy of the Certified Administrative Transcript, dated March 31, 2017. (Dkt. #18).[2] On June 15, 2017, plaintiff filed his Motion for Judgment on the Pleadings, and brief in support. (Dkts. ##24-25; see also Dkts. ##22-23). On October 25, 2017, defendant filed her Motion for Judgment on the Pleadings (Dkt. #33), and four days later, on October 29, 2017, plaintiff filed his reply brief. (Dkt. #34).

         For the reasons stated below, plaintiff's Motion for Judgment on the Pleadings (Dkt. #24) is granted in part and denied in part, and defendant's Motion to for Judgment on the Pleadings (Dkt. #33) is denied in part and granted in part.



         Plaintiff is forty-seven years old (Tr. 70), and lives alone in an apartment. (Tr. 48, 189). He completed high school, and at the time of his hearing, he was serving bread, changing light bulbs, vacuuming, and dusting as a volunteer at the Salvation Army about once a week; plaintiff has served as a volunteer at the Salvation Army since August 2011. (Tr. 49-50, 203-04). According to plaintiff, he volunteers there “maybe 20, 25 hours a month.” (Tr. 50).

         On an average day, plaintiff watches television, goes shopping, and cares for his pet parakeet. (Tr. 189; see Tr. 57, 193). He prepares his own meals, performs household chores, and goes outside every day. (Tr. 191-92). According to plaintiff, his impairments affect his ability to walk, sit, and stand for long periods of time. (Tr. 190). When he walks, he needs to “stop and rest a bit because of [his] back and right [ankle].” (Tr. 193; see also Tr. 194). Plaintiff testified that if he is “lucky, [he] could sit for maybe [twenty] minutes to a half . . . hour, [and] stand maybe [fifteen] minutes, [twenty] minutes.” (Tr. 54). Additionally, he suffers from migraine headaches two to three times a month which affect his speech and vision. (Tr. 57-58, 60). Plaintiff has been prescribed Imitrex which reduces the intensity of his migraine pain. (Tr. 59). Plaintiff also suffers from depression. (Tr. 60).

         Plaintiff takes or has taken Metformin, Glyburide, Lisinopril, Propranolol, Clonazapam, Ibuprofen, Lantus Solostar, Klonopin, and Flexeril (Tr. 191, 206, 261, 270, 275, 279-80, 282; see Tr. 640), and he receives five or six cortisone injections each year. (Tr. 279).

         Plaintiff worked in the shipping and receiving department of Goldenrod Corporation from 1994-2000 (Tr. 276), and then as a custodian for Col-Linx from 2002-2003 (Tr. 53-54; see Tr. 164-65, 168, 178-79, 198, 276 (2001-2003)), and for Bozzuto's in 2004-2005 (Tr. 53; see Tr. 164, 168, 177-78, 199). From 2006 to 2012, plaintiff worked as a custodian at the Salvation Army; he also drove a vehicle to pick up and drop off donations, as well as pick people up for Sunday services. (Tr. 51-52; see Tr. 153-54, 162-63, 168, 175-76, 200, 205, 212-13, 215, 276 (2008-2012), 277 (2007-2012), 283 (2007-2012)).

         Plaintiff testified that he is disabled due to an injury to his back on August 14, 2011; he continued to work after he was injured but he stopped working in February 2012 due to back pain. (Tr. 46-47, 52). In 2013, 2014 and 2015, plaintiff volunteered with the “kettle work” for the Salvation Army. (Tr. 52; see Tr. 175, 283).

         A vocational expert, appearing telephonically, testified at plaintiff's hearing that plaintiff's past work is classified as medium unskilled and medium semi-skilled work. (Tr. 61-62). In response to a hypothetical posed by the ALJ, the vocational expert opined that an individual limited to light exertional work, without strict time or production requirements, without collaboration of coworkers, and with no more than minor changes in the work environment could perform the work of a “cleaner custodian[.]” (Tr. 62-63). However, such an individual could not perform the work of a “cleaner custodian” if limited to work that did not involve constant standing and/or walking, and if such an individual was limited to sedentary work, such an individual could work as a document preparer, screener, and ticket checker. (Tr. 63-64). Additionally, such a hypothetical individual could perform the foregoing three jobs even with the additional limitations of occasional climbing, balancing, stooping, kneeling, crouching or crawling, and having to avoid concentrated exposure to hazards such as the operation of motor vehicles or heights or moving machinery. (Tr. 64). However, according to the vocational expert, if the individual was further limited to only frequent handling, fingering, or feeling, the ticket checker position would be eliminated, but such an individual could perform the work of a polisher. (Tr. 64-65). A limitation of occasional handling, fingering, or feeling with the above-referenced combination of limitations would preclude all work. (Tr. 65). The vocational expert also testified that if the individual was off-task for more than ten percent of the workday, in addition to regularly scheduled work breaks on a regular basis, that individual could not perform any work. (Tr. 66). However, according to the vocational expert, a hypothetical person limited to sitting for thirty minutes and standing for twenty minutes at a time, could perform any of the identified occupations. (Tr. 66-67).

         B. MEDICAL RECORDS[3]

         Plaintiff alleges that he has been disabled since August 14, 2011. (Tr. 70-71). Accordingly, although the Court has reviewed the entire administrative record, the Court limits its discussion of plaintiff's medical history to the relevant time period as addressed below.[4]


         Plaintiff was seen by Dr. Gabriella Gellrich at the Community Health Center [“CHC”] on May 16, 2011 for “recurrent sciatica[]” and complaints of a headache. (Tr. 328-29, 567-68). Plaintiff returned to Dr. Gellrich on November 7, 2011 for lower back pain and right ankle pain; his medical record notes that he is overweight; he “[d]oes not follow [a] low fat diet[]”; and his back pain was “now interfering with his job.” (Tr. 324-25, 563-64). On January 18, 2012, plaintiff was seen by APRN Debra Dresden at CHC for pain management for his back. (Tr. 321-23, 560-62). Plaintiff had “poor hygiene[, ]” and “spasm of [the] lumbar paraspinals, negative SLR test, [and] no spinal tenderness[.]” (Id.). On February 28, 2012, plaintiff was seen by Dr. Gellrich for back and right ankle pain; he was diagnosed with herniated disc syndrome. (Tr. 319-20, 558-59). Three weeks later, on March 19, 2002, plaintiff was seen by Dr. Gellrich for migraines. (Tr. 317-18, 556-57). Two days later, plaintiff returned to Dr. Gellrich complaining of “severe back pain[]” after cleaning his apartment; he also presented with DSS paperwork for Dr. Gellrich to complete. (Tr. 315-16, 554-55).

         On April 18, 2012, Dr. Gellrich noted that plaintiff continued to gain weight after he stopped working, but that his back pain “somewhat improved.” (Tr. 353-54, 552-53). Plaintiff underwent an MRI of his lumbar spine on April 26, 2012, which revealed “[g]rade 1 anterolisthesis L5-S1 due to bilateral spondylolysis of L5 and facet arthrosis[;] [d]iffuse spondylotic disk bulging asymmetric to the left[;] [s]evere left foramen stenosis with impingement upon existing left L5 root[;] [and] [m]oderate right foramen stenosis.” (Tr. 586). On May 2, 2012, Dr. Gellrich noted that plaintiff's MRI was “significant for nerve impingement at ¶ 5.” (Tr. 349-50, 548-49). Plaintiff returned with DSS paperwork on July 10, 2012; he continued to gain weight and did not have “much improvement in [his] functional status after completing physical therapy.” (Tr. 343-44, 542-43; see generally Tr. 605 (May 2012 physical therapy record)).

         On February 11, 2013, plaintiff was seen by Dr. Gellrich for right shoulder pain that began a month earlier. (Tr. 534-55). Plaintiff was unable to extend his arm into the air; he was referred for an MRI. (Tr. 534). Plaintiff returned to Dr. Gellrich on March 27, 2013 for medication refills and right shoulder pain, for which he underwent an MRI on February 23, 2013. (Tr. 530-31; see Tr. 532-34, 583-84). Plaintiff had limited range of motion, and right rotator cuff tendinopathy with partial thickness tearing of his right subscapularis tendon. (Tr. 530; see Tr. 583-84). Plaintiff was referred for physical therapy. (Tr. 530; see generally Tr. 604, 606 (April-May 2013 physical therapy records)).

         Plaintiff was seen for back pain and right shoulder pain on June 18, 2013. (Tr. 528-29). Upon examination, he had spasm of lumbar paraspinals, and it was noted that he had steroid injections in his back;[5] he was referred for physical therapy. (Id.).

         Plaintiff was seen at the CHC by APRN Wagner for complaints of back pain on July 2, 2013, and again on August 12, 2013. (Tr. 503-04, 518-20). On July 2, 2013, plaintiff rated his pain as a seven on a scale to ten. (Tr. 518). At his August appointment, he had mild pain with full back flexion and negative straight leg testing. (Tr. 503-05). He was also referred for a brain MRI to rule out a TIA two days prior. (Tr. 504). In September 2013, plaintiff underwent an MRI for a “sudden onset severe headache, ” the results of which were normal. (Tr. 490-91; see Tr. 581-82).

         On October 2, 2013, plaintiff was seen at Physical Medicine and Rehabilitation [“PMR”] by Dr. Beth Aaronson for his low back pain that occasionally radiated to his left knee. (Tr. 637-39). On October 7, 2013, plaintiff was seen for his right shoulder pain which was “not too severe at [that] point[.]” (Tr. 595). Plaintiff was seen on October 29 and November 12, 2013 by Dr. Aaronson for his low back pain; he reported side effects from pain medications, and complained of increased pain when walking. (Tr. 633-36). On December 3, 2013, plaintiff returned to Dr. Aaronson for his low back and leg pain. (Tr. 592-94, 631-32). Plaintiff had bilateral muscle spasms; he was assessed with lumbar radiculopathy. (Tr. 593, 632).

         On January 9, 2014, plaintiff was seen at the Western Connecticut Health Network Orthopedic Clinic [“Western Orthopedic Clinic”] for a followup evaluation of his right shoulder pain. (Tr. 591). On examination, plaintiff had full range of motion and some “minimal tenderness to palpation.” (Id.). Plaintiff returned to PMR on February 18, 2014 for back and left leg pain; he reported the most pain during and after walking, and increased pain when sitting. (Tr. 628-30). On February 27, 2014, plaintiff underwent an MRI of his lumbar spine, the results of which revealed “[s]table grade 1 anterolisthesis L5-S1 secondary to L5 spondyloysis and facet arthropathy[, ]” as well as “[s]table diffuse posterior disc osteophyte complex extending to the left resulting in severe left neural foraminal stenosis with probable impingement upon the exiting left L5 nerve root, unchanged[;] [and] [s]table moderate right neural foraminal stenosis.” (Tr. 579).

         On March 25, 2014, plaintiff reported to PMR that his pain level was seven on a scale of ten and it increased when walking. (Tr. 625-27). On May 6, 2014, plaintiff reported that steroids did not help his back pain and he refused to try pain medications, but he reported that he was still walking two to three miles a day. (Tr. 622-24). On June 10, 2014, plaintiff reported some improvement for his back pain with physical therapy. (Tr. 618-21). On October 7, 2014, plaintiff returned to PMR to report that his back pain had “gotten worse[]” and that his injections only lasted ...

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