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Valentin v. Berryhill

United States District Court, D. Connecticut

September 9, 2018



          Donna F. Martinez, United States Magistrate Judge.

         The plaintiff, Osvaldo Valentin, seeks judicial review pursuant to 42 U.S.C. § 405(g) of a final decision by the Commissioner of Social Security ("Commissioner") denying his applications for social security disability insurance benefits ("SSDI") and supplemental security income ("SSI"). The plaintiff asks the court to reverse the Commissioner's decision or, alternatively, remand for a rehearing. (Doc. #22.) The Commissioner, in turn, seeks an order affirming the decision. (Doc. #23.) For the reasons set forth below, the plaintiff's motion is denied and the defendant's motion is granted.[1]

         I. Administrative Proceedings

         In April 2013, the plaintiff filed applications for SSDI and SSI alleging that he had been disabled since June 2012. His applications were denied initially and upon reconsideration and he requested a hearing before an Administrative Law Judge ("ALJ"). On June 5, 2015, the plaintiff, represented by counsel, testified at the hearing. A vocational expert also testified. On July 24, 2015, the ALJ issued a decision finding that the plaintiff was not disabled. On April 13, 2017, the Appeals Counsel denied review, making the ALJ's decision final. In June 2017, the plaintiff commenced this action. On December 16, 2017, the plaintiff filed a motion for reversal or remand and on February 6, 2018, the defendant filed a motion to affirm. (Doc. ##23, 24.)

         II. Factual Background

         The plaintiff, born in 1963, was 48 years old at the time of his alleged onset date[2] of June 1, 2012. (R. at 34.) He had completed one year of college and also had some vocational training. (R. at 300.) Last employed in 2012 at Home Depot cutting lumber, he stopped working because "it was a seasonal job." (R. at 182.) Prior to that, he was employed as a laborer for various construction companies. (R. at 183.)

         A. Medical Evidence[3]


         On March 4, 2011, the plaintiff was seen at a foot clinic, complaining of right ankle pain for the past year, "worse on ambulation." (R. at 257.) He stated that the pain was a six on a scale of ten. The podiatrist's impression was right ankle sprain and pes planus (flat foot). (R. at 257.) An x-ray of the right ankle showed an old healed fracture of the distal fibula. There was "periosteal thickening of the distal fibula laterally and medial to the distal tibia which may represent heterotopic ossification from old trauma." There was "a small corticated calcified density medial to the medial malleolus and a posterior calcaneal spur with a linear lucency." (R. at 259.)

         On June 13, 2011, the plaintiff was seen by orthopedist Dr. Colleen Fay for pain in his right leg. (R. at 254.) X-rays of the plaintiff's right hip and knee revealed mild joint space narrowing. Dr. Fay assessed the plaintiff with osteoarthritis of the right hip and knee and referred him to physical therapy. (R. at 254-45.)

         In August 2011, the plaintiff had physical therapy. He said he had pain in his right ankle and that his right knee buckled. (R. at 243.) The ankle pain was inconsistent, dull, and worse in the evening after walking or at the end of a long day. (R. at 243.) He reported that his symptoms were affecting his daily life because he worked as a laborer and he was "not sure" if he could climb up ladders "because of the pain." (R. at 243.) Notes reflect that the plaintiff walked "with no assistance." (R. at 243.) On August 10, 2011, the plaintiff reported right knee pain rated at a six and right foot pain as a five on a scale of one to ten. (R. at 242.) He said his ankle pain was aggravated by walking. (R. at 242.) He had right ankle tightness and weakness in the right ankle, foot and knee. (R. at 242.) On August 12, 2011, the plaintiff reported continued right knee buckling secondary to weakness, but no pain. He said his symptoms were improving. (R. at 241.) On August 17, 2011, the plaintiff reported right knee pain with stiffness and weakness. (R. at 240.)


         On January 20, 2012, Dr. Fay referred the plaintiff for additional physical therapy. (R. at 251.)


         On February 25, 2013, an MRI of the plaintiff's brain revealed sinus disease, atrophy with ventriculomegaly[4] and sulcal dilatation, and hyperintensity periventricular and subcortical regions. (R. at 264, 288, 362.)

         On July 23, 2013, the plaintiff saw APRN Ravneet Bharara for a physical examination and to establish primary care. (R. at 314-19.) He reported having a tremor in his right hand for about six months and said that his hand shakes if he tries to hold something. (R. at 314.) The plaintiff also complained of slight pain in the bottom of his left foot especially when he takes a step. (R. at 314.) He denied any muscle aches, joint pain or stiffness. APRN Bharara observed that the plaintiff had normal gait, balance, strength, and muscle tone. (R. at 318.) She assessed him with obesity and tremor in the right hand. (R. at 318.)

         On August 12, 2013, the plaintiff was examined by Dr. Yakov Kogan, a state agency consultant. The plaintiff told Dr. Kogan that he had had a tremor in his "right upper extremity" for a year. The plaintiff said he noticed the tremor mainly when performing postural or intentional activities such as holding a cup of coffee. (R. at 265.) He took Primidone and Mysoline to manage his tremor. (R. at 265.) The plaintiff also reported "gait instability" for approximately one year. (R. at 265.) He gave a history of right hip, knee, and ankle pain for about one year, exacerbated with prolonged standing, walking and carrying. (R. at 265.) The plaintiff said he had had left heel pain with prolonged standing or walking for the past month. (R. at 265.)

         Dr. Kogan reviewed an MRI of the plaintiff's brain. On examination, Dr. Kogan observed that the plaintiff had a moderate to severe intention tremor of the right upper extremity on finger-nose-finger testing.[5] However, when the plaintiff was distracted (such as when asked to place his right pinky finger onto his left earlobe), the intention tremor "completely disappear[ed]." (R. at 266.) The plaintiff had no significant tremor when "manipulating his personal items or lacing his shoe laces." (R. at 266.) Dr. Kogan found no tremor of the left upper extremity or the bilateral lower extremities. (R. at 266-67.) The plaintiff's sensation was intact and he had no dysmetria[6] in the upper or lower extremities bilaterally. His gait was normal. (R. at 267.) Dr. Kogan noted that the plaintiff's right upper extremity tremor had "multiple non-organic features such as: 1) present with intention but not posturally, and 2) resolved with distraction." (R. at 267.) Dr. Kogan concluded that "[w]ork related limitations, therefore could not be established." (R. at 267.) Dr. Kogan found "no signs of parkinsonism (no resting tremor, no rigidity, no bradykinesia, and no gait instability)." (R. at 267.) With regard to the plaintiff's musculoskeletal system, Dr. Kogan noted that the plaintiff had "no range of motion deficits and no neurological deficits that limited sitting, standing, walking, bending, lifting, carrying, reaching, or fine finger manipulations." (R. at 267.) Dr. Kogan concluded that "[w]ork related activities involving standing, walking, and carrying are mildly limited on the basis of subjective right hip, knee, and ankle pain and left heel pain." (R. at 267.)

         On August 23, 2013, the plaintiff was seen by APRN Bharara. He reported that there was "no change" in his hand tremor and that he was having a hard time doing anything with his right hand -- he said he was not able to hold things, not able to sign his name, and dishes fell from his hand. (R. at 322.) The plaintiff also said that his right leg bothered him, especially when he walked. (R. at 322.) APRN Bharara assessed him with arthralgia[7] in right hip/knee and ankle and tremor in right hand and referred him to a neurologist. (R. at 323.)

         On September 4, 2013, state agency medical consultant Anita Bennett, M.D., reviewed the evidence in the file and concluded that the plaintiff retained the capacity to frequently lift and carry 25 pounds and occasionally 50 pounds, sit for six hours, stand/walk for six hours, and perform occasional fine manipulative tasks (fingering) with the right upper extremity. (R. at 387-93.) Dr. Bennett noted there was evidence of very mild osteoarthritis of the right hip and right knee, with no abnormal findings on examination, and there was also evidence of a mild intention tremor of the right hand. (R. at 392.) Dr. Bennett stated that the plaintiff's handwriting on the Activities of Daily Living form showed evidence of a tremor but was still legible. (R. at 392.)

         When seen by APRN Bharara on September 6, 2013, review of systems was negative, and physical examination was unremarkable. (Jt Stip ¶15.) She listed his active problems as: obesity; tobacco use disorder; and tremor. (R. at 324.) Xrays of the plaintiff's right hip and knee were unremarkable with no degenerative changes. (R. at 326-27.)

         In October 2013, APRN Bharara indicated on a State of Connecticut form for Medicaid and SAGA Cash Benefits that the plaintiff's diagnoses were tremors and obesity and that he would be unable to work for two to six months. (R. at 305.)

         On November 22, 2013, state agency medical consultant Lois Wurzel, M.D., reviewed the evidence in the file. She stated that the plaintiff had a "mild intention tremor of his right hand" that was "treated medically." (R. at 407, 410.) She further noted that imaging showed "evidence of old fractures and bone spurs of the right lower extremity." (R. at 407.) Dr. Wurzel determined that the plaintiff could frequently lift and/or carry 25 pounds and occasionally 50 pounds and sit, stand and/or walk 6 hours in an eight hour day. With regard to "fingering," the plaintiff was limited to "occasional fine manipulative tasks with his right upper extremity." (R. at 409.)

         On February 11, 2014, the plaintiff was examined by Dr. Jianhui Zhang, a neurologist. The plaintiff complained of bilateral hand tremors, right greater than left, for the past year. (R. at 329.) He noticed that the tremor worsened when he tried to reaching for things like cups or utensils, and he had trouble writing. (R. at 329.) He said the tremor subsided when he put pressure on his hand. (R. at 329.) The plaintiff told Dr. Zhang that he had trouble walking and was unsteady on his feet. (R. at 329.) He denied numbness or weakness. (R. at 329.) He reported using alcohol, but not on a daily basis.

         Dr. Zhang observed that the plaintiff's gait was normal. The plaintiff's balance, muscle tone, and motor strength in upper and lower extremities all were normal. Dr. Zhang saw "no involuntary movements." (R. at 330.) A sensory examination revealed intact pain and temperature sensation, and normal proprioception. (R. at 330.) The plaintiff's reflexes were 1 throughout, except for no ankle jerk or Babinski reflexes[8] bilaterally. (R. at 330.) The plaintiff's orientation, memory, attention, language, and fund of knowledge were normal. (R. at 330.) Dr. Zhang's assessment was "familial (benign essential) tremor, abnormal brain scan, and abnormality of walk." (R. at 330.) Dr. Zhang stated that there were "two separate issues: Tremor, appears to be benign essential tremor [and] abnormal gait, likely due to peripheral neuropathy giving decreased reflexes and abnormal sensation. He may have neuropathy secondary to ?ETOH[9] induced versus idiopathic or other causes." (R. at 330.) Dr. Zhang prescribed Primidone and Mysoline, and referred the plaintiff for a nerve conduction study of his legs to "assess neuropathy." (R. at 331.)


         On February 22, 2014, the plaintiff had an MRI of his brain, which showed "diffusely scattered white matter lesions most consistent with chronic demyelinating[10] plaque." (R. at 269.) It showed "a dominant subcortical lesion in the posterior left frontal lobe, which probably represented an area of active plaque or a recent infarct of approximately 2 to 4 weeks in age." (R. at 269.)

         An EMG in March 2014 of the plaintiff's upper extremities indicated mild carpal tunnel syndrome, left greater than right. (R. at 271.)

         On March 7, 2014, the plaintiff had a followup appointment with Dr. Zhang. (R. at 332.) Dr. Zhang noted that the plaintiff had "started on Mysoline for essential tremor" and that the plaintiff "thinks it helps partially." (R. at 332.) The plaintiff's gait was normal as were his balance, muscle tone, and motor strength in both upper and lower extremities. (R. at 333.) Dr. Zhang opined that the plaintiff's brain MRI could indicate ischemic disease[11] or demyelinating disease.[12] (R. at 333.) Dr. Zhang assessed tremor, which appeared to be benign essential tremor; and abnormal gait, for which he planned to rule out multiple sclerosis. (R. at 333.)

         When seen next on August 12, 2014, the plaintiff told Dr. Zhang that he thought the Mysoline was partially helping his tremor. He denied any side effects. (R. at 335.) Examination revealed that the plaintiff was "unsteady on gait, unable to walk on tip toes at right, mildly hemi-conducted gait at right." (R. at 336.)

         On September 11, 2014, the plaintiff completed a form for the Connecticut Department of Social Services. He listed his medical conditions as "arthritis right ankle, knee and hip" and a tremor "in his right hand." (R. at 292.) He reported that he lived alone. He could drive a car, but he walked or used Dial-a-Ride. (R. at 296.) He said that he was unable to work because his writing hand shook and it was hard for him to write or hit a nail with a hammer. (R. at 298, 302.) The form asked the plaintiff to assess how much time - "often," "sometimes" or "never" - he was able to do certain activities. The plaintiff indicated "often" for the activities of sitting, standing, walking, bending, lifting, grasping, pushing, and pulling. (R. at 299.) He stated that ...

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