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Bozzuto v. Colvin

United States District Court, D. Connecticut

September 10, 2018

BERNADETTE BOZZUTO, Plaintiff,
v.
CAROLYN COLVIN, Acting COMMISSIONER OF SOCIAL SECURITY, Defendant.

          RULING AND ORDER

          Donna F. Martinez United States Magistrate Judge

         The plaintiff, Bernadette Bozzuto, seeks judicial review pursuant to 42 U.S.C. § 405(g) of a final decision by the Commissioner of Social Security ("Commissioner") denying her application for social security disability insurance benefits. The plaintiff asks the court to reverse the Commissioner's decision or, alternatively, remand for a rehearing. (Doc. #14.) The Commissioner, in turn, seeks an order affirming the decision. (Doc. #15.) For the reasons set forth below, the plaintiff's motion is denied and the defendant's motion is granted.[1]

         I. Administrative Proceedings

         In August 2012, the plaintiff filed an application for social security disability benefits alleging that she had been disabled since August 1, 2011, her onset date.[2] Her date last insured was August 2013.[3] (R. at 277.) The plaintiff's application was denied initially and upon reconsideration. She requested a hearing before an Administrative Law Judge ("ALJ"). On January 20, 2015, the plaintiff, represented by counsel, testified at the hearing. A vocational expert and a medical expert also testified. On February 25, 2015, the ALJ issued a decision finding that the plaintiff was not disabled at any time from August 1, 2011, her alleged onset date, through December 31, 2013, her last date insured. (R. at 14-26.) The ALJ's decision became final on April 28, 2016, when the Appeals Council declined further review. This action followed.

         II. Factual Background

         The plaintiff, born in 1971, was 40 years old at the time of her alleged onset date of August 1, 2011. (R. at 53.) She has a college education and lives with her husband. (R. at 319.) She was last employed in 2008 as a residential counselor in a group home for young boys. (R. at 36, 218.) Before that, she worked as an "ADL specialist" working with adults with mental illness. (R. at 37.) She also was previously employed as a personal trainer.

         A. Medical Evidence

         The record contains extensive medical evidence predating the plaintiff's August 2011 alleged onset of disability. 2004 In November 2004, the plaintiff saw Dr. Lane Spero, an orthopedist, for complaints of pain in her low back and right hip. (R. at 322.) An MRI of the lumbar spine revealed "L3-4 and L4-5 disc bulges, with small L4-5 annular tear but no evidence of disc herniation or nerve root compression." (R. at 324.) Dr. Spero administered a lumbar epidural steroid injection which provided some relief. 2005 On January 5, 2005, the plaintiff saw gynecologist Dr. Anthony Luciano for complaints of pelvic pain. Dr. Luciano noted that "[a]tlhough the [plaintiff] is being treated as if she had endometriosis," he thought the pain was "mostly non-gynecologic in nature" and recommended that the plaintiff see a rheumatologist. (R. at 534.)

         On January 26, 2005, the plaintiff had a followup appointment with the orthopedist, Dr. Spero. Dr. Spero noted that the plaintiff's "flexion and extension" were "somewhat diminished." (R. at 318.) She had "tenderness over her right buttock in her right sciatic notch," which caused pain down her right leg, stopping at her knee. She had a positive straight leg raise on the right.[4] She had "no pain with range of motion of her hips." Dr. Spero concluded that "[m]otorwise she's completely intact." (R. at 318.)

         On February 28, 2005, the plaintiff told Dr. Spero that she had been in a motor vehicle accident and had pain in her left hip, the left side of her neck, and on "the left side of her low back and ribs." (R. at 316.) The plaintiff said she had not been able to work because of the pain. On examination, she had full range of motion of her cervical spine. She had "significant tenderness" over the left side of her back. Dr. Spero observed that the plaintiff had "spasm over her musculature and she does have some pain with ROM [range of motion] of her left hip. Motorwise in her lower extremities, she is completely intact as well." (R. at 317.) Dr. Spero recommended physical therapy and no work for 10 days, commenting that he hoped "she will be ready to go back to work sooner than that." (R. at 317.)

         A week later, the plaintiff told Dr. Spero that her leg pain had improved but that she still had pain in her hip. (R. at 314.) Dr. Spero noted that the plaintiff had "some tenderness in her right greater trochanter."[5] She had no pain with range of motion. Dr. Spero stated that "neurologically [the plaintiff is] completely intact in her right lower extremity" and that "in terms of her lumbar spine, she doesn't really have any pain with flexion, extension and lateral bending." (R. at 314.) He stated that she was "making progress, although it is slow" and recommended physical therapy for her right leg. (R. at 314.) Later that month, the plaintiff told Dr. Spero that "the left side of her low back and her left hip" were better but that she had "pain in the left side of her neck and her left scapula." The pain was "only occasional," however, and when "she lays down, a lot of the symptoms in her neck and her left scapula feel better." (R. at 312.) On examination, the plaintiff had "full range of motion of both her shoulders"; "her motor exam in both of her upper extremities [was] 5/5;"[6] and "her reflexes were "2[7] and symmetric at her biceps bilaterally." (R. at 312.) Her left triceps reflex was absent and her right triceps reflex was 2. (R. at 312.)

         In April 2005, Dr. Spero observed that the plaintiff "has significant tenderness from trochanteric bursitis."[8] She had no pain with resisted abduction of her right hip and "motorwise, she's completely intact." (R. at 310.) The plaintiff could heel and toe walk. Her flexion and extension were somewhat diminished. Her motor exam was 5/5 and her reflexes were 2 and symmetric at the triceps and biceps bilaterally. An MRI of her cervical spine showed some degenerative changes at ¶ 4-5 and C5-6 but no disc herniation. (R. at 308, 325.) Dr. Spero recommended physical therapy for her neck and indicated he was "going to keep her out of work until we can get this under better control." (R. at 308.) In May 2005, the plaintiff said her hip was better but "not completely better." (R. at 306.) On examination, Dr. Spero observed that the plaintiff "still had significant tenderness over her greater trochanter." Her gait was normal. (R. at 306.) On June 27, 2005, Dr. Spero noted that the plaintiff had no pain with range of motion with her hip. She had "some mild tenderness. Neurologically, [she] is completely intact. She doesn't have significant pain with resisted abduction." (R. at 302.) On July 18, 2005, Dr. Spero observed that the plaintiff had "good range of motion" and that "[n]eurologically, she is completely intact in both of her upper extremities and her reflexes are intact. In terms of her lower extremities, she has a mildly positive straight leg raise on the left and some pain with range of motion of her left hip. She has some tenderness over her greater trochanter but it is much better." (R. at 300.) Dr. Spero opined that the plaintiff was "making significant progress with therapy" and could "return to work 4 hours a day, every other day, with no lifting more than 10 lbs." In August 2005, the plaintiff told Dr. Spero that she had not returned to work because her employer did not have light duty work available. Dr. Spero "want[ed] her to continue with light duty" and resume "doing some sort of work." (R. at 298.) When seen in October 2005, she said she had some pain in her right hip but that she "is progressively getting better." (R. at 296.) On examination, she could heel and toe walk "without a problem. Flexion and extension are somewhat diminished. She still has tenderness over her right greater trochanter but motorwise she's intact in both of her lower extremities. She doesn't have any pain with range of motion of her hips." (R. at 296.) In December 2005, the plaintiff reported pain radiating into her left hip. (R. at 294.) Dr. Spero noted that she had significant tenderness over her left sacroiliac joint. She could heel and toe walk without a problem and her flexion and extension were good.

         2006

         In January 2006, Dr. Spero administered a steroid injection to the plaintiff's left sacroiliac joint. (R. at 293-94.) In March 2006, the plaintiff told Dr. Spero that the injection had been "quite helpful." He thought she was "doing ok" and told her to follow up if the pain returned. (R. at 291.) In September 2006, the plaintiff complained of pain in the left side of her neck, radiating into her ear and jaw. (R. at 289.) She said that her hip pain had not completely resolved but was "definitely livable." Dr. Spero noted that the plaintiff had "pretty good range of motion. It is somewhat diminished, especially with extension. She does not really have any tenderness. Straight leg raising still gives her a little bit of discomfort. Otherwise, she has pretty good range of motion of her hip and her motor exam is 5/5." (R. at 289.) As to her cervical spine, the plaintiff had "pain with extension." Her motor exam was "5/5 including her deltoid, triceps, biceps, wrist extensors/flexors and intrinsics." Dr. Spero assessed her with a 5% partial permanent impairment of her lumbar spine.

         2008

         On May 22, 2008, the plaintiff was examined by Dr. Joel Geffin, an ophthalmologist, who assessed her with optic neuritis.[9](R. at 328.)

         2009

         In February 2009, the plaintiff was seen by Dr. Kenneth Kaplove, a neurologist. She told Dr. Kaplove that her right eye was "90% back to full function" and that "it waxes and wanes especially in the heat." (R. at 339.) She said she had a tremor "especially with writing or plucking an eyebrow." Dr. Kaplove found that the plaintiff's muscle strength was "5/5 throughout. Marginal sustention tremor which dissipates with distraction. Normal tone and muscle bulk were present in all extremities." Her reflexes were "2 throughout upper and lower extremities." Her gait "was normal on heels, toes, tandem, and hopping." Dr. Kaplove's impression was "recurrent right optic neuritis of unclear etiology; depression; continued word finding problems; celiac disease" and "status post Depo-Provera shots for endometriosis" which he suspected was a possible cause of the optic neuritis. (R. at 339.)

         In June 2009, Dr. Kaplove noted that "[n]europsych testing showed mild cognitive disorder which was felt possibly secondary to pain meds and atypical symptoms of stress." (R. at 337.) The plaintiff was advised to reduce her pain medication, take psychiatric medication, and attend counseling. She disagreed with the test results and declined to pursue the recommendations.

         In November 2009, the plaintiff told Dr. Kaplove that she had episodes in the past two weeks of "weakness from the waist down in the low back 1 to 2 times a week lasting 10 seconds" and on one occasion 30 seconds. (R. at 335.) She also complained of back pain and constipation. She slept 4 hours a night and "occasionally during the day." (R. at 335.) Dr. Kaplove noted that the plaintiff was "oriented to person, place and time"; able to name current and past Presidents; able to subtract serial 7s; could spell "world" forward and backward; had 3/3 word recall in 5 minutes; could name, repeat and follow commands; and had an age appropriate fund of knowledge. Her visual acuity was 20/30-1 in her right eye and 20/30 in her left eye. He did not think the plaintiff's "retinal problems" were "related to anything neurologic." (R. at 335.)

         2010

         On February 26, 2010, the plaintiff was seen by Dr. Wisch, an orthopedist. Three months earlier, Dr. Wisch had performed a "right thumb reconstruction with a mini tightrope."[10] (R. at 348.) Dr. Wisch opined that the plaintiff was "doing great" and could "go back to work lifting as tolerate[d]." Noting her prior work as a residential counselor for young boys, he didn't think she should "restrain" anyone because he was "concerned that if she does restraining that her hand may get pulled and it may affect what we have done surgically because she is doing so well." (R. at 348.)

         On March 11, 2010, the plaintiff was seen again by Dr. Kaplove, the neurologist. On examination, she was able to name current and past Presidents; able to subtract serial 7s; spell "world" forward and backwards; and could recall two out of three words in 5 minutes. She had normal tone and muscle bulk in all extremities. (R. at 333.) Dr. Kaplove's impressions were "status post optic neuritis and multiple other complaints. R/O demyelinating disease. Constipation and daytime somnolence and pain from fibromyalgia and the medications used to treat it are her major problems . . . . [S]he is having increasing urinary frequency and urgency. Tremor is an ongoing problem but the medication used to treat it probably would not be tolerated with her low BP and sedation and [the tremor] doesn't seem to functionally impair her." (R. at 334.)

         In a follow up appointment on May 7, 2010 regarding her right thumb, orthopedist Dr. Wisch noted that she was "doing great." (R. at 346.)

         On September 16, 2010, Dr. Kaplove noted that MRIs of the plaintiff's brain, cervical spine, and thoracic spine were negative. (R. at 331.) On examination, she was able to name current and past Presidents; able to subtract serial 7s; spell "world" forward and backwards; and recall two out of three words in 5 minutes. She had normal tone and muscle bulk in all extremities. (R. at 332.) His impressions were "status post optic neuritis; tremor most likely represents essential tremor."[11]

         On October 29, 2010, she saw urologist Dr. Joseph Antoci for complaints of urinary urgency and frequency. (R. at 440.) On examination, she was well appearing, in no distress, oriented, and had normal mood and effect. (R. at 442.) He prescribed Vesicare.[12] On November 12, 2010, the plaintiff returned to Dr. Wisch for her right thumb. Her grip strength was the same in both hands. (R. at 344.) Her pinch on the right was 10.5 and 20 on the left. (R. at 344.) Dr. Wisch noted that "[o]nce in awhile she gets a little pain and opined that her thumb was "stable." (R. at 344.) The plaintiff indicated that she was not working because there were not any jobs in which she would not be required to "restrain" an individual. (R. at 244.) Dr. Wisch assessed her with a 20% permanent partial disability of her right thumb. (R. at 354.)

         On December 3, 2010, she told urologist Dr. Antoci that she had stopped taking Vesicare because it caused dry mouth and constipation. (R. at 437.) She "also now reports a long history of perineal pain of unknown origin." (R. at 437.) A renal ultrasound was normal. (R. at 438.)

         2011

         On January 7, 2011, the plaintiff was seen at the Arthritis Center of Connecticut. She was assessed with cervical and lumbar degenerative disc disease, fibromyalgia syndrome, anxiety, and osteopenia. (R. at 419.) She said her pain was a "7 to 8 out of 10." She was prescribed Percocet, Fentanyl patches, and Xanax. (R. at 419.) She was seen monthly thereafter, primarily by Physician Assistant ("PA") Matthew Letko, at which time her prescriptions were renewed.

         On February 7, 2011, the plaintiff told urologist Dr. Antoci that her frequency and urgency were unchanged and that she continued to have pelvic pain. (R. at 434.) She was diagnosed with urinary urgency and interstitial cystitis.[13] (R. at 446.)

         On February 10, 2011, the plaintiff was seen by PA Pamela Warren at the office of Dr. Mongelluzzo, the plaintiff's primary care physician. (R. at 381.) The plaintiff said she felt "well" and that her "current health is good." (R. at 381.) She denied neurological symptoms. (R. at 382.) She said she was depressed and was told to increase the dosage of Lexapro from 10 mg to 20 mg. (R. at 383.)

         On April 21, 2011, the plaintiff was seen at Dr. Mongelluzzo's office for sinus congestion and a scratchy throat. (R. at 377.) Her neurologic exam was normal. (R. at 379.)

         Notes from the Arthritis Center of Connecticut dated June 2, 2011 described the plaintiff as stable and "doing well with the pain medication. She has no complaints." (R. at 413.)

         On June 13, 2011, Dr. Mongelluzzo diagnosed her with sinusitis and prescribed an antibiotic. (R. at 376.)

         On July 21, 2011, the plaintiff had a follow up appointment with Dr. Kaplove. (R. at 364.) The plaintiff reported chronic right hip pain which she thought was due to endometriosis. She was oriented to person, place and time; able to name current and past Presidents; subtract serial 7s; spell "world" forward and backwards; could recall three of three words in 5 minutes; name, repeat, and follow commands. Her motor strength was 5/5 throughout and she had normal tone and muscle bulk in all extremities. (R. at 364.) Her tremor was noted as "mild." Her reflexes were "2-3 throughout in upper and lower extremities." (R. at 365.) Dr. Kaplove noted that although "recent labs raise the possibility of APLS, "[14] the "labs were only mildly high" and "not reconfirmed." In addition, "testing in 2008 was negative." (R. at 365.)

         The plaintiff alleges that the onset of her disability was August 1, 2011.

         In an August 3, 2011 gynecological appointment, the plaintiff reported that she had celiac disease and had been unsuccessful in following a celiac diet. (R. at 513.)

         On September 22, 2011, the plaintiff saw PA Deanna Michaud at Dr. Mongelluzzo's office for ear pain. (R. at 371.) The plaintiff was assessed with sinusitis and otitis media and prescribed prednisone. (R. at 373.) The plaintiff returned in November with the same complaint and was prescribed prednisone. (R. at 368.) 2012 At her January 2012 appointment at the Arthritis Center, the plaintiff reported a "recent flare-up in hip pain" but said that her pain medication gave her an "adequate response." (R. at 403.) She noted a "[g]eneral improvement in [her] ability to perform activities of daily living." (R. at 403.) At a subsequent appointment, Dr. Peck, a rheumatologist at the Arthritis Center, confirmed that the plaintiff did not have APLS. (R. at 401.)

         On March 26, 2012, the plaintiff told PA Letkow at the Arthritis Center that "she's generally been doing well this past month" but had "some episodes of muscle spasm of the upper back." She reported that a decrease in Xanax had reduced her fatigue while her "anxiety remains well controlled." (R. at 400.) In April 2012, she reported a "flare-up" as a result of doing yard work. (R. at 398.) When seen in May 2012, the plaintiff said she was "doing well." (R. at 399.) She stated that she experiences "some episodes of exacerbation with increase in activity" but was "managing well with current medication." (R. at 399.)

         On July 16, 2012, the plaintiff saw neurologist Dr. Kaplove. On examination, she was able to name current and past Presidents; subtract serial 7s; spell "world" forward and backwards; and recall three out of three words in 5 minutes. Her motor strength was 5/5 throughout and she had normal tone and muscle bulk in all extremities. (R. at 362.) Reflexes were 2 throughout in upper and lower extremities. Dr. Kaplove's impression was "status post optic neuritis; stable" and "depression stable." He recommended that she decrease the dosage of Lexapro to 10 mg. (R. at 363.)

         When seen at the Arthritis Center on July 18, 2012, the plaintiff said that her medications provided "adequate pain relief." She was assessed as "overall stable." (R. at 396.) The next month, the plaintiff complained of a "flare up" in the past month of "low back pain radiating into her right hip. (R. at 395.) The plaintiff indicated her symptoms were alleviated by exercise and stretching and "exacerbated by an increase in physical activity, prolonged bending and lifting." (R. at 395.)

         On September 7, 2012, the plaintiff returned to urologist Dr. Antoci. (R. at 427.) She disclosed that she had stopped taking her medication and Dr. Antoci noted that "not surprisingly her urgency, frequency and pelvic pain are all worse." Dr. Antoci's assessment was detrusor instability[15] and interstitial cystitis. He prescribed medication. (R. at 429.)

         On October 22, 2012, state agency consultant Dr. Rahim Shamsi conducted a psychiatric evaluation for the SSA. The plaintiff told Dr. Shamsi that she has optic neuritis, APLS, [16] arthritis, fibromylagia, endometriosis, pain in her right hip, anxiety and depression. (R. at 455.) She explained that she last worked as a mental health aide but lost her job when she "developed difficulties with one of her fingers" and was not able to "restrain people." (R. at 455.) She further stated that she suffers from optic neuritis "which has affected her right eye and her vision in her right eye is impaired." According to the plaintiff, she "has been depressed most of her life." (R. at 456.) She denied suicidal ideation. The plaintiff reported that she did some housework but her husband did most of the grocery shopping and cooking. Dr. Shamsi found the plaintiff "was coherent and relevant" and that her affect was mildly anxious and slightly depressed. (R. at 456.) Her present memory was unimpaired. Her "past memory even in regard to events in her life occasionally seemed to be vague." She named past presidents "with difficulty." She was able to add and subtract two digit figures "with difficulty." She could provide similarities between an apple and a banana but not as to other objects. She was unable to solve a problem concerning spending money. She could interpret two proverbs in a very simple manner. Dr. Shamsi discerned no thought disorder and concluded that she could "understand instructions and get along with supervisors." He stated that a diagnosis of "major affective disorder, depressed should be considered" and assessed her GAF score as 39.[17] He thought that the plaintiff could "benefit from psychiatric treatment."

         In December 2012, gynecologist Dr. Hakim noted that the plaintiff was on Depo-Provera and "[d]oing well and has no complaints." (R. at 520.)

         2013

         At her January and February 2013 appointments at the Arthritis Center, the plaintiff reported an "increase in diffuse myalgias." (R. at 585-86.) Her anxiety was "stable." In March 2013, the plaintiff reported episodes of "break through/activity-related pain." (R. at 583.)

         On March 22, 2013, Dr. Hakim performed a hysterectomy and right salpingo-oophorectomy.[18] (R. at 537.) In a followup examination on March 28, 2013, Dr. Hakim observed that the plaintiff "is going through Percocet as if it is candy. I am very uncomfortable but cannot argue with her now b/c of the surgery. I have no doubt she is addicted to narcotics." (R. at 522.)

         When seen at the Arthritis Center in May 2013, the plaintiff reported trying to increase her physical activity. (R. at 582.) She was assessed as "[o]verall stable." July 2013 notes from the Arthritis Center stated that the plaintiff had "no significant complaints at this time." (R. at 597.) She "[r]emains on medication for pain management which she notes contribute[s] to adequate pain relief, thus improvement in performance of ADL's [activities of daily living] and overall function." (R. at 597.) The next month, she reported "[r]ecurrent hip pain which she notes has been somewhat aggravated over the past couple of weeks due to long car trips." Her anxiety was assessed as stable. (R. at 596.)

         In her September 2013 appointment at the Arthritis Center, the plaintiff complained of a "recent flare-up in discomfort" in her right hip. (R. at 595.) PA Letkow noted tenderness "to palpation overlying the area of the trochanteric bursa" and administered a steroid injection. (R. at 595.) The next month, the plaintiff stated that she "gets generally good pain relief" from her medication. She also said that she "occasionally" has ...


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