United States District Court, D. Connecticut
LEO J. TARTAGLIA, SR.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY
RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S
MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
M. Spector United States Magistrate Judge
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” or
“the Commissioner”] denying the plaintiff Social
Security Disability Insurance [“SSDI”] benefits.
about May 14, 2013, the plaintiff filed an application for
SSDI benefits claiming that he has been disabled since
November 1, 2008, due to “back injury; neck injury;
shoulder injury; [and] knee injury.” (Certified
Transcript of Administrative Proceedings, dated September 27,
2017 [“Tr.”] 100; see Tr. 86-99, 100-12,
224). The Commissioner denied the plaintiff's application
initially and upon reconsideration. (Tr. 113-16, 118-20). On
May 1, 2014, the plaintiff requested a hearing before an
Administrative Law Judge [“ALJ”] (Tr. 121-22),
and on September 28, 2015, a hearing was held before ALJ
Matthew Kuperstein, at which the plaintiff and a vocational
expert, Michael Dorval,  testified. (Tr. 42-85; see Tr.
141-45, 147-51, 164, 273-81). On December 9, 2015, the ALJ
issued an unfavorable decision denying the plaintiff's
claim for benefits. (Tr. 22- 36). On January 27, 2016, the
plaintiff requested review of the hearing decision (Tr.
176-78), and on June 5, 2017, the Appeals Council denied the
plaintiff's request for review, thereby rendering the
ALJ's decision the final decision of the Commissioner.
August 4, 2017, the plaintiff filed his complaint in this
pending action (Doc. No. 1), and on October 20, 2017, the
defendant filed her answer and certified administrative
transcript, dated September 27, 2017. (Doc. No. 10). On
October 27, 2017, the parties consented to jurisdiction by a
United States Magistrate Judge; the case was then transferred
to Magistrate Judge Joan G. Margolis. (Doc. No. 15). On
December 30, 2017, the plaintiff filed the pending Motion to
Reverse the Decision of the Commissioner, with brief in
support. (Doc. No. 18 [“Pl.'s Mem.”]). On
March 1, 2018, the defendant filed her Motion to affirm the
decision of the Commissioner, with brief in support. (Doc.
Nos. 25, 25-1 [“Def.'s Mem.”]). On May 1,
2018, the case was transferred to this Magistrate Judge.
(Doc. No. 26).
reasons stated below, the plaintiff's Motion to Reverse
the Decision of the Commissioner (Doc. No. 18) is
denied, and the defendant's Motion to Affirm
(Doc. No. 25) is granted.
time of his alleged onset date of disability, November 1,
2008, the plaintiff was forty-eight years old. (See
Tr. 86). The plaintiff is married and has three children and
three grandchildren. (Tr. 49-50). He lives with his spouse,
his adult son, his daughter-in-law, and his adult daughter.
(Tr. 51-52). The plaintiff has a twelfth grade education and
has worked only in the construction industry since graduating
from high school. (Tr. 194, 225; see also Pl.'s
Mem. 9). At the time of the hearing, the plaintiff was
fifty-five years old. (See Tr. 49). He has not
worked since his alleged onset date of disability; his date
last insured is December 31, 2013. (Tr. 86-87, 224).
ACTIVITIES OF DAILY LIVING
plaintiff runs errands daily and is able to leave the house
on his own and drive a car. (Tr. 52, 209, 235, 256, 259). If
he drives for a long period of time, however, his legs begin
to bother him. (Tr. 52; see Tr. 233). He goes
grocery and clothes shopping, takes care of his mother,
watches television every day, and manages his own finances.
(Tr. 52, 210, 232, 236, 256, 260). Although the
plaintiff's wife and children do almost all of the
cooking, that is not a result of the plaintiff's
injuries. (Tr. 63, 208). The plaintiff is able to do
household chores such as taking out the garbage, vacuuming
the floors, and laundering his clothes. (Tr. 212, 235, 259).
He “tr[ies] to do anything, until [he] [has] to sit
down or lay down.” (Tr. 209). The plaintiff walks on a
near-daily basis and can walk for about twenty to thirty
minutes before he has to stop and rest. (Tr. 56, 212, 232,
236, 238, 262). The plaintiff testified that he can sit for
about forty-five minutes to an hour before he needs to stand,
but that he is “always moving.” (Tr. 56;
see Tr. 233, 236, 237, 257, 260). He also testified
that he can stand for about twenty to thirty minutes before
he has to sit back down again. (Tr. 56; see Tr. 233,
237, 257, 260). The plaintiff has had trouble sleeping due to
pain and numbness in his back and legs. (Tr. 56, 207, 257).
the plaintiff picks up his grandchildren from school and
brings them to their soccer practice and games. (Tr. 50). He
will play in the yard with his grandchildren, doing
activities like throwing a football, for varying periods of
time, depending on how he is feeling on the particular day.
(Tr. 50; see Tr. 232). The plaintiff also attends
church and other social groups, though not on a frequent
basis. (Tr. 203, 237, 261). He volunteers at his church's
annual bazaar, serving food to customers, which requires him
to work for about one hour at a time. (Tr. 64). At the
hearing, the plaintiff testified that, since his alleged
onset date of disability, he has traveled on at least three
occasions to Florida, for a period of one week, during which
he “sit[s] on the beach” and “hang[s]
around the pool.” (Tr. 59).
plaintiff has had four knee surgeries since the 1980s and
testified at the hearing that he has worn a knee brace for
about five to six years. (Tr. 62, 212; see Tr. 238,
262). The plaintiff also explained that he no longer takes
prescribed pain medication (i.e. Percocet) because
he became addicted to the drugs. (Tr. 67-68, 208, 239). He
testified that he “couldn't even get out of bed
without taking a Percocet” and that he would “go
to work and [he] would take one in the morning, one at noon,
and one in the afternoon.” (Tr. 68; see also
Tr. 239). At the time of the hearing, however, the plaintiff
had not taken prescribed pain medication for approximately
five years. (Tr. 68; see Tr. 239).
ORTHOPEDIC SPECIALTY GROUP
record reflects the plaintiff's long and consistent
treatment history with the Orthopedic Specialty Group
[“OSG”]. Dr. Joel Malin evaluated the plaintiff
in January 2005, when the plaintiff complained of
longstanding knee pain. (Tr. 424). Dr. Malin's evaluation
of the plaintiff at this time revealed that the affected knee
had a mild effusion, but that the range of motion of the knee
was full extension to 110 degrees. (Tr. 424). Dr. Malin
ordered an MRI of the knee, which showed a degenerative
change with a meniscal tear both medially and laterally. (Tr.
423). On January 20, 2005, Dr. Malin noted that the plaintiff
was “markedly symptomatic especially on start up or
with activity” and opined that an arthroscopy and
debridement would be reasonable. (Tr. 423). The plaintiff
underwent a right knee arthroscopy on March 7, 2005. (Tr.
421). The plaintiff recovered well from the arthroscopy and
returned to work approximately one month later. (Tr. 419). On
June 2, 2005, Dr. Malin noted that motion of the knee was
full extension and that there was no evidence of effusion.
plaintiff first complained of back pain in June 2005 and
noted that he was unable to work as effectively as he had in
the past. (Tr. 417). An examination revealed “band-like
back pain with left-sided spasm” and a positive
straight leg test on the left side. (Tr. 417). On August 22,
2005, the plaintiff saw Dr. Lawrence Kirschenbaum for a pain
management consultation for lower back pain. (Tr. 413).
Though a physical examination was relatively unremarkable, an
MRI showed degenerative disc disease and disc bulging at the
L5-S1 region of the spine. (Tr. 413). Dr. Kirschenbaum
scheduled the plaintiff to undergo a “left-sided L5-S1
intralaminar epidural steroid injection under fluoroscopy,
” referred him for physical therapy, and encouraged him
to develop a regular home exercise program following
completion of physical therapy. (Tr. 414). In October 2005,
Dr. Kirschenbaum scheduled the plaintiff for a “left
L4-L5 and L5-S1 intra-articular facet block, ”
following which the plaintiff reported fifty percent
improvement. (Tr. 410).
April 2006, the plaintiff complained of pain in his left knee
for the first time, which he said came on suddenly. (Tr.
404). An MRI of his left knee revealed a “posterior
horn medial meniscal tear and a parameniscal cyst near the
intercondylar notch.” (Tr. 400). On December 5, 2006,
plaintiff underwent a left knee arthroplasty (Tr. 386), from
which he recovered with “excellent result.” (Tr.
2006, the plaintiff explained that, although he had been
feeling well after a radiofrequency lesioning, severe pain in
his back had resumed after he lifted the tailgate of his
truck and reached into the truck to lift a light object. (Tr.
399). On physical examination, however, strength and sensory
testing of the plaintiff's lower extremity was normal and
the straight leg raising test was negative bilaterally. (Tr.
400). A review of an MRI showed a “small left lateral
dis[c] protrusion at ¶ 5-S1 contained by the posterior
longitudinal ligament.” (Tr. 397). Dr. Kirschenbaum
noted that the disc protrusion was displacing the left S1
nerve root, which may have caused the plaintiff's
radicular pain. (Tr. 397). On June 22, 2006, the plaintiff
complained of significant pain and instability in his right
knee following an incident during which scaffolding gave way
and came down on his left leg, and his right leg
“flexed into a deep flexed position and developed
anterior compression over the patellofemoral joint as he
landed.” (Tr. 396). Dr. Malin gave the plaintiff a
range of motion brace in order to prevent any hyperflexion
injury. (Tr. 396). On July 6, 2006, Dr. Malin noted that the
brace and anti-inflammatory medication “were quite
effective” and that the plaintiff was ambulating
independently and comfortably, without limp. (Tr. 395). Also
in July 2006, the plaintiff reported that he had been doing
less work as a laborer and felt that the decrease in physical
activity contributed to his increased relief from back and
leg pain. (Tr. 394).
September 11, 2006, Dr. Robert Dawe evaluated the plaintiff.
(Tr. 391). Dr. Dawe noted that the plaintiff was
“tender about the lower back” and “ha[d]
pain with forward flexion.” (Tr. 391). He noted also
that the plaintiff had “some pain with hyperextension
and side bending, ” but that “[n]eurologically,
he has full motor tone, power and strength throughout.”
(Tr. 391). Dr. Dawe opined that the plaintiff “has a
definite progressive neuromotion segment failure at ¶
5-S1.” (Tr. 391). The plaintiff and Dr. Dawe also
discussed surgical intervention (Tr. 391); however, on
January 11, 2007, Dr. Kirschenbaum noted that the plaintiff
was not willing to pursue any surgical options at that time.
January 2008, the plaintiff returned to Dr. Kirschenbaum and
complained of left-side, lower back pain. (Tr. 371). On
physical examination, there was no spasm or trigger points,
and the straight leg test was negative bilaterally. (Tr.
371). Moreover, “a sensory and motor examination of the
lower extremity was intact.” (Tr. 371).
March 10, 2008, the plaintiff consulted with Dr. Dawe to
discuss increasing numbness and tingling in his legs, which
limited his ability to sleep. (Tr. 369). Dr. Dawe noted
global tenderness in the translumbar region at ¶ 4-5 and
L5-S1, and some pain over the right buttock area. (Tr. 369).
However, the pain did not radiate into the plaintiff's
leg, and he had full motor, tone, power, and strength about
his lower extremities. (Tr. 369). Dr. Dawe discussed with the
plaintiff multiple procedures to remedy the back pain. (Tr.
369). Over the following months, the plaintiff continued to
see Dr. Kirschenbaum and complain of moderate and, at times,
severe, lower back pain. (See Tr. 362-68). On August
11, 2008, Dr. Kirschenbaum sent the plaintiff back to Dr.
Dawe after the plaintiff indicated that he wanted to pursue
surgical options for his lower back pain. (Tr. 361). The
plaintiff did not immediately see Dr. Dawe to discuss the
surgical options, as the plaintiff wanted to wait until his
work schedule was not as busy. (Tr. 359).
September 18, 2008, the plaintiff met with Dr. Dawe to
discuss surgical options for his back and leg pain. (Tr.
358). He explained to Dr. Dawe that the pain was
progressively more severe and debilitating to him and that it
inhibited his daily activity and restricted his ability to
work. (Tr. 358). On physical examination, Dr. Dawe noted that
the plaintiff remained tender about the lower back and had
pain with forward flexion, sitting for any period of time,
and side bending. (Tr. 358). A sensory examination revealed
radicular pain into the right leg, consistent with an
“L-5 root level”; a neuro examination, however,
revealed full motor, tone, and power. (Tr. 358). The
plaintiff was able to walk on his heels and toes. (Tr. 358).
Dr. Dawe recommended an updated MRI and discussed multiple
procedures that he thought would relieve the plaintiff's
pain. (Tr. 358). Dr. Dawe also noted that, in his view, the
plaintiff was no longer capable of functioning as a mason.
October 30, 2008, which was the plaintiff's last visit to
OSG before his alleged onset date of November 1, 2008, the
plaintiff saw Dr. Dawe again and complained of back and leg
pain that limited his daily activities. (Tr. 356). The
plaintiff explained that he felt as though he was unable to
continue his work as a mason. A physical examination revealed
that the plaintiff exhibited no paravertebral spasm or
listing, but had pain and tenderness to direct palpation on
the “midline of his lumbar spine at about the L4-5 and
L5-S1 level.” (Tr. 356). The plaintiff had slight pain
with forward flexion and mild pain radiating to both upper
buttocks with hyperextension. (Tr. 356). A sensory
examination was unremarkable, and the plaintiff was able to
walk on his heels and toes. (Tr. 356).
April 2009, an examination of the plaintiff revealed that he
had tenderness in the translumbar area, pain on forward
flexion, and mild pain with hyperextension and side bending.
(Tr. 349). He also had pain radiating into both buttocks,
which was “consistent with an L5 root level.”
(Tr. 349). Dr. Dawe noted that the plaintiff “was
clearly aware” of the available treatment, and the two
again discussed the surgical options available. (Tr. 349). A
February 2010 examination of the plaintiff revealed the same
findings, and Dr. Dawe detailed again the procedures
available to the plaintiff. (Tr. 345).
February 11, 2011, the plaintiff was involved in a motor
vehicle accident, during which another vehicle rear-ended his
vehicle. (See Tr. 440-41). Following the car
accident, the plaintiff began complaining of, inter
alia, chronic neck pain. (See Tr. 443; see
also Tr. 938). On February 6, 2014, following complaints
of three years of persistent neck pain, the plaintiff
underwent an MRI that showed a “[l]arge left-sided C5-6
dis[c] herniation” and a “[s]mall left
paracentral dis[c] herniation at ¶ 6-7.” (Tr.
939). The MRI report also noted, inter alia, that
cerebrospinal fluid, both anterior and posterior, was seen at
all levels, which is not consistent with a diagnosis of
spinal stenosis, and that, at ¶ 6-7, there was “a
moderate chronic left paracentral disc herniation without
cord or nerve root compression.” (Tr. 938). The
plaintiff underwent a CT scan on March 13, 2014, which
revealed moderate to marked left foraminal narrowing at the
C5-6, C6-7, and C7-T1 regions, as well as a calcified disc
herniation at ¶ 5-6 and a partially calcified disc
herniation/spondylotic ridging at ¶ 6-7. (Tr. 936-37).
March 11, 2014, at the request of Dr. Dawe, the plaintiff saw
Dr. Perry Shear. (Tr. 919). The plaintiff explained to Dr.
Shear that, despite the chiropractic treatment he was
receiving for his neck and back pain, his symptoms continued
to worsen over time. (Tr. 919). On examination, Dr. Shear
noted “marked decreased rotation of the head to the
left side, ” normal range of motion of the head to the
right side, “slight decreased extension of the cervical
spine, ” normal flexion, and normal range of motion in
both shoulders. (Tr. 920). A motor examination revealed
normal power in all extremities. (Tr. 920). Dr. Shear's
review of the plaintiff's MRI from February 6, 2014
showed left C6 nerve root impingement, but no spinal cord or
nerve root compression at ¶ 4-5. (Tr. 920). Also in
March, 2014, Dr. Michael Saffir diagnosed the plaintiff with
left arm dyesthesia with evidence of carpal tunnel syndrome
and mild left cubital tunnel syndrome, but found no
radiculopathy along the left arm despite the cervical
spondylosis and narrowing shown on the imaging studies. (Tr.
917-18). Dr. Saffir added that an examination of the
plaintiff's left arm showed “no acute or chronic
degeneration and normal motor unit recruitment” and
that “no neuropathic changes or radiculopathy [were]
evident.” (Tr. 917-18). On April 1, 2014, Dr. Dawe
noted that the plaintiff was suffering from a “double
crush effect.”(Tr. 906).
April 21, 2014, Dr. Dawe and Dr. Shear performed an anterior
interbody fusion on the plaintiff at ¶ 5-7, which
included the use of iliac bone grafting. (Tr. 928). The
plaintiff tolerated the procedure well and did not experience
any complications. (Tr. 931). Following the surgery, the
plaintiff obtained good motion in the cervical region; Dr.
Dawe's notes from August 29, 2014 reflect that the
plaintiff was able to start playing “some light
golf.” (Tr. 899; see also Tr. 1015, 1029).
Saffir saw the plaintiff on October 2, 2014, and noted that
the plaintiff had “mild guarding with resisted right
lower extremity range of motion, ” but that the
plaintiff did not feel a Toradol injection was necessary
because he was “managing somewhat better.” (Tr.
1034). On October 6, 2014, the plaintiff underwent an MRI of
the lumbar spine. (Tr. 1037). The MRI showed degenerative
changes; however, there was no associated central canal
stenosis or nerve root compression. (Tr. 1011, 1038). An
electromyography report of both legs, dated February 18,
2015, showed “no acute or chronic degeneration, ”
as well as “normal unit recruitment with no neuropathic
changes or radiculopathy evident.” (Tr. 1020). Dr.
Saffir noted that the leg studies were “benign.”
(Tr. 1020). A February 18, 2015 examination of the plaintiff
showed “motor strength testing with fair strength
within functional limits.” (Tr. 1017). On March 19,
2015, Dr. Kirschenbaum found that the plaintiff's
“[r]ecent nerve conduction studies were
unrevealing” and that “[a]n MRI showed
degenerative changes at ¶ 4-L5 and L5-S1 with both left
and right foraminal narrowing with no obvious nerve
impingement.” (Tr. 1016). A physical examination of the
plaintiff on the same date showed “no spasm or trigger
points in the lumbar/buttock region.” (Tr. 1016). A
sensory motor examination of the plaintiff's lower
extremity was intact. (Tr. 1016). On March 27, 2015, the
plaintiff underwent an epidural steroid injection in the
lumbar region (Tr. 1036), and on June 30, 2015, the plaintiff
underwent a left L4-5 and left L5-S1 facet joint block to
relieve the pain in his lower back (Tr. 1035).
INTEGRATED MEDICAL CENTERS
record reflects also the plaintiff's extensive treatment
history with the Integrated Medical Centers
[“IMC”], at which he saw primarily chiropractor
Jeffrey Walczyk, D.C. (See Tr. 433-877, 879-98). On
October 13, 2009, the plaintiff complained of pain and
discomfort over the left and right lower back, with pain
radiating toward the left buttock. (Tr. 710). The plaintiff
explained that the injury was caused by twisting and
described the pain as a constant “aching feeling, sharp
pain, stiffness, tingling feeling.” (Tr. 710).
Following treatment, Dr. Walczyk diagnosed the plaintiff with
myalgia and myositis (not otherwise specified), lumbago,
sacroiliitis (not elsewhere classified), and skin sensation
disturbance (Tr. 710); and on October 19, 2009, he added the
diagnosis of pain in the thoracic spine. (Tr. 711).
April 9, 2010, the plaintiff saw Dr. Walczyk and complained
of pain and discomfort in the mid-back; he described his back
as stiff and the pain as frequently occurring. (Tr. 718). He
also complained of lower back pain that radiated toward the
right anterior thigh and right posterior upper thigh. (Tr.
719). The plaintiff explained that the pain in his lower back
was constant and rated it as moderate to severe in nature.
(Tr. 719). He also complained of pain and discomfort over the
right buttock, which he stated was frequently occurring. (Tr.
719). On physical examination, the thoracic region was
normal, and there were no active or passive range of motion
limitations. (Tr. 718). Dr. Walczyk noted tenderness on
palpation over the T11 and T12 regions, and palpable tight
muscle bands on examination of the thoracic paraspinal
muscles on both sides. (Tr. 718). On examination of the
lumbar region, Dr. Walczyk noted an abnormal gait, as well as
that passive range of motion was restricted in flexion. (Tr.
718). Dr. Walczyk noted also that there was tenderness on
palpation over the left and right sacroiliac joint and
bilateral paraspinous muscles, and that examination of the
lumbar paraspinal muscles revealed palpable tight muscle
bands. (Tr. 718). A physical examination of the
plaintiff's hips on June 9, 2010 revealed passive range
of motion restriction in both hips on adduction. (Tr. 728).
There were also active trigger points on examination of the
gluteus medius muscle, and both hips had capsular tightness
and were tender on palpation. (Tr. 728).
16, 2010, the plaintiff completed a “Back Index”
form, on which he rated how his back pain affected his
everyday life. (Tr. 701). The plaintiff noted that his pain
comes and goes and is very severe; his normal sleep is
reduced by less than twenty-five percent; he cannot sit for
more than one hour because of the pain; he cannot stand for
more than ten minutes without increased pain; he cannot walk
more than one-quarter mile without pain; bathing and dressing
cause pain, and he finds it necessary to alternate ways of
doing them; he can only lift light weights; he has pain while
traveling, but it does not require him to seek alternate
forms of travel; the pain has no significant effect on his
social activities, but he cannot do “energetic
activities”; and the pain is gradually worsening. (Tr.
August 16, 2010, Dr. Stephen Rosenman examined the plaintiff,
whose primary complaint at the time was hip pain. (Tr. 732).
The plaintiff explained that the pain occurred after he
lifted a child and heavy boxes, and after he bent over. (Tr.
732). The plaintiff described the pain as cramping, gripping,
and spasmodic. (Tr.732). He stated that the pain was constant
and severe, rating as a nine out of ten, with zero being no
pain and ten being the worst pain possible. (Tr. 732). A
physical examination of the plaintiff showed tenderness on
palpation and the following passive range of motion
restrictions: flexion; extension; abduction; adduction;
internal rotation; and external rotation. (Tr. 732). Dr.
Rosenman noted that the pain affected the plaintiff's
daily activities. (Tr. 733). He remarked specifically that
pain prevented the plaintiff from walking short distances and
that the plaintiff felt that he could accomplish only very
light activity for a duration of two minutes. (Tr. 733).
Additionally, he stated that the plaintiff's sitting
tolerance was limited, as the plaintiff could sit for less
than fifteen minutes before he had to stand up, walk, or lay
down. (Tr. 733). His notes also reflect that the plaintiff
could stand or walk only for fifteen to thirty minutes before
he had to change position, and that the plaintiff reported
three to five hours of sleeplessness each night because of
the pain. (Tr. 733).
October 18, 2010, Dr. Rosenman examined the plaintiff again
for right hip pain. (Tr. 744). The plaintiff described the
pain as gripping, shooting, constant and severe, and rated it
as a ten out of ten. (Tr. 744). On examination, Dr. Roesenman
noted that there was no swelling, erythema, atrophy, or
deformity. (Tr. 745). He also observed a normal range of
motion; however, there was pain with any movement. (Tr. 745).
Dr. Rosenman opined that the plaintiff's overall
prognosis was “fair” and that the plaintiff's
probability of near complete relief was low. (Tr. 745). He
also noted the following impact on the plaintiff's daily
activities: the plaintiff was prevented from walking short
distances; he could not engage in very light activity even
for two minutes; he could climb stairs only with great
difficulty; he could barely tolerate standing or walking and
had to ...