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Tartaglia v. Berryhill

United States District Court, D. Connecticut

September 28, 2018



          Robert M. Spector United States Magistrate Judge

         This 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.


         On or 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, [1] 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. (Tr. 1-6).

         On 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).

         For the 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.


         At the 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).


         The 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).

         Often, 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).

         The 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).

         B. MEDICAL RECORDS[2]


         The 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. (Tr. 417).

         The 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.[3] (Tr. 410).

         In 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, [4] the plaintiff underwent a left knee arthroplasty (Tr. 386), from which he recovered with “excellent result.” (Tr. 384).

         In June 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).

         On 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. (Tr. 383).

         In 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).

         On 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).

         On 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[5] 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. (Tr. 358).

         On 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).

         In 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).

         On 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.[6] (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).

         On 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.”[7](Tr. 906).

         On 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).

         Dr. 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).


         The 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).

         On 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).

         On June 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. 701).

         On 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).

         On 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 ...

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