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Marcille v. Berryhill

United States District Court, D. Connecticut

November 15, 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”] denying the plaintiff Disability Insurance benefits [“DIB”].


         On or about August 4, 2014, the plaintiff filed an application for DIB benefits claiming he has been disabled since December 9, 2014, [2] due to degenerative disc disease, atrial fibrillation, arthritis, diabetes, high blood pressure, high cholesterol, and sleep apnea. (Certified Transcript of Administrative Proceedings, dated November 29, 2017 [“Tr.”] 184-85, 212). The plaintiff's application was denied initially (Tr. 110-13), and upon reconsideration. (Tr. 116-18). On February 25, 2015, the plaintiff requested a hearing before an Administrative Law Judge [“ALJ”] (Tr. 120- 22), and on June 16, 2016, a hearing was held before ALJ Alexander Borré, at which the plaintiff and a vocational expert testified. (Tr. 39-85; see Tr. 143-53, 169-70, 174-75). On September 23, 2016, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits. (Tr. 14-31). On September 30, 2016, the plaintiff filed a request for review of the hearing decision (Tr. 179), and on August 1, 2017, the Appeals Council denied the request, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-3).

         On September 27, 2017, the plaintiff filed his complaint in this pending action (Doc. No. 1), and on December 11, 2017, the defendant filed her answer and administrative transcript, dated November 29, 2017. (Doc. No. 10). On February 12, 2018, the parties consented to the jurisdiction of a United States Magistrate Judge; the case was transferred to Magistrate Judge Joan G. Margolis. (Doc. No. 21). On April 27, 2018, the plaintiff filed his Motion to Reverse (Doc. No. 24), with brief in support (Doc. No. 24-1 [“Pl.'s Mem.”]), and the Joint Stipulation of Facts (Doc. No. 24-2). On May 1, 2018, this case was reassigned to this Magistrate Judge. (Doc. No. 25). On August 27, 2018, the defendant filed her Motion to Affirm (Doc. No. 29), and on September 11, 2018, the plaintiff filed a Waiver of Reply. (Doc. No. 30).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 24) is denied, and the defendant's Motion to Affirm (Doc. No. 29) is granted.



         As of the date of his hearing in 2016, the plaintiff was fifty-four years old (Tr. 44), and he was living with his wife and twenty-two year old son. (Tr. 45-46). His wife was working fulltime, but, at the time of the hearing, his son was not working. (Tr. 46).

         The plaintiff graduated high school and worked as a warehouse worker for a supply company (Tr. 47, 233, 277, 296, 306), then as an assistant night manager at Quiznos (Tr. 48, 233, 277, 296, 306), and, most recently, as an assistant catering chef for Sodexo. (Tr. 48-49, 233, 277, 296, 306). He left his last job in December 2014 due to pain in the middle of his back. (Tr. 49, 61-62).

         The plaintiff had his right hip replaced in 2010 and his left hip replaced in 2014. (Tr. 50). He has used a cane since he had those hip replacements; he uses it to walk far distances or to go grocery shopping. (Tr. 53-54). The plaintiff testified that he feels pain in his hips after walking five minutes (Tr. 51), or when walking up “[a]ny kind of like incline[.]” (Tr. 52). For a period of time, he attempted to walk on a treadmill for exercise, but stopped because of the pain. (Tr. 65). His hip pain makes it difficult to walk or stand. (Tr. 66).

         He opined that he can sit for fifteen minutes and could “[p]robably” lift and carry ten pounds. (Tr. 55). He also testified that he “get[s] bummed out” and “just [does not] feel like doing anything.” (Tr. 56). He spends his days “sit[ting] around and watch[ing] TV.” (Tr. 56). He lies down two or three times a day, “depending on how much pain that [he has].” (Tr. 58). He drives, but not for longer than a half hour, as his back starts to hurt. (Tr. 46-47).

         The plaintiff does the grocery shopping, prepares meals for his family, and does “a little” cleaning, but it bothers his back such that he has to “sit and relax afterwards or [he has his] son put [his] TENS[3] unit on.” (Tr. 57). He uses the TENS unit about once a day for about an hour. (Tr. 59). According to the plaintiff, he has to stop and rest after “probably a half hour of doing grocery shopping[.]” (Tr. 55). His son does the yard work and takes laundry out of the dryer, but the plaintiff puts laundry in the washer and dryer. (Tr. 57).

         He has taken Oxycodone “[o]ff and one since 2010” and has received injections in his lower back since 2012. (Tr. 59-61, 63). His insurance denied coverage for injections to address pain that he has in the middle of his back. (Tr. 63). The plaintiff also has pain in his neck which makes it difficult for him to sleep at night. (Tr. 64). He testified that his medications cause him to feel tired. (Tr. 52, 54).

         The vocational expert classified as “light” work the plaintiff's past employment as a fast food cook and manager, and as “heavy work” his job as a sorter and packer in a warehouse. (Tr. 68). Though his past work as a manager “sounds like he was given the title, . . . in terms of his duties, ” he was performing them on a “semiskilled or unskilled level.” (Tr. 78). The vocational expert testified that his skills as a fast food cook and manager would transfer to “sedentary” work, like the work of an assignment clerk or telemarketer. (Tr. 70). However, if the plaintiff was limited to unskilled work or simple and repetitive tasks, he would not be able to perform these jobs. (Tr. 76). The vocational expert further explained that a person limited to light level work, but who could not climb ladders, ropes or scaffolds or tolerate exposure to hazards, could occasionally climb ramps or stairs, balance, stoop, kneel, crouch and crawl, could not tolerate temperature extremes, and was further limited to frequent overhead reaching, could perform the plaintiff's past work as a fast food manager, as well as work as a “shipping and receiving weigher[, ]” a mail clerk, and a “splicer[.]” (Tr. 71-72).

         As the vocational expert explained, if such an individual was required to carry a cane to walk 100 feet or to walk on uneven surfaces, such a person could perform the work of an assistant manager “as long as productivity and expectations were not compromising this ability.” (Tr. 73). Additionally, “[i]f the person could stand and move without the cane while doing” the work of a shipping and receiv[ing] [clerk], mail clerk, and splicer, “chances are productivity expectations would not be compromised and, therefore, no significant reasonable accommodation would be necessary.” (Tr. 73). The vocational expert opined that, if the exertional level was reduced to sedentary, “at least 50 percent of those jobs would” be able to be performed, depending on “employer and industry expectations.” (Tr. 74-75). An individual who is off task 20 percent of the workday, however, would not be employable. (Tr. 75).



         As discussed above, the plaintiff's amended onset date of disability is December 9, 2014. (Tr. 45). There are volumes of records pre-dating this date, all of which the Court has reviewed. (See Tr. 748 (December 2009 cardiology treatment with Dr. Jan R. Paris for chest pain); Tr. 443-44 (abnormal electrocardiogram, showing atrial fibrillation with a “competing junctional pacemaker”); Tr. 378-82, 388-99, 585-90, 599-603, 611-24, 749-56; see generally 349-52, 378-82, 388-89, 393-94, 591-94 (January, March, June and December 2014 treatment with Dr. Paris for atrial fibrillation, for which he was asymptomatic; underwent unsuccessful cardioversion);[4] Tr. 347-48, 373-77 (March and May 2014 polysomnogram; moderate obstructive sleep apnea)). Additionally, the plaintiff has a long treatment history with his orthopedist, Dr. Russell Chiappetta, who began treating plaintiff in March 2012, and saw him on an almost monthly basis thereafter.[5](See Tr. 517-19 (March and April 2012: treatment for left wrist pain and “[c]hronic low back syndrome with acute exacerbation”; limited range of motion noted); Tr. 513-17, 521 (May, June and August 2012: treatment of low back pain; persistent pain and limitation; “[s]low” to “plateaued” response to therapy; unable to return to work); Tr. 470-71 (June 2012 MRI of lumbar spine: disc protrusion at ¶ 1-L2, disc bulge at the L2-L3 level resulting in mild central canal stenosis); Tr. 509-11 (September, October and November 2012 (chronic low back syndrome with facet arthropathy); Tr. 508 (December 2012 report of improvement and increased range of motion); Tr. 501-05, 507 (2013 records reflecting back pain from shoveling snow; back strain)).

         The plaintiff also has a treatment history dating back to July 9, 2012 with Dr. Eric Grahling of Comprehensive Pain Management of Central CT, for lumbago and facet syndrome, for which he, and his APRN, Shawn Putnam, treated the plaintiff through August 2014 with a series of facet joint injections, nerve root ablations, a TENS unit, and Vicodin. (Tr. 472-74; see Tr. 475, 477, 480-81, 487, 490, 492-93).[6] During that time period, the plaintiff noted improvement in his ability to complete daily activities. (Tr. 476-94).

         In August and December 2012, the plaintiff was seen by his primary care physician, Dr. Othman El-Alami, for his treatment of hypertension, diabetes mellitus, and dyslipidemia; at the time, the plaintiff weighed 355 pounds. (Tr. 448). He was also diagnosed with low back pain, and Dr. El-Alami recommended diet and exercise. (Tr. 448).


         Within the year preceding the plaintiff's onset date of disability, the plaintiff underwent surgery on his left hip, and continued to receive pain management treatment for his back pain, as discussed herein.

         On March 18, 2014, the plaintiff underwent a total hip arthroplasty for severe degenerative joint disease of the left hip by Dr. Chiappetta at The Hospital of Central Connecticut. (Tr. 359-63, 520-22; see Tr. 344 (X-rays), 446 (pre-op physical)). The plaintiff was scheduled to undergo this surgery on January 7, 2014, but the surgery was canceled when the plaintiff went into atrial fibrillation in the operating room. (See Tr. 390-92, 523-24). As the limited treatment records related to atrial fibrillation reveal, the plaintiff is asymptomatic. The plaintiff remained admitted for physical therapy following the surgery (Tr. 332-43, 371-74), and he was released on March 21, 2014. (See Tr. 357).

         On March 24, 2014, he returned to Dr. Chiappetta after he had fallen at his rehabilitation facility; Dr. Chiappetta sent him for an ultrasound to rule out a blood clot. (Tr. 500). The ultrasound of the plaintiff's left lower extremity was performed; it showed “no evidence of a DVT[.]” (Tr. 469, 530; see also Tr. 531). On April 21, 2014, Dr. Chiappetta noted continued improvement; the plaintiff had hip good range of motion of the left hip, persistent weakness of the abductors, “2 swelling[, ]” and overall satisfactory recovery. (Tr. 499).

         Between May 15 and August 28, 2014, the plaintiff received physical therapy for a total of sixteen sessions following his left total hip replacement. (Tr. 532-54). Upon discharge, the plaintiff's functional mobility as it related to activities of daily living was limited primarily due to “(1) residual [range of motion] and strength limitations status post left hip replacement[, ] and (2) significant back pain and dysfunction.” (Tr. 535).

         Dr. Chiappetta's notes from May 19, 2014 reflect that the plaintiff was “doing markedly better[.]” (Tr. 498). On June 12, 2014, the plaintiff returned to Dr. Grahling who noted that the plaintiff's “[l]ow to mid back pain returned.” (Tr. 491). Four days later, Dr. Chiappetta recommended that the plaintiff continue physical therapy, and he prescribed Hydromorphone “since Oxycodone [did not] seem to control his back pains.” (Tr. 497).

         On July 9 and 10, 2014, the plaintiff received medial branch nerve blocks to the bilateral lumbar facets performed by Dr. Grahling. (Tr. 492-93). On July 11, 2014, Dr. Chiappetta noted that the plaintiff was walking with a slight antalgic gait, he had continued weakness of abduction, continued limitation in internal arcs of rotation, “[d]istinct pain on palpation over the lower lumbar spine” with continued painful range of motion, and “[d]istinct pain on palpation over the mid thoracic spine” with painful range of motion. (Tr. 496). Dr. Chiappetta assessed chronic low back syndrome and “[s]low but satisfactory recovery” of his left hip as that recovery was limited “because of his chronic back problem.” (Tr. 496).[7]

         On August 7, 2014, the plaintiff complained of lower back pain despite repeat facet joint injections, although his lower back pain was improved by sixty percent, and his activities of daily living were improved. (Tr. 494). On examination, APRN Putnam[8] found lumbar facet joint tenderness and “ mod[erate] bilat[eral] lower thoracic facet tenderness[, ]” and he noted that the plaintiff had lost 50 pounds in the past seven months. (Tr. 494).

         On August 8, 2014, Dr. Chiappetta saw the plaintiff for “trochanteric type pains[]”; he reported that walking with a cane reduced his symptoms. (Tr. 495). On examination, the plaintiff had “[d]istinct pain on palpation over the greater trochanter[, ]” continued limitation with internal arcs of rotation, and tightness of the iliotibial band. (Tr. 495). Dr. Chiappetta assessed a “[s]low but satisfactory recovery” following total hip replacement (Tr. 495), and he provided the plaintiff with a note indicating he would not be able to return to work until at least September 6, 2014. (Tr. 529).

         On September 5, 2014, the plaintiff was examined by Dr. Chiappetta for “intermittent discomfort[]” and lack of motion in the left hip post surgery, as well as increasing neck pain that Dr. Chiappetta diagnosed as “[c]hronic cervical strain.” (Tr. 686). Dr. Chiappetta assessed “[s]low but satisfactory recovery with residual arthrofibrosis[]” that prevented the plaintiff, “at [that] point[, ] [from] return[ing] to the work force.” (Tr. 686). Dr. Chiappetta noted that the plaintiff was pursuing social security disability “which [Dr. Chiappetta felt was] appropriate.” (Tr. 686).

         On September 9, 2014, the plaintiff received medial branch nerve blocks to the bilateral lumbar facets under the care of Dr. Grahling. (Tr. 555, 727, 834). On September 23, 2014, the plaintiff reported to Dr. Grahling that the facet injections provided no relief, and that he was using a cane for left hip pain. (Tr. ...

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