United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S
MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE
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”]
denying the plaintiff Disability Insurance benefits
about August 4, 2014, the plaintiff filed an application for
DIB benefits claiming he has been disabled since December 9,
2014,  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).
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).
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.
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).
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).
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).
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).
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 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).
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).
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).
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).
RECORDS PRIOR TO ONSET DATE
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); 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.(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)).
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). During that time period, the plaintiff
noted improvement in his ability to complete daily
activities. (Tr. 476-94).
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).
RECORDS FROM THE ONSET DATE OF DISABILITY
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.
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).
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).
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).
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).
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.
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 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).
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).
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.”
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. ...