Haman v. Berryhill

          RULING AND ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         Melissa Haman (“Plaintiff”) filed this administrative appeal under 42 U.S.C. § 405(g) against the Acting Commissioner of Social Security (“Defendant” or “the Acting Commissioner”), seeking to reverse the decision of the Social Security Administration (“SSA”) denying her claim for Title II disability insurance benefits and Title XVI supplemental security income under the Social Security Act. Complaint, dated Oct. 18, 2017 (“Compl.”), ECF No. 1.

         Ms. Haman moves for a judgment on the pleadings reversing the decision of the Acting Commissioner. Motion for Judgment on the Pleadings, dated Aug. 26, 2018 (“Pl.'s Mot.”), ECF No. 31; Memorandum in Support of Pl.'s Mot., dated Aug. 26, 2018 (“Pl.'s Mem.”), ECF No. 31-1.

         The Acting Commissioner moves for an order affirming her decision. Motion for an Order Affirming the Decision of the Commissioner, dated Oct. 29, 2018 (“Def.'s Mot.”), ECF No. 32; Memorandum in Support of Def.'s Mot., dated Oct. 29, 2018 (“Def.'s Mem.”), annexed to Def.'s Mot., ECF No. 32, at 2.

         For the reasons explained below, Ms. Haman's motion is GRANTED IN PART AND DENIED IN PART. Her motion is granted with respect to the Acting Commissioner's Step Five finding, but denied with respect to the Acting Commissioner's Step Two finding. The Acting Commissioner's motion is DENIED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         Ms. Haman, who is now 48 years old, lives in Plantsville, Connecticut. Statement of Material Facts, dated Aug. 26, 2018 (“SMF”), ECF No. 31-2, ¶ 10; Transcript of Administrative Proceedings, filed Jan. 19, 2018 (“Tr.”), annexed to Answer, filed Jan. 19, 2018 (“Ans.”), ECF No. 15, at 57. She has a high school education and was previously employed as a receptionist and a sales clerk. SMF ¶¶ 11-12; Tr. 59-60. She alleges that she became disabled and unable to work on April 5, 2010. SMF ¶¶ 1-2; Tr. 12.

         Ms. Haman suffers from several physical impairments: fibromyalgia, arthritis, and residual complications following a right ankle fracture. Tr. 15. She also suffers from several mental health conditions: depression, post-traumatic stress disorder (“PTSD”), and anxiety. Id. She also has a history of migraine headaches. Id.

         On April 5, 2010, Ms. Haman fractured her ankle in three places, requiring an open reduction and internal fixation with screws, plates, and bolts. SMF ¶ 13. Since then, Ms. Haman has been out of the workforce. SMF ¶ 13. She lives alone in Plantsville in the same neighborhood as her parents, who she says live on the “next street” from her. SMF ¶ 16; Tr. 48, 58.

         She now seeks review of the Acting Commissioner's denial of her applications for benefits under Title II and Title XVI.

         1. Medical Evidence

         On April 5, 2010, Ms. Haman fell and fractured her right ankle. SMF ¶ 2. She was admitted to the Hospital of Central Connecticut at New Britain General, where she reported to physician's assistant Ryan Vicino that she had “tripped over the rug in her house and immediately had right knee and hip pain and right ankle pain, ” and that she had a medical history of anxiety, claustrophobia, panic attacks, and fibromyalgia. Tr. 600; see also Tr. 418-443. An x-ray revealed a right ankle fracture. Tr. 600-01. Dr. Frank Gerratano then operated on Ms. Haman, performing an open reduction and internal fixation of her right ankle with screws, plates, and bolts. Tr. 598-99; SMF ¶ 13. Ms. Haman was discharged from the hospital on April 6, 2010. Tr. 603.

         On April 15, 2010, at a follow-up appointment at Grove Hill Medical Center (“Grove Hill”), Ms. Haman reported that she had some discomfort and was “incredibly anxious.” Tr. 577. Physician's assistant Susan E. Benn, supervised by Dr. Gerratana, examined the incision site and found it “good without drainage or signs of infection.” Id. Ms. Haman's sutures were removed, and her ankle had slight swelling and ecchymosis.^[1] Id. X-rays taken that day showed the hardware to be in place with good alignment. Id. Ms. Haman's ankle was placed into a cam walker-a controlled ankle movement boot-and permitted to be toe-touch weight bearing with the assistance of crutches. Id.

         On May 3, 2010, at follow-up appointment at Grove Hill, Ms. Haman reported she had been doing well but that she had a “new injury yesterday when she tripped and hit her right foot” while wearing her cam walker, and that she had increased pain since then and “felt a snapping sensation in her ankle.” Tr. 576. Dr. Gerratana examined her and found some swelling and moderate restriction in motion, but that the internal hardware remained in place and that the fall did not appear to have disrupted the fracture. Id. Dr. Gerratana instructed her to continue to wear the cam walker. Id.

         On June 3, 2010, at a follow-up appointment at Grove Hill, Ms. Haman reported continued ankle discomfort and stiffness. Tr. 575. Dr. Gerratana reported x-rays showed further healing of the fracture and instructed her to continue to wear the cam walker and an ankle ASO brace. Id.

         On July 15, 2010, at a follow-up appointment at Grove Hill, Ms. Haman reported some discomforts in the right ankle. Tr. 574. Dr. Gerratana reported that Ms. Haman “walks with a limp, ” “has some weakness of right ankle dorsiflexion^[2] without tenderness over the proximal fibula, ” “has good sensation of her foot, ” as well as “good motion of her right knee without effusion or instability.” Id. He also reported x-rays showed the “healed trimalleolar fracture, ” but that her right knee was “unremarkable.” Id. He instructed Ms. Haman to begin physical therapy to strengthen her ankle and ordered an EMG nerve conduction test to further evaluate her dorsiflexion weakness of the right ankle. Id.

         On August 19, 2010, at a follow-up appointment at Grove Hill, Ms. Haman reported “improved motion and strength of her ankle.” Tr. 573. Dr. Gerratana reported that she had “a moderate restriction of her ankle motion, ” “active dorsiflexion to the initial position, ” and “no neurovascular deficits of the foot, ” and advised that she would continue with her exercise program. Id.

         On October 1, 2010, at a follow-up appointment at Grove Hill, Ms. Haman reported “some discomforts and weakness in the ankle.” Tr. 572. Dr. Gerratana reported that she had “a mild restriction of right ankle dorsiflexion with some dorsiflexion weakness, ” “diffuse tenderness of the ankle, ” and “no neurovascular deficit, ” and that x-rays showed “union of the ankle fractures.” Id. His impression was that she had a “healing fracture” and advised that she “will be allowed increased activities” and will “continue with physical therapy program.” Id.

         On December 2, 2010, at a follow-up appointment at Grove Hill, Ms. Haman reported that she has “greater motion of the ankle now.” Tr. 571. Dr. Gerratana reported that she had “a mild to moderate restriction in motion, ” “dorsiflexion to the neutral position, ” and “no neurovascular deficit of the right leg.” Id.

         On March 4, 2011, at a follow-up appointment at Grove Hill, Ms. Haman reported “bilateral knee discomfort” and that “her symptoms are worse with activity and changes in the weather.” Tr. 570. Dr. Gerratana reported that Ms. Haman “walks with a limp, ” that her “right ankle has dorsiflexion to 90°, ” and “no neurovascular deficit of the right leg.” Id. He also found that her knees have “some diffuse tenderness, ” but “no knee effusion or instability.” Id. X-rays of her knees revealed “no significant boney abnormalities except for some right knee diffuse osteoperosis.” Id. Ultimately, his impression was that she has some “right ankle discomfort due to the residuals of her ankle fracture” and “some bilateral knee ache and some right knee diffuse osteoperosis.” Id. He advised that she “will be allowed increased activities” and “take calcium supplements.” Id.

         On June 13, 2011, at a follow-up appointment at Grove Hill, Ms. Haman reported “some posterior right ankle discomfort.” Tr. 569. Dr. Gerratana reported that Ms. Haman “walks with a limp, ” “has some mild swelling of her right ankle and some tenderness over the posterior tibial tendon and Achilles tendon, ” and a “slight decrease of her right ankle dorsiflexion.” Id. X-rays of her right ankle showed the fracture “to be solidly united.” Id. His impression was that she was “symptomatic from the residuals of her” fracture, “has some right ankle posterior tibial tendinitis, ” and “some bilateral knee discomfort, probably associated with some patellar chondromalacia.”^[3] Id. He supplied Ms. Haman with “heel lifts, ” advised her to continue her current medication, and planned to reassess her in three months. Id.

         On September 12, 2011, at a follow-up appointment at Grove Hill, Ms. Haman reported “some posterior ankle discomfort as well as some bilateral knee discomfort, ” and that her symptoms are “worse with activity and weather changes.” Tr. 568. Dr. Gerratana reported that her right ankle “has a mild restriction to motion, especially with dorsiflexion limitations, ” “some diffuse tenderness of the ankle, ” and “some tenderness” in her right Achilles tendon. Id. He also reported that her knees have “fairly good motion with some tenderness of the patellofemoral joints” and “no knee effusion or instability.” Id. His impression was that she was “symptomatic from residuals of her right ankle fracture with some Achilles tendinitis” and that she “has bilateral patellar chondromalacia.” Id. He supplied Ms. Haman with a “heel lift, ” advised her to continue her current medication, and planned to reassess her in three months. Id.

         On December 12, 2011, at a follow-up appointment at Grove Hill, Ms. Haman reported “some bilateral knee discomfort as well as some ankle discomfort” and that she is “seeing Dr. Anwar for fibromyalgia.” Tr. 567. Dr. Gerratana reported that “she walks with a limp, ” “has a mild restriction of right ankle motion due to the residuals of her” fracture, and “has no neurovascular deficits of the right foot.” Id. He also reported that she has a “mild restriction of knee motion with some patellofemoral joint tenderness and crepitus, ”^[4] but “no knee effusion or instability.” Id. His impression was that she was “mildly symptomatic from the residuals of her right ankle fracture status post surgery” and has “bilateral knee pain due to patellar chondromalacia.” Id. He advised her to continue “her knee rehabilitative exercises, ” noted that she “uses a heel pad, ” and planned to reassess her in three months. Id.

         On March 12, 2012, at a follow-up appointment at Grove Hill, Ms. Haman reported “some right ankle and bilateral knee discomforts, ” and that her symptoms are “worse with increased activity.” Tr. 566. Dr. Gerratana reported that “her right ankle has a moderate restriction in motion with some tenderness over the distal Achilles and posterial tibial tendon.” Id. He also reported that her knees “have a mild restriction in flexion with some tenderness over the patellofemoral joints, ” and “no knee effusion or instability.” Id. His impression was that she was “symptomatic from her patella chondromalacias as well as the residuals of her right ankle fracture and some tendinitis.” Id. He prescribed her Zanaflex, ^[5] instructed her to “continue with some rehabilitative exercises, ” and planned to reassess her in two months. Id.

         On June 25, 2012, at a follow-up appointment at Grove Hill, Ms. Haman reported “some recurrent lower leg swelling that is more significant on the right which improves with rest.” Tr. 565. Dr. Gerratana reported that she walked with a “slight limp, ” that her right ankle “has a mild restriction in motion with some diffuse tenderness, ” and that her right lower leg “has some mild swelling . . . without any significant tenderness except over the patellofemoral joint bilaterally.” Id. His impression was that she was symptomatic “from her right ankle posttraumatic arthritis as well as some lower leg swelling possibly [due] to venous insufficiency.” Id. He planned for her to have a “vascular consultation” and to reassess her in six weeks. Id.

         On September 24, 2012, at a follow-up appointment at Grove Hill, Ms. Haman reported “right ankle discomfort as well as some bilateral knee pain.” Tr. 564. Dr. Gerratana reported that she “walks with a limp, ” and that her right ankle “has a moderate restriction in motion with another 5° of dorsiflexion” as well as “some diffuse tenderness” and “tenderness over the posterior tibial tendon.” Id. He found “no neurovascular deficits of the lower extremities.” Her knees had “good motion, strength, and stability but there is tenderness over the patellofemoral joints.” Id. His impression was that she was “symptomatic from her post-traumatic right ankle arthritis as well as some right posterior tibial tendonitis and bilateral chondromalacia patella.” Id. He supplied her with bilateral heel lifts, advised her to continue her current medications, and planned to reassess her in three months. Id.

         On January 4, 2013, at a follow-up appointment at Grove Hill, Ms. Haman reported “discomfort because of her knee arthritis.” Tr. 562. Dr. Gerratana reported that her ankle “has a mild restriction in motion especially with dorsiflexion” and “some tenderness over the posterior tibial tendon.” Id. Her knees had “mild restriction of flexion with some tenderness and crepitus over the patellofemoral joint.” Id. His impression was that she had “posttraumatic right ankle arthritis and patellar chondromalacia.” Id. He advised her to continue with Flexeril, Motrin, and Tylenol, and to return to him “if new problems develop.” Id. No subsequent documentation of appointments with Dr. Gerratana appears in the administrative record.

         On June 26, 2014, licensed clinical social worker Sue Thomas at Bristol Hospital Counseling Center saw Ms. Haman for an initial assessment. Tr. 458-61. Ms. Haman reported depression, anxiety, and other medical issues. Tr. 458. Ms. Thomas diagnosed Ms. Haman with “generalized anxiety, ” noting that she “has been struggling with applying for disability based on her medical conditions and this has caused increased stress, ” as well as relationship issues with her significant other. Tr. 460. She recommended that Ms. Haman begin individual therapy. Id.

         On July 17, 2014, Ms. Haman saw Ellen Babcock, a licensed marriage and family therapist at Bristol Hospital Counseling Center, and developed a master treatment plan. Tr. 462- 63. They agreed that Ms. Haman would begin six months of individual therapy as needed with Ms. Babcock and medication management as needed with APRN Sue Wargo and Jeffrey Shelton, M.D.. Id.

         On December 10, 2014, Dr. Max Lee Wallace, M.D. conducted an x-ray study of Ms. Haman's knees that was ordered by Dr. Formica . Tr. 410-12. Dr. Wallace noted a “very early trace superior pole patella osteophyte formation, ” Tr. 411, but otherwise concluded it was an “unremarkable study.” Tr. 410.

         On January 29, 2015, Ms. Haman saw Dr. Christopher K. Manning, M.D. for an initial visit with chief complaints of fibromyalgia and depressive disorder. Tr. 465-66. Dr. Manning wrote that Ms. Haman “presents today with what I believe is probably more of a dysthymic condition than true fibromyalgia.” He elaborated:

She does have generalized pain and probable resulting persistent headaches but she does not have irritable bowel syndrome or any of the other classic symptoms of fibromyalgia. What is most evident Is that she has had long-standing chronic and at times uncontrolled anxiety with a depressive component, She has failed or mostly been intolerant to so many different SSRIs, Cymbalta, Lyrica, Neurontin, Xanax and has only been able to tolerate Klonopin. When I have seen cases like this is almost always because of underlying significant psychiatric disease. Flexeril seem to give her some benefit for [a] number of years but then stop[ped] working. She may have actually gotten more of an antidepressant effect from that drug. She states that she's here to see me more specifically to two bilateral hand pain and swelling and although her fingers were generally tender and may be slightly swollen this is not synovitis and maybe more mild edema. With CMC joint involvement this could be early osteoarthritis. Her recent negative rheumatologic studies support a noninflammatory process. She is not having symptoms to support carpal tunnel syndrome. I went on to have a longer conversation with her and her mother about all of these issues in a strongly suggested that she get in to be seen and maybe treated by psychiatry since I believe this is what's likely fueling her pain syndrome, She wanted us to get involved in doing disability paperwork since this is her third time filing for Social Security disability but I explained to her that we no longer to form completion and I think she's going to end up staying with her current rheumatologist for that reason alone, I agreed to try calling in a different muscle relaxant [for] her but her insurance was already denying the soma prescription and I'm not sure what they will cover. I don't think will end up seeing her back unless things change.

Tr. 465-66.

         On April 4, 2015, consultative examiner Gil Freitas, M.D. examined Ms. Haman. Tr. 495-97. He found that her “ambulation is slightly difficult, ” but that she had “no difficulties getting on and off the exam table, ” “getting out of the chair, ” or “dressing herself.” Tr. 496. He observed that she used a cane, which she stated was “for stability due to her weakness in her ankle.” Tr. 497. He found that her knee range of motion was normal in all direction. Id. He also found that her right ankle dorsiflexion was 15 degrees, planar flexion was 130 degrees, and internal rotation on the right and left was 20 degrees. Id. He also observed that she was unable to walk on her heels, to squat, or to walk on her toes due to her inability to move her right ankle. Id.

         He also observed that her ankle was swollen, that she had 2 edema to the middle lower leg, and that she had 3/5 strength on the right lower extremity and ankle region. Id. His overall impression was that she had a decreased range of motion in her right ankle, needed her cane for ambulation, and would have limitations in her ability to stand and walk for a long period of time. Id.

         On April 8, 2015, consultative examiner and psychologist Marc Hillbrand examined Ms. Haman. Tr. 491-93. He generally observed that her “gait is slow, ” that she “walks with a cane” and “has difficulty climbing stairs, ” and that she had “mild psychomotor retardation.” Tr. 491. Overall, he found Ms. Haman “alert and oriented in all spheres, ” noting that she “may have some slight concentration problems” but “was able to repeat five digits forward, but only three backward, ” and that it “took one trial for her to repeat four words immediately” and that “after 10 minutes, she remembered all four.” Tr. 492. He concluded her “verbal and nonverbal reasoning abilities” appeared intact, ” and found “no evidence of a cyclical mood disorder, psychotic disorder, or severe cognitive disorder.” Id.

         Ms. Haman reported that she had “daily dysphoric thought content with prominent irritability” and “passive suicidal ideation.” Id. She also “endorsed depressogenic cognitions” and reported “a frequency of panic attacks of one every few months.” Id. With respect to daily activities, Ms. Haman reported that she “can perform hygiene tasks autonomously and never neglects those, ” that she “does household chores, ” “avoids leaving the house, ” and “spends most of her time at home.” Id. She also reported that she drives, “although never further than about 10 minutes” from her home, ” and that she manages her finances and has a small social support network. Id. Dr. Hillbrand's diagnostic mental health impressions were: posttraumatic stress disorder, chronic; panic disorder without agoraphobia; and major depressive order, moderate. Tr. 492-93. Ultimately, he concluded that “she has struggled for years with posttraumatic stress and panic disorder symptoms and has more recently become depressed, ” and that these factors “adversely impact her functional capacity.” Tr. 493.

         On July 10, 2015, licensed clinical social worker Deborah Siegel at Bristol Hospital Counseling Center prepared a transfer/discharge summary report. Tr. 501. The report states that Ms. Haman's previous therapist, Ms. Babcock, had retired, and that Ms. Haman met briefly with Ms. Siegel for therapy “but reported stability and has been having her medications prescribed elsewhere for some time.” Tr. 501. As a result, Ms. Siegel reported her discharged from therapy at Bristol Hospital Counseling Center. Id.

         On January 15, 2016, consultative examiner Marc Hillbrand examined Ms. Haman again. Tr. 538-40. Compared with her prior visit, he concluded that her symptoms of PTSD had “become less severe over the time, ” but that her panic disorder “appears to have worsened over time and now includes agoraphobia.” Tr. 540. He also found that her “ability to comprehend, retain and carry out simple tasks is mildly impaired, ” that her “ability to comprehend, retain, and carry out complex tasks is moderately impaired, ” and that her “ability to interact appropriately with supervisors, coworkers, and the general public is moderately impaired.” Id.

         On June 21, June 28, September 8, September 13, and September 27 of 2016, Ms. Haman was treated by licensed clinical social worker Harold Fischer at Connecticut Behavioral Health Associates, P.C. in Southington, Connecticut, for anxiety and depression. Tr. 556, 555, 554, 553, 552. On October 18, November 1, November 8, and November 30 of 2016, Ms. Haman was treated by Donnalee O'Connell for anxiety and depression. Tr. 551, 550, 549, 548.

         On December 9, 2016, Dr. Phil Watsky, M.D., ^[6] completed a set of interrogatories as to Ms. Haman as requested by her attorney. Tr. 541-45. He reported that he had been treating Ms. Haman since 1999. Tr. 541. He indicated that Ms. Haman's fibromyalgia was characterized by widespread pain, fatigue, and sleep disruption, that her complaints were consistent with clinical findings, and that she suffers from a number of somatic symptoms^[7] including muscle pain and weakness, chronic fatigue syndrome, anxiety disorder, and migraine. Tr. 542-43. He further indicated that her fibromyalgia symptoms vary in severity from day to day, that she experiences hand pain and swelling 3 or more days per week, and that her symptoms do not overlap with symptoms from other conditions. Tr. 543-44. Overall, he indicated that fibromyalgia has been present by history and consistent with physical examinations since April 14, 2010.^[8] Tr. 544.

         On December 21, 2016, Nicholas B. Formica, M.D., a specialist in rheumatology, completed a set of interrogatories as to Ms. Haman as requested by her attorney. Tr. 557-61. He reported that he had been treating Ms. Haman since 2011 and that she had 27 visits with him.^[9]Tr. 557. He indicated that Ms. Haman's fibromyalgia was characterized by widespread pain, fatigue, and sleep disruption, that her complaints were consistent with clinical findings, and that she suffers from a number of somatic symptoms including muscle pain, muscle weakness, nausea, chest pain, diarrhea, anxiety disorder, and migraines. Tr. 558-59. He further indicated that her fibromyalgia symptoms vary in severity from day to day over time, that she experiences hand swelling and hand pain three or more days per week. Tr. 559. He noted, however, that her symptoms “overlap with symptoms from other conditions.” Tr. 560. Overall, he indicated that fibromyalgia has been present by history and consistent with physical examinations since April 14, 2010. Id.

         2. First Set of Proceedings Before the SSA

         Ms. Haman first filed an application for disability insurance benefits on August 9, 2011, claiming a disability onset date of August 11, 2012. See Gordon v. Colvin, No. 3:14-cv-1348 (VLB), 2017 WL 822796, at *1 (D. Conn. Mar. 2, 2017). That application was denied, and was ultimately denied by ...