United States District Court, D. Connecticut
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 ...