Torres v. Berryhill

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

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         Carmelina Torres filed for Social Security disability insurance benefits under Section 205(g) of the Social Security Act, as amended by 42 U.S.C. § 405(g), which Administrative Law Judge (“ALJ”) Ronald J. Thomas denied. Social Security Transcripts by Social Security Administration, ECF No. 16 (“Tr.”), at 22.

         Ms. Torres now moves for a judgment on the pleadings. First Motion for Judgment on the Pleadings, ECF No. 20.

         In response, Nancy Berryhill, Acting Commissioner of the Social Security Administration (“Acting Commissioner”), ^[1] has moved for an order affirming the ALJ's decision. Motion to Affirm the Decision of the Commissioner, ECF No. 25.

         For the following reasons, the Court GRANTS the motion for judgment of acquittal DENIES the motion to affirm the Commissioner's decision.

         This case is remanded solely for the calculation and payment of benefits.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         On January 7, 2014, Ms. Torres awoke at 3:00 a.m. after feeling severe and sharp lower back pain. January 7, 2014 Medical Notes by Jadonna, Scala, M.D., Tr. at 675. It took Ms. Torres a half of an hour to get out of bed that day; she was initially unable to stand. Id. During a physical examination, Ms. Torres was unable to get up from a wheelchair. Id. After an injection of Toradol, Ms. Torres was able to lean forward for a limited examination, but still could not walk. Id. at 676. She also had limited movement in any direction, with pain during minimal movements. Id.

         As far back as January 2015, Ms. Torres has suffered from chronic back pain. Progress Notes, Tr. at 327 (reporting “persistent back pain” on January 21, 2015), 330 (reporting “chronic back pain” during a follow up on April 21, 2015), 337 (reporting back pain six weeks after lumbar surgery on November 19, 2015).

         As of September 11, 2015, Ms. Torres claims disability from a combination of fibromyalgia, ^[2] major depressive disorder, generalized anxiety disorder, panic attacks, chronic pain associated with significant psychosocial dysfunction, lower back pain, plantar fasciitis, ^[3]degenerative disk disorder of the lumbar spine, and obesity. Complaint, ECF No. 1 (“Compl.”), at ¶¶ 4, 5.

         On September 15, 2015, Ms. Torres underwent a successful percutaneous laser disk compression. ALJ Decision, Tr. at 16. Ms. Torres's medical notes reveal that throughout her physical therapy in November 2015, her strength improved, and back pain lessened. Id. at 17.

         1. Disability Applications

         On March 11, 2016, Ms. Torres applied for disability insurance and supplemental security income benefits. Application Summary for Disability Insurance Benefits, Tr. at 216; Application Summary for Supplemental Security Income, Tr. at 218.

         On May 24, 2016, the Social Security Administration ruled Ms. Torres not disabled. Disability Decision, Tr. at 116.

         On June 1, 2016, Ms. Torres requested a reconsideration of her disability determination. Request for Reconsideration, Tr. at 125.

         On June 24, 2016, the Social Security Administration denied Ms. Torres's request for reconsideration. Notice of Reconsideration, Tr. at 129.

         On July 30, 2016, Ms. Torres requested an ALJ hearing. Request for Hearing by Administrative Law Judge, Tr. at 136.

         On September 15, 2017, Ms. Torres had a hearing before ALJ Thomas. Compl. at ¶ 8.

         2. Medical Opinions

         a. Back Treatment Physician

         Both before and after her alleged disability onset date Ms. Torres saw Dr. Arpad Fejos, M.D. on many occasions for her back issues.

         On October 27, 2014, Ms. Torres went to Orthopedic Associates of Middletown for lower back pain, which she described as “aching and stabbing in her back with burning in her legs.” Office Treatment Records, Tr. at 781. By that time, she had tried physical therapy and chiropractic care for pain stemming from a February 15, 2014 auto accident. Id. Dr. Fejos observed that Ms. Torres's gait was to the right, there was muscle tension throughout the lumbar spine, and deep tendon reflexes were absent. Id.

         On November 5, 2014, Dr. Fejos recommended a trial of epidural steroid injections after a magnetic resonance imaging (“MRI”) revealed evidence of disk bulging. Office Treatment Records, Tr. at 783.

         On November 13, 2014, Ms. Torres received an epidural steroid injection. Office Treatment Records, Tr. at 784.

         On November 24, 2014, during a follow-up, Ms. Torres reported that she had no improvement after the injection and continued to have lower back and bilateral leg pain. Office Treatment Records, Tr. at 785. Dr. Fejos noted that Ms. Torres had satisfactory gait and thirty degrees of lumbosacral flexion that worsens her back pain. Id.

         On December 10, 2014, Dr. Fejos noted that Ms. Torres continued to have the same pain as before her first injection. Office Treatment Records, Tr. at 786. As a result, Dr. Fejos recommended another injection. Id.

         On December 15, 2014, Ms. Torres received another epidural steroid injection. Office Treatment Records, Tr. at 787.

         On December 31, 2014, Ms. Torres reported an eighty percent improvement for one week after the epidural injection. Office Treatment Records, Tr. at 788. But she also reported that she continued to have lower back pain and bilateral leg pain. Id. Dr. Fejos recommended a repeat lumbar epidural injection. Id.

         On February 12, 2015, doctors performed a bilateral epidural injection for Ms. Torres's disk bulge, with no evidence of procedural complications. February 12, 2015 Treatment Notes, Tr. at 385.

         On February 25, 2015, Dr. Fejos noted that Ms. Torres had three lumbar epidural steroid injection and that it only provided a day or two of pain relief before returning to her pre-procedure pain. February 25, 2015 Treatment Notes, Tr. at 384. At the time, Dr. Fejos recommended therapeutic options. Id.

         On April 1, 2015, Ms. Torres expressed that she wanted to have back surgery. April 1, 2015 Treatment Notes, Tr. at 383. Her physical condition was unchanged. Id.

         On April 18, 2016, Ms. Torres had an MRI, which found multi-level degenerative disk disease. April 18, 2016 Treatment Notes, Tr. at 386.

         On May 6, 2015, Ms. Torres's physical condition was unchanged. Id.

         On June 8, 2015, Dr Fejos examined Ms. Torres and found that she still had pain with flexion, but none with extension. June 8, 2015 Treatment Notes, Tr. at 381. Dr. Fejos recommended moving forward with the disk operation. Id.

         On August 25, 2015, a physical examination revealed that Ms. Torres still had pain with flexion, but none with extension. August 25, 2015 Treatment Notes, Tr. at 380.

         On September 15, 2015, Ms. Torres had a percutaneous laser disk decompression operation for a disk bulge. Operative Report, Tr. at 378. Dr. Fejos, reported that Ms. Torres had a successful operation. Id.

         On September 22, 2015, Dr. Fejos saw Ms. Torres for a follow up after her laser disk decompression surgery. September 22, 2015 Treatment Notes, Tr. at 377. Dr. Fejos noted that Ms. Torres felt her back pain worsened. Id. During a physical examination, Dr. Fejos also noted that there was increased muscle tension throughout the lumbar spine and a decreased range of motion in all directions. Id. Based on this assessment, Dr. Fejos recommended physical therapy and renewed her Percocet and Meloxicam prescriptions. Id.

         On October 20, 2015, Dr. Fejos examined Ms. Torres. Dr. Fejos noted that Ms. Torres had difficulty getting in on time. October 20, 2015 Treatment Notes, Tr. at 376. Dr. Fejos noted that Ms. Torres still had pain within the range of motion of her lumbar spine. Id. Based on her symptoms, Dr. Fejos recommended Percocet, Meloxicam, and Flexeril for Ms. Torres's back pain and encouraged aquatic therapy. Id. Dr. Fejos also restricted Ms. Torres to sedentary duty at her job. Id.

         On December 16, 2015, Dr. Fejos examined Ms. Torres. Dr Fejos noted that Ms. Torres made some progress walking and standing due to therapy but was far behind her anticipated recovery. December 16, 2015 Treatment Notes, Tr. at 375. Dr. Fejos found that Mr. Torres still had pain with range of motion in all directions. Id. At that time, Dr. Fejos recommended physical therapy and checking in with Ms. Torres in three months, if pain worsened. Id.

         On March 8, 2016, Dr. Fejos examined Ms. Torres. Dr. Fejos noted that six months after her percutaneous laser disc compression, Ms. Torres had minimal improvement in her symptoms. March 8, 2016 Treatment Notes, Tr. at 374. Dr. Fejos recommended another MRI of the lumbar spine to rule out any other issues with Ms. Torres's back. Id.

         That same day, Dr. Fejos completed Family Medical Leave Act forms for Ms. Torres. Dr. Fejos determined that Ms. Torres's condition started in December 2014 and will continue for an unknown duration. Family Medical Leave Act Form, Tr. at 369. Dr. Fejos expected that Ms. Torres would need physical therapy for four months. Id. And Dr. Fejos attested that Ms. Torres was not unable to perform her job functions due to the condition. Id. Dr. Fejos also estimated that the ending date of Ms. Torres's period of incapacity would be October 2016.

         On April 26, 2016, Dr. Fejos had an MRI follow up with Ms. Torres for her disk bulge where he noted that the MRI of Ms. Torres's lumbar spine is unchanged. April 26, 2016 Treatment Notes, Tr. at 373. At the time, Ms. Torres was taking three Percocet per day, even though doctors prescribed two per day. Id. Dr. Fejos also noted that Ms. Torres understood that that she was at maximum medical improvement. Id.

         On June 6, 2016, Dr. Fejos noted that, while Ms. Torres limited her Percocet to two per day, she was very uncomfortable. June 6, 2016 Treatment Notes, Tr. at 547. Dr. Fejos noted pain which worsened with extension. Id. Dr. Fejos recommended Percocet and considered a future facet medial branch block. Id.

         On August 30, 2016, Dr. Fejos reported that Ms. Torres had lower back pain, bilateral leg pain, and pain everywhere. August 30, 2016 Treatment Notes, Tr. at 546. Dr. Fejos mentioned that Ms. Torres was diagnosed with fibromyalgia and sought pain management with no improvement. Id. Dr. Fejos also noted that Ms. Torres had a slow but steady gait, with pain during lumbar flexion, and paralumbar tenderness. Id. Dr. Fejos had no recommendations for her care. Id.

         On November 21, 2016, Dr. Fejos reported that Ms. Torres was “miserable, ” with increased muscle tension throughout the lumbar region. November 21, 2016 Treatment Notes, Tr. at 545. Dr. Fejos noted that during the physical examination, Ms. Torres had pain with range of motion in all directions. Id.

         b. Physical Therapy Assessments

         From October 2015 through December 2015, Ms. Torres utilized a physical therapy program at Gaylord Hospital supervised by Benjamin Simaitis, MSPT, CSCS.

         On October 13, 2015, Mr. Simaitis noted that Ms. Torres had back pain both before and after surgery, which had prevented her from returning to work as a bus driver. Physical Therapy Orthopedic Assessment, Tr. at 354. Ms. Torres also reported that her lower back pain ranged from an 8/10 to a 10/10. Id. The assessment created goals of decreasing pain to a 2/10 at worst within two weeks and 0/0 within eight weeks, and to increase lumbar limitations to seventy-five percent of normal within two weeks and one hundred percent of normal within eight weeks. Id. at 355.

         On October 15, 2015, Mr. Simaitis reported that Ms. Torres's back was sore, and that pain increased with movement. October 15, 2015 Physical Therapy Orthopedic Visit Note, Tr. at 356. There was also no increase in back pain reported with strengthening activities. Id. And the same goals of two and eight weeks were present during this visit. Id.

         On October 27, 2015, Mr. Simaitis reported that Ms. Torres's back was sore for unknown reasons. October 27, 2015 Physical Therapy Orthopedic Visit Note, Tr. at 358. Ms. Torres also noted an increase in back pain following exercise activities. Id. at 359.

         On October 29, 2015, Mr. Simaitis reported that Ms. Torres had daily lower back pain, but she performed her therapy as often as possible. October 29, 2015 Physical Therapy Orthopedic Visit Note, Tr. at 650. And Mr. Simaitis assessed that Ms. Torres was self-limited with exercise progression due to pain and anxiety. Id. at 651.

         On November 3, 2015, Mr. Simaitis indicated that Ms. Torres's back pain felt good. November 3, 2015 Physical Therapy Orthopedic Visit Note, Tr. at 652. Ms. Torres tolerated additional sitting and standing exercises, with no increase in pain. Id. at 653.

         On November 10, 2015, Mr. Simaitis reported that Ms. Torres reported minimal back pain. November 10, 2015 Physical Therapy Orthopedic Visit Note, Tr. at 654. Mr. Simaitis noted that Ms. Torres was progressing slowly with exercises and activities. Id. at 655.

         On November 12, 2015, Mr. Simaitis reported that Ms. Torres stated that her back was not hurting as much, and strength was improving. November 12, 2015 Physical Therapy Orthopedic, Tr. at 656. At the visit, Ms. Torres tolerated exercise progression with no increased pain. Id. at 657.

         On November 24, 2015, Mr. Simaitis reported that Ms. Torres had lower back pain, which slightly improved since the start of physical therapy. November 24, 2015 Physical Therapy Orthopedic Progress Note, Tr. at 361. The progress notes also highlighted that Ms. Torres “ha[d] been cleared to return to work light duty, ” but that she reported “continued difficulty with household chores-bending, lifting, twisting.” Id. There was also a note that Ms. Torres's backward bending pain limited Ms. Torres to less than fifty percent of normal, forward bending to seventy-five percent of normal, left-side bending to seventy-five percent of normal, and right-side bending to fifty percent of normal. Id.

         On December 8, 2015, Mr. Simaitis reported continued pain in her lower back. December 8, 2015 Physical Therapy Orthopedic Visit Note, Tr. at 664. At the visit, Ms. Torres tolerated treatment with moderate difficulty and was able to complete all her exercises. Id. at 665.

         On December 16, 2015, Philip Silverio, PT reported minimal change in pain since Ms. Torres's last session. December 16, 2015 Physical Therapy Orthopedic Visit Note, Tr. at 363. Mr. Silverio noted that Ms. Torres continued to present decreased exercise tolerance due to pain but was able to complete rehab session. Id. at 364. The stated physical therapy goals were to decrease pain to a 2/10 at worst within two weeks and 0/0 within eight weeks, and to increase lumbar limitations on all plains to seventy-five percent of normal within two weeks and one hundred percent of normal within eight weeks. Id. at 363.

         On December 30, 2015, Mr. Silverio reported that Ms. Torres continued to have pain in her lower back. December 30, 2015 Physical Therapy Orthopedic Visit Note, Tr. at 365. Mr. Silverio noted that Ms. Torres was able to perform her exercises with a “mild increase in symptoms, ” but that the symptoms did not decrease. Id. at 366. The physical therapy goals were to decrease pain to a 2/10 at worst within two weeks and 0/0 within eight weeks, and to increase lumbar limitations on all plains to seventy-five percent of normal within two weeks and one hundred percent of normal within eight weeks. Id. at 365.

         c. Fibromyalgia ...