United States District Court, D. Connecticut
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 ...