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Alamo v. Berryhill

United States District Court, D. Connecticut

September 3, 2019

ISMAEL ALAMO, Plaintiff,
v.
NANCY E. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, U.S.A., Defendant.

          RULING RE: MOTION TO REVERSE THE COMMISSIONER'S DECISION (DOC. NO. 27)

          Janet C. Hall United States District Judge.

         I. INTRODUCTION

         Plaintiff Ismael Alamo (“Alamo”) brings this action under title 42 section 405(g) of the United States Code, appealing from the final determination of the Commissioner of Social Security (“the Commissioner”) denying his applications for disability insurance benefits and supplemental security income. Motion to Reverse the Decision of the Commissioner (“Pl.'s Mot.”) (Doc. No. 27). The Commissioner cross-moves for an order affirming that decision. Defendant's Motion to Affirm the Decision of the Commissioner (“Def.'s Mot.”) (Doc. No. 28).

         For the reasons set forth below, the Motion to Reverse the Decision of the Commissioner is GRANTED, and the Motion to Affirm the Decision of the Commissioner is DENIED. The case is remanded to the ALJ for proceedings consistent with this decision.

         II. BACKGROUND

         A. Facts

         On August 18, 2012, Alamo was involved in a serious accident while riding an all-terrain vehicle. Stipulation of Facts (Doc. 27-1) at 2. Alamo was taken to Hartford Hospital where he was diagnosed with a subdural hemorrhage, fractures of the third through seventh ribs on the right, a transverse process fracture at the L1 level, and a right frontal contusion. R. 375. The trauma unit subsequently added the additional diagnoses of traumatic brain injury and subdural hematoma. Alamo was discharged on August 27, 2012, with instructions to follow up with the Trauma Clinic at Hartford Hospital. R. 377.

         Alamo was seen at the Trauma Clinic on September 5, 2012 and September 12, 2012. On both occasions, Alamo complained of continued pain and was provided medications.

         The next medical record is from February 10, 2014. Stipulation of Facts ¶ 5.

         Alamo was seen on February 10, 2014, at First Choice Health Centers by APRN Brittany Enz. R. 409-411. She noted that Alamo was homeless and was recently approved for medical insurance. Id. She further noted a history of traumatic brain injury and back pain. She ordered spinal X-rays, which were taken on February 10, 2014. The radiologist concluded that the X-rays showed “[n]o evidence for acute injury or significant degenerative change. Mild curvature to the lower thoracic spine. Sacralization of L5 bilaterally which could be the source of chronic pain.” R. 416.

         Alamo returned to APRN Enz on February 17, 2014. He continued to complain of pain and was prescribed medication. APRN Enz also referred Alamo to pain management, MRI testing, and physical therapy. R. 407.

         On February 24, 2014, Alamo underwent MRI testing. The cranial MRI was interpreted as unremarkable. R. 412. The lumbar MRI noted that “there may be sacralization of L5 seen on the axial sequences” and, at ¶ 4-5 “[t]here is a disk desiccation and a mild annular disk protrusion with a small central annular tear and/or contained extrusion.” R. 414.

         Alamo was seen again by APRN Enz on March 18, 2014. R. 422-423. APRN Enz changed Alamo's prescription after Alamo complained that his medication was ineffective. APRN Enz noted that she would complete the disability paperwork and noted the importance of a functional capacity evaluation. She referred Alamo to Easter Seals to complete this evaluation. At a follow up appointment on April 8, 2014, APRN Enz noted that Easter Seals was unable to complete the evaluation. R. 420. She further noted that she would help “in any ways [sic] I could” with Alamo's disability application. R. 421.

         Alamo returned to APRN Enz on July 24, 2014, and August 21, 2014. R. 448, 446. At the July 2014 appointment, Alamo informed APRN Enz that he failed to attend a neurology appointment at the UCONN Health Center. APRN Enz urged Alamo to reschedule the appointment. APRN Enz also referred Alamo to “Pain Medicine” due to Alamo's chronic pain. R 447.

         Alamo was seen by Dr. Qassem Kishawi at the Woodland Anesthesiology Pain Management Center of the St. Francis Medical Center on September 8, 2014. Alamo complained to Dr. Kishawi of severe low back pain. On examination, Dr. Kishawi found Alamo to be in “moderate distress.” R. 461. He further noted that “[e]xam of the lower extremities for motion, sensory, reflex, vascular exam and range of motion is otherwise unremarkable.” R. 461. Dr. Kishawi noted that Alamo suffers from “lumbar spinal stenosis” and ordered a lumbar epidural steroid injection. R. 462.

         During this time, Alamo attended three physical therapy sessions at Mt. Saini Center for Rehabilitation/Sports. R. 459. Alamo was initially evaluated on September 4, 2014. The medical diagnosis was “sacralization of the lumbar vertebra” and the therapy diagnosis was “decreased active [range of motion in the] lumbar spine, spasm in the low back region, difficulty with IADL [independent activities of daily living].” R. 459. The record further noted that Alamo “still has difficulty in bending in all directions in the lumbar spine.” It was also noted that Alamo had missed most of the physical therapy sessions; he was therefore discharged from physical therapy on October 20, 2014.

         Alamo returned to APRN Enz at First Choice on September 23, 2014, and October 23, 2014. R. 444, 442. In these appointments, Alamo discussed cortisone injections, physical therapy, and pain management at St. Francis. Despite this treatment, Alamo continued to complain of back pain. Id. Physical examinations were notable only for “lumbar pain and limited range of motion.” Id.

         When Alamo returned to First Choice on December 16, 2014, he was seen by Dmitry A. Drapach, D.O. R. 440. Dr. Drapach noted that physical examinations reflected no changes from the prior visit. Alamo continued to complain of pain, and Dr. Drapach adjusted his medications. Id.

         On February 23, 2015, Alamo was seen by a neurologist at the UCONN Health Center. R. 463. In the consultation, Alamo complained of headaches and chronic back pain. The reporting physician noted that he would follow up after a cranial MRI. The report noted that Alamo had the correct medication to treat his headaches and that he would not make changes until after an MRI. The report concluded “[b]ackache management per primary care.” R. 465.

         The report from UCONN Health Center is the last contemporary medical chart note in the record. Stipulation of Facts ¶ 5.

         The Record contains a May 23, 2016 letter from Torise Baker, Alamo's full time care-taker. She reported that Alamo requires constant supervision and suffers from mood swings. R. 374.

         Furthermore, there is a July 6, 2016 letter from Wendy Epps, M.Ed, LADC. R. 467. Epps had provided therapy services to Alamo since August 2014. Epps reported that Alamo suffers from PTSD and recommended that Alamo seek medical attention to address these issues. R. 467.

         The record also contains reports from two examining physician consultants and four non-examining consultants. At the request of the State Agency, Alamo underwent two examinations. On April 26, 2014, Dr. Andrew B. Pleshkevich, Ph.D., conducted a psychological examination. Dr. Pleshkevich noted that Alamo's affect “was depressive and he appeared to be in noticeable pain.” R. 426-427. Alamo's score on the Mini-Mental States Exam indicated no impairment. R. 427. On the WAIS-IV test, Alamo demonstrated a Full Scale IQ of 89 (low average). Although Alamo scored Average or Low ...


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