United States District Court, D. Connecticut
MEMORANDUM OF DECISION REMANDING THE CASE TO THE
Vanessa L. Bryant United States District Judge
Jason Borelli (“Mr. Borelli” or
“Plaintiff”) challenges the Commissioner of
Social Security's final decision to deny his application
for disability benefits pursuant to 42 U.S.C. § 405(g).
Mr. Borelli moves to reverse or remand the decision, arguing
that the Administrative Law Judge (“ALJ”) failed
to fully develop the record, that Mr. Borelli's claims of
pain were insufficiently evaluated, and that the residual
functional capacity assessment is unsupported. Defendant
Nancy A. Berryhill, Acting Commissioner of Social Security
(“Defendant”), moves to affirm the
Commissioner's final decision. For the reasons stated
below, the Court DENIES Defendant's motion and GRANTS
Plaintiff's motion to remand to allow the ALJ to fully
develop the record.
Borelli was born in 1976 and educated up to the 8th
grade. [R. 158, 160]. He has a history of work in
the manual trade. Id. Mr. Borelli is married with
three children. Id. His disability claim is based
primarily on chronic lower back pain resulting from herniated
discs with impingement of the nerve root. Id. at
Borelli saw Dr. Xiaoming Hong for primary care treatment from
March 2012 to October 2012, with continued appointments after
that as well. [R. 408, 413, 417-21]. On March 23, 2012, Mr.
Borelli saw Dr. Xiaoming Hong and complained of back pain
stemming from a motor vehicle accident seven years prior. [R.
421]. Mr. Borelli reported tenderness and had a positive
straight leg raising test, suggesting that a herniated disk
may be the cause of the pain. Id. Mr. Borelli took
Motrin and Percocet for the pain. [R. 418-20]. He also noted
a history of mild depression and problems sleeping.
April 2012, Plaintiff reported dental concerns, weight loss,
difficulty sleeping, and mild depression. Id.
Examinations of Plaintiff's extremities and neurological
system were unremarkable. [R. 419]. During his next visit,
Plaintiff reported that he was moving furniture and had pain
in the middle of his back. [R. 417]. Dr. Hong prescribed
Robaxin and Mobic. [R. 417]. In September 2012, Plaintiff
reported low back pain; he requested Percocet, but did not
want to go to pain management. [R. 413]. Dr. Hong referred
Plaintiff to a cardiologist, Dr. Nathan Kruger, for
dyslipidemia and complaints of chest discomfort. [R. 407].
saw Dr. Kruger on September 14, 2012. [R. 407]. Mr. Borelli
complained of shortness of breath, jaw discomfort, severe
headaches and episodic dizziness. Id. Dr. Kruger
observed that Plaintiff walked comfortably and that he was
neurologically intact. Id. His weight was noted at
305 pounds. Dr. Kruger recommended regular aerobic exercise
to lose weight. Id.
saw APRN Julie Dunn of Connecticut Gastroenterology
Consultants on October 11, 2012, complaining of a variety of
ailments including solid food dysphagia (difficulty
swallowing), bloating, and irregular bowel pattern. [R.
404-06]. The physical examination findings were unremarkable.
Id. APRN Dunn recommended an endoscopy and a
colonoscopy following cardiac clearance. Id. She
also recommended a proton-pump inhibitor (PPI) and Align, but
Plaintiff declined medication. Id.
Borelli saw Dr. Steve Levin on November 16, 2012 for pain
management evaluation for low back pain. [R. 398-403]. Mr.
Borelli reported that his back pain had returned four months
ago, noting that surgery was initially recommended but that
he had lost weight and his back pain had improved. [R. 398].
Mr. Borelli indicated that his ability to perform activities
of daily living, including household chores, shopping and
driving, were intact. Id. Mr. Borelli's gait was
guarded, but he could heel and toe walk, indicating normal
muscle strength. [R. 399]. He had full strength through his
upper and lower extremities and the straight leg raising
tests were negative. Id. Dr. Levin noted diagnoses
of degenerative disc disease with possible spondylosis,
myofascial pain syndrome, sleep disturbance, and gait
disturbance. [R. 402]. He referred Mr. Borelli to physical
therapy / occupational therapy, and prescribed Baclofen and
temporary Oxycodone. Id. On January 4, 2013,
Plaintiff reported some benefit with pain medication. [R.
Borelli reported to the emergency room at Milford Hospital on
January 8, 2013 following a motor vehicle collision,
reporting pain primarily in his left trapezius area. [R.
430-31]. Plaintiff reported that he did not take any
medications and was prescribed Oxycodone/acetaminophen and
January 30 and in February 2013, Plaintiff reported continued
benefit from medication to Dr. Levin. [R. 453]. Mr. Borelli
had attended three physical therapy sessions but did not
intend to return due to neck pain. Id. Mr. Borelli
used a transcutaneous electrical nerve stimulation
(“TENS”) unit during sessions and wanted to use
one at home as he had experienced improved symptoms after
March 2013, Mr. Borelli returned to The Orthopaedic Group for
the first time in approximately five years and saw Dr.
Shirvinda Wijesekera. [R. 442-45]. On examination, Mr.
Borelli's weight was noted at 320 pounds, resulting in a
Body Mass. Index (“BMI”) of 41.1, within the
“extreme obesity” range. Id. Mr. Borelli
sat comfortably and was not in any acute distress; his mood
and affect were normal. Id. Examinations of Mr.
Borelli's cervical and thoracic spine were unremarkable,
but he had tenderness in his lumbar spine. Id. He
had normal sensation, full strength, painless motion, and
normal reflexes in his upper and lower extremities and he
could toe and heel walk and rise from a seated position.
Id. Dr. Wijesekera prescribed a course of steroids,
Medrol Dosepak. Id. An MRI of Mr. Borelli's
lumbar spine showed degenerative disc disease and facet
arthropathy in the lumbar spine without central spinal canal
stenosis; and left foraminal L3-L4 protrusion and mild facet
arthropathy resulting in mild foraminal stenosis, and
potential contact with the exiting L3 nerve root. [R.
March and April 2013, Mr. Borelli reported to Dr. Levin that
he was benefitting from pain medication and use of the TENS
unit. [R. 453].
Borelli had an orthopedic follow-up with physician's
assistant (“PA”) Sherri O'Connor in April
2013, reporting continued lumbar pain with radiculitis. [R.
441, 456]. On examination. Mr. Borelli showed a mildly
positive straight leg raise on the left side and a mildly
antalgic gait, but was otherwise neurologically intact. [R.
441]. PA O'Connor noted that Mr. Borelli was having
significant symptoms causing moderate-to-severe pain and
noted her impression was that he had an L3-L4 disc bulge
causing L3 radiculitis and L5-S1 disc bulge. PA O'Connor
prescribed Mobic and scheduled an epidural injection.
Wijesekera administered a lumbar spine epidural injection in
May 2013. [R. 432-34, 446, 450]. Mr. Borelli reported that
the injection increased his pain. [R. 423, 425, 427, 440].
Dr. Levin changed Mr. Borelli's medication from Oxycodone
to Oxycontin. [R. 452-53]. In June 2013, Mr. Borelli asked
Dr. Levin to change his medication back to Oxycodone. Dr.
Levin offered him an alternative opioid, which Mr. Borelli
declined, saying that if Dr. Levin would not prescribe what
he wanted, Dr. Wijesekera would take over his pain
medication. [R. 423]. Dr. Levin noted that Mr. Borelli's
ability to do chores and ability to engage in daily
activities was intact. [R. 424].
28, 2013, Mr. Borelli went to the emergency room with sudden
onset back pain. He was diagnosed with a lumbar strain,
prescribed Percocet, and sent home. [R. 435-38]. Mr. Borelli
saw Dr. Wijesekera on July 10, 2013 and reported that he was
not taking pain medication on a regular basis but sometimes
took Percocet four times per day. [R. 439]. On examination,
Mr. Borelli was alert and oriented with normal appearance and
affect. He had some diffuse paraspinal tenderness but his
physical examination was otherwise unremarkable. Id.
Dr. Wijesekera recommended Mr. Borelli resume his pain
management and referred him to a neurologist for an EMG. [R.
August 6, 2013, Mr. Borelli went to the emergency room and
reported back pain. [R. 464-67, 512-13, 606-08]. He was seen
by Dr. Robert Bayer at Yale New Haven. [R. 464-66]. Mr.
Borelli said he took Percocet only when he needed it and
denied difficult walking, numbness, and weakness. [R. 464].
He had tenderness in his spine, but no spasm, and could sit
and stand without difficulty and walked well. [R. 465]. He
was given Naproxen and a Lidocaine patch. [R. 512, 608].
September 9, 2013, Mr. Borelli saw Dr. Wijesekera and
complained of pain radiating down his right leg. [R. 648]. An
EMG showed no evidence of radiculopathy. Id. Dr.
Wijesekera recommended pain management but did not recommend
surgical intervention. Id.
Borelli saw Dr. Mohan Vodapally on September 11, 2013 for a
pain management evaluation. [R. 715-18]. On examination, Mr.
Borelli had an antalgic gait, but heel and toe walking were
normal. [R. 716-17]. His shoulders and cervical spine were
normal and he had 5/5 strength in all major muscle groups,
but he had restricted range of motion and tenderness in his
lumbosacral spine. Id. Lumbar facet loading was
positive on both sides. Mr. Borelli's straight leg
raising test was negative. Id. Dr. Vodapally
diagnosed lumbosacral spondylosis with myelopathy, lumbar
disc displacement without myelopathy, and obesity. [R. 717].
He prescribed Oxycodone and Zanaflex and recommended
diagnostic lumbar facet mapping. [R. 717-18].
September 24, 2013, Dr. Vodapally noted that the medication
somewhat alleviated Mr. Borelli's pain. He performed a
bilateral L3, L4, and L5 medial branches of posterior rami
block with fluoroscopic guidance. [R. 711-14]. At a follow-up
appointment on September 30, Dr. Wijesekera noted
unremarkable physical examination findings and that Mr.
Borelli was doing better and should continue pain management.
[R. 647, 711-12].
Borelli went to the emergency room on September 30, 2013
complaining of non-radiating chest pain, shortness of breath,
recent difficulty word-finding, a sensation “while he
was driving he felt as if the car was going to the left,
” and back pain. [R. 609-10]. His gait and coordination
were normal; he had tenderness in his lumbar spine; his
attention and memory were intact with normal speech. [R.
476]. Plaintiff had full muscle strength. He was admitted to
the hospital for observation and neurological consultation.
symptoms were thought to be stress-related. [R. 480-82]. All
testing was non-diagnostic, and he was released. Id.
October 7, 2013, Dr. Vodapally administered a second set of
medial branch blocks, which had significantly relieved Mr.
Borelli's pain the first time. [R. 709-10]. The relief
from the second set of blocks was marked but temporary. [R.
706-08]. Dr. Vodapally administered a lumbar medial branch
radiofrequency ablation (“RFA”) at the bilateral
lumbar area on November 26, 2013. [R. 703-05].
Wijesekera saw Mr. Borelli in December 2013. Mr. Borelli
reported feeling much better after the RFA but noted an
aching tailbone pain. [R. 646] At a December 23, 2013 visit,
Mr. Borelli noted a marked increase in pain in the lower
sacral area. [R. 645]. Dr. Wijesekera ordered an MRI, which
showed no significant changes from the prior MRI. [R.
544-45]. The MRI did show “a left foraminal small disc
herniation mildly impinging on the left L3 nerve root[,
]” “[m]inimal disc bulging[, ]”
“similar right foraminal disc protrusion and annular
fissure at ¶ 4-5 contacting the right L4 nerve root[,
]” and “[s]imilar tiny central-right paracentral
protrusion at ¶ 5-S1 minimally contacting the right S1
nerve root.” [R. 544-45].
Borelli continued primary care visits to Dr. Hong from
October 2013 to November 2014. [R. 515-18, 519-21, 524,
553-54, 556-57, 575-77, 583-85, 587-89].
January 2014, Mr. Borelli saw Dr. Wijesekera and noted lower
back pain, which improved with medication and worsened with
activity, and denied any new numbness, weakness, or tingling.
[R. 644]. Mr. Borelli's physical examination findings
were unchanged. Id. Dr. Wijesekera noted that the
MRI did not demonstrate any surgical pathology and
recommended continued conservative care, including physical
therapy and pain management. Id.
January 24, 2014, Dr. Vodapally noted that Mr. Borelli had
excellent relief of his lower back pain following the RFA
site. [R. 781-83]. Mr. Borelli's sacroiliac joint was
tender and Dr. Vodapally performed a sacroiliac joint
injection on February 11, 2014. [R. 778-79, 783]. Oxycodone
and Valium were re-prescribed, and Mr. Borelli reported that
his medication was working well. [R. 779]. Dr. Vodapally
performed another set of nerve blocks on March 18, 2014, [R.
546-47], and performed a Sacroiliac joint injection on April
8, 2014. [R. 525-27]. Mr. Borelli reported pain in the left
gluteal area after his injection. [R. 761-66]. Dr. Vodapally
recommended ibuprofen, gave Mr. Borelli samples of Duexis,
and replaced Oxycodone with Percocet. [R. 763, 766].
Borelli's gluteal area pain continued at his April 16,
2014 and May 16, 2014 visits. [R. 761-63, 758-60]. Dr.
Vodapally administered a sacroiliac joint injection on June
17, 2014. [R. 756-57].
December 2014, Mr. Borelli reported that his medication
reduced his pain symptoms by 50 percent, but indicated
continued low back pain and the development of medication
tolerance. [R. 699-701].
Borelli saw Dr. Hong on January 29, 2015 complaining of back
pain and numbness following a fall on ice. [R. 579-581]. An
x-ray was unremarkable. [R. 543]. At a follow-up visit on
February 4, 2015, Dr. Vodapally recommended another RFA,
which took place March 3, 2015. [R. 372, 691-94, 749-50]. Mr.
Borelli reported a 50 percent relief of lower back pain
following the RFA. [R. 687-90, 746-48]. Dr. Vodapally
discontinued Mr. Borelli's Oxymorphone in February 2015
because his drug test was negative for opioids but restarted
the Oxymorphone in April 2015. [R. 684-86, 690, 741-45,
June, and July 2015, Dr. Vodapally continued Mr. Borelli on
Oxymorphone. [R. 673-75, 678-83, 726-28, 732-37]. In July
2015, Dr. Vodapally performed a lumbar medial branch RFA. [R.
Hong's notes from a July 29, 2015 visit, precipitated by
forearm pain after slipping, indicate that Mr. Borelli
“is unable to move around well. Not capable to perform
any type of jobs. He has been applying for Social Security.
History of depression. Still feels depressed.” [R.
561]. Dr. Hong recommended continued pain management,
psychiatry evaluation, and that, due to his depression and
pain, that Mr. Borelli not work. Id.
Borelli continued pain management visits to Dr. Vodapally.
Dr. Vodapally administered another steroid injection at the
L5-S1 level on August 4, 2015. [R. 530-32]. At an August 31,
2015 follow-up appointment, Mr. Borelli indicated that his
medication improved his pain symptoms by 50 percent. [R.
September 30, 2015, Mr. Borelli reported increasing low back
pain with left leg numbness to Dr. Vodapally. [R. 802-04]. In
September and October 2015, Dr. Vodapally noted that Mr.
Borelli had improved pain control with RFA of the lumber
medial branch and indicated that he would schedule for a
repeat procedure. [R. 795-97, 802-04]. Dr. Vodapally added
Oxymorphone ER for around-the-clock pain control. [R. 797,
Borelli went to the Yale New Haven Hospital Emergency Room on
September 10, 2016 with chest pain of non-cardiac origin. [R.
81-106]. He returned on October 15, 2016 with chronic low
back pain. [R. 59-80]. He was diagnosed with chronic low back
pain and with an opioid use disorder. He attended a MAAS
program two days later, where he indicated he was dependent
on opiates and unable to function without them. [R. 24].
Borelli reported that the prescribed medication was not
enough to deal with his pain. [R. 30].
November 7, 2016 chart note from MAAS indicates that Mr.
Borelli was on prescribed Suboxone, which had a beneficial
impact on his pain. [R. 43-45]. The stated short-term goals
were to “get stable on [suboxone] and stop ...