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Borelli v. Berryhill

United States District Court, D. Connecticut

September 6, 2019



          Hon. Vanessa L. Bryant United States District Judge

         Plaintiff 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.

         I. Background

         Mr. Borelli was born in 1976 and educated up to the 8th grade.[1] [R. 158, 160].[2] 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 158, 161.

         A. Medical Records[3]

         Dr. 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. Id.

         In 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].

         Plaintiff 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.

         Plaintiff 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.

         Mr. 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. 453-54].

         Mr. 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 Flexeril. Id.

         On 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 use. Id.

         In 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. 447-48].

         In 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].

         Mr. 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. Id.

         Dr. 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].

         On June 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. 435-39].

         On 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].

         On 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.

         Mr. 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].

         On 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].

         Mr. 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.

         His symptoms were thought to be stress-related. [R. 480-82]. All testing was non-diagnostic, and he was released. Id.

         On 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].

         Dr. 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].

         Mr. 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].

         In 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.

         On 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].

         Mr. 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].

         In 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].

         Mr. 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, 751-52].

         In May, 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. 693-94].

         Dr. 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.

         Mr. 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. 721-23].

         On 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, 804].

         Mr. 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].

         Mr. Borelli reported that the prescribed medication was not enough to deal with his pain. [R. 30].

         The 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 ...

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