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Alford v. Saul

United States District Court, D. Connecticut

September 30, 2019



          Robert N. Chatigny United States District Judge.

         Plaintiff brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision denying her application for disability insurance benefits. Plaintiff moves for an order reversing the decision, contending that her waiver of the right to counsel was not knowingly and intelligently made, the Administrative Law Judge (“ALJ”) failed to adequately develop the record, and the ALJ's findings are not supported by substantial evidence. Defendant moves for an order affirming the decision. After careful consideration of the entire administrative record, I conclude that the case must be remanded for a number of reasons, most importantly to enable the Commissioner to more fully investigate and assess the impact of plaintiff's chronic pain on her capacity to work. The Commissioner discounted plaintiff's complaints of chronic pain, even though no medical provider had ever done so in the lengthy history of plaintiff's medical treatment. And the Commissioner did so in large measure because plaintiff's complaints were deemed to be inconsistent with her attempts to work as a home health aid. On the existing record, this appears to be a case in which the Commissioner made the error of penalizing a claimant for enduring the pain of her disability in order to earn money to support herself. See Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000).

         I. Background

         A. Relevant Medical History Prior to Claimed Disability Onset

         Plaintiff has an “extremely long and complicated [medical] history, ” R. 371, encompassing numerous ailments. Primary among them is an extensive history of back, hip, and leg pain, the cause of which appears to be a motor vehicle accident in her youth.[2] Stipulation of Facts (ECF No. 23-2) at *1-*2. The accident caused a fracture of her right femur, which led to an inequality in adult leg length of 1-2 centimeters, resulting in back, hip, and leg joint pain. R. 378. At some point following the accident, plaintiff received an “open reduction internal fixation with femoral rodding” in her right femur. R. 371; see also R. 375 (orthopedic surgeon noting that “[t]he right side is not arthritic but does have hardware in the femur”), 609 (radiologist noting a “right side fixation plate and femoral compression screw”).

         Plaintiff sought medical attention for her pain on July 24, 2006; a subsequent x-ray was interpreted by a radiologist to show “severe degenerative disease involving the left hip.” Stipulation at *1-*2. As a result, plaintiff underwent a total left hip replacement on January 16, 2007. Id. at *2. That operation “probably exacerbated” her leg length discrepancy to 3 centimeters, leading her orthopedic surgeon, Dr. Peter Boone, to recommend a lift be added to her right shoe. R. 378. Plaintiff had several follow-ups with Dr. Boone in 2007. R. 378, 380, 381. At the last, on July 11, 2007, she reported continued discomfort while walking. Stipulation at *2-*3. Dr. Boone noted that plaintiff “[wa]s not ready for full time work” but could “probably do part time clerical work using the cane to help support her.” Id. at *3.

         The next event of note took place in October 2010, when plaintiff saw Dr. Boone for right hip pain after slipping and falling while at work in a daycare facility. R. 382. She followed up with complaints of pain in December 2010, Stipulation at *3, and received a cortisone injection at the site of maximum discomfort in January 2011. R. 384. In August 2011, Dr. Boone noted that plaintiff was continuing to experience discomfort, particularly “when she is standing for long periods” or when “lying on her side, ” despite her use of extra-strength Vicodin. R. 385. At the same time, plaintiff also reported sensitivity along her right femur. Stipulation at *3. Dr. Boone theorized that she was experiencing “remodeling pain” from the interaction between her femur and the attached plate, which was “so old that it has cruciate-headed screws” and “ha[d] remodeled distally to such an extent that it is almost interosseous.”[3] Id.

         B. Relevant Medical History After Claimed Disability Onset

         On March 5, 2012, plaintiff's alleged onset date, R. 234, she fell at work. She told her surgeon she “slipped on water, landing on her back” and then fell again, this time landing on her right knee. Stipulation at *3-*4. The surgeon wrote, “She states that her knee has been buckling. She has been wearing a knee brace. She has been using a cane and has had a lot of problems.” Id. at *4. The surgeon ordered an MRI of plaintiff's spine, which revealed “L5-S1 degenerative changes[, ] . . . associated central canal stenosis without nerve root compression, ” and “[m]oderate facet joint degenerative changes at ¶ 4-5 which have progressed.” Id. at *4.

         On June 25, 2012, plaintiff had an initial evaluation with a pain specialist, Dr. Pardeep Sood. Id. Dr. Sood wrote:

She presents with chief complaints of constant low back pain that radiates down both the legs to the level of the feet. This is described as sharp pain rated at a severity of 10/10. The pain increases with activity, with bending, twisting as also over the course of the day. She denies any relieving factors beyond medications. She denies any associated numbness or weakness.
She also complains of neck pain that goes into both shoulders and into upper extremities, left more so than right. This is again described as sharp pain rated at a severity of 8-9/10. The pain increases with activity and at other times unpredictably so. She denies any relieving factors beyond medications that helps her some.

         R. 371.

         Dr. Sood described Plaintiff's gait as “antalgic” (i.e. designed to avoid pain) and noted her limp and use of a cane. R. 371. Plaintiff reported a decreased range of motion in her neck, upper spine, and lower spine, with associated pain in each area. R. 371. Because plaintiff “ha[d] failed to respond to conservative options alone and remain[ed] with high levels of pain, ” Dr. Sood recommended “more aggressive[]” approaches. R. 371. On July 16, 2012, plaintiff received a series of transforaminal injections in her lower back. Stipulation at *5.

         On August 10, 2012, plaintiff had a psychiatric consultation with a colleague of her orthopedic surgeon, Dr. Isaac Cohen.[4] Stipulation at *5. He noted that the injections had provided plaintiff “with a little bit of relief, ” but “wore off after several weeks.” Plaintiff had “returned to see [the pain specialist] and he wanted to repeat back injections but she state[d] that she is not accustomed to having anyone stick a needle in her body.” Id. Dr. Cohen also noted that the pain specialist had prescribed oxycodone and “ha[d] her out of work.” R. 449.

         On August 24, 2012, noting that the transforaminal injections had provided a “good response” in the past, Dr. Sood repeated the procedure in response to “recurrence/increased pain of late.” R. 368. On September 12, 2012, it was noted that plaintiff again had a “good response” to the injections, which led to her pain levels being “tolerable for a few weeks.” He noted that plaintiff's prescription medications were “helpful”: oxycodone (a narcotic “used to relieve moderate to severe pain”);[5] mobic (an anti-inflammatory “used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthiritis . . . and rheumatoid arthritis”);[6] neurontin (an anti-seizure drug often used to treat nerve pain, particularly in people, like plaintiff, who have diabetes);[7] and soma (a muscle relaxant used to treat pain).[8] R. 367. On November 9, 2012, plaintiff visited Dr. Sood again, reporting a pain level of 8/10 in her lower back radiating to her right leg. Stipulation at *6.

         In early-to-mid 2013, plaintiff repeatedly visited an urgent care facility in Bridgeport, each time seeking help for pain. Id. at *6-*7. At the time, she reported that she was seeing a specialist for a torn rotator cuff, although no records of such a visit are in the record. Id. at *7. The urgent care facility urged her to visit a primary care physician, rather than rely on the facility for pain management. Id. n.8. The record indicates that plaintiff had lost her insurance and was thus unable to continue treatment with Dr. Sood. R. 410.

         On June 27, 2013, plaintiff saw a new pain management specialist, Dr. Charles Bruce-Tagoe, and was diagnosed with Chronic Pain Syndrome. Stipulation at *7. Dr. Bruce-Tagoe prescribed various pain medications, and entered into a pain management contract with plaintiff.[9] Id. Dr. Bruce-Tagoe continued to treat plaintiff for Chronic Pain Syndrome and continued to provide her with prescriptions for several painkillers while she remained in Connecticut. Id. at *7-8.[10]

         Plaintiff moved to Georgia in mid-2014. R. 93. In December 2014, a mammogram revealed a “new palpable mass.” Stipulation at *9. Id. at *7-8. In March 2015, plaintiff went to Grady Hospital in Atlanta, where she sought primary care as a new patient. Id. at 9. At that time, the following problems were identified: “symptoms concerning for diabetic neuropathy including recent onset blurry vision and shoot[ing] pain . . . in her [lower extremities], ” uncontrolled hypertension, and degenerative joint disease, featuring “chronic complain[t]s of pain in her lower back.” R. 507.[11] Plaintiff was subsequently diagnosed with primary open-angle glaucoma in both eyes. Stipulation at *9-*10. In addition, she was diagnosed with Stage 11 breast cancer.

         In April 2015, plaintiff began chemotherapy. Her oncologist, Dr. Hiba Tamim, sought to refer her to a pain specialist for “degenerative joint disease with chronic pain syndrome.” Id. at *10-*11. On April 23, 2015, Dr. Tamim noted that the chemotherapy was aggravating plaintiff's chronic pain. Id., at *11. Plaintiff was unable to afford treatment at the Emory pain clinic, and could not be seen by the Grady pain clinic until August. Id. In the meantime, Dr. Tamim prescribed a small number of Percocet tablets for plaintiff “to use sparingly” during chemotherapy to manage the worst of the pain. R. 740.

         In June 2015, plaintiff was seen by a pain management specialist, Dr. Justin Ford.[12] Stipulation at *12. He noted that she reported “low back and right leg pain” rated at a severity from 5-8 out of 10, which was present about 75% of the day and night. R. 754. He prescribed a month's worth of oxycodone. R. 755. On June 18, 2015 - the last record available to the ALJ - Dr. Tamim wrote that plaintiff “reports . . feeling more depressed. She is crying more on a regular basis lately.” R. 760. Dr. Tamim thought plaintiff's depression could be due to “the stress of [breast cancer] treatment” and her “chronic pain” and referred her to a psychiatrist. R. 762.

         C. Medical History After The ALJ Decision[13]

         On June 25, 2015, Dr. Tamim noted that plaintiff “report[ed] depression” and “numbness and tingling in her fingers and . . . toes.” Stipulation at *13. At some point between August 26 and September 30, 2015, plaintiff underwent a lumpectomy to treat her breast cancer. Id. Subsequently, she started a new, six-week course of radiation therapy. Id. at *14. Plaintiff informed Dr. Tamim that she was experiencing new pain in her right shoulder and was following up with her pain management clinic and an orthopedic doctor. Id.

         On March 15, 2016, plaintiff was seen by an eye specialist, who noted that plaintiff's glaucoma in both eyes had reached a “severe stage.” Id. at *15.

         Notes from March 22, 2016 indicate that the pain clinic was continuing plaintiff's prescription of 10mgs of Oxycodone three times a day. Id. Dr. Tamim also reported that “she had] been more depressed, crying at times.” Id. On July 6, 2016, Plaintiff reported to Dr. Tamim that she was taking 5 mg of oxycodone three times a day. R. 50. The final medical record available in the administrative record is from plaintiff's follow-up visit with Dr. Tamim on September 6, 2016, at which time she reported that she was moving back to Connecticut following the loss of her son. Stipulation at *15. On that visit, Dr. Tamim recorded a “Pain Score” of 8, marked “HIGH.” R. 60.

         D. Work History

         Plaintiff has a Bachelor's degree in psychology and an extensive work history in social work and human services. R. 97. At the hearing conducted by the ALJ, a vocational expert testified that plaintiff had worked in the following occupations: family care worker or case worker (sedentary, skilled); program director or volunteer services supervisor (light, skilled); child development center director (sedentary, skilled); case manager (light, skilled); home health aid (medium, semi-skilled); patient transporter (medium, unskilled); and dispatcher (sedentary, skilled).

         At the hearing, plaintiff testified that she was currently working as a home health aid four or five days a week. R. 97. She was working either two or four hours a day. R. 96 (“I only work sometimes. I would work four hours a day, nine - at $9.”), R. 97 (“I have to work two hours a day.”). Plaintiff described the work in terms of her duties to clients: she had to “dress them, shave them, go to the store for them . . . ma[k]e sure they had their medicine. . . . [and] clean their homes.” R. 92. She made clients' beds daily, R. 105, and bathed them, R. 92, but could not lift them, R. 105. The work left her “in excruciating pain at night.” R. 106.

         E. The ALJ Decision

         The ALJ concluded that plaintiff was insured for purposes of Title II of the Social Security Act through September 30, 2019. R. 67. Attempting to parse plaintiff's employment record, the ALJ gave her “the benefit of the doubt.” R. 68. Thus, although the ALJ found that plaintiff was engaged in substantial gainful activity in the third quarter of 2012, the third quarter of 2013, and the second, third, and fourth quarters of 2014, the ALJ nonetheless concluded that there was a continuous 12-month period in which plaintiff did not engage in substantial gainful activity. R. 68.

         The ALJ concluded that plaintiff suffered from “severe impairments” of degenerative disc disease and breast cancer grade II, and non-severe impairments of “hypertension, diabetes mellitus, glaucoma, osteoporosis, [and] history of reconstructive hip surgery.” R.68. The ALJ also found that plaintiff's reported depression was “secondary” to the breast cancer diagnosis, and not a “medically determinable mental impairment.” R. 69. The ALJ concluded that none of plaintiff's impairments, nor any combination of them, met or equaled in severity a “Listed Impairment” that would entitle her to a per se finding of disability. R. 69-70.

         As to whether plaintiff was disabled, the ALJ wrote:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant is able to lift and carry up to 20 pounds occasionally and 10 pounds frequently; she is able to stand and walk four hours, and sit six hours, in an eight-hour workday with normal breaks; she is able to occasionally climb ramps and stairs but should never climb ladders, ropes, or scaffolds; she is able to occasionally balance, stoop, kneel, crouch, and crawl; she is able to occasionally operate left foot controls; she is able to frequently reach overhead with the right arm; and she requires the use of a cane to ambulate to and from the workstation and traverse uneven surfaces; and she will be off task up to, but not more than, 10 percent due to pain.

         R. 70.

         The ALJ further concluded that plaintiff was “capable of performing past relevant work as a case manager . . . case worker . . . program director of volunteer service . . . child development center director . . . and dispatcher.” R. 74. Given this conclusion, plaintiff could not be considered disabled within the meaning of the Act and her application for benefits was therefore denied. R. 74-75.

         II. Legal Standard

         Under the Social Security Act, a person is disabled if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Act is a “remedial statute, to be broadly construed and liberally applied.” Gold v. Sec'y of Health, Educ. & Welfare, 463 F.2d 38, 41 (2d Cir. 1972) (quoting Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969)).

         A disability determination under the Act proceeds in five steps. First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If not, the Commissioner determines whether the claimant has a “severe medically determinable physical or mental impairment” that limits the claimant's ability to do basic work activities. If so, the Commissioner asks whether the impairment meets, or equals in severity, a so-called “listed impairment, ” contained in Appendix 1 to Subpart P of 20 C.F.R. § 404. If so, provided the claimant meets the Appendix's durational requirements, the Commissioner will find that the claimant is disabled. If not, the Commissioner determines whether, despite the impairment, the claimant retains the “residual functional capacity” (“RFC”) to perform his or her past work. Finally, if the claimant does not have the RFC to perform his or her past work, the Commissioner determines whether there is other work in the national economy that the claimant is capable of performing.[14] Until the final step, the claimant bears the burden of proof, but if the analysis reaches the fifth stage, the burden shifts to the Commissioner. McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).

         In reviewing a final decision of the Commissioner, a district court “perform[s] an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). The court's role is limited to determining (1) whether the decision comports with applicable law and (2) whether it is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). If a decision is free of legal error, the findings of the Commissioner as to any fact, “if supported by substantial evidence, [are] conclusive.” 42 U.S.C. § 405(g). The findings must be supported by “more than a mere scintilla or a touch of proof here and there in the record, ” but require only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

         III. Discussion

         Plaintiff moves to reverse the Commissioner's decision on the grounds that (1) her waiver of the right to representation was not knowingly and intelligently made; (2) the ALJ failed to develop the administrative record; (3) her claims of pain were inadequately evaluated; and (4) the ALJ's vocational analysis is flawed. I agree that plaintiff did not knowingly and intelligently waive her right to counsel and that prejudice resulted from her lack of representation. Wholly apart from the waiver issue, I conclude that a remand is necessary primarily because the ALJ did not fully develop the record as to the severity and impact of plaintiff's chronic pain and glaucoma, which may well limit her ability to perform her past work.

         A. Waiver of Right to Representation

         “Although a claimant does not have a constitutional right to counsel at a social security disability hearing, she does have a statutory and regulatory right to be represented should she choose to obtain counsel.” Lamay v. Comm'r of Social Sec., 562 F.3d 503, 507 (2d Cir. 2009) (citing 42 U.S.C. § 406; 20 C.F.R. § 404.1705). The statute and regulations require the Commissioner to “notify the claimant in writing of (1) her options for obtaining an attorney to represent her at her hearing, and (2) the availability . . . of . . . organizations which provide legal services free of charge to qualifying claimants.” Id. (internal quotations and alterations omitted). The ALJ must also ensure at the hearing that the claimant is aware of her right to representation. Id. (quoting Robinson v. Sec'y of Health & Human Servs., 733 F.2d 255, 257 (2d Cir. 1984)). The right to representation is subject to waiver. Id.

         Critically, the law of this Circuit requires the Commissioner to inform a claimant of the right to be represented by a lawyer. Lamay, for instance, speaks of the claimant's right to representation by “counsel” and indicates that the Act and regulations require notification of options “for obtaining an attorney” as well as the availability of organizations providing “legal services.” Id.; see also Robinson, 733 F.2d at 257 (“The claimant is entitled to be represented by counsel at the hearing and the ALJ must ensure that the claimant is aware of this right.”) (emphasis added). Accordingly, in this Circuit, notifications that inform claimants of the right to “representation” or to a “representative” without making clear that the representative can be a lawyer are deemed inadequate. E.g., Petrovich v. Colvin, No. 3:15-cv-00575 (AVC), ECF No. 27, at *50 (D. Conn. Aug. 14, 2017); Sheerinzada v. Colvin, 4 F.Supp.3d 481, 495-96 (E.D.N.Y. 2014); Holliday v. Astrue, No. 05-cv-1826(DLI)(VVP), 2009 WL 1292707, at *10-*11 (E.D.N.Y. May 5, 2009).

         1. Factual Background

         After filing her initial request for a hearing before an ALJ, plaintiff received a letter from the Office of Disability Adjudication and Review in New Haven. The letter mentioned a “Right to Representation” but did not mention a right to legal counsel. R. 180. The letter was accompanied by a pamphlet titled “Your Right to Representation, ” R. 183-84, which did explain the right to representation by a lawyer. The letter also contained an “Important Notice About Representation, ” which included contact information for the National Organization of Social Security Claimant Representatives and a variety of legal aid organizations in Connecticut (and, for reasons that are not clear, Ohio). R. 185-88.

         Plaintiff subsequently received a written reminder about her hearing, which stated she could seek “help” from a “representative” without mentioning the possibility the representative could be a lawyer. R. 194. This correspondence also contained the same pamphlet referencing the right to representation by counsel. R. 198-99. It did not contain contact information for any lawyers or legal services organizations.

         On August 15, 2014, the Covington, Georgia Office of Disability Adjudication and Review acknowledged the transfer of plaintiff's claim. R. 210. The Covington office sent plaintiff a letter like the one sent to her initially, which did not mention the right to a lawyer. Compare R. 180 with R. 211. As before, this letter ...

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