Quatrone v. Saul

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER, OR IN THE ALTERNATIVE, MOTION FOR REMAND FOR A HEARING, AND ON THE DEFENDANT'S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          ROBERT M. SPECTOR UNITED STATES MAGISTRATE JUDGE

         This action, filed under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeks review of a final decision by the Commissioner of Social Security [“SSA”] denying the plaintiff disability insurance benefits [“DIB”].

         I. ADMINISTRATIVE PROCEEDINGS

         On May 27, 2015, the plaintiff filed an application for DIB, claiming that he had been disabled since October 23, 2013, due to epilepsy, diverticulosis, herniated disc, anxiety, depression, colitis, arthritis, and degenerative disc disease. (See Certified Transcript of Administrative Proceedings, dated December 10, 2018 [“Tr.”] 79-80, 159-160). The plaintiff's application was denied initially and upon reconsideration. (Tr. 79-88, 89-100). On May 26, 2017, a hearing was held before Administrative Law Judge [“ALJ”] Martha Bower, at which the plaintiff and a vocational expert testified. (Tr. 33-58). On July 6, 2017, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits. (Tr. 12-24). The plaintiff appealed, and on August 15, 2018, the Appeals Council denied the request, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 6-9; see Tr. 1-5).

         On October 9, 2018, the plaintiff filed his complaint in this pending action, (Doc. No. 1), and on December 21, 2018, the parties consented to the jurisdiction of a United States Magistrate Judge. (Doc. No. 18). This case was transferred accordingly. On February 8, 2019, the plaintiff filed his Motion to Reverse the Decision of the Commissioner (Doc. No. 19), with a brief (Doc. No. 19-1 [“Pl.'s Mem.”]), and Statement of Material Facts Medical Chronology (Doc. No. 19-2) in support. On February 13, 2019, the defendant filed his Motion to Affirm, with brief (Doc. No. 20-1 [“Def.'s Mem.”]) and a Statement of Material Facts in support (Doc. No. 20-2).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 19) is GRANTED, and the defendant's Motion to Affirm (Doc. No. 20) is DENIED.

         II. FACTUAL BACKGROUND

         A. MEDICAL HISTORY^[2]

         1. Pre-Onset Date Records

         The plaintiff saw several providers for diverticulitis, seizures, and neck, back, wrist, and knee pain between February 2013 and October 2013, before the alleged onset date. On February 1, 2013, the plaintiff saw Dr. Charles Adelman, complaining of a change in bowel habits- explosive bowel movements and an inability to control his bowel movements. (Tr. 236). Treatment notes reference a diagnosis of diverticulitis in August 2012 with bouts of diverticulitis two to three times per year. (Id.). A February 21, 2013 colonoscopy revealed a single medium polyp in the descending colon, which was removed. (Tr. 239). Internal hemorrhoids were also found, and a biopsy was taken, which revealed a “mild nonspecific inflammatory change” in the colon. (Tr. 241). The plaintiff returned to Dr. Adelman on March 6, 2013, again complaining of diarrhea. (Tr. 380).

         On April 26, 2013, the plaintiff saw Dr. Adelman, this time complaining of neck and low back pain. (Tr. 251). Treatment notes reflect that the plaintiff's pain radiated into his left upper extremity and left hand, and there is a notation for “cervical radiculopathy, ” although it is not clear whether Dr. Adelman diagnosed the plaintiff with cervical radiculopathy at that time. (Id.). As to the plaintiff's seizures, treatment notes from a May 13, 2013 visit to Dr. James Thompson state that the plaintiff has a history of epilepsy with three seizures since his last visit in November 2011. (Tr. 250). The plaintiff also “had multiple panic attacks” and believed that his medication was making the panic attacks worse. (Id.). The plaintiff next saw Dr. Richard Gervasi on July 17, 2013, who increased the plaintiff's dosage of Keppra (his seizure medication). (Tr. 281). An August 27, 2013 x-ray of the plaintiff's wrists showed mild arthritic changes. (Tr. 277). During an October 17, 2013 visit to the emergency room at Norwalk Hospital, an x-ray of the plaintiff's right knee revealed minimal arthritis and chondrocalcinosis, no acute fracture or dislocation, and small to moderate joint effusion. (Tr. 424). Dr. Christopher Coyne noted that the plaintiff had “swelling” and “limited range of motion” but was “able to bear weight with [a] cane.” (Tr. 444). That same day, Dr. Gervasi noted that the plaintiff walked with an antalgic gait. (Tr. 252).

         2. Records Within the Period of Disability

         On October 30, 2013, the plaintiff presented to Dr. Gervasi complaining of back pain “in the upper region.” (Tr. 273). Treatment notes indicate that the plaintiff had joint pain, wrist weakness, and “burning”; the plaintiff also had back pain, which was “radiating, ” and a “tingling hand.” (Id.). Dr. Gervasi diagnosed the plaintiff with carpal tunnel syndrome, cervical radiculopathy, and hypercholesteremia. (Tr. 274). An MRI of the plaintiff's lumbar spine revealed possible L5 spondylolisthesis and unfused dorsal elements at ¶ 5. (Tr. 276). A further MRI was recommended. (Id.).

         On November 22, 2013, the plaintiff was treated at the Norwalk Hospital emergency room for neck pain he experienced after completing yard work. (Tr. 268, 327). The plaintiff's cervical spine was tender upon examination. (Tr. 327). A computed tomography (“CT”) scan of the plaintiff's cervical spine revealed no acute fractures and mild multilevel degenerative disc disease at ¶ 5-6, C6-7, and C7-T1, resulting in minimal neural foraminal narrowing at those levels. (Tr. 328, 331). The plaintiff returned to the Norwalk Hospital emergency room on December 7, 2013, complaining of neck pain. (Tr. 323). The plaintiff did not see a medical professional for back or neck pain again until December 1, 2015.

         On January 21, 2014, the plaintiff had an electrodiagnostic examination (“EMG”), which revealed no electrical evidence of carpal tunnel syndrome, neuropathy, or radiculopathy. (Tr. 260). The results of the EMG were normal. (Id.). An electroencephalogram (“EEG”) examination was performed on April 24, 2014 to evaluate the plaintiff's seizures. (Tr. 293). Results were normal, and there were “no focal, lateralized or epileptiform features seen.” (Tr. 293). On December 12, 2014, the plaintiff saw Dr. James Thompson for a neurological consultation. (Tr. 287). The plaintiff reported that he had two seizures a month despite using anti-epileptic medication. He stated that his seizures lasted two to five minutes, and that he drove and exercised regularly. (Id.). The plaintiff's physical examination was “neurologically unremarkable” with no evidence for antiepileptic drug toxicity. (Tr. 288). Dr. Thompson asked the plaintiff to keep a seizure calendar. (Id.). He also noted that he might increase the plaintiff's medication but that he needed to wait until he reviewed the plaintiff' past records from other medical providers. (Id.).

         3. Records Post-Dating Alleged Disability Period

         The plaintiff returned to Dr. Thompson for a follow-up appointment on January 28, 2015. (Tr. 285). He reported that he had had two seizures since his last visit on December 12, 2014. (Id.). He had not missed any medications. (Id.). He stated that he drove and exercised regularly. (Id.). Dr. Thompson added Lyrica, discussed with the plaintiff potential medication-related side effects, and advised him to avoid certain over-the-counter medications. (Tr. 286).

         On February 17, 2015, the plaintiff saw Dr. Gervasi. (Tr. 261). At that appointment, Dr. Gervasi noted that the plaintiff's previously-diagnosed diverticulitis had resolved. (Tr. 262). Physical examination revealed that the plaintiff had a normal gait, no focal neurological deficits, and an appropriate mood and affect. (Id.). Dr. Gervasi diagnosed the plaintiff with obesity, seizure disorder, hypertrophy of prostate, hypercholesteremia, and anxiety. (Tr. 263).

         On March 12, 2015, the plaintiff returned to Dr. Thompson. (Tr. 283). The plaintiff reported one seizure since his last visit. (Id.). He had not missed any medications. (Id.). The plaintiff denied side effects from Keppra, but he reported that he could not tolerate Lyrica due to fatigue and headaches. (Id.). He again stated that he drove and exercised regularly. (Id.). Upon examination, the plaintiff denied joint swelling or decreased range of motion; his neck was supple, and his gait was normal. (Tr. 284). Dr. Thompson did not make any changes to the plaintiff's medications. (Id.).

         On May 20, 2015, the plaintiff was admitted to the hospital complaining of abdominal pain with frequent bloody diarrheal movements. (Tr. 297, 299). A colonoscopy revealed severe diverticulitis, a single polyp in the colon, mild proctitis in the rectum, and small internal hemorrhoids. (Tr. 298, 317). The plaintiff had no back pain or muscle pain, his neck had no tenderness, his back had normal range of motion, and his musculoskeletal system had normal range of motion, normal strength, and no tenderness. (Tr. 300-301). A CAT scan revealed colitis from the sigmoid colon to the rectum. (Tr. 303). The plaintiff saw Dr. Adelman on June 3, 2015 and June 7, 2015, both times complaining of diarrhea. (Tr. 377, 386).

         On December 29, 2015, the plaintiff began physical therapy for back pain. (Tr. 407). In Norwalk Hospital's Plan of Care, the physical therapist noted an onset date of December 1, 2015. (Id.). The plaintiff had reported at his intake appointment that he “suddenly heard a click in [his] lower back” while moving furniture. (Id.). He had seen Dr. Lawrence A. Lefkowitz on December 11, 2015, complaining of lower back pain radiating into both lower extremities. (Tr. 404). Dr. Lefkowitz had given him pain medication and referred him for an MRI. (Id.). An MRI of the plaintiff's lumbar spine was conducted on December 15, 2015. (Tr. 400). The MRI revealed “[g]rade 1 anterolisthesis of L5 relative to SI with chronic pars defects noted at ¶ 5, ” and “mild central spinal stenosis and moderate bilateral foraminal narrowing, right worse than left.” (Tr. 400-401). The MRI also showed “a mild broad-based central disc protrusion” causing “minimal mass effect upon the ventral aspect of the thecal sac” at ¶ 4-L5, and “moderate arthritis of the facets bilaterally with a right facet joint effusion.” (Id.). The MRI did not reveal any “significant central spinal stenosis, ” but it did show “mild bilateral foraminal narrowing, right worse than left.” (Id.).

         On December 18, 2015, the plaintiff returned to Dr. Lefkowitz. (Tr. 405). The plaintiff reported that he was “doing a little better, ” but still had “localized lower back pain.” (Id.). Dr. Lefkowitz noted “[the plaintiff] is not likely to come to surgery, ” and instead recommended medication and physical therapy. (Id.).

         The plaintiff began physical therapy on December 29, 2015, with instructions to attend therapy twice a week. (Tr. 407). Approximately a month later, the plaintiff returned to Dr. Lefkowitz, reporting that he had pain relief for most of the day but that he still had two hours of “getting ...