United States District Court, D. Connecticut
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
M. SPECTOR UNITED STATES MAGISTRATE JUDGE
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
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).
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).
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
Pre-Onset Date Records
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).
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).
Records Within the Period of Disability
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
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.
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.).
Records Post-Dating Alleged Disability Period
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).
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).
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.).
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).
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.”
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
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 ...