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Forbes v. Colvin

United States District Court, D. Rhode Island

April 8, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JOHN J. McCONNELL, Jr., District Judge.

This matter is before the Court on Ms. Forbes' Motion for Reversal (ECF No. 6) of the decision of an Administrative Law Judge (ALJ) affirming the denial of supplemental security income (SSI) benefits to her on her claim of total disability. The Commissioner has filed a Motion to Affirm. (ECF No. 8). For the reasons stated below, the Court remands the case for reconsideration by the ALJ.


Procedural History

Patricia A. Forbes filed an application for supplemental security income (SSI) on November 30, 2010 (Tr. 14). She alleged a disability, due to a number of impairments, dating back to October 1, 2003. Id. Her claim was initially denied, denied on reconsideration, and denied after an evidentiary hearing held by ALJ Barry Best on September 20, 2012. Id. Ms. Forbes testified at that hearing, as did vocational expert Kenneth R. Smith. On September 28, 2012, the ALJ granted the Commissioner's Motion to Affirm and denied Ms. Forbes' Motion for Reversal, finding that she was not under a disability since November 30, 2010, because she had the residual functional capacity (RFC) to perform her former work as a security guard. (Tr. 25).



Ms. Forbes at the time of the hearing was a 52-year-old woman with a 10th grade education, no GED, and a sporadic work history at unskilled jobs. She lived at the relevant times with her daughter and her grandchildren. (Tr. 36-37).

Ms. Forbes' application for SSI benefits claimed that a disability that began with neck pain in 2002 had progressed to such an extent that it rendered her unable to perform any work in the employment marketplace. It was apparently while working at a donut shop in 2002 that she began to complain of substantial pain. She began to feel neck pain while mopping up and pain when lifting heavy trays, which she continued to do even after she began experiencing pain to relieve co-workers of the extra burden. (Tr. 350). She had some swelling on the left side of her cervical spine. In April of 2003, an X-ray revealed a cervical strain ("straightening of the cervical lordosis suggests spasm.... Degenerative hypertrophic changes are noted at the endplates of the C6-C7 vertebra."). (Tr. 410). Physical therapy was prescribed. (Tr. 409). She had tried a series of measures in the spring of 2003, including physical therapy and cervical traction. She continued physical therapy into mid-July of 2003, when she terminated because she failed to progress and wanted to discontinue until receiving results of a pending MRI. (Tr. 373). By 2004, she was receiving Workers Compensation for C-5 disk disease. (Tr. 388).

Ms. Forbes' work history was episodic and, as detailed in her application back to 1995, was intermittent at best. She reported a series of jobs - counter person, hotel housekeeper, grocery bagger, security guard, none of which lasted more than a year if even close to that. (Tr. 37, 167-74). Her primary employment seems to have been as a security guard for two different companies.[1] Each of those jobs involved significant walking. When she worked for a trucking company, she sat in a booth signing drivers in and out, and walked around making rounds every hour. (Tr. 37-38). At the Providence Gas Company, the hourly rounds had to be made every hour through the building - about a 15-minute tour in which she would have to demonstrate arriving at various checkpoints. After the inside inspection, she would have to walk the perimeter of the parking lot, again hitting various "stamps." She left the job when she moved to Newport. (Tr. 38). She testified that she had neither worked nor looked for work in the previous two years. (Tr. 39).

Her symptoms may have continued at this level for some time. In the spring of 2010, and continuing into the summer, Ms. Forbes complained to her primary care physician, Dr. Jorge Ruelos, M.D., that she was experiencing neck, hip, and knee pain as well as headaches, and was taking "a lot" of ibuprofen to deal with the pain. She was also experiencing significant fatigue. (Tr. 432).

At some point prior to November 2010, Ms. Forbes had stopped working altogether and, by that time, was not applying for any jobs. (Tr. 39). She had no income and received no public assistance other than food stamps; medical coverage was provided through her husband, but she lived with her daughter and granddaughter and not with her spouse. (Tr. 38).

Twelve days after filing her November 30, 2010, claim, Ms. Forbes was involved in a motor vehicle accident. (Tr. 64, 264). Her vehicle was struck from behind while stopped. (Tr. 264). She was treated at Roger Williams Medical Center Emergency Department on the day of the accident, but within several days thereafter, she saw her primary care physician again and commenced a series of medical consultations and treatments that continued unabated until the time of the hearing on the instant claim for benefits.

Ms. Forbes testified she could not work because she was in "constant pain with [her] neck." She described her pain during the years preceding the hearing in the following terms:

[If I] just, you know, tweak my neck a little bit then I'm in pain for days and days, and the pain is severe. And then I have severe back pain. The pain is down my legs when I stand up. If I walk it's constant pain.

(Tr. 39). Ms. Forbes described her daily life as dominated by pain. She took Percoset for the pain, but the medication made her very tired, and occasionally dizzy. (Tr. 42, 44). After taking a Percoset, she would sleep for 3-4 hours. If the pain persisted upon waking, she would take another pill and, presumably, go back to sleep. (Tr. 42). She averaged "maybe two [Percosets] a day" plus Ibuprofen. "On a good day I'll get up and eat." Id. She testified she was in pain every day, "but some days it's really severe." Id. On those days, particularly when the pain in her neck was very bad, she lost the ability to grip: dishes would "slip out of [her] hand" and her daughter would have to take over the task. Id.

She had headaches every day, but on the two days each week that were "good days, " she would take Ibuprofen and sometimes babysit or watch TV. Id. Those were the days that she would try to do household tasks such as washing dishes. She no longer did laundry because she could not lift the baskets of clothing. (Tr. 42-43). She had retained her driver's license, she testified, but drove only on average once per month when her daughter could not drive her and she had no other way of going someplace important. (Tr. 43). She continued to go food shopping, but always accompanied by someone because of the feeling that the pain would make her fall. Id. Generally, she said, after five or ten minutes on her feet, she would have to sit down. (Tr. 44).


Medical Evidence

A cervical MRI performed two weeks after the accident in November 2010 showed "prominent left uncovertebral spurring at C6-C7 resulting in moderately severe narrowing of the left neural foramen" as well as "mild and diffuse disc osteophyte complex at C5-C6 effacing the ventral thecal sac but not impressing on the [spinal] cord." (Tr. 425). A lumbar MRI on the same date showed "an approximately 1.0 × 0.8 × 2.4 cm lipoma of the proximal aspect of the filum terminale at the conus without evidence for cord tethering or low lying cord" but also revealed a "mild disc bulge and facet arthropathy at L4-L5 without evidence of spinal stenosis or nerve root impingement." (Tr. 426).

Soon after the automobile accident, Ms. Forbes commenced chiropractic treatment. (Tr. 334). She experienced both neck and lower back pain, radiating down her arms and legs. The treating chiropractor, Amy Malek, D.C., noted an objective restriction of "[a]ctive cervical range of motion... through all planes of movement." Id. Both a shoulder depression test and neutral cervical compression test were positive. "Active lumbar range of motion was restricted through all planes of movement, however pain was greatest with flexion and extension movements. Straight leg raise was positive for pain in the lower back, down into the right foot and on the left side down to the area just above the knee." Dr. Malek confirmed "[c]ervical sprain/strain with cervical radiculitis" as well as "[l]umbar sprain/strain with lumbar radiculitis."[2] Id. Dr. Malek set a course of treatment at three times per week, for four weeks, considering Ms. Forbes "totally disabled" subject to a re-evaluation at the end of the four week period. (Tr. 334). In fact, regular treatments continued, with Ms. Forbes reporting the same consistent pain and daily headaches, until at least June 22, 2011, when a "final evaluation" from Dr. Malek assessed her at "maximum chiropractice improvement" and thus discharged her. (Tr. 310). Dr. Malek determined that Ms. Forbes had continued to be "totally disabled" throughout the 6 months of chiropractic treatment and offered a prognosis of "fair with residual symptoms." She recommended physical therapy. (Tr. 309).

During much of this time, Ms. Forbes was also treating with neurologist Richard Cervone, M.D. His first evaluation in the record was on February 1, 2011. (Tr. 288). He recounted in detail her complaints of pain, and summarized his diagnostic impression as "Traumatic left cervical radiculitis. Evaluate for frank cervical radiculopathy. Post-traumatic lumbosacral, thoracolumbar and cervical myofascitis with moderate/severe sprain/strain injuries. Post-traumatic headaches (cephalgia) resulting from cervicocranial myospasm. Post-traumatic sacroioliac injuries producing joint dysfunction and sacroilitis on the right side." (Tr. 290). He recommended further testing, but declared her totally disabled. Id. He concluded that her symptoms were related to the motor vehicle incident and related injuries. (Tr. 291). A few weeks later, a series of further diagnostic tests again related to arm pain produced "a normal study, " but Dr. Cervone opined that her persistent symptoms "could be related to sclerotogenous referred pain patterns as what can be seen secondary to injuries to non-neurologic tissues (ligaments, capsules, joints, tendons, fascia) and/or inflammatory, non-compressive left cervical sensory radiculitis." (Tr. 295). He continued to treat her and, two months later, found compromised range of motion, "palpable myospasm and tenderness along the bilateral thoracolumbar soft tissue and spinal joint regions, " and prominent pain on performing certain movements. He recounted a "preexisting lipoma as seen on MRI imaging performed on 12/10/10, " which he termed "asymptomatic for years, " and concluded that she had had "a traumatic symptomatic activation of this previously underlying quiescent condition." (Tr. 297). He continued to believe she was totally disabled. Id. He continued to see her, monitor her condition, and evaluate her for the next several months, noting on June 3, 2011, that she "could possibility have an early and mild motor neuropathy affecting her bilateral lower extremities, " though he thought that "unlikely." (Tr. 303). He again repeated what he had noted back in February: that her pain could be secondary to "injuries to non-neurologic tissues." (Tr. 303-04). In addition, he concluded that her history, symptoms and clinical examination findings were consistent with "a right sacroilitis"[3] and, while he thought it was remote, postulated again that the pain could stem from a previously asymptomatic pre-existing lipoma.[4] (Tr. 304).

By this time, Ms. Forbes was seeing her primary care physician regularly. During the course of the next two years, he examined her 11 times. She was reporting that her back pain was "getting worse, " and he advised her to continue pain medication, even though it made her sleepy. His notes indicated he had prescribed Vicodin. (Tr. 423). He admonished that she should limit her walking and standing. Id. She was requesting referrals to a neurologist as well as to a physical therapist. Id.

At that point, Ms. Forbes saw neurologist Deus Cielo, M.D. He had referred her to physical therapy in June 2011 (Tr. 305) and three months later, on September 30, 2011, he wrote that she had improved some since undergoing cervical/lumber physical therapy, but still had "episodic low back pain radiating into both legs." She had normal muscle tone and strength, antalgic gait and positive straight leg raise testing at 30 degrees, but a spinal exam showed mild tenderness with decreased range of motion. His impression was of chronic cervical and lumbar radiculopathy. Significantly, he noted that "[e]xacerbating factors include weightbearing and standing [while r]elieving factors include changing positions and percocet." He deemed her symptoms "tolerable at this time" but made no reference to the amount of medication that made her pain tolerable. (Tr. 343).

In September 2012, in connection with the claim for disability benefits, Dr. Jorge Ruelos, M.D., described Ms. Forbes' pain as "lower back radiating to the legs, shoulder, neck, arms and hands (both right and left side)." The pain manifested in an objective MRI finding of radiculopathy of the cervical and lumber spine. This type of impairment would be expected, he wrote, to produce significant pain, and was only "very mildly responsive to all kinds of medication for pain." (Tr. 414). He listed various pain medications, as well as the several therapies she had undergone, as treatment, but noted that "the medication makes her sleepy and unable to function." (Tr. 417).

One of the neurologists - Dr. Cielo or Dr. Cervone - had begun prescribing Percoset for Ms. Forbes. (Tr. 421). Dr. Ruelos continued to prescribe Vocidin. (Tr. 416). Because of Percoset's particular side effect of interfering with her ability to stay awake, she stopped taking it just a few days before the hearing and had accepted Dr. Ruelos' referral to a pain clinic - a referral she had declined some years before. Dr. Ruelos also noted a number of appropriate treatments: physical, chiropractic, and yoga therapies. (Tr. 414).


Residual Functional Capacity

A dispute over Residual Functional Capacity (RFC) is the crux of this appeal. As explicated below, the ALJ denied benefits because he found that Ms. Forbes' RFC permitted her to perform her previous relevant employment as security guard. That conclusion was supported in part by the opinion of one of two state agency consultants. It was disputed, either directly or indirectly, by both Ms. Forbes' treating physicians and by her own testimony.

The first state agency consultant, Dr. Kenneth Nanian, filed a report on May 23, 2011 - less than six months after the accident and well over a year before the hearing. Among other determinations, he found "no evid. of cerv.radiculopathy, " and he concluded Ms. Forbes had "Disorders of Back - Discogenic and Degenerative" that were "Non Severe." (Tr. 59). He concluded that her condition "does not result in significant limitations in [her] ability to perform basic work activities" and thus was not disabling. (Tr. 60). Because this opinion was inconsistent with all the other evidence, the ALJ rejected it, and it is not relevant to any further discussion. (Tr. 23).

The second state agency consultant, Dr. Donn Quinn, rendered a report six months later, on October 12, 2011. Having reviewed records spanning an additional half-year, Dr. Quinn fundamentally disagreed with Dr. Nanian. Dr. Quinn concluded that the "Disorders of Back - Discogenic and Degenerative" condition Ms. Forbes suffered from constituted a severe impairment, "reasonably expected to produce the individual's pain or other symptoms." He also concluded that Ms. Forbes' "statements about the intensity, ...

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