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Greenlief v. Colvin

United States District Court, D. Rhode Island

July 15, 2015

CHRISTOPHER L. GREENLIEF, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, Magistrate Judge.

Complaining primarily of chronic lumbar and cervical spine pain, Plaintiff Christopher Greenlief has filed his second sequential application for disability insurance benefits ("DIB") under 42 U.S.C. § 405(g). The matter is now before this Court on his motion for reversal of the decision of the Commissioner of Social Security (the "Commissioner"), who denied the application. Plaintiff contends that the Administrative Law Judge ("ALJ") failed to evaluate the medical opinions of his primary care physician, Dr. Rajeev Gupta; he also claims that substantial evidence does not support the ALJ's Step Five finding that Plaintiff can perform other work because the ALJ's hypothetical to the vocational expert omitted some of the limitations in the ALJ's Residual Functional Capacity ("RFC") finding.[1] Defendant Carolyn W. Colvin ("Defendant") has filed a motion for an order affirming the Commissioner's decision.

This matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the record, I find no legal error and that the ALJ's findings are well supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Reverse with a Remand for Rehearing of the Commissioner's Final Decision (ECF No. 6) be DENIED and Defendant's Motion for an Order Affirming the Commissioner's Decision (ECF No. 9) be GRANTED.

I. Background Facts

A. Plaintiff's Background

Plaintiff was fifty-one years old on August 24, 2011, his alleged onset date. Tr. 89. A high school graduate with a semester of college, Tr. 36, he had worked for thirty years for the State of Rhode Island at the Zambarano Hospital as a manager overseeing the operations of the laundry. Tr. 36-37, 198. His back pain is a longstanding issue; it appears to have been exacerbated by an automobile accident in 1995. Tr. 531. In January 2006, he underwent laminectomy, but the surgery did not appear to alleviate the pain. Tr. 65. Based on his back pain, complicated by asthma, migraine headaches, anxiety and glaucoma, Plaintiff filed his first DIB application on May 7, 2009. Tr. 60, 63. The ALJ denied the application, finding that, although Plaintiff was taking potent opiates for pain control, his spine exhibited no abnormalities and his many activities, including caring for his daughter, preparing simple meals, doing household chores, and attending church and monthly meetings of his Rod & Gun Club, were inconsistent with his claims of pain and restricted functions. Tr. 60-71. The adverse decision issued on August 23, 2011; it concluded that Plaintiff was not disabled through the date of decision. Two weeks later, on September 7, 2011, Plaintiff filed the current DIB application alleging onset on the day following the date of the prior decision. Tr. 16.

The current application is based on Plaintiff's claims of degenerative disc disease in the lumbar and cervical spine, asthma, glaucoma, migraine headaches, anxiety and depression. Tr. 18-20. Only myofascial pain syndrome, back pain and asthma were accepted as severe by the ALJ. Tr. 18. During this period of disability, Plaintiff has lived with his thirty-year-old son and sometimes with his eleven-year-old daughter, who alternates living with her mother. Tr. 36. There are three dogs in the household and Plaintiff participates in their care. Tr. 214, 470. The record indicates that, in addition to caring for himself, his daughter and the dogs, Plaintiff also traveled to Florida for a month to care for his dying mother. Tr. 522. While his complaints of back pain and related pain in his foot are persistent in the medical record, the evidence also establishes that he regularly goes to church and the Rod & Gun Club, that he purchased a $1000 crossbow and resumed hunting, and that he does errands, chores and otherwise is helpful around the house. Tr. 462, 470, 524, 525.

This appeal does not challenge the ALJ's adverse determination regarding asthma, glaucoma, migraine headaches, anxiety or depression. It is focused exclusively on the weight given by the ALJ to the opinion of his primary care physician regarding back pain, and to the non-exertional limits related to back pain and asthma that he claims the ALJ wrongfully omitted from the vocational hypothetical. This report and recommendation addresses only Plaintiff's claims of error.

B. Relevant Medical History

Since the laminectomy in January 2006, Plaintiff has continued to report severe pain, primarily in his lower back, but also his neck, radiating bilaterally down his legs; he has continued to take opiates for pain. Tr. 440, 481-96. During this most recent period of alleged disability, Plaintiff has had a total of four appointments with his primary care doctor, Dr. Rajeev Gupta, although the treating relationship with Dr. Gupta goes back to March 18, 2008. Tr. 403.

Plaintiff's relevant medical history begins in October 2011 with an appointment with Dr. Gupta for a tick bite. Tr. 484. Other than "takes pain meds" and "Musculoskel (), " there is no reference to spinal pain. Tr. 484. On November 3, 2011, Plaintiff saw his neurologist, Dr. Aumentado, and complained that his back pain had flared; examination revealed that his spine "exhibited no abnormalities... no muscle spasms... spinal flexion was normal, " and the straight-leg-raising tests were all negative. Tr. 448-50. In December, Plaintiff was back to Dr. Gupta for a cold; other than "Musculoskel(), " there is no reference to Plaintiff's back. Tr. 483. In February 2012, Dr. Aumentado observed, "[m]aintained on oxycontin... oxycodone... [s]ymptoms unchanged and symptoms controlled;" on examination, he found pain on motion, but no abnormalities, full range of motion and all straight-leg testing was negative. Tr. 444-46. When Plaintiff next saw Dr. Gupta, in May, he complained of his neck. Tr. 482. On a referral from his podiatrist, Plaintiff saw electro-neurologist, Dr. McGunigle, on June 22, 2012; the EMG revealed no evidence of neuropathy, but confirmed changes in certain spinal muscles, which Dr. McGunigle opined was related to the 2006 surgery; he referred Plaintiff for physical therapy and exercise. Tr. 454. In August 2012, Plaintiff had a "well exam" with Dr. Gupta; no abnormalities were detected. Tr. 481. In September, he returned to Dr. Aumentado, who noted that physical therapy had stopped for August so that Plaintiff could care for his mother in Florida. Tr. 518; see Tr. 522 ("Chris was in Florida for three weeks when his mother was sick"). Plaintiff reported that, "[b]ack pain waxes and wanes" but was exacerbated by standing, bending and lifting more than thirty pounds. Tr. 518. Dr. Aumentado wrote "[s]ymptoms controlled, " with abnormalities with gait and in the lumbar spine; the plan remained to continue current medication. Tr. 518-21.

In other record references, Plaintiff is quoted as telling providers that there are times when "he was doing pretty good" and days when "he has no pain at all." Tr. 511. In therapy, he described his activities, including that he had been out "a decent amount, " that he values his role as the caregiver to his three dogs and to his daughter, that he has been going to church, that he went to the rifle range with his son, that he resumed hunting (one of his favorite pastimes) and that he has been doing errands and seeing a few friends. Tr. 469, 470-71, 475, 524-25. Similarly, in his function report, Plaintiff confirmed that he cares for his daughter and the dogs, though his son handles the heavy bags of dog food; he prepares simple meals, performs some household chores, does shopping, walks a half mile three to four times a week and enjoys playing with his daughter and grandchildren. Tr. 212-20.

C. Relevant Opinion Evidence

On December 17, 2012, Dr. Gupta filled out a disability questionnaire, Tr. 526-27, physical and mental RFC evaluations, Tr. 528, 530, and a fatigue and pain questionnaire, Tr. 529. Based on a four-year treating relationship, Dr. Gupta recorded diagnoses of degenerative disc disease, status-post laminectomy, with severe symptoms of back and neck pain and opined that Plaintiff could not sustain full-time employment. Tr. 526-27. For physical limitations, Dr. Gupta indicated that Plaintiff could sit, stand, and walk for no more than one hour each, that he could lift no more than five pounds occasionally, that he could never push, pull, do over-the-shoulder work, bend, squat, or crawl or be exposed to unprotected heights, moving machinery or extreme temperatures. Tr. 528. Because of his asthma, Dr. Gupta limited him to only occasional exposure to noise, vibrations, dust and fumes. Tr. 528. For mental limitations, Dr. Gupta opined that pain would cause moderately severe limitations in his ability to concentrate, keep pace and be productive in a competitive work setting. Tr. 529. Otherwise, Dr. Gupta opined to moderate limitations in activities of daily living, social functioning and attention and concentration and moderately severe limitations in responding to customary work pressures. Tr. 530.

II. Travel of the Case

Plaintiff filed his DIB application on September 7, 2011. Tr. 16, 174-75. His application was denied initially, Tr. 76-88, and on reconsideration, Tr. 89-101. On January 14, 2013, the ALJ held a hearing at which Plaintiff, represented by counsel, a medical expert ("ME") and a vocational expert ("VE") testified. Tr. 32-56. On February 1, 2013, the ALJ issued a decision finding that Plaintiff was not disabled through the date last insured (December 31, 2012). Tr. 16-25. The Appeals Council denied Plaintiff's request for review, Tr. 1-4, rendering the ALJ's decision the Final Decision of the Commissioner. The case is now ripe for judicial review pursuant to 42 U.S.C. § 405(g).

III. The ALJ's Hearing and Decision

At the hearing Plaintiff testified that he is in constant pain in his lower back and neck, with pain radiating into his lower foot and tingling in his left hand; he described his daily average pain with medication as 6 or 7 out of 10, and said it increases with activity. Tr. 37-39. He testified that he can stand only for a few minutes and can sit for no more than fifteen or twenty minutes. Tr. 39-40. He sleeps poorly and the medications he takes cause nausea and fatigue. Tr. 40. When asked if he had been hunting in the past year, Plaintiff testified that he "went out a couple of times, and I just can't sit in a tree stand anymore." Tr. 41. He drives to church weekly and takes his daughter to the beach at least once a year. Tr. 41.

Dr. Stephen Kaplan testified as an independent medical expert regarding his opinion, based on his review of the medical record including Plaintiff's subjective complaints of pain, that Plaintiff's impairments would limit him to light work. Tr. 45. Dr. Kaplan also opined that Plaintiff's asthma would restrict him from working around dust or allergens. Tr. 44. The VE testified that Plaintiff's past relevant work was medium in exertion and on the lower end of skilled. Tr. 50. The ALJ then asked him whether he agreed with the vocational opinion of the expert from the prior hearing on available work at the light exertional level with a fume-free, dust-free environment; the VE affirmed the prior opinion that production jobs and office work would be available. Tr. 54. On examination by Plaintiff's counsel, the VE testified that it was borderline whether there would still be work with the addition of both moderately severe limits in the ability to respond to customary work pressure and the risk of missing more than one day of work per month. Tr. 54-55. However, missing two days per month would preclude all work. Tr. 56.

The ALJ issued his decision under the familiar five-step sequential evaluation process, finding at Step One that Plaintiff had not engaged in substantial gainful activity from August 24, 2011, his alleged onset date, through December 31, 2012, his date last insured. Tr. 18. At Steps Two and Three, the ALJ found that Plaintiff's myofascial pain syndrome, degenerative disc disease of the cervical and lumbar spine and asthma constitute severe impairments, but that they do not meet or medically equal the requirements of any Listing. Tr. 18-21. Prior to Step Four, the ALJ determined that Plaintiff retained the RFC to perform light work, in that he can stand, walk, and sit for up six hours in an eight-hour workday and lift up to twenty pounds occasionally and ten pounds frequently; the ALJ added the limits that he can only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes and scaffolds. Tr. 21. The RFC accommodated Plaintiff's asthma with the limitation of avoidance of concentrated exposure to fumes, odors, dusts, gases and poor ventilation. Tr. 21. The ALJ's RFC finding is the same as the RFC developed in connection with Plaintiff's prior application. Compare Tr. 21, with Tr. 65.

In reliance on this RFC and the VE's testimony, at Step Four, the ALJ found that Plaintiff could not perform his past work as a laundry supervisor because it is rated as medium in exertion. Tr. 23-24. At Step Five, the ALJ applied Medical-Vocational Rule 202.14, as amplified by SSR 85-15, 1985 WL 56857 (1985), as a decisional framework. From this foundation, the ALJ found that Plaintiff could perform jobs that existed in significant numbers in the national ...


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