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Gay v. Colvin

United States District Court, D. Rhode Island

June 13, 2016

JAMES W. GAY, Plaintiff,


          John J. McConnell, Jr. United States District Judge.

         Plaintiff James W. Gay appeals the Social Security Administration's Acting Commissioner's denial of his application for disability insurance benefits. ECF No. 8. Mr. Gay's motion is DENIED in part and GRANTED in part. The Court DENIES Mr. Gay's motion to vacate the ALJ's decision, but GRANTS what the Court construes as a motion to vacate the Appeals Council's denial of review of the ALJ's decision. The Acting Commissioner's cross-motion to affirm (ECF No. 11) is similarly GRANTED in part and DENIED in part.

         I. BACKGROUND

         Mr. Gay filed for disability, alleging an onset date of June 5, 2012. ECF No. 5-2 at 20 (Tr. 19). After initial denials, he appeared before an Administrative Law Judge (ALJ), and was denied. Id. The Appeals Council denied his request for review, which made the ALJ's decision the final decision of the Acting Commissioner. ECF No. 5-2 at 2 (Tr. l). Mr. Gay then filed this action with the Court.

         II. FACTS

         Mr. Gay was 39 years old at the alleged disability onset date. Id. at 31 (Tr. 30). He has at least a high school education. Id. at 32 (Tr. 31). He was previously employed as a landscaping foreman for ten years, and then worked as a machine operator for seven years. Id. at 42-43 (Tr. 41-42). He has not worked since June 2012. Id.

         Mr. Gay attributes the onset of his symptoms to a May 1, 2012 incident, when his 4-year-old daughter accidentally kicked him between the shoulder blades while he was playing with her. ECF No. 5-9 at 11-12 (Tr. 295-96); EOF No. 5-23 at 15 (Tr. 590). After an MRI revealed abnormalities in his neck vertebrae, Dr. Sumit Das performed surgery on his neck, which involved completely removing some of the vertebrae and inserting a cage. ECF No. 5-2 at 25-26, 54 (Tr. 24-25, 53). The surgery revealed a significant infection in the actual bones of Mr. Gray's neck, which was aggressively treated with antibiotics. Id. at 26, 54 (Tr. 25, 53). Because of the infection, Dr. Das did not complete a "posterior decompression, " and instead employed a "Halo fixation system" to keep Mr. Gay's neck stable. ECF No. 5-12 at 2 (Tr. 341). Mr. Gay wore the Halo device until it was removed two months later. Id:, ECF No. 5-16 at 20 (Tr. 402).

         Since the removal of the Halo system, Mr. Gay has consistently complained of pain, even while his treatment providers noted that he was progressing well. On September 5, 2012, Dr. Das reported that Mr. Gay "continues to do relatively well, " but also prescribed him Oxycodone and Valium for pain. ECF No. 5-17 at 3, 7-8 (Tr. 414, 418-19). On October 15, 2012, Dr. Das noted that all of Mr. Gay's "labs at this point are within normal limits, " yet he is having "increased neck pain." ECF No. 5-18 at 3 (Tr. 434). On December 6, 2012, physician's assistant Christine Boyer, who works with Dr. Das at the Brain & Spine Neurological Institute, began her report by stating that Mr. Gay "is progressing along quite well, " before noting that "he has had an increase in his neck pain." ECF No. 5-19 at 3 (Tr. 455). Ms. Boyer noted that Mr. Gay "is still finding himself getting extremely fatigued and having more pain by the end of the day." Id. On January 17, 2013, Ms. Boyer commented that Mr. Gay's cervical x-rays "appear stable, " yet "his left upper extremity is still weak, and he is still getting a significant amount of posterior cervical pain." ECF No. 5-20 at 17 (Tr. 487). She also noted "increased complaints of some intermittent numbness into the left and right hands and arms." Id.

         Mr. Gay had an MRI on February 12, 2013, which revealed "ventral breaking of the right cervical cord at the C4 levelt, which] raises the possibility of a ventral dural tear in the location." ECF No. 5-21 at 3 (Tr. 508). A CT scan on the same date revealed "degenerative changes at the C2-C3 and C6-C7 levels." Id. at 7 (Tr. 512). The next day, Dr. Das observed that Mr. Gay was doing "relatively well, " despite also noting that he had "some upper extremity numbness primarily in his hands, " and was also "complaining of neck pain." ECF No. 5-22 at 11 (Tr. 559). On April 17, 2013, Dr. Das reiterated that Mr. Gay "has had some persistent neck pain, " along with "numbness and tingling in both of his upper extremities as well as in his lower extremities." ECF No. 5-23 at 3 (Tr. 578). Dr. Das indicated that he "would like to perform an EMG of both upper extremities." Id. at 4 (Tr. 579). On May 22, 2013, Dr. Das noted that Mr. Gay "continues to complain of neck pain, " despite other indicators showing that he is healing. ECF No. 5-27 at 3 (Tr. 708). On July 17, 2013, Ms. Boyer noted that Mr. Gay "is still complaining of primarily neck pain and some shoulder pain, " and "still complaining of some left arm weakness." Id. at 23 (Tr. 728). Ms. Boyer also noted that the EMG "does show evidence of a polyneuropathy at C4-5, C5-6, and C6-7 on the left." Id. at 24 (Tr. 729). On September 5, 2013, Ms. Boyer observed that Mr. Gay "is still complaining of neck pain that has become quite severe in nature at times." Id. at 34 (Tr. 739). She noted that he had "right hand swelling and tremors" and "numbness and tingling into his bilateral hands and feet." Id.

         On January 14, 2014, Mr. Gay attended a hearing before the ALJ. He testified that he "can't stand for long periods of time. [His] feet go numb, [he] drop[s] stuff. [He] ha[s] limited range of mobility in [his] neck. [He is] in constant pain." ECF No. 5-2 at 43 (Tr. 42). He also testified that his hands go numb, he cannot really lift anything, and he has difficulty putting his hands above his head. Id. at 44 (Tr. 43). He stated that he has a hard time dealing with buttons and zippers, and has fallen a few times because of numbness in his feet. Id. at 50-51 (Tr. 49-50). He estimated that he can only bend over for 5-10 minutes, can walk for about 15-20 minutes before he has to take a break, can sit for 10-15 minutes before needing to move around, and could lift a maximum of 15-20 pounds. Id. at 44, 46 (Tr. 43, 45).

         Medical Expert Stephen Kaplan, M.D., also testified at the hearing. He observed that Mr. Gay's "complaints have been consistent, [about] posterior neck pain with significant pain, particular in the left upper extremity." Id. at 55 (Tr. 54). Dr. Kaplan had difficulty explaining the origins of Mr. Gay's complaints of "numbness down both arms and legs." Id. He also testified that there are no objective findings to explain Mr. Gay's numbness and difficulty using his hands and upper extremities. Id. at 59 (Tr. 58). He stated that objective findings only account for problems in Mr. Gay's left upper arm. Id.

         Vocational Expert Kenneth R. Smith then testified that assuming an individual of Mr. Gay's age, education, and vocational background, and capable of performing at the light exertional level, [1] that individual would be precluded from Mr. Gay's past work, but would not be precluded from other unskilled work at the light and sedentary level. Id. at 63-64 (Tr. 62-63).

         The ALJ issued a decision denying benefits. ECF No. 5-2 at 20, 33 (Tr. 19, 32). The ALJ found that Mr. Gay's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however [his] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . ." Id. at 25 (Tr. 24). She explained that Dr. Das' reports suggest that Mr. Gay has been improving, and that there is no objective basis to explain some of Mr. Gay's symptoms. Id. at 29 (Tr. 28). She also noted that "the record reflects improvement with activities of daily living that belies the claimant's allegations of disability, " pointing to improvements during the period from October 2012 to January 2013, and the limited activities, such as being "able to bathe and dress himself for the most part, " which Mr. Gay reported he can still do. Id. The ALJ concluded that Mr. Gay does have a severe impairment, albeit one that does not meet or medically equal the requisite severity to automatically qualify for benefits, and that although his residual functional capacity does not permit him to perform the requirements of his past relevant work, it does permit him to perform other relevant work that exists in significant number in the national economy. Id. at 22, 24, 31-32 (Tr. 21, 23, 30-31).

         Mr. Gay appealed the ALJ's decision to the Appeals Council, and submitted additional medical records. These records included a medical report dated March 12, 2014 from his pain management doctor at Brain & Spine Neurological Institute, Dr. Katherine Williams. Her assessment was that:

Mr. James Gay continues to have severe pain which is significantly affecting his life. He is mostly homebound due to his pain. At this point we are trying to taper his pain medications down as tolerated. . . Mr. Gay certainly has significant pain associated with ...

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