United States District Court, D. Rhode Island
JAMES W. GAY, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
W. Gay, Plaintiff, represented by Donna M. Nesselbush,
Marasco & Nesselbush, L.L.P..
Carolyn W. Colvin, Defendant, represented by Gwendolyn N.J.
Russell, Social Security Administration, OGC.
MEMORANDUM AND ORDER
J. McCONNELL, Jr., District Judge.
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
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.
1). Mr. Gay then filed this action with the Court.
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.
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); ECF 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).
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.
had an MRI on February 12, 2013, which revealed "ventral
breaking of the right cervical cord at the C4 level[, 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
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).
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.
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,  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).
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 ...