Bergeron v. Colvin

          Kate Bergeron, Plaintiff, represented by Morris Greenberg, Green and Greenberg.

          Carolyn W. Colvin, Defendant, represented by Michael L. Henry, Social Security Administration.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, Magistrate Judge.

         Plaintiff Katie Ryan Bergeron seeks disability benefits based on the chronic pain of fibromyalgia and disc degeneration exacerbated by mental impairments. The matter is before the Court on Plaintiff's motion to reverse the decision of the Commissioner of Social Security (the "Commissioner"), denying Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under §§ 205(g) and 1631(c)(3) of the Social Security Act ("SSA"), 42 U.S.C. §§ 405(g), 1383(c)(3) (the "Act"). Plaintiff contends that the Administrative Law Judge ("ALJ") erred in determining that neither fibromyalgia nor lower back pain amounts to a severe physical impairment, that the mental residual functional capacity ("RFC")^[1] findings are not supported by substantial evidence, and that the evaluation of Plaintiff's credibility is flawed. 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 entire record, I find that the ALJ's findings are sufficiently supported by substantial evidence and that the errors in his analysis are not material. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 9) be DENIED and Defendant's Motion for an Order Affirming the Commissioner's Decision (ECF No. 10) be GRANTED.

         I. Background Facts

         A. Plaintiff's Background

         Plaintiff was only thirty when she stopped working on her alleged onset date of May 2, 2011, and thirty-two when the ALJ issued his decision. Tr. 163, 171. When she was a child of sixteen, she was involved in a very serious motor vehicle accident resulting in a broken right femur, a broken left wrist, and a lacerated liver; she had multiple surgeries in the aftermath of the accident, including procedures to remove surgical hardware and bone fragments from her right leg. Tr. 293-96, 301-16. Despite the accident and its consequences, Plaintiff went on to complete her education, earning an associate's degree in radio broadcasting. For ten years, she worked successfully in that field as a radio production manager and traffic producer, earning more than $42, 000 in the three years preceding the year of alleged onset. Tr. 41-42, 187-88, 215-19. She claims that she stopped working on May 2, 2011, because she was in such constant pain that "[t]here were a lot of days" when she could no longer get out of bed. Tr. 54.

         Throughout the period of alleged disability, Plaintiff claims that she has lived alone with a small dog. Tr. 44, 59, 206. Since stopping work in 2011, she has been assisted by a friend, who lends her money, pays her rent of $750 a month, takes her to medical appointments, does the shopping, cleans the apartment, gets the mail, and feeds the dog. Tr. 42, 44, 46, 53-54, 57. While Plaintiff explained that her lack of medical treatment was caused by her lack of medical insurance, she added that she was able to afford Dr. Jack Mourad (the internist/rheumatologist who is the only longitudinal treating medical provider during the period of disability) because "[m]y friend was paying for a lot of the appointments." Tr. 59.

         As a result of her disabling limitations, Plaintiff claims that she lays in bed for twenty-two to twenty-four hours a day and engages in no daily activities beyond putting frozen food in the microwave, occasionally reading for twenty minutes, making sure the dog's bowls are full, and watching television. Tr. 48, 51; see Tr. 206 ("I am bedridden"). She also claims that her agoraphobia and anxiety are so severe that she cannot even leave her apartment to retrieve the mail; in addition, she claims that her frequent anxiety attacks make it impossible for her to go out alone. Tr. 207, 209. Because her pain makes standing for any period of time impossible, she bathes only twice a month and has her friend cut and color her hair every eight months. Tr. 207.

         In support of her disability applications, Plaintiff submitted a daily "pain and fatigue" log that she affirmed to be true, ^[2] in which she recorded her daily symptoms, pain severity (on a scale of one to ten) and time spent lying down every day from January 23, 2013, through June 30, 2013, and the month of October 2013 - a total of more than six months. Tr. 249-59. According to the logs, Plaintiff spent twenty-two to twenty-four hours of every day lying down (except on days when she had medical appointments), endured constant pain usually at the level of eight, nine, or ten out of ten (rarely seven), and experienced daily "manic depression, agoraphobia and insomnia, " as well as either "chronic pain" or "fibromyalgia" and occasional panic attacks. Tr. 249-59.

         B. Plaintiff's Medical History

         Despite Plaintiff's testimony that she has not driven a car since 2011 and that, on May 2, 2011, she stopped working because of constant pain, the only medical treatment leading up to the date of onset are two records from an unrelated plastic surgery on her nose in 2010. Tr. 317-18. Three weeks after onset, on May 25, 2011, Plaintiff had an imaging study done of her elbow, which confirmed the presence of a needle fragment in the bone. The report notes the absence of effusion and notes that all bone structures were intact; it makes no recommendation for follow up. Tr. 321. Otherwise, Plaintiff appears to have received no medical treatment at all for both the full year before and the full year after the onset of disability.

         The first reference to any treatment after onset is an MRI of the lumbar spine performed a year later, on May 15, 2012, which shows mild and moderate loss of disc height and mild stenosis. Tr. 261-62, 283-84. This MRI was performed in Pompano Beach, Florida; the record does not explain how someone suffering from chronic pain, agoraphobia and panic attacks so severe as to leave her unable to leave her home came to be in Florida for this MRI. The MRI report makes no treatment recommendations^[3] and there is no evidence that any medical provider recommended any treatment based on the findings in the report. Tr. 280.

         Other than the Florida MRI of the lumbar spine and the imaging study of the elbow, neither of which resulted in any treatment recommendations, there are no disability-period medical records until October 3, 2012, nearly a year-and-a-half after the alleged onset date. On that day, Plaintiff had the first of thirteen appointments with the internist/rheumatologist, Dr. Jack Mourad. Tr. 273-82, 327, 332-34. She complained of greatly increased pain in her jaw, as well as pain in her neck, back, and shoulder, which she had been experiencing since her childhood car accident. Tr. 273. In the note for this initial encounter, Dr. Mourad wrote down Plaintiff's "Problem List:" joint pain, "FMS" (fibromyalgia), anxiety and depression, migraine, insomnia, and fatigue. Id . In handwriting that is extremely difficult to decipher, he appears to record that Plaintiff told him she had been prescribed Percocet for fibromyalgia, Klonopin for anxiety and depression, and Ambien for insomnia; this note also refers to a list of other medications, but no list appears in the record. Id . No records confirm this history. On physical examination, Dr. Mourad recorded " tender trigger point" and " L/S spine tender." Id.

         The second appointment note (October 31, 2012) is written on the form that Dr. Mourad used for the balance of his encounters with Plaintiff. It records her complaints of leg pain and "aching all over - jaw, neck, knee LBP." Tr. 281. It reflects a box-checked physical examination with all normal findings (including normal motor strength), except for " multiple trigger point. L/S spinal tenderness."^[4] In an apparent reference to his diagnoses and treatment plan, Dr. Mourad wrote, "Chronic pain/FMS" and "MS Contin"^[5] with a dosage, as well as "ref to Providence Center." Tr. 281. Notwithstanding this reference, there is no suggestion in the record that any such referral was made or that Plaintiff ever went to the Providence Center.

         By the next appointment, on November 28, 2012, based on her complaint that she was "feeling sore all over" and the finding on physical examination of " L/S spine tender, " Dr. Mourad appears to have added a prescription for Klonopin.^[6] Tr. 282. At the January 4, 2013, appointment, Plaintiff said she had "good days and bad days, " while Dr. Mourad recorded "髩涊饞 tender trigger point." Tr. 274. Otherwise, everything was normal. He appears to have continued the same treatment - medication and nothing else. Id . At the February appointment, Plaintiff gave Dr. Mourad a copy of the year-old Florida MRI which had indicated mostly mild findings. Tr. 280-83. Apart from noting that he got it, the MRI did not affect Dr. Mourad's treatment in that he continued to prescribe strong pain medication and nothing else. Tr. 280. At the March 3, 2013, appointment, Dr. Mourad appears to have added Ambien to MS Contin and Klonopin, based on Plaintiff's complaint of "poor sleep - medication not working." Tr. 275. At the next two appointments, both in April 2013, Dr. Mourad apparently did not perform physical exam. Tr. 277-78. When Plaintiff returned in July for the next two appointments, Dr. Mourad's notes again reflect only Plaintiff's complaints of aches and pain ("back jaw 8/10") but no clinical findings (except for "MUSC " at one appointment). Tr. 276, 279. Meanwhile, with no recorded explanation, Dr. Mourad appears to have switched Plaintiff from MS Contin to Percocet.^[7] Tr. 279. He also noted that he had referred Plaintiff to a "pain management center, " but there is no evidence of an actual referral or that Plaintiff was ever treated by a pain specialist. Id . Dr. Mourad's final four sets of treatment notes - for September 25, October 28, and December 23, 2013, and February 14, 2014 - are even less legible because the copies are of poor quality. Tr. 327, 332-34. They appear consistently to reflect Plaintiff's complaints ("pain level up"; "crying in office"; "aching all over"), the diagnoses of FMS and LBP and, on one of them, a finding of "髩涊饞 tender trigger point." Tr. 327, 332-34.

         Apart from Dr. Mourad's intermittent inclusion of depression and anxiety on his list of diagnoses (the last such reference is in his note of July 1, 2013) and his prescription for Klonopin, the record reflects no mental health clinical observations, testing or treatment. When asked at a subsequent appointment with SSA consulting psychologist Dr. Unger, Plaintiff confirmed that she had never had inpatient or outpatient mental health treatment. Tr. 268. Also missing from Dr. Mourad's treating notes is any reference to when and why he prescribed birth control for Plaintiff. See Tr. 200.

         In her SSA filing on February 4, 2013, Plaintiff identified Dr. Mourad as her only treating provider during the relevant period.^[8] Tr. 224. The next day a records request was sent to him. Tr. 66, 77. For reasons not disclosed in the record, Dr. Mourad did not respond for months. He finally provided SSA with his records on July 30, 2013, well after Plaintiff's claim was denied at the initial level on April 26, 2013. Tr. 73-74.

         C. Opinion Evidence

         On April 3, 2013, Plaintiff was seen by an SSA consulting physician, Dr. William Palumbo, for a consultative physical examination. She told Dr. Palumbo that she had been diagnosed with fibromyalgia two months before and was suffering from constant pain in her entire body (especially in her neck, back, legs, ankles, and jaw) and from frequent panic attacks and agoraphobia. Tr. 264-65. According to her log, by the time Dr. Palumbo saw her, she had been in bed almost twenty-four hours a day for more than two months. See Tr. 249, 254-56. Nevertheless, Dr. Palumbo observed that she got on and off the examination table without difficulty, dressed herself without assistance, and had a normal gait and full, unrestricted range of motion. Tr. 264-65. Despite her claim that she had been bedridden for months, Dr. Palumbo found no evidence of muscle atrophy. Plaintiff was able to bend at the waist without any apparent discomfort; she had no obvious neurological deficits; and straight-leg-raise testing was negative bilaterally. Id . He found no evidence to support the fibromyalgia diagnosis, noting that her musculoskeletal examination was unremarkable. Tr. 265. Significantly, in light of her claim that she could barely walk and never drove, Dr. Palumbo took the extra step of making the observation that she walked to her car in the parking lot without difficulty after she left his office. Id.

         Three weeks later, on April 22, 2013, Plaintiff was seen by a consulting SSA psychologist, Dr. William Unger, for an evaluation based on her claims of anxiety, agoraphobia and manic depression. Tr. 267-72. She drove herself to the appointment. Tr. 267. On mental status examination, Dr. Unger found that her concentration was variable, her persistence was adequate, she was alert and oriented, her speech was clear, she showed no signs of a thought disorder, and her memory, insight, judgment, and fund of knowledge were intact. Tr. 269-70. Plaintiff told Dr. Unger that, since childhood, she has experienced symptoms of depression, panic disorder with agoraphobia, and panic attacks three or four times per week, each lasting fifteen to twenty minutes; she claimed to be unable to leave her home and said that she only leaves her bedroom with difficulty. Tr. 270. Despite these claims, Dr. Unger did not diagnose either manic depression or agoraphobia. Rather, he diagnosed panic disorder without agoraphobia and "depressive disorder, not otherwise specified, " with a Global Assessment of Functioning ("GAF") score of 48.^[9] Tr. 270-71. Plaintiff told Dr. Unger that she had no "history of inpatient or outpatient psychiatric treatment." Tr. 268.

         On April 22, 2013, with Dr. Mourad's records not yet produced, SSA physician Dr. Stephanie Green reviewed the record, which, as to physical impairments, consisted principally of the Florida MRI and Dr. Palumbo's report. Tr. 67, 78. Based on these records, she opined that Plaintiff did not have a medically determinable physical impairment because there were no objective medical findings to support diagnoses of fibromyalgia or chronic pain. Tr. 67-68, 78-79. A few days later, SSA psychologist Dr. John Warren, reviewed the record and opined that Plaintiff's depression and anxiety (as diagnosed by consulting psychologist Dr. Unger) caused moderate restrictions with respect to activities of daily living, social functioning, maintaining concentration, persistence, and pace, and that she had never had an episode of decompensation. Tr. 68-69, 79-82. He concluded that Plaintiff could perform simple tasks, interact appropriately with co-workers and supervisors, and adapt to routine workplace changes; however, she could not interact appropriately with the general public. Tr. 71, 82. Based on these opinions, Plaintiff's application was denied. Tr. 73-74.

         Dr. Mourad's records were finally provided during the reconsideration phase, on July 30, 2013. Tr. 90, 102. A little over a month later, on September 4, 2013, a second SSA physician, Dr. Youssef Georgy, reviewed the updated record. Dr. Georgy specifically adverted to Dr. Mourad's treating notes, the Florida MRI from 2012, and Plaintiff's pain log. Tr. 92, 104. Mindful of those records, he affirmed Dr. Green's assessment that no severe medically determined physical impairment had been established. Tr. 91-92, 103-04. On August 20, 2013, a second SSA psychologist, Dr. Jeffrey Hughes, concurred with Dr. Warren's assessment. Tr. 92-96, 104-08. At reconsideration, the examiners also recorded their finding that Plaintiff's claims regarding the severity of her symptoms lacked credibility. Tr. 94, 106. Based on these opinions, Plaintiff's claims were denied on reconsideration on September 5, 2013. Tr. 120.

         On January 23, 2014, Dr. Mourad signed the first of two opinions.^[10] Tr. 323-26. According to the opinion, Plaintiff suffers from spinal disc degeneration (causing "extreme pain, lack of mobility") diagnosed in May 2012, apparently based on the Florida MRI; depression (causing "depression, anxiety, insomnia, agoraphobia") diagnosed when she was a teenager; and fibromyalgia (causing "chronic pain in back, jaw, neck, leg") diagnosed in 2007.^[11] Tr. 324. The opinion concludes she is "bedridden" and can only walk or stand for fewer than two hours in an eight-hour workday, cannot sit at all, and cannot lift any weight. Tr. 325, 326. In response to the final question on the form ("other medical provider who has diagnosed or treated the patient"), the writer of the opinion filled in "TMH Med Clinic - Dr. Rafelson." Tr. 326. No records from any such clinic are included in the record, despite the confirmation by Plaintiff's counsel at the hearing that the file "is complete." See Tr. 39.

         The second opinion submitted by Dr. Mourad is dated February 1, 2014, only a week after the first opinion was signed, although it was not signed until February 19, 2014. Tr. 328-31. While it is on the same form as the first opinion, it is in a very different handwriting, which appears to be the same nearly illegible handwriting in Dr. Mourad's other medical records. Id . While the second opinion generally tracks the first, there are several curious differences: (1) Plaintiff's weight is different (higher by four pounds); (2) instead of "can not be eliminated, treatment is necessary for pain, " the prognosis is listed as "fair"; (3) instead of stating that fibromyalgia was diagnosed in 2007, it states that fibromyalgia was diagnosed in 2004;^[12] (4) instead of the conclusion that Plaintiff cannot sit at all, it states that she can sit ...