United States District Court, D. Rhode Island
Bergeron, Plaintiff, represented by Morris Greenberg, Green
Carolyn W. Colvin, Defendant, represented by Michael L.
Henry, Social Security Administration.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, Magistrate Judge.
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 Â§Â§ 205(g) and 1631(c)(3) of the
Social Security Act ("SSA"), 42 U.S.C. Â§Â§ 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") 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
matter has been referred to me for preliminary review,
findings and recommended disposition pursuant to 28 U.S.C. Â§
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
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.
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.
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.
support of her disability applications, Plaintiff submitted a
daily "pain and fatigue" log that she affirmed to
be true,  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.
Plaintiff's Medical History
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.
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 and there is no evidence that any
medical provider recommended any treatment based on the
findings in the report. Tr. 280.
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.
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." In an apparent reference to his
diagnoses and treatment plan, Dr. Mourad wrote, "Chronic
pain/FMS" and "MS Contin" 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.
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. 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. 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.
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.
SSA filing on February 4, 2013, Plaintiff identified Dr.
Mourad as her only treating provider during the relevant
period. 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.
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.
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. Tr. 270-71. Plaintiff
told Dr. Unger that she had no "history of inpatient or
outpatient psychiatric treatment." Tr. 268.
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.
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.
January 23, 2014, Dr. Mourad signed the first of two
opinions. 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. 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.
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; (4) instead of
the conclusion that Plaintiff cannot sit at all, it states
that she can sit ...