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Littlejohn v. Colvin

United States District Court, D. Rhode Island

September 15, 2016

RICKIA LITTLEJOHN, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Rickia Littlejohn, Plaintiff, represented by Morris Greenberg, Green and Greenberg.

          Carolyn W. Colvin, Defendant, represented by Molly E. Carter, Social Security Administration OGC.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, Magistrate Judge.

         Plaintiff Rickia Littlejohn asks this Court 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, 42 U.S.C. §§ 405(g), 1383(c)(3) (the "Act"). He argues (1) that the failure of the Administrative Law Judge ("ALJ") to include in his hypothetical question to the Vocational Expert ("VE") the clarification that the ability to lift up to twenty pounds was "occasional" left the Step Five finding unsupported by substantial evidence; and (2) that the ALJ's residual functional capacity ("RFC")[1] findings were flawed because he interpreted a spinal x-ray and MRI without a medical source and because his decisions to discount both the treating opinion of Plaintiff's chiropractor and Plaintiff's credibility were not supported by substantial evidence. 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 no material legal error and that the ALJ's findings are well supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 11) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 12) be GRANTED.

         I. Background Facts

         A. Plaintiff's Relevant Background

         On August 17, 2012, Plaintiff protectively filed for disability that he claims began on April 1, 2012, due to a left foot impairment, a right Achilles tendon impairment, and the effects of childhood meningitis.[2] Tr. 66-67. After reconsideration was denied but before the ALJ's hearing, he claimed to have been hit by a car while riding a bike, resulting in a lumbar spine injury, which he added to his claim. Tr. 338-39. Plaintiff was fifty-one at onset and lives in an apartment. Tr. 41. Beyond that, the record regarding Plaintiff's relevant background, including what Plaintiff really did for work prior to onset, what are Plaintiff's real activities of daily living, what is Plaintiff's real educational background, and how Plaintiff really came to be injured, is replete with troubling inconsistencies.

         The anomalies infecting the evidence of Plaintiff's work history are exposed by contrasting the prior employment information from third party sources with employment information from Plaintiff. For starters, Plaintiff's earnings record reflects intermittent work, yielding relatively low income when he was working. From 2008 until 2012, these records reflect that he worked for "Middlesex Cleaning;" from 2008 until 2011, he earned between $8, 000 to $12, 000, while in 2012, he earned $1, 200. Tr. 189-95. In 2012, the record reflects that he also worked for Laundry Management Services, Inc., which paid him $125, while in 2011, he was paid $3, 000 by BCD Enterprises and, in 2008, he was paid $60 by Preferable People, LLC. Tr. 188-95. According to these records, in 2007, he had no income; in 2006, he earned $11, 000 working for D. Corso Excavating, Inc., and Preferred Labor, LLC; in 2004 and 2005, he earned less than $7000 in each year. Tr. 189, 195. From 2003 back to 1990, he had almost no income at all. Tr. 189.

         This objective information cannot be harmonized with the information Plaintiff provided in connection with his disability application: in a Work History Report, he wrote that he worked at "Middlesex Engineering" (not Middlesex Cleaning, the entity that reported paying him wages) from June 11, 1990, until April 1, 2012 (not from 2008 to 2012, as the earnings record reflects). Tr. 228. Plaintiff described this job as supervisory and involving the repair of engines on the top of hotels and requiring technical knowledge and skills. Tr. 229. Based on the rate of pay he wrote in the Report, Plaintiff would have earned close to $60, 000 per year (far more than the earnings of up to $12, 000 in the earnings report). See Tr. 229. In another Work History Report, apparently completed by counsel on Plaintiff's behalf, he indicated that he had worked as a "window cleaner" in connection with construction from 1992 until April 2012, also earning at the rate of approximately $60, 000 per year. Plaintiff testified to yet another version of his prior work at the hearing - he claimed to have been working as a foreman for "Middlesex Hydraulics, " performing hydraulic-related troubleshooting for earth movers and heavy-duty construction equipment.[3] Tr. 42.

         Also puzzling is Plaintiff's presentation of two variations of his daily activities in two quite different Function Reports that were filled out almost contemporaneously. Tr. 220-32, 233-48. The first was signed on September 9, 2012, and appears to have been entirely filled in by Plaintiff himself; the second was signed on September 28, 2012, less than three weeks later and purports to have been completed by "Rickia Littlejohn/Green & Greenberg." Tr. 227, 232, 240, 248. One report says that Plaintiff drives, Tr. 223, while the other says that he does not, Tr. 236. One says he lives in an apartment with family; the other says he lives with a friend. Tr. 220, 233. One says he cares for no one; the other says he cares for his grandson, including getting him up and making his meals. Tr. 221, 234. One says that, at least two days a week, he cannot get out of bed due to pain and depression; the other makes no such reference. Tr. 234. One says he prepares daily meals, vacuums, cleans, does laundry, and washes dishes with breaks as needed; the other says that he prepares meals, but the need to elevate his leg interferes with any other activities. Tr. 222, 235. One says he goes out "a lot" on foot or on public transportation, shops and can handle money; the other says he only tries to get out daily and cannot pay bills or handle either a savings account or the use of checks or money orders. Tr. 223, 236. One says that he regularly attends church and goes to the library and a men's club, while the other lists no places attended regularly because he tends to stay to himself. Tr. 224, 237-38. One says he has no problems with attention or following instructions, takes stress in stride and welcomes change, while the other says he does not deal well with stress and has difficulty with attention and spoken instructions. Tr. 225-26, 238-39. One says he must elevate his legs six to seven times per day for an hour to an hour and a half (a requirement not reflected in any medical record); the other makes no reference to such a limitation. Tr. 233.

         Plaintiff's educational background is also mysterious. At the hearing, Plaintiff's counsel explained that he dropped out of high school in the tenth grade and later got a GED. Tr. 39. During the clinical interview with Dr. Turchetta, Plaintiff claimed to have finished high school in California and to have completed two and a half years of college at the University of California. Tr. 309; see Tr. 214 (completed two years of college). He also claims to have completed specialized training in hydraulic engineering in the 1990s. Tr. 214.

         The greatest mystery of all is what caused the injuries to the left foot, the right ankle and the lumbar spine, which are the primary impairments allegedly causing disability. Over the period from April 2012, when he stopped work, until just prior to the hearing in November 2013, Plaintiff has told many different versions of the story.

         The tale begins with Plaintiff's left foot - on April 1, 2012 (the alleged onset date), at the Rhode Island Hospital ("RIH") emergency room, he reported "stepping on tree branch yesterday wearing slippers in backyard of his house" and that "something in the yard that came up thru my shoe"; the injury caused a puncture wound and a fractured metatarsal. Tr. 279, 282-83. The next event affects Plaintiff's right ankle - three months after seeking care for the left foot, on July 3, 2012, Plaintiff's ankle was x-rayed at Cambridge Hospital because of his complaint of "[r]ight Achilles pain and swelling." Tr. 300. A few days later, on July 6, 2012, Plaintiff saw Dr. Launer of Cambridge Health Alliance who diagnosed right Achilles tendon rupture, subacute, and recommended nonsurgical treatment because the injury was already at least one month old.[4] Tr. 298. Notably, Plaintiff told Dr. Launer that the right ankle had been injured at work[5] "because the equipment was malfunctioning." Id . During this appointment, Plaintiff asked Dr. Launer if he could collect disability for the right ankle injury and was told that was unlikely. Id . Plaintiff terminated treatment of the right ankle with Dr. Launer on October 18, 2012, because he was moving to Rhode Island; at the final appointment, Dr. Launer noted that the foot and ankle showed no swelling and recommended that Plaintiff stop wearing the splint and postop shoe and transition to normal footwear. Tr. 291. According to a letter from Dr. Launer's colleague, Ka-Yi Lo, Plaintiff was able to return to work as of that date. Tr. 375.

         Meanwhile, while going to Cambridge for his right ankle, care for the left foot resumed in Rhode Island (after several missed follow-up appointments), [6] with Dr. Raymond Hsu of the RIH orthopedics clinic. On August 24, 2012; Plaintiff complained to Dr. Hsu of pain; this time, in contrast to the story told at the emergency room of walking in slippers in the back yard, he told Dr. Hsu that the left foot puncture and fracture had been caused by a "fall from construction at work onto bushes." Tr. 425. Noting that the fracture had healed, Dr. Hsu cleared Plaintiff to work as limited by pain. Tr. 275. In November 2012, Dr. Hsu discovered that some of the splinter remained under the skin and surgically removed it. Tr. 314. By December 2012, the wound was healed, pain medication was discontinued, and Plaintiff was told to wear a normal shoe and was discharged from further treatment. Tr. 313-14.

         During this period, care for the right ankle (ended at Cambridge Hospital in October) switched to Rhode Island on December 3, 2012, at the Elmwood Orthopedic Rehab Center. Tr. 332. By contrast with the story of a work-place encounter with malfunctioning equipment told to Dr. Launer, Plaintiff told Elmwood staff that the right ankle was injured when he fell ten feet from a ladder in late March 2012. Tr. 332. Based on a physical examination, they opined that, with appropriate physical therapy, Plaintiff should be able to walk and run for two hours daily for occupational and athletic activities within eight weeks. Tr. 333-34.

         While Plaintiff was giving these explanations to treating providers, he provided a very different story in connection with his disability application; soon after filing for disability, on September 9, 2012, he completed a Function Report in which he conflated the cause of the injury to the left foot (both the puncture and the fracture) and to the right ankle (the Achilles rupture), stating that "both" were injured in the same incident "when I fell at work." Tr. 227.

         For four months following Dr. Hsu's termination of treatment for the left foot based on it being fully healed and Elmwood's opinion that the right ankle would fully recover with eight weeks of rehabilitation treatment, there is a gap during which Plaintiff appears to have received no treatment (including no physical therapy) for either the left foot or the right ankle. Meanwhile on December 4, 2012, his disability claim was denied initially, Tr. 88-89, and on April 24, 2013, it was denied on reconsideration, Tr. 116-17.

         The treatment lapse ended just before the reconsideration denial, on April 18, 2013, when Plaintiff went to the RIH emergency room complaining of pain in both the left foot and right ankle. Tr. 416. At this appointment, Plaintiff's statement to the attending physician (contrary to prior statements to treating providers but consistent with the disability application) conflated the occurrence of the two injuries, reporting that "one year ago [he] fell from... a height, and sustained a left ankle fracture as well as a right Achilles tendon rupture... normally works as a high-rise window washing foreman." Tr. 417. Finding no sign of infection or complication, the nurse practitioner acquiesced to Plaintiff's request for a prescription for pain medication and an out-of-work note just until he could make an appointment with an orthopedist. Id . In May 2013, Plaintiff returned to Dr. Hsu at the RIH orthopedic clinic. Tr. 419. Dr. Hsu urged Plaintiff to continue range of motion and strengthening exercises for the right ankle and to stop use of the splint; he referred Plaintiff for a neuropathy workup because he considered the injury is unlikely to cause the pain he was complaining about. Id.

         Plaintiff's medical situation shifted on June 14, 2013, when Plaintiff went to the Kent Hospital emergency room claiming that he had been hit by a car while biking. Tr. 361. Based on his statement that he hit his head, twisted his back and his right foot was run over, x-rays were taken of his brain, back and right foot/ankle, all of which resulted in no acute findings. Tr. 365. On physical examination, the emergency room physician found no tenderness and normal range of motion in the back and mild tenderness and normal range of motion in the ankle and foot. Id . Plaintiff was discharged home apparently without medication or follow up instructions. Id.

         Two weeks after the bike collision, on June 28, 2013, Plaintiff initiated care with a chiropractor, Dr. Stephen Estner. Dr. Estner's initial assessment stated that Plaintiff had been asymptomatic at the time of the bike collision and that acute lumbosacral sprain, post-traumatic headaches and an acute right ankle sprain were all caused by the collision. Tr. 338-39. Until mid-August, Plaintiff saw Dr. Estner every few days for a range of chiropractic treatments, including moist heat, laser therapy, electrical muscle stimulation and chiropractic manipulation. Tr. 341-47. At each appointment, the Estner notes reflect that Plaintiff could not put any weight on the right ankle and that the pain either stayed the same or got worse. On July 19, 2013, Dr. Estner signed a revised opinion because "the patient informed me of a work-related injury that occurred on April 1, 2012, where he fell at work, fracturing his left foot and rupturing his right Achilles tendon." Tr. 344. The new opinion concludes that the bike collision exacerbated the prior injury to the right ankle. Id . A little over a month later, on August 30, 2013, Plaintiff ended treatment with Dr. Estner because his lumbar spine, right ankle and left foot were "no longer experiencing relief." Tr. 348.

         Also in June 2013, Plaintiff began treatment at the Rhode Island Free Clinic, which did not prescribe medication or other treatment, but did refer him to a neurologist, Dr. Elaine Jones, as Dr. Hsu had recommended. Tr. 355. After lumbar spine and right ankle MRIs were completed in July 2013, [7] Dr. Jones saw Plaintiff on August 26, 2013. Tr. 357. Plaintiff told her how he injured both feet and his back, now conflating all three injuries into a single incident - according to this version:

About six months ago he was working on the side of a building and coming down in a chair suspended by ropes. One rope slipped and he fe[l]l to the ground, hitting his right foot on a machine and twisting his back.... [H]e ruptured his right Achilles tendon and broke a bone in the left foot."

         Tr. 357. He claimed he was admitted to RIH as a result of this serious injury.[8] Dr. Jones examined the lumbar spine MRI and found "no obvious disc issues." Id . She did not recommend any back treatment but did order EMG testing; at her final appointment with Plaintiff on October 21, 2013, she found EMG results "relatively unremarkable" and ordered no treatment of the back, foot or ankle, except for a low dose of pain medication. Tr. 359. She suggested follow up in two to three months. Id . With the neurologic testing done, Plaintiff returned to Dr. Hsu on October 23, 2013. Dr. Hsu prescribed no medication and discontinued treatment based on the findings that Plaintiff's left foot injury was fully resolved, resulting in "[w]alking without assist or AFO (ankle/foot orthotic), " and that the right ankle continues to have some weaknesses but he is "able to ambulate without assist[ance]."[9] Tr. 438.

         With such a dramatic inconsistency among the five (at least) different versions of Plaintiff's story of how he hurt his foot and ankle, the only thing that can be said with certainty is that no one (except Plaintiff himself) knows what really happened in early April 2012, as a result of which, as Plaintiff now claims, he could no longer work. This mystery drew the Court's attention to three references in the record: (1) the statement in the application that "I have been accused or convicted of a felony" and that the matter is "continuing"; (2) the 2006 treating note indicating that Plaintiff was receiving substance abuse treatment after serving two and a half years in prison for beating his former girlfriend and her male friend; and (3) Dr. Hsu's May 3, 2013, note ("[h]as a pending legal issue which pt would like a note stating he would not have been able to run with bilateral foot/ankle injuries"), which Plaintiff dismissed as "an incident I had with an ex-girlfriend and it's all over with, " when questioned about it by the ALJ. Tr. 51, 174, 273, 420. Based on these references, the Court accessed the public records for the Rhode Island state court's criminal docket.

         This public record search revealed that, on April 17, 2012, just two weeks after the alleged onset of disability, Plaintiff was charged by the State of Rhode Island with felonious breaking and entering a dwelling/domestic, stalking/domestic, and wilful trespass. See http://courtconnect.courts.state.ri.us/pls/ri_adult/ck_public_qry_doct.cp_dktrpt_frames?backto=P &case id=XX-XXXX-XXXXX&begin date=&end date= (reviewed Sept. 15, 2016). Further, a contemporaneous online media report from April 18, 2012, states that "Littlejohn Rickia, 51, was charged with domestic breaking and entering, stalking and trespassing, after he used a ladder to enter a second story and scaled a fence to flee the scene. "Man Uses Ladder to Break Into Woodward Avenue Home, " East Providence Patch, http://patch.com/rhode-island/eastprovidence/man-uses-ladder-to-break-into-woodward-avenue-home (reviewed Sept. 15, 2016). And the Rhode Island Adult Criminal Information Database website establishes that in late May 2013, shortly after Plaintiff asked Dr. Hsu for a note saying he could not run, his criminal case was passed for trial in the Superior Court; in September 2013, he pled nolo contendere and was sentenced to ten years, with sixty days to serve. See http://courtconnect.courts.state.ri.us/pls/ri_adult/ck_public_qry_doct.cp_dktrpt_frames?backto=P &case id=P2-2012-1930ADV&begin date=&end date= (reviewed Sept. 15, 2016).

         Without accepting the truth of any of this information, the Court is nevertheless compelled to question whether this case might implicate the principle that an impairment caused during the course of committing a felony may not be considered in making a disability determination. 42 U.S.C. § 423(d)(6)(A) ("any physical or mental impairment which arises in connection with the commission by an individual... of an offense which constitutes a felony under applicable law and for which such individual is subsequently convicted... shall not be considered in determining whether an individual is under a disability"); see 20 C.F.R. § 404.1506(a) (same). Put differently, these references suggest a serious question: were any or all of Plaintiff's injuries caused by a fall from a ladder or a vault over a fence in the course of committing the felony of breaking and entering in April 2012? Mindful that the ALJ did not address this question nor has it been raised or briefed by either party, I merely ask the question, but make no findings and draw no conclusions. See Fowler v. Comm'r of Soc. Sec., No. 12-12637, 2013 WL 5372883, at *3 & n.5 (E.D. Mich. Sept. 25, 2013) (court may, and should, raise issues sua sponte when review of record suggests that justice requires it); Silva v. Colvin, No. CA 14-301 S, 2015 WL 5023096, at *13 (D.R.I. Aug. 24, 2015) (same).

         Because, for the reasons discussed below, I am recommending that the Commissioner's motion to affirm be granted based on the ample record evidence supporting the ALJ's decision, whether this case involves felony-related impairments becomes pertinent only if this Court disagrees with my recommendation. If this Court remands the matter, I strongly recommend that the remand include a directive that further consideration should be given to ...


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