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Marques v. Colvin

United States District Court, D. Rhode Island

December 7, 2016

CARLOS ALBERT PACHECO MARQUES, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         Plaintiff Carlos Albert Pacheco Marques contends that he became fully disabled in September 2012, when he was involved in a motor vehicle accident, even though he stopped working over a year before because of a dispute with his supervisor. His disability application, based on spine/leg problems and depression/anxiety, complicated by substance abuse, was denied by an Administrative Law Judge (“ALJ”). His claim is now before the Court on Plaintiff's motion for reversal of 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”). Plaintiff contends that the ALJ erred in the weight afforded to the opinions of his family medicine physician, Dr. Samantha Greenberg, and in his evaluation of Plaintiff's credibility. 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 there is no 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. 10) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 13) be GRANTED.

         I. Background

         Plaintiff left school in eleventh grade; for many years, he worked at various laboring jobs, but also abused alcohol, cocaine, marijuana, opioids and benzodiazepines. Tr. 243, 246. His criminal history includes four arrests for driving while intoxicated and a conviction for assaulting his mother's sixty-one-year-old boyfriend, for which he served a year in prison. Tr. 244, 269. During the period of alleged disability, he lived at times with his girlfriend and at other times with his mother and brother; he also socializes with friends. Tr. 30; 245. He lost his last job at a printing company in April 2011 because of a dispute with his supervisor. Tr. 186.

         The record reflects Plaintiff's persistent complaints of extreme back pain radiating into his legs. Although there is no medical record to confirm it, he contends that the September 4, 2012, motor vehicle accident significantly exacerbated spinal issues to the point that they became disabling. See Tr. 235-40; 307 (Memorial Hospital CT showed some degeneration but no acute findings). The follow-up MRI performed in October 2012 showed one moderate disc bulge causing severe foraminal narrowing and several mild bulges. Tr. 240. Plaintiff was referred to Dr. Cielo at the Neurosurgery Foundation; on May 7, 2013, Dr. Cielo confirmed chronic lower back pain with radiculopathy secondary to lumbar spondylitic disease, and discussed treatment options, which included “surgical management.” Tr. 250. Dr. Cielo's notes reflect that Plaintiff told him that he was not using any “recreational drugs, ” even though the record reflects that he was actively using marijuana and non-prescribed benzodiazepine and opioids during the same time period. Compare Tr. 250, with Tr. 244, 263. Apart from this appointment with Dr. Cielo, all of the treatment for Plaintiff's spine took place at the Memorial Hospital Family Care Center or the Memorial Hospital Pain Management clinic.

         At the Family Care Center, Plaintiff's initial primary family practitioner was Dr. Thorpe, who saw him from October 2012 until May 2013. Her records reflect that Plaintiff consistently described back pain as “10/10, ” that he declined surgery, and that the appointments were a constant struggle over his desire for prescriptions for strong muscle relaxants and pain medication. E.g., Tr. 253 (Plaintiff asks, “can't you give me a speed pill?”; told not appropriate); Tr. 274 (Plaintiff told “we will not be prescribing chronic pain meds and no muscle relaxants”); Tr. 281 (asking for more Soma; admitted taking marijuana and unprescribed Percocet, clonazepam and possibly methadone). At one appointment, Dr. Thorpe noted, “not obviously under the influence but there was concern as he kept jumping from one topic to the other and had a hard time following.” Tr. 282. Dr. Thorpe's records establish that, despite his complaints of pain at the level of “10/10, ” Plaintiff consistently reported that he was taking care of his elderly mother; he also said that he was “doing things (car work)” for friends, for which he was paid with drugs, such as “vicodins, percocets, speed in the am's, clonidine, clonazepam.” Tr. 253, 259, 274; see also Tr. 313 (Plaintiff cared for his girlfriend's children). At her first two appointments, Dr. Thorpe's physical examinations of his back resulted in her observation of tenderness, positive leg raise and decreased sensation on the left, but not decreased range of motion. Tr. 304. After that, her notes on physical examination typically yielded no findings, except occasional muscle tension. E.g., Tr. 257 (“neg straight leg raise . . . normal ROM”); see Tr. 297 (“hypertrophic paraspinal lumbar musculature”). Dr. Thorpe referred him to the pain management clinic at Memorial Hospital, which gave him three spinal injections, but only Tylenol, which frustrated him. Tr. 263, 315-17.

         Although the focus of her treatment was back pain, Dr. Thorpe also addressed Plaintiff's complaints of depression. She prescribed medication and referred him to psychiatrist Dr. Ong for an evaluation in January 2013; Dr. Ong diagnosed depression and post-traumatic stress disorder, as well as polysubstance dependence in sustained partial remission. He recommended medication and therapy as soon as Plaintiff was stabilized. Tr. 269-70. At her last appointment with Plaintiff in May 2013, Dr. Thorpe reiterated that she was encouraging counseling, noted Plaintiff's report of pain of “10/10, ” but refused to prescribe “speed.” After her first appointment at which she noted “flat affect, depressed mood, decreased desire to do anything, ” Tr. 300, Dr. Thorpe's mental status observations reflect no abnormal findings, except once she noted that he was “at times laughing inappropriately.” Tr. 254; see Tr. 257 (“Mood and affect appropriate”); Tr. 264 (“no abnormalities”); Tr. 267 (“[n]o abnormalities”); Tr. 272 (“[n]o abnormalities”); Tr. 282 (questioning whether he is “under the influence”); Tr. 297 (“[n]o abnormalities”).

         After Dr. Thorpe left the practice, Plaintiff appears to have been switched to another family medicine doctor, Dr. Samantha Greenberg, [1] although he did not begin to see her regularly until December 2013. In November 2013, Dr. Greenberg wrote a letter expressing the opinion of the practice - not her own opinion as she had seen him only twice as of that date - that Plaintiff's functional capacity was adversely impacted by back pain particularly because his prior work involved manual labor. Tr. 340. The letter does not opine that he cannot work at all. After she began seeing Plaintiff regularly, she continued to prescribe medication to treat depression and to consider his requests for stronger pain medication for his back. Her physical examinations do not reflect many serious abnormal findings. Tr. 328 (“Back. No pain. . . Slightly down affect. Otherwise appropriate”); Tr. 331 (“Pain to palp over L trap . . . Upset, tearful . . . Full ROM, pain w/ ROM”); Tr. 352 (no observations of spine; “[d]enies SI, slightly decreased affect but appropriate”); Tr. 359 (no observations of spine; “[d]enies SI/HI”); Tr. 367 (no observations of spine; “[c]onstricted affect”); Tr. 372 (no observations of spine; “[a]ffect blunted.”); Tr. 377 (pain with palpation and extension, “[p]ain to palp over R SI joint, exquisite . . . [f]lexion limited”); Tr. 382 (“Pain to palp over R SI joint . . . Depressed mood and affect”). Examinations by other physicians in the practice yielded similarly benign results. See Tr. 338 (“Mild lumbar paraspinous tenderness. ROM limited in flexion and extension . . . SLR neg. bilaterally”); Tr. 363 (“muscles tight lumbar back and tender . . . affect a tiny bit flat, mood a bit down”).

         After several months, in January 2013, Dr. Greenberg capitulated to Plaintiff's persistent requests for narcotic pain medication but only on condition that he get counseling treatment for depression and that he follow-up on the suggestion that surgery might mitigate his back pain. Tr. 373. Plaintiff was very “upset by this conversation . . . [w]alked out of encounter.” Id. Following this appointment, Plaintiff had what appears to be an intake appointment with a psychologist and one counseling appointment with another psychologist, both in April 2014, just before the ALJ hearing; an appointment with Dr. Cielo, the neurosurgeon, had been scheduled for shortly after the ALJ hearing. Tr. 34, 374, 379. At the counseling appointment with the psychologist, Plaintiff said that he believed the depression was caused by chronic back pain and would be alleviated if his primary care doctor would prescribe narcotics. Tr. 379.

         Over the period reflected in the record, except for the two appointments with psychologists just before the ALJ hearing that Plaintiff appears to have attended so he would be prescribed narcotics, Plaintiff never accessed therapy.[2] Although Dr. Greenberg noted early in the course of treatment that Plaintiff told her that he had completed counseling at Gateway, Tr. 351, there are no records reflecting that he did.

         II. Travel of the Case

         Plaintiff filed his DIB and SSI applications on October 15, 2012, alleging disability beginning September 4, 2012. Tr. 152-67. They were denied initially and on reconsideration, Tr. 96-99, 102-07. At the hearing, the ALJ heard testimony from Plaintiff, who was represented by counsel, a medical expert, psychiatrist Dr. John Ruggiano, and a vocational expert. Tr. 27-47. On June 10, 2014, the ALJ issued a decision finding that Plaintiff was not disabled at any time since his application date, and was therefore not entitled to receive the requested benefits. Tr. 15-26. The Appeals Council denied Plaintiff's request for review, Tr. 1-4, rendering the ALJ's decision the final decision of the Commissioner. Plaintiff has exhausted his administrative remedies, and this case is now ripe for review. 42 U.S.C. §§ 405(g), 1383(c)(3).

         III. Iss ...


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