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Levin v. Colvin

United States District Court, D. Rhode Island

December 15, 2016

DANIEL RICHARD LEVIN, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         Plaintiff Daniel Richard Levin was only twenty-five years old when he stopped working in June 2012 following an injury to his inner ear caused by “40 some odd rides on roller coasters” during a single day, June 5, 2012; the resulting vertigo was coupled with the symptoms of what ultimately was diagnosed as postural orthostatic tachycardia syndrome (“POTS”), [1] as well as the mental impairments of anxiety, depression and adjustment disorder. His April 3, 2013, applications for 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”), were initially rejected by the Administrative Law Judge (“ALJ”), who ignored Plaintiff's mental impairments and found that he was not disabled during the relevant time period. After the matter was remanded by the Appeals Council because of the lack of development of the record pertaining to Plaintiff's mental health, the ALJ procured a consultative evaluation from a psychologist and expert testimony from a psychiatrist; this time, the ALJ found that Plaintiff had both physical and mental impairments, but still concluded that he had not been disabled.

         The matter is now before this Court on Plaintiff's motion for reversal of the decision of the Commissioner of Social Security (the “Commissioner”) denying DIB and SSI under the Act. Plaintiff contends that the ALJ erred in rejecting completely the opinions of his two treating cardiologists and erred further in crediting only the first two opinions of his primary care physician. He also challenges the ALJ's finding that he was “not entirely credible” because it is not grounded in adequate reasons. As a result of these errors, Plaintiff argues that the ALJ's residual functional capacity (“RFC”)[2] finding is 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 entirety of this very substantial record, I discern no material error in the ALJ's adverse credibility finding. However, 1 find that the ALJ's rejection of the cardiologists' opinions because they are inconsistent with their treating notes and the longitudinal treating record is based on material error and is not supported by substantial evidence; in addition, I find that the ALJ erred in relying on opinions of the primary care provider, which were subsequently repudiated by the doctor who wrote them.

         Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 9) be GRANTED and Defendant's Motion to Affirm Her Decision (ECF No. 13) be DENIED.

         I. Background Facts

         Plaintiff was employed as a poker dealer at Mohegan Sun on June 5, 2012, the day he rode the roller coaster “some 40 odd” times. Tr. 43, 56, 1284. Afterwards, Plaintiff insisted that he felt his neck “pop” and, despite conclusive medical evidence to the contrary, repeatedly reported to subsequent medical providers that he had fractured the “dens, ” a bony structure in the cervical spine.[3] For five months, he presented a wide range of complaints to an array of providers, including his primary care physician, Dr. Todd Viccione, and the emergency departments of at least three hospitals: they included vertigo, nausea, anxiety, a pounding heart, shortness of breath, spacial disorientation, and chest pain. Tr. 452-56, 460-66, 490-532, 684-741. In November 2012, Dr. Jules Friedman of University Otolaryngology diagnosed an injury to the inner ear sustained in June 2012, which was causing serious vertigo, but which Dr. Friedman opined would “slowly but truly improve” over time. Tr. 438. Based on the obvious anxiety associated with the sensation of vertigo, Valium was prescribed; although it helped with the symptoms of vertigo, Plaintiff developed a dependency with which he continued to struggle until at least September 2013. Tr. 1280. However, the diagnosis of vertigo explained only some of Plaintiff's less serious symptoms; it was clear that vertigo was only part of what was wrong.

         In December 2012, Plaintiff's search for a diagnosis took him to Boston, where he saw Dr. Stephen Parker at Massachusetts General Hospital (“MGH”). Tr. 1284-85. Based on Plaintiff's dramatic increase (from seventy-two to one-hundred-four beats per minute) in his heart rate as he moved from a supine position to sitting to standing, and the feeling of faintness when standing, Dr. Parker found that Plaintiff's symptoms “raise the possibility” of POTS. Tr. 1284. He referred Plaintiff to an MGH cardiologist with expertise in the diagnosis and treatment of POTS, Dr. Kitt Farr. Tr. 1284.

         In March 8, 2013, Plaintiff began seeing Dr. Farr, who ordered a battery of tests. Tr. 1291-1307. Based on symptoms that included a racing heart, anxiety, pervasive fatigue, chest pressure, shortness of breath, difficulties with cognition, processing or task sequencing and a sense of impending faint, in addition to residual vertigo, and based on clinical observations of postural vital signs that met the diagnostic criteria for POTS, as well as “blanchable erythema of the lower shins and feet, ” reduced skin density and an abnormal sweat test, Dr. Farr diagnosed POTS. Tr. 1291-92. He initiated treatment that included a high sodium diet, a structured exercise program[4] and a prescription for Florinef. Tr. 1291. With this treatment, within a year (in April 2014), Dr. Farr observed that Plaintiff had improved from his pre-treatment condition of being “virtually bedbound, ” but that “[a]lthough significantly improved compared with his baseline, his orthostatic tolerance remains limited at the present time.” Tr. 1296. Dr. Farr also noted that vertigo continued to limit Plaintiff's ability to use a computer or to function in a social setting. Tr. 1296.

         In September 16, 2014, Dr. Farr noted surprise that Plaintiff's symptoms had only improved to the point that he could stand for up to fifteen minutes or sit for up to forty-five minutes before experiencing lightheadedness, shortness of breath and cognitive impairment, and needing to take “a break.” Tr. 1291, 1293. He speculated that Plaintiff's failure to improve might have been impacted by the discontinuation of Florinef in January 2014, Tr. 1291, which Dr. Farr had done in part to accommodate Plaintiff's anxiety over medication (particularly in light of the troubling aftereffects of the prescription for Valium). Tr. 1293 (“It is surprising that Dan's orthostatic tolerance isn't as good as it is under the circumstances and it is possible that he has, to some degree, accommodated to his current degree of symptomatology and does not realize, which better he might feel with the adjunct of pharmacologic therapy.”); Tr. 1296 (“Dan prefers to minimize the number of medications he takes, given his experience with Valium.”). With Plaintiff's agreement, Dr. Farr resumed the prescription for Florinef. Tr. 1293. Soon after, this appointment, Dr. Farr wrote a relatively optimistic (by comparison with his treating note) medical opinion that POTS was causing disabling limitations, based on the inability to stand for more than thirty minutes or to sit/walk for more than two hours, with the need for one or two unscheduled breaks of fifteen to thirty minutes each over the course of the work day, together with the likelihood of missing more than three days per month. Tr. 1309.

         In November 2014, Plaintiff switched to MGH cardiologist Dr. Nancy Gracin. Tr. 1343. At Plaintiff's initial appointment with Dr. Gracin in November 2014, she wrote that Plaintiff “spends most of his day lying on a sleeping bag watching TV, ” and that, despite compliance with treatment, his POTS was “debilitating.” Tr. 1343-44. In a crucial observation that persists throughout the course of her treatment, and that echoes a similar observation by Dr. Farr, her notes record that Plaintiff was able to tolerate twenty minutes standing or forty-five minutes of sitting, after which he must lie down and “reset, ” which can take from a few minutes to half an hour. Tr. 1343, 1346, 1351, 1478. At her last appointment in the record, in June 2015, Dr. Gracin's note indicates that Plaintiff's ability to walk had improved from one-quarter to three-quarters of a mile, but that his need to lie down to “reset” after only twenty minutes of standing or forty-five minutes of sitting persisted; she added a prescription for Nadolol to the treatment plan. Tr. 1507. Like Dr. Farr, Dr. Gracin recorded Plaintiff's consistent reports and her own clinical observation of “blanchable lower extremities, ” which indicates “abnormal pooling of blood in his lower extremities that takes away from pressure to perfuse his head when he stands.” Tr. 1344, 1347, 1352, 1355, 1508. She did not disagree with Plaintiff's report that the “[c]ompression socks prescribed are not tolerable;” rather, she switched her recommendation to soccer socks.[5] Tr. 1344. At no time did Dr. Gracin record that Plaintiff's failure to improve resulted from noncompliance with treatment. Also in June 2015, Dr. Gracin signed an opinion concluding that Plaintiff's prognosis was “fair to poor, ” and that, while Plaintiff could emotionally tolerate low stress work, he could not sit or stand/walk for as much as two hours each, that he would require frequent breaks to lie down, and that prolonged sitting at a sedentary job would require elevation of his feet for 50% of the time. Tr. 1510-13.

         In addition to Drs. Farr and Gracin at MGH, the other provider familiar with POTS from whom Plaintiff received care is Dr. Arthur Kennedy at Newton-Wellesley Hospital. Plaintiff was hospitalized at Newton-Wellesley for three days in March 2013, at about the same time that he initiated care with Dr. Farr. Plaintiff arrived at the Newton-Wellesley emergency room on March 13, 2013, and was admitted for a stay that ended on March 16, 2013. Tr. 745-58. Dr. Kennedy confirmed the newly made diagnosis of POTS based on reported symptoms of dizziness, lightheadedness, weakness, fatigue, heart palpitations, shortness of breath and difficulty with daily functions, as well as clinical observations of a heart rate swing from 86 to 115 beats per minute when Plaintiff moved from a supine position to standing. Tr. 766-68. Dr. Kennedy deemed his condition extremely serious; Plaintiff was admitted and vigorous intravenous hydration was administered, which improved the heart rate surge significantly. Tr. 756. In light of Plaintiff's obvious anxiety, Dr. Kennedy sent him to a psychiatrist, Dr. Tina Lusignolo, who diagnosed adjustment disorder, with anxious mood. Tr. 759-65. Dr. Lusignolo recorded Plaintiff's report to her of blood pooling in his lower extremities, causing them to turn red, but not to swell. Tr. 759.

         Throughout this medical odyssey, Plaintiff continued regularly to see Dr. Viccione for his primary care. See, e.g., Tr. 788-868, 1331-1342, 1500-1506. Dr. Viccione's records reflect the same complaints as those reported to the physicians at MGH and Newton-Wellesley, but also make clear that Dr. Viccione was not treating either vertigo or POTS, but rather was deferring to the specialists. Tr. 808, 1330, 1341. His principal role seemed to be to fill in the out-of-work form for Mohegan Sun, which he continued to do until the end of March 2013. Tr. 824-25, 844, 853-82. However, on April 1, 2013, Dr. Viccione wrote a note on a prescription pad stating “Return to work . . . Full Duty without restriction.” Tr. 823. Several months later, on November 4, 2013, Dr. Viccione supplied an opinion in connection with Plaintiff's disability application that described limitations permitting at least sedentary work. Tr. 1011; see Tr. 153 (ALJ finds Dr. Viccione's opinion would permit work between “the light and sedentary levels of exertion”). But then, a year later on November 10, 2014, Dr. Viccione repudiated both of these opinions in a letter that stated that he believed Plaintiff had been continuously disabled throughout 2013 and as of the date of his letter; however, his letter is conclusory and contains no opinion regarding Plaintiff's functional limitations. Tr. 1310. In a post-decision submission, Plaintiff explained that Dr. Viccione's return-to-work note was written at Plaintiff's request based on his optimism that he was finally diagnosed with POTS and that it would improve dramatically with treatment. Tr. 417.

         One other feature of Plaintiff's medical history is note-worthy: the extraordinary number of times he went to the emergency rooms at South County Hospital, Kent Hospital and Rhode Island Hospital between June 2012 and mid-to-late-2014, when these visits became less frequent. Tr. 102-33, 467-744, 1034-1121, 1138-89, 1359-1455, 1495-99. During these emergency room trips, which were sometimes within days of each other, Plaintiff complained of such symptoms as chest pain, heart palpitations, a pounding heart, shortness of breath, sweating, dizziness, fainting, neck pressure and abdominal pain. See, e.g., Tr. 532, 592, 1157. Thus, these emergency room providers were evaluating the same symptoms that Plaintiff reported to the MGH and Newton-Wellesley physicians, who associated them with POTS. In all, these hospitals amassed a cumulative medical record amounting to more than five hundred pages, virtually all of which reflects an untold number of tests, x-rays, scans and MRIs, studying Plaintiff's heart, lungs, abdomen and neck, virtually all of which were negative. In nearly every instance, Plaintiff was discharged from the emergency room with no treatment recommendations beyond an over-the-counter analgesic. See, e.g., Tr. 1149.

         II. Travel of the Case

         Plaintiff applied for DIB and SSI on April 3, 2013, Tr. 119-20, alleging that he became disabled on June 5, 2012, Tr. 110, due to orthostatic tachycardia and inner ear dysfunction, Tr. 341. After his claims were denied initially, Tr. 119-20, and on reconsideration, Tr. 121-22, Plaintiff requested a hearing, Tr. 175, and testified before the ALJ in October 2014, Tr. 54-77.

         The ALJ denied Plaintiff's claims later that month. Tr. 146-55. In March 2015, the Appeals Council vacated the ALJ's decision and remanded the case for a new hearing. Tr. 161-63; see also 20 C.F.R. § 404.977(a). The ALJ held another hearing in July 2015, Tr. 80-100, and denied Plaintiff's claims for a second time on July 31, 2015, Tr. 30-45. The Appeals Council denied Plaintiff's request for review in September 2015, Tr. 1-4, and, by doing so, made the ALJ's decision the Commissioner's final decision. 20 C.F.R. § 404.981. Plaintiff filed his complaint later that month. ECF No. 1.

         III. Issues Presented

         Plaintiff's motion for reversal rests on the arguments that the ALJ erred in his evaluation of the opinions of the treating physicians ...


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