United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
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”),  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.
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”) finding is not supported by substantial
evidence. Defendant Carolyn W. Colvin
(“Defendant”) has filed a motion for an order
affirming the Commissioner's decision.
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.
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
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. 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.
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.
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 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.
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.
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. 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.
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.
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.
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.
Travel of the Case
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.
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.
motion for reversal rests on the arguments that the ALJ erred
in his evaluation of the opinions of the treating physicians