United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
case is focused on the disability claim of Plaintiff Nicole
M., a college-educated accountant who was thirty-six on her
amended onset date. She seeks an award of Disability
Insurance Benefits (“DIB”) under 42 U.S.C. §
405(g) of the Social Security Act (the “Act”)
because of cervical disc disease (exacerbated by obesity),
depression, anxiety and attention deficit with hyperactivity
disorder (“ADHD”). She claims that these
impairments caused her to be disabled from March 24, 2010,
(following her second disc surgery) until December 31, 2014,
her date last insured. Before the Court is her motion to
reverse the Commissioner's denial of her claim based on
the decision of an Administrative Law Judge
(“ALJ”) that she could work during the period in
issue despite retaining the residual functional capacity
(“RFC”) to perform less than the full range of
Commissioner does not dispute that chronic and persistent
neck pain seriously limited Plaintiff's ability to work.
Rather, the relevant question is whether Plaintiff's
symptoms were so persistent and severe as to preclude all
work after the second disc surgery until the date last
insured. Focused on that question, the Commissioner's
counter-motion asks the Court to find that the ALJ properly
applied applicable law to substantial evidence of record. The
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 the
substantial record, I find that the ALJ did. Accordingly, I
recommend that the Court affirm the ALJ's determination
and that Defendant's Motion for an Order Affirming the
Commissioner's Decision (ECF No. 19) be GRANTED, while
Plaintiff's Motion to Reverse (ECF No. 18) be DENIED.
1995 until June 4, 2008, when Plaintiff was involved in a
work-related car accident, she worked as a college-educated
accountant. Soon after the accident, she was diagnosed with
neck sprain but returned to work in July 2008. Tr. 291, 349.
When her symptoms returned a month later, an MRI of the
cervical spine showed reversal of the cervical lordosis and
disc herniation compressing the cervical cord, as well as
mild central stenosis. Tr. 335-36. Based on the MRI and her
symptoms, she was restricted to modified work duties until
the first disc surgery (a fusion at ¶ 5-6) was performed
by Dr. Steven Blazar on October 29, 2008. Tr. 370, 384-85.
Within a few months, Plaintiff felt “exceptionally
well, ” was able to go bowling and successfully
returned to work, earning more than $25, 000 in 2009. Tr.
182, 368. Plaintiff initially alleged in her disability
application that she became disabled on June 4, 2008, the
date of the car accident.
apparent recovery from the first disc surgery was relatively
short-lived. On April 21, 2009, Plaintiff saw Dr. Blazar for
follow-up and reported that she felt “horrible”
and “all of her ADLs are restricted.” Tr. 361;
see Tr. 893 (“She is miserable.”). An
MRI of her cervical spine showed a slightly more pronounced
disc protrusion at ¶ 6-7, as compared with an August
2008 MRI. Tr. 354-55. Nevertheless, with no significant
stenosis, “at most mild” foraminal narrowing, and
normal motor and sensory functioning, Dr. Blazar ordered
neuromuscular/yoga therapy. Tr. 356-58, 606-10. Although
there was some improvement and she again returned to work
part-time, Plaintiff reported that her “neck is
horrible.” Tr. 358-59. Ultimately, on March 24, 2010,
Dr. Blazar performed the second disc surgery, this time at
¶ 6-C7. Tr. 373-74. At the ALJ hearing, Plaintiff
amended her alleged onset date from the date of the car
accident to March 24, 2010, the date of the second disc
surgery. Tr. 42.
the second disc surgery, based on referrals by Dr. Blazar,
Plaintiff pursued an array of interventions to address neck
pain, none of which seemed to be efficacious for longer than
a short period. These included physical therapy,
neuromuscular massage, medical marijuana, botox, acupuncture
and injections. Finally, to avoid more surgery, Dr. Blazar
referred Plaintiff to Dr. Susan Pollan, a pain specialist.
Tr. 885. Dr. Pollan began a sequence of injections, which, at
first, did not seem to afford relief. E.g., Tr.
1300. However, by September 2014, Plaintiff reported being
“quite pleased, ” and, in November 2014, she
acknowledged that “[t]hings are very good.” Tr.
1442-46. By March 2015 (after the date last insured), Dr.
Pollan reported to Plaintiff's primary care physician,
Dr. Anthony Lombardi, that Plaintiff was “pain-free
immediately after the injection and has remained fairly
comfortable since.” Tr. 1438.
the June 2008 car accident was work-related, a workers'
compensation claim was prosecuted. In April 2016, this claim
was resolved with a substantial lump sum payment (almost
$250, 000) based on the present value of lost future
earnings. Tr. 201. Because of the workers' compensation
claim, Plaintiff's ability to work was repeatedly
reviewed by medical specialists. For example, the Donley
Center performed a final physical therapy assessment in 2011,
which recommended that she return to work with accommodations
for her desk and work pace. Tr. 1477. Also in 2011, Dr. David
DiSanto performed an examination and concluded that she was
“limited in her ability to carry out gainful employment
with the left upper extremity, ” but did not opine that
she otherwise could not work. Tr. 612. Orthopedist Dr. Sidney
Migliori performed two independent examinations, one in 2010
(after the second disc surgery) and one in 2013. Both times,
he concluded that Plaintiff could perform sedentary work at
an ergonomically “good” work place, with limits
on lifting and overhead activities. Tr. 1480-82, 1484-86.
Similarly, Plaintiff's treating orthopedic surgeon, Dr.
Blazar, took her out of work for specific treatment
interventions, e.g., Tr. 1030 (“not working as
per my instructions”), but also opined that she could
work at other times, e.g., Tr. 907 (“ok
clerical duties”); Tr. 1043 (“She will continue
the period of alleged disability, Dr. Lombardi served as
Plaintiff's primary care physician. He generally saw
Plaintiff annually and more frequently for specific health
issues. At virtually every appointment, Dr. Lombardi listened
to Plaintiff's subjective report of neck pain, but did
not treat her neck, largely leaving that to the
specialists. Nevertheless, his treating notes
consistently include the results of his examination of the
cervical area. These reflect findings that the neck was
“supple, ” although he sometimes noted
“tender post muscles” and occasionally observed
“spasm.” E.g., Tr. 1351, 1396.
Otherwise, Dr. Lombardi made no negative observations based
on his objective examination of Plaintiff's neck.
E.g., Tr. 1358, 1372, 1379.
addition to monitoring Plaintiff's cervical difficulties
and treating other physical ailments, Dr. Lombardi also
treated Plaintiff's complaints of depression, occasional
anxiety and fatigue, for which he prescribed Celexa, Buspar
and Adderall. Despite these prescriptions, his objective
mental observation was consistently: “Psych in good
spirits.” E.g., Tr. 1365, 1377. He never
referred Plaintiff for mental health treatment with a
specialist. Apart from a marriage counselor, during the
period in issue, Dr. Lombardi's prescription of
medication was Plaintiff's only mental health treatment.
In 2015, after Plaintiff's date last insured, Dr.
Lombardi apparently left the practice and Plaintiff turned to
Quality Behavioral Health (“QBH”) for mental
health treatment. Tr. 1464. There, she saw (for the first
time) a specialist, Dr. Terrie Mailhot, who is a
psychiatrist. Over the course of six appointments, Dr.
Mailhot switched the medications Dr. Lombardi had prescribed.
Tr. 1464-69. She found Plaintiff to be on an “even
keel, ” “doing well, ” and “calm and
appropriate.” Tr. 1468, 1470, 1473. Consistent with
these findings, she assigned a Global Assessment of
Functioning (“GAF”) score of 80, reflective of no
more than a slight impairment. Tr. 1469.
the filing of her application on July 25, 2014, Plaintiff
submitted to a consultative examination with a psychologist,
Dr. Adam Cox. Tr. 1433. Dr. Cox noted that Plaintiff's
symptoms were described as “manageable” and
diagnosed depression and anxiety caused by pain, with a GAF
score of 55, reflective of moderate difficulties. Tr. 1435.
Next, the entirety of Plaintiff's extensive medical
record for the period in issue was reviewed by four state
agency experts, a psychologist, a psychiatrist and two
physicians. Collectively, they found that she suffered from
severe impairments of the spine and affective disorders, but
that her mental impairments caused at most moderate
limitations and that she could perform at least exertionally
light work, with postural limitations, and with additional
limitations on overhead reaching in the opinion of one of the
physicians. Tr. 88-113. Finally, shortly before the ALJ
hearing, Dr. Lombardi, the primary care physician, submitted
an opinion in support of Plaintiff's application. Tr.
1496. It contains two conclusory assertions: (1) since June
4, 2008, Plaintiff “meets or equals the impairment
listing in Section 1.04”; and (2) beginning on June 4,
2008, through June 14, 2016 (the date of the opinion),
Plaintiff “could not participate in sustained full-time
competitive employment.” Tr. 1496-97. The Lombardi
opinion also contains an RFC limiting Plaintiff exertionally
to less than sedentary work with only occasional use of
either her hands or her feet.
the period in issue, Plaintiff was consistently counseled to
lose weight, but struggled and remained obese. E.g.,
Standard of Review
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla - that is, the
evidence must do more than merely create a suspicion of the
existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support
the conclusion. Ortiz v. Sec'y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam);
Rodriguez v. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel,
71 F.Supp.2d 28, 30 (D.R.I. 1999). Once the Court concludes
that the decision is supported by substantial evidence, the
Commissioner must be affirmed, even if the Court would have
reached a contrary result as finder of fact. Rodriguez
Pagan v. Sec'y of Health & Human Servs., 819
F.2d 1, 3 (1st Cir. 1987); see also Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991);
Lizotte v. Sec'y of Health & Human Servs.,
654 F.2d 127, 128 (1st Cir. 1981). The determination of
substantiality is based upon an evaluation of the record as a
whole. Brown, 71 F.Supp.2d at 30; see also
Frustaglia v. Sec'y of Health & Human Servs.,
829 F.2d 192, 195 (1st Cir. 1987); Parker v. Bowen,
793 F.2d 1177, 1180 (11th Cir. 1986) (court also must
consider evidence detracting from evidence on which
Commissioner relied). Thus, the Court's role in reviewing
the Commissioner's decision is limited. Brown,
71 F.Supp.2d at 30. The Court does not ...