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Nicole M. v. Berryhill

United States District Court, D. Rhode Island

December 3, 2018

NICOLE M., Plaintiff,



         This 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”)[1] to perform less than the full range of sedentary work.

         The 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.

         I. Background

         From 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.

         Plaintiff's 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.

         Following 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.

         Because 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 working.”).

         Throughout 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.[2] 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.

         In 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.

         Following 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.

         Throughout the period in issue, Plaintiff was consistently counseled to lose weight, but struggled and remained obese. E.g., Tr. 1397.

         II. Standard of Review

          The 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 ...

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