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Dianne D. v. Berryhill

United States District Court, D. Rhode Island

June 19, 2019

DIANNE D., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         After earning her bachelor's degree and working for many years, Plaintiff Dianne D. began to suffer from abdominal pain; she had two hernia surgeries in 2009 and 2010, but the pain continued. In the summer of 2013, she had what was supposed to be laparoscopic surgery to resolve abdominal adhesions, but the intervention went horribly wrong. Plaintiff almost died from the complications (including a punctured aorta and a pulmonary embolism). While she ultimately recovered, since the 2013 surgery, Plaintiff has persistently suffered from diffuse abdominal pain that is chronic and constant, waxing and waning from moderate to severe. No. treating provider or medical expert has been able to diagnose the reason for the pain and all treating providers concur that more abdominal surgery would not be appropriate. Treating sources have consistently accepted as reliable Plaintiff's statements about the intensity and severity of the pain and have consistently prescribed powerful medications, including Fentanyl, to alleviate it. All sources also concur that Plaintiff is experiencing significantly debilitating pain and none have questioned the appropriateness of her prescriptions for an array of narcotic medications.[1] In an opinion signed in July 2017, Plaintiff's longtime treating doctor, Dr. John Bergeron, specifically opined that Plaintiff is not a malingerer.

         Plaintiff claims that the pain is so impactful on her ability to function that she cannot work at all. Dr. Bergeron concurs; his July 2017 opinion provides a function-by-function analysis of Plaintiff's limitations. However, in reliance on a non-examining physician, Dr. Mitchell Pressman, who opined that Plaintiff's “ADLs” were inconsistent with her statements, the ALJ discounted Plaintiff's description of the intensity of the pain and afforded little weight to Dr. Bergeron's treating source opinion because it clashed with the Pressman opinion and was based in part on Plaintiff's statements. Finding Plaintiff to have the RFC[2] to perform light work, the ALJ denied her application for Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”).

         The matter is now before the Court on the parties' dueling dispositive motions. They 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 record and in reliance on the arguments of the parties at the hearing held on May 29, 2019, I find that the ALJ erred in rejecting the opinion of a well-qualified treating physician whose findings not only were consistent with the rest of the treating record but also were appropriately based on objective medical evidence, including repeated examinations and observations of Plaintiff, in addition to Dr. Bergeron's professional judgment based on Plaintiff's subjective statements describing the intensity and functional impact of the pain. See Ormon v. Astrue, No. 11-2107, 497 Fed.Appx. 81, 85-86 (1st Cir. Sept. 7, 2012). When this error is coupled with the ALJ's troubling reliance on a non-examining physician engaged to perform a file review (Dr. Mitchell Pressman), who reviewed only a portion of the medical record and whose opinion seems wrongly based on the lack of physical findings or etiology for the pain, I find that the ALJ's error is not harmless and that the matter should be remanded for further consideration. Accordingly, I recommend that Plaintiff's Motion for Reversal of the Disability Determination of the Commissioner of Social Security (ECF No. 12) be GRANTED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 17) be DENIED.

         I. Background

         Over the years after the 2013 failed abdominal surgery, Plaintiff was treated for abdominal pain by the following: her general practitioner, Dr. Bergeron, who saw her regularly and performed physical examinations beginning in early 2014, and continuously throughout the period; the treating team at the Warwick Pain Center, where she initiated treatment in early 2015, and continued throughout the period; gastroenterologist, Dr. Bradford Lavigne, who saw her several times in 2015; and various physicians with University Surgical Associates, who saw her throughout 2015. Over the arc of the period covered by the record, Plaintiff's abdominal pain remained substantially the same. These treating sources all performed physical examinations and made clinical observations; they recorded consistent notations:

• “[S]hooting pain in groins and peri umbilically.” Tr. 305.
• “[H]aving trouble tolerating her usual activities.” Tr. 452.
• “Continues to have severe pain with defecation, walking and carrying.” Tr. 486.
• “[P]ain is significantly interfering with all aspects of her life.” Tr. 490.
• “Will be requesting handicap parking to reduce need for walking which aggravates pain.” Tr. 545.
• On examination “grimaces with movement of trunk.” Tr. 552.
• “Reports she is not able to accomplish much on a daily basis without significant pain.” Tr. 636.

         At some appointments, the record reflects providers who reference slight improvement or positive response to medications; however, these positive reports are muted, sometimes linked to the lack of any activity. E.g., Tr. 402 (“still with sharp bursts of abdominal pain but overall is making some progress since leaving her job . . . pain medication has moderately reduced their [sic] pain. . . . Patient reports that . . . ability to function in normal daily activities shows little improvement”); Tr. 555-56 (while “[t]olerating medication well and denies side effects . . . [and] [r]eports completing ADLs well on current regimen, ” provider nevertheless renews prescriptions for Fentanyl, Tramadol and Vicodin and starts Hydrocodone); Tr. 612-15 (“medication is working to keep her pain level within a tolerable range without any side effects or issues, ” yet patient reported that pain spiked to 9 out of 10 in past two weeks and, on examination, she “appears mildly distressed due to pain”).

         From the failed 2013 surgery until May 2016, Plaintiff continued to work with great difficulty until her employer's criticism of her inability to perform essential tasks due to pain and the side effects of the medication caused her to submit her resignation letter, with Dr. Bergeron's concurrence that the impact of the pain on her ability to function would preclude all work. Tr. 70, 709; see Tr. 386 (“I agree that applying for disability is the only reasonable course of action at this time.”). She stopped working on June 11, 2016, her alleged onset date. Throughout the period covered by the record, to make the pain tolerable, Plaintiff was prescribed Fentanyl, Hydrocodone, Tramadol, Paxil and Gabapentin, as well as (briefly) Horizant. She slept in a recliner or adjustable bed. Movement exacerbated pain. E.g., Tr. 377

         Dr. Bergeron's July 2017 treating source opinion indicates that Plaintiff's diagnosis is chronic abdominal pain and that her symptoms include sharp, stabbing, diffuse abdominal pain that is increased by posture change and movement (among other triggers), as well as fatigue, constipation and sedation. Tr. 609. Consistent with all other treating providers, as well as with his own treating notes, Dr. Bergeron noted that Plaintiff's pain had persisted essentially unchanged since 2013. Id. Consistent with all other treating providers, as well as with his own treating notes, Dr. Bergeron noted his reliance on physical examinations resulting in the relevant clinical finding of diffuse abdominal tenderness. Id. However, for the portion of the form dealing with functional limits, Dr. Bergeron indicated that he was also relying on “pt reports.” Tr. 610. In this part of his opinion, Dr. Bergeron opined to specific functional limitations, including that Plaintiff could only sit, stand or walk for fifteen minutes at a time and that she needed to be in a reclined position for five hours of the day. Tr. 610-11. Dr. Bergeron estimated that Plaintiff would miss more than four days of work a month because of pain and fatigue, as well as the effects of medication. Tr. 611. With regard to his assessment of the reliability of Plaintiff's subjective statements about the pain, based on his three years of observations and examinations during many face-to-face encounters, Dr. Bergeron specifically opined that Plaintiff is not a malinger. Tr. 610.

         Seven months before Dr. Bergeron signed his opinion, Dr. Mitchell Pressman was engaged to perform a file review of the medical evidence as of the reconsideration level, through December 20, 2016. Tr. 88-95. Although Dr. Pressman noted Dr. Bergeron's September 2016 notation that Plaintiff's pain was only under “fair control, ” and was aware of the powerful pain medications prescribed for her, Tr. 92, he nevertheless opined that Plaintiff could perform the full range of light work, explaining this conclusion because: “Only physical finding is generalized abdominal tenderness with palpation. No. etiology has been determined.” Tr. 94. In rejecting Plaintiff's subjective statements about the pain, Dr. Pressman, who had never examined Plaintiff, vaguely referenced unspecified “ADLs” as his basis for finding that Plaintiff's “[s]ubjective allegations of impairment are not supported by objective MER.” Tr. 93. Because the record continued to develop after his file review, Dr. Pressman did not see over a hundred pages of medical records reflecting treatment, principally with Dr. Bergeron and the Warwick Pain Clinic; these reflect that the pain continued consistently to spike to eight or nine out of ten and they include provider notations finding that the pain had increased or worsened. Tr. 8-31, 612-707; e.g., Tr. 688 (“The problem has worsened. The symptoms are constant.”). Nor did he see the Bergeron opinion or the last record in the file reflecting a referral by Dr. Bergeron to a neurologist at Yale for follow up regarding abdominal pain. Tr. 15.

         A month after the Bergeron opinion was signed, the ALJ held the August 21, 2017, hearing, at which he called Dr. Stephen Kaplan to testify as a medical expert. Tr. 64-73. Dr. Kaplan was asked a single question by the ALJ: “what if any of the diagnoses would be?” Tr. 70. Dr. Kaplan responded, “I had no diagnosis, ” id., which he adjusted to “persistent abdominal pains, ” Tr. 71, with “no specific etiology, ” Tr. 73. He then offered to and did “go through the record, ” Tr. 70, testifying that he had not seen findings of “guarding, ”[3] Tr. 72, weight loss or fatigue, which he found to be “important negatives, ” Tr. 71. Nevertheless, Dr. Kaplan acknowledged that the record “always demonstrated some [abdominal] tenderness to palpation, ” id., that “she's on a fair amount of pain medication which sometimes can have consequences, ” ...


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