United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
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. In an opinion signed in July
2017, Plaintiff's longtime treating doctor, Dr. John
Bergeron, specifically opined that Plaintiff is not a
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 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”).
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.
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.
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”).
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
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.
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.
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, ” 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, ” ...