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Sandra C. v. Saul

United States District Court, D. Rhode Island

August 30, 2019

SANDRA C., Plaintiff,
v.
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE

         In June 2013, Plaintiff Sandra C. stopped working at a group home for the developmentally disabled after hurting her neck and shoulders when a patient pulled her arms; soon after, in July 2013, she fell downstairs and fractured her coccyx. Since these incidents, she has been diagnosed with and suffered from worsening fibromyalgia and neuropathy affecting her legs, shoulders and spine, as well as carpal tunnel syndrome (“CTS”) and depression and anxiety. Before the Court is her motion to reverse the Commissioner's decision denying her Disability Insurance Benefits (“DIB”) application under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”). She contends that the Administrative Law Judge's (“ALJ”) residual functional capacity (“RFC”)[1] finding lacks the support of substantive evidence. Defendant Andrew M. Saul (“Defendant”) has filed a motion for an order affirming the Commissioner's decision. The matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

         I. Background

         A. Plaintiff's Background

         Plaintiff was forty-three years old when she stopped working in June 2013. Tr. 101. She has a high school diploma and a certified nursing assistant (“CNA”) certificate. Tr. 46, 226. In addition to working as a CNA, she has also worked in a bakery and as a security guard. Tr. 85. During the period under review, she was occasionally homeless and is consistently described by an array of treating providers as thin, distressed or ill-looking in appearance; the record repeatedly reflects such objective observations as “uncomfortable, moves slowly, ” “chronically ill-appearing, ” “뗩�맞 along pressure points-buttocks, back, neck, ” “髫Ვ spasm back and right leg, ” “antalgic gait, ” “severely reduced ROM” and “severe/uncontrolled depression/anxiety contributing to worsening pain, ” as well as such subjective symptoms as “exquisitely tender” and “excessive fatigue where it is difficult for her to get out of bed.” Tr. 357, 530, 532, 534, 543, 550, 568, 619; see Tr. 610 (“patient reports functioning as extremely difficult”). The treating record echoes Plaintiff's statements that she found sitting and driving difficult after she fractured her coccyx and that limitations affecting her ability to buy and prepare food have affected her eating. Tr. 48, 68-69, 345; see also Tr. 396 (patient advised of adverse effects of being underweight), Tr. 539 (“malnourished” in appearance).

         B. Medical and Opinion Evidence

         Only a portion of Plaintiff's treating record is in the file that was reviewed on behalf of the Social Security Administration (“SSA”) by the non-examining physicians (Dr. Youssef Georgy and Dr. Mitchell Pressman), the non-examining psychologist (Dr. Jeffrey Hughes) and the non-examining psychiatrist (Dr. H. Thomas Unger); this portion of the file amounts to approximately 220 pages of material. Tr. 308-526. These materials reflect the treatment following the fractured coccyx caused by the fall, including that Plaintiff was in pain for almost a month before the fracture was diagnosed, but which also suggest that, by November 2013, the pain seemed to improve following multiple injections. Tr. 308-59. In March 2015, Dr. Karmela Chan of Rheumatology Associates diagnosed fibromyalgia; however, except for the scan that diagnosed the coccyx fracture, MRIs were normal, while physical examinations yielded largely normal observations. E.g., Tr. 385 (right side of neck tender, rest normal); Tr. 395-96 (strength, range of motion all normal); Tr. 441 (moderate discomfort and tenderness in spine, but range of motion all normal). In September 2015, Plaintiff went to the emergency room complaining of back spasms but other than “diffuse [back] spasm, ” the examination was normal. Tr. 467. In this portion of the file, there are few references to depression or anxiety and virtually no mental health treating records. See Tr. 107, 116.

         In addition to these treating records, this portion of the file also has the two SSA consulting examination reports prepared in connection with Plaintiff's application. Dr. Daniel Regan, a family practitioner, examined Plaintiff on April 28, 2016; his report references the diagnosis of CTS and the right shoulder surgery, although no treating records reflecting these conditions had been submitted as of the date of his review. Tr. 520. His examination confirmed tender trigger points, low back tenderness and the inability to squat or bend to touch toes; while he found no signs to confirm CTS, [2] Dr. Regan endorsed the diagnoses of fibromyalgia and neuropathy in the legs, coccyx, neck and shoulders, causing limits in the ability to lift, use the hands over the shoulder, bend or engage in prolonged walking. Tr. 521-22. The SSA also engaged a psychologist, Dr. Romina Dragone-Hyde, to prepare a consulting examination, which she did on December 23, 2015. Tr. 481. Her report reflects an extensive clinical interview that uncovered significant mental health treatment in the past, including an in-patient stay in the early 1990s and an out-patient course of treatment in 1997 (both at Butler Hospital), due to depression, anxiety and suicidal ideation. Tr. 481-83. Dr. Hyde recorded many abnormal findings on mental status examination, including issues with attention and memory; she endorsed diagnoses of depression and anxiety. Tr. 484.

         At the initial phase, Dr. Georgy (the non-examining physician) and Dr. Hughes (the non-examining psychologist) examined this partial record and found no severe physical or mental limitations; however, Dr. Georgy did not see the Regan consulting report because it was not prepared until after his file review, while Dr. Hughes rejected the conclusions in the Hyde consulting report because Plaintiff had stopped taking medications and seeing a psychiatrist in 2014 and had not reported that history (according to Dr. Hughes) to Dr. Hyde.[3] Tr. 106-07. On reconsideration, Dr. Unger (the non-examining psychiatrist) concurred with Dr. Hughes. Tr. 117. By contrast, the non-examining physician on reconsideration, Dr. Pressman, who had access to the recently procured Regan consulting report, accepted the diagnosis of fibromyalgia as a severe impairment; he found that fibromyalgia was causing significant exertional, postural and other limitations. Tr. 116-20. According to the Disability Explanation, Dr. Pressman's opinion limited Plaintiff to sedentary work. Tr. 121.

         After reconsideration was denied on January 29, 2016, almost 140 pages of new material were added to the record. Much of it was submitted directly by Plaintiff's attorney. These records include the entirety of the Tri-Town Community Action records from 2016 and 2017 (including records for the primary care physician, Dr. Joanna Brown, as well as for Nurses Danielle Sheehan and Saima Qamar and others), which reflect a material worsening of Plaintiff's symptoms related to fibromyalgia (and depression and anxiety) after Dr. Pressman's file review. They include the 2013-2014 records for Dr. Joseph Izzi, who diagnosed and treated Plaintiff for CTS and thumb pain, and for Drs. John Czerwein and Michel Arcand, of the Center for Orthopaedics, who treated Plaintiff for neck and shoulder pain, administered shoulder injections and performed shoulder surgery in 2014. And they include 2016 and 2017 records for the Warwick Pain Clinic, which reveal that Plaintiff continued to receive tender point and multiple sacroiliac injections for pain control of the areas affected by the 2013 fracture and by fibromyalgia. Tr. 528-644.

         C. The ALJ's Decision

         In the proceedings before the ALJ, the following impairments were accepted as severe at Step Two: “sacroili[i]tis, neuropathy in lower extremities, bilateral [CTS], cervical and shoulder pain, fibromyalgia, depression, and anxiety.” Tr. 14. Despite these impairments, the ALJ found that Plaintiff was able to cook, do some cleaning, drive locally, dress, bathe and “do activities of daily living without considerable difficulty.” Tr. 16. Based on this finding that “the claimant's objective evidence . . . shows the claimant to be more active than the limitations set forth in Dr. Brown's assessment, ” Tr. 21, as well as on the supposed inconsistency between Dr. Brown's assessment and “the record as a whole, ” the ALJ rejected the opinion of Plaintiff's primary care physician, whose treating notes (and those of her treating colleagues, Nurses Sheehan and Qamar) contain consistent and objective observations of “worsening” (e.g., Tr. 534, 610) symptoms of fibromyalgia and depression and anxiety, including slow movement, limited range of motion, muscle spasm, tenderness and abnormal findings on mental status examination. E.g., Tr. 528-57, 610-20.

         The ALJ relied instead on the non-examining opinion of Dr. Pressman, [4] who did not see any of the treating records of Dr. Brown and her colleagues; nor did Dr. Pressman have access to the records for Dr. Izzi, who diagnosed and treated Plaintiff's CTS; nor did Dr. Pressman see the treating records for Drs. Czerwein and Arcand, who performed shoulder injections and surgery; nor did Dr. Pressman have access to the later records for the providers at the Warwick Pain Clinic, whose examinations resulted in such abnormal observations as antalgic gait and tenderness and who continued to treat the coccyx area and tender points with injections. Based on the same finding regarding Plaintiff's robust level of activity, the ALJ rejected Plaintiff's subjective statements about the severity of the pain and fatigue. For no reason apparent in the decision, the ALJ also discounted Dr. Regan's consulting examination report, which confirmed the diagnosis of fibromyalgia resulting in limitations in the ability to lift, use the hands over the shoulder, bend or walk. And although the ALJ noted that the SSA non-examining psychologist/psychiatrist (Drs. Hughes and Unger) either ignored or did not see material evidence of mental health issues, and afforded their opinions only “some weight, ” the ALJ also noted the lack of significant mental health-specific treatment during the relevant period, and afforded only “some weight” to the opinion of the consulting examining psychologist, Dr. Hyde, who had found that Plaintiff has limited short term memory and ability to concentrate, as well as that she suffers from depression and anxiety.

         With this foundation laid and essentially relying on Dr. Pressman for physical limitations and on his own lay judgment for mental limitations, the ALJ concluded that Plaintiff retained the RFC to perform a restricted range of light work, but only low stress jobs with limited public contact and no crowds. Tr. 17. Based on this RFC and the VE's testimony, the ALJ decided at Step Five that Plaintiff was not disabled. Tr. 23-24.

         II. Stand ...


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