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Nicole C. v. Saul

United States District Court, D. Rhode Island

January 6, 2020

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

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         On August 14, 2017, Plaintiff Nicole C. applied for Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”), and Supplemental Security Income (“SSI”) under § 1631(c)(3). Alleging onset on June 26, 2017, Plaintiff contends that the Administrative Law Judge (“ALJ”) erred in assessing the impact of fibromyalgia[1] on her residual functional capacity (“RFC”), [2] in that he did not accept her subjective statements as reliable and found the opinion of her treating physician, Dr. Miridula Menon, to be unpersuasive, but found the contemporaneous opinion of the state agency non-examining physician, Dr. Marcia Lipski, to be persuasive. Defendant Andrew M. Saul (“Defendant”) moves 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).

         Having reviewed the record, I find that the ALJ's findings are consistent with applicable law and sufficiently supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 10) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 11) be GRANTED.

         I. Background

         Plaintiff's prior disability applications for SSI and DIB were denied at the initial phase in April 2016. She worked after that as a clerk in various medical offices until June 26, 2017 (the alleged onset date); she was only thirty-nine years old when she stopped working. Tr. 171. Plaintiff is married with three children, all at home; she completed eleventh grade and has her GED. Tr. 49. In addition to fibromyalgia, Plaintiff suffers from obesity, degenerative disc disease, migraine headaches, hypothyroidism and depression/anxiety. Dr. Menon is Plaintiff's primary care physician; her treating relationship with Plaintiff extends throughout the period in issue, from prior to October 2016[3] through February 2018 with appointments generally once a month.

         The relevant treating history begins shortly before onset, in May 2017, when Plaintiff saw one of Dr. Menon's colleagues for a headache and low back pain after moving furniture for her daughter. Tr. 470. An x-ray revealed little more than moderate disc space narrowing at the L5-S1 level but, on examination, the lower lumbar spine was “quite tender, ” Tr. 472, and straight leg raise was positive on one side. Other observations were normal, including normal gait. Tr. 441. Muscle relaxants, prednisone and ibuprofen were prescribed. During the summer of 2017, Plaintiff saw Dr. Menon five times. Dr. Menon addressed Plaintiff's complaints of body aches and fatigue, but other than myalgias and pain at an appointment right after a motor vehicle accident, the examination results were largely normal. Tr. 448-61, 552-54. In August 2017, based on Plaintiff's complaints of pain, Dr. Menon referred Plaintiff to a rheumatologist, Dr. John Conte. At his initial evaluation, Dr. Conte found that Plaintiff was obese and had multiple tender points, but that she was “[c]omfortable at rest, ” Tr. 494, and had normal range of motion, good strength, normal gait and “[s]trong grips, ” Tr. 495. He noted the absence of any “apparent inflammatory or autoimmune condition that would explain her sundry pain complaints and fatigue, ” and suggested that she consider returning to work. Tr. 497. In early September 2017, Dr. Menon referred Plaintiff to Ortho RI; despite subjective complaints of pain at the most extreme severity level (10/10) and a limp, objective findings on examination included the observation that she was “comfortable, ” with some limits on motion and strength for an injured hip, but were otherwise normal, with independent ambulation and normal gait. Tr. 499-500. She was advised to lose weight and exercise and that conservative treatment would be appropriate. Tr. 500.

         During the fall of 2017, complaining of chest tightness, generalized body aches and fatigue, radiating back pain causing numbness in the right lower extremity, and the inability to walk even a few steps without pain, Plaintiff was seen four times by Dr. Menon. Tr. 42-46, 574-78. Meanwhile in early November, Plaintiff returned to Dr. Conte, who noted the intervening motor vehicle accident and, this time, diagnosed fibromyalgia and trigger finger (both hands); on examination, Dr. Conte found tenderness and trigger points in the back, hips, knees and shoulders, but normal strength and gait, including “[s]trong grips.” Tr. 519-24. He prescribed Naltrexone and suggested she return in two months. Tr. 530. In early November 2017, Plaintiff was seen at the Spine Center; on examination by Dr. Keith-Austin Scarfo, she was in no acute distress, had normal strength, intact range of motion and negative straight-leg raise, with a mildly antalgic gait and diffuse tenderness (to light touch) in the spine. Tr. 556. Dr. Scarfo noted that the CT scan of the spine was normal except for a possible disc bulge. He also observed: “I feel that she is on far too many medications that do not provide her any benefit.” Tr. 558. Plaintiff also continued to go to Ortho RI, where she saw Dr. Maher El-Khatib in late November. On examination Dr. El-Khatib found normal gait, normal strength, negative straight-leg raise, “[s]ome tenderness over lower lumbar spinal and paraspinal areas, ” but significant tenderness in the sacroiliac joint. He suggested injections for the latter (which he administered in December 2017) and urged Plaintiff to lose weight as a way to relieve her symptoms. Tr. 623-24.

         In December 2017, Dr. Marcia Lipski, a state agency expert, reviewed the foregoing record. She acknowledged that Plaintiff is morbidly obese and accurately summarized findings on examination by Dr. Conte, Dr. Menon and Dr. Menon's colleagues, as well as Plaintiff's statements, for example, as set out in the Function Reports. Based on this file review, Dr. Lipski endorsed as severe obesity and “disorders of muscle, ligament and fascia, ” Tr. 203, 219, and opined to an RFC limited to the ability to lift no more than twenty pounds occasionally, to sit or to stand/walk for about six hours in an eight-hour day, with significant postural and manipulative (overhead reaching) limitations. Tr. 206-07, 222-23. The Social Security Administration (“SSA”) assessment notes that Plaintiff's statements regarding her symptoms based on “myofascial pain and morbid obesity” are only partially consistent with the medical and non-medical evidence of record. Tr. 205, 221.

         Soon after Dr. Lipski signed her opinion, on January 5, 2018, Plaintiff returned to Dr. Menon. Tr. 638. One of the purposes of this appointment was to “[d]iscuss paperwork.” Id. On examination, Dr. Menon made normal findings except for “[m]ultiple tender points” and recommended that Plaintiff continue with gabapentin, Flexeril and ibuprofen, with emphasis on getting adequate sleep, exercise and stress control. Tr. 640. There is no prescription, recommendation, observation or suggestion in this or any other treating record that Plaintiff use a cane or other assistive device when standing or walking, that Plaintiff elevate her legs with prolonged sitting for 50% of the time, or that Plaintiff is limited in the use of her hands and fingers to 25% of the time.

         On the same day as this appointment, Dr. Menon signed her opinion. In it, she wrote that Plaintiff's diagnosed impairments include fibromyalgia, lumbar radiculopathy, migraines, sleep apnea, hypothyroidism and mental issues, while her symptoms include tender points, headaches, chronic fatigue and pain virtually everywhere, among others. Tr. 618. Based on these impairments, Dr. Menon opined that Plaintiff cannot walk more than one block, cannot sit for more than twenty minutes, cannot stand for more than ten minutes, cannot sit and stand/walk for as many as two hours in an eight-hour day, cannot carry even ten pounds (except rarely), and can use her hands and fingers only 25% of the time, as well as that she is limited in the use of both arms to 25% of the time, except for reaching, which she can do for 50%-75% of the time. Tr. 619. Further, Dr. Menon opined that, while engaged in occasional standing/walking, Plaintiff “must . . use a cane or other assistive device” and “should” keep her legs elevated above knee level for 50% of the workday. Tr. 620.

         The record for the period after these opinions were signed by Dr. Lipski and Dr. Menon may be briefly summarized. In January 2018, Plaintiff was screened for carpal tunnel syndrome (“CTS”) and was diagnosed with minimal left CTS, but the clinical note indicates that the diagnosis was by ultrasound criteria only in that there were no signs on the nerve conduction study. Tr. 663. Also in January, Dr. El-Khatib continued to observe normal gait, normal muscle tone and negative straight leg raise, but limited heel/toe walking, with some tenderness and painful flexion and extension of the lumbar spine and significant tenderness in the sacroiliac joint. Tr. 629. He administered lumbar facet block injections. Tr. 630-32. In February, Plaintiff saw Dr. Menon again; although she complained that the fibromyalgia pain was worse, she also told Dr. Menon that she “does try to walk everyday”; Dr. Menon's examination yielded all normal findings. Tr. 633, 635. On a referral from Dr. Menon, a neurological examination resulted in observations of independent ambulation, normal strength and normal gait; a brain MRI performed based on Plaintiff's complaints was normal. During this appointment, Plaintiff told the treating provider that “[s]he takes care of her family which include her husband, two younger children [at] home, and an older one who's 21.” Tr. 657. The notes from mental health providers from February through August 2018 include observations of normal gait and Plaintiff's reports of walking in the woods (where she hurt her ankle), going out with her family for Mother's Day and “coping with things much better.” Tr. 166, 692-707.

         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 reinterpret the evidence or otherwise substitute its own judgment for that of the Commissioner. Id. at 30-31 (citing Colon v. Sec'y of Health & Human Servs., 877 F.2d 148, 153 (1st Cir. 1989)). “[T]he resolution of conflicts in the evidence is for the Commissioner, not the courts.” Id. at 31 (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)). If the Court finds either that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim, the Court may remand a case to the Commissioner for a rehearing under Sentence Four of 42 U.S.C. § 405(g). Allen v. Colvin, No. CA 13-781L, 2015 WL 906000, at *8 (D.R.I. Mar. 3, 2015) (citing Jackson v. Chater, 99 F.3d 1086, 1097-98 (11th Cir.1996)). If the Court finds that a judicial award of benefits would be proper because the proof is overwhelming, or the proof is very strong and there is no contrary evidence, the Court can remand for an award of benefits. Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001).

         III. Disability Determination

         The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 416(I); 20 C.F.R. § 404.1505.[4] The impairment must be severe, making the claimant unable to do previous work, or any other ...


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