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ARTHUR MONIZ, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

September 16, 2010

[9]

MEMORANDUM AND ORDER

[10]

Saris, U.S.D.J.

[11]

I. INTRODUCTION

[12]

Plaintiff Arthur Moniz, who suffers from degenerative disc disease, depression, and anxiety, challenges the final decision of the Commissioner denying him Social Security disability and disability insurance benefits. After review of the record, the Court DENIES plaintiff's Motion to Reverse the Decision of the Social Security Administration, but ALLOWS the Motion for Remand because the ALJ failed to give adequate consideration to plaintiff's back pain. The Defendant's Motion for an Order Affirming the Decision of the Commissioner is DENIED.

[13]

II. BACKGROUND

[14]

A. Employment and Medical History

[15]

Plaintiff is fifty-one years old and has completed twelve years of school. (Administrative Transcript ("Tr.") 54, 133.) He worked in shipping and receiving, and briefly as a truck driver, but has not engaged in any substantial gainful activity since December 15, 2003. (Tr. 13, 25-26.)

[16]

1. Physical Ailments

[17]

Plaintiff has had intermittent lower back pain since childhood, the result of a deformed lumbar vertebra. (Tr. 24-25.) X-rays taken in 1999 revealed mild degenerative changes and spondylolysis -- degeneration or deficient development of a vertebra -- at the L5 level. (Tr. 222.) Dr. Anne Marie Treadup, plaintiff's primary care physician, treated him between 2000 and 2006. (Tr. 289-94, 308-12, 341.) Her records contain few references to lumbar pain (See, e.g., Tr. 308, 310), but do address plaintiff's depression and anxiety. Dr. Treadup prescribed various pain relievers and muscle relaxants for his back over a period of several years, including Flexeril, Percocet, and Skelaxin, as well as Ibuprofin. (Tr. 305, 308.) Her notes for April 16, 2002, and August 8, 2003, also suggest referring plaintiff to an orthopedist, but the record contains no evidence of his seeing one prior to 2006. (Tr. 289.)

[18]

Plaintiff sought treatment from Dr. Jeffrey G. Swift, a chiropractor, from 1994 to 2005, with no treatment between 1997 and 2001. (Tr. 156, 223.) In April 2001, Dr. Swift examined plaintiff and his x-rays, diagnosing spondylolysis with mild listhesis and lumbar pain originating from an intervertebral disc. (Tr. 222-23.) At that time, plaintiff reported lower back pain rated eight on a ten point scale, but was unsure if he had a history of spondylolysis. (Tr. 223.) After several days of treatment, Dr. Swift noted that plaintiff's condition was improved, his prognosis was good, and that he could return to work as of April 13, 2001. (Tr. 224.)

[19]

Dr. Swift treated plaintiff again on January 21, 2004, diagnosing annular insult - a ring-shaped injury - and discogenic pain with antalgia. (Tr. 228.) At that time, plaintiff characterized his pain as a seven out of ten, which he had experienced over the past several days. (Id.) Dr. Swift noted that plaintiff was "totally disabled from occupational duties" on January 21, 2004 (Tr. 229, 231), but his treatment notes over the next several weeks indicated that plaintiff "[f]eels better," made "marked improvement," and had "no acute pain". (Tr. 232-34, 236-38.) On March 23, 2004, he reported that plaintiff was "able to return to his . . . occupational duties with no restrictions . . . ." (Tr. 239.) Dr. Swift treated plaintiff again between July 26, 2004, and September 2, 2004 (Tr. 241-52), and reported, once again, that he was "able to return to work on [September 19, 2004,] with no restrictions." (Tr. 240.)

[20]

On October 16, 2006, Dr. Swift completed a questionnaire in connection with plaintiff's application for disability benefits. (Tr. 253-54.) He identified the underlying diagnosis as spondylolysis with no associated limitations to plaintiff's range of motion, motor, or sensory functions, and no current treatment. (Tr. 253.) However, he did find that Mr. Moniz had low back pain and pain with back flexion. (Id.) On a separate questionnaire addressing pain arising from the spondylolysis, Dr. Swift indicated that plaintiff was limited only in "bend[ing] repetitively at the waist." (Tr. 254.)

[21]

On August 11, 2006, plaintiff sought treatment from Dr. David E. Adelberg, an orthopedist. He found that plaintiff's back had limited range of motion and exhibited spasm, list, and tenderness. (Tr. 204.) Although his records indicate that plaintiff was oriented, neurovascularly intact, suffering no acute distress, and walking with a normal gait, Dr. Adelberg's impression was of "a gentleman who is absolutely miserable." (Tr. 204-05.) Mr. Moniz related four decades of back pain: "He essentially has had intermittent back problems where his back would 'go out' during which time he is either unable to stand or has to walk around in a crab like fashion, sometimes crawl on the floor and it can take days or months to resolve." (Tr. 382.) He added, "The back is positive for spasm, list and tenderness with extremely painful limited range of motion." (Id.) Dr. Adelberg diagnosed symptomatic spondylolysis and recommended epidural steroid injections as "the next step up the treatment ladder . . . ." (Tr. 383)

[22]

Plaintiff ceased seeing his primary care physician, Dr. Treadup, when his health insurance terminated in February 2007 and thereafter saw Dr. Sheldon Davis of the St. Luke's Ambulatory Care Clinic. (Tr. 359; see also Tr. 27-28.) Dr. Davis's notes indicate that one of plaintiff's chief complaints was intermittent lower back pain, which varied in intensity from daily discomfort to acute, severe pain during a flare-up in which he would have to crawl to move about, with minimal response to painkillers. (Tr. 360, 363, 378.) During the course of his treatment, Dr. Davis referred plaintiff to a neurologist and prescribed various pain killers and muscle relaxants, including Flexeril, Vicodin, and Naproxen. (Tr. 200, 360, 363, 371, 409.) Dr. Davis requested an MRI of plaintiff's back on March 1, 2007, which revealed grade 1 anterolisthesis and spondylolysis of plaintiff's L5 vertebra, as well as small diffuse bulges in several of his other intervertebral discs and mild compression of the L3 and L4 nerve roots. (Tr. 357-58.) On December 13, 2007, Dr. Davis noted that plaintiff can stand for no more than an hour at a time and "can do no lifting." (Tr. 378.)

[23]

Dr. Davis completed a Physical Capacities Evaluation of plaintiff on April 17, 2007, indicating that he could not sit, stand, or walk for more than an hour in an entire eight-hour workday, could never lift or carry any weight at all, was unable to use his hands for grasping, use of arm controls, or fine manipulation, and could not bend, squat, crawl, climb, or reach. (Tr. 365.) A subsequent evaluation on August 7, 2008, amended those restrictions slightly, recommending that plaintiff could not sit, stand, or walk for more than an hour per day, could lift up to five pounds frequently and carry up to ten pounds occasionally, could not use arm controls, and was totally restricted from activities involving unprotected heights, moving machinery, and driving automobile equipment. (Tr. 384.)

[24]

Dr. Davis referred plaintiff to Dr. Matthew Philips, a neurologist, in January 2008. (Tr. 360.) Dr. Philips noted that plaintiff had decreased range of motion in his back, but normal gait and motor functions. (Tr. 381.) His impression was that Moniz had "mechanical back pain due to his degenerative lumbar disc disease as well as his spondylolisthesis." He reviewed plaintiff's MRI and recommended a comprehensive course of nonoperative therapy with a physiatrist - a rehabilitation physician. *fn1 (Tr. 381.)

[25]

Dr. Maria Gorbovitsky, a non-examining physician, completed a Residual Functional Capacity Assessment of plaintiff on December 5, 2006. (Tr. 257-64.) She concluded that he was able to lift or carry up to twenty pounds occasionally and ten pounds frequently, that he could operate hand controls continuously, and that he could sit, stand, or walk about six hours in an eight-hour workday, but that he must be permitted to change his position periodically to relieve his back pain. (Tr. 258.) She also found occasional postural limitations to plaintiff's ability to climb, crawl, balance, or crouch. (Tr. 259.)

[26]

On August 23, 2007, Dr. Peter Horan examined plaintiff to determine his eligibility for disability benefits. (Tr. 369-70.) Dr. Horan's examination indicated that plaintiff "has extreme difficulty in [back] flexion without pain," noting that he could achieve "about 10 degrees flexion" and walked with a limp on the left side. (Tr. 370.) He also determined that plaintiff's grasp and grip were good, and that he had no motor or sensory deficiencies. (Id.) His assessment concluded that plaintiff had "[s]ignificant severe chronic low back syndrome." (Id.)

[27]

2. Mental Ailments

[28]

Plaintiff has a history of depression and anxiety, stemming substantially from the debilitation caused by his back pain. (Tr. 152.) His primary care physicians, Drs. Treadup and Davis, treated him for these conditions. Dr. Treadup prescribed Lorazepam for his anxiety beginning on February 25, 2002, and gave him samples of Lexapro. (Tr. 305, 325.) Dr. Davis continued prescribing Lorazepam after February 2007. (Tr. 363.)

[29]

Plaintiff sought counseling from Ms. Elizabeth Robert, a Licensed Independent Clinical Social Worker ("LICSW"), who treated him from March 20, 2006, through May 24, 2006. (Tr. 219.) In a Psychiatric Disorder Form dated October 12, 2006, Ms. Robert indicated that plaintiff had a generalized anxiety disorder and that, while he was alert and oriented, he was impulsive, angry, tended to isolate himself, and was aggravated and decompensated easily when with others. (Tr. 219-20.) She noted also that plaintiff was not taking any medication and had, to her knowledge, not undergone any psychological testing. (Tr. 220-21.) According to Ms. Robert, plaintiff's prognosis was guarded without medication and treatment, but he discontinued their sessions because of his high insurance deductible and his unwillingness to work on a payment plan. (Tr. 221.)

[30]

On April 17, 2008, plaintiff began treatment with Caryn Julien, LICSW, and Dr. Douglas H. Griffiths, a psychiatrist. (Tr. 385-404.) Ms. Julien noted plaintiff's history of self-medication with alcohol and his depressed and irritable mood, but indicated that he denied any suicidal ideation. (Tr. 385-86.) Her records indicate a primary diagnosis of dysthymic disorder, with a secondary diagnosis of social phobia. (Tr. 389). She saw plaintiff regularly through June 26, 2008, and her notes indicate mild improvement in his condition from week to week. (Tr. 391-97.) Dr. Griffiths prescribed Wellbutrin for plaintiff's depression, but appears to have seen him only once, for a psychiatric evaluation on July 21, 2008, and his notes of that examination are illegible. (Tr. 200, 388.)

[31]

Both Dr. Griffiths and Ms. Julien completed questionnaires regarding plaintiff's residual functional capacity in August 2008. (Tr. 401-04.) Their nearly identical assessments indicate moderately severe impairment of plaintiff's ability to relate to others, carry out daily activities, and respond appropriately to peers and workplace supervision. (Tr. 401, 403.) They also note moderate to moderately severe limitations of his ability to perform complex, repetitive, and varied tasks. (Tr. 402, 404.)

[32]

On January 5, 2007, Dr. Steven J. Hirsch, a psychologist working for Massachusetts Disability Determination Services, conducted a psychodiagnostic interview to evaluate plaintiff's eligibility for disability benefits. (Tr. 265-68.) Dr. Hirsch reported that plaintiff was alert and oriented, with clear speech and functional memory and expressive vocabulary skills. (Tr. 266.) He described plaintiff as "sad" but "not anxious," noting that he exhibited anhedonia - inability to experience positive emotions - tended to isolate himself, and had difficulty coping with daily stressors, though his social judgment and reasoning skills were functional. (Tr. 267.) Dr. Hirsch diagnosed Dysthymic Disorder and Anxiety Disorder and expressed concern about plaintiff's alcohol use. (Tr. 267-68.)

[33]

Joan Kellerman, Ph.D., reviewed plaintiff's medical records in connection with his application for disability benefits on January 18, 2007. (Tr. 269-82.) She identified his affective ailment as a dysthymic disorder characterized by anxiety, and made note of his daily alcohol use, but characterized those conditions as non-severe. (Tr. 270, 273, 275, 278, 282.) Dr. Kellerman determined that his condition caused no limitation on plaintiff's daily activities and only mild limitations on social functioning and maintaining concentration, persistence, or pace. (Tr. 280.) Her report contains only a few sentences of explanation, in which she noted that plaintiff "does not report any severe [symptoms] or functional intrusion due to his psychological condition" and concluded that Ms. Robert's notes were inconsistent both with Dr. Hirsch's report and with plaintiff's allegations, noting also that Ms. Robert seemed unaware of his alcohol use. (Tr. 282.)

[34]

Mark Sokol, Ed.D., examined plaintiff on September 4, 2007, to determine his eligibility for disability benefits. (Tr. 366-68.) Dr. Sokol found plaintiff to be anxious, depressed, and experiencing recurrent suicidal ideation without serious plan or intent. (Tr. 366-67.) He was alert and oriented, his memory skills were intact, and his speech and thought processes were intelligible. (Id.) Dr. Sokol diagnosed a "[m]ajor recurrent depressive disorder without psychotic features, recurrent, moderate[,]" and a generalized anxiety disorder. (Tr. 368.) As to vocational limitations, Dr. Sokol found that plaintiff could follow simple instructions, but that he was moderately impaired in his ability to maintain attention, perform tasks consistently and at a reasonable pace, and cope with others. (Id.)

[35]

B. Procedural History

[36]

Plaintiff filed an application for Social Security Disability Insurance benefits on August 10, 2006, alleging disability due to an L-5 spinal defect, degeneration of the lumbar disc, anxiety, and depression. (Tr. 133-135, 152.) The Social Security Administration denied his application at the initial review level on January 24, 2007. (Tr. 68-70.) Plaintiff filed a timely request for reconsideration, and the Federal Reviewing Official affirmed denial of the claim. (Tr. ...


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