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Brown v. Colvin

United States District Court, D. Massachusetts

June 30, 2015

KELLY E. BROWN, Plaintiff,


DOUGLAS P. WOODLOCK, District Judge.

Kerry E. Brown instituted this action pursuant to 42 U.S.C. 405(g), seeking judicial review of a final administrative decision denying her claim for social security disability insurance benefits. She seeks to have the Commissioner's decision remanded to reassess her eligibility and issue a new decision.


A. Procedural History

Ms. Brown filed applications for SSDI benefits on June 14, 2010 pursuant to Title II of the Social Security Act, alleging disability beginning October 23, 2007. Her insured status under the Act lapsed on December 31, 2009. The application was denied initially on September 23, 2010. That denial was affirmed upon reconsideration by the Social Security Administration ("SSA") on March 11, 2011. After a video hearing on November 2, 2012, an Administrative Law Judge issued a decision on November 15, 2012, finding the claimant was not disabled from her alleged onset date through her date last insured. On December 6, 2013, the Appeal Council of SSA denied the claimant's request for review and the ALJ's decision became final. Ms. Brown then filed the instant action with this Court, seeking judicial review of the decision pursuant to 42 U.S.C. 405 (g).

B. Medical Chronology

Ms. Brown was born on September 5, 1974. She was thirtythree years old on her alleged onset date of disability and thirty-five years old on her date last insured. She had a high school education and had been a secretary and data entry clerk.

Ms. Brown first sought medical treatment from her primary care physician Roberts Gagnon, M.D. for limb pain and paresthesias (a sensation of tingling or prickling of a person's skin) beginning on October 24, 2007. She reported that her symptoms were of severe intensity and they occurred every couple of minutes. She claimed that the symptoms were aggravated by her typing, filing and fine manipulation. Dr. Gagnon assessed her condition to be carpal tunnel syndrome (a numbness and tingling in the hand caused by a pinched nerve in the wrist), for which he prescribed ibuprofen.

On December 17, 2007, Ms. Brown went to see Dina Galvin, M.D. for her continuing numbness and tingling. She reported that the symptoms had become constant even without working in the past six months. She claimed that she started dropping objects because she was unable to feel them. At Dr. Galvin's recommendation, she underwent a nerve conduction study on January 1, 2008. The study only revealed a moderate right median neuropathy at the right wrist. Dr. Galvin concluded that Ms. Brown did not have clinical evidence of carpal tunnel syndrome but would benefit from the physical therapy for her thoracic outlet syndrome (a condition involving compression of the nerves or blood vessels causing pain in the neck or shoulder and numbness in hands). Ms. Brown subsequently started physical therapy from January 21, 2008. However, she was put on hold on March 28, 2008 due to the lack of improvement in her numbness and paresthesias.

On January 17, 2008, Ms. Brown sought treatment with neurologist Donald S. Marks, M.D. for numbness and paresthesias in both hands. Dr. Marks performed a Nerve Conduction Velocity test, finding nothing but a moderate R median neuropathy across the R wrist. He suggested clinical correlation. On that same day, Ms. Brown consulted Dr. Galvin, who concluded again that Ms. Brown's numbness and tingling resulted from thoracic outlet syndrome and that she may benefit from physical therapy.

Ms. Brown went to see Dr. Gagnon on February 11, 2008. She expressed her frustration about Dr. Galvin's failure to explain her thoracic outlet syndrome. After reexamination, Dr. Gagnon assessed her condition to be carpel tunnel syndrome and thoracic outlet syndrome. Dr. Gagnon ordered a MRI scan of Ms. Brown's cervical spine. The test, performed on February 15, 2008, disclosed minimal central posterior disc protrusion at the C5-6 level and muscle spasm. On her third visit to Dr. Gagnon dated March 18, 2008, she complained about the persistent numbness and paresthesia and, in addition, problems with her eyesight. Dr. Gagnon believed that Ms. Brown was disabled on the basis at these symptoms.

On April 8, 2008, Ms. Brown sought treatment from Mazen Eneyni, M.D. of Angels Neurological Centers. In addition to pain and numbness in both hands, she also reported fatigue and body aches. On examination, Ms. Brown showed normal gait, strength, sensation, and reflexes. Her cognition was generally intact except that she had blurring of the nasal margins without swelling. Dr. Eneyni's impression included carpal tunnel syndrome, fibromyalgia (a condition of widespread muscle pain or tenderness) and pseudopappiledema (optic disc swelling that is secondary to an underlying process). He then ordered a new EMG, which was administered by Federick Nahm, M.D., on April 19, 2008. The study showed reduced median and ulnar motor response amplitudes on the right, which Dr. Nahm indicated might be "suggestive of a low trunk plexopathy as in thoracic outlet syndrome".

On April 18, 2008, Ms. Brown visited Aleksander Feoktistov, M.D., at the Raynham Rheumatology office. She reported persistent pain in joints, random sensations of numbness and tingling, as well as sleep problems and episodes of profound fatigue. She also complained about stomach problems with constipation or diarrhea. Upon examination, Ms. Brown was found to have mild tenderness to palpation in the proximal interphalangeal joints of the hands bilaterally and in the wrists. She also had anterior shoulder tenderness on palpation and tenderness to digital palpation at the occiput, trapezius, second lib, lateral epicondyle, medially over knees, greater trochanter and gluteal area bilaterally. Yet she did not appear to have acute pain. Dr. Feoktistov concluded that Ms. Brown presented with symptoms of fibromyalgia possibly secondary to sleeping problems.

Upon referral by Dr. Feoktistov, Ms. Brown visited Imad J. Bahhady, M.D., for her insomnia and fatigue on April 29, 3008. She reported excessive daytime sleepiness, snoring and sleep onset and maintenance insomnia. The doctor assessed obstructive sleep apnea and psychophysiological insomnia, which arose out of her stress and pain associated with fibromyalgia.

Ms. Brown returned to Dr. Feoktistov on May 2, 2009. She complained that she had an increase in joint pain. She reported that a few weeks earlier she had to stay in bed due to excessive fatigue and that this profound episode resolved after a few days. Dr. Feoktistov concluded that she had symptoms of fibromyalgia and symptoms suggestive of carpal tunnel syndrome. He also noticed Ms. Brown's depressive symptoms because of frustration over her level of function.

By referral of Dr. Bahhady and Dr. Gagnon, Ms. Brown visited Carolyn M. D'Ambrosio, M.D., for polysomnography on June 4, 2008. The examination resulted in no determination because Ms. Brown could not achieve any sleep due to her pain. Dr. D'Ambrosio performed another polysomnography on September 22, 2008. The study demonstrated moderate sleep disordered breathing with prominent snoring and paradoxical breathing.

On July 9, 2008, Ms. Brown was examined by Peter Schuter, M.D., a rheumatologist. She complained about her numbness, achiness, fatigue and flu-like symptoms under the sun. She also reported her sleep problems and cognitive defects as a result. She had symptoms suggestive of lupus, such as arthritis, skin lesions, and canker sores. The physical examination showed that she was clearly overweight, had marked limitation in internal rotation in both shoulders and decreased rotation of both hips, and was tender everywhere in her body. Dr. Schuter opined that her symptoms were consistent with either lupus, or fibromyalgia, or both. He recommended that Ms. Brown lose 100 pounds once the pain level went down and her sleep got better.

On July 16, 2008, Ms. Brown visited Dr. Gagnon for the fourth time since her alleged onset date of disability. Dr. Gagnon assessed her condition to be carpal tunnel syndrome, thoracic outlet syndrome and fibromyalgia. On July 28, 2008, he completed a "Continuing Disability Claim Form", in which he opined that Ms. Brown had been unable to work since February 2, 2008 and that she could not perform any lifting or typing. In a letter dated September 26, 2008, Dr. Gagnon wrote that Ms. Brown was incapacitated by medical problems as well as fatigue and numbness. He expected Ms. Brown would return to work in three to six months but that the amount and the type of work would be limited.

On October 2, 2008, Ms. Brown was evaluated by Carolyn B. Becker. The review of her symptoms demonstrated positive pain, numbness, loss of strength and feeling in both her hands, arms, feet and legs, muscle inflammation, muscle pain and stiffness, blurry vision, tender points, intolerance to pressure on her skin, extreme fatigue, insomnia, terrible headaches, and alternating diarrhea and constipation. Upon examination, Dr. Becker opined that Ms. Brown's symptoms were complex and most consistent with fibromyalgia. On October 9, 2008, Ms. Brown went to see another neurologist Slavenka Kam-Hanson, M.D. Upon examination, Dr. Kam-Hanson concluded that Ms. Brown did not have a neurological disease, except some chronic pain syndrome. He also questioned whether any further MRI test would change the diagnosis.

On December 9, 2008, Ms. Brown visited Michael Biber, M.D. Upon his examination, Dr. Biber concluded that there were no neurologic signs except for possible Tinel's (irritated nerves detected by lightly tapping over the nerve to elicit a sensation of tingling) over the right median nerve at the wrist. He also opined that some of her sensory symptoms could represent a conversion reaction due to the nonanatomic distribution of her sensory symptoms and her eight-month history of anxiety.

On February 12, 2009, Ms. Brown underwent laparoscopic Roux-en-Y gastric bypass surgery (a weight loss procedure) by Ali Tavakkolizadeh, M.D. On March 25, 2009, Dr. Tavakkolizadeh wrote that the surgery was uneventful and that Ms. Brown was doing wonderfully well. Since the surgery, she had successfully lost 57 pounds. Although there was no noticeable decrease in the frequency of her fibromyalgia attacks, Ms. Brown reported that she felt better and more energized in between these attacks.

Ms. Brown did not seek further medical treatment until July 1, 2010, when she was referred to Roland Chan, M.D. by Dr. Gagnon. She reported diffuse, constant and severe pain with fatigue. The physical examination revealed normal gait and station and no misalignment, asymmetry, crepitation, defects, tenderness or masses upon palpation. She also demonstrated normal muscle strength and tone with no atrophy. She experienced no pain, crepitation or contracture with range of motion. Based on his examination, Dr. Chan assessed probable fibromyalgia. He opined that Ms. Brown should be encouraged to exercise, lose weight and remain productive full time in the workforce.

On August 5, 2010, Dr. Gagnon, upon the request of Massachusetts Rehabilitation Commission, opined about Ms. Brown's disability and stated that she was unable to work due to the chronic muscle pain she suffered from fibromyalgia.

On September 7, 2010, Beth Schaff, M.D., a State agency medical consultant, completed a physical functional capacity assessment on Ms. Brown. She opined that Ms. Brown could carry or lift ten pounds occasionally and less than ten pounds frequently, stand or walk three to four hours in an eight hour workday, sit for a total of about six hours in an eight hour workday, and push or pull occasionally with limitation in upper extremities. She observed that Ms. Brown occasionally had difficulty in climbing, balancing, stooping, kneeling, crouching and crawling. She also wrote that Ms. Brown was occasionally unable to perform bilateral overhead reaching, grasping and twisting. Despite these limitations, Dr. Schaff found that Ms. Brown had no visual, communicative or environmental limitations.

On September 22, 2010, John Warren, Ed. D., a state agency psychological consultant, reviewed Ms. Brown's medical records and concluded that she had no medically determinable impairment during the relevant period. His finding was confirmed by Henry ...

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