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Simons v. Colvin

United States District Court, D. Massachusetts

July 15, 2015

DONALD SIMONS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION FOR ORDER REVERSING THE DECISION OF THE COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION (DOCKET ENTRY # 16); DEFENDANT'S MOTION TO AFFIRM THE COMMISSIONER'S DECISION (DOCKET ENTRY # 23)

MARIANNE B. BOWLER, Magistrate Judge.

Pending before this court are cross motions by the parties, plaintiff Donald Simons ("plaintiff") and defendant Carolyn W. Colvin ("Commissioner"), Acting Commissioner of Social Security Administration. Plaintiff seeks to reverse the decision of the Commissioner under 42 U.S.C. § 405(g). (Docket Entry # 16). The Commissioner moves for an order to affirm the decision. (Docket Entry # 23). After conducting a hearing on May 15, 2015, this court took the motions (Docket Entry ## 16, 23) under advisement.

PROCEDURAL HISTORY

On December 13, 2010, plaintiff filed an application for social security disability income ("SSDI") as well as an application for supplemental security income ("SSI") with the Social Security Administration ("SSA"). (Tr. 133-141). The application alleged a disability onset date of April 1, 2005. (Tr. 135). The SSA denied the claims on March 31, 2011, and the claims were again denied upon reconsideration on July 26, 2011. (Tr. 76-81, 93-98). Following the denials, plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 99-100). The ALJ conducted a hearing on May 22, 2012, at which both plaintiff and a vocational expert ("VE") testified. (Tr. 37-71). On May 25, 2012, the ALJ issued a decision finding plaintiff was not disabled. (Tr. 14-31). The ALJ concluded that, "considering the claimant's age, education, work experience, and residual functional capacity, the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (Tr. 30).

The Appeals Council denied plaintiff's request of review thereby affirming the ALJ's decision as the final decision. (Tr. 7-9, 1-6). On July 10, 2013, plaintiff filed this action against the Commissioner pursuant to 42 U.S.C § 405(g).

Plaintiff submits the ALJ's findings are "not supported by substantial evidence." (Docket Entry # 17). Specifically, plaintiff argues the ALJ failed to properly consider plaintiff's "diagnoses of cirrhosis of the liver and obstructive sleep apnea" in determining plaintiff's residual functional capacity ("RFC"). (Docket Entry # 17). The Commissioner seeks to affirm the ALJ's decision and submits substantial evidence supports it. (Docket Entry # 24).

FACTUAL BACKGROUND

I. Plaintiff's Background and Work History

Born July 9, 1963, plaintiff was 48 years old at the time of the ALJ hearing. (Tr. 42-43). He was unmarried and living with an elderly friend in subsidized housing for the elderly and disabled. (Tr. 43, 45). Plaintiff provided "companionship, safety, bill-paying and some light shopping and cooking" for his roommate. (Tr. 131). Plaintiff completed the twelfth grade and two years of college. (Tr. 521, 200). He does not drive and takes public transportation through the Massachusetts Bay Transportation Authority's "The Ride" program. (Tr. 44).

Plaintiff worked as an art gallery manager, sandwich maker, restaurant host, magazine sales representative, political fundraiser and telemarketer. (Tr. 206). Plaintiff claimed he was unable to work since April 1, 2005, but worked for one month in 2009. (Tr. 135-136). He reported he last worked in September 2010. (Tr. 199-200). Medical notes from March 1, 2010, and October 2011 through April 2012 indicated that plaintiff was working full-time without restriction, but no occupation was listed. (Tr. 298, 734, 735, 738, 739, 742, ). Medical notes from April 2012 listed his occupation as sales. (Tr. 747, 786). He reported earnings of $27.50 in 2007, $2, 190.25 in 2009 and $366.50 in 2010. (Tr. 154). At the ALJ hearing, plaintiff testified that he helped his elderly roommate with taking medicines, filling out paperwork, managing finances and some cooking. (Tr. 45).

II. Plaintiff's Medical History

Plaintiff has a documented history of joint pain specifically in the low back, neck, hip, knee, ankle and feet. (Tr. 325, 338, 371, 497, 498). The ALJ summarized that, "Treating physicians opined the cause of his pain was a combination of degenerative disc and joint disease, gouty arthritis and hip dysplasia, which were exacerbated by his deconditioned body habitus and obesity." (Tr. 22). The record reflects a history of poorly controlled hyperlipidemia and recent onset of fatty liver leading to liver cirrhosis. (Tr. 310, 317, 355, 572). Plaintiff was also treated for ongoing but stable depression and anxiety issues. (Tr. 132, 309).

On November 21, 2005, plaintiff was seen at the medical walk in unit of Massachusetts General Hospital ("MGH") for a recent episode of gout in his right knee. (Tr. 398). At the time of the visit, plaintiff had not had a physical exam for approximately ten years prior. (Tr. 398). On December 13, 2005, plaintiff returned to MGH reporting continued knee pain and swelling. (Tr. 395). At that time, Pasha Sarraf, M.D., Ph.D. ("Dr. Sarraf") aspirated synovial fluid from plaintiff's right knee and injected the same joint with Depo-Medrol and lidocaine. (Tr. 394).

On a December 21, 2005 visit to MGH, plaintiff reported "chronic low back pain." (Tr. 390). According to clinic notes from Barham K. Abu Dayyeh, M.D. ("Dr. Dayyeh"), plaintiff smoked one pack of cigarettes a day for at least the past 20 years and was "interested in quitting." (Tr. 390-391). He reported some symptoms of irritable bowel syndrome. (Tr. 391). He was currently unemployed, but "looking for a job" and was "living with a friend" on Cape Cod. (Tr. 391).

On May 8, 2006, plaintiff saw Seyed Ali Mostoufi, M.D. ("Dr. Mostoufi") at MGH for back pain, right leg discomfort and anxiety. (Tr. 388). Upon examination, plaintiff was "inflexible in his lumbosacral spine, " but "pretty flexible and normal in the cervical spine" with ranges of motion in his upper and lower extremities normal. (Tr. 388). Sensation was "intact in both upper and lower" extremities. (Tr. 388). Deep tendon reflexes were sluggish at L3. (Tr. 388). A straight leg raise test "did not cause any leg pain but" did cause "some axial low back pain." (Tr. 388). Dr. Mostoufi noted an "abnormal click in the right hip" that was "quite audible." (Tr. 388). Plaintiff's knees showed no sign of swelling or instability but displayed mild tenderness more on the right knee than the left. (Tr. 388).

On January 9, 2006, plaintiff underwent a magnetic resonance imaging test ("MRI") of the lumbosacral spine at MGH. (Tr. 388, 423). On May 8, 2006, Dr. Mostoufi reported that the MRI revealed disc extrusions in the L3/L4 and L4/L5 possibly touching the descending right side L4/L5 nerve roots. (Tr. 388). Dr. Mostoufi reported "moderate[ly] severe left and mild right neuroforaminal narrowing as a result of dis[c] protrusion" at the L5/S1 level. (Tr. 388). Dr. Mostoufi viewed x-rays of the left hip and noted "decreasing convexity of the left femoral head and neck junction representing the femoral acetabular impingement." (Tr. 388). Dr. Mostoufi also viewed lumbosacral spine x-rays that revealed "mild dis[c] facet degenerative changes at L4/L5 and L5/S1" with no evidence of fracture. (Tr. 388). He noted plaintiff had "a radicular pattern of pain as a result of dis[c] protrusion and neuroforaminal narrowing" and noted that plaintiff was "deconditioned and out of shape as well." (Tr. 389).

On May 10, 2006, during a follow up visit with Dr. Dayyeh at MGH, plaintiff reported he was currently working on Cape Cod and was interested in quitting smoking. (Tr. 385). Plaintiff also reported that a steroid injection for his low back pain had produced "good results." (Tr. 384). The following month, on June 12, 2006, plaintiff reported to Dr. Mostoufi that the L4 epidural injection produced no improvement. (Tr. 383). At that time, Dr. Mostoufi did not believe the musculoskeletal pain and right knee and left hip degenerative changes were related to plaintiff's spine. (Tr. 383).

On August 4, 2006, during a follow up visit with Dr. Dayyeh at MGH, plaintiff reported continued low back, left hip and right knee pain. (Tr. 379). Dr. Dayyeh reported plaintiff had been referred to the lumbar stabilization program and ortho sport clinic, but had not yet been seen by either. (Tr. 379).

On October 13, 2006, plaintiff reported to Dr. Dayyeh that he had not followed up with the ortho sport clinic or physical therapy because "he was out of town." (Tr. 377). Dr. Dayyeh noted plaintiff had gained ten pounds on his trip. (Tr. 378). Plaintiff admitted, "[H]e did a lot of things wrong and would want a period to get adjusted before working on any of his issue[s]." (Tr. 378).

On March 23, 2007, Rachel Grisham, M.D. ("Dr. Grisham") examined plaintiff's inflamed left wrist which began to hurt after a "particularly aggressive joint popping session" four weeks prior. (Tr. 375). On March 26, 2007, rheumatologist Angel Tsai, M.D. ("Dr. Tsai") diagnosed plaintiff with left hand tenosynovitis. (Tr. 373). An x-ray of the left wrist found "no displaced fractures or dislocations" and "mild degenerative changes." (Tr. 374).

On April 18, 2007, during a follow up visit for the left wrist pain, Dr. Dayyeh noted that the swelling of the left wrist had improved, but plaintiff had tenderness of the wrist joint with intact sensation. (Tr. 368). Dr. Dayyeh reported plaintiff had a "peri-anal fistula" and placed a surgery referral. (Tr. 367). Dr. Dayyeh also noted plaintiff was currently working on Cape Cod. (Tr. 368).

On May 9, 2007, plaintiff met with Daniel Guss, M.D. ("Dr. Guss"), a surgical intern at Churchill Blue Surgical Clinic. (Tr. 365). Dr. Guss noted "[n]o visible perianal abscess" and plaintiff reported greatly improved symptoms subsequent to "taking warm baths." (Tr. 365). The next day, plaintiff met with Dr. Dayyeh who noted plaintiff's wrist swelling was "much improved" but he was still having "some pain." (Tr. 363). Dr. Dayyeh also noted the "[p]eri-anal abscess [was] resolved." (Tr. 364).

On September 5, 2007, plaintiff again met with rheumatologist Dr. Tsai at MGH. (Tr. 359-362). During the visit, plaintiff stated his left wrist was "now back to normal since June 2007." (Tr. 359). Plaintiff reported intermittent knee and ankle pain that felt "like gout starting, '" but those episodes would resolve if he stretched or took ibuprofen. (Tr. 359). Plaintiff reported feeling well "with no joint complaints." (Tr. 359).

On November 19, 2007, plaintiff met with Dr. Dayyeh and described chest pain and right lower extremity pain. (Tr. 355-356). Plaintiff reported intermittent left side chest pain sometimes radiating to his left arm, associated with some nausea, lasting for a "few seconds to minutes" over the past three months. (Tr. 355). Plaintiff also reported severe right calf pain that started three days before the visit after walking for two hours. (Tr. 355). He also reported chronic left hip pain that was "progressively getting worse." (Tr. 355). Dr. Dayyeh noted plaintiff's hyperlipidemia was "poorly controlled" and "non-complian[t] with medication." (Tr. 355). Dr. Dayyeh referred plaintiff to the emergency department at MGH ("ED") for evaluation of plaintiff's chest pain. (Tr. 352-354). The ED tested plaintiff for myocardial infarction by cardiac enzymes and the test results were negative. (Tr. 353). The ED's testing of the right femoral and popliteal veins by ultrasound and pulsed wave Doppler was normal and showed "no evidence of... deep venous thrombosis." (Tr. 353)(capitalization omitted). Urine screening performed at ED was positive for cocaine. (Tr. 353).

On December 12, 2007, plaintiff met with Stephanie Rose, M.D. ("Dr. Rose") at MGH's medical walk in unit. (Tr. 350-351). Plaintiff reported stiffness in the left knee and pain that had kept him awake the previous night. (Tr. 350). Dr. Tsai aspirated the left knee and noted "two rare crystals" in the synovial fluid, but stated he would "not call it crystal disease at this point." (Tr. 349). The following day, on December 13, 2007, Dr. Tsai reported left knee x-rays were normal with some pain when palpitating the patellar area and reduced range of motion due to pain. (Tr. 346-347). The following week, on December 17, 2007, Dr. Tsai decided to "hold off on steroid injection for now" and advised a longer acting NSAID, weight loss and a knee brace. (Tr. 344).

On February 1, 2008, plaintiff met with Douglas Peterson, M.D. ("Dr. Peterson") at MGH for an evaluation of his left knee pain. (Tr. 331). Plaintiff reported that knee pain became "worse with prolonged walking and especially going up and down stairs and keeping the knee bent for prolonged periods." (Tr. 331). Upon examination, Dr. Peterson reported plaintiff's knee revealed no effusion, pain over the patella with full flexion, but a good range of motion and tenderness with palpitation. (Tr. 331). Dr. Peterson recommended physical therapy with possible cortisone injections if plaintiff failed to improve over the following six to eight weeks. (Tr. 331).

On March 19, 2008, plaintiff had a follow up visit with Dr. Dayyeh. (Tr. 329-330). Plaintiff reported regularly taking medication to control his hyperlipidemia and an interest in quitting smoking. (Tr. 329). Dr. Dayyeh reported plaintiff's "mood is stable with no current signs or symptoms of depression/mania/psychosis/denied substance abuse." (Tr. 329). Plaintiff was not interested in referral to a weight clinic though Dr. Dayyeh reviewed with him the "importance of weight los[s] and good eating habits." (Tr. 329). The next month, on April 8, 2008, Dr. Dayyeh reported plaintiff had gained ten pounds, but remained uninterested "in nutrition or obesity clinic consult." (Tr. 327-328). Dr. Dayyeh reported plaintiff was taking medication for smoking cessation, but still smoking one pack per day. (Tr. 327).

On May 5, 2008, plaintiff met with orthopedist Joseph McCarthy, M.D. ("Dr. McCarthy") at MGH for evaluation of left hip pain. (Tr. 325-326). Dr. McCarthy diagnosed hip dysplasia and degenerative disc disease following evaluation of plaintiff's x-rays and examination. (Tr. 325). Dr. McCarthy recommended a cortisone injection and weight loss to help with hip and joint pain. (Tr. 325). Later that week, on May 7, 2008, Dr. Dayyeh noted plaintiff had gained weight since the last visit but remained uninterested in nutrition or obesity clinic consult. (Tr. 323). Later that month, on May 22, 2008, plaintiff met with James Sarni, M.D. ("Dr. Sarni") who noted plaintiff's complaints are "actually quite vague." (Tr. 322). On examination, Dr. Sarni noted an uneven pelvis that levels out with a one half-inch lift under the left heel. (Tr. 322). Dr. Sarni stated, "Functionally I believe this patient is doing relatively well." (Tr. 322). Dr. Sarni provided plaintiff with a prescription for the heel lift and suggested some physical therapy but believed there was little else warranted at that time. (Tr. 322).

On October 8, 2008, plaintiff reported right foot and ankle pain and swelling to Eric Ackah, M.D., Ph.D ("Dr. Ackah"). (Tr. 320-321). Dr. Ackah reported the "foot pain was most likely from plantar fasciitis with resultant tendinitis" and "less likely to be gout or rheumatoid arthritis." (Tr. 321). Later that month, on October 29, 2008, met with a new primary care physician ("PCP"), Mark Awad, M.D., Ph.D. ("Dr. Awad"). (Tr. 317-319). Dr. Awad reported plaintiff had stopped taking medication for hyperlipidemia after his prescription lapsed one month prior. (Tr. 317). Plaintiff reported he was not going to physical therapy because his symptoms would "usually subside by the time [of the] appointment." (Tr. 317). He also reported right knee, ankle, and left hip pain that was greatly helped with ibuprofen and Vicodin. (Tr. 317). Dr. Awad advised plaintiff that diet and exercise may improve "his lower extremity join pains" and plaintiff was "[w]illing to talk to weight management services." (Tr. 317). Plaintiff again expressed an interest in smoking cessation counseling. (Tr. 317-318). He was also currently smoking marijuana on a weekly or bi-weekly basis. (Tr. 318). He reported "low moods" made worse by leg pain and believed he could not hold a job if he had to "stand on his legs for prolonged periods." (Tr. 318). He also reported living with the elderly gentleman and helping with his basic needs. (Tr. 318). Plaintiff reported not working regularly, but doing "odd jobs over the past few years." (Tr. 318).

On December 17, 2008, plaintiff met with Ning Tang, M.D. ("Dr. Tang") for recurrence of left foot pain. (Tr. 315-316). Plaintiff reported left foot pain, swelling, and stiffness occurring over the prior week. (Tr. 315). Dr. Tang prescribed medication and treatment for gout given the repetitive nature of the condition and presenting signs and symptoms. (Tr. 316).

On January 14, 2009, plaintiff had an initial nutrition visit with dietician Alexa Schmitt, R.D. ("Schmitt"). (Tr. 313-314). Schmitt reported plaintiff was 72 inches, 284.5 pounds with a body mass index ("BMI") of 38.5. (Tr. 313). Schmitt provided plaintiff with educational material and discussed meal plans and eating strategies. (Tr. 314).

On February 25, 2009, plaintiff met with his PCP, Dr. Awad. (Tr. 310-312). Dr. Awad noted plaintiff's weight was stable and plaintiff was not interested in going back to the nutritionist preferring to focus on using "common sense" measures to control his diet and weight. (Tr. 310). Plaintiff stopped taking medication for hyperlipidemia a month prior to this visit and Dr. Awad recommended taking the medication regularly. (Tr. 310). Plaintiff complained "of pain in his neck, back, shoulders, wrists, hips and knees." (Tr. 310). Plaintiff requested an MRI for his neck, shoulders and hips, but after physical examination, Dr. Awad believed an MRI evaluation was not needed. (Tr. 310). Dr. Awad offered referrals to physical therapy and the pain clinic, but plaintiff was uninterested. (Tr. 310). Plaintiff was also not interested in taking the suggested ibuprofen as he did not think it was effective. (Tr. 310).

On March 31, 2009, plaintiff met with Lisa Mortimer ("Mortimer"), a licensed social worker at MGH. (Tr. 308-309). Plaintiff reported he had "trouble completing things" and needed "financial help" and probably "some counseling." (Tr. 308). Mortimer diagnosed plaintiff with an adjustment disorder with mixed anxiety and depressed mood and assigned a GAF score[1] of 60. (Tr. 309). Mortimer noted plaintiff "has good insight about himself as well as a sense of humor." (Tr. 308).

On October 6, 2009, plaintiff first met with Robert Kelleher, M.D. ("Dr. Kelleher") at Mount Auburn Hospital ("Mount Auburn"). (Tr. 480-481). Plaintiff's primary complaint was left knee pain for which Dr. Kelleher proscribed Percocet. (Tr. 480). Plaintiff reported he was currently working. (Tr. 480). During a routine medical examination on October 28, 2009, Dr. Kelleher noted plaintiff's left knee had "mild swelling and tenderness upon flexion." (Tr. 477).

On November 9, 2009, plaintiff met with Dr. Kelleher and reported "anxiety issues" and "some subsequent insomnia." (Tr. 476). Dr. Kelleher then proscribed Ambien. (Tr. 476). Later that month, on November 20, 2009, Dr. Kelleher noted plaintiff had "severely elevated cholesterol." (Tr. 475).

Plaintiff met with sports orthopedic doctor Leo Troy, M.D. ("Dr. Troy") on November 25, 2009, for worsening neck, low back and left knee pain. (Tr. 512-517). Plaintiff stated his knee pain "interferes with his ability to do his job caring for an older gentleman." (Tr. 512). X-rays of the cervical spine were normal. (Tr. 513). Upon examination of the spine and knee, Dr. Troy noted "generalized tenderness" and a "minimal decrease in all ranges of motion." (Tr. 513-514). Dr. Troy discussed with plaintiff "management with anti-inflammatory medication, icing and physical therapy exercise." (Tr. 514). On December 11, 2009, Dr. Troy reviewed plaintiff's lumbar spine MRI results. (Tr. 500-501). Dr. Troy's impression was "[l]umbar spondylosis" with the worst at the L5/S1 level and "[s]mall posterior disc protrusions" at the L3/L4 and L4/L5 levels. (Tr. 501).

On January 4, 2010, plaintiff saw Dr. Kelleher for a follow up cholesterol check. (Tr. 472-473). Plaintiff had elevated triglycerides and below normal high density lipoproteins cholesterol. (Tr. 472). The hepatic panel showed normal results. (Tr. 473). Dr. Kelleher noted plaintiff continued to have "occasional spasms in his left leg." (Tr. 472).

During a follow up visit with Dr. Kelleher on February 18, 2010, plaintiff's triglyceride levels were elevated. (Tr. 471). Dr. Kelleher recommended plaintiff lose 20 pounds "over the next 6 months to... alleviate some of his symptoms of back pain." (Tr. 470). The hepatic panel again showed normal results. (Tr. 471). On March 4, 2010, during another follow up visit, Dr. Kelleher noted plaintiff continued to have "severely elevated triglycerides" despite taking appropriate medication. (Tr. ...


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