United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR ORDER REVERSING THE COMMISSIONERS DECISION AND DEFENDANT’S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER (DKT. NOS. 17 AND 23)
Mark G. Mastroianni United States District Judge
This is an action for judicial review of a final decision by Carolyn Colvin, the acting Commissioner of the Social Security Administration (“Commissioner”), regarding an individual’s entitlement to Supplemental Security Income (“SSI”) pursuant to 42 U.S.C. § 1383(c)(3) (referring to 42 U.S.C. § 405(g)). Duane Graves (“Plaintiff) asserts the Commissioner’s decision denying him such benefits-memorialised m a September 27, 2013 decision of an administrative law judge ("ALJ")-is in error. He has filed a motion for order reversing the Commissioner’s decision and the Commissioner has moved to affirm.
For the following reasons, the court allows Plaintiff’s motion to the extent it seeks a remand (Dkt. No. 17) and denies the Commissioner’s motion (Dkt. No. 23).
Plaintiff was born on November 20, 1970. (Administrative Record (“A.R.”) at 79.) He reached, but did not complete, a ninth grade education and can read and write in English. (Id. at 51.) He has five children and he maintains contact with his two youngest children. (Id. at 52.)
Previously, Plaintiff worked as a barber, convenience store cashier, snowmaking machine operator, and groundskeeper. (Id. at 53-54, 62.)
Plaintiff filed an application for SSI benefits on March 8, 2012, alleging “knee problems” with an onset date of March 1, 2011. (Id. at 79, 23, 234.) This application was denied initially on June 15, 2012, (id. at 119-21, 23), and on reconsideration on August 22, 2012. (Id. at 125-27, 23.) Plaintiff then requested a hearing in front of an administrative law judge, which took place on July 2, 2013. (Id. at 45-74.)
A. Medical History on Record
Plaintiff claimed his physical symptoms have limited his ability to work. (A.R. at 234.) Plaintiff made monthly appointments to follow up on his chronic knee pain and renew his prescriptions. On March 18, 2009, Dr. Stefan Topolski at Trailside Health assessed Plaintiff’s congenital bilateral knee dislocations. (Id. at 325.) He opined Plaintiff’s knee pain had persisted despite previously undergoing surgical interventions. (Id.) On May 26, 2009, Dr. Joseph Sklar of New England Orthopedic Surgeons, Inc. performed a bilateral knee arthroscopy and removed his knee hardware-presumably inserted during one of his previous five surgeries-to address Plaintiffs persistent knee pain. (Id. at 303, 305-08, 325, 329.) On October 26, 2009, Lisa Miller at Trailside Health stated Plaintiffs “[M]ay surgery helped shin pain, but not joint pain. Knees hurt all the time.” (Id. at 329.)
The record strongly suggests Plaintiffs physicians were concerned he struggled with substance abuse. Plaintiff was prescribed Percocet for his pain; he claimed he misplaced his prescription and his physicians thereafter required random pill counts. (Id. at 325, 327-30.) Dr. Topolski noted “numerous conflicting reports of substance use or diversion that cannot be corroborated nor confirmed.” (Id. at 330.) He later prescribed Plaintiff Tramadol which “help[ed] less but [was] still effective” and did not seem to implicate his substance abuse problems. (Id. at 340.)
On September 22, 2010, Dr. Topolski again indicated Plaintiffs chronic knee pain and tenderness continued after his May of 2009 procedure. (Id. at 340.) Dr. Topolski further stated Plaintiffs knee “swelled up badly” after he “hit a tree working” the previous week. (Id. at 337, 340.) On February 9, 2011, Dr. Topolski indicated Plaintiff continued Tramadol during his workday but at night “the pain roll[ed] back in.” (Id. at 339.) He prescribed Plaintiff Vicodin but discussed with him the possible risks of addiction. (Id. at 340.)
On May 12, 2011, Dr. Topolski assessed “severe swelling” in Plaintiffs knees from working, which lasted five days despite his pain medication and icing daily. (Id. at 342.) On April 6, 2011, he further opined that, even with continued Tramadol and Vicodin, Plaintiffs knee pain was “worse with harder working” and intensified when Plaintiff stopped moving. (Id. at 343.) On August 11, 2011, Dr. Topolski stated Plaintiff had discontinued working due to knee pain and was trying to find other options. (Id. at 346.) Lisa Miller stated, on September 8, 2011, Plaintiff used more Tramadol during “hurricane/flood clean up” but was otherwise steady with his medication throughout the day. (Id. at 350.) On three occasions between October 26, 2011 and March 8, 2012, Plaintiffs physicians indicated Plaintiff claimed he lost access to his medication. (Id. at 353, 356-58, 362.)
On January 16, 2013, Dr. Topolski stated Plaintiff was applying for disability payments and renewed his prescriptions. (Id. at 406-07.) He further opined there was “no change” with respect to Plaintiffs chronic pain and encouraged Plaintiff to engage in activity as he could tolerate it. (Id. at 407.) At an appointment for paperwork on March 6, 2013, Dr. Topolski summarized Plaintiffs impairment: “[B]orn with congenital bilateral dislocated knees and has had [five] surgeries since age [twenty-six]; cannot replace as [there is] not enough bone and surgeon is afraid that they won’t last.” (Id. at 398.) Dr. Topolski further indicated Plaintiff had skipped Vicodin the previous month, “would like it again, ” and was “trying to use as little as possible.” (Id.) On April 17, 2013, Dr. Topolski opined Plaintiffs chronic knee pain was ...