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Hatch v. Colvin

United States District Court, D. Massachusetts

August 9, 2016

Shannon Hatch, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          David H. Hennessy UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Shannon Hatch (“Hatch”), seeks reversal of the decision by the defendant, the Commissioner of the Social Security Administration (“the Commissioner”), denying her Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”), or, in the alternative, remand to the Administrative Law Judge (“ALJ”). (Docket #28). The Commissioner seeks an order affirming her decision. (Docket #29).

         For the reasons that follow, Hatch’s Motion to Reverse or Remand (Docket #28) is DENIED and Defendant’s Motion for Order Affirming the Decision of the Commissioner (Docket #29) is ALLOWED.

         I. BACKGROUND

         A. Procedural History

         On June 15, 2009, Hatch, then a Certified Nursing Assistant (“CNA”), filed an application for DIB and SSI. (Tr. 62-63). She alleged onset of disability due to a back injury suffered while transferring a patient on July 27, 2008, and re-aggravated on August 18, 2008. (Tr. 62-63, 163-76). The application was denied both initially and upon reconsideration. (Tr. 62-69, 75-80). On July 26, 2011, Hatch amended her claim, requesting a closed period for DIB and SSI beginning on July 27, 2008, and ending on March 5, 2011. (Tr. 152-53). Following a July 28, 2011, hearing (Tr. 28-61), the ALJ on September 19, 2011 rendered a decision that Hatch had not been disabled from July 27, 2008 through the date of the decision, including the closed period requested by Hatch. (Tr. 7-27).

         On October 18, 2011, the Appeals Council denied Hatch’s request for administrative review, making the ALJ’s decision final and ripe for judicial review. (Tr. 1-6). Having timely pursued and exhausted her administrative remedies before the Commissioner, Hatch filed a complaint with this Court on December 13, 2012, pursuant to 42 U.S.C. § 405(g). (See Docket #1). Hatch then filed a Motion to Reverse or Remand, and the Commissioner filed its cross-motion. See Docket #15-16. Both motions have been re-filed after initially being dismissed without prejudice in the absence of the Administrative Record. (See Docket #25-30).

         B. Personal History

         Hatch was twenty-eight years old at the time of the alleged disability onset, and thirty-one as of March 6, 2011, the end date of her requested closed period of disability. (Tr. 191). Hatch earned her G.E.D. in 2003 and has completed some post-secondary education in an R.N. program. (Tr. 191). She was unmarried and lived with her significant other and two children. (Tr. 191). Hatch was certified as a Nurse’s Aide and also held a certificate and state license in hairdressing. (Tr. 191).

         Hatch’s work history is as follows: she worked as a shift supervisor at Dunkin’ Donuts locations in Ashburnham, MA and Orange, MA from March of 2005 through March of 2006, and at Farren Care Center in Montague, MA.[2] (Tr. 191). Between December 2006 and the alleged disability onset date of July 27, 2008, Hatch worked as a CNA at Quabbin Valley Health Care, earning approximately $459.90 per week. (Tr. 191). Following her injury, Hatch returned to work on light duty from August 1, 2008, through August 18, 2008, on which date she re-aggravated her injury while assisting a patient to the bathroom. (Tr. 191). Hatch remained out of work from August 18, 2008, until September of 2010 when she began working full-time as a case aide[3] at United Arc in Greenfield, MA.[4] (Tr. 39-40). Hatch eventually moved to part-time relief work at United Arc in January of 2011, and left her position the following month. (Tr. 42-43). On March 6, 2011, the end date of her requested period of disability, Hatch obtained a cashier position with Cumberland Farms. (Tr. 43).

         C. Medical History

         As noted, Hatch traces her alleged disability to July 27, 2008, when she stated she injured her back. (Tr. 318, 410, 423, 482). On initial examination on July 29, 2008, Elliot Nottleson, Physician’s Assistant at Winchendon Health Center, noted that Hatch’s back showed tenderness in the lower thoracic and upper lumbar posterior processes, as well as in the paraspinous muscles on each side of that region. (Tr. 318). Nottleson’s impression was that Hatch had muscle spasms and a ligament sprain in the lumbar region; he recommended she refrain from working until the following Monday, August 4, 2008, at which point she returned to work with exertional restrictions. (Tr. 319). On August 11, 2008, Nottleson noted that Hatch’s back pain was improving despite some residual tenderness, and that she was able to move more comfortably at home. (Tr. 320). Nottleson modified her work restrictions to the following limitations: lift 26 to 40 pounds, carry 26 to 40 pounds, push/pull 41 to 75 pounds, and avoid extremes of neck movements. (Tr. 320). X-rays of Hatch’s back taken on August 12, 2008, were negative for pathology and otherwise normal aside from a mild left lumbar curvature. (Tr. 313).

         Hatch reinjured her back at work on or around August 18, 2008, while assisting a patient who had fallen. (Tr. 321). Several days later she returned to Nottleson, complaining of pain radiating down her left side into her left leg. (Tr. 321). Nottleson noted tenderness in the posterior processes, lumbar spine, and left paraspinal muscles, and he suggested Hatch stay out of work “for the time being.” (Tr. 321). Nottleson referred Hatch to physical therapy at Athol Memorial Hospital, from which Hatch was discharged on October 24, 2008 for failing to appear for visits. (Tr. 277).

         An MRI of Hatch’s lumbar spine taken in September of 2008 was normal and showed no evidence of disc bulge, protrusion, or herniation. (Tr. 280). On September 26, 2008, Hatch’s treating physician, Dr. David N. Havlin, found diffuse tenderness over Hatch’s lower lumbar spine and diagnosed her with low back pain and left medial thigh paresthesias. (Tr. 324). Significantly, Dr. Havlin did not believe the left medial thigh paresthesias was related to Hatch’s back injury. (Tr. 324). Dr. Havlin recommend Hatch remain out of work until October 20, 2008, and prescribed Vicodin and Flexeril. (Tr. 324). Beginning on November 8, 2008, Hatch underwent physical therapy at Heywood Rehabilitation Center, during which she again failed to appear for approximately four appointments. (Tr. 281-87). Upon discharge on December 19, 2008, the physical therapist noted that Hatch was making poor gains in terms of pain and failed to appear for her last appointment prior to discharge. (Tr. 287).

         At a follow-up examination on December 3, 2008, Dr. Havlin noted that Hatch had remained out of work and complained of continued pain in her back radiating to her left leg. (Tr. 331). Dr. Havlin recommended she remain out of work until January 12, 2009. (Tr. 332). A subsequent MRI of Hatch’s spine taken in December 27, 2008 was also entirely normal, with no evidence of disc degeneration or herniation, and no findings of any other injury or malformation. (Tr. 289).

         On January 15, 2009, Hatch saw Dr. Richard Warnock for an independent medical evaluation requested by the ALJ.[5] (Tr. 410-15). Dr. Warnock determined that Hatch’s low back pain was causally related to her work injury; however he found her symptoms to be “way out of proportion to the objective findings available” and suspected “some symptom magnification.” (Tr. 412). Dr. Warnock did “not have any orthopedic basis to explain [Hatch’s] ongoing complaints” and found that Hatch could return to work immediately without restrictions. (Tr. 412).

         An MRI taken on March 18, 2009 showed a “very small” left lateral protrusion at ¶ 4-5 with “minimal” mass effect on the thecal sac and “very mild” retrodisplacement at the left L5 nerve root. (Tr. 288, 300). Dr. Havlin opined that these findings were related to the July 28, 2008, injury and the re-aggravation on August 18, 2008. (Tr. 292). He cited Hatch’s complaints of ongoing left-sided pain since the initial injury and concluded the most recent MRI, which conflicted with the two prior MRI’s, represented a progression of Hatch’s initial back injury. (Tr. 292). In an April 11, 2009 letter to Hatch’s attorney, Dr. Havlin opined that although the conditions revealed in the most recent MRI could affect Hatch later in life, Hatch did not require surgery at that time. (Tr. 293). Dr. Havlin did not believe, however, that Hatch could return to a CNA position at that time, and recommended that she remain out of work. (Tr. 293).

         On May 20, 2009, Dr. Hsin Hsieh, an orthopedic surgeon, performed an independent medical examination requested by Hatch’s worker’s compensation insurer. (Tr. 423-427). Dr. Hsieh observed that Hatch had “some degree of radiculitis” of the L5 nerve on her left side and noted that it was “interesting” that radiculitis was then being noticed for the first time. (Tr. 426). Dr. Hsieh suggested that Hatch be evaluated by a spine surgeon to determine if surgical intervention was necessary. (Tr. 426).

         On May 26, 2009, Dr. Jason Eck, an orthopedic spine surgeon, evaluated Hatch, who complained of significant pain in her lower back as well as her left thigh. (Tr. 339). Dr. Eck observed that Hatch was “healthy appearing” and in “no acute distress.” (Tr. 339). Hatch walked with a normal gait and although Dr. Eck noticed some diffuse tenderness in the middle of her lower back, her strength was recorded at 5/5 throughout her lower extremities “with the exception of 4/5 strength in her left EHL.”[6] (Tr. 339). Dr. Eck stated that the recent MRI findings at the L4-L5 level could explain the back pain and lateral leg pain, but that he was “not convinced of the medial thigh pain.” (Tr. 340). Dr. Eck diagnosed degenerative disc disease with a small disk herniation and annular tear at the L4-L5 level. (Tr. 339). He recommended that Hatch undergo a discogram and return for further evaluation. (Tr. 340).

         In July of 2009, Hatch filled out a Function Report in connection with her application for benefits. (Tr. 231-240). Hatch reported that she was able to drive, transport her children and run errands, cook while sitting down, and wash dishes and do laundry with breaks. (Tr. 231-235). Additionally, Hatch reported that she was able to care for her children and pets with some assistance, and that she was able to perform self-care, although she noted some difficulty with tasks involving bending. (Tr. 231, 233).

         On November 16, 2009, Hatch was evaluated by Dr. Louis Jenis, an orthopedic surgeon. (Tr. 482). She complained of constant and dull low back pain which increased with sitting on the left side, prolonged standing, or walking. (Tr. 482). Dr. Jenis found Hatch’s cervical, thoracic, and lumbar alignment to be without any deformity. (Tr. 482). He noted that Hatch had a limited range of back and bilateral hip motion due to the pain, but also that Hatch had full cervical and shoulder range of motion. (Tr. 482-483). Dr. Jenis reviewed the March 18, 2009, MRI and found “very minimal disc bulging at the L4-L5 level without any significant disk dehydration noted” and no evidence of nerve root impingement or spondylolisthesis. (Tr. 483). He diagnosed chronic low back pain secondary to chronic muscle strain and left piriformis syndrome with chronic sciatica. (Tr. 483). Dr. Jenis believed that the pain symptoms were related to a “soft tissue type of injury” and recommended continued non-operative care with a referral to physiatry. (Tr. 483).

         At their request, Dr. Havlin reported to the Massachusetts Rehabilitation Commission (“MRC”)[7] on January 24, 2010, that Hatch had persistent low back pain with left-sided sciatica. (Tr. 528). Dr. Havlin opined that, over time, Hatch had shown signs of disc degeneration, citing as evidence the March 18, 2009 MRI. (Tr. 529). He described Hatch’s pain as constant, dull, and localized to her left lower lumbosacral area, which radiates into her left buttock, posterior thigh, and lateral calf. (Tr. 529). During her most recent visit on December 18, 2009, Dr. Havlin found Hatch’s motor strength and range of motion in her back to be normal, although there was discomfort and some tenderness over the left sacroiliac joint. (Tr. 529-530). Dr. Havlin noted that Hatch showed signs of chronic lumbar strain and left piriformis syndrome, and opined that Hatch was significantly disabled due to her inability to perform any lifting, pushing, squatting, or bending. (Tr. 531). Dr. Havlin again reported to the MRC in May of 2010 and opined that Hatch was disabled due to her injury. (Tr. 563). He explained that Hatch had been approved for physical therapy by Worker’s Compensation. (Tr. 563).

         Dr. Havlin’s notes from June 1, 2010, indicate that Hatch returned to work temporarily as a medical billing clerk[8] and that Hatch’s attorney advised her not to earn over $900 per week so as not to jeopardize her disability claim. (Tr. 570). He added that Hatch intended to find other work as Patient Care Assistant if possible. (Tr. 570). Notes dated October 19, 2010, state that Hatch’s back pain had not improved; however she was working at a group home in Greenfield, MA[9] at the time and attending a full-time LPN program. (Tr. 566). Dr. Havlin’s notes also provide that Hatch had been unable to make her physical therapy appointments due to work and school obligations. (Tr. 566). He diagnosed Hatch with piriformis syndrome and lumbar strain, qualifying that he was unsure if Hatch truly suffered from the former. (Tr. 566).

         D. Consultative Psychological Examination

         On October 1, 2010, Dr. Kathryn McNally, a consultative psychologist, performed a psychological examination of Hatch. (Tr. 390-393). Hatch reported a history of childhood trauma as well as depressive symptoms related the pain and physical limitations caused by her back injury. (Tr. 391). Dr. McNally noted that Hatch was taking a significant number of painkillers which may have been masking or exacerbating depression. (Tr. 391). She diagnosed Adjustment Disorder with mixed emotional features. (Tr. 391). Dr. McNally assigned a GAF score of 65 and found that Hatch’s psychological symptoms did not interfere with daily functioning.[10] (Tr. 392). Further, Hatch’s concentration and attention, understanding and memory, social functioning, and adaptation to work all were normal. (Tr. 392).

         E. State Agency Opinions

         1. Physical

         On September 1, 2009, medical consultant Shankar Narayan reviewed Hatch’s records on behalf of the Social Security Administration and provided a physical Residual Function Capacity (“RFC”) assessment. (Tr. 378-385). Narayan found that Hatch could lift up to twenty pounds occasionally and ten pounds frequently, could stand for at least two hours per work day, could sit for about six hours per work day, and had no further limitations in her push/pull capacity. (Tr. 379). Narayan also found that Hatch could balance, stoop, and kneel frequently; and crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds occasionally. (Tr. 380). Narayan noted that Hatch had no manipulative, visual, or communicative limitations. (Tr. 381-382). She suggested that Hatch avoid concentrated exposure to extreme cold or hazards such as machinery or heights, but imposed no other environmental limitations. (Tr. 383). Narayan ultimately determined, without exposition, that Hatch’s statement of impairment was “partially credible.” (Tr. 380).

         On March 18, 2010 Dr. Leslie Caraceni, who specializes in Family Medicine, reviewed Hatch’s records and provided a second RFC assessment in which she reached largely similar findings as Narayan. (Tr. 553-560). Of note: whereas Narayan found that Hatch could lift up to twenty pounds occasionally and ten pounds frequently, Dr. Caraceni found that Hatch could lift up to ten pounds occasionally and under ten pounds frequently. (Tr. 379, 554). Dr. Caraceni also found (unlike Narayan) that Hatch could balance and kneel occasionally rather than frequently, and could not crouch, crawl, stoop, or climb ladders, ropes, and scaffolds. (Tr. 555). She added that Hatch should avoid concentrated exposure to hazards such as machinery or heights, but imposed no limitation regarding exposure to extreme cold. (Tr. 557). All other findings were consistent with the RFC provided by Narayan. (Tr. 378-385, 553-560). Dr. Caraceni opined that the severity of Hatch’s symptoms and their limiting effect were credible. (Tr. 558).

         2. Mental

         On October 14, 2009, Douglas Siegel, Ph. D., a state agency psychological consultant, performed a mental RFC assessment. (Tr. 428-441). He opined that Hatch had affective disorders but that they were not severe. (Tr. 428). Dr. Siegel indicated that Hatch had mild restrictions of daily living activities, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, focus, and/or pace, and that she suffered no episodes of decompression. (Tr. 438). He concluded that while Hatch’s mental impairment allegations were credible, since any such impairment did not significantly impact her everyday functioning, Hatch did not suffer from a severe mental impairment. (Tr. 440).

         F. Hearing Testimony

         On July 28, 2011, Hatch (represented by an attorney) and a vocational expert gave testimony at a hearing held before ALJ Penny Loucas. (Tr. 28-61). The ALJ began by asking Hatch if she underwent the discogram recommended by Dr. Eck on May 26, 2009, to which Hatch testified that she had not. (Tr. 33). As Hatch did not undergo a discogram, the subsequent diagnosis of piriformis ...


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