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Malone v. Colvin

United States District Court, D. Massachusetts

February 24, 2017

TONYA MALONE, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          Patti B. Saris Chief United States District Judge

         INTRODUCTION

         Plaintiff Tonya Malone, who has a history of pain and mental health issues, seeks review of the denial of her claim for Social Security disability benefits, arguing that the Administrative Law Judge ("ALJ") erroneously failed to consider the opinion of an examining consultative orthopedist and disregarded the findings of state agency psychologists that she has moderate limitations in social functioning that required a "supportive employer." Because the ALJ failed to sufficiently explain why he discredited the opinion of the examining consultative orthopedist, the Court ALLOWS Malone's motion to vacate and remand the decision of the Commissioner (Docket No. 19) and DENIES the Commissioner's motion to affirm (Docket No. 20) .

         FACTUAL BACKGROUND

         Malone applied for Disability Insurance Benefits on August 14, 2012, claiming disability due to coccydynia, hernia, fibromyalgia, right hand arthritis, migraine headaches, obesity, bipolar disorder, depression, and anxiety. Malone claimed that her disability began on August 28, 2011. Malone was forty-eight years old when the ALJ denied her application on July 24, 2014.

         Malone worked most recently as a dual-diagnosis counselor at a Long Island shelter. R. 33. Prior to that, Malone worked as a nursing assistant. R. 33. Malone attended high school through the eleventh grade. R. 32. She did not pursue a GED, but she did complete a nursing assistant program and receive a certificate. R. 32-33.

         I. Physical Health Conditions A. Chronic Pain

         Malone's medical record contains frequent references to back pain, abdominal wall pain, and whole body pain dating back to 1998. E.g., R. 271, 307, 440, 455.

         A January 22, 1998 evaluation by Dr. Godwin Darko referenced complaints of knee pain and middle and upper back pain. R. 271. A February 18, 1998 radiology consultation by Dr. Daniel O'Connor referenced a history of headaches, neck, and back pain stemming from an injury one year prior. R. 275. Dr. O'Connor found no evidence of fracture, tissue swelling, or abnormality. R. 275.

         After slipping and falling on water on June 6, 2000, Malone sought treatment from Dr. Crowley, an emergency room physician, for neck and back pain. R. 295.

         On August 10, 2006, Malone sought treatment for abdominal pain at the incision site of a tubal ligation six years prior. R. 307. Dr. Andrew Glantz performed an incisional hernia repair and located two incisional hernias at the site of the past incision. R. 307. During a follow-up visit on September 25, 2006, Dr. Glantz described Malone as "fully recovered" from the hernia surgery. R. 311.

         On June 2, 2008, Malone was injured in a car accident. R. 321. The next day, she went to the emergency room and reported nausea, headache, body aches, and migraine. R. 321. On June 25, 2008, Malone sought treatment from her primary care physician, Dr. Kathleen Crowley. R. 321. Dr. Crowley indicated that while Malone reported that she did not feel better, the mechanism of her injury was unclear. R. 321.

         On September 14, 2012, Malone sought treatment from Dr. Thomas Ostrander. R. 455. Dr. Ostrander described Malone as having a history of '"chronic pain" with headaches and abdominal wall hernia with cramping. R. 455.

         Two weeks later, on September 28, 2012, Malone sought a behavioral health evaluation from Social Worker Judith Bello. R. 4 99. During the appointment, Malone reported pain in her back, neck, knees, shoulder, head, and tailbone. R. 500. Malone rated the pain intensity as an eight on a pain intensity scale of one to ten. R. 500.

         On November 7, 2012, Malone had a follow-up appointment with Dr. Ostrander. R. 490. Malone conveyed during the office visit that the "pain continues." R. 4 90.

         On November 14, 2012, during a therapy appointment with Psychotherapist Stephanie Freeman, Malone reported pain in her head and stomach that rated eight out of ten on a ten-point pain scale. R. 424. On the same date, Malone was also evaluated by Dr. Anna L. Fitzgerald. R. 440. Dr. Fitzgerald noted that Malone suffered from "chronic pain." R. 440.

         On December 5, 2012, during a therapy appointment with Freeman, Malone reported constant whole-body pain of high intensity (ten on a pain scale of one to ten). R. 412. Freeman's notes indicated, "[Patient] reported she is still experiencing a great amount of physical pain and medication is not relieving the pain." R. 413. During Malone's next psychotherapy appointment on December 19, 2012, Malone again reported pain of ten out of ten with constant pain in her stomach and head. R. 464. A few weeks later, on January 9, 2013, Malone reported physical pain at a severity of four out of ten. R. 417. Malone again reported physical pain during a January 16, 2013 therapy session, with a severity of five out of ten. R. 450.

         Malone returned for a follow-up with Dr. Ostrander on February 25, 2013. R. 429. The treatment record described Malone as having a history of "chronic pain" with codeine "no longer working for her pain." R. 429. Malone was diagnosed with Chronic Pain Syndrome and prescribed Fentanyl pain patches. R. 431.

         At an office visit on March 27, 2013 with Dr. Ostrander, Malone reported that morphine was "working well" to control her pain. R. 473.

         Dr. Anne Fitzgerald evaluated Malone on April 24, 2013, at which point Malone reported pain of a ten out of ten. R. 485. At the appointment, Malone reported that she had been prescribed morphine for her hernia and pain. R. 484. Malone expressed wariness of narcotics due to her history but deemed the morphine "necessary." R. 484. Dr. Fitzgerald noted that "pain persists but improved with current treatment." R. 487. At a psychotherapy appointment on the same day, Malone noted "constant head, back, and stomach pain over the course of two weeks." R. 495. On August 6, 2013, Malone sought treatment from Dr. Daniel Cottrell, her new primary care physician, for chronic pain, abdominal pain, and headaches. R. 513. Malone reported she could "barely move" and was "unable to walk long distances." R. 513.

         On September 30, 2013, Malone sought treatment from Dr. Cottrell for increased hip and back pain. R. 509. Treatment notes referenced "chronic pain - Fibromyalgia." R. 509. No cause, trauma, or injuries were reported. R. 509. Dr. Cottrell noted that "pain is worse of late for unclear reasons" and that "she is very concerned about opiates and worries about addiction." R. 511. Malone was prescribed Percocet. R. 511.

         On October 3, 2013, Dr. Cottrell submitted a medical report to the Massachusetts Disability Evaluation Services stating that Malone had "chronic pain, fibromyalgia" that would affect her ability to work for more than a year. R. 538, 542. Dr. Cottrell stated that Malone was prescribed MS-Contin and Percocet for pain management. R. 538.

         B. Migraines

         Malone has a history of migraines dating back to her slip-and-fall incident on June 6, 2000, when she lost consciousness and suffered a seizure. R. 295. The following day, Malone was evaluated by Dr. James Otis for severe headaches and seizure. R. 288. An EEG revealed no abnormalities. R. 288.

         On September 14, 2012, Malone sought treatment from Dr. Ostrander, reporting headaches that were "under moderately acceptable control" with Tylenol with codeine. R. 455. However, when Malone was evaluated by Social Worker Judith Bello at Boston Medical Center two weeks later, Malone reported headaches and rated the intensity of her pain as eight out of ten. R. 500.

         On October 4, 2012, Malone sought urgent care from Dr. Jordana Meyerson and reported "a headache that is not alleviated by Tylenol with codeine." R. 4 69.

         On November 14, 2012, Malone sought psychological treatment at Boston Medical Center and noted head pain of an eight out of ten on the pain scale. R. 424. Malone reported that her pain medication had recently been changed from Tylenol with codeine to codeine. R. 425. During Malone's next psychotherapy appointment on December 19, 2012, Malone reported "intense migraines" at a severity of ten out of ten. R. 464-65.

         On January 9, 2013, during a therapy appointment with Psychotherapist Freeman, Malone reported constant head pain at a severity of four out of ten. R. 417.

         On February 25, 2013, as described above, Malone reported a headache to Dr. Ostrander. R. 429-30. Malone was diagnosed with Chronic Pain Syndrome and prescribed Fentanyl pain patches. R. 431.

         C. Arthritis

         On December 15, 2004, Malone sought treatment for difficulty straightening her finger to full extension. R. 305. Dr. Andrew Stein opined that she had a reflex inhibition stemming from residual pain from a past laceration. R. 305. On June 22, 2005, Malone returned for a follow-up appointment, where she reported no pain in her finger but reported "a droop when she tries to fully straighten it." R. 306. Dr. Stein indicated Malone could make a fist without difficulty and maintain full extension for approximately ten seconds, at which point her finger joint begins to "droop to approximately 10 degrees." R. 306. Dr. Stein indicated that Malone had a partial EDC tendon injury, but that with time and exercise it was possible she would hopefully be able to "maintain the long finger in full extension." R. 306.

         On June 12, 2007, Dr. Stein diagnosed Malone with chronic partial EDC tendon laceration and performed a delayed primary repair of the EDC tendon. R. 313. A follow-up appointment with Dr. Stein on July 9, 2007 revealed the finger was "well healed." R. 315. A "slight PIP lag" was identified and exercises recommended. R. 315.

         On August 22, 2007, Malone was again seen by Dr. Stein, with increased functioning in her finger and no complaints of pain. R. 317. However, Dr. Stein noted that Malone "still is not satisfied with the PIP extension." R. 317.

         II. Mental ...


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