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Glass v. Colvin

United States District Court, D. Massachusetts

March 23, 2017

ROBERT GLASS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER (DOCKET ENTRY # 22); PLAINTTIFF'S MOTION TO REVERSE OR REMAND THE DECISION OF THE COMMISSIONER (DOCKET ENTRY # 17)

          MARIANNE B. BOWLER, United States Magistrate Judge

         Pending before this court are cross motions by the parties, plaintiff Robert Glass (“plaintiff”) and defendant Carolyn W. Colvin (“Commissioner”), Acting Commissioner of the Social Security Administration. (Docket Entry # 22). Plaintiff seeks to reverse or remand the Commissioner's final decision denying him disability benefits. (Docket Entry # 17). The Commissioner moves for an order to affirm the final decision pursuant to 42 U.S.C. § 405(g). (Docket Entry # 22). After conducting a hearing on January 19, 2017, this court took the motions (Docket Entry ## 17 & 22) under advisement.

         PROCEDURAL HISTORY

         On July 16, 2012, plaintiff filed a Title XVI application for supplemental security income (“SSI”) alleging that his disability began on August 1, 2010 due to lumbar spinal injury, cervical spinal injury, bone spurs and sleep apnea. (Docket Entry # 11, Tr. 180). He identified additional conditions in an adult disability report two months later including plantar fasciitis, arthritis, sleep apnea, depression, anxiety, sciatic nerve pain and right arm tendonitis. (Docket Entry # 11, Tr. 230).

         On December 17, 2012, the Social Security Administration (“SSA”) denied plaintiff's claim. (Docket Entry # 11, Tr. 76-91, 115-117). The claim was denied again on reconsideration on October 15, 2013. (Docket Entry # 11, Tr. 89, 110). On December 9, 2013, plaintiff filed a request for a hearing. (Docket Entry # 11, Tr. 121-123). In his brief to the ALJ, plaintiff identified various impairments including plantar fasciitis. (Docket Entry # 11, Tr. 172). A hearing was held on November 19, 2014 before an Administrative Law Judge (“ALJ”). (Docket Entry # 11, Tr. 34). The ALJ denied plaintiff's claim on January 13, 2015. (Docket Entry # 11, Tr. 11-33).

         On April 1, 2016, the appeals council denied plaintiff's request for review thereby affirming the ALJ's decision as the final decision. (Docket Entry # 11, Tr. 1-6). Plaintiff filed this action against the Commissioner pursuant to 42 U.S.C. § 1383(c)(3).

         FACTUAL BACKGROUND

         I. Plaintiff's Background and Medical History

         Plaintiff was 47 years old on the date the application was filed. (Docket Entry # 11, Tr. 26). He had at least a high school education. (Docket Entry # 11, Tr. 26). On October 14, 2009, Stanley Leitzes, M.D. (“Dr. Leitzes”) provided plaintiff with an injection of Depo-Medrol for plantar fasciitis. (Docket Entry # 11, Tr. 312). Dr. Leitzes' notes state that plaintiff sought “some alteration of his work day being on his feet” and that Dr. Leitzes “will alter that from an 8 to a 6 hour work day at this time and ascertain if that will help.” (Docket Entry # II, Tr. 313). On December 21, 2009, plaintiff reported that his plantar fasciitis continued to cause “discomfort during the day.”[1] (Docket Entry # 11, Tr. 310). On August 5, 2010, Arthur Carriere, M.D. (“Dr. Carriere”) administered a steroid injection into plaintiff's left heel and suggested another injection on October 5, 2010. (Docket Entry # 11, Tr. 412-414).

         On February 15, 2011, an MRI revealed disc osteophyte complexes at ¶ 3-4, C4-5, and C5-6, with neural foraminal stenosis at each level, and cervical kyphosis at ¶ 6-7 with a large anterior osteophyte. (Docket Entry # 11, Tr. 404-405). Plaintiff completed a depression assessment on March 10, 2011 and reported having little interest or pleasure in doing things, feeling down, depression, sleeping issues, fatigue, an inability to concentrate and a feeling that he was a failure “nearly every day.” (Docket Entry # 11, Tr. 402).

         On March 22, 2011, Dr. Carriere injected plaintiff's left foot with Depo-Medrol and Xylocaine. (Docket Entry # 11, Tr. 315). Dr. Carriere's notes reflect that plaintiff had a “good response” to the prior “cortisone injection.” (Docket Entry # 11, Tr. 315).

         On August 4, 2011, plaintiff underwent a physical examination with Lucia Dias-Hoff, M.D. (“Dr. Dias-Hoff”) on behalf of the University of Massachusetts Disability Evaluation Services (“UMDES”). (Docket Entry # 11, Tr. 320). During that exam, he reported pain in his neck, back and left foot. (Docket Entry # 11, Tr. 320). Additionally, plaintiff disclosed that when his neck is “very painful[, ] he has to lie down” and pain bilaterally radiates down his arms. (Docket Entry # 11, Tr. 320). Dr. Dias-Hoff noted plaintiff had decreased range of motion in the cervical spine, tenderness in the left heel and atrophy in the left leg and noted that “[h]e seemed to have low back pain when sitting on the exam table.” (Docket Entry # 11, Tr. 321).

         On September 1, 2011, plaintiff received facet injections in his neck with steroids and sterile water at ¶ 3-4, C4-5 and C5-6. (Docket Entry # 11, Tr. 486). On October 27, 2011, plaintiff reported neck pain radiating through his left arm, foot pain and difficulty sleeping to Janet Encarnacion, M.D. (“Dr. Encarnacion”), his primary care doctor. (Docket Entry # 11, Tr. 391). On November 21, 2011, plaintiff underwent medial branch block injections of Depo-Medrol and 1/2% bupivacaine at ¶ 3, C4, C5 and C6. (Docket Entry # 11, Tr. 484). On January 5, 2012, plaintiff still complained of neck pain and stated that he was experiencing numbness in his hands during a visit with Dr. Encarnacion. (Docket Entry # 11, Tr. 386).

         On February 1, 2012, Mark Chernin, M.D. (“Dr. Chernin”) administered injections to plaintiff's neck at ¶ 3-4, C4-5 and C5-6. (Docket Entry # 11, Tr. 480). On May 29, 2012, plaintiff reported that his neck pain persisted and he was given cervical epidural steroid injections on May 29, 2012. (Docket Entry # 11, Tr. 478).

         On July 16, 2012, during a visit to Scott Aronson, D.P.M. (“Dr. Aronson”), a podiatrist, plaintiff complained of left heel pain that he reported had been present for years. (Docket Entry # 11, Tr. 234, 334). He claimed his pain was an eight on a ten-point scale, that he stood at work and that he had received cortisone injections, the most recent being six months prior. (Docket Entry # 11, Tr. 334). Upon examination, Dr. Aronson assessed plaintiff as experiencing plantar faciitis in the left foot. (Docket Entry # 11, Tr. 334). Dr. Aronson identified a number of treatment options and recommended that plaintiff wear soft, over-the-counter “insoles, heel cups and cushions for use in [a] supportive shoe.” (Docket Entry # 11, Tr. 335). Dr. Aronson also discussed the option of custom molded foot orthotics and provided plaintiff with written instructions regarding plantar faciitis including stretching exercises for his calf muscle and hamstring twice a day. (Docket Entry # 11, Tr. 335). In addition, Dr. Aronson prescribed a night splint for plaintiff's left foot to use on a daily basis. He also “[d]iscussed the fact that conservative care options usually decrease symptoms 80-90% in 6 months.” (Docket Entry # 11, Tr. 335).

         On October 2, 2012, during another a visit to Dr. Aronson, plaintiff again reported left heel plain and described the pain as an eight on a ten-point scale. (Docket Entry # 11, Tr. 336). Plaintiff reported that a July 16, 2012 injection “helped a little” and that he had “not had time to get a night splint.” (Docket Entry # 11, Tr. 336). Plaintiff requested “a cortisone injection” and Dr. Aronson administered an injection of Lidocaine and Depo-Medrol. (Docket Entry # 11, Tr. 336). Dr. Aronson's notes show “no improvement” of the plantar fasciitis. (Docket Entry # 11, Tr. 336). He “recommended continued use of current treatment and at-home instructions for the next 3 months time at which point this condition should fully subside.” (Docket Entry # 11, Tr. 336).

         On October 16 and November 7, 2012, plaintiff underwent cervical epidural steroid injections by Ashraf Farid, M.D. (“Dr. Farid”) at Brockton Hospital. (Docket Entry # 11, Tr. 473, 476). On November 15, 2012, state agency physician Theresa Kriston, M.D. (“Dr. Kriston”) reviewed the record including plaintiff's complaints of plantar fasciitis. (Docket Entry # 11, Tr. 84-86). She concluded that plaintiff was capable of occasionally lifting and/or carrying up to 20 pounds; frequently lifting and/or carrying up to ten pounds; standing for four hours in a workday; sitting for about six hours in a work day; changing position every five minutes; and occasionally pushing and pulling due to left “plantar fasciitis/heel pain.” (Docket Entry # 11, Tr. 84-86). State agency physician Phyllis Sandell, M.D. (“Dr. Sandell”) reiterated these findings in April 3, 2013. (Docket Entry # 11, Tr. 104-106).

         On December 6, 2012, plaintiff underwent a consultative examination with John Hennessy, Ph.D. (“Dr. Hennessy”) and reported depression secondary to his medical conditions. (Docket Entry # 11, Tr. 341-345). During that visit, plaintiff reported poor concentration, difficulty sleeping, low energy and decreased motivation. (Docket Entry # 11, Tr. 341-45). Additionally, Dr. Hennessy noted that plaintiff's “coping ability indicates he gets easily overwhelmed.” (Docket Entry # 11, Tr. 344).

         On January 24, 2013, Dr. Encarnacion expressed difficulty treating plaintiff's plantar fasciitis because plaintiff was unable to afford splints not covered by insurance. (Docket Entry # 11, Tr. 358). She described plaintiff's foot pain as “stable.” (Docket Entry # 11, Tr. 358). During a February 14, 2013 medication check with Dr. Encarnacion, she urged plaintiff to see a psychiatric counselor “for depression/anxiety.” (Docket Entry # 11, Tr. 357). Dr. Encarnacion's notes reflect that plaintiff was “currently undergoing treatment by podiatry” for his plantar fasciitis. (Docket Entry # 11, Tr. 356). On March 14, 2013, plaintiff reported right elbow and forearm pain, which reached ten on a ten-point scale with movement. (Docket Entry # 11, Tr. 354). At that appointment, the physician assistant assessed that plaintiff suffered from right lateral epicondylitis. (Docket Entry # 11, Tr. 355).

         In March 2013, plaintiff's urine test was positive for cocaine. (Docket Entry # 11, Tr. 456). In April 2013, plaintiff went on vacation to Colorado. (Docket Entry # 11, Tr. 461). On May 28, 2013, plaintiff saw Molly Ciri, Ph.D. (“Dr. Ciri”). (Docket Entry # 11, Tr. 437). Dr. Ciri's notes reflect that plaintiff's “[a]ffect [was] marked by significant anxiety and depression” and he was diagnosed with a: (1) “Mood Disorder Due to Head, Neck and Back Injury with a Major Depressive Like Episode”; (2) “Generalized Anxiety Disorder”; and (3) “Panic Disorder with Agoraphobia.” (Docket Entry # 11, Tr. 439). Dr. Ciri determined that plaintiff had a GAF score of 45. (Docket Entry # 11, Tr. 439). Dr. Ciri's notes state that:

Robert Glass is a 48-year-old man who is presenting evidence of memory loss and difficulties with remembering and maintaining previous acquired skills . . . Robert was unable to remember three words, spell the word “world” backwards, or count by Serial Threes . . . He is presenting with significant depression and anxiety as well as with apparent memory deficits. It is apparent that he would have difficulties carrying out physical tasks that require him to sit, stand, [or] walk . . . His ability to remember and carry out instructions appears to be compromised by memory deficits. Robert's ability to respond appropriately to supervision, coworkers, and work pressures in a work setting is negatively impacted by his current emotional status.

(Docket Entry # 11, Tr. 440).

         In July 2013, plaintiff went on vacation to Las Vegas. (Docket Entry # 11, Tr. 456). At a July 30, 2013 visit with Dr. Farid, plaintiff again complained of left foot pain. Plaintiff reported that the pain medications “help[ed] relieve his pain” and improved his mobility and activity level. Dr Farid's impression was that plaintiff had “cervical facet joint pain” and “left foot plantar fasciitis.” (Docket Entry # 11, Tr. 456).

         During a subsequent medication management visit at a pain management clinic at Brockton Hospital with Schahid A. Rawoof, M.D. (“Dr. Rawoof”), Dr. Rawoof noted three “documented episodes of inappropriate urine specimens” and plaintiff's “repeated inability to bring his medications for [a] pill count.” (Docket Entry # 11, Tr. 457).[2] Dr. Rawoof's outpatient report listed plaintiff's “pain-related considerations, ” including plantar fasciitis. (Docket Entry # 11, Tr. 457).

         On August 9, 2013, plaintiff reported that the pain in his heel was increasing. (Docket Entry # 11, Tr. 453). Dr. Rawoof opined that “ongoing functional benefit with opioids though efficacy appears to be waning, likely due to tolerance.” (Docket Entry # 11, Tr. 453). At that appointment, plaintiff identified “rest” and “lying down” as ameliorative activities and alternative medications, such as Methadone, Morphine Sulfate and Fentanyl, were discussed. (Docket Entry # 11, Tr. 453-454). Dr. Rawoof reported he would consider this in the fall as plaintiff was currently doing a lot of driving. (Docket Entry # 11, Tr. 453). Plaintiff reported that he had been helping a friend with some painting and, on occasion, “takes more medication than prescribed” which is “generally associated with overactivity . . ..” (Docket Entry # 11, Tr. 453).

         On June 3, 2014, Dr. Encarnacion noted that plaintiff “has chronic back pain with degenerative disk disease, chronic pain from lateral epicondylitis and plantar fasciitis.” (Docket Entry # 11, Tr. 498). The main reason for the visit was “to fill out disability forms.” (Docket Entry # 11, Tr. 498). At that appointment, plaintiff reported depression and anxiety were preventing him from working. (Docket Entry # 11, Tr. 498).

         On October 16, 2014, for purposes of the Emergency Aid to Elderly, Disabled, and Children Program, UMDES found that plaintiff was suffering from a disability that was expected to last through September 16, 2015. (Docket Entry # 11, Tr. 511). On October 22, 2014, during a visit to May Louie, M.D. plaintiff reported “constant paresthesia in all ten fingers” and an EMG revealed “moderate left median mononeuropathy at/or distal to the wrist.” (Docket Entry # 11, Tr. 503).

         On November 17, 2014, during a visit to Dr. Encarnacion, plaintiff complained of back, neck and right knee pain. (Docket Entry # 11, Tr. 512). Dr. Encarnacion's notes from that appointment reflect that plaintiff was suffering from tenderness in the cervical region and decreased range of motion. (Docket Entry # 11, Tr. 513). On November 24, 2014, neck X-rays reported by Raghu Amaravadi, M.D. noted “degenerative disc space narrowing at ¶ 6-7 with anterior osteophyte present . . . [and] neural foraminal stenosis at ¶ 3-4 and C4-5 resulting from facet arthropathy.” (Docket Entry # 11, Tr. 517). The radiology report additionally states, “There is no evidence of fracture or subluxation.” (Docket Entry # 11, Tr. 517).

         II. ALJ Hearing

         During the hearing before the ALJ on November 19, 2014, plaintiff and a vocational expert testified. Plaintiff testified that his left foot had plantar fasciitis, that his foot hurt from his heel to his knee and, in response to the ALJ's question, that plaintiff wore a boot and did stretches for it. (Docket Entry # 11, Tr. 44-45). Plaintiff stated that his girlfriend went shopping for groceries for him and did the laundry, the housework and the cooking. (Docket Entry # 11, Tr. 49-50). His girlfriend also did the driving, according to plaintiff's testimony. (Docket Entry # 11, Tr. 51). Responding to a question by his attorney about the injections in his heel for plantar fasciitis, plaintiff testified that the injections made the heel hurt. (Docket Entry # 22, p. 57).

         The vocational expert detailed plaintiff's past work history as a carpenter (DOT 860.381-022), a “medium skilled occupation” that had a specific vocational preparation (“SVP”) of seven; a siding installer (DOT 863.684-014), a medium semiskilled position with an SVP of four; and a hotel maintenance worker (DOT 323.687-018), a position requiring “heavy, unskilled” work. (Docket Entry # 11, Tr. 62-63). The vocational expert stated that plaintiff lacked transferable skills because any skills acquired during these occupations “would all be occupationally specific.” (Docket Entry # 11, Tr. 63). Based on limitations suggested by the ALJ, the vocational expert stated that plaintiff was incapable of performing his past relevant work. (Docket Entry # 11, Tr. 65).

         The vocational expert also testified that plaintiff could perform other work as a “shipping checker, ” which she described as a sedentary and unskilled work with an SVP of two. (Docket Entry # 11, Tr. 66). She described the shipping checker job as writing and keyboarding. (Docket Entry # 11, Tr. 69). The Dictionary of Occupational Titles (“DOT”) section applicable to a shipping checker defines the occupation as entailing light work with an SVP of three. See DOT 222.687-030, 1991 WL 671797 (1991). The DOT cited by the vocational expert is for an “addresser, ” which consists of light work such as sorting mail and addressing envelopes, packages and other items by hand or a typewriter. See DOT 209.587-010, 1991 WL 671797 (1991). Thus, although referring to the occupation as a “shipping checker, ” the vocational expert described a job consistent with an addresser. The ALJ cited the correct DOT in his opinion and correctly classified the occupation as sedentary and unskilled with an SVP of two, albeit referring to “the job as a shipping checker.”[3] (Docket Entry # 11, Tr. 27). Handling and ...


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