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Nicola v. Colvin

United States District Court, D. Massachusetts

September 11, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant



         Before the court is an action for judicial review of a final decision by the Acting Commissioner of the Social Security Administration ("Commissioner") regarding an individual's entitlement to Social Security Disability Insurance Benefits ("DIB") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiff Colleen Nicola ("Plaintiff) asserts that the Commissioner's decision denying her such benefits - memorialized in a November 21, 2014 decision of an administrative law judge ("ALJ") - is not supported by substantial evidence. Specifically, Plaintiff alleges that the ALJ erred by failing to: (1) find that her mental impairments and carpel tunnel syndrome ("CTS") were not severe impairments; (2) fully credit her hearing testimony; (3) afford the independent vocational expert's ("VE's") answer to a hypothetical question appropriate weight; and (4) afford her treating physician's opinion controlling weight. Plaintiff has moved for judgment on the pleadings (Dkt. No. 17), while the Commissioner has moved to affirm (Dkt. No. 18).

         The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the following reasons, the court will ALLOW the Commissioner's motion to affirm and DENY Plaintiffs motion for judgment on the pleadings.


         The thirty-seven year old Plaintiff applied for DIB on February 5, 2013 alleging an onset of disability on November 14, 2012 due to injuries that she sustained in a motor vehicle accident on that date (Administrative Record "A.R." at 17, 195). In her application for DIB, Plaintiff alleged that she was disabled due to possible brain injury, '"foggy head, '" loss of balance, stuttering, depression and anxiety, and arthritis in her back (id. at 93). The application was denied initially and upon reconsideration (id. at 13). Following a hearing on October 16, 2014, the ALJ issued his decision on November 21, 2014 finding Plaintiff was not disabled before June 24, 2014, but became disabled on that date and remained disabled thereafter (id. at 13). On January 29, 2016, the Appeals Council denied review of the ALJ's decision (id. at 5), and this appeal followed.


         In support of the disabling conditions listed in Plaintiffs application for DIB benefits, she presented the ALJ with extensive medical evidence spanning the period from 2010 through 2014. Because Plaintiff challenges the ALJ's denial of benefits from November 14, 2012 to June 24, 2014, the court focuses on the records of Plaintiff s condition relevant to that period.

         A. Physical Condition

         1. Treatment Providers

         In the aftermath of the November 14, 2012 motor vehicle accident, Plaintiff went to the Berkshire Medical Center ("BMC") emergency room where she was observed talking with a friend and eating a large grinder while she waited for treatment (id. at 430). She complained of pain in her head and neck and nausea (id. at 423, 430). Plaintiff was alert and oriented x 4 (id. at 423). The examiners found no evidence of head trauma (id. at 423). A CT scan of her head revealed a small hypodensity in the left parieto-occipital region suggestive of chronic encephalomalacia (id. at 370).[1] She experienced pain and decreased/limited range of motion in her neck (id. at 423). The cervical spine CT scan showed no change since July 6, 2010 and no evidence of acute traumatic lesion (id. at 363). The emergency department physician concluded that Plaintiff had suffered a concussion without loss of consciousness and a strained neck (id. at 424). Plaintiff left the emergency department with a cervical collar, a steady gait, and no additional complaints (id. at 431, 433).

         a. Neurologic

         On the day following the accident, Plaintiff visited Marjorie Y. DeVries, M.D., her primary care provider at Family Practice Associates, LLP, complaining of neck pain and persistent headaches, nausea, and light sensitivity (id. at 364). Plaintiff thought she lost consciousness either before or after the collision (id.). Dr. DeVries noted that Plaintiffs speech was "somewhat slurred and dysarthric" (id. at 366).[2] Plaintiffs neurologic assessment was normal with the exception of "very mild right finger to nose deficit" and "[r]eflexes [of] 2 in the upper extremities and extremely hyperreflexive ... in the lower extremities with a few beats of clonus at the ankles" (id). Dr. DeVries ordered brain MRIs with and without contrast (id. at 367).

         On November 27, 2012, Plaintiff underwent the MRIs (id. at 413, 415). The images without contrast showed a focal encephalomalacia in the left parieto-occipital region similar to the one observed on the CT scan taken at BMC after the accident (id. at 413). The MRI with contrast suggested chronic encephalomalacia without evidence of arteriovenous malformation (id. at 415).

         Dr. DeVries referred Plaintiff to Thomas Kwiatkowski, M.D. for a neurologic assessment due to Plaintiffs reported memory loss, stuttering, and more frequent headaches (id. at 359). On December 5, 2012, Dr. Kwiatkowski reported a total score of 36/38 on a short mental status examination (id. at 360). Plaintiff was alert, oriented, appropriate, and a "fair historian" (id.). Her motor and sensory skills were normal as were her coordination and gait (id.). Dr. Kwiatkowski opined that she probably suffered a mild concussion as a result of the accident, but did not have a seizure (id.). He attributed "some" of her speech and memory difficulties to her psychiatric "comorbidities, " specifically depression, anxiety, and ADD (id.).

         Plaintiff underwent an EEG on December 26, 2012 (id. at 453). Alec S. Kloman, M.D. did not observe any focal or diffuse electrophysiologic abnormalities and did not identify epileptiform discharges, but noted that a clinical diagnosis of seizure or epilepsy could not be excluded (id.).

         On January 11, 2013, Dr. DeVries reported that Plaintiff complained of a speech abnormality (id. at 378). Specifically, Plaintiff described knowing what she wanted to say, but having "a great deal of trouble forming the words and continu[ing] to stutter, " although Dr. DeVries noted that Plaintiffs speech had improved since her last visit (id. at 378, 380). Plaintiff reported that her headaches and neck pain were not exacerbated by the accident, but she complained about poor balance (id. at 378-79). Dr. DeVries wanted another neurologist's opinion (id. at 380).

         Plaintiff visited the BMC emergency room on January 26, 2013 complaining of a headache, nausea, and dizziness (id. at 390, 399). She was oriented x 4, her gait was steady, and she displayed normal motor strength, senses, finger-to-nose tests, and rapid alternating movements (id. at 390, 400). She did not exhibit signs of pronator's drift or Rhomberg (id. at 400). CT scans of Plaintiff s brain and sinuses showed "[n]o evidence of an acute intracranial abnormality" (id. at 401, 408-09). The irregularity in her left occipital lobe had not changed since the prior examinations (id. at 408). Plaintiff was diagnosed with an inner ear inflammation and prescribed Meclizine (id. at 402).

         On February 12, 2013, Dr. DeVries noted that Plaintiff was "clearly different neurologically than she was before the [November] accident" and had not yet obtained the second neurologist's opinion (id. at 807). She still stuttered and her speech was dysarthric, but her hyperreflexia (increased reflexes) had improved since the last visit and clonus was absent (id. at 808-09). The records of Plaintiff s March 29, 2013 visit to Dr. DeVries showed that her dysarthria, headaches, dizziness, and poor concentration persisted (id. at 804-05).

         Veronica Vanderhorst, M.D. conducted a neurological assessment of Plaintiff on April 22, 2013 (id. at 513). Plaintiff was alert, attentive, and oriented (id. at 515). Her memory was intact (id.). The results of the examination of Plaintiff s deep tendon reflexes were normal except she had "diffusely and symmetrically brisk reflexes, " which Dr. Vanderhorst attributed to her "overall increased level of vigilance" (id. at 515-16). Plaintiff did well on a verbal fluency test (id. at 515). Dr. Vanderhorst reported that Plaintiffs language was "formally fluent and intact without problems with comprehension, naming and reading" (id). She tended to stutter at times, particularly when discussing "current ongoing problems, " but she did not stutter during most of the exam (id.). Dr. Vanderhorst opined that because the area of encephalomalacia was "quite remote from the area that [controls] motor components of speech, " Plaintiffs stuttering was "most likely a functional phenomenon" (id. at 516-17). According to Dr. Vanderhorst, it "may be a way for [Plaintiff to tell] the world that she is not doing well" (id. at 517). Dr. Vanderhorst posited that the motor vehicle accident was caused by Plaintiff falling asleep, and recommended that Plaintiff undergo a sleep study (id. at 516, 517).

         On April 30, 2013, Plaintiff told Dr. DeVries that she felt "slightly better" (id. at 799). Dr. DeVries noted that Plaintiffs stutter had improved and responses to questions came faster (id. at 800). Dr. DeVries recommended a sleep study to determine whether Plaintiff suffered from sleep apnea (id.). On July 9, 2013, Dr. DeVries noted that Plaintiffs mood seemed "somewhat improved, " her headaches were less frequent, and her neurologic abnormalities, including stuttering, were "slightly better" (id. at 792). Dr. DeVries indicated that Plaintiff could resume driving and "possibly return to work" after she underwent treatment for sleep apnea (id.).

         Dr. Vanderhorst reevaluated Plaintiffs neurological condition on April 11, 2014 (id. at 851). She noted improvements in Plaintiffs affect and ability to make eye contact (id. at 852). Plaintiffs stuttering had "improved dramatically" since her first visit (id.). She stuttered "a couple of times" at the beginning of the visit and did not stutter later (id. at 851, 852). Dr. Vanderhorst opined that Plaintiffs stuttering was related to her depression and history of domestic abuse and was further triggered by stressors (id. at 852). Dr. Vanderhorst explained to Plaintiff that her stuttering would continue to improve as she addressed her depression (id.).

         Dr. DeVries' report of April 25, 2014 notes that Plaintiff struck the right frontal area of her head on the ground when she slipped and fell on ice on April 16, 2014 (id. at 869, 872). Plaintiff complained of persistent headaches and the return of some of her previous neurologic symptoms - stuttering, problems with word retrieval, and difficulty concentrating - which had improved before she fell (id. at 872, 874). Dr. DeVries opined that Plaintiff would return to her neurological "baseline" in three to four weeks (id. at 874).

         b. Neck and back

         Joshua Yurfest, M.D. treated Plaintiffs neck and back. He diagnosed cervical radiculitis, intervertebral disc injury, myofascial pain, somatic dysfunction, and lateral epicondylitis (see, e.g. Id. at 787, 888, 890).

         Plaintiffs neck pain radiated into her arms causing weakness (id. at 503, 887). Plaintiff received trigger point injections of lidocaine in August and December, 2012, February, May, July, September, and November 2013, and March and June 2014 (id. at 500, 504, 781, 783, 787, 779, 888, 890, 892).

         In December 2012, Plaintiff reported to Dr. Yurfest that medications relieved her neck pain, which she assessed as 3 on a scale of 10 (id. at 786-87). Plaintiff visited BMC's emergency department on May 20, 2013 complaining of fever and fatigue after she was scratched and bitten by a cat (id. at 796). The record states "[n]o neck pain" and normal range of motion (id. at 796, 797). Dr. Yurfest's progress note of July 24, 2013 indicates that Plaintiff complained about the reduced mobility of her neck and the side effects of her pain medication (id. at 780). On September 24, 2013, Plaintiff reported that her neck pain had decreased, but the medication caused side effects (id. at 778). Dr. Yurfest's record of Plaintiff s November 21, 2013 visit indicates that Plaintiffs neck pain had improved, but she was still suffering side effects from the medication (id. at 887). Plaintiff complained of moderate bilateral lower back pain (3-4 on a scale of 10) during the November 2013 visit (id). On March 31, 2014, Plaintiff stated that the medication had relieved her neck and arm pain, the pain in her lower back had improved, but the pain in her upper back pain was more severe (id. at 889, 890). Plaintiff reported tension in her neck and upper back during a visit to Dr. DeVries on April 25, 2014 (id. at 872-74). On June 2, 2014, Plaintiff complained to Dr. Yurfest of moderate pain in her upper and lower back and neck due to a fall, but reported that medication relieved her neck pain without side effects (id. at 891, 892). She underwent osteopathic manipulation of her neck and back on March 31 and June 2, 2014 (id. at 890, 892).

         On June 5, 2014, Stephen D. Tosk, D.C. of Berkshire Chiropractic Services, P.C. noted Plaintiffs diagnosis: "myofascial pain syndrome; chronic cervical, lumbar and thoracic strain/sprain; cephalgia" (id. at 896). She was treated five times between June 5 and June 16, 2014 without change in her condition (id.). According to the note, "[s]he apparently self-discharged . . . ." (id.).

         c. Carpal Tunnel Syndrome ("CTS")

         Dr. Yurfest and Berkshire Hand Therapy, P.C. ("BHT") treated Plaintiffs bilateral CTS (id. at 579). Dr. Yurfest's record of May 2013 indicates Plaintiffs hand numbness had improved due to therapy (id. at 783). On July 24, 2013, however, Dr. Yurfest noted that Plaintiffs hand numbness had increased (id. at 780-81). He prescribed bilateral hand splints and therapy (id. at 580, 581, 823). On July 30, 2013, Plaintiff told the BHT therapist, "'[T]he splints are a savior'" (id. at 585). In August 2013, Plaintiff reported less pain and the ability to pick up and handle water bottles and glasses and grasp and hold small objects (id. at 592). However, she could not lift heavy objects (id.). BHT's progress report of October 21, 2013 noted that pain and paresthesias had improved, but were not resolved, and range of motion and strength were improved (id. at 824). In November 2013, Plaintiff told Dr. Yurfest that the numbness had decreased and her hand strength had improved, but she continued to feel pain (id. at 887). Plaintiff showed fifty-percent improvement in March 2014 (id. at 889-90). However, Plaintiffs CTS was more severe in June 2014 when she complained of tingling and numbness after she moved "a lot" of boxes (id. at 891-92). Nerve conduction and EMG studies of September 24, 2014 showed severe nerve compression neuropathy of both wrists (id. at 901).

         d. Sleep Apnea

         In June 2013, Plaintiff was diagnosed with mild obstructive sleep apnea syndrome and was prescribed a CPAP machine (id. at 774, 791). In April 2014, Plaintiff reported that the CPAP machine helped her sleep and she felt more alert during the day (id. at 851, 872, 875).

         2. Consultative Examination and State Agency Evaluations

         a. Kautilya Puri, M.D.

         The Division of Disability Determination referred Plaintiff to Kautilya Puri, M.D. for an internal medicine consultative examination, which was conducted on December 4, 2013 (id. at 816). Plaintiff reported that she could do some cooking, cleaning, and shopping and was able to shower and bathe, dress, watch TV, and "go out" (id. at 817).

         Dr. Puri noted that Plaintiff was obese (id. at 817). Her gait and stance were normal and she walked without an assistive device (id.). Dr. Puri observed Plaintiff stand on her heels and toes, get on and off the examination table without assistance, and rise from a chair without difficulty (id.). Her ability to squat was mildly decreased (id.).

         An examination of Plaintiff s cervical spine showed "decreased flexion and extension, lateral flexion 35 degrees, and rotary movement 65 degrees with local tenderness" (id. at 818). Her thoracic spine was normal (id). Her lumbar spine showed "decreased flexion and extension 70 degrees, and lateral and rotary movements 10 degrees with mild local tenderness" (id.). She had full bilateral range of motion of her shoulders, elbows, forearms, wrists, hips, knees, and ankles (id.). There was mild tenderness in Plaintiffs ankle and knee with negative Tinel's sign (id.)[3] Plaintiffs strength in her upper and lower extremities was 5/5 bilaterally, her hand and finger dexterity were intact, and her grip strength was 5/5 bilaterally (id.).

         Dr. Puri determined that Plaintiff did not have any "objective limitations to communication or fine motor/gross motor activities" (id. at 819). He recommended that she not be in an environment that exacerbated her asthma (id.). He further recommended restricting repetitive movements and working from heights and with heavy machinery (id.). Dr. Puri indicated that Plaintiff should not be allowed to drive (id.).

         b. K. Malin Weeratne, M.D.

         On April 10, 2013, based on an examination of Plaintiff s medical records, K. Malin Weeratne, M.D., a state agency examiner, determined that she was not disabled because she did not have a physical impairment that was expected to last twelve months (id. at 103, 108).

         c. Lynne Charland, M.S./C.C.C.-S.L.P.

         On October 17, 2013, Lynne Charland, a speech-language pathologist who reviewed Plaintiffs treatment records, concluded that although Plaintiff had communicative limitations, she was "capable of producing speech that can be heard, understood or sustained" (id. at 124). The reports indicated that Plaintiff was intelligible, notwithstanding her occasional stuttering (id.). Ms. Charland indicated that Plaintiff would be most successful at jobs that did not require her to use the telephone or to deal with the public in a fast-paced environment (id.; see also Id. at 105).

         d. Birendra Sinha, M.D.

         Birendra Sinha, M.D., a state agency examiner, conducted a medical assessment of Plaintiffs condition on December 11, 2013 (id. at 127). Dr. Sinha determined that Plaintiff could occasionally lift or carry 20 pounds and frequently lift 10 pounds, stand and/or walk with normal breaks for about six hours in an eight hour work day, sit for about six hours in an eight hour work day, and push and/or pull without limitation (id. at 124-25). Dr. Sinha further opined that Plaintiff was able to frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but could never climb ladders, ropes, or scaffolds (id. at 125). According to Dr. Sinha, Plaintiffs gross manipulation ability with both hands was limited and she should avoid repetitive movements due to CTS (id. at 125-26). Dr. Sinha concluded that Plaintiff must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation, and all hazards, such as machinery and heights (id. at 126).

         B. Men ...

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