United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO
AFFIRM THE DECISION OF THE COMMISSIONER (DKT. NOS. 17 &
KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
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.
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). 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).
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). 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).
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).
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.).
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.).
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).
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
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).
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).
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.).
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.).
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).
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).
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).
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).
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 . . . ."
Carpal Tunnel Syndrome ("CTS")
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).
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).
Consultative Examination and State Agency Evaluations
Kautilya Puri, M.D.
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).
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
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.) 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
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.).
Malin Weeratne, M.D.
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).
Lynne Charland, M.S./C.C.C.-S.L.P.
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).
Birendra Sinha, M.D.
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).