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Gonzalez v. Berryhill

United States District Court, D. Massachusetts

February 2, 2018

NANCY A. BERRYHILL, [1] in her official capacity as Acting Commissioner of the Social Security Administration, Defendant.


          David H. Hennessy United States Magistrate Judge.

         By Order of Reference dated May 16, 2017, pursuant to 28 U.S.C. § 636(b)(1)(B), District Judge Hillman referred this Social Security appeal to me for a Report and Recommendation. Docket #25. Plaintiff Miguel Gonzalez has moved to reverse the decision of Defendant, the Commissioner of the Social Security Administration (“the Commissioner”), denying Gonzalez Supplemental Security Income (“SSI”). Docket #17. In the alternative, Gonzalez asks that the Court remand his application for SSI benefits to an Administrative Law Judge (an “ALJ”). Id. The Commissioner has cross-moved to affirm the Commissioner's denial of Gonzalez's application. Docket #22.

         Having considered the parties' submissions, for the reasons that follow, I RECOMMEND that Plaintiff's Motion to Remand, Docket #17, be DENIED and that Defendant's Cross-Motion for Order Affirming the Decision of the Commissioner, Docket #22, be ALLOWED.

         I. BACKGROUND

         A. Procedural History

         Gonzalez applied for SSI on March 29, 2013. Tr. 153.[2] He alleged disability due to severed fingers on his right hand caused by an industrial accident, carpal tunnel syndrome in his left hand, and right shoulder and elbow pain. Tr. 332. His application was denied initially and upon reconsideration. Tr. 153, 162. After hearings on August 6, 2014 and February 10, 2015, an ALJ issued a decision on June 26, 2015 finding that Gonzalez was not disabled. Tr. 9-36, 58.

         On August 1, 2016, the Appeals Council denied Gonzalez's request for review, making the ALJ's June 26, 2015 decision final and ripe for judicial review. Tr. 1-4. Having timely pursued and exhausted his administrative remedies before the Commissioner, Gonzalez filed the instant complaint with this Court on September 16, 2016. Docket #1. Gonzalez filed a motion for reversal or remand on December 29, 2016, Docket #17, together with an accompanying memorandum of law, Docket #18. In response, the Commissioner filed a cross-motion to affirm, Docket #22, along with a memorandum of law, Docket #23. Gonzalez has opposed the Commissioner's motion to affirm. Docket #24.

         B. Personal History

         Gonzalez was thirty-five years old when he applied for SSI. See Tr. 153, 328. He last worked in 2001 in carpentry, stopping after suffering an industrial accident. Tr. 68-69. He is a high school graduate. Tr. 333. Gonzalez lives with his wife and two young children. See Tr. 75. He has never had a driver's license and relies on family members for transportation. Tr. 76.

         C. Medical History

         On January 16, 2001, Gonzalez injured his right hand while operating a saw at work. Tr. 68-69. The saw amputated the third, fourth, and fifth fingers of his right hand and injured his right index finger. Tr. 118. Only Gonzalez's fourth and fifth fingers were surgically reattached, and the middle joint of his fourth finger was fused. Tr. 69-70, 118.

         On March 3, 2004, Gonzalez began treatment with his former primary care physician, Dr. Jesus Blanco, and complained of severe pain in his right arm, elbow, and fingers. Tr. 125. Gonzalez reported having previously undergone four reconstructive surgeries on his right hand. Tr. 125. This statement is the only indication in the record of treatment prior to 2004.

         On September 27, 2004, Gonzalez presented at an emergency room with a fractured right fifth finger. Tr. 121. The hospital observed swelling in Gonzalez's right hand and noted evidence of previous trauma to that hand, including “amputation of the middle finger, fusion of the ring PIP and fracture of the index PIP middle phalanx.” See Tr. 118-21. Gonzalez was placed in a short arm cast and prescribed Vicodin. Tr. 118, 121.

         The record indicates that Gonzalez visited Dr. Blanco two other times in 2004 and twice more in 2005. Tr. 123-125. During those appointments, Gonzalez complained of pain and numbness in his right hand. Tr. 123-25. In 2005, Dr. Blanco prescribed Percocet and referred Gonzalez to hand surgeon Dr. James Shenko. Tr. 123.

         On March 14, 2005, Gonzalez began treatment with Dr. Shenko.[3] Tr. 391. In 2007, Dr. Shenko diagnosed Gonzalez with right ulnar neuropathy and performed an ulnar nerve transposition surgery. Tr. 484. On December 4, 2007, Dr. Shenko wrote a letter to Dr. Blanco detailing Gonzalez's condition following the transposition surgery. Tr. 393. Dr. Shenko stated that Gonzalez's “motor strength appears intact along with his sensation. His hand is structurally the same with preserved function.” Tr. 393. Dr. Shenko also noted that Gonzalez was still complaining of pain in his right hand and elbow, but Dr. Shenko noted that “it is unclear what the etiology of [Gonzalez's on]going pain is.” Tr. 393. Dr. Shenko opined that Gonzalez may have sustained neurological damage as a result of his right hand injury or nerve impingement in his neck or shoulder; Dr. Shenko therefore recommended that Gonzalez seek treatment from a pain clinic. Tr. 393. Dr. Shenko also stated that he had “no plans for any further treatment o[f] this patient at this time.” Tr. 393.

         In 2007, Gonzalez visited Dr. Michael Gotthelf for a neurological exam. Tr. 465-67. After performing a nerve conduction study and an EMG, Dr. Gotthelf diagnosed Gonzalez with “bilateral carpal tunnel syndrome, very mild, worse on the [r]ight.” Tr. 467. He also conducted a physical exam and observed that Gonzalez's right fourth and fifth fingers “show grade 3/5 weakness of finger flexion, abduction, and adduction.” Tr. 465.

         Available treatment notes indicate that Gonzalez visited Dr. Blanco a total of six times during 2007 and 2008. Tr. 402-404. During that time, Dr. Blanco continued prescribing Percocet for chronic pain management, and Gonzalez engaged in physical therapy twice per week. Tr. 395, 402. Dr. Blanco remained Gonzalez's primary care physician until 2008. Tr. 387; see Tr. 380-81.

         At Dr. Shenko's recommendation, on March 24, 2008, Gonzalez presented at the UMass Memorial Medical Center. Tr. 394-95, 399. He complained of moderate to severe pain in his right shoulder and reported taking Percocet. Tr. 394. He also reported having previously undergone “seven reconstructive surgeries in his right hand . . . .” Tr. 394. The clinic physician noted that Gonzalez “seems to have . . . neuropathic pain affecting his right upper extremity, ” and he also observed that Gonzalez had “full range of motion of bilateral upper and lower extremities” and “4/5 motor strength [in the] right upper extremity.” Tr. 394. The physician opined that Gonzalez was “a candidate for chronic opiate therapy” and expressed his belief that “a mistake was made” when Gonzalez discontinued opiate use. Tr. 394. However, the physician noted that “we do not prescribe opiates at our clinic” and recommended that Gonzalez seek opiate treatment elsewhere. Tr. 394, 399.

         On October 15, 2008, Gonzalez began treatment with his current primary care physician, Dr. Thomas Weisman. See Tr. 380-81. He complained of right hand and elbow pain during that visit. Tr. 380.

         Nearly two years later, on August 24, 2010, Gonzalez visited Dr. Gotthelf for a second neurological exam. Tr. 420-23. Dr. Gotthelf diagnosed Gonzalez with “Right Ulnar nerve entrapment at the Cubital Tunnel” and “Bilateral Carpal Tunnel Syndrome, mild.” Tr. 423. He observed during a physical exam that Gonzalez had “Grade 4/5 weakness of abduction of the 2nd, 4th and 5th fingers” of the right hand but exhibited normal reflexes and sensation. Tr. 420.

         On October 2, 2010, Dr. Shenko performed a second ulnar nerve transposition surgery. See Tr. 449. Dr. Shenko examined Gonzalez after this procedure and reported his evaluation to Dr. Weisman by letter dated October 6, 2010. Tr. 462. Dr. Shenko noted that Gonzalez continued to report numbness and pain in his right hand and arm that “radiates up to his elbow and up into his neck . . . .” Tr. 462. Dr. Shenko observed that while Gonzalez “has decreased ulnar strength in [his right] hand, and decreased sensation in the fourth and fifth digits, ” his right hand and wrist were “structurally stable” and “stable to stress loading.” Tr. 462. Dr. Shenko concluded that Gonzalez “has chronic pain from his previous injuries, but now has an overlying symptomatic nerve injury.” Tr. 462. Dr. Shenko opined that Gonzalez might need additional surgery. Tr. 462.

         The record indicates that Gonzalez visited Dr. Weisman six times in 2010 for routine checkups. Tr. 459-61. Gonzalez continued reporting pain in his right hand and elbow, and Dr. Weisman prescribed Percocet and gabapentin for pain management. Tr. 459-61. Gonzalez then visited Dr. Weisman four times in 2011, still complaining of pain in his right fingers and elbow as well as an injury to his knee from a fall. Tr. 455-59. In August 2011, Dr. Weisman noted “no change in [Gonzalez's] chronic right upper extremity pain” but observed that “Percocet helps him tolerate the pain.” Tr. 456. At an appointment on December 14, 2011, Dr. Weisman reported that Gonzalez “is still having pain in his right elbow and right fourth and fifth fingers” and showed “decreased sensation and grip in the right hand.” Tr. 455. Dr. Weisman diagnosed Gonzalez with chronic pain syndrome and recommended continuing narcotic therapy. Tr. 455.

         On December 14, 2011, Dr. Weisman completed his first assessment of Gonzalez's residual functional capacity (“RFC”). Tr. 377-78. Dr. Weisman opined that Gonzalez could not lift or carry with either arm and indicated that he could only “rarely” reach, use hand controls, grasp, use fine finger manipulation, and feel with his fingers. Tr. 377-78. Dr. Weisman placed a question mark in the section asking how often Gonzalez could “use bilateral manual dexterity.” Tr. 378.

         In 2012, Gonzalez visited Dr. Weisman in February, May, June, and September. Tr. 447-454. During that time, Gonzalez reduced his use of Percocet from five times per day to four, and Dr. Weisman noted “reasonable control” of Gonzalez's right chronic upper extremity pain with Percocet. Tr. 447. In May of 2012, Dr. Weisman observed that Gonzalez was “able to extend and flex his fingers with some difficulty” and “is able to fully flex and extend his elbow.” Tr. 451. However, the next month, Dr. Weisman observed that Gonzalez had “decreased sensation in his right fourth and fifth fingers compared to the left [hand]” as well as “decreased hand grasp [strength] with his right hand.” Tr. 449. Dr. Weisman also noted that Gonzalez had undergone “ten operations on his right hand and right elbow” by 2012. Tr. 453.

         On January 3, 2013, Gonzalez reported worsening pain control, and Dr. Weisman added a prescription for MS Contin. Tr. 446. Dr. Weisman also recommended that Gonzalez seek a second opinion regarding the “management of his upper extremity chronic pain and neuropathy syndrome.” Tr. 446.

         On January 18, 2013, Gonzalez sought a second opinion from Dr. Thomas Breen, reporting finger pain and numbness as well as “pain shooting up his arm and tenderness over his elbow.” Tr. 444. Dr. Breen observed stiffness in Gonzalez's fingers and wrist and numbness and pain in the fourth and fifth fingers of Gonzalez's right hand. Tr. 444. Given Gonzalez's extensive surgical history, Dr. Breen postponed a diagnosis pending the results of an EMG and MRI. Tr. 444.

         During his annual physical with Dr. Weisman on February 1, 2013, Gonzalez reported improved pain management while on MS Contin and Percocet. Tr. 442. Dr. Weisman noted that Gonzalez was awaiting further follow-up by Dr. Breen and described Gonzalez's pain syndrome as “[u]nder reasonable control, currently undergoing further evaluation.” Tr. 443. An EMG in February 2013 showed “no abnormalities in the right ulnar nerve and normal function of the left ulnar nerve.” Tr. 441; see Tr. 480-83.

         In May 2013, Gonzalez stopped taking his prescribed narcotics, and Dr. Weisman observed that Gonzalez was experiencing withdrawal symptoms. Tr. 441. Dr. Weisman concluded that Gonzalez had “exhausted my repertoire of medications and interventions” and urged Gonzalez to continue working with Dr. Breen and perhaps other physicians to reevaluate his pain management. Tr. 441. On June 6, 2013, Gonzalez reported “suffering since stopping his narcotics” six weeks earlier. Tr. 440. Dr. Weisman noted that Gonzalez had completed opioid withdrawal by this time and that Gonzalez's hand and elbow were now in “constant” pain. Tr. 440. Dr. Weisman agreed to Gonzalez's request to resume pain medication, remarking that Gonzalez “has never abused drugs since I have known him.” Tr. 440. During a follow-up appointment later that month, Gonzalez reported having resumed taking Percocet but nonetheless complained of pain in his right hand that on “some days” was “constant.” Tr. 439. Dr. Weisman observed some swelling in Gonzalez's right hand and hypersensitivity in his right fingers but noted full range of motion in Gonzalez's elbow and wrists. Tr. 439. Dr. Weisman repeated his diagnosis of general chronic pain syndrome in the upper right extremity and questioned the possibility of reflex sympathetic dystrophy. Tr. 439.

         Gonzalez followed up with Dr. Breen on July 9, 2013. Tr. 438. Dr. Breen stated that Gonzalez reported discomfort in his elbow and had a “markedly positive Tinel['s] sign” proximal to the cubital tunnel. Tr. 438. Dr. Breen noted that Gonzalez's MRI indicated “a compressive neuritis” at the same site, though an EMG was normal. Tr. 438. Dr. Breen opined that Gonzalez “would be a candidate for informal ulnar nerve decompression and anterior submuscular transposition” surgery. Tr. 438. After discussing these procedures with Gonzalez, Dr. Breen scheduled them for September 2013. Tr. 438. Before the surgery, during a follow-up appointment on July 26, 2013, Dr. Weisman observed that Gonzalez's pain was “[r]easonably controlled” and described Gonzalez's chronic pain syndrome as “adequately managed.” Tr. 437.

         Dr. Breen performed ulnar nerve decompression and anterior intermuscular transposition surgery on September 4, 2013 at UMass Memorial. Tr. 468-469. The procedure was performed without complications. Tr. 468-69. Gonzalez's preoperative and postoperative diagnoses were “[r]ight cubital tunnel syndrome.” Tr. 468. Gonzalez reported to UMass Memorial's rehabilitation services on September 17 for an evaluation with occupational therapy, but Gonzalez then failed to follow up with occupational therapy until October 15, 2013. Tr. 506. On October 15, Gonzalez reported “some discomfort” post-surgery; Dr. Breen encouraged him to continue occupational therapy. Tr. 492. Gonzalez was reassessed by rehabilitation services at that time, but he then “canceled or no showed 2 visits within the next following 3 visits [sic].” Tr. 506. Gonzalez's final occupational therapy appointment was November 14, 2013. Tr. 507. During that visit, Gonzalez reported a pain level of “6/10 at the surgical site” and stated that “he is able to bathe and dress himself, [but he] still [has] difficulty with heavy activities.” Tr. 507. The occupational therapist assessed Gonzalez's range of motion at the elbow as “within normal limits” and noted that Gonzalez's “[g]rip strength on the right is 5 pounds, [and] right lateral [is] 4 pounds.” Tr. 507.

         In November 2013, Gonzalez reported to Dr. Weisman that he remained in chronic pain in his right arm and believed “his pain could be better managed.” Tr. 493. Dr. Weisman observed swelling in Gonzalez's elbow and decided later that month to add two daily doses of Oxycontin 10 mg to Gonzalez's narcotic regimen. Tr. 495, 498.

         On January 7, 2014, Gonzalez followed up with Dr. Breen and reported “us[ing] his arm a little but more” and taking “occasional pain meds.” Tr. 496. Dr. Breen noted that Gonzalez was “making slow, but steady progress” and observed that Gonzalez's elbow was “less tender” than previously. Tr. 496. Dr. Breen opined that it would “probably take another 3-6 months for [Gonzalez] to reach his maximal medical improvement.” Tr. 496. Dr. Breen reported to rehabilitation services that Gonzalez's “problems were resolved and [he] had no issues” and that Gonzalez “d[id] not have any [occupational therapy] needs” at that time. Tr. 506-07. Gonzalez was therefore discharged from occupational therapy on January 7. Tr. 506.

         On February 7, 2014, Gonzalez visited Dr. Weisman for an annual physical. Tr. 499-500. Dr. Weisman repeated the diagnoses of cubital tunnel syndrome and chronic pain syndrome in the right upper extremity, but he noted that Gonzalez “has done well” and exhibited “some increasing movement in his right hand fingers.” Tr. 499-500. Gonzalez reported increased movement of his right fingers but “no better control of his pain.” Tr. 499. Dr. Weisman agreed to increase Gonzalez's Percocet regimen from twice per day to three times per day. Tr. 499.

         During a follow-up appointment in May 2014, Gonzalez reported still experiencing pain and intermittent swelling in the fourth and fifth fingers of his right hand. Tr. 501. Gonzalez also complained of feeling “somewhat overwhelmed with the responsibilities of raising two kids” and with “doing housework and trying to take care of things with no break.” Tr. 501. However, Dr. Weisman noted that “for the first time since I have known [Gonzalez, ] his right elbow pain is better . . . . This is a new improvement status post his surgery.” Tr. 501. Dr. Weisman opined that Gonzalez's chronic pain syndrome was “somewhat improved after surgery, ” though Gonzalez still had “a lot of symptoms” in his hands, particularly the “fourth and fifth fingers of the right hand.” Tr. 501. Dr. Weisman also noted that Gonzalez “will continue his current narcotic regimen.” Tr. 502.

         Gonzalez returned to UMass Memorial on June 10, 2014 for a nine-month follow-up on his right ulnar nerve decompression and transposition surgery.[4] Tr. 503-05. Dr. Breen again observed a positive Tinel's sign over the cubital tunnel and opined that Gonzalez's condition was “not entirely improved.” Tr. 503. However, Gonzalez reported “that the pain is slightly improved, ” and Dr. Breen noted that Gonzalez was making “some slow progress” since his most recent surgery. Tr. 503. Dr. Breen predicted that Gonzalez “should continue to improve over the next 6 months or so” and scheduled another follow-up appointment in six months' time “unless he is doing well.” Tr. 503-04.

         On July 21, 2014, Dr. Weisman completed his second assessment of Gonzalez's residual functional capacity. Tr. 517-18. Dr. Weisman opined that Gonzalez could not use his right hand to lift and/or carry. Tr. 517. He also stated that Gonzalez could not use his right hand to perform any of the following activities: climb, reach, use hand controls, grasp, use bilateral manual dexterity, use fine finger manipulation, and feel with his fingers. Tr. 518.

         D. State Agency Opinions

         On June 6, 2013, Dr. Erik Purins, M.D., reviewed the record and found that Gonzalez had severe impairments of peripheral neuropathy and obesity. See Tr. 156-59. Dr. Purins opined that Gonzalez could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour workday, sit (with normal breaks) for a total of about six hours in an eight-hour workday, and had limited ability to push and/or pull in both upper extremities. Tr. 157-58. Dr. Purins stated that Gonzalez was limited in handling in both hands and that Gonzalez's ability to grasp and twist was limited to only occasional bilaterally, but that his ability to reach, finger, or feel was unlimited. Tr. 158. Dr. Purins indicated that Gonzalez should avoid concentrated exposure to vibration and hazards. Tr. 159.

         On September 25, 2013, Dr. K. Malin Weeratne, M.D. reviewed the record and found that Gonzalez was limited to the same extent as found by Dr. Purins. Tr. 167-70.

         E. Hearing Testimony

         On August 6, 2014, ALJ Kim K. Griswold presided over an administrative hearing. Tr. 58-115. Gonzalez was represented by counsel, and a Vocational Expert (a “VE”) gave testimony. Tr. 58-115. ALJ Griswold also held a supplemental hearing on February ...

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