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The Van Ngo v. Saul

United States District Court, D. Massachusetts

November 12, 2019

THE VAN NGO, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security Administration, Defendant.

          ORDER AND MEMORANDUM PLAINTIFF'S MOTION TO REVERSE THE COMMISSIONER'S DECISION AND THE COMMISSIONER'S MOTION TO AFFIRM THE COMMISSIONER'S DECISION (DOCKET NOS. 12 & 13)

          TIMOTHY S. HILLMAN DISTRICT JUDGE.

         This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration (the “Commissioner” or “SSA”) denying the application of The Van Ngo (“Plaintiff”) for Social Security Disability Insurance Benefits because Plaintiff was not disabled. 42 U.S.C. §§ 405(g), 1383(c)(3). Plaintiff filed a motion to reverse this decision (Docket No. 12). The Commissioner filed a cross-motion seeking affirmance (Docket No. 13). For the reasons below, the Court grants the Commissioner's motion and denies Plaintiff's motion.

         Background

         1. Medical History

         Plaintiff sustained an injury to his right arm in a workplace accident on August 30, 2011. Doctors diagnosed him with right elbow lateral epicondylitis, and he underwent surgery on February 12, 2012. At a follow-up appointment on February 24, 2019, Thomas Breen, MD (“Dr. Breen”) noted that Plaintiff was doing well. (AR[1] 688). In Plaintiff's next few visits, however, Plaintiff complained to Dr. Breen about stiffness. (AR 686-87).

         On May 2, 2012, Plaintiff met with Hillel Skoff, MD (“Dr. Skoff”), a hand, wrist, elbow, and shoulder specialist. Dr. Skoff did not observe any visual abnormalities on the shoulder or discoloration on Plaintiff's skin, but he did find that Plaintiff had gross loss of motion to the right shoulder and a severely weak grip. (AR 890). Dr. Skoff expressed no opinion on whether Plaintiff was permanently impaired, but he reported that Plaintiff was totally disabled from holding any occupation. (AR 890-91).

         On May 3, 2012, Dr. Breen noted that Plaintiff had less pain but was very stiff. (AR 685). Dr. Breen recommended that Plaintiff continue with occupational therapy, which he had begun in April. (AR 685). On May 17, 2012, and June 21, 2012, Dr. Breen reported Plaintiff's range of motion had improved as a result of therapy. (AR 683-84). By August 12, 2012, however, Plaintiff had stopped receiving therapy, and Dr. Breen noted a more limited range of motion in the elbow joint. (AR 682). He recommended manipulation under anesthesia. (AR 682).

         Shawn Channell, PhD (“Dr. Channell”) performed a consultative examination on Plaintiff on July 3, 2012. According to Dr. Channell, Plaintiff displayed full affect and had intact attention and concentration. But Dr. Channell noted that Plaintiff described his mood as “stressed” and acknowledged recent suicidal thoughts. (AR 608-09). Dr. Channell diagnosed Plaintiff with adjustment disorder with depressed mood. (AR 609). But Dr. Channell did not expect Plaintiff's symptoms to impact his ability to work and opined that they would improve as Plaintiff's physical condition improved. (AR 609).

         On July 12, 2012, Mark Cutler, MD (“Dr. Cutler”) performed a psychiatric examination on Plaintiff. Dr. Cutler diagnosed Plaintiff with pain disorder and depressive disorder and opined that he was totally disabled from any occupation. (AR 929-30). Dr. Cutler reiterated these findings in a November 5, 2012, examination. (AR 933).

         In July 2012, Robert McGan, MD (“Dr. McGan”), a state physician, examined Plaintiff. Dr. McGan opined that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently and could handle objects with his right arm occasionally.

         In September 23, 2012, assessment, Iris Sullivan, MD (“Dr. Sullivan”) reported that Plaintiff had no medical history of any nervous condition, was attentive to his personal appearance, got along with others, and had no problems with memory or concentration. (AR 696). Dr. Sullivan also reported that Plaintiff had not regained major function with respect to his right elbow lateral epicondylitis. (AR 698).

         In January 2013, Elaine Hom, MD (“Dr. Hom”), a state physician, examined Plaintiff. Dr. Hom opined that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently and could handle objects with his right arm occasionally. Dr. Hom also stated that, despite Plaintiff's pain and reduced range of motion, he could reach overhead, turn, and twist with his right arm occasionally.

         On March 22, 2013, Dr. Skoff examined Plaintiff. Dr. Skoff observed that Plaintiff had a limited range of motion in his right arm, atrophy in his right shoulder, and poor grip strength in his right hand. (AR 893). Dr. Skoff rated Plaintiff has 75% impaired with respect to his right upper extremity and 45% impaired overall. (AR 894). He opined that “[i]t is unclear to this observer whether any specific occupation would fit within this patient's current capabilities.” (AR 894).

         In March 26, 2013, assessment, Fred Burke MS PT (“Mr. Burke”) stated that Plaintiff was limited to sedentary work. Mr. Burke indicated that Plaintiff could lift 10 pounds occasionally but could not lift, carry, pull, or otherwise move objects.

         On April 20, 2013, Charles Kenny, MD (“Dr. Kenny”) examined Plaintiff. He observed a limited range of motion in the right arm, the inability to make a fist, swelling, and reddish and brownish discoloration in the area around the right lateral epicondyle. (AR 773). Dr. Kenny opined that Plaintiff could only perform sedentary work, with occasional lifting of 10 pound and no activities above waist level. (AR 776).

         Dr. Cutler examined Plaintiff again on July 23, 2013, November 18, 2013, and February 10, 2014. Dr. Cutler observed a markedly depressed mood and found Plaintiff totally disabled from performing any work. (AR 936-37, 940-41, 944-45).

         Dr. Skoff examined Plaintiff on August 21, 2013 and January 23, 2014. Dr. Skoff noted that Plaintiff had a limited range of motion, could not make a fist, and had only 25% of the grip strength of the contralateral side. (AR 896, 899-900). He again rated Plaintiff as 75% impaired with respect to the right upper extremity and 45% impaired overall. (AR 897, 900).

         On December 23, 2013, Katherine Riggert DO (“Dr. Riggert”) examined Plaintiff. She diagnosed Plaintiff with right elbow pain, right shoulder adhesive capsulitis, and likely chronic regional pain syndrome. (AR 885). And she opined that Plaintiff could not perform simple grasping, turning, fine manipulation, or reaching motions; lift or carry any weight with the right upper extremity; or climb ladders, stairs, or scaffolds. (AR 885-86). She also suggested that Plaintiff would perform a job at less than 50% efficiency. (AR 886).

         Plaintiff met with Barbara Sullivan, FNP (“NP Sullivan”) on February 5, 2014. Plaintiff complained that his fluoxetine had not helped his depression and that his right hand felt “different.” (AR 983). NP Sullivan noted the Plaintiff had a depressed mood, anhedonia, and feelings of hopelessness, although no suicidal ideation. (AR 983).

         In a February 6, 2014, assessment, Dr. Cutler rated Plaintiff as markedly limited in the ability to maintain concentration and regularly attend work and moderately limited in the ability to work with others and interact appropriately in public. (AR 949). He opined that Plaintiff would be off-task 25% of the time, would miss 3 days of work a month, and would perform at 40% efficiency. (AR 950).

         On April 3, 2014, June 18, 2014, and August 20, 2014, NP Sullivan observed Plaintiff in moderate distress and significant pain. (AR 967, 971, 979). On November 19, 2014, Plaintiff informed NP Sullivan that he might have found a job at a Vietnamese restaurant. (AR 954). He showed mild distress due to pain on examination, and NP Sullivan noted that he had right muscle wasting, a limited range of motion, and a depressed affect. (AR 955).

         Plaintiff met with Kristen Jettinghoff, LMHC (“Ms. Jettinghoff”) on March 2, 2015, for mental health services. Plaintiff complained to her of racing thoughts, difficulties concentrating, lack of energy, and depression. (AR 1130). Ms. Jettinghoff described his mood as depressed and diagnosed Plaintiff with a mood disorder. (AR 1132-33).

         On March 16, 2015, NP Sullivan noted that Plaintiff appeared in moderate distress and showed signs of a depressed and anxious mood. (AR 1077). She also observed atrophy and weakness of the muscles in Plaintiff's right arm. (AR 1078). Plaintiff reported to her that his pain was 5 to 6 out of 10 during the day and increased to 8 out of 10 at night. (AR 1077).

         Dr. Cutler met with Plaintiff on April 6, 2015, and recorded Plaintiff's mood as markedly depressed. (AR 996).

         On April 6, 2015, Harvey Clermont, MD (“Dr. Clermont”) examined Plaintiff. Dr. Clermont observed discoloration of the skin on Plaintiff's right arm, limited range of motion in the right shoulder, Plaintiff's inability to make a fist with his right hand, and a slight tremor in Plaintiff's right arm that worsened with activity. (AR 1007-08). In an April 7, 2015, assessment, Dr. Clermont opined that Plaintiff could not lift, carry, or manipulate objects with his right arm; could only lift, carry, or manipulate with his left hand 50% of the time; and would be off-task at least 25% of the time in an eight-hour day. (AR 999-1001).

         In her April 7, 2015, examination of Plaintiff, Ms. Jettinghoff reported that Plaintiff had a euthymic mood with appropriate affect. (AR 1138).

         Lloyd Alderson, MD (“Dr. Alderson”) met with Plaintiff several times between April 2015 and May 2016. Dr. Alderson's treatment records show improvements in Plaintiff's grip and muscle strength over time. (AR 1022-24, 1066-68, 1171-76). Dr. Alderson also reported that Plaintiff had normal skin tone and color without a lot of wasting. (AR 1172, 1173). In his August 22, 2015, assessment, Dr. Alderson opined that that Plaintiff could not use his right hand to lift or carry any weight; grasp, turn, or twist objects; perform fine manipulation of objects; or reach in front of his body or overhead. (AR 1019).

         On June 12, 2015, James Todd, MD (“Dr. Todd”) examined Plaintiff. Plaintiff complained of stiffness, limited range of motion, inability to lift or carry, and a burning, pinching, and squeezing pressure in his right arm. (AR 1012). Dr. Todd observed tenderness at the nerve root outlets at the C5, C6, and C7 vertebrae and weakness in Plaintiff's thumb, index finger, and grip. (AR 1012). Dr. Todd diagnosed Plaintiff with complex regional pain syndrome, decreased range of motion, muscle stiffness, and allodynia of the ...


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