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Dodson v. Berryhill

United States District Court, N.D. New York

June 30, 2017

TANYA DODSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.


          Lawrence E. Kahn U.S. District Judge.


         This case has proceeded in accordance with General Order 18, which establishes the procedures applicable to appeals from denials of Social Security benefits. Both parties have filed briefs. Dkt. Nos. 14 ("Plaintiffs Brief), 17 ("Defendant's Brief), 20 ("Reply"). For the following reasons, the decision of the Social Security Administration ("SSA") is vacated and this case is remanded for further proceedings.


         A. The Disability Allegations and Medical History

         Plaintiff Tanya Dodson was thirty-two years old on January 1, 2013, her alleged disability onset date. Dkt. No. 8 ("Record") at 64. She is married with two children, and has a ninth grade education. Id. at 34-35, 42. Dodson's most recent employment, as a certified nursing assistant, ended on January 31, 2001. Id. at 42-43. As early as August 2011, and before her alleged onset date, Dodson received treatment from rheumatologist Dr. David Griger, who noted minimal signs of osteoarthritis from pain and tenderness in her joints. Pl.'s Br. at 2. Dodson saw rheumatologist Dr. Donald Raddatz on November 22, 2011; he noted that her past diagnoses included joint pain and fibromyalgia and suggested that her widespread pain was consistent with fibromyalgia. R. at 220-22. Dodson also received treatment for migraines before her alleged onset date from both her general practitioner, Dr. Ashly Joseph, and her neurologist, Dr. Lore Garten. Pl.'s Br. at 3. On November 16, 2012, Dr. Garten noted that medications prescribed for Dodson's migraines were initially helpful but losing efficacy and that Dodson did not wish to increase her dosage because of potential weight gain. Id.

         This appeal primarily concerns Dodson's physical impairments. Administrative Law Judge ("ALJ") Arthur Patane found that Dodson's severe impairments included fibromyalgia, mild degenerative changes in the cervical and lumbar spine, and obesity. R. at 19. ALJ Patane concluded that Dodson's migraines, asthma, and other ailments were not severe and that her osteoarthritis was "nonmedically determinable." Id. The Court now turns to the record relating to Dodson's physical impairments after her alleged onset date.

         On January 8, 2013, Dr. Joseph noted that Dodson suffered from daily headaches and migraines, had a small pituitary lesion found in a recent MRI, and experienced pain in her lower back and legs. Id. at 309. Dodson was taking Depakote, Maxalt, Verapamil, and Naproxen for headaches, as well as Mobic and Gabapentin for back pain, but she had declined injection therapy for her headaches as suggested by Dr. Garten because she was afraid of needles. Id. Dr. Joseph found Dodson positive for headaches, back, and abdominal pain, and negative for joint swelling and gait problems. Id. She also found tenderness and pain in Dodson's back and assessed her with dyspepsia (from chronic nonsteroidal anti-inflammatory drugs ("NSAID") use), lower back pain, and chronic daily headaches. Id. at 310-11. Dr. Joseph altered Dodson's medications to combat her headaches and dyspepsia. Id. at 311. On February 6, 2013, Dr. Garten noted Dodson was experiencing "severe and sharp" pain on the left side of her neck and weakness in her upper extremities. Id. at 210. Dr. Garten also found Dodson had normal motor strength, coordination, and gait that day but concluded that Dodson had "probable movement disorder" that had been present for several years, and that her pain had been increasing in her neck and head. Id. A previous MRI showed straightening of the lordosis, which could be consistent with disc disease, but the brain MRI did not extend far enough to evaluate her full spine. Id.

         On April 13, 2013, Dr. Joseph pointed to Dodson's MRI, which showed "degenerative changes of the cervical spine, " "mild bilateral neuroforaminal stenosis, " and worsening back pain. Id. at 312. Dr. Joseph also found that Dodson's headaches were no longer daily, though she continued to get headaches, have neck pain, and experience numbness in her upper extremities. Id. Dr. Joseph thus continued prescribing Gabapentin and Hydrocodone. Id. She stated that Dodson was taken off NSAIDs after listing her continuing dyspeptic and reflux issues. Id. at 315. Dr. Joseph also referred Dodson to a physical therapist for degnerative joint disease. Id.

         Dr. Garten noted on April 19, 2013, that Dodson had degenerative disc disease as revealed by her MRIs and that she had neck, back, and extremity pain, including "myalgias, arthralgia, and hip pain, " which medications had not abated. Id. at 202. She noted that Dodson had normal gait, coordination, and motor strength, and was awake, alert, and oriented that day. Id. Dr. Garten also stated that Dodson "has had difficulty in using preventive medications [for her migraines] because they quickly seem to become less effective." Id.

         On April 23, 2013, Dr. Garten wrote a letter concluding that Dodson was "permanently disabled from working." Id. at 242. Dr. Garten stated that Dodson had been a patient since 2010, and that she had a history of medical problems, including Von Willebrand disease, chronic migraines, neck and back pain stemming from degenerative disc disease, and polyarthralgias. Id. Dr. Garten noted that Dodson had taken many different medications for her migraines which had been unsuccessful due to tachphylaxis. Id. Dr. Garten also found that Dodson's neck and back pain as well as her migraines had only become worse over time. Id.

         On April 25, 2013, Dodson saw a physical therapist on referral from Dr. Joseph. Id. at 247. The physical therapist noted that Dodson's subjective assessment was a six out often with constant pain, while her objective assessment indicated "maximal restriction of all movements." Id. After some decrease in pain over the course of seven visits with the physical therapist, Dodson reported a fall during her visit on May 27, 2013. Id. at 248. There had been no change in her maximal restriction diagnosis and she still had pain in her lumbar and cervical paraspinal musculature. Id.

         On June 13, 2013, Dodson was seen by endocrinologist Dr. Pascale Raymond, who noted that she had "persistent dyspeptic symptoms" and had struggled to lose weight after the birth of her two children. Id. at 332. Dr. Pascale also stated that Dodson took "chronic narcotics and NSAIDS for back pain, " and he noted the MRI findings discussed above pertaining to Dodson's degenerative spinal changes as well as her lingering problems with headaches and back and neck pain. Id.

         On July 19, 2013, Dodson saw Dr. Garten, who noted that trials of preventive medicine for headaches, neck, and back pain were all unsuccessful. 11 at 336. Dr. Garten stated that Dodson had "musculoskeletal headaches and these are very likely triggering some of the migraines, " and noted some improvement when Dodson wore a transcutaneous electrical nerve stimulation ("TENS") unit. Id. at 337.[2] Dr. Garten also stated that Dodson now found it difficult to do her household and gardening tasks as she was "unable to sit, stand, walk or even lie down for prolonged stretches of time." Id. at 336. She further noted that Dodson was, "limited in her ability to lift or carry even light amounts." Id.

         On July 31, 2013, Dodson saw Dr. Emily Desantis on referral from Dr. Garten for her chronic neck pain and migraines. Id. at 258. Dr. Desantis noted that Dodson's Oswestry Disability Index[3] was sixty-four out of one hundred and that she experienced sharp, radiating pain in her head. Id. Analysis of an MRI of her spine from February 2013 reportedly showed a slight flattening of her cervical lordosis, and Dr. Desantis noted Dodson had tenderness in portions of her cervical paraspinal and upper pariscapular muscles as well as full but painful cervical range of motion. Id. at 259. Dr. Desantis noted Dodson's manual muscle testing was a five out of five in her major and minor muscle groups but that her proximal arm testing caused discomfort. Id. Dodson was recommended for injection therapy, which she received on August 5, 2013. Id. at 260-61. After receiving six trigger point injections, Id. at 260, Dodson had a follow-up on September 4, 2013, where her Oswestry Index did not change, and Dodson stated that her TENS unit no longer reduced her headache symptoms at all, leading instead to nausea, Id. at 262. Dodson also stated that her pain increased after the injections, with stabbing neck pain, low back pain exceeding a ten out often scale, and painful cervical range of motion. Id. Dr. Desantis noted Dodson still suffered from migraines, chronic neck pain, and occipital headaches, which were "most suspicious for myofascial etiology with postular and muscular imbalances." Id. Dr. Desantis also stated that Dodson was already taking an increased dose of Gabapentin and that there was little else she could do for Dodson, so she recommended acupuncture. Id.

         On September 18, 2013, Dr. Joseph stated that Dodson had chronic myofascial pain and degenerative joint disease of the lumbar and cervical spines, and that she exhibited tenderness in the paraspinal region. Id. at 317. In her review of symptoms, Dr. Joseph also noted that Dodson was positive for neck pain, abdominal pain, and myalgias all over with use and exertion. Id. at 316. Also on September 18, 2013, Dr. Garten ordered an MRI of Dodson's cervical spine, and all findings were normal except at ¶ 4-C5 and C5-C6, where there was minimal leftward foraminal compromise. Id. at 380-81. Dr. Garten's notes also include results from an MRI of the lumbar spine revealing a "broad-based disk bulge with flattening along the anterior aspect of the thecal sac . . . [and] mild bilateral neural foraminal compromise" at ¶ 4-L5, as well as a small disc bulge at ¶ 5-S1. Id. at 378. Dr. Garten concluded that there was mild bilateral neural foraminal compromise and mild degenerative joint disease. Id. at 378-79.

         On October 22, 2013, Dr. Joseph found Dodson had new and persistent right shoulder pain and noted a decreased range of motion in all directions but no tenderness, swelling, or other signs of musculoskeletal problems in the shoulder. Id. at 319. Dr. Joseph assessed the shoulder pain as a potential sprain or tendinitis. Id. at 320. On October 28, 2013, Dodson returned to see Dr. Griger, who noted that she had "diffuse tenderness to palpation in a characteristic fibromyalgic distribution." Id. at 348. After views were taken of the right shoulder and no abnormalities were found, Dr. Griger concluded that Dodson's pain was connected to her fibromyalgia. Id. at 348-49. On October 28, 2013, Dodson saw a physical therapist, Michael Quinn, on a referral from Dr. Joseph and in light of her Social Security Disability application. Id. at 350. Quinn noted that Dodson got only three to four hours of sleep a night because of her pain, did housework only with her daughter's help, that "all motions [were] self-limited, " and that even when lifting small weights she had increased pain. Id. at 351-52. Quinn concluded that there was "little objective evidence to support work limitations, " but that her ongoing medical and mental health conditions needed to be considered. Id. at 353.

         On November 7, 2013, Dodson returned to see Dr. Garten because her headaches had not abated. Id. Dr. Garten noted that Dodson was having difficulty doing basic tasks at home and experienced increased pain as the Gabapentin was losing efficacy. Id. Dr. Garten also stated that Dodson had crepitus in her joints along with paraesthesias in her arms, which was aggravated with movement. Id. Dr. Garten also noted weaknesses in all four extremities and that Dodson was limited in standing, walking, and sitting for prolonged periods due to her neck and back pain. Id. In her diagnosis, Dr. Garten advised Dodson to gradually taper off Depakote for migraines since it was ineffective, and she advised an increase of Gabapentin and Verapamil as well as a trial of Midrin and Maxalt for migraines. Id. at 354. Dr. Garten also completed a physical capacities evaluation form that day where she opined that Dodson was unable to sit, stand, or walk for over thirty minutes in an eight-hour day and that she could only occasionally lift or carry less than ten pounds. LI at 250. Dr. Garten also wrote that Dodson "has severe migraines and should not be exposed to conditions such as heat, dust, noise, cold, odors etc., " and that Dodson's back, neck, and joint pain affected her ability to do any physical work and that she had "confusion" associated with her migraines and fibromyalgia, which further limited her work ability. Id. at 251.

         On November 11, 2013, Dodson saw Dr. Karl Siebuhr on a referral from Dr. Joseph for her right shoulder pain. Id. at 274. Dr. Siebuhr noted that Dodson refused to complete some of the range of motion tests, telling him she would end up "on the floor" if she did them. Id. at 278. He noted Dodson had a full range of spinal motion and pain in the strength tests, and he recommended an MRI and a "conservative treatment plan" for her right shoulder pain. Id. Dr. Siebuhr also noted that Dodson was still on multiple medications, including Tramadol, Effexor, Gabapentin, Indomethacin, and Midrin, and that she was using a TENS unit and hot and cold packs. Id. at 274-75. He also stated that she did not have numbness, weakness, or tingling in her hand or fingers, Id. at 275, but he did find her positive for shortness of breath and noted her asthma symptoms were stable, Id. at 278. On November 25, 2013, Dodson saw Dr. Stephanie Oceguera on referral from Dr. Joseph for a hiatal hernia. Id. at 284. Dr. Oceguera found Dodson positive for back and joint ...

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