335 F.3d 99 (2nd Cir. 2003), 02-6133, Green-Younger v. Barnhart

Docket Nº:02-6133
Citation:335 F.3d 99
Party Name:Green-Younger v. Barnhart
Case Date:July 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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335 F.3d 99 (2nd Cir. 2003)

Nina GREEN-YOUNGER, Plaintiff-Appellant,


Joanne B. BARNHART, Commissioner of the Social Security Administration, Defendant-Appellee.

No. 02-6133.

United States Court of Appeals, Second Circuit

July 10, 2003.

Argued: March 20, 2003.

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Charles A. Pirro III, Pirro & Church, LLC, South Norwalk, CT, for Petitioner-Appellant.

Ann M. Nevins, Bridgeport, CT, (Kevin J. O'Connor, United States Attorney for the District of Connecticut; Patrick J. Caruso; Jeffrey A. Meyer, of counsel), for Appellee.

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Before: FEINBERG, VAN GRAAFEILAND and F.I. PARKER, Circuit Judges.

FEINBERG, Circuit Judge.

Plaintiff Green-Younger appeals from a judgment of the United States District Court for the District of Connecticut (Christopher F. Droney, J.), accepting the recommended ruling of Magistrate Judge William I. Garfinkel to affirm the decision of the Administrative Law Judge (ALJ) denying Green-Younger's application for social security disability benefits. On appeal, Green-Younger argues that the ALJ and the district court erred by failing to give controlling weight to the opinion of her treating physician that she suffers from fibromyalgia1 and cannot work because of severe pain. For reasons stated below, we reverse and remand to the district court with instructions to remand the matter to the Commissioner of the Social Security Administration (SSA) for a calculation of disability benefits.

I. Background

At the time of her SSA hearing, Nina Green-Younger was 38 years old, and married with three children. After completing two years of college, Green-Younger worked full-time as a long-distance telephone operator for Southern New England Telephone (SNET) from 1978 to 1995. She also worked part-time as a mail sorter from 1985 to 1988. From 1988 to 1995, Green-Younger took seven disability leaves from her job, which lasted between one month and one year, before being placed on long-term disability in 1997. Green-Younger avers that she became totally disabled in May 1995, when she last worked.

A. Medical History

According to medical records and her testimony, Green-Younger's difficulties began in 1982 when she injured her back in a motor vehicle accident in the eighth month of her last pregnancy. To treat her back pain, she tried various anti-inflammatory and pain medications, physical therapy and chiropractic treatment. In April 1991, Green-Younger consulted an orthopedist who diagnosed degenerative disc disease. A 1991 MRI showed degeneration in the "4-5 and 5-1" regions. A 1992 discogram, while normal at L4-L5, showed that L5-S1 was "severely degenerated."

Beginning February 1994, Green-Younger began regular treatments with osteopath Dr. Jeffrey Helfand, a rheumatologist. After an initial consultation and examination, Dr. Helfand reported that Green-Younger complained of

pain in her right leg and low back which she states goes down into her coccyx area associated with tingling and weakness in her right arm which has been present intermittently since 1982. She states that the pain is always present but can be more severe at sometimes than at others.... She states she has difficulty sitting or standing for any prolonged time and complains of frequent sleep difficulty. The most recent prolonged episode of low back and leg pain began around October 1993 after approximately a six-month period when she was relatively symptom free.

Dr. Helfand documented that "[m]usculoskeletal and extremity exams reveal multiple tender points in the distribution characteristic of fibromyalgia." He noted the results of a 1993 MRI showing minimal

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disc bulging at the L4-L5 and L5-S1 regions, but no disc herniation. Dr. Helfand found no reflex, sensory, or motor deficits, but he noted the presence of paresthesias2; significant spasm with limitation of lateral flexion and rotation in the lumbar paravertebral muscles; and marked tenderness over the posterior superior iliac spines bilaterally. Dr. Helfand eventually diagnosed Green-Younger as having fibromyalgia, as well as other illnesses—such as degenerative disc disease, chronic low back syndrome, and peroneal neuropathy3—associated with her back pain.

Green-Younger, who had taken a disability leave in January 1994, tried unsuccessfully to return to work after beginning treatment with Dr. Helfand. In April 1994, Dr. Helfand reported that she was "quite depressed and distraught regarding her condition and her persistent inability to go to work." The pain medications he prescribed, like many others Green-Younger had tried, did not provide her any significant relief.4 Although Dr. Helfand continued to prescribe medication, he noted that "there is probably little to suggest she will have any improvement from any further trials with NSAID's."5 In September 1994, Dr. Helfand informed SNET, Green-Younger's employer, that her return-to-work date was indeterminate.

Dr. Helfand referred Green-Younger to Dr. Gary Dee at Norwalk Hospital, a specialist in pain management. In October 1994, Dr. Dee began treating Green-Younger with a series of epidural blocks and steroid trigger point injections. An MRI of the lumbar spine performed at this time revealed a mild asymmetrical disc bulge at the L4-L5 and L3-L4 regions. Dr. Helfand recorded that Green-Younger had "some improvement" following the trigger point injections and was "able to better tolerate massage therapy." Dr. Helfand's later progress notes, however, show that the injections afforded her only "short-term relief." He reported that Green-Younger "continues to have chronic pain which has been limiting her ability for physical activity and for work" and "has had no relief with mild narcotic analgesics such as Darvocet or Vicodin."

Green-Younger and Dr. Helfand discussed her prognosis and ability to return to work. A SNET representative had informed them that Green-Younger's job would be terminated in January 1995 unless she returned. SNET's position was clear that they did not want her to "work a few weeks and then be out." Dr. Helfand recorded his view that "it is unlikely that she will be able to return to work full-time for any significant duration." Rather than recommend applying for long-term disability, however, he suggested that Green-Younger "try to go back to work part-time for 2-3 weeks at four hours daily and [see] how she does."

Green-Younger returned to work in early December 1994 on a part-time basis. A few weeks later, Dr. Helfand noted that Green-Younger was "having somewhat of a difficult time but has decided to continue as long as she can." She continued until early May 1995, at which time she stopped working because of "severe low back tenderness and paresthesias in the lower extremities." Green-Younger also complained of pain in her upper back and right arm and hand. A physical exam showed a

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positive Tinel sign indicative of carpal tunnel syndrome. While an EMG performed in June did not show evidence of nerve entrapment, a subsequent EMG did.

In July 1995, Dr. Helfand wrote several letters describing Green-Younger's current limitations. In one letter requesting a medical exemption from jury service, Dr. Helfand explained that it was "difficult for [Green-Younger] to sit in any one position for more than 30 minutes without needing to get up and walk around." In other letters, he described her current limitations to include "sitting and/or standing for 4 hours or less daily," or "continuous sitting/and or sitting for no more than 60 minutes without a rest period," and no lifting, pulling or pushing.

In August 1995, physical therapist Jill Tomasello performed a two-day work fitness evaluation of Green-Younger for SNET. Tomasello found that "test results did not meet the criteria for consistent or maximum effort," explaining that "[t]his is not unusual for the initial test" and that "repeat testing is needed to verify the results." Tomasello nevertheless concluded that Green-Younger "has demonstrated the ability to work at a sedentary work level," and recommended a work hardening program if she is "unable to tolerate a return to work." However, a subsequent evaluation performed in July 1996 suggested that Green-Younger "was able to tolerate seated activity at a work site for a maximum of 30 minutes before she would need to get up and move around freely."

In October 1995, Dr. Helfand informed SNET that Green-Younger could not return to work because of fibromyalgia, peroneal neuropathy, and chronic low back syndrome. Dr. Helfand explained in his progress notes that he had elected to consider her permanently disabled because "she has not had any dramatic improvement with any of the measures we have tried."

Dr. Helfand referred Green-Younger to a number of other doctors. Dr. Don Goldenberg, Chief of Rheumatology at the Newton-Wellesley Hospital in Massachusetts and a fibromyalgia specialist, confirmed Dr. Helfand's diagnosis of fibromyalgia. Dr. Robert Goldring, who was providing chiropractic treatment at this time to alleviate pain and spasms, stated that Green-Younger's "long term pain" was "essentially due to her fibromyalgia." Green-Younger also consulted with orthopedist Dr. Ramon Batson. On a physical exam, he found "diffuse tenderness to palpation along the axial spine and in the SI joints bilaterally" and "trigger points present in the right trapezius muscles and in the right glutei." Dr. Batson noted Green-Younger's history of disc disease but not disc herniation, and recommended treatment for myofascial pain syndrome 6 if studies proved negative for surgical pathology.

A number of tests were ordered, apparently in part to rule out surgical pathology. Plain films did not reveal any abnormal movement or osseous lesions, but an MRI of the lumbar spine taken in...

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