Dillon v. Comm'r of Soc. Sec.
| Decision Date | 07 September 2018 |
| Docket Number | 17-CV-4136 (PAE) (BCM) |
| Parties | MARILYN SABINA DILLON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION TO THE HON. PAUL A. ENGELMAYER
Plaintiff Marilyn Dillon brings this action pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits (DIB). Both parties have moved for judgment on the pleadings. For the reasons set forth below, I respectfully recommend that plaintiff's motion be GRANTED and the Commissioner's motion be DENIED.
Dillon applied for DIB on June 2, 2014, alleging disability since January 9, 2014. See Certified Administrative Record (Dkt. No. 14), at 145-46 (hereinafter R.___). The Social Security Administration (SSA) denied her application on August 13, 2014. (R. 93-98.) She requested a hearing before an Administrative Law Judge (ALJ) on September 10, 2014. (R. 100-101.)
On May 6, 2016, Dillon appeared in person, with an attorney, for a hearing before ALJ Sharda Singh. (R. 45-78.) Vocational expert Linda Stein also appeared and testified. (R. 73-77.)
On October 5, 2016, the ALJ issued a decision finding that Dillon was not disabled within the meaning of the Act. (R. 11-31.) Plaintiff timely requested review by the Appeals Council (R. 258-60), but it rejected her request on April 13, 2017, making the ALJ's decision final. (R. 1-10.)
Dillon was born on October 6, 1975, and was 39 years old on the date of her application. (R. 145.) She completed high school in 1992 and received a certificate in "ultrasound" from a trade school. (R. 180, 65.) She worked as a bank teller from 2001-2003, as a buyer for a retail store from 2003 to 2009, and as a medical assistant at a doctor's office from 2012 to 2014. (R. 207.)
In a Disability Report dated June 10, 2014, Dillon reported that she was disabled due to fibromyalgia, lupus, depression, anxiety, post-traumatic stress disorder (PTSD), panic disorder, manic disorder, chronic fatigue, spinal stenosis, and herniated cervical disc. (R. 178.) In a Function Report dated July 7, 2014, prepared in connection with her application, Dillon stated that she spent her days caring for her children, reading, attending appointments, going to the library, and watching television. (R. 197.) Her disabilities left her unable to stand, sit, or walk for "a long time," socialize, perform cleaning or heavy cooking, and diminished her ability to lift objects or climb stairs. (R. 197, 200, 203.) She could no longer style her hair, but could clean and comb it. (R. 197.) She needed assistance dressing, preparing meals and doing housework. (R. 197-99.) However, she drove her children to school five times a week and went shopping and attended church once a week. (R. 200-01; see also R. 65.)
Plaintiff stated that she had problems getting along with others due to her social anxiety, and that this had worsened over time. (R. 200.) She took Aleve and Cymbalta for pain, but these medications caused her to feel sleepy and dizzy and gain weight. (R. 205-206.) She said that stress or changes in schedule gave her panic attacks and anxiety, and made her heart race, and she had trouble remembering things. (R. 204.) She was able to pay bills, count change, and handle a savings account. (R. 201.) She was able to follow written and spoken instructions and had no problems getting along with those in authority. (R. 202.) She said she could not kneel, squat, or reach. (R. 203.) She reported that she used a cane to walk. (Id.)
Between 2013 and 2016, plaintiff saw a series of treatment providers for her physical conditions. X-rays of plaintiff's left shoulder on April 23, 2013 showed no "acute abnormality." (R. 261.) X-rays of the cervical spine that same day showed straightening of the cervical curve. (R. 262.) However, the vertebral bodies were intact, the invertebral disc spaces were unremarkable, and the prevertebral soft tissue spaces showed no widening. (Id.)
An MRI taken of Dillon's cervical spine on May, 4, 2013 showed "straightening of the cervical lordosis" and "disc desiccation at all cervical disc space levels." (R. 263.) The MRI report noted disc herniation at C5-6, causing compression upon the cord narrowing the left side neural foramina. (Id.) At C6-7, there was disc herniation that abutted the spinal cord and narrowed the left-sided neural foramina. (Id.)
On May 22, 2013, Dillon saw orthopedist David Lent, M.D., complaining of "weakness and numbness in her left upper extremity." (R. 264.) On examination, Dr. Lent observed that Dillon had some weakness with wrist and thumb extension and a Spurling's Test (used to determine nerve radicular syndrome) was mildly positive on the left. (Id.) However, Dillon had "full range of motion of the shoulder, elbow, wrist, and fingers." (Id.) Dr. Lent referred Dillon to a neurosurgeon for evaluation and treatment. (Id.)
On February 20, 2014, Dillon saw rheumatologist Dr. Jacob Futran, M.D., complaining of headaches, pain in the right shoulder, and diffuse pain in the legs and low back. (R. 273-74.) On examination, plaintiff appeared to be in no acute distress. (R. 273.) Dr. Futran noted that she had tenderness in both shoulders, the left sacroiliac joint, and both hips, and had 14 fibrositic tenderpoints. (R. 273-74.)1 He assessed inflammatory spondyloarthritis, fibrositis/fibromyalgia, and rotator cuff sprain and strain, and ruled out lupus or other connective tissue diseases. (R. 274.) He prescribed exercise to address the fibrositis/fibromyalgia (because Dillon wanted to avoid medication) and the rotator cuff sprain/strain. (Id.)
Dr. Futran saw Dillon again on March 10, 2014. (R. 296-98.) Dillon reported that she continued to have neck pain and low back pain that became worse with movement. (R. 296.) On examination, Dillon had tenderness in both sacroiliac joints and mild to moderate tenderness in fiobrositic tender areas. (R. 297.) Dr. Futran's prescribed Duloxetine. (Id.)2
On April 16, 2014, spinal neurosurgeon Paul McCormick, M.D., evaluated possible fibromyalgia and lupus. (R. 277.) On examination, Dillon appeared to be "in good health" and in "no acute distress." (Id.) She had some movement limitations in her left shoulder when lifting over her head, but she had good proximal and distal strength, and normal gait and leg strength. (Id.) Dr. McCormick assessed cervical spondylosis, but noted that her condition was stable. (Id.) He advised against surgical intervention. (Id.)
Dillon returned to Dr. Futran on July 31, 2014, reporting pain in the neck and scapular region, "tiredness" in her knees, and morning stiffness. (R. 294.) Dr. Futran's examination showed tenderness in all fibrositic tender points, but was otherwise normal. (R. 294-95.) He again assessed fibrositis/fibromyalgia and again recommended that Dillon exercise. (R. 295.)
Dillon was examined by rheumatologist Jane Wachs, M.D., on September 22, 2014, for knee, ankle, and wrist pain, depression, and fatigue. (R. 304-307.) On examination, Dillon had a normal gait, normal range of motion, and full strength. (R. 306.) However, Dillon was "[t]ender everywhere," particularly in the fibromyalgia tender points. (Id.) Dr. Wachs suggested Lyrica3 to treat Dillon's fibromyalgia, and prescribed Prozac for her anxiety and depression ( that they were "clearly contributing" to the fibromyalgia). (R. 307.)
Dillon saw Dr. Wachs again on October 9, 2014. (R. 323.) She reported pain in her left shoulder, hip and thigh, and tenderness in the trapezius muscles. (Id.) She reported feeling "ok," but had some discomfort in the left shoulder, hip, thigh, and back. (Id.) She complained of muscle pain and cramps but denied back pain, joint pain/swelling, and stiffness. (R. 324.) Dr. Wachs noted that Dillon's control points were less tender and she had only mild diffuse muscle tenderness. (R. 325.) She prescribed Amitriptyline4 and discontinued Prozac. (R. 326.)
On March 9, 2015, Dillon returned to Dr. Wachs, complaining of fatigue and pain in the arm, shoulder, and legs. (R. 329.) Dr. Wachs noted that Amitriptyline was ineffective in controlling fibromyalgia, "likely because of the depression." (R. 331.) However, she continued Dillon's current medications until she commenced therapy. (Id.)
On August 24, 2015, Dillon reported to Dr. Wachs that she felt "terrible," with pain in the hips and knees. (R. 334.) On examination, however, Dillon had full range of motion and fullstrength, and normal gait and station. (R. 336.) Dr. Wachs added Elavil5 to treat Dillon's ongoing complaints of pain. (R. 336.)
On December 3, 2015, Dillon reported dizziness from the Amitriptyline and pain in the left arm, shoulder, and hip. (R. 356.) Dr. Wachs noted that Dillon's fibromyalgia "continue[d] to be symptomatic," with "diffuse tender musculature" and tender fibromyalgia points. (R. 360-61.) Dr. Wachs discontinued Amitriptyline and prescribed Lyrica. (R. 361-62.) On March 3, 2016, Dillon reported some improvement in muscle pain, but she continued to experience pain in her iliac crest and low back. (R. 363.) Her fatigue had improved. (Id.) She again had normal, gait, station, range of motion, and strength. (R. 365.) This time, Dr. Wachs's examination showed that the control points were less tender. (Id.) Dr. Wachs increased the dosage of Lyrica. (R. 366.)
On July 25, 2014, Julia Kaci, M.D., performed a consultative examination of the plaintiff. (R. 279-82.) Dillon reported pain in the neck, back, hips, shoulders, and legs, as well as depression...
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