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Nyholm v. Commissioner of Social Security Administration

United States District Court, D. New Jersey

March 31, 2017

DAWN NYHOLM, Plaintiff,

          Richard Lowell Frankel, Esq. BROSS & FRANKEL, PA, Attorney for Plaintiff

          Roxanne Andrews, Esq. Social Security Administration Office of the Regional Chief Counsel, Attorney for Defendant


          HO. JEROME B. SIMANDLE, Chief U.S. District Judge


         In this action, Plaintiff Dawn Nyholm (hereinafter, “Plaintiff” or “Ms. Nyholm”) seeks review of the Commissioner of the Social Security Administration's (hereinafter, “Defendant” or “the Commissioner”) denial of her application for Supplemental Security Benefits under Title XVI of the Social Security Act (“SSA”), pursuant to 42 U.S.C. § 405(g).

         Plaintiff claims that she is disabled due to a host of impairments, including lumbar and cervical radiculopathy, degenerative disc disease, bulging discs, cervical facet arthropathy, myofascial pain syndrome, left ankle tendonitis, bilateral knee pain, urinary retention, post concussive syndrome, endometriosis, psoriasis affecting feet and hands, and anxiety and depression. On January 22, 2015, Administrative Law Judge (“ALJ”) Marguerite Toland issued a 27-page opinion finding that Plaintiff was not entitled to Social Security benefits. The ALJ arrived at the decision after taking testimony from Plaintiff as well as receiving written interrogatories from Vocational Expert (“VE”) Louis P. Szollosy.

         In the pending appeal, Plaintiff argues that the ALJ's decision must be reversed and remanded on four grounds. First, she argues that ALJ Toland's finding as to her residual functional capacity (“RFC”) was not supported by substantial evidence because the ALJ did not give appropriate weight to the opinions of Plaintiff's treating physicians. Second, Plaintiff argues that ALJ Toland erred in her evaluation of the interrogatories propounded by the Plaintiff on the VE. Third, she argues that the ALJ erred in her Step Two analysis by not including Plaintiff's non-severe impairments in the formulation of RFC. And finally, Plaintiff argues that ALJ Toland erred in her determination of credibility.

         For the reasons that follow, and after careful review of the entire record, the parties' submissions, and the applicable law, the Court will remand the case for further adjudication regarding the inclusion of Plaintiff's non-severe impairments in the formulation of RFC.


         A. Procedural Background

         Plaintiff filed an application for social security disability benefits on September 25, 2012, alleging an onset of disability from June 1, 2011, at the age of 31. Her claim was initially denied on January 15, 2013, and upon reconsideration on July 8, 2013. (R. at 19.) A hearing before ALJ Marguerite Toland was held on March 6, 2014, which resulted in an unfavorable decision, dated January 22, 2015, finding Plaintiff not disabled. (Id. at 53.) The VE was unable to attend the hearing, but instead completed written interrogatories from the ALJ, including additional interrogatories posited by the Plaintiff (Id. at 56, 234-53.) Plaintiff then requested review of the hearing decision the Appeals Council, but the Council denied Plaintiff's Request for Review on November 10, 2015. (Id. at 1, 14-15.) This appeal followed.

         B. Factual Background

         Plaintiff was born on August 18, 1979 and is currently 37 years old. (Id. at 88.) She is a high school graduate with two years of college, and has past relevant work as a collection agent. (Id. at 191.)

         1. Initial Back Pain

         Plaintiff began experiencing lower back pain as far back as April 2003, when she was involved in a motor vehicle accident. (Id. at 318.) She saw Edward T. Soriano, D.O. and Trina Lasko, D.O. on numerous occasions between 2005-2010 to help treat her pain. (Id. at 305-310, 313, 316.) In a November 2010 visit to Dr. Philip Tasca, Plaintiff noted “continued back pain, which is unchanged and chronic.” (Id. at 266.) On April 7, 2011, Plaintiff saw Jennifer Windstein, M.S., P.A.-C., and complained of back pain radiating into the left glute (5-6/10 on the VAS pain scale), and at times shooting pain into the bilateral feet. (Id. at 262.) Plaintiff was assessed with lumbosacral spondylosis, chronic and stable; history of cervical spine spondylosis, and eczema, and opted to proceed with injection therapy. (Id. at 263.) On June 9, 2011, Plaintiff informed Ms. Windstein that she could not pay for an injection, so Ms. Windstein changed Plaintiff's medications to Percocet, MSContin, Valium and Neurotonin. On August 11, 2011, Plaintiff returned to Ms. Windstein, complaining about muscle spasm and shooting pain to the lower extremity. (Id. at 260.) She was observed walking to the examination room, from the examination room, and to her car. (Id.)

         Barry Gleimer, D.O. examined Plaintiff on January 4, 2012, and found that Plaintiff exhibited palpatory tenderness over the lumbar musculature left more than right, with facet tenderness at the L4-5 and L5-S1 levels (Id. at 521.) Dr. Gleimer diagnosed Plaintiff with lumbar disc protrusion at ¶ 5-SI with a disc buldge at ¶ 4-5, facet arthrosis at ¶ 4-5 and L5-SI and chronic lower back pain. On February 5, 2012, after seeing Dr. Mohsen Kalliny, Plaintiff was diagnosed with lumbar disc herniation and lumbar radiculopathy. (Id. at 404.) Plaintiff followed up with Dr. Kalliny on March 6, 2012, and indicated an increase in her pain (8 out of 10) and pain during the procedure (Id. at 402, 421.) After an MRI on March 22, 2012 revealed multilevel lumbar disc bulging/protrusion; multilevel bulging cervical disc; acute lumbar radiculopathy, and cervical facet arthrosis with degenerative disc disease, Plaintiff was given stronger medication, including 120 Percocet from Dr. Kalliny each month. (Id. at 31.)[1]

         Then, on August 10, 2012, Plaintiff indicated to Dr. Louis Spagnoletti that she had neck pain radiating into the upper extremities, low back pain radiating into the lower extremities, and headaches. (Id. at 430.) Dr. Spagnoletti diagnosed Plaintiff with lumbar and cervical radiculopathy, ambulatory dysfunction, cervical facet atrophy, cervical and lumbar degenerative disc disease, migraine and myofascial pain syndrome (Id. at 431.) Plaintiff continued to see Dr. Spagnoletti throughout the fall of 2012 and into early 2013. (Id. at 527-29, 531-533, 690-693.) After an examination on March 19, 2013, Plaintiff reported her pain measured at 5 out of 10, and Dr. Spagnoletti continued Plaintiff's medications - Norflex, Kadian, Valium, and Roxicodone. (Id. at 545.) Plaintiff's pain remained at 5 to 6 out of 10 throughout 2013 visits with Dr. Spagnoletti (Id. at 527-46.) Plaintiff last saw Dr. Spagnoletti on May 13, 2014, when she reported pain that traveled from her left leg that was sharp, stabbing, and burning. But her pain remained between 5 and 6 out of 10. (Id. at 690.)

         On October 24, 2013, Dr. Justin Schweitzer assessed Plaintiff with low back pain. (Id. at 503.) Dr. Schweitzer opined that the Plaintiff's overall symptoms would preclude her from working 3-4 days per month, and that she would be “off-task” in excess of 35% of an eight-hour workday. (R. at 584-86, 589.) Additionally, Dr. Schweitzer opined that Plaintiff could sit for less than four hours out of an eight-hour workday, stand for less than two hours out of an eight-hour workday, and occasionally lift and carry ten pounds. (Id. at 587.)

         2. Cervical Impairments

         On February 5, 2012, Dr. Kalliny examined Plaintiff, and diagnosed her with cervical degenerative disc disease and cervical facet arthrosis at ¶ 4-6, but on a follow-up visit on March 6, 2012, Dr. Kalliny noted that an MRI of Plaintiff's cervical spine revealed no significant abnormality. (Id. at 402.) On August 10, 2012, Dr. Spagnoletti diagnosed Plaintiff with myofascial pain syndrome, cervical degenerative disc disease, cervical facet arthropathy and cervical radiculopathy, after Plaintiff stated that she experienced neck pain that radiated to both upper extremities. (Id. at 427-32.) He prescribed Valium, Roxicodone and Tramadol. (Id.) On April 14, 2014, Plaintiff complained of neck stiffness, and Dr. Spagnoletti observed tenderness in the levator scapulae, scalenes, and sternalis. (Id. at 692-93.)

         3. Migraine Headaches

         On August 6, 2012, Plaintiff was evaluated by Dr. Albert J. Tahmoush for her daily headaches, was diagnosed with occipital neuralgia, and prescribed Topamax and Imitrex. (Id. at 424.) Plaintiff informed Dr. Spagnoletti on August 10, 2012 that she experienced migraine headaches. (Id. at 427-32.) Jonathan Orwitz, M.D. examined Plaintiff on July 30, 2013, and Plaintiff stated there that she experienced daily headaches and severe headaches 12 to 15 times per month. (Id. at 610-613.) However, he declined to treat Plaintiff and informed her that she should be seeing a high-level pain management specialist or headache clinic to treat her headaches due to the combination of her narcotic angalgesics and headache medication. (Id.)

         Then, on September 27, 2013, Plaintiff saw Dr. Sean Hubbard, and he added Nortriptyline to her treatment regimen in addition to Imitrex, Topamax, and Fioricet. (Id. at 622.) A few months later, Dr. Hubbard noted that Nortriptyline helped, but Plaintiff's migraines were still severe. (Id. at 616.) On December 26, 2013, Dr. Hubbard completed a Headache Medical Source Statement (MSS), where indicated that Plaintiff's diagnosis was “frequent [and] intractable migraines” with associated symptoms of vertigo, nausea/vomiting, photosensitivity, visual disturbances, mood changes, mental confusion, inability to concentrate and fatigue. (Id. at 548.) Dr. Hubbard further indicated that Plaintiff would experience headaches five out of seven days a week, and may be continuous. (Id.) He opined that Plaintiff's migraine pain was profound and intractable, and virtually incapacitated her (Id. at 550.) He opined that Plaintiff would have to lay down 1.5-2 hours on a daily unpredictable basis. (Id.)

         Dr. Jay Klazer, D.O examined Plaintiff on April 23, 2014, and he concluded that her migraines were likely related to central nervous system polypharmacy. (Id. at 683-85.) Dr. Spagnoletti examined Plaintiff on May 13, 2014, and prescribed her Fioricet, as well as provided her a list of foods to avoid. (Id. at 690-93.)

         4. Endometriosis

         Plaintiff initially complained of right upper quadrant abdominal pain on January 6, 2012, and an ultrasound revealed a retroflexed uterus, a focal echogencity along the posterior aspect of the endometrium, which could represent adenomyosis, and two large simple cysts on the right ovary. (Id. 433-442.) She was diagnosed with an ovarian cyst. (Id.) On March 7, 2012, Plaintiff followed up with Dr. Donald Cannon, M.D., and he informed her that her cysts would likely resolve, and prescribed her Percocet and Motrin and ordered an imaging study. (Id. at 377-394.) On May 14, 2013, Plaintiff indicated to Dr. Spagnoletti that she was using a synthetic hormone to treat her endometriosis and polycystic ovary disease. (Id. at 541-42.) An MRI of Plaintiff's pelvis performed on March 4, 2014 revealed two simple cysts on the right ovary, and an enlarged right ovary. (Id. at 666-668.)

         5. Left Ankle Tendinosis

         After twisting her left ankle tripping on an uneven sidewalk on September 3, 2013, Plaintiff saw Carl Mogil, D.O., on October 14, 2013 (Id. at 573.) Plaintiff was diagnosed with a Grade I-11 left ankle sprain and/or peroneal nerve injury to the left ankle (Id. at 574, 579.) After she complained of numbness in her left lateral foot, Dr. Spagnoletti recommended that she use a cane. On November 4, 2013, Dr. Mogil ordered an EMG and nerve conduction study. (Id. at 578-79.) On January 6, 2014, MRI of Plaintiff's left ankle revealed mild posttraumatic tendinosis of the peroneal tendons, subtalar arthritis and joint effusion. (Id. at 659.)

         6. Psoriasis

         On April 27, 2011, Steven Manders, M.D. indicated that Plaintiff had a history of an 8-month psoriasis eruption on her feet and hands, and exhibited erythema and postulation, bilaterally on the palm/plantar surfaces. (Id. at 361.) Plaintiff underwent light treatment for her psoriasis on June 22, 2011, but she did not attend the treatments with enough frequency in order to be successful (Id. at 356) Plaintiff informed Dr. Spagnoletti on August 10, 2012 that she had psoriasis on her hands and feet, which caused her to leave work in June 2011. (Id. at 427-432.) Plaintiff informed Dr. Spagnoletti on August 6, 2013 that she was taking Enbrel, prescribed by Dr. David Finkelstein, for psoriatic arthritis. (Id. at 527-546.)

         7. Bilateral Knee Pain

         On July 29, 2013, Plaintiff told Dr. Joseph Gallagher that she had bilateral knee pain, but exhibited a full range of motion without pain. (Id. at 497-98.) Dr. Spagnoletti observed crepitus in her knee on July 9, 2013, and ordered physical therapy on August 6, 2013. (Id. at 537-38.)

         8. Urinary Retention

         On May 8, 2014, an imaging study of Plaintiff's kidneys revealed an extrarenal pelvis and hydronephrosis of the right kidney, which persisted despite post voiding. (Id. at 676-77.)

         9. Post ...

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