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Marshall v. Colvin

United States District Court, D. New Hampshire

August 27, 2014

Scott Marshall
Carolyn Colvin, Acting Commissioner, Social Security Administration.


PAUL BARBADORO, District Judge.

Scott Marshall seeks judicial review of a ruling by the Commissioner of the Social Security Administration ("SSA") denying his application for Disability Insurance Benefits ("DIB"). Marshall claims that the Administrative Law Judge ("ALJ") erred in failing to fully consider all of the evidence. For the following reasons, I affirm the Commissioner's decision.


A. Procedural History

Marshall applied for DIB on May 25, 2011, claiming that he became disabled on April 1, 2009 due to nerve damage, brain damage, post-concussion syndrome, and depression. Tr. at 198. The SSA denied Marshall's claim on November 3, 2011. Marshall then requested a hearing before an ALJ, which was held on January 30, 2013. Marshall was represented by an attorney and a vocational expert ("VE") testified. On April 19, 2013, the ALJ issued a decision finding that Marshall was not disabled. The Appeals Council denied Marshall's request for review, making the ALJ's decision the final decision of the Commissioner.

B. Relevant Medical History

1. Early Treatment for Orthopedic Impairments

In 1998, Marshall underwent surgery to treat a disc herniation[2] impinging on a nerve root. He then began experiencing chronic back pain that has continued to the present. Marshall began treatment in 1993 for chronic bilateral knee pain leading to multiple knee operations that have provided limited pain relief. In 1997, diagnostic imaging indicated degenerative disc disease of the cervical spine.

2. Dr. Marino

Dr. Anthony R. Marino, an orthopedist, began treating Marshall for his degenerative disc disease and recurrent disc herniation in 1999. That year Marshall underwent a revision discectomy with hemilaminectomy and foraminotomy.[3] The following year Dr. Marino diagnosed Marshall with symptomatic left elbow ulnar neuritis and lateral epicondylitis following a left arm acromioplasty and electromyogram.[4] In 2000, Marshall reinjured his right shoulder in a fall following a prior successful shoulder surgery. Dr. Marino diagnosed right shoulder tendonitis after an MRI revealed that Marshall's rotator cuff was intact. In February 2001, Dr. Marino diagnosed Marshall with right shoulder bursitis and possible biceps tenosynovitis after an MRI revealed glenohumeral joint effusion.[5] Marshall underwent a right shoulder arthroscopy, release of the biceps tendon, and bursal debridement soon thereafter, but his right shoulder pain persisted.[6] Dr. Marino reported that Marshall had a permanent right shoulder impairment in November 2002.

3. Dr. Sadowsky

Marshall sought mental health treatment from a psychotherapist from 1991 to 2003. He was prescribed Zoloft and Paxil during this period.[7] Tr. at 507. In October 2002, Marshall's primary care physician ("PCP"), Dr. Robert Quirbach, began prescribing a series of psychotropic drugs to Marshall, including Zyprexa, Serzone, Celexa, BuSpar, and Ativan.[8] Marshall reported that these drugs were only temporarily effective in treating his depression and anxiety. Tr. at 506.

In April 2003, Marshall began to receive treatment from psychiatrist Dr. Marc Sadowsky. He informed Dr. Sadowsky that he had previously been diagnosed with attention deficit disorder ("ADD"). He noted that he had abused drugs and alcohol in the past but had been sober for seventeen years. Among other issues, Marshall reported a decreased appetite, crying spells, decreased libido, anhedonia, [9] and episodes of euphoria accompanied by a sense that he could "do anything." Dr. Sadowsky prescribed Effexor.[10]

Dr. Sadowsky treated Marshall approximately once every one to two months for the following ten years. During this time Marshall alternated between reporting that things were "going well" and that he was a "tortured soul." At various points, he described his mood as "improved, " "somewhat better, " "fairly stable, " "down, " "in a significant funk'" "variab[le], " "depressed, " and "despondent." He reported that his history of concussions, many accompanied by a loss of consciousness, had contributed to mood variability and balance difficulties. In 2003 Marshall reported "increasing anxiety" and irritability, but by 2010 he denied significant difficulties with these issues. He reported suicidal ideation without a current plan or intent in both 2003 and 2011 and reported stress due to an unstable living situation between 2010 and 2012. Marshall reported in 2003 that his memory was "terrible, " described it as "variable" in 2010, and noted in 2012 that his memory had improved since he began taking Huperzine A.[11]

Marshall noted at various office visits that his energy was "increased, " "decreased, " and "okay"; that his concentration was "decreased, " "okay, " and "variable"; and that he had "an inability to focus" which was "improved, " "decreased, " and "better" over time. He reported "racing thoughts" on one occasion. Marshall frequently reported "significant" or "episodic" sleep difficulties and "difficulty falling asleep and mid-night awakening." He stated that he had "not been sleeping well, " "did not sleep for four nights" on one occasion, took Trazodone[12] as a sleep aid, but was sleeping better by 2011. He also reported weight loss on at least two occasions.

Marshall initially reported that he was "not able to work on a regular basis, " had "decreased" motivation, and was "having difficulties getting out of bed." In contrast, between 2009 and 2012 Marshall consistently noted that he was "working on his used book business[] and doing some writing, " which "seemed to be going fairly well for him" and "helped his demeanor." By August 2012, Marshall reported improved self-esteem and noted that he was socializing. Between 2011 and 2012, Marshall began taking Risperidone and Gabapentin, [13] which he reported to be "somewhat helpful" in addressing his headaches and neuropathy;[14] however, he periodically ran out of these and other medications due to financial hardship.

Dr. Sadowsky described Marshall's affect at various times as "anxious, " "subdued, " "calm, " "euthymic, " and "pressured"; his mood as "anxious, " "improving, " "okay, " "variable... angry at times, " "despondent, " "depressed, " "good, " and "better"; his concentration and energy as "okay except when he is dealing with pain, " "variable, depending on the amount of sleep, " "fair, " "better, " "varied, " and "decreased"; his motivation as "variable"; his sleep as "disturbed" and "variable with occasional mid-night awakening"; and his memory as "impaired, " "normal, " and "better." Dr. Sadowsky noted Marshall's "very limited" stress reaction that may contribute to his difficulties focusing. At various times, Dr. Sadowsky observed Marshall's irritability, racing thoughts, and pressured speech. He noted on certain occasions that Marshall was either not suicidal or having fleeting thoughts of suicide. Dr. Sadowsky filled out a Family Medical Leave Act form in 2007 in response to Marshall's reports that he could not work and recommended that he see a neurologist in 2012. He also observed that Marshall was losing weight in 2012.

In June 2011, Dr. Sadowsky noted Marshall's diagnosis of major depressive disorder, recurrent episode, in partial or unspecified remission.[15] He reported in October of that year that Marshall had "some decrease in attention, " was "limited" in his ability to interact socially, and was "[n]ot on meds now" but had "responded fairly well" to treatment. He also noted that he was "unable to assess" Marshall's task performance and was "unsure what he does for daily activities."

4. Dr. Quirbach

Dr. Quirbach has been Marshall's PCP for over twenty years, but the record primarily documents their treatment relationship from 2009 to 2012 when Marshall visited Dr. Quirbach approximately once a month. In May 2009, Dr. Quirbach noted that Marshall was doing well and had lost weight due to taking Zyprexa. He prescribed Ritalin[16] for Marshall's ADD, which he and Marshall both described as "stable" and gradually improving. Dr. Quirbach treated Marshall's migraine headaches and photophobia[17] with Maxalt, Dilaudid, and therapeutic injections.[18] Dilaudid, Percocet, Ibuprofen, Tylenol with Codeine, therapeutic injections, and a prednisone taper[19] were used to treat Marshall's various other ailments, including numbness and weakness in the left arm and fingers resulting from left ulnar neuropathy at the elbow; median neuropathy of the left wrist consistent with carpal tunnel syndrome; left wrist joint tenderness, swelling, and decreased range of motion; cervical radiculopathy and sciatica causing spine tenderness, chronic back pain, and pain radiating through the right hip, leg shoulder, and arm; neck pain; and a right biceps tendon injury that had been aggravated by a fall.[20] Marshall also reported "horrible" bilateral foot and ankle pain; x-rays indicated calcaneal spurs, degenerative changes of the left first metatarsophalangeal joint, incidental hammer toes, and tenosynovitis for which Marshall received Dilaudid and Nubain.[21] Marshall noted on two occasions that Dilaudid made him nauseous; Dr. Quirbach consequently recommended that he be evaluated by a methadone clinic rather than taking other long-acting narcotics that could potentially be abused.

Marshall reported at various times that he was "very optimistic that he is doing well, " had "no complaints, " was "doing better with his business, " was continuing to write novels, hoped to travel, and did not require pain medication. At other times, Marshall informed Dr. Quirbach that it felt "like his hand is in a vice, " likened the pain to a fractured wrist, and reported "almost unbearable" back pain making it difficult for him to sit.

Dr. Quirbach reported that Marshall had good motor strength in his left arm and a full range of motion of all joints in the extremities, but also noted limping, decreased range of motion and swelling of the spine, positive bilateral straight leg raises, and an episode of ataxia.[22] On one occasion he observed left wrist swelling with significant pain and limited range of motion despite a normal x-ray. On another occasion he reported tenderness and decreased range of motion in the left shoulder as a result of a "high riding proximal humerus worrisome for tear of the rotator cuff." Dr. Quirbach suggested that Marshall's cervical radiculopathy would require surgery, and an orthopedist diagnosed Marshall with left cubital tunnel syndrome[23] and recommended surgical release.

Marshall also reported short-term memory problems to Dr. Quirbach, who occasionally noted that Marshall was on edge, not himself, crying, anxious, hyperactive, and agitated. In March 2013, Dr. Quirbach noted "increased anxiety related to [Marshall's] poor financial situation." He ordered a brain MRI that, according to neurologist Dr. Deborah Berger, showed white matter lesions potentially consistent with early small vessel ischemia or a demyelinating disease such as multiple sclerosis.[24] Dr. Quirbach opined that the white matter lesions were consistent with Marshall's history of past drug abuse and head trauma, reported that he had organic brain syndrome, [25] and recommended that Marshall participate in a head trauma study requiring donation of Marshall's brain to research following his death. He later stated that Marshall's organic brain syndrome was "overall... better" and that Neurontin[26] and Risperidone appeared to be helping.

In July 2012 and February 2013, Dr. Quirbach opined that Marshall could lift and carry no more than ten pounds; could stand and/or walk less than two hours in an eight-hour day; could sit less than six hours in an eight-hour day; needed to periodically alternate sitting and standing; had diffuse pain, limited range of motion, and limited pushing and pulling abilities in both his upper and lower extremities due to weakness in his lower spine and a "dysfunctional" left arm; could never climb ramps, stairs, ladders, ropes, or scaffolds; could never balance or crawl; could occasionally kneel, crouch, stoop, reach, and handle; could frequently feel; had unlimited fingering abilities; could tolerate limited exposure to noise, dust, vibration, fumes, odors, chemical, and gases; needed to avoid humidity, wetness, extreme cold, and hazards such as heights; would need to be able to take unscheduled breaks to relieve pain or discomfort; would be capable of gainful employment on a sustained basis only in a "very controlled environment"; and would be likely to be absent from work more than four times per month. He also noted that Marshall had "episodic mood disorder" and "reduced intellectual functioning" due to multiple head traumas. According to Dr. Quirbach, these impairments caused Marshall to have difficulty at least one third of the time in completing tasks and activities of daily living, tolerating stresses common to a work setting, working in coordination with or proximity to others without being distracted, adapting to changes in the work setting, and performing at a consistent pace. He noted that Marshall would ...

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