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Achilles v. Berryhill

United States District Court, D. New Hampshire

September 26, 2017

Scott Achilles
Nancy A. Berryhill, Acting Commissioner of Social Security [1] Opinion No. 2017 DNH 209


          Landya McCafferty United States District Judge

         Scott Achilles seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of the Social Security Administration, denying his application for Supplemental Security Income (“SSI”) under Title XVI. Achilles moves to reverse the Commissioner's decision, contending that the Administrative Law Judge (“ALJ”) erred in failing to give substantial weight to his treating physician's opinion and erred in her residual functional capacity assessment. The Acting Commissioner moves to affirm. For the reasons that follow, the decision of the Acting Commissioner is affirmed.

         Standard of Review

         In reviewing the final decision of the Acting Commissioner in a social security case, the court “is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ's factual findings as long as they are supported by substantial evidence. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016).

         In determining whether a claimant is disabled, the ALJ follows a five-step sequential analysis. 20 C.F.R. § 416.920. The claimant bears the burden through the first four steps of proving that her impairments preclude her from working.[2] Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth step, the Acting Commissioner has the burden of showing that jobs exist which the claimant can do. Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).


         On September 13, 2013, Achilles filed for SSI benefits, alleging disability due to seizures and severe back pain. He originally alleged that he became disabled on November 15, 2008, but amended his onset date to November 21, 2012. He was 36 years old in 2012 when he alleges that he became disabled.

         I. Medical Evidence

         A. Back Pain

         The medical records related to Achilles' back pain begin in November 2012 when Achilles saw Dr. Adam Pearson, complaining of a history of chronic back pain that had increased in the previous six months. Upon physical examination, Achilles appeared comfortable and in no acute distress with normal gait and leg strength, although he was tender in his back on palpation and his ability to flex and extend was limited by pain. Dr. Pearson noted that Achilles had undergone an MRI in July 2012 which showed some degenerative changes but no scoliosis or spondylolisthesis. Dr. Pearson also noted that Achilles's back pain was not radicular, and he scheduled Achilles for medical branch blocks.

         On June 19, 2013, Achilles went to Paincare Centers for his back pain and was examined by Francis Valenti, APRN, CPNA. Nurse Valenti found that Achilles's gait, spine alignment, and mobility were normal, and that he had normal range of motion and strength in his arms and legs. Nurse Valenti administered facet joint injections, which Achilles said did not help his everyday pain, although he appeared to be normal on examination. Achilles was referred to physical therapy to improve his overall conditioning.

         In August 2013, Achilles's primary care provider, Sonya Gilbert PA-C (a Certified Physician Assistant), noted that oxycodone was generally effective in controlling Achilles's back pain and that he took it only when the pain was severe. PA Gilbert's examination showed normal results although Achilles had a limited range of motion due to pain. Achilles saw PA Gilbert again in October and December 2013 and had similar exams, though he used a cane for assistance during the December visit.

         Achilles saw Nurse Valenti at Paincare Centers again on September 25, 2013, and complained that physical therapy had exacerbated his lower-back pain, which was now radiating to his left leg. Despite those complaints, Achilles's examination yielded normal results. Nurse Valenti recommended a lumbar MRI to rule out a spinal disc issue. Achilles did not have an MRI and did not return to Paincare Centers.

         In May 2014, Achilles told PA Gilbert that oxycodone was no longer working, and she increased the dosage. Upon examination, Achilles was pleasant and in no acute distress, although he had some indications of back pain. PA Gilbert ordered a lumbar MRI, but Achilles was unable to get the MRI because of insurance issues.

         PA Gilbert referred Achilles to Dr. Paul Kamins for an orthopedic evaluation, which was done on October 9, 2014. Upon examination, Achilles had positive straight-leg raising on the left and pain while bending. His other results, including strength, were normal. Dr. Kamins ordered a lumbar MRI, which showed a disc protrusion, a disc osteophyte, and mild right-sided foraminal narrowing. The reviewing radiologist noted that the foraminal narrowing was also present on the November 2012 MRI, and observed that “there is nothing seen on the left side to correspond to the patient's increasing symptomatology.” B. Seizures and Mental Health On January 25, 2013, Achilles saw Dr. Gopalan Umashankar for evaluation of his seizures, and Achilles reported incidents of twitching, drooling, and some incontinence “after coming off the dilantin.” Dr. Umashankar prescribed Keppra and Lamictal for a four-week trial, and instructed Achilles not to drive.

         On March 7, 2013, Achilles again saw Dr. Umashankar complaining of frequent staring spells. His examination was unremarkable and Dr. Umashankar noted that it was “unclear if these staring spells are truly seizures or if the[s]e are absentmindedness.” Dr. Umashankar ordered a 24-hour EEG study, which confirmed that Achilles had general epilepsy but the EEG was normal, despite Achilles's report of seizures during the test.

         Achilles saw Dr. Barry Roth, a psychiatrist, for depression several times in late 2012 and early 2013 without any significant findings. On March 20, 2013, Achilles underwent a neuropsychological evaluation with Dr. Matthew Holcomb, a postdoctoral fellow operating under the supervision of Dr. Robert Roth, a neuropsychologist. Dr. Holcomb found that the testing and Achilles's reports were consistent with “mild frontal-temporal systems dysfunction, possibly greater for the left hemisphere, ” and that “the etiology of [Achilles's] cognitive problems is likely multifactorial including seizures and ADHD.” Dr. Holcomb also felt that moderate to severe emotional distress was playing a central role in Achilles's cognitive functioning. He recommended proactive planning and organizational strategies, and advised Achilles to limit distractions, take occasional breaks, and maintain a healthy lifestyle.

         In May 2013, Achilles saw Maria McHose, PMHNP, who treated him for ADHD and depression. Nurse McHose noted that Achilles was cooperative and friendly, had normal thoughts, a grossly intact memory, fair insight and judgment, and questionable impulse control. Nurse McHose later diagnosed Achilles with ADHD and depression, and assigned him a Global Assessment of Functioning (“GAF”) score of 61, which indicates mild symptoms.

         Nurse McHose found similar results at subsequent visits. Eventually, Nurse McHose prescribed Lexapro, and added Vyvnase in February 2014 to address Achilles's reports of “persistent avolition and attentional difficulties.” In December 2013, Achilles twice sought emergency treatment for seizures. When he followed up with Dr. Umashankar on December 9, 2013, Dr. Umashankar observed an episode that he characterized as a psychogenic non-epileptic seizure, and prescribed Lexapro and counseling. He advised Achilles that he did not need to seek emergency treatment for these non-epileptic episodes and should just lie down until they passed.

         On January 8, 2014, Achilles saw Dr. Krzysztof Bujarski, a neurologist, who noted that Achilles had been diagnosed with idiopathic generalized epilepsy but had been doing quite well on medication until two months ago. He noted that Achilles reported experiencing new seizures and that he had had 50 such seizures in the two months prior to his appointment with Dr. Bujarski. Dr. Bujarski diagnosed him with likely “psychogenic nonepileptic seizures.” Achilles subsequently underwent EEG video monitoring to determine the etiology of his new reported seizures. During the overnight monitoring, Achilles had one event that did not register on the EEG, suggesting that it was not related to epilepsy.

         On July 13, 2013, Achilles went to the hospital with a complaint of “episodic unresponsiveness, ” and his wife stated that he had occasionally been unresponsive for the past three days. During a neurologic examination, he followed commands, but slowly. He was diagnosed with conversion disorder and discharged with instructions to follow up with his primary care physician.

         In March 2015, Achilles saw Dr. Umashankar. Achilles's wife and mother, who went with him to the visit, told Dr. Umashankar that Achilles had memory problems and had “one seizure like the old real seizure.” Dr. Umashankar ...

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