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Lamy v. Berryhill

United States District Court, D. New Hampshire

June 22, 2018

Daniel Lamy, Claimant
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

          ORDER

          Steven J. McAuliffe United States District Judge.

         Pursuant to 42 U.S.C. § 405(g), claimant, Daniel Lamy, moves to reverse or vacate the Acting Commissioner's decision denying his application for Disability Insurance Benefits under Title II of the Social Security Act. See 42 U.S.C. § 423. The Acting Commissioner objects and moves for an order affirming her decision. For the reasons discussed below, claimant's motion is granted, and the Acting Commissioner's motion is denied.

         Factual Background

         I. Procedural History.

         In January of 2015, claimant applied for Disability Insurance Benefits (“DIB”), alleging that he was disabled and had been unable to work since September 18, 2013. Claimant was coverage to remain insured through September of 2017. Claimant's application was denied and he requested a hearing before an Administrative Law Judge (“ALJ”).

         In August of 2016, claimant, his attorney, and an impartial vocational expert appeared before an ALJ, who considered claimant's application de novo. About three months later, the ALJ issued her written decision, concluding that claimant was not disabled, as that term is defined in the Act, at any time prior to the date of her decision. Claimant then requested review by the Appeals Council. That request was denied. Accordingly, the ALJ's denial of claimant's application for benefits became the final decision of the Acting Commissioner, subject to judicial review. Subsequently, claimant filed a timely action in this court, asserting that the ALJ's decision is not supported by substantial evidence.

         Claimant then filed a “Motion for Order Reversing the Decision of the Commissioner” (document no. 7). In response, the Acting Commissioner filed a “Motion for an Order to Affirm the Commissioner's Decision” (document no. 9). Those motions are pending.

         II. Stipulated Facts.

         Pursuant to this court's Local Rule 9.1, the parties have submitted a joint statement of stipulated facts which, because it is part of the court's record (document no. 10), need not be recounted in this opinion. By way of brief background, the court notes the following. Claimant worked as a torch brazer for approximately 25 years at a General Electric facility in Hooksett, New Hampshire. He testified that he began working there at age 21, was making “good money, ” felt his co-workers “were like family, ” and, but for his disabling back pain, had planned to retire from there. Admin. Rec. at 56 (“I was there 25 years making good money. But I had to leave the job after only 25 years [while] I was still young. I was only 47. But I could have went another 20 years, you know, and making good money, too. . . . So it was a good job and I was there 25 years and I had to walk away from it.”). Claimant has a long history of back pain, dating to a motorcycle accident in the mid-1980's. Admin. Rec. at 384. As that pain became worse, General Electric tried to accommodate him by providing a stool at his work station, so he could take some pressure off of his legs. Id. at 56. And, under the FMLA, claimant was also permitted to take various periods of time off from work when his pain became too great for him to function effectively. Id. at 57. Eventually, his pain became so severe that he was unable to return to work, General Electric concluded that he was totally disabled, and he began collecting benefits under GE's long term disability plan.

         Over the years, claimant's pain has become progressively more severe and disabling. He has tried various ways to address that pain, including spinal injections and physical therapy, Admin. Rec. at 31, 54-55, 524; wearing a back brace, Id. at 58; using a jetted tub, id.; using a cane or walking stick when his “legs are real weak and [his] back is real bad, ” Id. at 50, 458; and, as noted by Dr. Ahn, “taking chronic pain medication for a long time, ” Id. at 524. Unfortunately, however, his long-term use of those medications (which included 30mg of morphine twice daily) caused stomach and liver problems and he had to discontinue their use. See Id. 58-59, 327, 419, 444, 524.

         In 2013, claimant moved his bed from the second floor to the first, so he could avoid using the stairs. Admin. Rec. at 247, 253, 277. At the hearing, claimant described an event that happened about a month earlier when he was awakened in the middle of the night screaming in pain, to the point that he frightened his girlfriend and her dogs (and prompted her to insist that he go to the emergency room for treatment - something he says he had never done before in his life). Id. at 66, 453-59. In July of 2016, following his trip to the emergency room, claimant obtained a surgical consult with Dr. Uri Ahn, at the New Hampshire NeuroSpine Institute. Dr. Ahn diagnosed claimant with “significant degeneration lateral osteophytes loss of disc space height at ¶ 3-4. . . . Degenerative disc disease L3-4 [and] spinal stenosis of lumbar region.” Admin. Rec. at 525-26. Although Dr. Ahn discussed surgery to address claimant's chronic pain, he discouraged claimant from pursuing that option because the success rate associated with such a procedure is only 66 percent, because infection and nerve damage were a possibility, because claimant was not suffering from constant severe pain, and because he was concerned about claimant's cigarette smoking. Id. Dr. Ahn explained that the type of surgery they were talking about was typically recommended only “for people for suffering on a daily basis.” Because claimant's debilitating pain was episodic, surgery was not recommended, “no matter how severe” his pain. Id. at 525-26.

         Nothing in the record suggests that claimant exaggerates his symptoms or is anything but an accurate historian when describing his treatment regimen, medications and their efficacy and side effects, daily activities, and levels of pain. He has, for example, been consistently forthright with his treating physicians about his efforts to obtain some relief through the use of “alternative” pain medications - something that obviously causes him more than a little embarrassment. See, e.g., Admin. Rec. at 59-60. See also Id. at 303, 454-55, 525. Finally, the evidence is undisputed that he is not a malingerer - indeed, when asked about that topic, one of his treating physicians, Dr. Thomas Synan (who has known claimant for more than twenty years), responded that claimant is “absolutely not” a malingerer. Id. at 452. See also Id. at 390 and 528.

         Standard ...


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