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Moleterno v. Colvin

United States District Court, D. Arizona

February 19, 2015

Ray Jerome Moleterno, Plaintiff,
v.
Carolyn W. Colvin, Defendant.

ORDER

BRIDGET S. BADE, Magistrate Judge.

Ray Jerome Moleterno (Plaintiff) seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying his application for benefits under the Social Security Act (the Act). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b), and have filed briefs in accordance with Local Rule of Civil Procedure 16.1. For the following reasons, the Court reverses the Commissioner's decision and remands for further proceedings.

I. Procedural Background

On February 16, 2010, Plaintiff applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Act.[1] (Tr. 17.)[2] Plaintiff alleged that he had been disabled since December 31, 2007. ( Id. ) After the Social Security Administration (SSA) denied Plaintiff's initial application and his request for reconsideration, he requested a hearing before an administrative law judge (ALJ). After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 17-29.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council). Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

II. Medical Record

The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff's health.[3] The record also includes opinions from state agency physicians who examined Plaintiff or reviewed the records related to his health, but who did not provide treatment.

A. Medical Treatment

1. Robert Garcia, M.D.

Plaintiff received treatment from Dr. Garcia, a primary care physician, at St. Joseph's Hospital Family Medicine Center. (Tr. 51.) On May 11, 2009, Plaintiff saw Dr. Garcia for complaints of foot pain. (Tr. 330.) On June 25, 2009, Plaintiff returned to Dr. Garcia and reported "bilateral hand arthralgias." (Tr. 329.) Plaintiff stated that he had symmetrical pain in his wrists and hands that was present all day. ( Id. ) He also reported ankle pain. ( Id. ) On examination, Plaintiff had "minimal tenderness of the wrists bilaterally, " no warmth, no decreased range of motion, and no other abnormalities. He also had tenderness in his ankles. (Tr. 329.) Dr. Garcia assessed arthralgias of the hands and stated that he would obtain a rheumatoid panel to rule out rheumatoid arthritis. ( Id. )

On December 17, 2009, Plaintiff saw Dr. Garcia and reported right hip and knee pain related to a fall on December 12, 2009. (Tr. 328.) On examination, Plaintiff had "minimal tenderness to palpation of the trochanteric bursa and right knee laterally, " and "no pinpoint tenderness." ( Id. ) Dr. Garcia noted that Plaintiff's right knee was stable and that his range of motion was "adequate." ( Id. ) Dr. Garcia assessed trauma to the right hip and knee related to the fall and recommended an x-ray because Plaintiff had a history of osteopenia. ( Id. )

On January 19, 2010, Plaintiff presented with a "chief complaint of chest pressure." (Tr. 326.) He also reported grief related to his mother's recent death and stated that he had difficulty sleeping. ( Id. ) Plaintiff reported that he slept well for about four hours, but had trouble sleeping the "rest of the time" and had bad dreams. ( Id. ) On examination, Plaintiff had slightly decreased breath sounds, but otherwise his lungs were clear. ( Id. )

On February 26, 2010, Plaintiff presented for a follow-up appointment related to his grief. (Tr. 324.) He also reported pain in his upper back and rib cage related to a fall he sustained when his dog knocked him over a few weeks before the appointment. Plaintiff also reported that he injured his hips and knees in that fall. ( Id. ) Dr. Garcia assessed, in pertinent part, soft tissue trauma secondary to a fall and stated that he would order x-rays of Plaintiff's left ribs and scapula. ( Id. )

On April 20, 2010, Plaintiff saw Dr. Garcia with a "chief complaint of bilateral leg discomfort which [had] progressively increased over the past several weeks." (Tr. 451.) Plaintiff also reported pain in his feet and Achilles tendon region. The pain was worse "after standing from a prolonged sitting session." ( Id. ) Plaintiff did not report numbness, tingling, or neurologic deficits. ( Id. ) On examination, Dr. Garcia found that Plaintiff had "minimal tenderness in his posterior thigh region, otherwise unremarkable thigh exam." ( Id. ) Plaintiff's hips were unremarkable, his range of motion was adequate, and his knees were stable. ( Id. ) Plaintiff had some tenderness to palpation of his right anterior knee, mild tenderness of his heels, and a negative straight leg test bilaterally. ( Id. ) Dr. Garcia assessed that Plaintiff's bilateral leg pain was "unremarkable and etiology was unclear." ( Id. ) He advised Plaintiff to do stretching exercises and prescribed Percocet for "break through pain." ( Id. )

At a May 4, 2010 appointment, Plaintiff reported continued pain in his lower extremities, and discomfort in his shoulder, upper back, low back, and left lateral chest region. (Tr. 450.) Dr. Garcia noted that Plaintiff had not responded to "conservative treatment" for his pain. ( Id. ) On examination, Plaintiff had "point tenderness in his upper back region, tenderness in his lumbar region, tenderness to palpation in the left shoulder and left upper extremity, minimal tenderness in the lower extremities, and an unremarkable neurologic exam. ( Id. ) Dr. Garcia assessed diffuse musculoskeletal pain and noted that because "Plaintiff may have trigger points, although not classic, [he would] consider fibromyalgia" and consult a rheumatologist for a more definitive diagnosis. (Tr. 450.) He started Plaintiff on physical therapy and prescribed Percocet for breakthrough pain. ( Id. )

On June 30, 2010, Plaintiff saw Dr. Garcia for a follow-up after blacking out. (Tr. 447.) A CT scan of Plaintiff's head was unremarkable. On July 15, 2010, Plaintiff saw Dr. Garcia for a follow-up after a stroke. (Tr. 445.) Dr. Garcia also noted that Plaintiff was there "to have a form filled out for disability. Of significance is the fact that the patient also has fibromyalgia and has been seen by Dr. Gabriel Colceriu, a rheumatologist...." ( Id. ) Dr. Garcia also noted that Plaintiff complained of headaches. ( Id. ) Dr. Garcia stated that Plaintiff should continue his treatment regimen for fibromyalgia with Dr. Colceriu. (Tr. 446.)

On August 10, 2010, Plaintiff again saw Dr. Garcia for a follow-up for his stroke. (Tr. 500.) Plaintiff reported that he was doing physical therapy at home and was improving. ( Id. ) Plaintiff complained of left-sided back pain, upper chest discomfort, but had "no other complaints." ( Id. ) On examination, Plaintiff had some left-sided weakness. Dr. Garcia stated that he would implement out-patient rehabilitation. Dr. Garcia also stated that he "would hold off on [Plaintiff's] request for pain medication/narcotics [for his fibromyalgia] per Dr. Colceriu's recommendation." ( Id. )

On September 16, 2010, Plaintiff saw Dr. Garcia with a "chief complaint of a lesion underneath the bottom of his right foot" that caused difficulty walking. (Tr. 495.) On examination, Plaintiff was in no acute distress, and had "two plantar wart lesions." ( Id. ) Otherwise, there was "[e]ssentially no change from previous examination." ( Id. ) Dr. Garcia recommended that Plaintiff continue treatment with Dr. Colceriu for fibromyalgia. ( Id. )

On October 12, 2010, Plaintiff saw Dr. Garcia and reported left hip pain, neck discomfort, and tailbone discomfort after sustaining a fall. (Tr. 494.) He reported that he had scheduled a follow-up appointment with his rheumatologist for his fibromyalgia. ( Id. )

On November 4, 2010, Plaintiff saw Dr. Garcia with a chief complaint of a cough. (Tr. 526.) He also reported that he episodes of "falling asleep." (Tr. 526.) On examination, Plaintiff did not have tenderness to his lower extremities on palpation. Dr. Garcia assessed a "slight flare up" of fibromyalgia and gave Plaintiff a "brief burst of Percocet" with no refills, "to be used sparingly." ( Id. )

On December 2, 2010, Plaintiff reported that he continued to have chronic diffuse myalgias, which he thought were consistent with fibromyalgia. (Tr. 523.) He reported seeing Dr. Colceriu monthly and that he was "on maximum Neurontin." ( Id. ) On examination, he was in no acute distress, had diffuse nonspecific tenderness in his back, and no trigger points were noted. ( Id. ) Dr. Garcia prescribed Percocet every four to six hours as necessary, and advised Plaintiff to follow-up with Dr. Colceriu. ( Id. )

On January 24, 2011, Plaintiff saw Dr. Garcia after hospitalization for a "small-bowel obstruction/ileus." (Tr. 562.) Plaintiff did not have any other complaints except for a cough. ( Id. ) On February 11, 2011, Dr Garcia saw Plaintiff for COPD. (Tr. 561.) Plaintiff also reported that his left knee had been locking. ( Id. ) On examination, Dr. Garcia found minimal tenderness of the medial meniscal region of Plaintiff's right knee, but that his knee was stable. ( Id. ) Dr. Garcia recommended an MRI of the knee. ( Id. )

On June 25, 2011, Plaintiff presented with complaints of abdominal discomfort. Dr. Garcia noted that Plaintiff had a history of irritable bowel syndrome. (Tr. 558.) Plaintiff also reported diffuse pain that he attributed to fibromyalgia. ( Id. ) Dr. Garcia advised Plaintiff to follow-up with the rheumatologist for fibromyalgia and indicated "for now will focus on control of pain." (Tr. 559.)

2. Gabriel Colceriu, M.D.

As previously noted, in May 2010, Dr. Garcia referred Plaintiff to rheumatologist Dr. Colceriu at the St. Joseph's Hospital rheumatology clinic. (Tr. 396-98.) During a May 28, 2010 musculoskeletal examination, Plaintiff reported developing diffuse musculoskeletal pain "several months ago, " and he reported that he was tired, had no energy, and was unable to sleep at night. (Tr. 396.) He reported that Percocet helped, but the pain relief did not last long. He reported that "any sort of moving around, as well as not moving at all, [made] his pain much worse." ( Id. ) Dr. Colceriu noted that Plaintiff's reports raised the "possibility of chronic pain syndrome/fibromyalgia." ( Id. )

On examination, Plaintiff had full range of motion in his extremities, but was positive for diffuse tenderness on palpation at multiple locations. (Tr. 397.) Dr. Colceriu also found that Plaintiff's grip was intact and his ambulation was unassisted. ( Id. ) Dr. Colceriu noted that Plaintiff's reports and examination were consistent with fibromyalgia. ( Id. ) Subsequent laboratory tests to rule out other etiologies of Plaintiff's reported symptoms were negative, other than a severe vitamin D deficiency. (Tr. 394-95.)

During a June 11, 2010 appointment, Petitioner reported that he "had symptoms of diffuse pain for more than two years; however, they ha[d] been accelerating over the last few months to the point that he [was] not eating, not sleeping, and [was unable] to do anything." (Tr. 394.) On examination, Plaintiff had no synovitis in his extremities, but had diffuse tenderness on palpation over the fingertips and toes. ( Id. ) He had a full passive range of motion. ( Id. ) Dr. Colceriu found that Plaintiff "fit the pattern for [fibromyalgia] based on his diffuse pain, fatigue, disability, insomnia, and depression." (Tr. 395.) He prescribed Neurontin and an antidepressant, and advised Plaintiff to become physically active and to engage in range of motion exercises to manage his condition. ( Id. )

At a July 8, 2010 appointment, Dr. Colceriu noted that Plaintiff had done a bit better after starting Neurontin. (Tr. 392.) Plaintiff continued to report "diffuse achiness throughout his body, slightly improved on Neurontin." ( Id. ) Plaintiff also reported insomnia. ( Id. ) On examination, Plaintiff had no synovitis, but had diffuse tenderness on palpation throughout, his hand grip was intact bilaterally, and his ambulation was unassisted. ( Id. ) Dr. Colceriu assessed "[f]ibromyalgia/chronic pain syndrome manifested by diffuse arthralgias, fatigue, insomnia, depression, and disability." (Tr. 393.) He noted that Plaintiff had responded "slightly" to Neurontin and increased his dose. ( Id. )

On September 28, 2010, Plaintiff reported that he was initially better on the increased dose of Neurontin, but that his improvement had "plateaued." (Tr. 573.) He reported diffuse pain throughout his upper and lower extremities, but "was overall better than when he started." ( Id. ) Plaintiff also reported that he was only sleeping four hours a night and woke up tired. ( Id. ) On examination, Plaintiff had no synovitis, but had "diffuse tenderness to palpation starting at the fingertips and ending at the toes." (Tr. 574.) His hand grip was decreased and he was using a walker. ( Id. ) Dr. Colceriu again assessed "chronic pain syndrome/fibromyalgia, manifested by long history of diffuse arthralgias, ...


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