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Bunny L. Sterling v. Michael J. Astrue

August 29, 2012


The opinion of the court was delivered by: Hon. J. Garvan Murtha United States District Judge


Plaintiff Bunny L. Sterling, through her attorney, has moved to reverse the Commissioner's decision denying her Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, and the Commissioner has cross-moved for an order affirming the decision. (Docs. 4, 7.) The Commissioner's Motion is granted, Sterling's Motion is denied, and the decision is affirmed for the reasons that follow.


A. Factual and Procedural History Ms. Sterling's November 6, 2009 application for Disability Insurance Benefits alleged a disability for back and shoulder disorders beginning February 11, 2009. (Tr. 16, 145-46.) Ms. Sterling claims she suffers from a lumbar disc disorder, bilateral shoulder and hand arthropathy, reactive airway disease, and, as a result of her pain, depression and sleep disturbance. (Tr. 31-67.) She takes Vicodin and Methocarbam daily for her pain and muscle spasms. Her application was initially denied December 23, 2009, and again denied upon reconsideration on April 2, 2010. (Tr. 76-78, 79-81, 16.) Following a March 17, 2011 administrative hearing at which Sterling testified by video (Tr. 31-67), Administrative Law Judge Paul Martin issued an unfavorable decision on April 8, 2011 finding Sterling capable of performing a range of sedentary work and not disabled under the Medical-Vocational Guidelines. (Tr. 13-30.) On September 2, 2011, the Appeals Council denied Sterling's request for review of the ALJ's decision, and Ms. Sterling filed this motion for review under 42 U.S.C. § 405(g) on November 7, 2011.

In February 2009, Sterling, who is currently 38 years old, was treated at Central Vermont Medical Center for injuries to her right shoulder, wrist, and neck, caused by a fall. (Tr. 304-10.) An x-ray revealed no fractures. (Tr. at 281.) Following an evaluation of her injuries a few days later at Concentra Medical Center, she was diagnosed with cervical, right shoulder, and wrist strain. (Tr. 224.) Sterling was prescribed Flerexil and Vicodin, instructed to use a wrist splint, pursue physical therapy, and ice her injuries. Id.

Following several therapy sessions, Sterling reported to Concentra that her symptoms were improving. (Tr. 220-22.) While she continued to have difficulties with her shoulder and wrist, her neck and range of motion had improved. (Tr. 220.) Following the exam, Sterling was cleared for work that did not involve lifting over ten pounds or reaching over shoulder level, and the use of her right arm was limited. (Tr. 222.) Treated at Concentra a week later, Sterling reported "some improvement" from therapy, but complained of difficulties with her shoulder, wrist and neck. (Tr. 217-19.) She was cleared for work again, with the same limitations. (Tr. 219.)

A March 2009 MRI revealed some abnormalities with her right shoulder, and a wrist x-ray revealed soft tissue swelling. (Tr. 282-83.) Meeting with Dr. Stuart Williams at Fletcher-Allen Healthcare that same month, Sterling reported that physical therapy increased her shoulder pain. (Tr. 324-25.) Dr. Williams recommended Sterling remain off work and discontinue therapy until her planned meeting with Dr. John Lawlis, an orthopaedic surgeon. Id. Later that March, Dr. Lawlis examined Sterling, reviewed her MRI, and advised her to return to therapy and "work aggressively at range of motion and strength." (Tr. 317.) Dr. Lawlis administered a steroid injection so Sterling could tolerate the pain due to physical therapy. Id. He restricted Sterling from working for six weeks. (Tr. 316.)

Treated twice at Fletcher-Allen in April 2009, Sterling continued to complain of considerable shoulder pain. (Tr. 326- 27.) In May 2009, she complained of worsened shoulder pain to Dr. Lawlis. (Tr. 315-16.) Although Sterling requested surgery, Dr. Lawlis indicated shoulder surgery was premature, administered a second steroid injection and encouraged further physical therapy. Id.

In June 2009, Sterling told Dr. Lawlis neither therapy nor steroid injections had been helpful and was anxious for surgical intervention. (Tr. at 314.) Dr. Lawlis agreed to proceed with surgery, which took place July 28, 2009. (Tr. at 242-45.)

Following surgery, Sterling met regularly with Drs. Lawlis and Williams and she reported her shoulder felt "more comfortable" and that she was "pleased with her progress." (Tr. at 312, 332.) In November 2009, she reported steady improvement and did not appear to need pain medication. (Tr. 311.) When she told Dr. Lawlis that Dr. Williams recommended she never return to work, Dr. Lawlis encouraged aggressive physical therapy, and noted that while she could not use her right upper extremity at all, he would defer, regarding other restrictions, to her primary care physician. (Tr. 311.) A few days later, Dr. Williams noted Sterling was there "primarily to talk about her ongoing work disability," and that she reported "quite a bit of discomfort and dysfunction of [the] right shoulder, particularly when she tries to raise [her arm] above 90 degrees." (Tr. 333.) She also complained of reduced sensation in her arm after surgery, back pain, and hand numbness. Id. Dr. Williams concluded Sterling was "disabled from working due to bilateral shoulder atropathy and inability to lift regularly over 5 pounds." Id.

In late December 2009, Sterling told Dr. Williams she had re-injured her shoulder while putting on a boot. (Tr. 364.) She was instructed to postpone therapy until she could tolerate a range of motion with less discomfort and to maintain a "gentle range of motion." Id.

In January 2010, Sterling was treated for the re-injury by a nurse at Associates of Orthopaedic Surgery, and reported it occurred while lifting something out of the car on Christmas eve. (Tr. 368.) She received a steroid injection and was scheduled to see Dr. Lawlis. Id. In February, she told Dr. Lawlis she had been progressing with the shoulder until she re-injured it while putting on a boot. Id. Dr. Lawlis noted the discrepancy between this report and what she had reported in January. Id. He suspected a possible tendon tear and ordered an MRI, which showed some abnormalities. (Tr. 367, 370.) His report notes that while Sterling reported her primary care physician had given her permanent disability from employment, he was "not certain of the reasons for that." (Tr. 367.)

In March 2010, Sterling met with Lawlis regarding her MRI results. (Tr. 365.) She reported significant functional shoulder limitations and asked for surgical intervention. Id.

Sterling was "not at all interested" in pursuing physical therapy and wanted surgery, which Lawlis did not recommend as a first choice, but did not find unreasonable. (Tr. 365.) The second surgery was not approved by Workman's Compensation, and Sterling did not proceed with it. (Tr. 399.)

Also in March 2010, Dr. Leslie Abramson, a state agency physician, reviewed Sterling's records and concluded she retained the capacity to perform light work, but could only occasionally push, pull or reach in any direction with her right upper extremity. (Tr. 372-79.) ...

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