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Archambault v. Colvin

United States District Court, D. Vermont

November 17, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          Christina Reiss, Chief Judge United States District Court

         Plaintiff Carrie E. Archambault is a claimant for Social Security Disability Insurance Benefits ("SSDI") and Supplemental Security Income ("SSI") under the Social Security Act. She brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) to reverse the decision of the Social Security Commissioner that she is not disabled.[1] On March 15, 2016, Plaintiff moved for an order reversing the Commissioner's decision (Doc. 5). On June 17, 2016, the Commissioner moved to affirm (Doc. 9), whereupon the court took the pending motions under advisement.

         Plaintiff identifies two errors in the Commissioner's decision: (1) the Administrative Law Judge ('ALJ") failed to adhere to the treating physician rule in evaluating the opinions of orthopaedic surgeon Dr. John Macy and psychiatrist Dr. Richard Edelstein which, in turn, caused other errors in the sequential evaluation of Plaintiffs claim; and (2) substantial evidence does not support certain findings by the ALJ, including his assessment of Plaintiff s credibility.

         James Torrisi, Esq. represents Plaintiff. Special Assistant United States Attorney Jason P. Peck and Special Assistant United States Attorney Michelle L. Christ represent the Commissioner.

         I. Procedural History.

         On May 10 and 13, 2010 Plaintiff filed for SSDI and SSI, respectively. In both applications, Plaintiff alleged a disability onset date of September 23, 2009. The Social Security Administration ("SSA") denied Plaintiffs application initially and on reconsideration. On January 25, 2011, Plaintiff filed a timely request for a hearing before an ALJ.

         On July 2, 2012, an administrative hearing was held before ALJ Paul Martin, who issued a decision dated July 18, 2012, concluding that Plaintiff was not disabled within the meaning of the Social Security Act. Plaintiff subsequently appealed ALJ Martin's decision to this court. On September 23, 2014, Magistrate Judge John Conroy issued an Order concluding that ALJ Martin did not give good reasons for the weight afforded to the opinions of treating physicians Drs. Macy and Edelstein and remanding this matter to the Commissioner for further proceedings. On November 4, 2014, the Appeals Council issued a remand order in light of this court's decision, directing ALJ Martin to "offer the claimant the opportunity for a hearing, take any further action needed to complete the administrative record, and issue a new decision." (AR 908.)

         On June 8, 2015, a hearing was held before ALJ Thomas Merrill. Plaintiff, who was represented by counsel, appeared and testified, as did vocational expert Christine E. Spaulding. On August 14, 2015, ALJ Merrill issued a decision finding that Plaintiff was not disabled. This stands as the Commissioner's final decision.

         II. Factual Background.

         Plaintiff is a fifty-three-year-old right-handed woman. She was raised in Connecticut, and attended school through the eleventh grade. Her past relevant work experience is as a food preparer and cook. At the July 2, 2012 administrative hearing, Plaintiff testified that she stopped working in 2009 because her "arm pain was getting really bad." (AR 962.) Plaintiff also testified that she splits her time between Canada and Vermont.

         In October 2008, Plaintiff first sought treatment for one week of shoulder pain. At the time, she maintained a full range of motion with intact strength and sensation. She was treated with injections of Kenalog and Lidocaine, and in February of 2009 she was prescribed physical therapy after returning for treatment and showing signs of a decreased range of motion. An MRI in April of 2009 suggested a SLAP tear with cystic changes of the inferior glenoid. Thereafter, Plaintiff failed to attend physical therapy sessions on multiple occasions. In June of 2009, Plaintiff was referred to orthopaedist Dr. Bryan Huber, who performed an arthroscopic procedure to resurface Plaintiffs right shoulder. In September of 2009, Dr. Huber noted that Plaintiff had full passive range of motion with normal strength and minimal crepitus.

         In January of 2010, Plaintiff again reported right shoulder pain; an MRI revealed degenerative changes. On February 1, 2010, Dr. Huber performed a second procedure on Plaintiffs right shoulder. Approximately three months later, albeit with limited use of her upper extremities, Plaintiff was able to complete her daily activities such as preparing meals, completing household chores, shopping in stores for an hour and a half, and driving a car with her left hand. Dr. Huber noted a marked improvement in Plaintiffs range of motion with episodic pain for which he recommended physical therapy.

         On August 24, 2010, Dr. Huber reported that Plaintiff "was doing poorly postoperatively[, ]" and was suffering "significant pain and discomfort." (AR 561.) He noted a clicking sound in Plaintiffs right shoulder as well as decreased range of motion. Plaintiff reported that she was using increased dosages of narcotics to manage her pain. Despite this, Plaintiff had been travelling, and an EMG test in September of 2010 showed only mild right median neuropathy. During an October 2010 meeting with Dr. John Lippman, Plaintiff indicated she was feeling well. Her treatment relationship with Dr. Huber ended in November 2010 when his office "was contacted by [Plaintiffs] significant other who stated that [Plaintiff] was selling her narcotics." (AR 559.) At the time, Plaintiff did not have dysfunction of the left upper extremity.

         In September of 2011, Plaintiff saw Dr. S. Glen Neale for evaluation of her right shoulder. Dr. Neale observed that Plaintiff had some pain with range of motion and referred her to Dr. John Macy. Dr. Macy evaluated Plaintiff in January of 2012, noted diffuse tenderness to palpation and pain with range of motion, and recommended total right shoulder arthroscopy. With respect to Plaintiffs left shoulder, Dr. Macy noted that Plaintiff had full, painless range of motion. Due to his concern about Plaintiffs use of narcotics, Dr. Macy refused to prescribe them, despite Plaintiffs request. On April 6, 2012, Dr. Macy performed a right shoulder replacement and revision right shoulder arthroplasty on Plaintiff. The procedure was effective in relieving Plaintiffs right shoulder pain, and Dr. Macy did not note any significant limitations of function in Plaintiffs left shoulder. By May of 2012, Plaintiff presented no unusual complaints, was not wearing a sling, and reported no tenderness to palpation. Dr. Macy observed that no swelling or deformity was present; the incision was well healed; sensation was intact to light touch; and Plaintiffs shoulder was vascularly intact. Plaintiff was able to ambulate effectively, and there was no weight bearing joint involved.

         Three months after her surgery, Plaintiff reported that she had resumed activities of daily living, started exercising, attended physical therapy, and recently skinned her elbow while sliding down a waterslide at a party. Dr. Macy's physical examination recorded normal findings with no deformity and with sensation intact to light touch. He observed that Plaintiffs right shoulder was vascularly intact, and had full strength and no instability. Although Plaintiff reported mild postoperative pain, her pain was well controlled by ibuprofen. Examination of Plaintiff s left shoulder revealed no abnormalities. Dr. Macy subsequently cleared Plaintiff to return to a normal workload. At an August 2012 evaluation by Dr. John Lawlis, Plaintiff reported that she had done well with the surgery, and he observed she had pain-free range of motion with forward flexion to 160 degrees.

         Plaintiffs medical records do not record any ongoing treatment for right shoulder pain in 2013. In 2014, Plaintiff reported that her right shoulder was "actually functioning quite well[, ]" and that her pain was "much better than it was" prior to her surgery. (AR 1022.) She reported left shoulder pain, but maintained flexion to 145 degrees. An MRI showed a small area of change, but Plaintiffs symptoms remained tolerable. During this time period, Plaintiff was travelling back and forth to Canada.

         Approximately fourteen years prior to her alleged onset date, Plaintiff was diagnosed with a rare lung disease known as pulmonary Langerhans histiocytosis. Dr. Nicole Hynes, a Rheumatologist to whom Plaintiff was referred in August of 2009 for a possible association between that condition and Plaintiffs shoulder pain, noted that despite this condition, "[Plaintiff] has felt relatively well and continues to smoke." (AR 326.) In January of 2011, pulmonary specialist Dr. Veronika Jedlovsky observed that Plaintiff had no wheezing, and in April of 2011, further noted that a concerning lesion on Plaintiffs lung was decreasing in size. In July of 2012, Dr. Jedlovsky reevaluated Plaintiff and observed that she had clear breath sounds and improvement in the nodule in her lung.

         In addition to her physical impairments, Plaintiff suffers from anxiety, panic attacks, and depression. Plaintiff testified at the June 8, 2015 administrative hearing that she experienced panic attacks two to three times per week. In her initial function report, dated May 27, 2010, Plaintiff reported no mental health effects and stated she was social in person and on the phone; able to shop at stores for an hour and a half; travelled places without needing accompaniment or reminders; had no problems getting along with family, friends, neighbors, or others; could pay attention as long as necessary (unless she was taking medications); finished what she started; did well with written instructions; was good with oral directions unless it involved directions for travelling to unfamiliar places; got along well with authority figures; was never fired or laid off from employment due to problems dealing with others; and was able to handle changes in routine. She noted that she was "not good right now" with stress, but that she was taking medication. (AR270.)

         On October 25, 2010, Plaintiff sought mental health treatment for the first time. Her presenting problem was an abusive boyfriend, and she reported that "it feels everything is crashing around her in her life[.]" (AR 591.) The evaluator noted that although Plaintiff had appropriate affect and mood, she picked at and rubbed her arms during the session. The evaluator further observed that Plaintiff did not appear to be distracted, and her memory, insight, and judgment "appeared to be in line with her estimated level of intelligence[, ] which is said to be in the average range." (AR 593.) Plaintiff was diagnosed with anxiety disorder and adjustment disorder with mixed anxiety and depression and prescribed Celexa for her depression. The next month, a caseworker filled out a function report and noted that Plaintiffs memory, ability to complete tasks, and concentration were affected, but that Plaintiff was nevertheless able to finish what she started.

         On December 1, 2010, Dr. Edelstein performed a psychiatric evaluation of Plaintiff, who complained that "I feel like I'm here but I'm out somewhere else. I'm always depressed." (AR 600.) Plaintiff reported panic attacks that had "the feeling of having a heart attack, " and that she "[felt] scared all the time." Id. Plaintiff advised Dr. Edelstein that she had only started having the panic attacks since breaking up with her boyfriend three months earlier. Dr. Edelstein noted that Plaintiff was friendly and cooperative, with a full range of affect, although her mood was "slightly downcast" and she was "a bit fidgety[.]" (AR 601.) Dr. Edelstein assessed Plaintiff as a "47-year-old woman with a history of childhood and adult abuse with a long history of chronic depression, presenting now with exacerbation of depressive symptoms and . . . panic attacks since [a] relationship breakup [three] months ago. Symptoms persist despite current medication treatment." (AR 601-02.) Dr. Edelstein diagnosed Plaintiff with dysthymia, panic disorder without agoraphobia, and post-traumatic stress disorder ("PTSD"). He assessed a Global Assessment of Functioning ("GAF")[2] score of "55 to 60." (AR 601.) To treat Plaintiffs symptoms, Dr. Edelstein increased her dosage of Celexa.

         During a visit with Dr. Edelstein on December 29, 2010, Plaintiff advised that she was doing very well and was "elated" due to the recent birth of her granddaughter. (AR 623.) Plaintiff reported that her mood "has been generally better with [the] higher dose of Celexa." Id. She reported that a male friend was visiting from Canada. She continued scratching her arms, however.

         Plaintiff continued to see Dr. Edelstein throughout 2011. She recounted that she and her boyfriend took trips to Canada, which had gone very well; they got engaged; and her lung tumor shrank. Although she reported some ongoing anxiety, including having "panic attacks while on [a] long drive[, ]" Dr. Edelstein concluded that Plaintiff was "doing well[.]" (AR 618.) Plaintiff requested Valium to address her panic attacks, but Dr. Edelstein instead prescribed a higher dose of Ativan. Over the course of 2011, Dr. ...

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