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Sanborn v. Berryhill

United States District Court, D. Vermont

March 8, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Christina Reiss, Chief Judge

         Plaintiff Jeffrey Roy Sanborn is a claimant for Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits under the Social Security Act. He brings this action pursuant to 42 U.S.C. § 405(g) to reverse the decision of the Social Security Commissioner that he is not disabled.[1] On October 4, 2016, Plaintiff filed his motion to reverse (Doc. 5). On December 2, 2016, the Commissioner moved to affirm (Doc. 6), whereupon the court took the pending motions under advisement.

         Plaintiff identifies the following errors in the Commissioner's decision: (1) the Administrative Law Judge ("ALJ") improperly evaluated the medical evidence by disregarding Plaintiffs medical records created prior to November 28, 2012 and failing to identify fibromyalgia as a severe impairment; (2) the ALJ misapplied the treating physician rule in evaluating the opinions of Karen Huyck, M.D.; (3) the ALJ improperly accorded no weight to Plaintiffs Functional Capacity Evaluation ("FCE"); (4) the ALJ erred in according significant weight to the opinions of Carl Runge, M.D.; and (5) substantial evidence did not support the ALJ's finding that Plaintiffs objective clinical presentation was "consistently quite mild."

         James Torrisi, Esq. represents Plaintiff. Special Assistant United States Attorney Benil Abraham represents the Commissioner.

         I. Procedural History.

         Plaintiff applied for SSDI and SSI benefits on March 13 and March 21, 2014, respectively, alleging a disability onset date of November 27, 2013, which he later amended to November 28, 2013. The Commissioner denied Plaintiffs claims initially, and upon reconsideration. Plaintiff thereafter filed a timely request for a hearing before an ALJ.

         At a September 16, 2015 video conference hearing before ALJ Thomas Merrill, Plaintiff appeared with Attorney Torrisi, and testified. Vocational expert ("VE") Christine Spaulding also testified. In a decision dated October 29, 2015, ALJ Merrill found that Plaintiff did not establish that he was disabled within the meaning of the Social Security Act. Plaintiff filed a timely appeal on December 21, 2015, which the Appeals Council denied on March 25, 2016. As a result, ALJ Merrill's decision stands as the Commissioner's final decision.

         II. Factual Background.

         Plaintiff is a right-handed male with a high school education who was born in 1962. He lives alone and worked as a satellite dish installer from April 2002 to December 2010, and as a real estate sales agent from March 2013 to November 2013. During the latter time period, his annual gross income was approximately $21, 000 but he did not make a profit due to start-up costs and other expenses he incurred. Plaintiff last worked on November 28, 2013.

         A. Plaintiffs Medical History.

         In January 2010, Plaintiff sustained injuries following a fall at work and underwent surgery in July 2010 to repair a "massive" left rotator cuff tear. (AR 402.) He thereafter complained of persistent neck pain, and began receiving treatment from several medical providers at Dartmouth-Hitchcock Medical Center ("Dartmouth-Hitchcock"), including cervical medial branch blocks. On October 28, 2010, Dr. Huyck, an occupational medicine specialist, recorded that Plaintiffs neck pain "seems most consistent with a whiplash-type injury with cervical and posterior shoulder muscle spasm and likely cervical facet-mediated pain." (AR 400.) She noted that the medial branch blocks had not proven effective. On November 15, 2010, Dr. Huyck prescribed Vicodin and referred Plaintiff to the Dartmouth-Hitchcock Pain Clinic for a comprehensive pain medicine evaluation.

         On November 17, 2010, Gilbert Fanciullo, M.D., a pain specialist at Dartmouth-Hitchcock, treated Plaintiff. Dr. Fanciullo recorded a "[c]ervical soft tissue injury" and that there was "some evidence of a C6 radiculopathy, but his symptoms are really in a C7 or C8 distribution and not C6, so I am not sure [i]f this has relevance." (AR 405.) Dr. Fanciullo opined that Plaintiff was a candidate for cervical epidural steroid injection, and should continue with physical therapy. Dr. Fanciullo noted that he would "treat [Plaintiffs] depression first and [Plaintiff] should continue to try to be as active as possible. He needs somehow to get motivated to do more around the house than sitting around, and hopefully his physical therapist will be able to help him accomplish this." Id.

         In June 2011, Plaintiff underwent an MRI on his left shoulder, which revealed "a recurrent full-thickness rotator cuff tear." (AR 361.) Dr. Huyck recorded on January 24, 2012 that Plaintiff was deciding whether to undergo revision surgery, and had "no changes in symptoms other than more neck pain with cold weather." (AR 366.) On June 20, 2012, Dr. Huyck documented that Plaintiff "has constant, non radiating neck pain, left shoulder pain, left wrist and elbow pain, paresthesias in the ulnar digits bilaterally. He has some right shoulder pain now as well. He is using Elavil and Vicodin. Sleep has not been good lately because of pain." (AR 371.)

         Beginning in February 2014, Plaintiff received medical treatment and therapy at North Country Hospital. A lumbosacral spine MRI performed on March 6, 2014 indicated "mild broad-based disk protrusion at ¶ 5-S1 level of no consequence as the thecal sac is quite diminutive at this level" and was "[o]therwise unremarkable." (AR 454.) An x-ray of Plaintiff s right hip and pelvis revealed no acute bony abnormality but some calcification.

         Plaintiff visited Rizwan Haq, M.D. at North Country Hospital on June 10, 2014, complaining of intermittent lower back and right hip pain that radiated to his lower extremity. Dr. Haq opined that Plaintiff was awake and alert, answered his questions appropriately, and that his sensation, coordination, gait and stance appeared normal. Plaintiff exhibited full strength in his upper and lower extremities. Dr. Haq noted that Plaintiff exhibited normal motor functions and that his cranial nerves were normal, but that Plaintiff had "mild tenderness in the midline lumbar region but not on the sides." (AR 479.) Dr. Haq reviewed the lumbar MRI scan and opined that it showed "mild broad based disk bulging at ¶ 5-S1 level which is not leading to significant foraminal and spinal stenosis" and "[m]ild disk bulging ... at ¶ 4-L5 level which is also not leading to foraminal and spinal stenosis." Id. An electrodiagnostic study showed severe polyneuropathy. Dr. Haq raised the possibility of "diabetic polyneuropathy, " but noted that Plaintiff "denies numbness and tingling or pain in his feet other than notices some swelling in the ball of the feet. It is possible that he might be perceiving the numbness as swelling. His diabetes is not well controlled." (AR 480.) Dr. Haq advised Plaintiff to "aggressively control" his diabetes. Id.

         In the fall of 2014, Plaintiff visited Sreenija Suryadevara, M.D., an endocrinologist at Dartmouth-Hitchcock, for treatment of his type 2 diabetes mellitus. Dr. Suryadevara recorded Plaintiff suffered from "significant neuropathic and non neuropathic pain" (AR 556) and "since [Plaintiffs] pain is significantly limiting his day to day activities, " she referred him to Janice Gellis, M.D. of the Dartmouth-Hitchcock Pain Clinic. Dr. Gellis noted on December 8, 2014 that Plaintiff had "5/5" muscle strength in his back, ankles and hips and could both toe walk and heel walk. (AR 568-69.) Dr. Gellis assessed that Plaintiff had "[l]umbar disc displacement without myelopathy" and "right lumbar radiculitis." (AR 570.) On December 11, 2014, Plaintiff received an epidural steroid injection. According to Dr. Suryadevara's January 5, 2015 treatment notes, the injection did "not [a]ffect[] the pain much." (AR 572.) Plaintiffs daily dose of Cymbalta was increased and he was prescribed Lyrica.

         On January 14, 2015, Dr. Gellis treated Plaintiff for neck pain and increased Plaintiffs daily dosage of Lyrica, and recommended a rheumatologic evaluation, but "defer[red]" on this point to Plaintiffs new primary care physician, Emily Henderson, M.D. (AR 579.) Plaintiff received an MRI on January 28, 2015, which according to Dr. Gellis showed "[m]ild cervical spondylosis" and "[m]oderate to severe left C6-C7 and moderate left C5-C6 neural foraminal stenosis." (AR 584.) Dr. Gellis considered the MRI findings to be "consistent with [Plaintiffs] symptomology." (AR 583.)

         On February 2, 2015, Plaintiff visited Dr. Henderson complaining of chronic neck pain and lower back pain. Dr. Henderson recorded that Plaintiff was unable to walk heel to toe and had reduced knee vibration but otherwise had normal sensation and intact reflexes. Plaintiff reported spending over sixteen hours per day in bed due to back pain which was only improved with Vicodin and rest. He rated his neck pain at 4-5/10 with Vicodin and 9/10 without Vicodin. Plaintiff also reported having headaches for the previous six months, which occurred two times per week for hours each time. Finally, Plaintiff reported low mood, which had "worsened since he stopped working and pain has become intolerable. ... He no longer feels enjoyment in any hobbies and feels he is getting little joy out of life." (AR 585.) Dr. Henderson prescribed Citalopram, which was later discontinued. Later in February 2015, Plaintiff received a trans foraminal epidural steroid injection, but it did not provide relief.

         On March 12, 2015, Dr. Huyck treated Plaintiff, who she had not seen since March 24, 2011. She characterized Plaintiffs left rotator cuff as "irreparable" and recorded that Plaintiff "reports pain in the right neck to the shoulder, into the elbows and hands, primarily over the third knuckle . . . identical to pain he is having on the left side in the left neck, into the shoulder, elbows and hands" and which he rated "from 7 to 10/10." (AR 610-11.) Plaintiff stated that "he can do his own self care and errands but has difficulty with household chores" and "modifies how he does things to compensate for his condition[.]" (AR 611.) Plaintiff appeared "alert and pleasant in no acute distress, although he does appear tired." (AR 612.) Following a physical exam and a review of Plaintiffs recent diagnostic studies, Dr. Huyck assessed that Plaintiffs MRI "show[ed] moderate to severe C5-6 and C6-7 neuroforaminal stenosis" and that "[c]urrent neck and arm symptoms into the third finger follow at ¶ 7 distribution consistent with his imaging." Id. Plaintiff also reported "generalized fatigue, weakness, achiness, and headaches." Id. Dr. Huyck referred him to a spine specialist and also stated she was "referring him for R[esidual] F[unctional] C[apacity] testing for his SSDI application." Id.

         Plaintiff returned to Dr. Henderson, who noted on March 12, 2015 that Plaintiff had "applied for disability, but was rejected and is still waiting for a hearing" and that he visited Dr. Huyck, who evaluated his shoulder and "has organized a functional capacity evaluation to aid in his disability application." (AR 596.) Dr. Henderson recorded that Plaintiff had normal motor functions, normal muscle bulk and tone, and full strength in the upper and lower extremities, but decreased sensation in his right lower extremity. Dr. Henderson documented that Plaintiff complained of increasing memory loss, and of having difficulty over the past three months distinguishing dreams from reality. He also complained of constant pain with some relief from Vicodin. A spinal x-ray performed on the same day indicated "no evidence of spondylolisthesis or compression fracture" but evidenced "mild degenerative disc disease at several levels including L1-L2, L2-L3, and L3-L4." (AR 598.) Dr. Henderson opined that Plaintiffs pain was "likely secondary to peripheral neuropathy in the setting of diabetes, as well as secondary to compression of nerve roots in the setting of multiple neural foraminal stenosis[.] There is likely also a psychological component. Unfortunately the only approach that has provided some relief is the introduction of [L]yrica and [V]icodin." Id.

         On March 23, 2015, Justin Mowchun, M.D., a neurologist at Dartmouth-Hitchcock, evaluated Plaintiffs balance complaints. Plaintiff "appear[ed] in no distress" (AR 602) and there was no evidence of ataxia, although he had an antalgic gait. Dr. Mowchun's physical examination revealed multiple trigger points in Plaintiffs upper and lower extremities, most notably in his cervical paraspinal muscles. Dr. Mowchun noted that Plaintiffs pain "may be related in part to osteoarthritis; however, it is possible he could also have fibromyalgia variant." (AR 603.)

         Two days later, Plaintiff sought treatment from Carey Field, M.D., a rheumatologist at Dartmouth-Hitchcock. Dr. Field recorded that Plaintiff s cranial nerves and reflexes were intact and that Plaintiff had normal strength and sensation and did not have spinal tenderness or sacroiliac joint tenderness. Dr. Field found that Plaintiff had "mild paraspinal lumbar and cervical tenderness" (AR 608) but that Plaintiff maintained close to full range of motion in his shoulders, elbows, and wrists. Dr. Field further noted that Plaintiff "has a [history] of fibromyalgia, and today his exam is consistent with this diagnosis. However, he also has some findings of what appears to be diabetic neuropathy and possibly diabetic MSK disease[.]" (AR 609.) As Dr. Henderson noted, Plaintiffs prior diagnosis of fibromyalgia was made when Plaintiff was eighteen years old. Dr. Henderson stated that she did not think it "beneficial" for Plaintiff to continue taking Vicodin and proposed physical therapy, which caused Plaintiff to become "quite upset and defensive stating that his pain was being underestimated and that by not properly treating his pain he was being forced to resort to alternative options, including purchasing on the street." (AR 630.) Dr. Henderson discouraged Plaintiff from purchasing illicit drugs to treat his pain.

         On April 27, 2015, Perry Ball, M.D., a neurosurgeon at Dartmouth-Hitchcock, evaluated Plaintiff and concluded that "there is limitation of range of motion of the cervical spine in flexion and extension. Motor strength in the upper and lower extremities is full with hypoactive deep tendon reflexes. Hoffmann's sign is negative. . . . He is able to stand on his heels and toes." (AR 625.) Dr. Ball told Plaintiff that he "did not see any indications for surgery here" as Plaintiff "has no spondylolisthesis and no instability" and that his "problems [we]re overwhelmingly axial neck and low back pain" that lacked a "clear surgical target." Id.

         Between May 6 and August 11, 2015, Janette L. Seville, Ph.D. engaged in cognitive behavioral therapy with Plaintiff on eight occasions, and diagnosed him with "[a]djustment disorder with depressed mood in the context of coping with chronic pain." (AR 693.) On May 6, 2015, Dr. Seville stated that Plaintiff "reports no previous treatment for his mood. The patient reports no psychiatric or rehab hospitalizations. The patient reports no history of suicide attempts or self injurious behavior (e.g. cutting). The patient states that he does not have a current counselor or psychiatrist." (AR 637-38.) Dr. Seville noted that Plaintiff had been taken off Vicodin the week before. Plaintiff reported to Dr. Seville "that his function is very low, spending 22 hours lying down each day because of pain." (AR 638.) Dr. Seville, in turn, opined that Plaintiff "would likely benefit from cognitive-behavioral therapy (CBT) focused on self management skills for pain and mood." Id.

         On June 11, 2015, the same day as Plaintiffs FCE, Dr. Seville noted that Plaintiff "report[ed] ongoing severe pain and frustration" and that he received only two hours of sleep per night due to pain, which he rated as a "12/10." (AR 645.) On June 19, 2015, Plaintiff stated to Dr. Seville that he "felt the [FCE] went well and was satisfied with the answers he got at the meeting" and that his pain was "10/10." (AR 673.) Dr. Seville recorded on August 3, 2015 that Plaintiff "has not been practicing the relaxation or the cognitive therapy" and that Plaintiff "reports that his mood has not changed since the start of therapy." (AR 690.)

         Dr. Seville completed a questionnaire for Plaintiff on August 20, 2015, noting that it was "[d]ifficult to determine if mood or pain is the limiting factor" and cited "insufficient info" in response to a series of questions regarding whether Plaintiff had a "medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support[.]" (AR 694-95.) Dr. Seville declined to complete an Assessment of Ability to Do Work-Related Activities (Mental) for Plaintiff.

         B. Plaintiffs Function Report.

         On or about April 5, 2014, Plaintiff completed a Function Report wherein he stated that his pain limited him to approximately four hours of sleep per night, "depending on pain level[.]" (AR 272.) He also reported that he had "no problem" with personal care, did not require special reminders to take care of his personal needs or to take medicine, and that he went shopping for food each week and prepared his own meals three times per day. (AR 272-73.) Plaintiff reported that he could no longer perform yard work or other outdoor activities due to his pain. His hobbies and interests included watching television, which he "mostly" did "all day if not sleeping." (AR 275.)

         Plaintiff stated he could walk about 200 to 300 feet before needing to stop and rest, but had no difficulty paying attention or following written instructions and could follow spoken instructions "fairly well[.]" (AR 276.) He stated that he used a cane to assist in walking, and currently was taking Vicodin and Amitriptyline.

         C. State Consultants' Assessments.

         1. May 2014 Consultative Examination.

         On May 29, 2014, State Agency Medical Consultant Fred Rossman, M.D. physically examined Plaintiff and submitted a six-page report. Dr. Rossman observed that Plaintiff appeared to be "[w]ell-developed, well-nourished" and "in no acute distress." (AR 499.) Plaintiff was able to enter Dr. Rossman's office "without antalgic or ataxic gait using no assistance such as a walker, cane, or crutches." Id. Plaintiff navigated the steps ...

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