United States District Court, D. Vermont
MEMORANDUM AND ORDER (DOCS. 9, 12)
HONORABLE J. GARVAN MURTHA UNITED STATES DISTRICT JUDGE.
Laurie Jo Bugbee (Bugbee) brings this action under 42 U.S.C.
§ 405(g) of the Social Security Act, requesting review
and reversal of the Commissioner of Social Security's
(Commissioner) denial of her application for disability
insurance benefits and supplemental security income. Pending
before the Court are Bugbee's motion seeking an order
reversing the Commissioner's decision (Doc. 9), and the
Commissioner's motion seeking an order affirming her
decision (Doc. 12). For the reasons set forth below,
Bugbee's motion to reverse is granted in part and denied
in part, the Commissioner's motion to affirm is denied,
and the matter is remanded for further proceedings and a new
March 26, 2012, Bugbee filed applications for disability
insurance benefits and supplemental security income, alleging
she became disabled as of December 10, 2010. (A.R. 225-26.)
On June 6, 2012, her applications were denied, Id.
at 107-10, and, on August 1, 2012, were denied again on
reconsideration, Id. at 115-21. Bugbee filed a
timely request for an administrative hearing, Id. at
7-8, which was held by Administrative Law Judge
("ALJ") Thomas Merrill on May 19, 2014,
Id. at 32-71. She appeared with an attorney at the
hearing and testified. Id. On July 21, 2014, the ALJ
issued a decision concluding Bugbee was not disabled from the
alleged disability onset date. Id. at 12-25. The
Appeals Council denied her timely request for review on
September 11, 2015, and the ALJ's decision became the
final decision of the Commissioner. Id. at 1-6.
November 10, 2015, Bugbee timely filed this action. (Doc. 1.)
She raises three challenges to the ALJ's decision: (1)
the ALJ erred by omitting neuropathy and fibromyalgia as
impairments when considering her disability and in failing to
consider those impairments in combination with other
impairments; (2) the ALJ erred by not affording her treating
physician's opinion controlling weight; and (3) the ALJ
erred in his credibility assessment. (Doc. 9.)
was born on November 20, 1963. (A.R. 225.) She has a high
school education and past relevant work as a deli worker at a
small general store. Id. at 37. She was born with
congenital deformity in her feet and hands, and underwent
multiple childhood surgeries. Id. at 42-43.
Constriction ring syndrome led to partial amputations of
several digits. Id. at 504. In the early 2000s, she
underwent right carpal tunnel release surgery and, though she
had bilateral carpal tunnel, she did not have surgery on the
left. Id. In June 2009, she was injured in a motor
vehicle accident. Id. at 480. She attended physical
therapy from July 2009 until April 2010. Id., at 474-80.
2010, she saw orthopedist Dr. Michael Barnum, who assessed
radiculitis with mechanical neck pain in the cervical spine
and noted an MRI revealed a C6-7 herniated nucleus pulposus.
Id. at 780-81. After attempting a conservative
course of treatment, including injection therapy, Bugbee was
additionally diagnosed with C5-6 herniated nucleus pulposis
and degenerative disc disease, and underwent spine surgery in
March 2011. Id. at 777-79, 782-87. She continued
with physical therapy until December 2011, and was performing
"all activities but with pain." Id. at
468-73. At a March 2012 follow-up, Dr. Barnum assessed a
solid fusion "after a delayed union." Id.
March 2012, Bugbee saw hand surgeon Dr. James Mogan for
bilateral hand numbness. (A.R. 504.) Dr. Mogan assessed
suspected circulatory issues and recommended an EMG.
Id. In April 2012, neurologist Dr. Andres Roomet
performed an electrophysiologic evaluation and assessed
"very mild but definite" left carpal tunnel
syndrome. Id. at 790-91. In October, Dr. Roomet
noted continued numbness of her hands after the spinal fusion
in March 2011, and progressive numbness in her feet beginning
in 2010. He performed nerve conduction studies on her lower
extremities, and assessed suspected polyneuropathy which, in
his opinion, "would explain the numb feet and possibly
the numb hands as well as subjective complaints of balance
difficulties." Id., at 792-94.
2012, Bugbee saw rheumatologist Dr. James Trice for joint
pain. (A.R. 723.) He noted she had been plagued with diffuse
pain involving her hands and arms for the last 18 months and
diagnosed diffuse musculoskeletal pain of unclear etiology.
Id. at 723, 727. At a follow-up in March 2013, Dr.
Trice's primary diagnosis was fibromyalgia. Id.
at 1042. While he noted she had no pain in her wrists,
elbows, left shoulder, hips, knees and ankles with passive
motion, he stated she "is tender on palpation over
almost all of the classic anatomic sites associated with
fibromyalgia." Id. at 1053.
April 2013, Bugbee saw orthopedist Dr. John Lawlis for
shoulder pain. (A.R. 864.) He diagnosed impingement syndrome
shoulder and wanted her to have an MRI and to see a shoulder
surgeon. Id. at 867. The MRI revealed small tears of
the supraspinatus tendon, moderate supraspinatus and mild
subscapulars tendinopathy, and possible slight subluxation of
biceps tendon and small SLAP tear. Id. at 804.
Bugbee elected to proceed with an independent exercise
program and right AC joint injection. Id. at 875.
Upon follow-up in June, Dr. Lawlis diagnosed moderate right
osteoarthrosis AC joint and, though the injection was
initially helpful, she decided to proceed with surgical
intervention. Id. at 878-80. In July, she canceled
the scheduled August surgery noting the injection was helpful
though her pain was not eradicated; Dr. Lawlis was concerned
about a surgical approach exacerbating her fibromyalgia.
Id. at 884. He diagnosed right impingement syndrome
shoulder and right osteoarthrosis AC joint and ordered
physical therapy. Id. at 886. Bugbee thereafter
attended physical therapy. Id. 921-25.
October 2013, Bugbee saw vascular surgeon Dr. Georg
Steinthorsson for finger and hand coolness, discoloration and
circulatory problems in her hands. (A.R. 1104-05.) While many
tests were negative, Dr. Steinthorsson assessed significant
shoulder and neck pain, noted she may have Raynaud's
phenomenon with her fibromyalgia, and offered noninvasive
vascular studies. Id.
December 2013, Bugbee saw neurologist Dr. Waqar Waheed for an
electrodiagnostic consultation. (A.R. 795-96.) The study
showed evidence of a mild to moderate degree of neuropathy
across the left wrist such as with carpal tunnel syndrome and
a minimal degree of left ulnar neuropathy across the elbow.
Dr. Waheed noted vascular thoracic outlet syndrome could not
be excluded by nerve ...