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Bugbee v. Berryhill

United States District Court, D. Vermont

April 6, 2017

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

          MEMORANDUM AND ORDER (DOCS. 9, 12)


         I. Introduction

         Plaintiff 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 decision.

         II. Background

         A. Procedural

         On 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.

         On 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.)

         B. Medical History

         Bugbee 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.

         In May 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. at 771.

         Also in 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.

         In June 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.

         In 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[1] 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.

         In 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.

         In 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 ...

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