United States District Court, D. Vermont
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S MOTION FOR AN ORDER REVERSING THE
COMMISSIONER'S DECISION AND DENYING THE
COMMISSIONER'S MOTION TO AFFIRM (Docs. 13 &
Christina Reiss, Chief Judge United States District Court
Tina Marie Sweet is a claimant for Social Security Disability
Insurance ("SSDI") and Supplemental Security Income
("SSI") benefits under the Social Security Act. She
brings this action pursuant to 42 U.S.C. § 405(g) to
reverse the decision of the Social Security Commissioner that
she is not disabled. On November 2, 2016, Plaintiff filed her
motion to reverse (Doc. 13). On February 2, 2017, the
Commissioner moved to affirm (Doc. 17). Plaintiff replied to
the Commissioner's motion on March 20, 2017, whereupon
the court took the pending motions under advisement.
identifies the following errors in the Commissioner's
decision: (1) Administrative Law Judge ("ALJ")
Thomas Merrill failed to find that Plaintiff had severe
impairments including affective disorder and anxiety-related
disorder and failed to include any mental health limitations
in Plaintiffs residual functional capacity ("RFC");
(2) his error regarding the severity of Plaintiff s mental
health impairments was not harmless because his subsequent
findings improperly relied on testimony by vocational expert
("VE") James Parker; (3) his RFC finding was not
supported by substantial evidence; and (4) he erred in
according only limited weight to the opinions of Plaintiff s
primary care provider, Deborah Thompson, P.A.
P. Anderson, Esq. represents Plaintiff. Special Assistant
United States Attorneys Lorie E. Lupkin and Susan J. Reiss
represent the Commissioner.
applied for SSDI and SSI benefits on January 3, 2013,
alleging a disability onset date of January 5, 2010. The
Commissioner denied Plaintiffs claims initially, and upon
reconsideration. Plaintiff thereafter filed a timely request
for a hearing before an ALJ.
October 29, 2014 video conference hearing before ALJ Merrill,
Plaintiff appeared with non-attorney representative Meriam
Hamada,  and testified. VE Parker also testified.
In a decision dated January 14, 2015, ALJ Merrill found that
Plaintiff did not establish that she was disabled within the
meaning of the Social Security Act. Plaintiff filed a timely
appeal, which the Appeals Council denied on February 26,
2016. As a result, ALJ Merrill's decision stands as the
Commissioner's final decision.
resides in Colchester, Vermont and was born in 1973. She
received a general equivalency diploma. Her past employment
includes work as a line supervisor and machine packer at a
soap factory, a customer service employee at American
International Distribution Center, and an admitting clerk at
a hospital. She claims disability on the basis of
"[b]ack injury[, ]" "[d]epression[, ]"
and "arthritis." (AR 212.)
Plaintiffs Physical Health.
1987, Plaintiff suffered a lumbar compression deformity at
LI, L2, and L3 and underwent a thoracolumbar fusion. Several
months later, she sustained injuries in a motor vehicle
accident that required the implantation of metal rods which
were subsequently removed. She has experienced back pain
since that time.
September 15, 2010, Plaintiff visited P.A. Thompson, her
primary care provider, to receive treatment for chronic back
pain. She complained that her back pain had worsened and was
radiating to her right leg, and reported that she had
difficulty driving, sitting, or standing longer than fifteen
minutes without shifting positions, and was limited in her
ability to perform household chores. P.A. Thompson recorded
that Plaintiff was taking OxyContin, Percocet, Flexeril, and
Ibuprofen for pain. She further observed that Plaintiff
"moves cautiously" and "shifts positions
frequently[.]" (AR 427.) P.A. Thompson referred
Plaintiff to a pain clinic.
December 2010 and July 2011, Plaintiff received treatment
from several physicians at the Tilley Pain Clinic at Fletcher
Allen Health Care. On December 9, 2010, Daniel Gianoli, M.D.
documented that Plaintiff had full range of motion in her
neck, full strength in her lower extremities, and normal
sensation. Neurological and musculoskeletal examinations were
normal except for tenderness in Plaintiffs back.
Approximately one month later, Tiffini Lake, M.D.
administered lumbar facet joint injections and recorded that
Plaintiff "denies depression." (AR 620.) On April
27, 2011, Melissa Covington, M.D. administered lumbar medical
branch block injections. During these visits, Plaintiffs
providers documented that she had a normal gait and ambulated
without an assistive device.
received additional treatment from Dr. Covington on June 24,
2011 and July 22, 2011, reporting that she had developed neck
pain, which was alleviated but not eliminated by medication.
Dr. Covington noted that Plaintiff had a mildly antalgic
gait, but was alert and oriented. Neurological examinations
were normal on both treatment dates. Dr. Covington documented
"tenderness with palpation over lower thoracic and upper
lumbar paraspinal levels" and that there "appear to
be multiple trigger points along her surgical incisional
site" and noted decreased forward bending and range of
motion in Plaintiffs back. (AR 614.) Dr. Covington
administered trigger point injections into Plaintiffs lumbar
paraspinal muscles. In treatment notes dated November 29,
2011, P.A. Thompson documented that the injections did not
provide relief, but also noted that Plaintiff was alert and
appeared to be in no distress. On January 2, 2012, P.A.
Thompson examined Plaintiff, who had complained of stiff and
sore hands, and recorded that Plaintiff exhibited no redness
in February 2012, Plaintiff visited rheumatologist James
Trice, M.D. for treatment for stiffness and soreness in her
hands that she had experienced for the previous two to three
months, and for which she was taking Ibuprofen. On February
9, 2012, Dr. Trice assessed that Plaintiff exhibited normal
strength, gait, and station, recorded that a joint
examination revealed no swelling or pain, and that Plaintiffs
wrists, elbows, shoulders, hips, knees and ankles
"reveal[ed] no pain with passive motion." (AR 758.)
He determined that Plaintiff had "[j]oint pain with a
mildly elevated rheumatoid factor and antinuclear antibody
but without other clinical evidence and no significant
synovitis on exam to implicate either rheumatoid arthritis[,
] systemic lupus erythematosus, or a related autoimmune
inflammatory connective tissue disease." (AR 760.) One
month later, on March 15, 2012, Dr. Trice detected tenderness
and swelling in Plaintiffs hands, slight swelling in both
wrists, and slight tenderness in her right wrist. Hand x-rays
revealed a "questionable cyst" (AR 746) at the base
of one phalanx in Plaintiffs left hand which was not
confirmed on a different view. Dr. Trice diagnosed Plaintiff
with inflammatory arthropathy, but could not confirm a
diagnosis of either rheumatoid arthritis or systemic lupus
the remainder of 2012 and into February 2013, Plaintiff
continued to visit P.A. Thompson for medication management
and for back pain treatment. During these visits, Plaintiff
was oriented and exhibited normal mood, affect, and
behavior. On February 20, 2013, Dr. Trice recorded
that Plaintiff had "inflammatory arthropathy with low
titer ANA and rheumatoid factor positivity" and ruled
out rheumatoid disease and lupus. (AR 301.) Plaintiff s joint
examination was normal. Dr. Trice posited that Plaintiffs
swelling was "likely infectious, probably viral"
(AR 305) and assessed that her inflammatory arthropathy
improved with medication. Six months later, Dr. Trice's
examination revealed that Plaintiffs inflammatory
polyarthritis had improved with medication.
24, 2013, Plaintiff reported to PA. Thompson that she had
begun using a cane and had recently experienced increased
pain in her left side. She was referred to a spine clinic for
further examination. Thereafter, Plaintiff received treatment
from physician assistant Robert Hemond at the Fletcher Allen
Spine Institute. PA. Hemond observed on June 21, 2013 that
Plaintiff exhibited an antalgic gait favoring her left leg,
but could heel to toe walk. PA. Hemond made the following
[musculoskeletal facetogenic back pain, lower extremity
symptoms not clearly concordant with lumbar radiculopathy.
She may possibly have an L5-S1 nerve root impingement. Her
physical exam reveals 5/5 Waddell signs, reflective of
psychosocial overlay in her pain. The patient is also very
sedentary throughout the day and lays down nearly half the
day. Certainly a component of her discomfort is a result of
(AR 600.) PA. Hemond referred Plaintiff for physical therapy
and Plaintiff thereafter underwent an MRI of her lumbar
spine. On July 3, 2013, PA. Hemond noted that the MRI
post-surgical changes LI-2 and 3, no sign of significant
foraminal narrowing. At 3-4 there is a mild disk bulge and
disk degeneration, although the disk height is
well-preserved. At 4-5 she has a broad-based disk bulge but
no central stenosis. She does have some moderate foraminal
narrowing on the left, although there is epidural fat around
the nerve root and at 5-1 she has moderate to severe
foraminal narrowing on the left, although disk space height
is well preserved.
(AR 602.) PA. Hemond again opined that Plaintiffs back pain
is "likely musculoskeletal discogenic and related to
deconditioning, while the left lower extremity's symptoms
may be a mild intermittent L5 radiculopathy."
Id. PA. Hemond further noted that Plaintiff had not
attended physical therapy and was not interested in pursuing
injection therapy, and therefore concluded he had
"little else to offer" Plaintiff. Id.
Plaintiffs March 21, 2014 visit, P.A. Thompson recorded that
Plaintiff was "feeling more pain" and was limping
and using her cane more, but experienced some relief from
using a Transcutaneous Electrical Nerve Stimulation
("TENS") unit either daily or every other day for
fifteen minutes. (AR 675.) P.A. Thompson documented that
Plaintiff had "a hard time getting from sitting to
standing" and "can't stand or sit for any
length of time without increased pain." Id. One
week later, P.A. Hemond noted that Plaintiff had "really
no significant discomfort" in her back, although she had
experienced a moderate amount of discomfort in her left side
over the previous three days. (AR 801.) He assessed that
Plaintiff had "very infrequent left lower extremity
symptoms and overall is doing fairly well"
(id.) and recorded that Plaintiff had attended
physical therapy on a number of occasions since he had last
treated her. As a result, P.A. Hemond recommended that
Plaintiff continue using her TENS unit, begin a home exercise
program, and suggested that she consider weaning off of her
medication for pain management.
visited Dr. Trice on June 13, 2014, complaining again of pain
in her hands and left elbow. A joint examination revealed no
tenderness in her hands and feet and mild tenderness on
palpation of her left elbow and full ranges of motion in her
remaining joints and lower extremities. Dr. Trice concluded
that Plaintiffs inflammatory arthropathy was "reasonably
well controlled" and prescribed her Meloxicam. (AR 711.)
about September 10, 2014, P.A. Thompson completed a Medical
Source Statement of Ability to Do Work-Related Activities
(Physical) ("Physical Assessment"), wherein she
opined that Plaintiffs impairments and pain therefrom would
markedly interfere with her ability to concentrate and focus
on job-related tasks to the extent that she could not perform
such tasks for continuous two-hour periods throughout an
eight-hour workday and five-day workweek. P.A. Thompson
further expected that Plaintiffs working pace would likely be
reduced more than twenty percent from a normal pace. Due to
Plaintiffs fatigue, P.A. Thompson assessed that Plaintiff
could perform work activities for one hour before needing to
rest for fifteen minutes. She opined that Plaintiff s
lifting, carrying, standing and walking abilities were
affected by her impairments, but did not indicate the degree
of such limitations.
Plaintiffs Mental Health.
received treatment and prescribed medication from P.A.
Thompson to treat a diagnosis of depression. On November 5,
2010, P.A. Thompson documented that Plaintiff had a
"history of depression and recently her symptoms have
been worse[, ]" noting that plaintiff felt "very
stressed partly dealing with this worsening pain, which has
been more disruptive to her life, dealing with the fact that
she is not working and therefore has financial
stresses[.]" (AR 423.) P.A. Thompson noted that
Plaintiff enjoyed playing bingo when she was financially able
to do so, but was otherwise "pretty isolated."
Id. P.A. Thompson prescribed Zoloft. Three weeks
later, P.A. Thompson recorded that Plaintiff was tolerating
that medication well and had experienced less anger, fewer
outbursts, and "let go of stressors and frustrations
easier." (AR 422.) During both visits, P.A. Thompson
noted that Plaintiff appeared in no distress with the
exception of occasionally appearing tearful during the
November 5, 2010 visit.
continued to visit P.A. Thompson in January and May of 2011,
and reported that her prescribed Zoloft was "helping
emotionally" (AR 421), but that she still experienced
stress. P.A. Thompson documented that Plaintiff exhibited a
depressed mood and was tearful. On January 2, 2012, P.A.
Thompson recorded that Plaintiff had begun counseling and
observed that Plaintiffs "primary symptoms include
dysphoric mood and negative symptoms. This is a chronic
problem. Suicidal ideas: occasional fleeting thought. She
does not have a plan to commit suicide." (AR 402.) P.A.
Thompson again noted that Plaintiff was tolerating Zoloft
well and was well oriented during September 12, 2012 and
December 3, 2012 visits. Following the latter visit, in which
Plaintiff exhibited a "depressed mood" (AR 388),
P.A. Thompson prescribed Cymbalta to replace Zoloft. P.A.
Thompson's January 2, 2013 treatment notes indicated that
Plaintiffs transition to prescribed Cymbalta was successful,
as she "fe[lt] better but has some reduction in stress
too" with "[l]ess crying" and "[n]o
suicidal thoughts." (AR 384.)
Thompson's treatment notes from August 14, 2013, November
4, 2013, December 19, 2013, and March 21, 2014 reveal that
Plaintiff continued to take prescribed Cymbalta, in
increasing dosages. On each occasion, P.A. Thompson observed
that Plaintiff exhibited normal behavior and mood, and was
oriented to person, place, and time.
about October 14, 2014, P.A. Thompson completed a Medical
Source Statement of Ability to Do Work-Related Activities
(Mental) ("Mental Assessment"), wherein she
concluded that Plaintiff suffered from anxiety-related
disorder and affective disorder. P.A. Thompson opined that
Plaintiff suffered "marked" difficulties in
maintaining social functioning and concentration, persistence
or pace; "moderate" restrictions in the activities
of daily living. (AR 814.) She further opined that Plaintiff
would respond inappropriately to criticism from coworkers and
supervisors and be unable to focus on job-related tasks for
two-hour periods of time during an eight-hour workday. She
expected that Plaintiff would miss two days of work per month
because of her mental health impairments.
Plaintiffs Function Report.
about February 25, 2013, Plaintiff completed a Function
Report in support of her application for SSDI and SSI
benefits. She reported that she had difficulty managing her
personal care, could no longer prepare non-microwaveable
meals, and could not sleep for more than a couple of hours at
a time. She stated that she could still perform certain
household chores, drive, and manage her personal finances.
Regarding her hobbies and interests, she reported that she
"watch[es] tv all the time, bingo maybe once or twice a
month" but could not go bowling anymore. (AR 207.) She
spent time with her family on a weekly basis.
explained that she had problems interacting with others, as
she "fe[lt] like people [we]re talking about me all the
time" and "get[s] anxious around a lot of
people[.]" (AR 208.) She recounted having arguments with
"a few bosses" (AR 209) in the past and stated that
she could no longer adequately follow spoken instructions
unless she wrote them down. Plaintiff stated that she used a
cane and had been prescribed Cymbalta, Lyrica, Roxicodone,
Percocet, Flexeril, and Plaquenil. In summary, Plaintiff
wrote that she:
get[s] a lot of confusion, feel[s] depressed all the time,
and ha[s] noticed that I have a lot of anxiety over the past
few years d[ue] to feeling helpless and hopeless because of
my pain and make a lot of mistakes when I never did before.
My hands don't work anymore they hurt [j]ust opening