Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sweet v. Berryhill

United States District Court, D. Vermont

June 16, 2017

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


          Christina Reiss, Chief Judge United States District Court

         Plaintiff 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.[1] 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.

         Plaintiff 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.

         Arthur P. Anderson, Esq. represents Plaintiff. Special Assistant United States Attorneys Lorie E. Lupkin and Susan J. Reiss represent the Commissioner.

         I. Procedural History.

         Plaintiff 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.

         At an October 29, 2014 video conference hearing before ALJ Merrill, Plaintiff appeared with non-attorney representative Meriam Hamada, [2] 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.

         II. Factual Background.

         Plaintiff 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.)

         A. Plaintiffs Physical Health.

         In June 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.

         On 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.

         Between 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.

         Plaintiff 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 or swelling.

         Beginning 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 erythematosus.

         Throughout 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.[3] 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.

         On May 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 diagnosis:

[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 deconditioning.

(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 revealed:

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.

         Following 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.

         Plaintiff 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.)

         On or 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.

         B. Plaintiffs Mental Health.

         Plaintiff 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.

         Plaintiff 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.)

         P.A. 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.

         On or 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.

         C. Plaintiffs Function Report.

         On or 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.

         Plaintiff 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 [and] ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.