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Johnson v. Berryhill

United States District Court, D. Vermont

June 21, 2017

JOSEPH JOHNSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR AN ORDER REVERSING THE COMMISSIONER'S DECISION AND DENYING THE COMMISSIONER'S MOTION TO AFFIRM (DOCS. 6 & 7)

          Christina Reiss, United States District Court Chief Judge

         Plaintiff Joseph Johnson is a claimant for Social Security Disability Insurance benefits and Supplemental Security Income 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 August 19, 2016, Plaintiff filed his motion to reverse (Doc. 6), and on October 18, 2016, the Commissioner moved to affirm (Doc. 7). On November 1, 2016, Plaintiff filed his response to the Commissioner's motion, at which time the court took the motions under advisement.

         Plaintiff raises three issues on appeal: (1) whether substantial evidence supports Administrative Law Judge ("ALJ") Dory Sutker's findings that Plaintiffs osteoarthritis of the hands, knees, and hips was not a severe impairment and that neither the degenerative changes of Plaintiff s spine nor his peripheral vascular disease were medically determinable impairments; (2) whether she properly assessed the medical opinions in the administrative record ("AR"); and (3) whether substantial evidence supports her determinations that Plaintiff has the residual functional capacity ("RFC") for medium work, is able to perform his past relevant work as a dishwasher, and that alternative occupations exist in significant numbers that Plaintiff is able to perform. The Commissioner responds that substantial evidence in the record supports ALJ Sutker's findings and RFC, and asserts that she properly assessed the medical opinions.

         Plaintiff is represented by Penelope E. Gronbeck, Esq., and the Commissioner is represented by Special Assistant United States Attorney Fergus J. Kaiser.

         I. Procedural History.

         Plaintiffs claims were initially denied on January 15, 2013, and upon reconsideration on May 8, 2013. Plaintiff timely requested a hearing, which was held before ALJ Sutker via videoconference on August 7, 2014. Plaintiff was represented and appeared at the hearing, and both he and vocational expert ("VE") Elizabeth Laflamme testified.

         On August 22, 2014, ALJ Sutker issued a written decision and found that Plaintiff was not disabled under the Social Security Act. Plaintiff filed a timely appeal which the Appeals Council denied on January 6, 2016. As a result, ALJ Sutker's August 22, 2014 decision stands as the Commissioner's final decision. Plaintiffs claim is ripe for judicial review pursuant to 42 U.S.C. § 405(g).

         II. Factual Background.

         Plaintiff is a male born in 1959 who attended school through the tenth grade. He alleges a disability onset date of March 15, 2012, based on osteoarthritis in his hands, knees, and hips; degenerative arthritis of the spine; peripheral vascular disease in his lower extremities; obstructive sleep apnea; chronic obstructive pulmonary disorder ("COPD"); anxiety disorder/post-traumatic stress disorder ("PTSD"); and depressive disorder. Plaintiffs employment history includes work in the construction industry, a convenience store, a tire store, and a restaurant.

         A. Plaintiffs Medical History.

         On October 29, 2012, Craig Knapp, Ph.D., a licensed psychologist, conducted a consultative examination of Plaintiff. Dr. Knapp recounted that Plaintiff, who had separated from his wife and had no children, typically watched television, took walks until his hip hurt, exercised, and played with his stepdaughter's child during the day. He attended to his own personal care, cooked, shopped, cleaned the house, and paid bills with assistance from his sister. Plaintiff maintained a number of friendships and cared for his cat and dog. Plaintiff reported first abusing alcohol and marijuana during his teenage years and identified his last use of marijuana four years prior to the examination. Although he drank two beers once a week, Plaintiff stated that he last excessively consumed alcohol six or seven years ago. Plaintiff claimed that he was seeking disability benefits because "it [was] hard for him to get around because he [had] abused his body and now it [was] catching up to him." (AR 410.)

         Dr. Knapp observed that Plaintiff was relaxed, positive, cooperative, and responsive, with normal tone and manner of speech and reported an overall life satisfaction of seventy-five out of one hundred. Plaintiff experienced depression after his sister's death when he was ten years old, and he felt anxiety and uncertainty about "how to deal with things at times." (AR 412.) Plaintiff had difficulty recalling past events and displayed significant confusion about dates and details. Dr. Knapp estimated some degree of cognitive delay and noted that Plaintiffs thought process appeared "somewhat circumstantial and tangential and he did acknowledge having cognitive blocking at times." (AR 413.) Dr. Knapp opined that Plaintiff was nonetheless fully oriented without any indication of perceptual disorder. Dr. Knapp concluded that Plaintiff "would most likely have some difficulty understanding, remembering, and carrying out instructions in a work setting[, ]" and that Plaintiffs "ability to relate to coworkers and supervisors . . . [and h]is ability to respond to work pressures on a sustained basis in a work setting would also appear to be impacted upon by his continued use of marijuana, " as well as by his physical impairments, "particularly arthritis or asthma[.]" (AR 413-15.)

         On November 29, 2012, Russell Tonkin, M.D. performed a consultative physical examination of Plaintiff to evaluate his complaints of worsening arthritis, cramping in his hands, and poor circulation in his legs and occasional leg cramps. Plaintiff reported that his arthritis did not impact his activities of daily living, but it did impair his ability to engage in carpentry. The knee pain that Plaintiff experienced after walking long distances was "somewhat limiting[, ]" and he acknowledged that he obtained "some relief from over-the-counter or prescription nonsteroidal anti-inflammatory drugs. (AR 418.) Plaintiff described his chronic asthma as "unlimiting." Id.

         Plaintiff stated that he lived with his nephew and performed yardwork and housework. He watched television for entertainment because his hand discomfort and occasional cramping limited his ability to draw, but he nevertheless completed all of his daily activities without assistance and in a timely manner. Plaintiff reported taking Naproxen to relieve his occasional ankle swelling and discomfort and using Dulera and Xopenex inhalers for his COPD and asthma, respectively.

         Plaintiff denied any significant weakness, regular numbness, or tingling in his extremities, but he reported that his legs felt numb after he sat for extended periods of time. Plaintiff moved around the examination room, removed his shoes and socks, moved on and off of the examination table, and performed the activities of the examination without significant distress. Dr. Tonkin noted Plaintiff had normal dexterity in his arms and hands, his ability to pick up fine objects was unimpaired, and he had full grip strength on both sides. Dr. Tonkin further observed that Plaintiffs coordination, station, and gait were normal, his straight leg raise test was normal, and he had full strength in his arms and legs. Despite an arthritic deformity on his right thumb, Plaintiff did not exhibit any limitation, and his range of motion in his hands and fingers was normal. Dr. Tonkin found that Plaintiff had "crepitance of his left knee, but the range of motion was normal, and there was no swelling." (AR 420.) Plaintiff exhibited decreased breath sounds bilaterally, but he did not exhibit any shortness of breath.

         Dr. Tonkin diagnosed arthritis in Plaintiffs hands, poor circulation in his legs, COPD, and asthma. He opined that Plaintiff could stand or walk for at least six hours as long as he had opportunities to rest and was not walking up steep inclines. Plaintiffs capacity to sit was unlimited as long as he was permitted to change positions periodically, and Plaintiff used no assistive devices. Dr. Tonkin noted that Plaintiff could lift fifty pounds occasionally and twenty-five pounds frequently with opportunities to rest. With respect to postural activities, Dr. Tonkin stated that Plaintiff should only occasionally climb due to his age and the arthritis in his knees, but he had no problems with balancing, stooping, or crouching. Dr. Tonkin further opined that Plaintiff would exacerbate the condition of his knees by kneeling or crawling for extended periods of time and recommended that he avoid dust, fumes, or gases. Although he had "early arthritic changes in his hands[, ]" Plaintiff could reach, handle, finger, and feel without limitation. (AR 422.)

         On January 4, 2013, Plaintiff received x-rays of his knees at Rutland Regional Medical Center, which were negative for bone or joint abnormalities. On February 26, 2013, lumbosacral x-rays revealed "moderate to severe degenerative change involving the facet joints fairly diffusely" within Plaintiffs spine and "mild degenerative change involving [his] hips bilaterally." (AR 455.)

         Kim Kurak, D.O. examined Plaintiff on March 27, 2013. Plaintiff raised "minor complaints" about back and left hip pain and decreased energy and stated that he exercised three to four times a week. (AR 441.) Plaintiff reported excessive sleeping because of his medication regimen, which included Omeprazole for upset stomach; Spironolactone for high blood pressure; Buspar and Mirtazapine for anxiety and depression; Gabapentin, Tramadol, and Naproxen for pain; and inhalers for asthma. Dr. Kurak observed that Plaintiff was alert and not in acute distress with normal breathing and no leg edema, and his mood and affect were normal. Dr. Kurak recommended that Plaintiff stop taking Tramadol to see if his fatigue improved, and she prescribed a cane.

         During a follow-up visit with Dr. Kurak on April 10, 2013, Plaintiff reported that he had been avoiding heavy lifting and was less sleepy after an adjustment in his medications. Plaintiff stated that his back was "doing alright" but he remained unable to stand or walk for long periods of time without back pain, which had begun to radiate into his left hip. (AR 710.) Plaintiff indicated that he was having difficulty breathing in the morning, and as a result he had decreased his daily intake of cigarettes, although he continued to smoke a pack per day through April of 2014. Dr. Kurak noted that Plaintiff was alert, cooperative, in no acute distress, and fully oriented, his breathing was normal, and his legs were not swollen. Dr. Kurak discontinued Plaintiffs Tramadol prescription, instructed him to continue taking Dulera for his COPD, prescribed Combivent, and recommended that Plaintiff exercise.

         Beginning in April 2013, Plaintiff met with Coleen Lillie, a licensed independent clinical social worker, for psychiatric evaluation and care. During his initial evaluation, Plaintiff reported mild depression, sleep disturbance, low energy, slow movements, moderate mood swings, severe anxiety, and moderate hopelessness and worthlessness. Despite Plaintiffs report that he suffered '"memory problems[, ]'" Ms. Lillie observed that Plaintiffs long-term memory was "very clear." (AR 706.) Ms. Lillie's "working diagnosis" was that Plaintiff suffered from generalized anxiety disorder. Id. At their next meeting in June of 2013, Plaintiff was "sad and increasingly tearful[.]" (AR 698.)

         On April 16, 2013, Plaintiff was referred to Vermont Sports Medicine Center ("VSMC") for physical therapy to treat his back pain. He was using a cane. Plaintiff exhibited decreased lumbar range of motion, hip muscle tightness, core and hip weakness, abnormal posture, and impaired daily functioning. Plaintiffs rehabilitation potential was nevertheless determined to be "[g]ood" and he was directed to attend therapy twice a week for eight weeks. (AR 449.) Three days later, Plaintiff returned to VSMC for a physical therapy session, during which he exercised and stretched. He was assessed as having responded well to increased exercise.

         During a May 9, 2013 visit with Dr. Kurak, Plaintiff reported breathing difficulties. Later that month, Plaintiff completed a sleep study with the Center for Sleep Disorders, which indicated that Plaintiff had moderate obstructive sleep apnea and restless leg syndrome. Treatment options included continuous positive airway pressure ("CPAP") therapy as well as weight loss, exercise, and smoking cessation. June 10, 2013 notes from the Brandon Medical Center included reports that Plaintiffs COPD was "not well controlled at [that] time" and that he "cont[inued] to work on smoking cessation." (AR 700.) Approximately two weeks later, edema and pitting were observed in Plaintiffs lower extremities.

         On July 11, 2013, Dr. Kurak recorded that Plaintiffs feet were swollen and blotchy, and they tingled when he walked. He reported that he could perform his daily activities without problems, but walking quickly caused him to feel breathless. Dr. Kurak noted that Plaintiff was alert, cooperative, and fully oriented and exhibited normal mood and breathing. Plaintiffs legs were swollen, with the right leg slightly more swollen than the left leg, and "pitting edema" and "chronic skin changes [were] visible." (AR 696.) Dr. Kurak ordered compression socks to treat the swelling and his peripheral vascular disease. Plaintiffs breathing issues and physical condition remained stable through the end of 2013.

         On July 16, 2013, Plaintiff met with Wendy Leffel, M.D. and reported suicidal thoughts following "emotional stress and legal difficulties." (AR 692.) Plaintiff stated that he "tied a string around his neck on his porch[, ]" but "[t]he string broke and he realized what he was doing and that he did[] [not] want to kill himself." Id. Dr. Leffel noted that Plaintiff was alert, cooperative, depressed, and fully oriented with a flat affect and assessed "[m]ajor depressive disorder, recurrent episode, severe[.]" (AR 693.)

         At his next session with Ms. Lillie on August 15, 2013, Plaintiff was "very sad and tearful regarding his suicide attempt[.]" (AR 685.) Plaintiff discussed his ongoing divorce and his ex-wife's allegations, and Plaintiff "agreed to not harm himself and no longer report[ed] feeling suicidal." Id. At his October 10, 2013 appointment with Ms. Lillie, Plaintiff appeared to be in a "very depressed state" and was "[s]omewhat tearful[.]" (AR 677.) Ms. Lillie described him as cooperative but depressed, sad, and anxious with limited insight and judgment. No significant changes were reported during Plaintiffs visits on December 2, 2013, December 10, 2013, or February 21, 2014.

         On January 2, 2014, Plaintiff was referred to John F. Dick, M.D. for a disability examination. Plaintiff reported that he had not worked in three years due to his lower back pain, which "came on insidiously" and was not the result of a specific injury. (AR 752.) Plaintiff stated that the pain radiated down into his left leg and to his knee and was aggravated by walking so that he had to stop and lean on something when he walked more than 200 feet. He indicated that his pain level was eight out often at its worst, but that medication reduced his pain to "about a 2." Id. Plaintiff reported poor balance and breathing difficulties.

         Dr. Dick described Plaintiff as alert with a slightly flat affect. Plaintiff exhibited full strength and normal coordination and flexion in his arms, but flexion was limited in his lower back with mild tenderness over the lumbosacral spine. Plaintiff experienced pain in his back during the straight leg raise at thirty degrees on the left leg and at forty-five degrees on the right leg. Dorsal pedal pulses were absent on Plaintiffs left leg. His station was normal, and his gait favored his left leg with a slight limp.

         Dr. Dick assessed chronic back pain and recommended that Plaintiff stop taking Tramadol because he was "not sure [it was] helping and likely making him sleepy." (AR 754.) He further recommended physical therapy and opined that Plaintiff was unable to lift ten pounds or complete a full workweek, even in a sedentary position. He estimated that Plaintiff would miss more than one day of work each month for medical reasons and that Plaintiff was at risk for injury due to his inability to concentrate.

         That same day, Dr. Dick completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) form, wherein he opined that Plaintiff could lift and/or carry less than ten pounds; stand and/or walk less than two hours in an eight hour workday; and sit less than six hours in an eight hour workday. He reported that Plaintiff had limited ability to push and/or pull with his arms and legs; was unable to climb, balance, crouch, crawl, or stoop; and was only occasionally able to kneel. Plaintiff was further limited in his ability to concentrate as well as his ability to reach, although he exhibited no limitation in his fine or gross manipulation. Dr. Dick noted that Plaintiff j was limited in his ability to be exposed to temperature extremes, dust, hazards, fumes, odors, chemicals, or gases.

         The following month, Plaintiff reported to Dr. Kurak that his COPD was j improving and he was smoking less, about half a pack per day. Plaintiff reported he had "never weighed [as] much in his life" and believed that it contributed to his increased back pain. (AR 740.) Dr. Kurak recommended that Plaintiff return to physical therapy and endeavor to lose weight.

         On March 21, 2014, Ms. Lillie observed that Plaintiff was "very depressed" and tearful and had been having "extremely limited social contact[.]" (AR 732.) Plaintiff reported that "[h]is world consist[ed] of smoking outside, eating and sleeping on the couch as well as watching [television] during the day." Id. Ms. Lillie was "struck by his level of depression and his rapid state of poor health[, ]" and opined that Plaintiffs "spirit ha[d] been broken and he ha[d] given up." Id. After visits on April 18, 2014 and April 30, 2014, Ms. Lillie noted that Plaintiff remained "extremely distressed and [was] sobbing." (AR 726.)

         On May 14, 2014, Plaintiff informed Dr. Kurak that his breathing had been "alright[, ]" but he experienced shortness of breath when he walked outside. (AR 773.) Plaintiff reported that he had no leg pain when he walked, but he did occasionally feel leg pain after he rested. Dr. Kurak again recommended that Plaintiff resume physical therapy to alleviate his back pain. During a visit the next month, Dr. Kurak observed swelling in Plaintiffs legs, and Plaintiff reported swelling and burning in his feet. Dr. Kurak advised him to continue using compression socks and to exercise more.

         B. Plaintiffs ...


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