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Bertram v. Berryhill

United States District Court, D. Vermont

February 21, 2018

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


          Christina Reiss, District Judge

         Plaintiff Donald Scott Bertram is a claimant for Social Security Disability Insurance Benefits ("DIB") under the Social Security Act ("SSA"). 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. On July 7, 2017, Plaintiff filed his motion to reverse and remand for the calculation of benefits (Doc. 5), and the Commissioner filed her motion to affirm on August 17, 2017 (Doc. 6). Plaintiff replied on September 1, 2017 at which point the court took the pending motions under advisement.

         Plaintiff is represented by Judith Brownlow, Esq. The Commissioner is represented by Special Assistant United States Attorney James P. Peck.

         Plaintiff raises the following issues on appeal: (1) whether Administrative Law Judge ("ALJ") Matthew Levin erred by failing to follow the remand Order; (2) whether ALJ Levin violated the treating physician rule; (3) whether the ALJ improperly weighed the opinions of examining medical experts and state agency consultants; (4) whether ALJ Levin erred in determining Plaintiffs residual functional capacity ("RFC"); and (5) whether ALJ Levin erred in finding Plaintiffs alleged symptoms inconsistent with the medical evidence.

         I. Procedural History.

         On December 21, 2009, Plaintiff filed for DIB benefits, alleging that he was disabled as of August 1, 2009. The Commissioner denied his application initially and on reconsideration. On October 14, 2011, Plaintiff testified at a hearing before ALJ Thomas Merrill. Plaintiffs wife, Joni Bertram, and a vocational expert ("VE") also testified. After the hearing, Plaintiff amended his alleged disability onset date to January 1, 2008. On November 16, 2011, ALJ Merrill issued a decision finding Plaintiff was not disabled. After granting review of Plaintiff s application on January 18, 2013, the Appeals Council vacated and remanded the case, finding the ALJ improperly determined that Plaintiffs work activity constituted substantial gainful employment under the tests articulated in 20 C.F.R. § 404.1575(a)(2).

         On July 13, 2013, a second hearing was held before ALJ Merrill with Plaintiff and a VE testifying. ALJ Merrill issued a second decision denying Plaintiffs application on September 24, 2013 and the Appeals Council denied Plaintiffs request for review.

         On May 28, 2014, Plaintiff appealed to this court, which reversed and remanded the Commissioner's decision, holding the ALJ improperly evaluated self-employment income in determining whether Plaintiff engaged in substantial gainful activity and erred in his analysis of the medical opinions. Although it did not reach the issue, the court further noted that the ALJ appeared to have improperly evaluated Plaintiffs credibility by selecting facts from the record depicting Plaintiff as engaging in a more active lifestyle than indicated by the record as a whole. On September 11, 2015, the Appeals Council issued an Order of Remand.

         A third hearing took place before ALJ Levin on September 20, 2016. The ALJ denied Plaintiffs application on December 7, 2016, and the Appeals Council denied Plaintiffs request for review. As a result, ALJ Levin's decision stands as the Commissioner's final decision.

         II. Factual Background.

         Plaintiff is a fifty-five year old man who is married with two adult children. At the time of his alleged disability onset date of January 1, 2008, he was forty-five years old. He has a high school education and attended college for approximately one year. Plaintiff has previous work experience in real estate and as a self-employed property caretaker and snowplow operator. He also occasionally assisted his wife with her cottage-rental business.

         A. Plaintiffs Medical History.

         Plaintiff alleges disability from degenerative disc disease causing back pain that radiates down his left leg, degenerative joint disease in his right knee, bilateral carpel tunnel syndrome ("CTS") with pain and numbness in his hands and wrists, depression, and anxiety. His medical records reveal that he has had inguinal hernias with multiple repairs and suffers from blurred vision.

         1. Plaintiffs History of Lower Back Pain.

         In 1993, Plaintiff ruptured a disk in his back while working. Surgery partially relieved his back pain, allowing him to return to work until 2001 when he re-injured his back. After a second surgery, Plaintiff returned to full-time work, although intensifying back pain reduced him to part-time work in the spring of 2004. An MRI revealed postoperative changes at ¶ 4-L5 of the spine with no clear recurrent disc herniation. From September 13, 2004 to October 7, 2004, he attended the Functional Restoration Program ("FRP") at Dartmouth Hitchcock Medical Center. On September 24, 2004, Plaintiff stated that he was unable to shovel snow and had significant difficulty sitting, walking, and lifting. However, on January 18, 2005, Plaintiff reported that he had reduced his pain and increased his stamina during the FRP. During a follow-up visit on January 18, 2005, Plaintiff described his pain as "mild" and "stable" with the "related disability ... as nil." (AR 820.) At his 2011 hearing, Plaintiff testified that he was unable to return to full time work after completing FRP.

         2. Plaintiffs Treatment History with Psychiatrist Ray Abney.

         In 2009, Plaintiffs primary care physician referred him to Ray Abney, M.D. a psychiatrist affiliated with Springfield Hospital in Springfield, Vermont, for treatment for depression. Dr. Abney first interviewed Plaintiff on December 18, 2009 and has seen him approximately once per month through August 10, 2016. Initially, Dr. Abney diagnosed Plaintiff with major depressive disorder, single episode, moderate, caused at least in part by "chronic back pain" and prescribed him Zoloft and Wellbutrin. (AR 665.)

         Dr. Abney's treatment notes from December 18, 2009 to April 25, 2011 generally show a lack of improvement in or worsening of Plaintiff s depression. On July 6, 2010, Plaintiff stated that he was "not feeling as good as before" and had "feelings of I don't care[.]" (AR 668.) During an August 2, 2010 appointment, Plaintiff informed Dr. Abney that he stays home when his family "goes places and does things" and that he is "[g]etting by, but barely." (AR 910.) On October 5, 2010, Plaintiff related that he "[h]asn't enjoyed things for 7 years [and] hasn't enjoyed his motorcycle for 2 years" and that he "[f]eels down . . . [and] useless." (AR 702.)

         Based on his treatment of Plaintiff, Dr. Abney opined on August 27, 2010 that Plaintiff was "totally disabled" and "[u]nless his back pain" is reduced, "he will be unable to return to work." (AR 661.) On January 5, 2012, Dr. Abney assigned Plaintiff a GAF score of 50, indicating serious symptoms.[1] In Dr. Abney's view, although Plaintiffs symptoms improved after changing medications, these "benefit[s] fade[] over time." Id. Relying in part on Plaintiffs self-reported symptoms, Dr. Abney indicated that Plaintiff has "[m]arked restriction of activities of daily living"; "[m]arked difficulties with maintaining social functioning"; "significant to marked decrease in concentration, persistence[, ] and pace" and; "[r]epeated decompensation into depression but not to the extent of hospitalization." (AR 912.) In explaining his opinions, Dr. Abney found that "[Plaintiffs] life has totally changed" due to depression as he "rarely goes anywhere or does anything he used to enjoy[, ]" that he "[s]pends little to no time with friends on his own" and "only goes out [with] strong pressure from [his] wife or family[, ]" and that "[a]lthough he can do things physically he has to always be on guard or he'll end up bedridden the next day from pain." Id. Dr. Abney further opined that "[t]he extent and persistence of his depression is quite pervasive and affects most aspects of [Plaintiff s] life" and that his treatment notes "do not clearly express [Plaintiffs] sense of desperation and hopelessness." Id.

         On November 28, 2011, Plaintiff reported that he planned to allow his real estate license to expire because he "can't do the sitting" required for the job. (AR 1443.) While a September 14, 2011 appointment documents that Plaintiff was able to paint a house, he reported the activity left him "in bed 3 days after that." Id. During several sessions with Dr. Abney, Plaintiff described his holiday plans which included attending parties with friends and going to see a movie. At a July 16, 2012 appointment, Plaintiff stated that he had better energy and was capable of walking a mile. During an August 13, 2012 treatment session with Dr. Abney, Plaintiff described a trip to Niagara Falls for which he did most of the driving. He described planning a vacation to Hilton Head, South Carolina at a June 24, 2015 visit.

         On July 10, 2013, Dr. Abney opined:

[A]lthough [he] can at time give [Plaintiff] some relief with medications and therapy, his relief is short[-]lived because he remains limited by physical pain . . . and this damages any improvement in mood or self[-] esteem . . . Unless some new treatment becomes available to fix his disc disease and pain, so he can work steadily, I believe he'll remain trapped in depression and pain.


         On April 7, 2014, Plaintiff stated that he "[f]inished a shed[.]" (AR 1432.) He described attending a family member's wedding in Houston, Texas. For Plaintiffs travel to and from Houston, Dr. Abney stated that "[Plaintiff will] want a "tranquilizer] before flying." Id. Before a June 23, 2014 appointment, Dr. Abney found Plaintiff "[s]lowly walking" in the waiting room because it "hurts too much to sit[.]" (AR 1431) (internal quotation marks omitted).

         In 2015 and 2016, Plaintiff described his property maintenance business to Dr. Abney, reporting that while his wife did most of the physical work for the business, he helped with plowing, which afterwards left him "hurt[] all over and [feeling] exhausted[.]" (AR 1429.) On April 13, 2016, he expressed a desire to do work around the house, but if he "mow[s] for 3 [hours], [he] can't work later." (AR 1424.)

         Most recently, in August 10, 2016, Dr. Abney noted that Plaintiff "doesn't do repetitive things at work" and that "spotty work [and] activity" leaves him unable to "do much." (AR 1423.) During the same appointment, however, Plaintiff described "a motor cycle ride [with] his wife" and complained that "his wife won't get him [his] own bike." Id. On April 11, 2016, Dr. Abney stated that his opinion "ha[d] not changed" and that he "continue[d] to feel [that Plaintiff] is severely impaired and unable to work because of his depression and chronic back pain." (AR 1404.)

         3. Plaintiffs Treatment History with Primary Care Physician Robert Tortolani.

         In April 1994, Robert Tortolani, M.D. became Plaintiffs primary care physician, treating him for chronic pain and depression, among other conditions. On June 16, 2009, Dr. Tortolani identified Plaintiffs health issues as: depression with suicidal thoughts; decreased concentration; poor sleep; and low energy; and a positive Phalen's test for carpel tunnel syndrome with tenderness and numbness in his hands. Plaintiff complained that joint pain in his knee left him worn out and prevented him from working. Although he denied suicidal ideation, Plaintiff told Dr. Tortolani that he felt "like [he was] at the end of [his] rope." (AR 591) (internal quotation marks omitted). During a June 16, 2009 appointment, Dr. Tortolani noted that Plaintiff had "not had a happy day [in] months" and that he has had numbness in his hands for a year due to CTS. (AR 593.) On December 7, 2009, Plaintiff stated that he was "worn out" by his joint pain, which prevented him from working. (AR 591) (internal quotation marks omitted).

         At several appointments, however, Dr. Tortolani noted that Plaintiff reported generally feeling well. For example, during a 2008 appointment, Plaintiff stated that he was doing well, happy with his work, and developing a client base for his property maintenance business. Plaintiff stated that he felt "better" and Dr. Tortolani noted that he "looks profoundly better" during a December 17, 2009 visit. (AR 589.) On May 5, 2011, Plaintiff described his pain as "reasonable[, ]" that taking Aleve and ibuprofen "seem[ed] to help[, ]" and that he was "happy to be mowing today." (AR 842.) Dr.

         Tortolani recorded that Plaintiff "look[ed] well" and is "generally doing well." Id. With regard to Plaintiffs RFC, Dr. Tortolani wrote a one-sentence letter stating that he "read Dr. Huyck's report and [he] concur[red] with her assessment." (AR 897.)

         4. Consultative Examinations by Mr. Italia, Dr. Huyck, and Dr. Donaldson.

         On February 22, 2010, Plaintiff completed a psychological evaluation with licensed psychologist Michael A. Italia, M.A. During the examination, Plaintiff described his part-time self-employment in property maintenance, which involved snow plowing and lawn mowing. He further related that he was capable of "completing] chores around the home" and perform "self-care without difficulty." (AR 611.) In terms of psychological symptoms, Plaintiff stated that his mood was depressed, with low motivation and self-esteem and that he had difficulty concentrating. Although he had passing thoughts of suicide, he had no plans to act and did not believe he would do so. In Plaintiffs view, his depression correlated with his physical symptoms. Plaintiff reported that medications helped to reduce the symptoms.

         Mr. Italia observed that Plaintiffs symptoms of depression and anxiety were readily apparent. Throughout the interview, Mr. Italia found that Plaintiff was polite, friendly, and cooperative in providing information about his mental and physical health.

         Mr. Italia diagnosed Plaintiff with major depressive disorder, recurrent, moderate and generalized anxiety disorder and assigned him a GAF score of 55 to 60, indicating mild to moderate symptoms. In assessing Plaintiffs RFC, Mr. Italia opined that Plaintiffs "ability to understand instructions should be good." (AR 612.) He concluded that Plaintiff may have problems concentrating and carrying out instructions, as well as coping with the stressors of the work environment, due to his mental health symptoms. Nonetheless, Mr. Italia found Plaintiff capable of interacting appropriately with supervisors and co-workers. Although Mr. Italia did not review Plaintiffs physical limitations, he noted that Plaintiff "seemed to tolerate the hour plus session today without overt exhibition of pain from the sitting." Id.

         On March 22, 2010, state agency consultant Ronald Woodworm, D.O. examined Plaintiff at his office in Bennington, Vermont. Plaintiff complained of pain mostly in his lower back and left leg. However, Plaintiff reported that "he [was] able to touch the floor with his fingertips, [although] there is pain at that point." (AR 622.) During the exam, Plaintiff had "fairly good heel and toe walking with some slight weakness in his left leg." Id. He had good range of motion in his neck. Dr. Woodworm concluded that Plaintiff had "probable degenerative joint disease" in the lower back and was "positive [for CTS] on the left side" according to the compression test. Id.

         Seeking a work capacity evaluation for his back pain, on September 18, 2011 and July 25, 2016, Plaintiff met with Karen Huyck, M.D., an occupational and environmental medicine specialist at Dartmouth Hitchcock Medical Center. Dr. Huyck concluded that Plaintiffs spine condition met Listing 1.04 for disorders of the spine, finding his lower back pain and left lower extremity pain consistent with left L5 radiculopathy and complicated by CTS, right knee pain, and depression. Because Plaintiff "had expert and appropriate care for his recurrent disc herniations[, ]" received extensive treatment, and exhausted conservative care, Dr. Huyck found Plaintiffs conditions "chronic" and opined that he "is not expected to improve in any significant way in the next 12 months[.]" (AR 885.) She further opined that Plaintiff "is unable to tolerate more than eight hours of work per week that are completely flexible as to when they are scheduled[.]" (AR 898.)

         Dr. Huyck's 2011 RFC exam showed a sitting tolerance of thirty minutes and a dynamic standing tolerance of thirty-three minutes. A Crawford Small Parts Test indicated that Plaintiffs "fine motor coordination [was] below the [first] percentile with tremor noted in [Plaintiffs] bilateral hands such that he would not be able to do frequent fine-motor tasks in a work position." (AR 898.) Plaintiff was capable of climbing fifty-eight stairs, had a "safe lifting tolerance from floor to knuckle [of] 38 pounds, from knuckle to shoulder [of] 43 pounds, overhead [for] 23 pounds, and [a] carrying tolerance for 30 feet [of] 43 pounds." Id. Plaintiff could ambulate at "55% of the expected amount for his age and sex." Id. Based on this RFC ...

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