United States District Court, D. Vermont
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
AN ORDER REVERSING THE COMMISSIONER'S DECISION AND
GRANTING THE COMMISSIONER'S MOTION TO AFFIRM (DOCS. 5 &
Christina Reiss, District Judge
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.
is represented by Judith Brownlow, Esq. The Commissioner is
represented by Special Assistant United States Attorney James
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
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).
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.
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.
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.
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
Plaintiffs Medical History.
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.
Plaintiffs History of Lower Back Pain.
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.
Plaintiffs Treatment History with Psychiatrist Ray
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
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.)
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. 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.
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.
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.
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).
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."
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.)
Plaintiffs Treatment History with Primary Care Physician
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).
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.
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.)
Consultative Examinations by Mr. Italia, Dr. Huyck, and Dr.
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.
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
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.
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
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.)
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 ...