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Cheeseman v. Berryhill

United States District Court, D. Vermont

February 23, 2018

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



         Plaintiff Larry George Cheeseman is a claimant for Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits 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 (the "Commissioner") that he is not entitled to disability benefits because he is not disabled.[1] On March 24, 2017, Plaintiff filed his motion to reverse the Commissioner's decision. (Doc. 7.) On July 24, 2017, the Commissioner moved to affirm it. (Doc. 12.) On August 10, 2017, the court took the matter under advisement.

         Plaintiff identifies the following errors in the Commissioner's decision: first, the Administrative Law Judge ("ALJ") failed to sua sponte develop the record on appeal after Plaintiff elected to proceed with his administrative hearing without representation. And second, that the Social Security Administration's Office of Disability Adjudication and Review Appeals Council ("Appeals Council") improperly denied Plaintiffs request for review on the basis of new or additional evidence.

         David J. Strange, Esq. represents Plaintiff. Special Assistant United States Attorney Sandra M. Grossfeld represents the Commissioner.

         I. Procedural History.

         Plaintiff applied for SSDI on October 17, 2013, and subsequently applied for SSI on November 6, 2013. Plaintiffs applications were both initially denied on February 25, 2014, and again on reconsideration on May 9, 2014. Plaintiff requested further review by an ALJ on May 20, 2014.

         At a September 15, 2015 hearing before ALJ Dory Sutker, Plaintiff appeared via video from Saint Johnsbury, Vermont and testified, as did his wife. ALJ Sutker presided over the hearing from New Hampshire and Vocational Expert ("VE") Elizabeth C. Laflamme appeared by telephone. At the commencement of the proceeding, Plaintiff informed ALJ Sutker that his attorney had withdrawn the day before the hearing. ALJ Sutker advised Plaintiff of his right to be represented, the ways in which representation could be beneficial to his case, and the possibility of postponing the hearing to enable Plaintiff to obtain a lawyer. ALJ Sutker also informed Plaintiff that some legal aid services provide representation free of charge to Social Security claimants with a demonstrated need. Plaintiff indicated that he understood his right to representation, and that "the best thing to do is to proceed[.]" (AR 211.)

         At the hearing, Plaintiff acknowledged that he had an opportunity to review the exhibit list on the day of the hearing, and that the record evidence appeared complete.[2] ALJ Sutker then explained the hearing process and issues to be determined, and asked Plaintiff on at least four separate occasions if he had any questions about the proceeding, the right to representation, or "just general questions you have before we get started[.]" (AR 214.) Plaintiff stated that he had no questions, and signed a written waiver of representation by counsel.

         In a written decision dated October 29, 2015, ALJ Sutker found that Plaintiff was not disabled at any time following his alleged onset date of February 10, 2010. On December 18, 2015, Plaintiff filed a request for review by the Appeals Council arguing that ALJ Sutker "failed to fulfill her duty to develop the record where [Plaintiffs] representative withdrew one day before the hearing and there was an obvious 3-year gap in treatment records." (AR 8.) Plaintiff submitted three sets of medical records which were not before ALJ Sutker in connection with his appeal. On May 26, 2016, the Appeals Council denied Plaintiffs request for review. As a result, ALJ Sutker's October 29, 2015 written decision stands as the final decision of the Commissioner with regard to Plaintiffs 2013 benefits applications. On November 29, 2016, Plaintiff was awarded disability benefits as the result of a new application which determined his onset date to be August 30, 2016. Plaintiffs present appeal is of ALJ Sutker's denial of his October 2013 application, which alleged an onset date of February 10, 2010.

         II. Factual Background.

         Plaintiff is 54 years old and resides in Lunenburg, Vermont. He finished eleventh grade before entering the United States Navy at age 17, serving for three years. After his honorable discharge, Plaintiff worked as a handyman, landscaper, construction worker, and truck driver. He possesses a General Equivalency Degree and is able to read, but states that he struggles with simple arithmetic. Plaintiff alleges disability on the basis of chronic obstructive pulmonary disease ("COPD"), angina, degenerative disc disease, degenerative changes of the bilateral shoulders, anxiety disorder, major depressive disorder, and alcohol dependence.

         A. Medical History in the Administrative Record Before the ALJ.

         Plaintiff alleges a disability onset date of February 10, 2010 because immediately prior to that date, on February 1, 2010, he was admitted to the Northeastern Vermont Regional Hospital ("NVRH") emergency room with "[a]typical chest pain" (AR 487) that he reported lasted approximately four days. Emergency room staff administered "2 nitroglycerine" which stopped Plaintiffs chest pain, but hospital staff expressed doubt that the pain was cardiac in nature. Id. A myocardial infarction was ruled out and a chest x-ray revealed "[n]o evidence of acute cardiopulmonary disease." (AR 567.) Plaintiff also reported double vision and facial/muscle weakness upon his admission. He was seen by a neurologist who conducted a full exam. The results suggested benign positional vertigo, and a modified Epley maneuver was performed. Plaintiff was discharged the following day.

         Subsequent stress testing on a treadmill caused Plaintiff significant chest discomfort with shortness of breath and an abnormal EKG with 1-2 mm horizontal upsloping ST depression in the anterolateral leads. Cardiac catheterization was recommended, and scheduled as an outpatient procedure for February 4, 2010 at Fletcher Allen Health Care. The results of this diagnostic catheterization indicated "no significant epicardial coronary artery disease[, ]" and the attending cardiologist "[s]uggest[ed] further diagnostic testing to evaluate possible non-cardiac sources of chest pain." (AR 638.)

         On February 18, 2010, Plaintiff reported similar chest pain and dyspnea to that which prompted his February 1, 2010 admission to NVRH. Plaintiff also stated that he was not sleeping well, had anxiety attacks and nightmares, and was afraid to sleep. Medical staff at Saint Johnsbury Family Healthcare ("SJFH") ordered follow-up pulmonary testing which yielded a diagnosis of mild obstructive airway disease with no significant bronchodilatory response. Plaintiff met with SJFH medical staff on March 21, 2010 to discuss his pulmonary function testing results.

         A June 21, 2010 notation in Plaintiffs chart from SJFH reflects that he "moved out of area in Florida[.] Records sent 06-21-10[.]" (AR647.) The record evidence before the ALJ indicated that Plaintiff did not visit another healthcare provider until October 1, 2013.[3] This represents an approximately three and a half year gap in Plaintiffs medical records. In August of 2013, a "new patient" entry stated that Plaintiff would "re[-]establish w[ith] S[ain]t J[ohnsbury][.] Florida for 3 y[ea]rs[.]" (AR 760.)

         On October 1, 2013, Plaintiff visited SJFH to establish care and reported that he had been experiencing periodic chest pain for months and that he had early emphysema. His symptoms at this visit were improved, and he denied sleep or mood disturbances, fatigue, or a cough. His angina was "stable at present." (AR 754.) He did, however, complain of chronic back pain.

         On October 14, 2013, Plaintiff reported to the emergency room at Weeks Medical Center in Lancaster, New Hampshire. His chief complaint was shortness of breath and chest pain. He also reported that his left arm went numb. Plaintiffs history of COPD was noted, but a chest x-ray revealed no acute cardiopulmonary process. Plaintiff was prescribed an albuterol inhaler for use as needed. Six days later, on October 20, 2013, Plaintiff appeared again at Weeks Medical Center's emergency room having taken his albuterol inhaler. "Upon arrival, he [was] notably anxious, " and was given Duo-Nebs nebulizer treatment and Ativan, to which he responded well. (AR 731.) His final diagnoses from this visit were "[c]hronic obstructive pulmonary disease (COPD) exacerbation" and "[a]nxiety." (AR 732.) He was discharged with a five-day course of Prednisone.

         On October 23, 2013, Plaintiff was seen at Concord Health Center ("CHC") in Concord, Vermont, where he stated that his shortness of breath had "gotten much worse." (AR 748.) Plaintiffs anxiety level was high and he reported experiencing panic attacks, dizziness, and blackouts. He stated that his symptoms were relatively stable, although his breathing problems had prompted him to close his business.

         On November 6, 2013, Plaintiff was seen by Jeniane Daniels, MS PAC, at CHC and reported that he was trying to remain active through hunting and fishing but that he "gets quite [short of breath] with activities." (AR 812.) Plaintiff also reported exertional chest pain requiring "nitro" on two occasions between October 23, 2013 and November 6, 2013. Id. CHC staff noted that his shortness of breath symptoms could be attributable to a combination of known pulmonary problems and new or undiagnosed cardiac pathology. A further follow up visit at CHC on November 20, 2013 revealed that Plaintiff was "doing about the same[.]" (AR 869.) Plaintiff reiterated his intent to retire from his business, stating to providers that "I just can't do the work anymore." (AR 869-70.)

         Plaintiff underwent an annual physical exam on February 3, 2014 which indicated that "[o]verall patient is feeling well." (AR 868.) He denied any chest pain or palpitations, but did indicate that "he suffers quite chronically with arthritic pain (most prominent to low back)." Id. Plaintiffs blood pressure was also "well above goal" at this exam. Id. On February 7, 2014, Plaintiff was evaluated for COPD at North Country Hospital in Newport, Vermont. Veronika Jedlovszky, M.D. noted a diagnosis of mild obstructive airway disease in 2010 and opined that "the patient's airway disease probably has worsened since 4 years ago[.]" (AR 875.)

         On March 18, 2014, Plaintiff requested an x-ray of his back because his "[pain] is not really any better esp[ecially] in cold weather[.]" (AR 888.) He indicated that he had begun working again after an SSDI denial, but that "[w]ith these activities, coupled with colder weather, [he] has experienced [a] flare of chronic low back pain and bilateral shoulder pain." (AR 889.) He had tenderness down to his lowest lumbar spine but retained full, "albeit slow, " range of motion in both shoulders. Id. March 21, 2014 imaging revealed mild hypertrophic changes at the acromioclavicular joint in both shoulders consistent with mild degenerative joint disease. The same imaging also revealed end plate osteophytes at multiple levels of the lumbar spine, particularly at the L3-4 and L5-6 disc level. There were degenerative changes of the facets throughout, and the radiologist's impression was that of degenerative changes of the lumbar spine. A subsequent June 23, 2014 x-ray revealed "[b]ilateral neural foraminal narrowing at ¶ 6-7 andC7-Tl." (AR 924.)

         On July 18, 2014, Plaintiff was seen for low back pain in the Spine Center at Dartmouth-Hitchcock Medical Center. He reported that his current pain level was nine out often, and that his pain was aggravated by "lying supine or prone" and "extended sitting or standing[.]" (AR 900.) Plaintiff appeared to have "mild levoscoliosis and his left shoulder higher than his right." (AR 901.) His lumbar, lumbar musculature, and bilateral sciatic notches were all tender to palpation, and his trunk flexion was ten degrees and painful. An x-ray revealed that disc heights were well maintained but there were endplate osteophytes at multiple levels of the lumbar spine and degenerative changes of the facets throughout.

         On August 13, 2014, Plaintiff underwent an MRI of his cervical spine. Tl, T2, and T2-3D sagittal and T2 axial sequences were performed. The exam indicated mild disc bulging and small end plate osteophytes at ¶ 3-4, C4-5, and C5-6. There was moderate to severe loss of disc height at ¶ 6-7 with end plate osteophytes, mild concentric disc bulging, and bilateral neural foraminal narrowing. The radiologist's impression was that of degenerative disc changes at ¶ 5-6. On August 20, 2014 Plaintiff underwent a lumbosacral spine MRI which indicated disc disintegration at ¶ 3-4, L4-5, and L5-S1 along with mild bilateral neural foraminal narrowing at ¶ 4-5 and L5-S1 secondary to facet and endplate hypertrophy and disc bulge. Plaintiff attended a follow-up visit at CHC on September 22, 2014 where doctors reviewed the results of these MRIs and referred him to a pain clinic for evaluation of "interventional treatments/injections as management." (AR 916.) Plaintiff was prescribed six hundred milligrams of Neurontin daily and ten milligrams of Flexeril as needed for his back pain.

         Plaintiff had a series of follow-up visits in late 2014 and throughout 2015 for his back pain, COPD, depression, and alcohol abuse issues. On December 16, 2014, Plaintiff had an appointment for "chronic back pain" at CHC. (AR 913.) At this visit, he elected not to pursue invasive procedures for pain management and decided to continue on his medication regime. With regard to his pulmonary symptoms, Plaintiff was "[g]enerally feeling improved, " but did admit to "some increased reliance on [his] rescue inhaler[.]" Id.

         Approximately three months later, on March 23, 2015, Plaintiff was treated at CHC and stated that pain issues precluded him from accepting several jobs, and that his chronic pain and associated physical limitations were contributing to a continued pattern of alcohol abuse. He stated that he was drinking eight beers and smoking more than a pack of cigarettes a day. Plaintiffs Neurontin dosage was increased to six hundred milligrams in the morning, three hundred milligrams at noon, and six hundred milligrams at bedtime. To address concerns about depression, he was prescribed thirty milligrams of Cymbalta ...

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