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Hanley v. Berryhill

United States District Court, D. Vermont

March 29, 2018

AUSTIN HANLEY, on behalf of HEATHER LEGER, deceased, 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. 10 & 11)

          Christina Reiss, Judge

         Plaintiff Austin Hanley brings this action, on behalf of the deceased claimant, Heather Leger, for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("SSA"), seeking reversal of the Social Security Commissioner's decision that Ms. Leger is not disabled. On July 31, 2017, Plaintiff filed his motion to reverse (Doc. 10), and, on August 22, 2017, the Commissioner filed her motion to affirm (Doc. 11). Plaintiff replied on September 21, 2017, at which point the court took the pending motions under advisement.

         Plaintiff is represented by Arthur P. Anderson, Esq. The Commissioner is represented by Special Assistant United States Attorney Andreea Lechleitner.

         Plaintiff raises the following issues: (1) whether Administrative Law Judge ("ALJ") Joshua Menard violated the treating physician rule; (2) whether the ALJ erred in determining Ms. Leger's residual functional capacity ("RFC"); and (3) whether remand is required for the ALJ to consider Ms. Leger's death certificate.

         I. Procedural Background.

         On May 12, 2015 and May 15, 2015, Ms. Leger filed applications for DIB benefits and SSI, respectively. In both applications, Ms. Leger alleged that she was disabled as of November 30, 2014. The Commissioner denied her applications initially on August 18, 2015 and on reconsideration on February 12, 2016. Thereafter, Ms. Leger filed a written request for a hearing on March 22, 2016. On July 26, 2016, she testified at a videoconference hearing before ALJ Menard.[1] Louis A. Laplante, a vocational expert ("VE"), also testified. On August 17, 2016, ALJ Menard issued a decision finding Ms. Leger was not disabled. The Appeals Council denied Plaintiffs request for review on December 1, 2016. As a result, ALJ Menard's decision stands as the Commissioner's final decision.

         II. Factual Background.

         When she passed away on September 11, 2016, Ms. Leger was a thirty-nine-year-old woman. At the time of her alleged disability onset date of November 30, 2014, she was thirty-seven years old. She is survived by an adult son, Austin Hanley, who proceeds as the plaintiff in this case on her behalf. Ms. Leger had a high school education and completed a cosmetology program. Her past work experience includes prep cook, pizza deliverer, waitress, machinist, and hairdresser.

         A. Ms. Leger's Medical History.

         Ms. Leger alleged disability from chronic liver disease, with symptoms of ascites[2]and edema, hepatitis, gastroesophageal reflux disease ("GERD"), depression, anxiety disorder, and post-traumatic stress disorder ("PTSD"). She also suffered from osteoarthritis of the hips, bilateral carpel tunnel syndrome ("CTS"), and symptoms of obsessive-compulsive disorder ("OCD"), attention deficit disorder ("ADD"), and attention deficit hyperactivity disorder ("ADHD"). Her medical records reveal a history of alcohol and marijuana use.

         1. Ms. Leger's Psychological Traumas.

         Ms. Leger described her childhood environment as "very chaotic." (AR 360.) She stated that her father drank and used illegal drugs throughout her youth and physically abused her, her mother, and her sister. As a fourteen-year-old sophomore in high school, she ran away from home to live with a twenty-five-year-old man whom she had befriended. This man abducted her for a period of seven months, during which he physically and sexually abused her. Ms. Leger was eventually able to escape from him and call the authorities, at which point the man was arrested, convicted, and imprisoned. Ms. Leger testified that her year-and-a-half relationship with the father of her son was also abusive. Her next serious relationship was a four-and-a-half year relationship with her ex-fiance, who, in 2007, shot himself in front of her and died in her lap. She stated that "after the suicide[, ] she took to drinking which led to an episode where her son was taken into his father's custody for a period of time." (AR 361.)

         2. Ms. Leger's Treatment for Liver Disease.

         On April 8, 2015, Ms. Leger was admitted to the University of Vermont Medical Center ("UVM-MC"), complaining of abdominal pain. Nellie Wirsing, M.D. noted that Ms. Leger had decompensated liver failure with cirrhosis and alcoholic hepatitis and performed an ultrasound, which showed moderate ascites. A physical exam revealed that Ms. Leger had normal gait, coordination, reflexes, motor strength, and range of motion in her joints. A mental status examination documented her mood and affect as normal and noted that she was pleasant, cooperative, and alert. Dr. Wirsing's prognosis was that Ms. Leger had less than one year to live and, on that basis, had an end-of-life discussion with her. According to subsequent medical reports, Ms. Leger was told that she had three months to live. See, e.g., AR 703, 1312. On April 13, 2015, she left the emergency room against medical advice. "Upon leaving [UVM-MC, ] [Ms. Leger] missed medication doses[, ] got a new tatto[o][, ] and became symptomatic again with increased ascites and abdominal pain." (AR 740.)

         On April 15, 2015, Ms. Leger was admitted to Dartmouth-Hitchcock Medical Center and treated for her liver condition. Her symptoms improved over the course of her three-day stay, and she was discharged on April 18, 2015 with multiple prescriptions to manage her symptoms. She subsequently moved to Maine to live closer to her family.

         On April 19, 2015, Ms. Leger was admitted to the emergency room at the Eastern Maine Medical Center ("EMMC"), stating that she was unable to get her liver medication prescriptions filled because she was unable to afford them. A physical exam revealed that she had normal range of motion, motor strength, and no neurological deficits. Ms. Leger was described as cooperative and fully oriented with appropriate mood and affect during her visit. She was given a single dose of her medications and advised to return on a weekday to see a social worker.

         On May 3, 2015, Ms. Leger saw EEMC emergency room physician David R. Saquet, D.O. for her liver condition. He performed a physical examination and determined that she had normal gait, no neurological deficits, and was conscious, oriented, and alert. Dr. Saquet found that "there was nothing to be done for [Ms. Leger]" because there was no evidence of an ongoing infection, her white blood count had improved, and, after her pain was controlled with medication, she "was actually quite comfortable." (AR 650.) Ms. Leger declined hospital admission for intravenous fluids and pain control, preferring to return home and convalesce. On May 6, 2015, she returned to the hospital and was admitted to the emergency room for her end-stage liver disease, complaining of diffuse abdominal pain due to "medical noncompliance as she was not able to obtain several of her medications secondary to cost." (AR 680.) When Ms. Leger was discharged the next day, the discharge note reported that she was independent in her activities of daily living and that her cognition was unimpaired.

         On May 12, 2015, Ms. Leger met with Joseph E. Harkins, M.D., a gastroenterologist, regarding her acute alcoholic hepatitis. She reported that she was doing better and avoiding alcohol. In Dr. Harkins's assessment, Ms. Leger's gait was "good" and she had "good get up and go." (AR 685.) During a follow-up appointment on July 14, 2015, she admitted that she had consumed alcohol on two occasions in the last three months, but that she was "trying very hard to remain abstinent." (AR 802.) At this appointment, Dr. Harkins reviewed Ms. Leger's liver imaging, which failed to show cirrhosis. Her liver function tests demonstrated improvement in her condition. Dr. Harkins noted normal bowel sounds, no jaundice, and no asterixis.[3]

         On November 6, 2015, Anthony R. Williams, M.D. from UVM-MC met with Ms. Leger regarding her liver condition and arthritis. Ms. Leger described her alcohol use as "2-3 times a week" during the appointment. (AR 1274) (internal quotation marks omitted). Dr. Williams found no signs or symptoms of worsening liver failure and noted that Ms. Leger was not on any medications for her liver condition or arthritis at the time of the appointment. Dr. Williams advised her to take ibuprofen to manage pain symptoms and recommended she follow a daily exercise regimen.

         On January 20, 2016, Ovais Ahmed, M.D. from UVM-MC, evaluated Ms. Leger's liver disease. Dr. Ahmed noted that Ms. Leger "still continues to drink on occasion" and that her physicians "have stressed the importance of complete alcohol cessation." (AR 1178.) He recommended that she postpone all elective surgical procedures for her other impairments until she "remove[d] alcohol from her lifestyle." Id. On February 13, 2016, Nicholas Ferrentino, M.D., a gastroenterologist, provided a medical source statement, indicating that Ms. Leger did not have end-stage liver disease with a chronic liver disease score of twenty-two or greater pursuant to Listing 5.00D.1.

         3. Treatment History with Amanda Grafstein, M.D.

         After an initial meeting on November 24, 2015, Amanda Grafstein, M.D. became Ms. Leger's primary care physician. She identified Ms. Leger's impairments as cirrhosis of the liver, ascites, PTSD, arthritis, depression, and ADHD. On December 23, 2015, Dr. Grafstein conducted a physical examination, rinding that Ms. Leger had a decreased range of motion bilaterally in the hips and abnormalities in the groin area and prescribed her a cane "as she states she uses a cane to walk secondary to pain and her cane is too short [and she] cannot afford a new one[.]" (AR 1333.) During a February 17, 2016 appointment, Ms. Leger admitted that she was "still drinking one glass of wine most weekends" and that she "uses alcohol as a means of relaxation" despite knowing "that she needs to abstain." (AR 1351.) She stated that she regularly attended Alcoholics Anonymous meetings with a relative. Describing her mental health treatment with Dr. Elizabeth Pierson and Louise George, LCSW, Ms. Leger stated it was "going well" and that she believed she was "on a good medication regimen." (AR 1352.)

         Regarding her physical impairments, Ms. Leger described "significant bilateral wrist pain." (AR 1351.) She also reported bilateral hip pain, but stated that she did not want to pursue physical therapy because she had "too much on her plate[]" at the time. (AR 1352.) Dr. Grafstein's physical examination of Ms. Leger revealed no jaundice and normal muscle tone. A mental examination demonstrated that Ms. Leger had normal mood, affect, thought content, and behavior, although' she presented as nervous and anxious.

         In completing two forms exempting Ms. Leger from training or work requirements to receive Vermont General Assistance benefits, Dr. Grafstein checked a box indicating that Ms. Leger was unable to work at her usual occupation and could not "work in any other type of employment[.]" (AR 1137, 1200.) She did not provide an explanation as to why she reached these conclusions.

         4. Ms. Leger's Testing for CTS.

         In 2012 and 2016, Ms. Leger underwent electromyography testing ("EMG") to evaluate the severity of her CTS. The 2012 EMG demonstrated that she had "moderate to severe right and moderate to severe left [CTS]." (AR 1151.) A second EMG in April 2016 was still abnormal, but showed improvement, with mild to moderate right and mild left CTS. In 2016, both a Tinel's sign and Durkin's sign were positive bilaterally for CTS.

         5. Mental Health Treatment History.

         On November 24, 2015, Ms. Leger met with Elizabeth Pierson, M.D., a psychiatrist at UVM-MC, on referral from Dr. Williams. Dr. Pierson treated Ms. Leger for anxiety, PTSD, ADHD, panic disorder, and depression. She also noted Ms. Leger's "alcohol use disorder[, ]" describing it as "severe" and "sustained" but currently in remission due to continued sobriety. (AR 1308.)

         During the initial appointment, Dr. Pierson found that Ms. Leger's "[t]hought processes are coherent and goal directed, " although "she has some difficulty with dates and focus[.]" (AR 1284.) Dr. Pierson observed that Ms. Leger's "memory, concentration and attention [are] grossly intact." Id.; see also AR 1307, 1365 (noting Ms. Leger's memory was "grossly intact"). Dr. Pierson described Ms. Leger as "cooperative" with "good eye contact" though "intermittently tearful[, ]" and, notwithstanding her congruent affect, Ms. Leger's mood was "dysphoric" and anxious. (AR 1284.) She reported constant restlessness related to her ADHD, such that she tried "to watch movies for distraction, but has a difficult time attending [to them]." (AR 1286.) Dr. Pierson prescribed Adderall for ADHD, Lorazepam for panic symptoms, Prazosin for PTSD-related nightmares, and Effexor XR and Lamictal for depression.

         After starting Adderall, Ms. Leger reported that she felt calmer, "less fidgety, . . . less anxious[, ]" and capable of finishing a movie without having to review it several times to understand it. (AR 1319.) When she began experiencing fewer benefits from Adderall, Dr. Pierson increased the dosage, resulting in a "very good response" in treating Ms. Leger's ADHD symptoms. (AR 1323.) Dr. Pierson also noted that the Prazosin reduced Ms. Leger's PTSD-induced nightmares. Nevertheless, Ms. Leger's panic symptoms persisted "daily" and worsened if she needed to leave her home. (AR 1305.) During Ms. Leger's April 11, 2016 appointment, Dr. Pierson observed that Ms. Leger had "started to feel more depressed[]" in the two weeks prior to the appointment. (AR 1363.)

         On July 12, 2016, Dr. Pierson completed a medical source statement. She opined that Ms. Leger suffered from depression, anxiety, and affective disorder as well as recurrent severe panic attacks and recurrent intrusive recollections of traumatic experience. Dr. Pierson opined that Ms. Leger had "marked" difficulties maintaining social functioning and concentration, persistence, or pace, as well as "extreme" restrictions in her activities of daily living. (AR 1370.) She reported that Ms. Leger experienced four or more episodes of decompensation. In finding that Ms. Leger had difficulty responding appropriately to criticism from supervisors and experienced conflicts with coworkers, Dr. Pierson explained that Ms. Leger would respond with "avoidance, [increased] panic, [and] agoraphobia." (AR 1371.) She expected Ms. Leger would have incidents responding inappropriately to coworkers and supervisors five times a week, "perhaps daily[.]" Id. Workplace quality control standards, production quotas, and deadlines would increase her anxiety.

         Dr. Pierson opined that Ms. Leger would have "perhaps daily" absences from work due to her impairments. (AR 1372.) "[She] believe[d] [Ms. Leger] is fully impaired/disabled outside of her home environment, attending appointments, [and] basic [activities of daily living]." (AR 1373.)

         B. State Agency Consultants' Assessments.

         1. Physical Health Assessments.

         At the request of Vermont Disability Determination Services, Alan D. Lilly, M.D. examined Ms. Leger and provided a physical evaluation on January 26, 2016. In evaluating Ms. Leger's extremities, he found the following:

In the upper extremities, which appear normal with good circulation, there is a brace to the right wrist. She states that she does have some pain and sensory changes in the thumb, index, and long finger of the right hand, but she is able to use the hand quite normally. As to the hands, . .. she states that she does have some mild arthritis. As stated, both hands move well with no evidence of a carpal tunnel problem in the left wrist at this time. The lower extremities reveal some soreness generally in her legs, knees, and thighs but again full range of motion. No. real swelling. The lower extremities are equal and symmetrical without deformity, [and with] good circulation.

(AR 1182.) Dr. Lilly noted that Ms. Leger could make a fist with both hands, extend her fingers, and oppose her thumbs.

         Assessing Ms. Leger's other limitations, he reported:

She moves reasonably well. She is able to stand with difficulty using her cane. She is able to walk slowly and carefully, but she is able to walk and has good balance without tremor. The cranial nerves are intact. Motor wise, there may be some generalized muscle weakness due to her condition necessitating the use of a cane, but she is able to stand and move about without evidence of atrophy or tremor. Sensation is only abnormal in the distribution of the median nerve to the right hand, [involving] some minor sensory changes. Deep tendon reflexes are reduced at the biceps. Patella and Achilles absent bilaterally. .. . Motor examination in upper extremities - She moves well with good strength in the upper extremities. Lower ...

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