United States District Court, D. Vermont
AUSTIN HANLEY, on behalf of HEATHER LEGER, deceased, Plaintiff,
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
Christina Reiss, Judge
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.
is represented by Arthur P. Anderson, Esq. The Commissioner
is represented by Special Assistant United States Attorney
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.
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. 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.
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
Ms. Leger's Medical
Leger alleged disability from chronic liver disease, with
symptoms of ascitesand 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.
Ms. Leger's Psychological Traumas.
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.)
Ms. Leger's Treatment for Liver Disease.
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.)
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.
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.
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.
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
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.
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.
Treatment History with Amanda Grafstein, M.D.
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.)
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
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.
Ms. Leger's Testing for CTS.
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.
Mental Health Treatment History.
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.)
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.
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.
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
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]."
State Agency Consultants' Assessments.
Physical Health Assessments.
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.
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 ...