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Marie K. v. Berryhill

United States District Court, D. Vermont

August 10, 2018

MARIE K., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Marie K. is a claimant for Social Security Disability Insurance ("SSDI") benefits under the Social Security Act. She brings this action pursuant to 42 U.S.C. § 405(g) and moves to reverse the decision of the Social Security Commissioner (the "Commissioner") that she is not disabled.[1] The Commissioner moves to affirm. The court took the pending motions under advisement on February 10, 2018.

         After her SSDI application was initially denied by the Social Security Administration ("SSA"), Administrative Law Judge ("ALJ") Thomas Merrill found Plaintiff ineligible for benefits based on his conclusion that she can perform her prior work as a housekeeper and was therefore not disabled at any time after her alleged onset date of June 1, 2012. ALJ Merrill also concluded that Plaintiff is capable of performing other jobs which exist in significant numbers within the national economy, and therefore concluded that she was not disabled within the meaning of the Social Security Act on this basis as well.

         Plaintiff identifies three errors in the disability determination: (1) the ALJ erred in concluding that Plaintiff is not illiterate; (2) the ALJ erred by discounting the opinion of Plaintiffs treating physician without good reasons; and (3) the ALJ erred in determining that her mental health impairments were not severe under the Social Security Act.

         Plaintiff is represented by D. Lance Tillinghast, Esq. The Commissioner is represented by Special Assistant United States Attorneys Jeremy A. Linden and Kristina D. Cohn.

         I. Procedural History.

         Plaintiff filed an application for SSDI benefits with the SSA on August 1, 2013. Her application was initially denied on September 18, 2013 and again on reconsideration on December 18, 2013. Plaintiff timely requested a hearing before an ALJ on January 2, 2014.

         On June 24, 2015, ALJ Merrill presided over Plaintiffs hearing from Manchester, New Hampshire. Plaintiff testified at the hearing from Saint Johnsbury, Vermont, where she appeared together with her attorney. Vocational Expert ("VE") Lynn Paulson also testified. On September 14, 2015, ALJ Merrill issued a written decision finding Plaintiff ineligible for benefits.

         Thereafter, Plaintiff filed a request for review with the SSA's Office of Disability Adjudication and Review Appeals Council ('Appeals Council"), which denied her request on February 24, 2017. ALJ Merrill's September 14, 2015 determination therefore stands as the Commissioner's final decision.

         II. Factual Background.

         Plaintiff was born in 1964 and resides in Woodbury, Vermont. She completed twelfth grade but asserts that she was enrolled in special education classes throughout her primary schooling, has a learning disability, and has difficulty with reading and writing. She previously worked as a licensed nurse's assistant ("LNA") and a housekeeper, but has not had gainful employment since June 1, 2012.

         A. Medical History.

         Plaintiff alleges a disability onset date of June 1, 2012. Prior to that date, on October 23, 2009, she was involved in a motor vehicle accident during which she was rear-ended. She was transported by ambulance to Copley Hospital, where she complained of back and neck pain. Physical examination revealed diffuse tenderness in both her back and neck, but reflected otherwise normal sensation, motor function, and mental status. X-rays of her cervical and lumbar spines were normal with no evidence of fracture. The attending radiologist observed "subtle narrowing of the L4-5 and L5-S1 disc interspace. There is a grade I L5 on SI spondylolisthesis. . . which appears to be chronic." (AR at 349.) An emergency room physician described Plaintiffs symptoms as a "vague neck ache[, ]" (AR at 347), and his clinical impression was that Plaintiff suffered from a neck and lower back strain. Upon discharge, Plaintiff was prescribed Vicodin for her pain.

         Following her October 2009 motor vehicle accident, Plaintiff attended thirty-four physical therapy appointments at Copley Hospital Rehabilitation Services between November 3, 2009 and June 22, 2010. At her initial physical therapy evaluation, Plaintiff explained that her vehicle was hit by a Green Mountain Power truck at approximately fifty miles per hour and that she was taken to the hospital. She reported that her neck pain had improved in the week and a half following the accident, but that she was still experiencing lower back pain. She indicated that this pain was exacerbated by walking or standing for long periods, in addition to bending, and that her pain was an eight out of ten at its worst. She rated her neck pain as a five to six out often. She stated that she experienced difficulty sleeping and was "unable to get comfortable[.]" (AR at 628.)

         Physical examination revealed that Plaintiffs posterior cervical spine was tender to palpation, as was her bilateral lumbar paraspinal region. Her cervical spine range of motion was thirty-five degrees of flexion and five degrees of extension, with forty-five degrees of rotation bilaterally. Her lumbar spine had forty degrees of flexion, ten degrees of extension, and forty degrees of rotation bilaterally. Plaintiffs physical therapist noted that her "evaluation was limited by [Plaintiffs] pain level" but observed that Plaintiff possessed decreased range of motion and muscle tenderness and exhibited guarding and altered posture. (AR at 630.) Plaintiff was scheduled for biweekly appointments focused on manual therapy and the development of a home exercise program.

         On July 29, 2010, Plaintiff saw Mary Flimlin, M.D. at the Spine Institute of New England for a consulting examination following her course of physical therapy. She reported to Dr. Flimlin that she continued to experience pain at the base of her neck which occasionally radiated into her right arm. Plaintiff also indicated that she continued to suffer from pain "in the middle of her back" which "sometimes radiat[ed] up towards [the] thoracic area. It is a level [nine], made worse by walking and pulling, better with ice and cold." (AR at 360.) Dr. Flimlin reviewed an MRI of Plaintiff s cervical spine taken at Copley Hospital which revealed "bilateral neural foraminal narrowing, C5-C6 secondary to uncovertebral and facet joint arthropathy." Id. She also noted "an oval-shaped focused T1-2 in the right STRIP muscles above the vallecular, suggestive of thyroglossal duct cyst." Id. Physical examination demonstrated Plaintiffs normal gait and ability to heel and toe walk over short distances. She had negative results for straight leg raises and Spurling's sign, and maintained grossly intact strength and sensory function through her upper and lower extremities. "With gentle palpation, [Plaintiff had] tenderness across the back of the cervical spine and splenius capitis[.]" (AR at 361.)

         Dr. Flimlin obtained x-rays of Plaintiff s lumbar spine which revealed "grade 1 anterolisthesis of L5 onto SI" which was "stable in flexion/extension." Id. There were also "bilateral pars defects" and "findings consistent with some mild degenerative disk at the L3-4 level." Id. Dr. Flimlin noted that Plaintiffs clinical examination was "significant for obtunded reflexes increased tone in the gluteal and hamstrings and centralized pain made worse with flexion and extension." Id. Despite obtaining imaging, Dr. Flimlin was "unable to determine if this is an acute spondylitic spondylolisthesis." Id. She recommended an additional MRI of Plaintiff s lumbar spine, continued physical therapy, and prescribed gabapentin. Dr. Flimlin restricted Plaintiffs lifting to up to 10 pounds.

         On August 16, 2010, Plaintiff underwent an MRI at Fletcher Allen Health Care which revealed multilevel degenerative osteoarthritis. The attending radiologist noted facet joint hypertrophic osteophytes and multilevel degenerative disc disease with loss of disc space height and abnormal disc signal. The MRI also confirmed Plaintiffs bilateral pars defects at L5-S1, in addition to a concentric disc bulge at L3-L4 with mild spinal canal stenosis and bilateral neuroforaminal narrowing. At the L4-L5 level, the radiologist noted an "abnormal hyperintense T2 signal" which was "consistent with an annular tear." (AR at 376.) The radiologist's impression was that Plaintiff suffered from multi-level degenerative disc disease with no focal disc herniation but concentric disc bulges at L2-L3, L3-L4, L4-L5, and L5-S1, in addition to mild facet osteoarthropathy and mild spinal canal stenosis at the L3-L4 and L4-L5 levels. Plaintiff met with Dr. Flimlin on September 17, 2010 to discuss the results of her MRI. Dr. Flimlin recommended an epidural steroid injection, however, Plaintiff indicated that she was "experiencing funding issues and [was] unable to pursue this plan." (AR at 364.) Dr. Flimlin noted that Plaintiff had not filled her prescription for gabapentin, but agreed that she would continue with physical therapy and follow up with Dr. Flimlin as necessary.

         Plaintiff returned to Dr. Flimlin on July 6, 2011 with "worsening leg pain." (AR at 366.) She reported that the pain was most severe at night, radiating from her "low back to the buttocks, into the side of the thigh and calf." Id. Dr. Flimlin observed that Plaintiff "look[ed] uncomfortable[, ]" but could easily transition from sitting to standing and possessed a normal gait. Id. Physical examination revealed a positive left straight leg raising test with grossly intact strength. Dr. Flimlin noted Plaintiffs prior imaging results and her earlier diagnosis of bilateral pars defects and grade one anterolisthesis at L5-S1, and opined that "there is nerve root traction at this level." Id. She counseled Plaintiff on possible treatment options, including medication, injections, physical therapy, acupuncture, chiropractic, and hydrotherapy. Dr. Flimlin also suggested a possible TENS unit trial in combination with axial decompression and lumbar stabilization.

         Plaintiff returned to Dr. Flimlin on March 15, 2012, and reported continued pain exacerbated by medial branch block procedures performed in January 2012. Dr. Flimlin noted that an epidural steroid injection provided Plaintiff with twenty-five percent relief for approximately two to three weeks. Dr. Flimlin noted that Plaintiff had not attended physical therapy in the past six months and was not exercising on a regular basis. Physical examination revealed that Plaintiff could transition easily from sitting to standing and possessed a "relatively normal" gait. (AR at 368.) Lumber flexion and extension caused Plaintiff pain, as did lateral bending and rotation. She possessed grossly intact strength with the exception of her left hip flexor, as well as grossly intact sensory function. A SPECT/CT scan confirmed Plaintiffs prior diagnoses and indicated "increased uptake in the pars on the right at L5. There [was] also significant facet arthropathy L3-4 with increased uptake." Id. Dr. Flimlin suggested additional epidural steroid injections which Plaintiff declined.

         In January 2013, Plaintiff began another course of physical therapy at Copley Hospital. At her intake assessment on January 7, 2013, Plaintiffs gait, reflexes, balance, and coordination were observed as normal. Her lumbar spine, however, was "hypersensitive" to palpation and her range of motion was decreased. (AR at 322.) Plaintiffs physical therapist noted that she had "limited ability to perform Activities of ]D[aily ]L[iving], difficulty sleeping, and endurance." Id. The therapist concluded that Plaintiff would benefit from electrical stimulation, trial of a TENS unit, manual therapy, and therapeutic home exercises. Following her intake assessment, Plaintiff attended ten physical therapy sessions prior to her discharge on April 16, 2013.

         On March 15, 2013, Plaintiff saw Dr. Flimlin for an annual follow-up appointment. At this visit, Plaintiff reported that her pain was now exclusively in her back and rated it an eight out often. She had been attending physical therapy prior to her appointment, and indicated that she found it helpful. Plaintiff again declined additional epidural steroid injections and instead elected to continue with physical therapy and stretching. Dr. Flimlin prescribed a trial dose of Meloxicam.

         On October 30, 2013, Plaintiff began mental health counseling at Hardwick Health Center ("HHC") with Kate M. Culver, a licensed clinical social worker. At this initial appointment, Plaintiff reported that she could not "stop crying" and that she desired to "get where I'm not crying all the time." (AR at 487.) She stated that she did not "understand why [she felt] this way." Id. Ms. Culver observed Plaintiffs depressed mood and tearful affect, but noted that Plaintiff had no problems with thinking or cognition. Plaintiffs recent experience of multiple deaths of individuals close to her and the loss of her prior work as a care provider were cited as possible sources of her depression. Ms. Culver diagnosed Plaintiff with a depressive disorder not otherwise specified in the Diagnostic and Statistical Manual and assessed her prognosis as fair.

         Plaintiff saw Ms. Culver again on January 8, 2014. At this visit, Ms. Culver recorded that Plaintiff "presented] with moderate to severe depressive symptoms." (AR at 519.) Plaintiff reported that she did not "do much[, ]" that she did not "really leave the house[, ]" and that she experienced isolation, as well as diminished energy and motivation. Id. Ms. Culver observed Plaintiffs depressed mood, blunted affect, and depressed thought processes. She indicated, however, that Plaintiff had no "[c]ognition problems[.]" Id. Plaintiff expressed a desire to "connect" with vocational rehabilitation services, in part due to anxiety stemming from learning challenges including difficulty reading and writing.

         On January 16, 2014, following Plaintiffs appointment with Ms. Culver, she saw her primary care physician at HHC, Peter Sher, M.D. for additional care related to her depression, back pain, and diabetes. Dr. Sher began his subjective assessment with the observation that Plaintiff was "more depressed than [he] had thought," (AR at 517), an observation based on Ms. Culver's note reflecting that Plaintiff almost never left her home. Dr. Sher observed that "anxiety, sadness, [and] back pain" were contributing factors to Plaintiffs inability to leave her home, noting that physical therapy did not "really help" her back problems. Id. Dr. Sher's progress note reflected Plaintiffs history of hypertrophic cardiomyopathy, endometrial adenocarcinoma, grade I spondylolisthesis, and illiteracy. Physical examination revealed mild diffuse tenderness over Plaintiffs back. Dr. Sher expressed a desire to "start her on Cymbalta" but he was "fairly certain her insurance [would not] pay for it." (AR at 518.) He therefore prescribed sertraline to treat her depression which in turn would positively impact her pain and her history of poorly controlled diabetes. He indicated that Plaintiffs plans to pursue vocational rehabilitation were a positive development. He increased Plaintiffs insulin dosage and refilled her prescription.

         On June 10, 2014, Plaintiff saw Dr. Sher who recorded symptoms of dyspnea on exertion and generalized fatigue, blood glucose levels in excess of normal limits, and back pain which occasionally radiated into her lower legs. The results of a physical examination were normal. With regard to Plaintiffs elevated blood sugar levels, Dr. Sher opined that he thought she was "not cognitively capable to self[-]titrate [her insulin medication.]" (AR at 553.) He noted that there were "[r]ecords documenting [her illiteracy] dating to high school [but] they are no longer available." Id. He "encouraged her to see a counselor who could help objectively confirm this for disability, as well as to see [physical therapy] for functional evaluation." Id. He further opined that "given [Plaintiffs] multiple medical problems, pain, and cognitive limitations, she is unable to work." Id.

         On July 10, 2014, Juliann R. Ambroz, M.Ed., a licensed clinical mental health counselor, authored a letter wherein she reported that Plaintiff began mental health treatment with her on June 17, 2014 and attended appointments on a weekly basis. Ms. Ambroz recorded that Plaintiff cited depression and anxiety as reasons for obtaining treatment and explained that her back and leg pain prohibited her from doing her prior work as a LNA. Ms. Ambroz also noted that Plaintiff "indicated that she has a learning disability of unknown type and the she is unable to read or write. This fact also affects her search for employment." (AR at 560.) Plaintiff related to Ms. Ambroz that she "used to enjoy work and seem[ed] eager for Vocational] Rehab[ilitation] to find her meaningful employment." Id. Ms. Ambroz opined that "[i]f vocational Rehabilitation can find appropriate work for [Plaintiff], this could be quite useful for her." Id.

         On August 13, 2014, Dr. Sher treated Plaintiff for her diabetes and back pain. His progress notes from this appointment acknowledged that Plaintiff was "seeking disability" at the time of her visit, and had reported that "they do not believe that she is illiterate." (AR at 567.) He asserted in the note, however, that Plaintiff "has been illiterate for her whole life and has been coming here for a long time. She was in special education classes, and I do not think she can learn to read." Id.[2] Dr. Sher further recorded Plaintiffs history of back pain and diabetes. On August 13, 2014, he completed a rehabilitation medical request form which diagnosed Plaintiff with "back pain" and "illiteracy[.]" (AR at 562.) Dr. Sher indicated that he was not qualified to assess Plaintiffs functional limitations with regards to her ability to work, but opined that she could not perform physical labor or read and was unlikely to be able to do so.

         On August 16, 2014, Vermont Rehabilitation Services ("VRS") certified that Plaintiffs "disabilities] result[] in a substantial impediment to employment[.]" (AR at 601.) On October 10, 2014, she attended an appointment with a VRS counselor who "read [a document] aloud to [Plaintiff] and asked if there was someone at home that could help her with filling it out." (AR at 602.) She also inquired if someone could assist Plaintiff in completing a resume outline, "due to her [learning disability] in reading and writing." Id.

         On October 14, 2014, Plaintiff visited the Fletcher Allen Health Care Center for Pain Medicine. Kristie Oliver, P.A.-C evaluated Plaintiff under the supervision of a medical doctor, and noted that Plaintiff had last visited the Center for Pain Medicine in January 2012 when she received a medial branch block. Plaintiff complained of pain radiating down her leg and thigh as well as across her lower back, and reported that she had not found any treatment that improved her symptoms. She further reported that climbing stairs exacerbated her pain. Physical examination revealed a mildly antalgic gait but no difficulty rising from a seated position. Plaintiff could walk without an assistive device. Because Plaintiff was "a poor historian and [was] unable to provide an accurate medication list[, ]" Ms. Oliver "discussed a variety of medication recommendations" in addition to possible conservative measures that might address Plaintiffs symptoms. (AR at 586.) Ms. Oliver also recommended that Plaintiff resume physical therapy and consider a Flector patch.

         On December 29, 2014, Plaintiff visited Dr. Sher for management of her diabetes, which remained poorly controlled, as well as for her chronic pain. He noted that Plaintiffs mood was improved and that Flexeril had eased her leg pain, but she had a positive straight leg raising test on her left side at ninety degrees. A physical examination was otherwise normal. Dr. Sher indicated that Plaintiff was interested in resuming physical therapy. He increased Plaintiffs insulin dose, "cautiously" increased her Flexeril dose, and referred her to physical therapy.

         On January 6, 2015, Ms. Ambroz provided an "updated treatment summary" of Plaintiffs counseling for the period between July 11, 2014 and the date of her letter. During that time period, Plaintiff attended fourteen therapy sessions, after which Ms. Ambroz diagnosed her with "Trauma and Stressor Related Disorder[.]" (AR at 624.) She identified a number of traumatic events underlying Plaintiffs symptoms. Ms. Ambroz noted that Plaintiff was unable to read or write and that she reported "a learning disability of 'unknown type."' Id. Ms. Ambroz further noted that Plaintiff had not returned to VRS since her October 2014 counseling session and suggested that Plaintiff schedule an appointment for additional assistance. By January 30, 2015, Plaintiff "reported a stable mood and relative satisfaction with her personal relationship[s]. ...

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