United States District Court, D. Vermont
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR
AN ORDER REVERSING THE COMMISSIONER'S DECISION AND
DENYING THE COMMISSIONER'S MOTION TO AFFIRM (DOCS. 9
CHRISTINA REISS, UNITED STATES DISTRICT JUDGE
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. The Commissioner moves to affirm. The
court took the pending motions under advisement on February
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.
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.
is represented by D. Lance Tillinghast, Esq. The Commissioner
is represented by Special Assistant United States Attorneys
Jeremy A. Linden and Kristina D. Cohn.
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
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
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
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.
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.
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.)
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
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.)
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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. 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.
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."
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.
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.
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]. ...