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Theresa S. v. Berryhill

United States District Court, D. Vermont

April 1, 2019

THERESA S., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Theresa Sinclair is a claimant for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("SSA"). She brings this action pursuant to 42 U.S.C. § 405(g) to reverse the decision of the Social Security Commissioner that she is not disabled. On January 25, 2018, Plaintiff filed her motion to reverse. (Doc. 12.) On April 11, 2018, the Commissioner filed her motion to affirm. (Doc. 16.) Plaintiff replied on April 26, 2018, at which point the court took the pending motions under advisement.

         Plaintiff is represented by Francis M. Jackson, Esq., Alexandra M. Jackson, Esq., Marc D. Pepin, Esq., and Tamara N. Gallagher, Esq. The Commissioner is represented by Special Assistant United States Attorney Lorie Ellen Lupkin.

         Plaintiff raises the following issues on appeal: (1) the Administrative Law Judge ("ALJ") determination of Plaintiff s Residual Functional Capacity ("RFC") was not supported by substantial evidence; and (2) the ALJ improperly characterized a treating physician opinion and a treating source opinion in his determination of Plaintiff s RFC.

         I. Procedural Background.

         On July 16, 2015, Plaintiff filed a Title II application for DIB benefits and on August 13, 2015, she filed a Title XVI application for SSI. Both applications alleged a disability onset date of February 1, 2011. The Commissioner denied her applications on October 15, 2015, and on reconsideration on April 18, 2016. Thereafter, Plaintiff filed a written request for a hearing on April 24, 2016. On October 26, 2016, ALJ Thomas Merrill held a video conference hearing at which Plaintiff and Warren D. Maxim, a vocational expert ("VE"), testified. On December 14, 2016, ALJ Merrill issued a written decision finding Plaintiff was not disabled. The Appeals Council denied Plaintiffs request for review on May 5, 2017. As a result, ALJ Merrill's decision stands as the Commissioner's final decision.

         II. Factual Background.

         Plaintiff is a thirty-eight year old woman who is married with two minor children. At the time of her alleged disability onset date, she was thirty years old. Plaintiff has a Bachelor's Degree in Fine Art and had previously worked as an engraver and as an administrative assistant. She ceased full time work in 2009 and has been self-employed as a freelance writer and editor since then. She alleges disability as a result of Multiple Sclerosis ("MS"), hypothyroidism, [1] anxiety, and depression.

         A. Plaintiffs Medical History.

         In January 2011, Plaintiff went to the emergency room ("ER") because she was experiencing blurred vision, vertigo, vomiting, numbness, as well as paralysis in her left side and a loss of balance. An MRI was performed on January 20, 2011, yielding results that were characterized as "abnormal" and consistent with MS. (AR 855.)

         On January 26, 2011, Plaintiff was referred to Jean Marie Prunty, M.D. who confirmed the MS diagnosis and recommended treatment with intravenous steroids. Plaintiff stated she was hoping to get pregnant and Dr. Prunty noted it would be appropriate to discontinue treatment until after any pregnancy. At a February 8 visit with Dr. Prunty, Plaintiff was reevaluated and received a steroid injection to treat her MS. At that time, Plaintiffs MS symptoms had improved, but she still had numbness on the left side of her face and in her right hand. She reported that she was suffering from insomnia and anxiety and had delayed taking additional medications because she was attempting to get pregnant. Her symptoms had fully resolved by her April 13, 2011 appointment with Dr. Prunty.

         On July 14, 2011, Dr. Prunty reported that Plaintiff was nine weeks pregnant with no active MS symptoms, although Plaintiff complained of fatigue. Dr. Prunty continued to recommend postponing treatment until the end of Plaintiff s pregnancy and breast feeding although she noted that there could be an exacerbation of Plaintiff s MS in the three to six months following giving birth. On October 19, 2011, Dr. Prunty noted Plaintiff was feeling well with no new MS symptoms. Plaintiff gave birth to her second child via cesarean section on February 9, 2012.

         Andrew Solomon, M.D., a neurologist, was Plaintiffs primary treating physician for her MS. He initially examined Plaintiff on December 22, 2011, concluding based on her January 2011 MRI that her MS was clinically stable. Plaintiff reported no MS-related symptoms. With the exception of the MRI, Dr. Solomon's findings were within normal ranges. Dr. Solomon examined Plaintiff on February 23, 2012, and found her to be clinically stable post-partum. He recommended an MRI be taken in one to three months.

         In April 2012, Plaintiff underwent a cranial MRI which revealed "new enhancing lesions[.]" (AR 855.) In May 2012, Plaintiff started on a course of medication, Rebif, to treat her MS. At a June 23, 2012 appointment with Dr. Solomon, she reported "severe fatigue" and "difficulty tolerating Rebif as well as new flu-like and anxiety-related symptoms. (AR 556.) Dr. Solomon recommended an endocrinology consult to determine whether Plaintiffs symptoms were related to thyroid dysfunction.

         On September 20, 2012, Plaintiff saw Dr. Solomon for a follow-up examination at which she reported frequent fatigue which had nonetheless improved since her last visit. Side effects from the Rebif had also improved. Dr. Solomon's physical examination yielded findings within normal ranges.

         A cranial MRI taken in December 2012 revealed Plaintiffs MS was stable. At an appointment with Dr. Solomon on January 2, 2013, Plaintiff reported frequent severe fatigue which usually occurred in the evening but was "not debilitating[.]" (AR 572.) Dr. Solomon opined that Plaintiffs MS was "stable and improved." (AR 574.)

         At a May 9, 2013 appointment with Dr. Solomon, Plaintiff reported heat sensitivity. She also reported that her left leg would tire and drag and that she experienced frequent severe fatigue. Dr. Solomon noted that Plaintiff was tolerating Rebif well and her MS was stable. He discussed MS-related fatigue medication, but Plaintiff elected to defer using it.

         On March 31, 2014, Plaintiff met with Dr. Solomon and reported sensitivity to cold, some double vision at the end of the day, fatigue, muscle and joint pain, and fatiguing of her left leg which she would drag behind her. She was also experiencing more negative side effects from the Rebif and had recently increased her dosage of thyroid medication. Plaintiff discussed worsening depression and Dr. Solomon decided to discontinue Rebif. Although Plaintiffs MS was clinically stable, Dr. Solomon started her on a new course of treatment, Tecfidera. Plaintiff was asked to discuss medication to treat her depression with her primary care physician. Dr. Solomon noted Plaintiffs depression might improve after stopping Rebif.

         Plaintiff started Tecfidera in April 2014. She had a follow-up appointment with Dr. Solomon on May 30, 2014. At the time, Plaintiffs depression and muscle and joint pain had improved, but her severe fatigue and heat sensitivity had not. Dr. Solomon again discussed medication to address Plaintiffs fatigue, but Plaintiff elected to defer medication and instead planned to try to get more sleep at night and take naps. Results of Dr. Solomon's physical examination were normal.

         On October 20, 2014, Dr. Solomon met with Plaintiff and noted that some numbness on Plaintiffs left side had returned, she continued to have double vision at the end of the day, and she had experienced significant severe fatigue which was improved by napping. She also reported "some difficulty with memory" as well as pressure, described as a "band-like sensation that wraps around from front to back[.]" (AR 663-64.) The results of Dr. Solomon's physical examination were normal, and he opined that Plaintiff was "without evidence of relapse, but continue[d] to suffer from a number of symptoms [due to] her MS[.]" (AR 665.) Dr. Solomon offered to prescribe medications to treat her fatigue and the new symptoms, but Plaintiff stated the symptoms were "tolerable" and she did not elect to start any new medications. Id.

         Plaintiff saw Dr. Solomon again on April 13, 2015, and reported similar symptoms as in prior appointments in addition to headaches and worsening severe fatigue. Plaintiff reported that she was attempting to work on weekends, but that it had "been challenging[.]" (AR 688.) Dr. Solomon noted Plaintiff was using a cooling vest to address her heat sensitivity. A physical examination yielded normal findings. Dr. Solomon described a recent February MRI as "stable[, ]" but noted Plaintiff "continu[ed] to suffer from a number of disabling symptoms [due to] her MS[.]" (AR 690.) He discussed "strategies for difficulty multitasking and cognitive impairment in MS" and prescribed a trial of Amantadine to treat her MS-related fatigue. Id.

         On September 8, 2015, Dr. Solomon examined Plaintiff who reported difficulty choosing words, "generalized weakness of arms and legs, and vertigo several times a week[, ]" (AR 729) symptoms which were worse in hot temperatures. She had not yet tried Amantadine for fatigue, but her severe fatigue had worsened.

         At a June 21, 2016 appointment with Dr. Solomon, Plaintiff reported more generalized weakness, greater fatigue, and noted that heat continued to exacerbate her symptoms. She also reported numbness on her left side that lasted for forty minutes at a time and blurry vision toward the end of the day. She stated it had been more difficult to complete work around the family's farm and that she had been falling and tripping more frequently. As a result, she was using a walking stick. A physical examination again yielded normal findings. Dr. Solomon counseled Plaintiff about managing her worsening symptoms and he opined that it "seem[ed] likely [left] sided symptoms are a ps[eu]dorelapse." (AR 858.) Plaintiff was slated to begin a trial of Amantadine for her MS-related fatigue. Dr. Solomon ordered a physical therapy consult to evaluate whether Plaintiff could benefit from assistive devices to help with her balance.

         Dr. Solomon authored a medical opinion dated September 12, 2016, which explained that Plaintiff has MS and suffers from weakness, fatigue, numbness, blurred vision, cognitive impairment, and heat intolerance as a result of her condition. He stated Plaintiff had been diagnosed based on a cranial MRI which showed brain inflammation and damage consistent with MS and noted that Plaintiffs prescribed medications, Cymbalta and Amantadine, impacted Plaintiffs ability to work. He left blank the sections regarding Plaintiffs function by function capabilities. He opined that Plaintiffs fatigue would cause her to be off task from doing "simple work" twenty percent of the day or more. (AR 853.) He noted that Plaintiff has episodic attacks or symptoms that will temporarily incapacitate her from working, and that the type and frequency of these attacks are "unpredictable" and could last "months[.]" Id.

         During the period of her alleged disability, Plaintiff was treated by Doctors of Naturopathy at Stowe Natural Family Wellness. She began seeing Catharine Guaraldi, N.D., in 2013, in order to manage her MS and hypothyroidism. On August 18, 2014, Dr. Guaraldi stated that although Plaintiffs neurologic symptoms had been "reportedly stable" since at least 2013, Plaintiff had "a reduction in her ability to perform daily tasks and the side effects from her medications also affect her functioning." (AR 657.) Plaintiff reported symptoms of foggy thinking, slow speech processing, headaches, and vision changes. Dr. Guaraldi noted Plaintiffs short and long term memory appeared intact, but her ability to "perform and sustain mentally challenging tasks [was] limited at this time and her physical stamina [was] likewise reportedly low." Id. Dr. Guaraldi had administered "basic neurologic functional testing" which was relatively normal and "most deficient in eye tracking." Id.

         Plaintiff saw Jennifer Turtle, N.D., at Stowe Natural Family Wellness on January 13, 2016, for "long standing fatigue and [a] cough[.]" (AR 795.) Amantadine was listed as one of Plaintiff s medications. She reported urinary urgency related to MS, muscle aches and weakness, numbness and weakness on the left side of her body, dizziness, fatigue, depression, and anxiety. Dr. Turtle observed that Plaintiff was "alert and active" albeit lethargic. Her recent and remote memory were normal.

         On May 31, 2016, Plaintiff had an annual physical exam with Morgan DeVoe, N.D., at Stowe Natural Family Wellness. Plaintiff reported fatigue, dizziness, cognitive issues, numbness and tingling on her left side, weakness in her limbs, headaches, shooting nerve pains in her hands and legs, blurred vision, and that her left leg dragged when she walked. She stated her prescribed medications were only mildly effective in treating her symptoms. Dr. DeVoe observed that Plaintiff was oriented to time and place with intact memory.

         On September 29, 2016, Dr. DeVoe authored a medical opinion regarding Plaintiffs MS, hypothyroidism, and chronic fatigue where she listed the following symptoms: cognitive difficulties, memory issues, "mental fog," headaches, dizziness, vertigo, numbness and tingling on the left side of the body, fatigue, difficulty walking, double vision, stress incontinence, and heat sensitivity. (AR 860.) At the time, Plaintiff was being treated with Tecfidera, Amantadine, and Cymbalta, all of which had negative side effects. In response to the question: "If your patient is unable to spend a total of 8 hours doing a combination of sitting, standing, and walking in a competitive work environment, please explain why[, ]" Dr. DeVoe stated that Plaintiff needs to nap once or twice a day for at least fifteen to thirty minutes. (AR 862.) She opined that Plaintiffs fatigue and cognitive impairment would result in Plaintiff being off task at work for twenty percent or more of the day and that Plaintiff would likely miss more than four days per month of work due to her medical conditions or treatment.

         Plaintiffs medical record includes an ER visit on August 28, 2015, after she was hit in the head with a Frisbee. She presented with nausea and a headache and was assessed to have a bruise and a concussion. The examining physician, Neil J. Nigro, M.D., noted "no alteration in mental status" and stated Plaintiff was "alert and poorly responsive." (AR 824-25.)

         B. Plaintiffs Function Reports.

         Plaintiff and her spouse completed five function reports in connection with her application for DIB on August 1, 2014, November 18, 2014, August 30, 2015, September 25, 2015, and January 6, 2016. Each report contains the same substantive information, although the more recent reports state that Plaintiff was having increased difficulty counting change and engaging in cash transactions. Her spouse reported that Plaintiff was able to pay bills, handle a savings account, use a checkbook, and count change but that "[t]his is something that she checks and rechecks, [and it] takes her aw[h]ile to do." (AR 348.) Plaintiff indicated that she was prescribed a cooling vest in December 2014 which she wore when the temperature exceeded seventy-five degrees Fahrenheit.

         In her function reports, Plaintiff stated that she lived with her family and spent her days assisting her children with dressing, playing, and getting ready for bed. She also assisted in the care of the family's animals, feeding and watering them, although her husband performed the more physically demanding work. Plaintiff cooked meals daily, but stated that she had to prepare meals ahead of time so as not to be rushed and required her husband's assistance with the cooking. Plaintiff did the dishes, laundry, cleaned, and gardened but needed help with the more physically demanding chores in these categories. She reported no problems with personal care, but had issues remembering to take her medications unless she followed a specific routine or set reminders for herself. She also noted that she did not handle stress well and that any changes to her routines caused her to feel anxious and disoriented.

         Plaintiff reported taking one major trip to the grocery store per month which took her approximately an hour, with shorter weekly trips as needed. Her spouse reported these trips were exhausting for her. Plaintiff does not drive and does not have a driver's license. She expressed concern that her symptoms of vertigo, vision problems, and cognitive issues would make it dangerous for her to drive.

         With regard to limitations due to her MS, Plaintiff stated that her condition interfered with her ability to work at her computer for long periods and if she "push[ed] [her]self too hard physically or mentally [she] ha[d] problems with fatigue." (AR 282.) She also stated she had "cognitive difficulties with focusing [her] concentration or finding the right words." Id. She reported being very tired even after sleeping well and had to schedule rest periods throughout the day. She adjusted her process for cooking, cleaning, and yard work by moving slower or performing less strenuous jobs. She used coping skills like planning tasks in advance, making lists, and adjusting for issues with memory and focus. Her function reports stated that she worked in the past, but her concentration, fatigue, sensitivity to temperature, vision problems, and lack of coordination limited her from engaging in the customer service, restaurant, and engraver positions she held in the past. Plaintiff and her husband both noted she had become self-conscious in public and was "afraid of how [she] appear[ed] to others because of [her] condition." (AR343.)

         In her November 2014 function report, Plaintiff stated that MS affected her walking, talking, seeing, memory, ability to complete tasks, concentration, and ability to follow instructions and use her hands. In her August 30, 2015 function report, Plaintiff added that the MS affected her lifting, squatting, bending, standing, and stair climbing. Although she used to be able to do intricate work in fabric or gold and hike for long distances, she could no longer perform these activities.

         C. State Agency Examining ...

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