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Keith R. v. Saul

United States District Court, D. Vermont

August 7, 2019

KEITH R., Plaintiff,
v.
ANDREW SAUL, Commissioner of the Social Security Administration Defendant.

          OPINION AND ORDER

          William K. Sessions III District Court Judge.

         Plaintiff Keith R. brings this action pursuant to 42 U.S.C. § 405(g) for review of the Commissioner's determination that he is not disabled and not entitled to disability insurance benefits (DIB). Now before the Court are Plaintiff's motion for judgment reversing the decision of the Commissioner, and the Commissioner's motion for judgment affirming that decision. For the reasons set forth below, Plaintiff's motion is granted, the Commissioner's motion is denied, and the case is remanded for further proceedings.

         Factual Background

         I. Procedural History

         Mr. R. filed an application for DIB on December 28, 2015, alleging disability as of December 14, 2013. His application was denied initially and upon reconsideration, and he requested an administrative hearing. The hearing was held on May 9, 2017 before Administrative Law Judge (ALJ) Joshua Menard. Mr. R. was represented by counsel and provided testimony by video from Burlington, Vermont. The ALJ was in Manchester, New Hampshire. A Vocational Expert (VE) and medical expert also testified.

         The ALJ issued a written decision on June 6, 2017, concluding that Mr. R. was not disabled within the meaning of the Social Security Act. Mr. R. requested review by the Appeals Council, and that request was denied. He subsequently filed this action.

         II. Personal and Medical History

         Mr. R. was born in 1963 and served in the United States Army for over 30 years, including active duty between 2006 and 2013. He worked for IBM from 1984 through 1999, and for Bombardier for several years. During his service in the Army, Mr. R. piloted Blackhawk helicopters. In 2013 he was in a helicopter crash in Baghdad, sustaining injuries to his head and cervical spine.

         After his deployment, Mr. R. worked for the National Guard full-time as an Operations Officer and Standardization Pilot. He was honorably discharged in 2014, and has since been diagnosed with traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD). Mr. R. testified that he is currently considered permanently and totally disabled by the Veterans Administration. In May 2013, Mr. R. was screened by Carlos G. Tun, M.D. for possible TBI and polytrauma. Dr. Tun concluded that Mr. R.'s reported history of injuries and symptoms were consistent with TBI. Dr. Tun recommended medication for Mr. R.'s ongoing headaches, physical therapy for balance issues, and mental health treatment.

         On June 25, 2013, Mr. R. underwent C5-6 anterior cervical discectomy, interbody fusion and anterior metallic plate and screw fixation surgery with orthopedic surgeon Robert D. Monsey, M.D. In December 2013, after his condition failed to improve, Mr. R. had a second surgery involving C5-6 anterior hardware removal, discectomy at ¶ 4-5, and fusion with allograft and plate. Mr. R. has been prescribed hydromorphone and tramadol for pain, and has been provided treatment injections. His pain management is overseen by general practitioner Whitney Calkins, M.D.

         When Mr. R. continued to report neck and arm pain after his second surgery, he received additional physical therapy and hydromorphone (Dilauded) for pain. Other medicines prescribed by Dr. Calkins included Ambien and Viibryd. In August 2014, Mr. R. reported to Dr. Calkins that his average pain level was a six out of ten without medication, and a three out of ten with medication. In October 2014, he reported that his average pain level was four out of ten.

         In May 2015, Mr. R. informed Dr. Monsey of the Spine Institute that he was continuing to have pain in his neck similar to the pain he experienced prior to his two surgeries. Dr. Monsey concluded that Mr. R.'s pain level was unlikely to improve. As of October 2015, Mr. R. was suffering from bilateral trochanteric bursitis. In July 2016, he was treated with injections.

         Between January 2014 and December 2015, Mr. R. owned and operated a restaurant. The restaurant had 26 employees. Mr. R. continued to take two tramadol and two Dilaudid during the workday. He complained to his physician that he could not carry trays of dishes, and that his hands cramped when he drove. Mr. R. sold the business at the end of 2015.

         Mental health notes from November 2015 indicate that Mr. R. was experiencing intermittent panic triggered by concerns about finances and the sale of the restaurant. During the following year he attended several counseling sessions. By March 2016, Mr. Mr. R.'s treating psychologist, Laura Gibson, Ph.D., noted that Mr. R. had improved energy, concentration, mood and sleep.

         In February 2016, Disability Determination Services psychologist Edward Hurley, Ph.D., reviewed Mr. R.'s records and concluded that he retained the concentration, persistence, and pace to perform two to four-step tasks for two hours over an eight hour period. Dr. Hurley also concluded that Mr. R. was moderately limited in his ability to complete a work day.

         On March 29, 2016, Mr. R. was examined by Alan Lilly, M.D. Mr. R. informed Dr. Lilly that prior to his two surgeries he had been suffering from neck pain and pain both shoulders, with pain radiating down his arms and into his fingers. These issues resulted in weakness of his upper extremities and into his hands. Mr. R. reported that the surgeries had not provided significant relief, and that he was unable to engage in household activities such as using a hammer, or recreational pursuits such as golf or skiing. Even driving was at times problematic. Mr. R. also reported leg pain, resulting in difficulty walking more than one block before feeling fatigued. Dr. Lilly observed that at times when describing his problems, Mr. R. became weepy.

         Dr. Lilly's physical examination revealed mild weakness in Mr. R.'s upper extremities, weakness in the fingers, and mild weakness in grip strength bilaterally. Mr. R. had difficulty getting his arms above 90 degrees. His lower extremities, aside from mild trochanteric bursitis, where within normal limits. His gait was also within normal limits, and he was able to stand up out of a chair without evidence of weakness. Mr. R. emphasized to Dr. Lilly the psychological effects of the helicopter crash, and noted that therapy had been very helpful.

         In May 2016, Mr. R. suffered four seizures. There is no record evidence of a diagnosis or treatment for the seizures.

         In December 2016, Mr. R. reported having worked for UPS for three weeks loading trucks. He felt that the ...


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