United States District Court, D. Vermont
OPINION AND ORDER
William K. Sessions III District Court Judge.
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
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
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
Personal and Medical History
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
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
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.
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.
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
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.
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
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.
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.
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.
2016, Mr. R. suffered four seizures. There is no record
evidence of a diagnosis or treatment for the seizures.
December 2016, Mr. R. reported having worked for UPS for
three weeks loading trucks. He felt that the ...