United States District Court, D. Vermont
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO
REVERSE THE DECISION OF THE COMMISSIONER AND DENYING THE
COMMISSIONER'S MOTION TO AFFIRM (DOCS. 11 &
CHRISTINA REISS, DISTRICT JUDGE
Andrew Santiago ("Plaintiff) brings this action on
behalf of his minor child, Jasmine Santiago
("J.S."), for Supplemental Security Income
("SSI") under the Social Security Act
("SSA"). On June 6, 2018, Plaintiff moved to
reverse the decision of the Social Security Commissioner (the
"Commissioner") that J.S. is not disabled. (Doc.
11.) On June 21, 2018, the Commissioner moved to affirm.
(Doc. 12.) Plaintiff replied on July 17, 2018, at which point
the court took the pending motions under advisement.
argues that Administrative Law Judge ("ALJ") Thomas
Merrill failed to properly evaluate J.S.'s impairment
under Listings 101.02 and 101.03 and failed to properly
evaluate the opinions of two of J.S.'s treating
physicians. More specifically, he claims that the ALJ failed
to determine if J.S. is unable to ambulate effectively when
her abilities are compared to other same-age children who do
not have her impairments. Plaintiff is represented by Arthur
P. Anderson, Esq. The Commissioner is represented by Special
Assistant United States Attorney Kristina Cohn.
March 19, 2015, Plaintiff protectively filed an application
for SSI on behalf of his daughter, J.S., alleging a
disability onset date of June 8, 2004, the date of her birth.
The claim was denied initially on August 21, 2015 and upon
reconsideration on November 24, 2015. Plaintiff filed a
timely written request for a hearing. On December 14, 2016,
ALJ Merrill presided over Plaintiffs hearing from Manchester,
New Hampshire. Plaintiff and J.S., who were represented by
counsel, appeared in Burlington, Vermont and testified via
video teleconference. Vocational Expert ("VE")
Louis Laplante appeared in Manchester and testified. On
February 22, 2017, ALJ Merrill issued a written decision
finding J.S. not disabled. Thereafter, Plaintiff sought
review of ALJ Merrill's decision with the Social Security
Administration's Office of Disability Adjudication and
Review Appeals Council, which denied his request on November
13, 2017. ALJ Merrill's determination thus stands as the
Commissioner's final decision.
was born on June 8, 2004 and has undergone three surgical
procedures to address her bilateral congenital hip dysplasia.
The first surgical procedure took place in 2005, at which
time J.S. was put in a spica cast. The second took place in
February 2009 and the third in March 2015, when J.S.
underwent right hip reconstruction.
November 18, 2013, Lindsay Foote, P.T., saw J.S. for a
physical therapy consultation which took place in J.S.'s
physical education class at school. PT Foote made the
During the warm-up, [J.S.] was able to jog with her class.
She tends to run a bit slower than her classmates, and
accommodates for this by running a slightly smaller loop
inside the track that her classmates are running. She is able
to keep running the entire time, and her endurance has
noticeably improved. During stations, [J.S.] was able to
participate fully without additional adult support. She
worked as a team with her group and did a variety of
activities without difficulty. No concerns . . . about her
ability to access or participate in PE were noted today.
Section 504 Accommodation Plan drafted on November 19, 2013
at J.S.'s school noted that J.S. had been diagnosed with
bilateral hip dysplasia and recorded several accommodations
to "ensure her access to her education," (AR 912)
1. Limitations on the playground to include no high climbing
and no hanging on outdoor equipment
2. A chair for sitting is always available, that allows her
feet to touch the floor. She should not be sitting on the
floor with her legs out to the side
3. Running expectations to be limited to tolerance
4. Be encouraged to express her needs for a rest or an
5. To have allowable bathroom breaks
6. Rest as an option for pain management
7. Accommodations made during PE class to allow participation
8. Alternative options for PE if the PE activity is deemed
unsafe for her [and]
9. Physical Therapy consultation to [J.S.]'s school
program lx/month for [forty-five] minutes in a variety of
school settings (classroom, playground, gym)[.]
February 10, 2014, PT Foote observed J.S. playing tennis in
physical education class, noting: "[J.S.] [could] hold
the racquet properly and hit the ball over the net. She kept
her balance and did not have any difficulty moving through
space or getting to the ball in time. No concerns were noted
today and [J.S.] did not report any pain or discomfort."
(AR 917.) Following consultations on April 11 and April 28,
2014, PT Foote wrote that "accommodations are in place
for [J.S.] to be able to self-limit when it comes to running
and jumping." (AR 915.) She noted that J.S. sometimes
needed to be reminded to limit herself with these activities
when she was having fun with her friends. She further
observed that while other students were running J.S. walked a
shorter distance, although she stretched with the class.
continued to experience bilateral hip pain. In July 2014, she
visited Scott Benjamin, M.D., who noted that J.S. reported
her "right hip tend[ed] to hurt anywhere from a 4 to
7/10 in intensity most of the time when she [was] up on her
feet," with less intense pain when she was at rest. (AR
536.) Dr. Benjamin noted that J.S. and her family had
received a referral to Dr. Young-Jo Kim at Boston
Children's Hospital to discuss options for surgery. At a
subsequent visit on October 30, 2014, Dr. Benjamin observed
that J.S.'s ambulation and gait had improved with the use
of a heel lift and a crutch in her right hand, but J.S.'s
family still planned to discuss surgery with Dr. Kim.
November 2014, J.S.'s surgeon, Young-Jo Kim, M.D., Ph.D.,
wrote that J.S. "is unable to effectively use her lower
extremities, having difficulty ambulating without the use of
crutches which may or may not be corrected with surgery,
potentially as a life-long disability." (AR 553.) On
March 31, 2015, he performed reconstruction surgery on
J.S.'s right hip, describing the procedure as "a
right hip surgical dislocation approach with a femoral valgus
osteotomy with neck leg lengthening, as well as a right
periosteal osteotomy." (AR 731.) On May 7, 2015, Dr. Kim
reported that x-rays of J.S.'s right hip showed her
osteotomies were healing well. Dr. Kim "allowed her to
be full weightbearing, but still use a walker for
April 2015 until early August 2015, J.S. received physical
therapy treatment at her home from Michele Barnier, P.T. to
improve her leg strength, functional mobility, and gait. On
May 26, 2015, PT Barnier noted that J.S. was "[d]oing a
lot more walking around her home with her walker, [but was]
still using [a wheelchair] for community
distances/school." (AR 1082.) On June 5, 2015, PT
Barnier reported that J.S. was "making great gains with
strength and mobility." (AR 768.) PT Barnier noted that
J.S. was 60% weight-bearing on the right side, using her
walker around her home and a wheelchair for community
distances. J.S.'s prognosis was good. In July 2015, J.S.
was still using a wheelchair for some mobility. She was
encouraged to use a walker for all mobility within the home
and for short distances in the community.
August 6, 2015, J.S. saw Andrea Dunne, D.P.T., at Kids'
RehabGYM for an initial evaluation. At this appointment,
Plaintiff reported that J.S.'s walk was much slower, she
was unable to keep up with her family, and was unable to get
off the floor by herself. Dr. Dunne observed that J.S. could
ascend stairs with reciprocal gait and one handrail with poor
eccentric control and descend stairs with reciprocal gait and
two handrails with no eccentric control when leading with her
left leg. J.S. rated her pain one out often and stated that
her pain did not increase when she climbed stairs. Dr. Dunne
opined that J.S. had a mild limitation for walking and stair
climbing and she was restricted from running, jumping, or
engaging in strenuous activity.
August 19, 2015, x-rays of J.S.'s right hip showed
"[significant progressive healing" and
"[s]table" hardware in "excellent
position." (AR 754-55.) Dr. Kim found that the x-rays
demonstrated improvement from J.S.'s preoperative
radiographs. He noted that J.S. was healing well, had only
intermittent pain and mild limitations, was walking without a
walker, and had been fully weight-bearing since her last
visit on May 7, 2015.
September 21, 2015 appointment, Dr. Dunne observed that J.S.
could perform chair squats and squat walk forward and
backward for twenty-five feet. J.S. was advised to continue
weekly physical therapy to improve her strength and gait. At
two physical therapy sessions in October 2015, J.S. reported
that she had no leg pain. Dr. Dunne found that she was
tolerating the progression of activities well. At one of
those visits, J.S. told Dr. Dunne that she had only done her
home exercises one or two times in the previous week.
October 14, 2015, J.S. was seen by her pediatrician, Barbara
Kennedy, M.D., who reported that J.S. had been doing well
since her right hip surgery and that her school performance
was good. J.S. completed a "Bright Futures Adolescent
Supplemental Questionnaire" in which she indicated that
she participated in "physical activities such as
walking, skateboarding, dancing, swimming, or playing
basketball for a total of [one] hour each day[.]" (AR
841.) On November 30, 2015, Sarah Thomas, Certified
Prosthetist Orthotist ("CPO"), reported that J.S.
walked with improved balance and gait with her new left shoe
December 7, 2015, Plaintiff reported to Dr. Buteau (formerly
Dr. Dunne) that J.S. was "doing really well since her
last surgery, possibly feeling the best she ever has."
(AR 947.) Plaintiff noted that J.S. "complained of pain
once or twice in the past few months, but it ha[d] not
limited her participation and the complaints d[id] not last
more than a few minutes." Id. Dr. Buteau opined