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Andrew S. v. Berryhill

United States District Court, D. Vermont

October 18, 2019

ANDREW S., o/b/o J.S., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.

         Plaintiff 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.

         I. Procedural Background.

         On 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.

         II. Factual Background.

         A. Medical History.

         J.S. 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.[1] The second took place in February 2009 and the third in March 2015, when J.S. underwent right hip reconstruction.

         On 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 following observations:

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.

(AR 918.)

         A 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) such as:

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 alternative position
5. To have allowable bathroom breaks
6. Rest as an option for pain management
7. Accommodations made during PE class to allow participation and access
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)[.]

(AR 913.)

         On 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.

         J.S. 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.

         In 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 balance." Id.

         From 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.

         On 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.

         On 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.

         At a 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.

         On 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 lift.

         On 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 ...

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