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Laplante v. Berryhill

United States District Court, D. Connecticut

September 29, 2017

NANCY A. BERRYHILL, Acting Comm'r, Social Security Admin., Defendant.



         Plaintiff brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision denying plaintiff's application for disability insurance benefits (“DIB”). In 2013, plaintiff filed an application for DIB alleging disability beginning in 2008, when he was in a car accident. After a hearing, an administrative law judge found that plaintiff's diabetic foot ulcer is a severe impairment but that he is not disabled within the meaning of the Act because he retains the capacity to perform the full range of sedentary work as defined in 20 C.F.R. § 404.1529 and SSRs 96-4p and 96-7p. Plaintiff has moved for an order reversing the decision of the Commissioner (ECF No. 14), and defendant has moved for an order affirming the decision (ECF No. 16). Plaintiff argues that the ALJ's decision violates the treating physician rule and is not supported by substantial evidence. Respondent contends that the ALJ adequately explained his reasons for discounting the treating physician's opinion and the ALJ's finding that plaintiff can perform sedentary work is supported by substantial evidence. I think respondent is correct. Therefore, the decision is affirmed.

         I. Background

Plaintiff sustained injuries to his left and right knees and back after he was struck by a car in July 19, 2008. Stipulation of Facts (ECF No. 14-2) ¶ 5. He was admitted to St. Francis Hospital that day, received orthopedic surgery for an open reduction internal fixation (“ORIF”) of a right tibial fracture on July 21, 2008, then attended weekly rehabilitation and occupational therapy from August 3, 2008 through October 18, 2008. Id. ¶¶ 6-7.

         Plaintiff attended physical therapy sessions from October 2, 2008 through August 13, 2009 for a variety of conditions, including his right tibial fracture, right scar tissue, right chronic ankle spasm and sciatica. Id. ¶ 8. On December 22, 2008, Dr. Gordon Zimmerman determined that plaintiff had a “grade III MCL tear of the left knee, ” but was recovering satisfactorily and would have a “small impairment in the range of 5 to 10%.” Id. ¶ 15. Dr. Zimmerman ultimately determined that plaintiff had a 10% permanent partial impairment of his left knee. Id. ¶ 20. On January 15, 2009, plaintiff had an evaluation for his lower back pain, resulting in an assessment of a 3% impairment rating of the lumbar spine. Id. ¶ 16. On June 25, 2009, Dr. Kabbash assigned the plaintiff a final 10% permanent disability rating for his right knee. Id. ¶ 11. At plaintiff's final physical therapy visit on August 13, 2009, he was able to “perform a hopping motion without an increase in pain and he was able to perform a single leg heel raise.” Id. ¶ 12. He canceled his last scheduled visit and later reported that he was “doing well and managing with his home exercise program.” Id.

         In January 2011, plaintiff sought medical treatment for worsening knee pain. Id. ¶¶ 23-24. He had an arthroscopic partial meniscectomy in his left knee, to which he responded well; he stated that “he felt much better; he was bearing weight as tolerated and increasing his activity.” Id. ¶¶ 25-26. In 2012, plaintiff's left knee pain persisted. Id. ¶ 32. Notes from 2012 reveal that plaintiff was treated for type 2 diabetes and was not compliant with taking his diabetic medicine and following his diet. Id. ¶¶ 32, 33.

         In March 9, 2013, plaintiff was treated at Rockville General Hospital for right dorsal foot pain and ankle pain after dropping a piece of wood on his foot during a home improvement project. Id. ¶ 35. Podiatrist Eric Thompson examined the plaintiff on March 12, 2013, and provided care for a diabetic foot infection with diabetic neuropathy. Id. ¶ 36. Dr. Thompson saw the plaintiff for much of 2013 and 2014, and his notes reveal that the plaintiff had at times been doing a lot of walking. Id. ¶ 37. April 4, 2014, plaintiff stated that he had not followed up on treatment for three months because he was “too busy.” Id.

         On April 12, 2013, a Connecticut state medical consultant reviewed plaintiff's record and concluded that plaintiff could lift 20 pounds occasionally and ten pounds frequently; stand and/or walk for three hours, and sit for about six hours in an eight-hour workday. Id. ¶ 28. He did not have any manipulative, visual, communicative or environmental limitations. Id. A subsequent mental status examination found that “plaintiff would have the ability to function on tasks that did not require much movement or lifting.” Id. ¶ 29. A state psychologist reviewed the record and found that plaintiff could “understand and retain simple directives of two-to-three steps, though he would have a difficult time remembering more complex instructions.” Id. ¶ 30. On October 17, 2013, Dr. Dodenhoff performed a one-time physical evaluation, finding that plaintiff suffered from sleep apnea, restless leg syndrome and a diabetic ulcer on his right foot. Id. ¶ 40. Dr. Dodenhoff wrote that plaintiff was able to sit and handle objects and “should be able to respond appropriately to supervision, coworkers, and the pressures in a work setting.” Id.

         Plaintiff's condition seemingly worsened in 2014. He was treated at Rockville General Hospital for foot pain and a chronic ulcer on April 15, 2014, followed by several additional procedures related to his foot. Id. ¶¶ 42-44. Dr. Eric Lui, a podiatrist, began treating the plaintiff on May 7, 2014. Id. ¶ 45. Dr. Lui's notes reflect the following diagnoses: diabetic neuropathy (May 7, 2014); neuropathy with an open wound on the right foot (May 13, 2014); and neuropathy with a second open wound on the right foot (May 20, 2014). Id. ¶¶ 46-48. During the ensuing months, Dr. Lui examined the plaintiff weekly for problems with his right foot. R. at 61. On November 5 and 12, 2014, Dr. Lui urged plaintiff to remain off the foot as much as possible, keep it elevated and use a walking boot as necessary. Stipulation of Facts ¶ 65-66.

         On October 24, 2014, Dr. Lui completed a medical assessment. Id. ¶ 67. He opined that plaintiff could occasionally lift up to 20 pounds but could never carry any weight due to his diabetic neuropathy and the chronic ulcer on his right foot. Id. He could sit for 30-45 minutes, stand for fifteen minutes and walk for fifteen minutes without interruption. Id. Over the course of an eight-hour workday, he could sit for 3 to 4 hours, stand for one hour, and walk for a total of one hour; however, he would have to lie down and elevate his right foot 3 to 4 times a day for 30 to 60 minutes each time due to his chronic diabetic ulcer. Id. He could use his upper body bilaterally and left foot with little or no restriction, and occasionally operate a motor vehicle, although he could not operate foot controls with his right foot. Id. He could not climb stairs, be around moving mechanical parts or be in extreme cold or heat. Id.

         Plaintiff originally filed for DIB on February 19, 2013. R. at 155-160. After a hearing, the ALJ concluded that, although plaintiff's chronic foot ulcer constitutes a severe impairment, he retains the residual functional capacity to perform the full range of sedentary work. With regard to Dr. Lui's assessment of plaintiff's limitations, the ALJ stated:

The assessment of the claimant's podiatrist, Dr. Lui (Ex. 16F) is given some weight. It is based on a treating relationship and specialty as a podiatrist. It suggests a less-than-sedentary profile that is not fully supported by the record, including his own notes (Ex. 18F). For instance, he states that [t]he claimant cannot use his hands bilaterally more than frequently, but there is no indication of any neurological findings in the upper extremities (Exs. 11F, 18F, 20F). The idea that he cannot use foot controls with his right foot is inconsistent with his admission that he can drive (Ex. 4E). There is no indication that he is unable to sit without limitation, given that the only findings are some erythema and sensory loss in the lower extremities. (Exs. 11F, 18F, 20F). Also, these notes indicate no gait issues either (Id.). Accordingly, the degree of restriction on sitting, standing, and walking is unjustified. Thus, the opinion is given credit to the extent it supports a full sedentary profile. This is consistent with his indication that he could go back to a desk job. (Ex. 7F).

R. at 39.

         With regard to plaintiff's need to elevate his ...

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