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Lori Bergeron v. Michael J. Astrue

June 7, 2012

LORI BERGERON
v.
MICHAEL J. ASTRUE, COMMISSIONER SOCIAL SECURITY ADMINISTRATION



The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 102

MEMORANDUM AND ORDER

Lori Bergeron seeks judicial review of a decision by the Commissioner of the Social Security Administration denying her applications for disability insurance and supplemental security income benefits. Bergeron contends that the Administrative Law Judge ("ALJ") who considered her application made a number of errors in determining that she retained a residual functional capacity ("RFC") for sedentary work. For the reasons provided below, I affirm the Commissioner's decision.

I. BACKGROUND*fn1

Bergeron applied for disability insurance and supplemental security income benefits on July 28, 2006, when she was twenty-eight years old. She alleged a disability onset date of June 1, 2006, due to an open compound fracture of her right tibia and fibula, panic disorder, and bipolar disorder. She finished high school and attended some college. In the past she worked as a waitress, a secretary, and a manager/bookkeeper.

A. Administrative Proceedings

After Bergeron's applications were denied at the initial levels, she requested a hearing before an ALJ. Following a hearing, the ALJ issued an unfavorable decision in October 2008. Bergeron sought judicial review, and in November 2009, this court reversed and remanded the ALJ's decision because the ALJ failed to explain the consideration she gave to the medical opinion of Bergeron's primary care provider. See Bergeron v. Astrue, Civ. No. 09-cv-070-SM, 2009 WL 3807156 (D.N.H. Nov. 10, 2009).

A new hearing was held before the same ALJ on March 28, 2011. The ALJ issued an unfavorable decision on April 13, 2011. At step two of the sequential analysis, the ALJ found that Bergeron suffered from "right leg deformity, status post tibia fracture," and that the condition was a severe impairment. At step three, however, the ALJ found that Bergeron did not have an impairment or combination of impairments that met or medically equaled a listing. The ALJ went on to find that Bergeron retained the RFC to perform sedentary work involving only occasional climbing, balancing, stooping, kneeling, crouching, or crawling. At step four, she concluded that Bergeron was capable of performing her past relevant work as a secretary. Accordingly, the ALJ found that she was not disabled from June 1, 2006, through the date of the decision. Bergeron again filed for judicial review.

B. Relevant Medical Evidence*fn2

Prior to her alleged onset date, Bergeron's primary care physician, Dr. John Ford, treated her for chronic pain with methadone. Dr. Ford attempted to have her taper off methadone, but continued to prescribe it when Bergeron did not tolerate the attempted wean. Dr. Ford referred Bergeron to a physician more experienced in handling chronic methadone use, but it is not clear from the record whether Bergeron met with this physician.

On June 1, 2006, the alleged disability onset date, Bergeron was involved in a motor vehicle accident as the driver of a car that went across the midline and struck an oncoming car. A physician at the Androscoggin Valley Hospital assessed that Bergeron suffered multiple trauma, including four fractured ribs, bilateral lung contusions, a fractured left sacrum, a fractured left anterior pubic ramus, a fractured left L5 transverse process, an open compound fracture of the right tibia and fibula, and probable renal contusion. The physician noted that Bergeron had lost consciousness, but that a CT scan of the head revealed no structural abnormalities.

Bergeron was then transferred to the Dartmouth-Hitchcock Medical Center, where she underwent surgery to repair the open compound fracture of her right tibia and fibula and to remove intra-abdominal fluid. She was discharged from the hospital on June 5, 2006, with a splint on her right leg and prescriptions for oxycodone, methadone, and Neurontin. Bergeron's discharge instructions specified that she should use touch-down weight-bearing only on her right leg.

Following her discharge, Bergeron received treatment for her fracture from Dr. Kenneth J. Koval of the Dartmouth-Hitchcock Medical Center. An x-ray taken on June 21, 2006, showed that Bergeron's fracture lines still were quite apparent and that there was no evidence of significant union. On July 19, an x-ray showed that Bergeron's tibia and fibula were unchanged.

Approximately two weeks later, Bergeron was admitted to the Dartmouth-Hitchcock Medical Center, where physicians noted that she had developed inflammation of the bone caused by infection in her fracture wound and that the skin overlying the fracture was necrotic, indicating cell death. Bergeron underwent another surgery for irrigation and debridement of the wound; removal of previously placed intramedullary fixation rod and screws; application of an external fixator to stabilize the fracture; irrigation, debridement, and replacement of antibiotic beads; and plastic surgery to her right leg with spilt skin graft. She was discharged a week later with instructions not to bear weight on her right leg and to keep the leg elevated.

At a follow-up visit on August 14, Dr. Koval noted that Bergeron's external fixator was intact, her pin sites were clean, her skin graft appeared viable without significant drainage, and her surgical wounds were well-healed. Bergeron reported that her pain was relatively well-controlled. Dr. Christopher P. Demas, the physician who had performed Bergeron's skin graft, noted that the graft was 100% "take" and looked perfect, with no evidence of infection, seroma, or hematoma.

Dr. Koval placed Bergeron's ankle in a posterior splint and instructed her to remain non-weight-bearing until her next x-ray in two weeks. He noted that he had discussed with Bergeron that she might need a bone graft for the fracture to fully heal.

On August 24, 2006, Dr. Patrick R. Olson noted that Bergeron's external fixator was intact, her pin sites were clean, her surgical wounds were well-healed, and her skin graft was intact. Bergeron reported that her main symptom was pain in her leg. Dr. Olson urged Bergeron to quit smoking, as it could prevent bone healing, and instructed her to continue to remain non-weight-bearing. An x-ray revealed that Bergeron's fracture was unchanged. On the same date, Dr. Demas noted that Bergeron's skin graft was 90% healed. Bergeron requested narcotics for pain, but Dr. Demas felt that she no longer required narcotics for her skin graft. He advised Bergeron to apply moisturizer to the area.

The following day, Bergeron met with Dr. Gilbert J. Fanciullo to discuss pain medication. Dr. Fanciullo noted Bergeron's remote history of heroin abuse and advised her that he would not prescribe oxycodone. Dr. Fanciullo did agree to prescribe methadone and hydromorphone as needed while the external fixator remained in Bergeron's leg, but stated that he would wean her off of all opioids after removal of the device. Dr. Fanciullo noted that it would be appropriate for Dr. Ford to continue to prescribe methadone for Bergeron's lower back pain after that point.

An x-ray taken on September 5, 2006, showed that Bergeron's fracture lines remained visible and that extensive soft tissue deformities were present. On September 14, Dr. Jose-Mario Fontanilla noted that Bergeron's delayed bone healing was indicative of ongoing infection, and that Bergeron might need a bone graft. On that same date, Dr. Demas noted that Bergeron's skin graft was essentially totally healed and released her from active follow-up.

On September 29, Dr. Olson noted that Bergeron appeared obviously distressed. She reported falling and hitting her external fixator, resulting in severe pain in her tibia. Dr. Olson determined that the external fixator was intact and aligned. An x-ray revealed no change ...


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