United States District Court, D. Delaware
TREVOR R. WIBERG, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
CHRISTOPHER J. BURKE, Magistrate Judge.
Plaintiff Trevor R. Wiberg ("Wiberg" or "Plaintiff') appeals from the decision of Carolyn W. Colvin, the Commissioner of Social Security ("Commissioner" or "Defendant"), denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433 & 1381-1383f. The Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3).
Presently pending before the Court are cross-motions for summary judgment filed by Wiberg and the Commissioner. (D.I. 21, 24) Wiberg asks the Court to reverse the Commissioner's decision and remand for further proceedings. (D.I. 22 at 20) The Commissioner requests that the Court affirm the Commissioner's decision. (D.I. 25 at 24) For the reasons set forth below, the Court recommends that Wiberg's motion for summary judgment be GRANTED-IN-PART and DENIED-IN-PART, that the Commissioner's motion for summary judgment be DENIED, and that the case be remanded for further proceedings consistent with this Report and Recommendation.
A. Procedural History
Wiberg filed applications for DIB and SSI on July 28, 2008, alleging that he became disabled on September 1, 2007. (D.I. 11 (hereinafter, "Tr.") at 125, 132; D.I. 22 at 2) On December 19, 2008, Wiberg's applications were denied. (Tr. at 91) Wiberg filed a request for reconsideration of his claims on January 23, 2009, and on May 26, 2009, his application was again denied. (Id. at 97, 102)
On June 1, 2009, Wiberg next filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Id. at 115) Wiberg was represented by counsel at the hearing, which was held on July 15, 2010. (Id. at 10) On July 28, 2010, the ALJ issued a decision denying Wiberg's claims for DIB and SSI. (Id. at 7-22) On August 13, 2010, Wiberg requested review of the ALJ's decision by the Appeals Council. (Id. at 4) On April 5, 2011, the Appeals Council denied Wiberg's request for review. (Id. at 1) The ALJ's decision denying DIB and SSI thus became the final decision of the Commissioner. See 20 C.P.R. §§ 404.955, 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On June 3, 2011, Wiberg filed a Complaint in this Court seeking judicial review of the ALJ's decision. (D.I. 2) On July 17, 2012, Wiberg filed a motion for summary judgment. (D.I. 21) The Commissioner opposed Wiberg's motion and filed a cross-motion for summary judgment on August 13, 2012. (D.I. 24) On July 10, 2013, Chief Judge Leonard P. Stark referred this case to the Court to hear and resolve all pretrial matters, up to and including the resolution of case dispositive motions. (D.I. 28)
B. Factual Background
1. Plaintiff's Medical History and Condition
Wiberg was 22 years old at the time of the alleged onset of his disability in September 2007. He meets the insured status requirements of the Social Security Act through September 2008. (Tr. at 12) Wiberg alleges that he became disabled on September 1, 2007, and that he was unable to work as of that date due to the effects of Ehlers-Danlos syndrome, hypermobility type. (Id. at 10, 149; D.I. 22 at 5) Ehlers-Danlos syndrome refers to a group of inherited disorders of the connective tissue that can cause, inter alia, instability and pain in one's joints. (D.I. 25 at 1 n.1); see also Tietjen v. Astrue, No. 11-CV-182-PJC, 2012 WL 3308399, at *1 n.1 (N.D. Okla. Aug. 13, 2012). It is a "rare disorder." (Tr. at 32, 390; see also D.I. 25 at 1 n.1)
a. December 2007-January 2009: Visits with Dr. Robinson, Dr. Sabbagh, and Dr. Koval and related physician appointments
From December 2007 to January 2009, Wiberg sought treatment for back and neck pain from his primary care physician, Amy J. Robinson, M.D. In that time period, he also sought care from an orthopedic specialist, Ronald C. Sabbagh, M.D., and a rheumatologist, Norman S. Koval, M.D. (Tr. at 152, 208, 214, 308, 367)
On December 7, 2007, Wiberg sought treatment for back pain from Dr. Robinson. (Id. at 308) Wiberg stated that he had suffered from back pain since he fell off a skateboard at age 15 and that it had "gotten worse[, ]" from there, due in part to having twisted his back while playing football and lacrosse in high school. (Id.) On December 12, 2007, Wiberg visited the Beebe Medical Center for examinations of the cervical spine, thoracic spine, and lumbar spine that Dr. Robinson had ordered. (Id. at 253) The examinations revealed possible sacroilitis (due to irregularity in the sacroiliac joints), but otherwise normal results regarding the cervical spine, thoracic spine and lumbar spine. (Id.)
On February 11, 2008, Wiberg called Dr. Sabbagh's office, stating that he was in severe pain because medication he had been prescribed did not help his condition; Wiberg said that the only thing he could do to relieve the pain was drink alcohol. (Id. at 214) Dr. Sabbagh advised against drinking alcohol while taking medication, and refused to prescribe any further medication due to Plaintiffs alcohol consumption; he directed Wiberg to his primary care provider or to the emergency room for medication. (Id.)
On February 13, 2008, Wiberg visited Satyajit Sarangi, M.D., for a lumbar spine MRI ordered by Dr. Sabbagh. (Id. at 348-49) Dr. Sarangi's ultimate conclusion after viewing the results of the MRI was that, except for a minimal disc bulge at L5-S 1, the remainder of the levels appeared unremarkable for underlying disc herniation, central canal, or neural foraminal stenosis, and that portions of the S1 joints appeared to be free of underlying erosions. (Id. at 349)
On February 15, 2008, Wiberg returned to Dr. Robinson to follow up on his back pain. (Id. at 312) Wiberg reported that he could not sleep at night because of the discomfort, that he had a "baseline" of consistent back pain, and that he had quit his job during the previous month due to that pain. (Id.) Dr. Robinson noted that there was no improvement in Wiberg's upper back pain or his right scapular pain, there was tenderness on the thoracic vertebrae, as well as paraspinal muscle spasm on the right. (Id.) Dr. Robinson also reported a normal range of motion of Wiberg's spines. (Id.)
On February 18, 2008, Wiberg visited the emergency room at the Beebe Medical Center, complaining of back pain and neck pain; after examination, the attending physician noted a musculoskeletal review of Wiberg's systems was negative. (Id. at 283-87) Wiberg was noted to appear uncomfortable and in pain during the physical exam, and the physician found paraspinal tenderness in his right upper back area and right upper cervical spine. (Id. at 285-86) A nurse's assessment noted that Wiberg could ambulate without assistance and had a full range of motion in his neck, but that Wiberg reported sharp right-side neck pain and pain under his left scapula. (Id. at 287-88) Wiberg was discharged the same day after being advised to get a reumatology work up and being prescribed Flexeril, Ibuprofen and Percocet as needed for pain. (Id. at 289-90) However, he was advised by Dr. Douglas Allen to take the medications "on[l]y when absolutely necessary" and that "[y]ou will not find the solution to your problem in a pain pill"; instead, Dr. Allen advised Wiberg to pursue more conservative measures like yoga, massage or chiropractic treatment. (Id. at 289)
On February 21, 2008, Wiberg first visited Dr. Koval, complaining of "piercing and shooting" back pain in his upper back, under his right shoulder blade. (Id. at 220, 367) Wiberg described that the gradual onset of pain had occurred in an intermittent pattern for eight years, and that he used heavy alcohol, marijuana and other drugs to decrease the pain. (Id. at 220, 367) Dr. Koval diagnosed Wiberg with Ehlers-Danlos syndrome (affecting Wiberg's wrist, fingers, back and knee) (hereinafter, "Ehlers-Danlos syndrome"), also finding the presence of mitral valve disorders, and an unspecified backache. (Id. at 220-21, 367)
On February 22, 2008, Wiberg returned to Dr. Sabbagh's office for a follow up visit on his back pain. (Id. at 366, 459) Dr. Sabbagh noted that Wiberg's neurologic exam was normal. (Id. at 366, 459) Wiberg exhibited a non-antalgic heel/toe gait and walked without an assistive device during the visit. (Id. at 366, 459) Wiberg's MRI looked essentially normal except for a mild disc bulge, which was nevertheless determined to be appropriate for his age. (Id. at 366, 459)
On February 25, 2008, Wiberg returned to Dr. Robinson complaining again of back pain in the midline of his back. (Id. at 314) Dr. Robinson noted the presence of a bilateral paraspinal muscle spasm, but otherwise noted that Wiberg exhibited a normal range of motion of spines. (Id.) She prescribed Percocet and Tramadol for treatment of his Ehlers-Danlos syndrome. (Id.)
On February 29, 2008, Wiberg visited Dr. Thomas Fiss Jr., M.D., for a thoracic spine MRI ordered by Dr. Robinson. (Id. at 347) Dr. Fiss noted that the spinal cord was normal in size and signal intensity and also noted "Schmorl's nodes... in the lower thoracic and upper lumbar spine[, ]"; his impression was of an essentially negative study. (Id.)
On March 6, 2008, Dr. Koval noted the results of the x-rays that had been taken on Wiberg's spine. (Id. at 216) He stated that the results "looked quite normal to this reviewer." (Id.) Dr. Koval wrote that he wanted Wiberg to enter a full physical therapy program with aquatics, concluding that "I do not think that the amounts of changes noted on x-ray are really causing him the intensity of pain that he is complaining of." (Id.) Dr. Koval recommended over-the-counter Aleve for treatment. (Id.)
On March 14, 2008, Wiberg returned to Dr. Robinson regarding his neck and back pain. (Id. at 316) Dr. Robinson's findings were similar to those at the February 25, 2008 visit. (Id.) Dr. Robinson prescribed Naproxen in addition to the previously-prescribed medications for treatment of Wiberg's Ehlers-Danlos syndrome. (Id.)
Wiberg returned to Dr. Robinson on March 26, 2008, complaining of neck pain (which Wiberg said was triggered by recent stretching exercises), as well as vomiting, constipation, and sleep problems arising from his neck pain. (Id. at 318) Dr. Robinson noted tenderness to palpation over the cervical spine and, inter alia, referred Wiberg to a chiropractor for evaluation. (Id.)
Wiberg continued to see Dr. Koval, (id. at 211-13), and in a May 29, 2008 visit, he told Dr. Koval that prescribed medications had not helped his back and neck pain and that he was interested in trying alternatives, including a TENS unit, a duragesic patch, and Flexeril, (id. at 209). Dr. Koval noted that he wished to wean Wiberg off of Percocet and Tramadol, and prescribed Datvocet in an attempt to do so. (Id. at 210) He concluded that "[p]hysical therapy is the way to go for this patient[, ] including aquatics" and noted that Wiberg himself thought he could perform aquatic therapy "when the ocean warms up[.]" (Id.)
On June 10, 2008, Wiberg returned to Dr. Robinson's office for another follow up on his back pain. (Id. at 321) Wiberg stated that his symptoms were stable with medication, but that he was unable to find a job. (Id.) Dr. Robinson altered Wiberg's prescriptions, but also wrote that she had refused to "fill out disability forms" for Wiberg as she "believe[ed] he can do light duty" work. (Id.)
On July 7, 2008, Dr. Robinson wrote a letter of reference stating that she believed Wiberg needed to see Dr. Clair Francomano, a geneticist based out of Baltimore, Maryland. (Id. at 390) Dr. Robinson explained that Dr. Francomano was a "renowned specialist" in Ehlers-Danlos syndrome, and that in light of the fact that Wiberg was suffering from "severe low back pain" she believed "evaluation and treatment by Dr. Francomano [was] imperative." (Id.)
On August 21, 2008, Wiberg returned to Dr. Koval stating that he had gone to physical therapy and aquatic therapy, but both had been ineffective. (Id. at 207) Dr. Koval noted that Wiberg still reported significant discomfort throughout his thoracic lumbar spine; Dr. Koval reaffirmed his diagnosis of chronic back pain and Ehlers-Danlos syndrome, but noted that mitral valvular disease had now been ruled out. (Id. at 208) On August 28, 2008, Wiberg visited the Beebe Medical Center for a 3-Phase Bone Scan examination ordered by Dr. Koval. (Id. at 206) The examination report noted no evidence of abnormally increased or decreased activity, and that the bone scan was normal. (Id. at 206, 255)
On September 10, 2008, Wiberg returned to Dr. Robinson. (Id. at 323) Wiberg stated that he had been "working for a few months" in a job that was "not strenuous[, ]" and noted that his neck pain had been worse in preceding weeks, varying from 4 to 9 in its level of intensity. (Id.; see also id. at 162, 169 (Wiberg noting on November 2008 Function Report that "[i]f it's a work day I'll go either at 10:00 am or 4:00pm, then come home....")) Dr. Robinson noted that Wiberg had visited with Dr. Francomano, who had instructed Wiberg to start Fentanyl pain patches and Lidoderm pain patches, and recommended that he have an x-ray of the cervical spine and MRIs of the cervical spine and brain. (Id. at 323)
On September 27, 2008, Wiberg returned to the emergency room at the Beebe Medical Center complaining of shortness of breath and anxiety. (Id. at 368) The emergency record noted that Wiberg reported neck pain, back pain, and a history of marijuana abuse. (Id. at 368-70) The nurse's report stated that Wiberg admitted he had "acute depression secondary to his being in constant pain from his Ehlers-Danlos condition[, ]" and wanted to get counseling. (Id. at 368, 431)
On October 5, 2008, Wiberg again returned to the emergency room at the Beebe Medical Center, this time complaining of anxiety, shortness of breath, chest pain, back pain and whole body numbness. (Id. at 267) The emergency record noted, inter alia, a negative musculoskeletal review of systems. (Id. at 268) The nurse's assessment explained that Wiberg was generally ill appearing and vomited bile, and that he otherwise was cooperative, alert, oriented and ambulated without assistance. (Id. at 271-72) Wiberg was prescribed Xanax and discharged the same day. (Id. at 272)
Two days later, on October 7, 2008, Wiberg returned to Dr. Robinson complaining of anxiety, vomiting, breathing troubles, tingling in the chest, hands, and face, and indicating that the Fentanyl pain patches did not seem to be helping anymore. (Id. at 325) Among other things, he told Dr. Robinson that he was exercising, including walking and biking. (Id. at 325, 330) He was wearing a neck brace. (Id. at 325) Dr. Robinson instructed Wiberg to continue using the Fentanyl patches and prescribed Celexa for depression. (Id.) She advised Wiberg to take his medications as prescribed because he had been non-compliant in doing so, and she warned of termination of the doctor-patient relationship if Wiberg did not comply with her instructions. (Id.) Wiberg "reluctantly" signed a pain management agreement describing his intent to comply with Dr. Robinson's instructions regarding pain medication. (Id. at 325, 388-89)
On October 13, 2008, Wiberg visited Dr. Sarangi for the cervical spine x-ray, cervical spine MRI, and brain MRI (the procedures that Dr. Francomano had recommended). (Id. at 242, 245, 323, 353, 337, 343, 345) Regarding the cervical spine x-ray, Dr. Sarangi noted that his impression was that the results were essentially normal. (Id. at 337) Regarding the cervical spine MRI, Dr. Sarangi noted that at the C4-C5 level, minimal posterior disc osteophyte complexes were present without resulting in underlying mass effect on the cervical spinal cord, and at the C5-C6 level, minimal bulge of the annulus is present, and that there was no evidence of underlying central canal or neural foraminal stenosis at either of those levels. (Id. at 343-44) Finally, regarding the brain MRI, Dr. Sarangi's impression was a normal enhanced MRI of the brain. (Id. at 345)
On October 21, 2008, Wiberg returned to Dr. Robinson. (Id. at 327) He brought a pain assessment log and information regarding Ehlers-Danlos syndrome with him to the appointment. (Id.) He was wearing a neck brace. (Id.) Wiberg agreed to stop using marijuana. (Id.)
On November 19, 2008, Wiberg again returned to Dr. Robinson's office, and stated that he had stopped using marijuana on October 23, 2008. (Id. at 415) Dr. Robinson conducted a urine drug screen and "discussed at length [how Wiberg's use of] profanities while he was venting and not targeting me are not appropriate in this office" and he would be "given [one] more chance [in two] weeks for his THC [drug screen] to be negative" or he would be "dismissed from this office." (Id.) Wiberg returned to Dr. Robinson for the follow up drug screening on December 9, 2008. (Id. at 413) Dr. Robinson noted that Wiberg's urine was positive for Oxycodone, but negative for THC, and that he would be seeing Dr. Francomano for pain management. (Id.)
On January 14, 2009, Wiberg visited Dr. Robinson again and complained of daily vomiting after taking medication. (Id. at 412) She advised him to continue with prescribed medication to combat nausea and ordered other tests regarding his abdominal pain. (Id.) This appears to have been Wiberg's last visit with Dr. Robinson.
b. September 2008-June 2010: Visits with Dr. Francomano, Dr. Henderson, Dr. Stanislay and Dr. Thomas and related physician appointments
As was referenced above, Wiberg first visited with Dr. Francomano, a geneticist, on September 3, 2008, due to Wiberg's prior diagnosis of Ehlers-Danlos syndrome. (Id. at 225) Dr. Francomano indicated that Wiberg's primary concern was how to live with Ehlers-Danlos syndrome and with chronic pain management. (Id. at 246) Wiberg told Dr. Francomano that he was currently working part-time, outside his home, as a photographer (and that he was also a musician). (Id. at 239, 247) He noted that Oxycodone, Hydrocodone, Tramadol, a TENS unit, alcohol and other drugs helped to relieve about 60% of his pain, but that lifting, bending, stretching, extended laying down or sitting, and stress intensified that pain. (Id. at 248-49) In all, Wiberg indicated that he was able to carry on normal activity with effort and some symptoms, except as to carrying greater than five pounds, holding up a book to read, or playing guitar (which he was unable to do). (Id. at 238) As was previously referenced, Dr. Francomano ordered an MRI of the brainstem, an MRI of the cervical spine, and an x-ray of the cervical spine with obliques. (Id. at 225) Dr. Francomano conducted a physical examination of Wiberg, and noted, inter alia, a normal tone in Wiberg's upper and lower extremities, hyperextensibility and increased neck mobility. (Id. at 359-361, 447) She also recommended physical therapy, use of certain patches for pain relief, low impact sports and exercise, and mindfulness-based stress reduction. (Id. at 226)
On December 3, 2008, Dr. Francomano saw Wiberg for a follow up visit. (Id. at 468) Dr. Francomano did not conduct a physical exam on this visit, but wrote that Wiberg's pain had been "bad" during the last three days and that he had not been able to get a "pain management practice to take him on." (Id.) She noted that Wiberg's MRIs (from October 13, 2008) had shown a "Chiari" malformation. (Id.) She wrote that she would take on his pain management "for now[, ]" had Wiberg sign a pain medicine contract, and wrote him a prescription for Oxycontin and OxyIR. (Id. at 468, 472-73)
On February 10, 2009, Wiberg again returned to the emergency room at the Beebe Medical Center complaining of a severe aching headache. (Id. at 399, 402) The emergency record noted that Wiberg "appear[ed] in pain distress" although he was able to move his "neck freely and without obvious neck discomfort." (Id. at 400, 403) Wiberg continued to complain of "significant pain despite being treated with Dilaudid" and was then treated with ativan/droperidol to relieve the pain. (Id. at 403)
On March 5, 2009, Dr. Francomano spent 45 minutes in "counseling [and] coordination of care" with Wiberg, noting Wiberg's report of headaches "unlike anything he's had before" that were accompanied by nausea, vomiting and an inability to sleep. (Id. at 467; see also id. at 187) Dr. Francomano noted the need to find a neurosurgeon for Wiberg and again wrote a prescription for Oxycontin and OxyIR. (Id.)
Wiberg visited Dr. Francomano for another follow up visit on September 11, 2009. (Id. at 498-500) In the one hour visit, Dr. Francomano spoke with Wiberg, reviewed his medical history and performed a "targeted physical exam." (Id. at 498) Wiberg reported that he was experiencing "unremitting abdominal pain, " severe depression, shoulder numbness, insomnia, headaches, chronic nausea and vomiting; he said that his chronic pain was poorly controlled by his current medication. (Id.) Dr. Francomano's impression was that Wiberg was suffering from, inter alia, chronic musculoskeletal pain, headaches, and nausea; she suspected that much of his problem was related to craniocervical instability and possible brainstem compression, as well as possible cervical disc disease that may be causing Wiberg's left shoulder pain. (Id. at 499) She recommended increasing Wiberg's Oxycontin dosage, stopping the prescription of Tramadol, increasing his Flexeril dosage, and re-prescribing the TENS unit and physical therapy for muscle relaxation. (Id.)
Dr. Francomano recommended that Wiberg see Dr. Fraser Henderson, a neurosurgeon. (Id.) Wiberg visited Dr. Henderson on October 28, 2009, complaining of severe neck pain, occasional headaches, pain predominantly down the right medial scapular region, subscapular region and low back region. (Id. at 577) Wiberg reported that the pain was "so severe that he is unable to work, read, or perform any of his normal activities" and that it "worsened with awkward positions, lifting, [and] pulling[.]" ( Id. ) During Dr. Henderson's examination, he observed that Wiberg was a "good historian[, ]" and found, inter alia, that Wiberg had a normal gait, greater than normal ability to rotate his neck, a non-tender spine with no sign of scoliosis and normal brain activity. (Id. at 578) He noted that Wiberg was "experiencing a great deal of osteoarthritic pain throughout the entire neck and back, also the shoulders, wrists, and hips." (Id.) Dr. Henderson reviewed an MRI of the brain and noted the Chiari malformation (a structural defect in the cerebellum) and suggestion of "some atlantooccipital instability"; he concluded that Wiberg had cervical instability and possibly craniocervical instability, with severe craniocervical pains, along with the onset of headaches. (Id.)
Wiberg next visited with Dr. Francomano on December 4, 2009, reporting continued severe neck and back pain. (Id. at 572) He reported that he "require[d] occasional assistance, but can care for most of my needs." (Id.) Dr. Francomano did not perform a physical exam on this visit, but after her 40-minute discussion with Wiberg, she concluded that he "continues to suffer severe neck and back pain." (Id. at 573) She noted that Dr. Henderson had ordered an MRI and a CT scan of the neck, and that the MRI results showed "quite dramatic degenerative disc disease and Chiari I malformation." (Id. at 572-73) She recommended that Wiberg undergo a sleep study. (Id. at 573)
On January 7, 2010, Wiberg first visited with William Thomas, M.D., a neurologist, for his sleep disturbance. (Id. at 537) In addition to getting approximately two hours of sleep per day, Wiberg also reported "stabbing" and "shock like" headaches, "burning" back pain, shoulder pain, and a tingling sensation in his shoulders. (Id.)
Dr. Henderson again saw Wiberg on January 11, 2010 for a follow up visit, and for review of the CT scan he had ordered. (Id. at 579) The scan confirmed the presence of the Chiari malformation, and Dr. Henderson thought that Wiberg's headache and neck pain could be attributed to it. (Id.) Dr. Henderson also noted that "at the C5/6 [level], there is a mild flexion injury to the ligaments posteriously resulting in [the] splaying of the spinous processes" and "a small disc bulge and some indentation on the cervical spine[, ]" and added that he did not "think the measurement is critical." (Id. ) He wrote that Wiberg was "so insistent about the presence of instability that [he was] inclined to proceed with a craniocervical fusion stabilization[, ]" but wished to get Dr. Francomano's feedback first. (Id.) He also opined that "a C5/6 discectomy could relieve some of his pain." (Id.)
On January 19, 2010, Wiberg underwent a sleep study. (Id. at 570-71) Vikas Batra, M.D., reviewed the results, and his impression was that Wiberg suffered from central sleep apnea "likely due to narcotic use[.]" (Id. at 570) Dr. Batra also noted that Wiberg had an Arnold Chiari malformation that can also be associated with central sleep apnea. (Id.)
On February 4, 2010, Wiberg visited a new primary care physician, Charles A. Stanislay, M.D., and reported that he needed "support in trying to maintain coordination of care with" Dr. Francomano and Dr. Henderson. (Id. at 504, 507) Dr. Stanislay's physical examination revealed a normal gait and musculoskeletal hypermobility. (Id. at 506) His assessment listed Ehlers-Danlos syndrome, chronic pain syndrome, "Arnold-Chiari malformation[, ]" and osteoarthrosis. (Id. at 507)
On February 12, 2010, Wiberg returned to Dr. Thomas, reporting unchanged back pain, headaches, and sleep apnea, (id. at 526), and Dr. Thomas recommended that Wiberg undergo another sleep study, (id. at 529). Wiberg attempted to follow through with that recommendation on March 30, 2010, but "[v]ery little sleep was seen" because Wiberg "had much ...