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Wedlow v. Colvin

United States District Court, E.D. Wisconsin

August 4, 2016

ROY E. WEDLOW, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration Defendant.

          Roy E Wedlow, Plaintiff, represented by Barry A. Schultz, The Law Offices of Barry A. Schultz PC.

          Carolyn W Colvin, Defendant, represented by Brian E. Pawlak, United States Department of Justice & Susana Ochoa, United States Social Security Administration.


          LYNN ADELMAN, District Judge.

         Plaintiff Roy Wedlow applied for social security disability benefits, but the Administrative Law Judge ("ALJ") assigned to the case concluded that despite his impairments plaintiff retained the capacity for sedentary work. Plaintiff now seeks judicial review. 42 U.S.C. §§ 405(g) & 1383(c). For the reasons that follow, I affirm the ALJ's decision.


         A. Summary of the Case

         Forty-six years old at the time of his hearing before the ALJ, plaintiff alleged that he became disabled from work as of September 15, 2011, due to back and leg pain, arthritis in the hands, gout, sleep apnea, and obesity. He reported past employment as a delivery driver from 1995 to 2008 and as a sanitation worker from April to August 2011, both physically demanding jobs. He supported his application with a report from Dr. Ian Gilson, his primary physician, endorsing severe limitations in plaintiff's ability to stand, walk, sit, and lift, such that he could not maintain any full-time employment. The ALJ concluded that while plaintiff's impairments prevented him from performing his past work, he could, contrary to Dr. Gilson's assessment, perform less demanding jobs. I first summarize the medical evidence in the record, then the administrative proceedings before the agency, before turning to plaintiff's specific assignments of error.

         B. Medical Evidence

         On July 1, 2011, plaintiff saw a nurse at Milwaukee Health Services, complaining of pain to the entire body. He indicated that he had gone to the hospital and was told he could possibly have rheumatoid arthritis.[1] He stated that he had to take Ibuprofen to take some of the pain away. (Tr. at 282.)

         On October 4, 2011, plaintiff saw Mark Behar, PA-C, at Milwaukee Health Services, complaining of pain in his hands, joints, low back, and right great toe; left arm weakness; muscle burning; skin dryness; and difficulty sleeping. Because he was uninsured, he could not afford to see specialists to further evaluate possible obstructive sleep apnea and scalp keloids.[2] He also reported lower extremity edema, as well as a weight gain of 12 pounds in the last few months, requesting a referral to a nutritionist. (Tr. at 278.) On exam, he was non-tender to palpation aside from the bilateral calves. He did have an exquisitely tender right great toe and edema of the bilateral lower extremities. PA Behar attributed the toe pain to gout, prescribing Indocin.[3] He further assessed insomnia, probably secondary to obstructive sleep apnea. For lower extremity edema, he prescribed Lasix.[2] And for weight gain and obesity, he referred plaintiff to a nutritionist.[3] Plaintiff had discontinued his previous prescription for Naprosyn because he could not afford it.[4] (Tr. at 279.)

         On November 13, 2011, plaintiff went to the emergency department at Froedtert Hospital in Milwaukee with shortness of breath, fatigue, and swelling in the right leg. He also reported waking at night with rapid heart beat and back pain. (Tr. at 390.) On exam, he displayed normal heart sounds, normal breath sounds, normal range of motion, and normal gait. (Tr. at 392.) Doctors found his symptoms likely due to sleep apnea. However, he could not get a sleep study due to lack of insurance. It was recommended he contact his primary doctor. (Tr. at 393.) Doctors diagnosed shortness of breath and back pain, providing Vicodin. (Tr. at 410.)

         On January 13, 2012, plaintiff saw Dr. Gilson to establish care. (Tr. at 309-10.) He complained of gout, with active flare in the right foot. He reported gaining 70 pounds in 2011 and found it hard to exercise because of joint and back pain. He also reported dyspnea with exertion. He further reported sleep apnea but had not undergone a sleep study because he could not afford it. He also reported arthritis in the hands, hips, ankles, toes, and left shoulder, and complained of low back and bilateral leg pain when he walked, put on socks, and lied supine. (Tr. at 310.) He stood 5'6-½" and weighed 331 pounds, for a BMI of 52.6.[5] (Tr. at 311-12.) On exam, Dr. Gilson noted bilateral pre-tibial edema; tenderness to palpation of the bilateral PIPs and DIPs of both hands;[6] and tenderness to palpation of the right 1st MTP without erythema or swelling.[7] Plaintiff was able to flex the lumber spine without pain in the back and legs, and his gait and coordination were intact. He had multiple keloids on the scalp. (Tr. at 312.) Dr. Gilson assessed spinal stenosis, lumbar region, with neurogenic claudication, questionable in view of the inability to induce pain with retroflexion.[8] It was unclear if plaintiff actually had gout. Plaintiff's hypertension was controlled. Dr. Gilson also suspected sleep apnea based on the observations of a relative and daytime drowsiness. He assessed psoriasis, likely the cause of plaintiff's scalp lesions. He instructed plaintiff to resume Amlodipine, a blood pressure medication;[9] Furosemide, a water pill;[10] and Indomethacin (Indocin); to continue Allopurinol, used to treat gout;[11] and to undergo a sleep study and lumbar MRI. He also made dermatology and rheumatology referrals, and advised plaintiff to try to exercise as best he could. (Tr. at 314-15.)

         On January 16, 2012, plaintiff underwent a sleep study (Tr. at 426), which revealed moderate obstructive sleep apnea that had a positional component, with CPAP titration unsuccessful due to prolonged awakening.[12] He was to return to the sleep lab for CPAP titration after a period of habituation and desensitization to the mask and CPAP treatment. (Tr. at 459.) A January 18, 2012, lumbar MRI showed enlarged vessels in the ventral epidural space, diffuse canal narrowing with mild epidural lipomatosis, [13] and mild degenerative disc disease at L4-L5. (Tr. at 334.)

         On January 27, 2012, plaintiff returned to Dr. Gilson, complaining of low back pain radiating to the legs, which limited ambulation. He also reported gout, which had flared four times in the last two weeks, for which he was on Allopurinol. (Tr. at 307.) Dr. Gilson also noted hypertension, controlled on medication; obesity; edema; and sleep apnea diagnosed on polysomnogram. Plaintiff could not sleep with the CPAP on; he was told to get used to it then return for titration. He had not yet been seen by a rheumatologist regarding polyarthritis. (Tr. at 308.) Dr. Gilson assessed hypertension, controlled; sleep apnea; gout; back pain, cause unclear; and dyspnea on exertion related to obesity. He increased Allopurinol, told plaintiff to take Ibuprofen for gout or low back pain, advised use of the CPAP machine for habituation then a return to the sleep lab for titration, and made a rheumatology referral. (Tr. at 309.)

         On February 3, 2012, plaintiff saw Kathryn Kiehn, M.D., at the request of Dr. Gilson, for evaluation of joint pains. Plaintiff reported being diagnosed with gout in 2007, which resolved after three weeks, then returned in 2009, constant since then. He was taking Allopurinol and Indomethacin. Plaintiff also reported more diffuse pains since April 2010 in his hands, wrists, shoulders, hips, and back. He also reported a burning type pain in the muscles at times, but no weakness. The back pain was in the low back, worse with standing and walking and better with sitting or bending over. He had gained a substantial amount of weight because of inactivity due to his pain levels. He also likely had psoriasis and was scheduled to see dermatology on February 7. (Tr. at 303.) On exam, plaintiff had multiple keloids on the scalp. On musculoskeletal exam, he had normal range of motion, no swelling, no redness, and no tenderness except for tenderness to palpation of multiple joints without synovitis noted. He had no localized SI joint pain but rather diffuse lower back pain to palpation. (Tr. at 305.) Dr. Kiehn was uncertain of the gout diagnosis, as there was not really a flare like description but more constant pain. Dr. Kiehn ordered hand, feet, and hip x-rays, and continued Allopurinol. (Tr. at 307.) X-rays taken on February 7, 2012, showed bilateral flat feet, right first metatarsophalangeal narrowing with dorsal osteophyte formation, minimal distal interphalangeal osteoarthritis in the hands, and normal hips. (Tr. at 337.)

         On February 7, 2012, plaintiff saw Helen Kuzma, PA-C, for scalp rash and hair loss. (Tr. at 300.) PA Kuzma assessed infected keloidal papules, starting Keflex.[14] (Tr. at 302.)

         On February 10, 2012, plaintiff returned to Dr. Kiehn, who reviewed the radiology reports of plaintiff's feet, hands, and hips, with no inflammatory findings identified. An MRI of the lumbar spine showed enlarged vessels in the ventral epidural space of the lumbar spine contributing to compression of the thecal sac. (Tr. at 298.) Dr. Kiehn suggested a neurosurgery or orthopedic evaluation given plaintiff's description of spinal stenosis type symptoms. He was to call with any acute joint flares and in the meantime stay on Allopurinol. (Tr. at 299.)

         On February 16, 2012, plaintiff saw Dennis Maiman, M.D., Ph.D., for evaluation of his ongoing back and leg pain. Plaintiff reported the pain had a dramatic effect on his life. However, he denied any motor weakness, bowel or bladder complaints. He had recently started stretching exercises, which had improved him significantly. His health history was significant for morbid obesity, sleep apnea, hypothyroidism, and hypertension. On exam, his gait was mildly antalgic, lumbar range of motion decreased in flexion and extension with severe paravertebral spasm, straight leg raise was negative bilaterally, motor examination was unremarkable, and sensory exam revealed decreased touch in the L5 and S1 distribution on the right. An MRI scan showed a considerable degree of epidural lipomatosis, but in addition some congenital stenosis and degenerative changes. It also showed an unusual collection of vessels behind L5, which could be an "AVM."[15] However, Dr. Maiman did not think it worth exploring at the time. Rather, he believed that plaintiff's symptomatology predominantly related to epidural lipomatosis. He advised plaintiff "in the strongest terms possible that he needs to lose a considerable amount of weight and start a rehabilitation program." (Tr. at 295.) Plaintiff was to go to physical therapy and work on weight reduction, following up in three months. (Tr. at 295.) Dr. Maiman advised him to "maintain or resume normal activities ASAP" and "advised against bedrest." (Tr. at 296.)

         On February 17, 2012, plaintiff returned to Dr. Gilson, indicating that he had a CPAP for two days but felt the same. He had seen a rheumatologist and possibly had gout, unlikely psoriatic arthritis. Hand films showed mild osteoarthritis. He had also seen Dr. Maiman, who recommended more physical therapy and weight loss. Plaintiff reported his low back pain was so severe he could barely stand it, rating the pain at over 10. He was unable to do daily chores and found it hard to dress. In the past, he had no benefit from Oxycodone or Vicodin. Dr. Gilson assessed severe chronic low back pain - candidate for opiate therapy, probable gout, sleep apnea, and hypertension - well controlled. (Tr. at 297.)

         On February 28, 2012, plaintiff saw Anne Kennedy for a physical therapy evaluation, on referral from Dr. Maiman. He complained of back pain with some radiation into the right lateral thigh. He occasionally had some weakness/pain in the left hip but mainly pain in the right thigh. He also reported gaining a significant amount of weight since September 2011. He reported that the pain significantly worsened since September 2011. He rated the pain 5/10 at best, 10/10 at worst. The pain was daily, continuous. He reported that he could stand for just five minutes, walk 1/4 block; he also reported difficulty dressing in the morning. The pain eased with sitting or lying down. (Tr. at 316.) He reported moderate impairment with bathing/dressing, lifting, and stairs, and severe impairment with standing and walking. On observation, he had mild difficulty transitioning from sitting to standing and mildly antagic gait. His displayed some tenderness to palpation in the lumbar area. (Tr. at 317.) Straight leg raise testing was negative bilaterally. He was to return twice per week for the next six weeks. (Tr. at 318.)

         On March 8, 2012, plaintiff saw Julie Wain for physical therapy, arriving five minutes late. He rated the pain in his low back as 10/10. His gait was antalgic with limping on the right. He reported standing and walking tolerance at five minutes maximum. He reported falling two weeks ago, which he forgot to tell the therapist last time. He asked about a cane for ambulation secondary to leg pain. (Tr. at 315.)

         The record does not include subsequent physical therapy notes or other records from treating providers. Rather, the balance of the medical evidence consists of emergency room records and Dr. Gilson's report dated March 2014.

         On June 28, 2013, defendant went to the emergency room of a Gary, Indiana hospital, having recently moved from Wisconsin, with right flank pain radiating to the abdomen. (Tr. at 467-69, 473.) He reported he never had this kind of pain before. (Tr. at 469.) On exam, he had normal range of motion. (Tr. at 470.) Plaintiff used a cane to ambulate, was independent with activities of daily living, but needed some assistance with the lower body. (Tr. at 480.) Doctors suspected a kidney stone, but a CT scan of the abdomen was unremarkable except for a small hiatal hernia. (Tr. at 476, 489.) Labs were all reassuring. Plaintiff was admitted for observation and pain control (Tr. at 471), doing well and discharging home on June 30, 2013 in stable condition (Tr. at 479, 485).

         On September 19, 2013, plaintiff went to the emergency department at Froedtert Hospital in Milwaukee, complaining of headache and tooth pain. (Tr. at 829, 834.) Musculoskeletal and neurological exams were normal. He was given a dental block injection (Tr. at 837) and discharged home on September 20, 2013 (Tr. at 840).

         On January 31, 2014, plaintiff went to the emergency department at Froedtert, complaining of back pain and racing heart. (Tr. at 787, 792.) He denied numbness, tingling, or loss of bladder function, but indicated he felt weaker due to the pain. He took Vicodin with no relief. He reported moving the previous day, which involved bending over and packing things. He also stated he ran out of Vicodin yesterday. (Tr. at 792.) On exam, he had normal range of motion, normal gait, normal strength, and normal sensation to light touch. (Tr. at 795.) Given the reassuring exam, doctors did not feel emergency MRI or CT scans were warranted. His pain was likely made worse from lifting boxes and running out of narcotics. His pain was controlled with IV dilaudid. (Tr. at 795.) He ambulated out of the emergency department in stable condition (Tr. at 796) with a prescription for Oxycodone (Tr. at 799).

         The following day, plaintiff returned to the emergency department at Froedtert, complaining of back pain. (Tr. at 768.) He had been given Oxycodone for pain management the previous day but did not get it filled because it was "not free." (Tr. at 770.) He reported that he had been packing and moving boxes this week but denied any injury. (Tr. at 775.) On exam, he was able to raise both legs off the bed without increased back pain. He also displayed normal sensation to touch in both legs. His gait was normal. (Tr. at 773.) He received two doses of dilaudid with relief of some of the pain. The doctors believed the paresthesias he was having in both legs were not related to central spinal compression, as he had full strength and could differentiate soft touch from sharp touch.[16] He was discharged home in stable condition and would get the Oxycodone prescription filled. (Tr. at 773.) He was advised to avoid lifting above 10 pounds, twisting, and prolonged sitting. (Tr. at 776.)

         On February 16, 2014, plaintiff again went to the emergency department at Froedtert, this time complaining of chest tightness, shortness of breath, and vertigo. (Tr. at 546, 548.) He reported that he was not using his sleep apnea machine, but this did not feel like his typical sleep apnea awakenings. He was able to get up and walk to the bathroom and his vertigo improved, but the shortness of breath and chest tightness persisted. (Tr. at 548.) Defendant was pain free after nitro but was admitted for a cardiac work-up (Tr. at 552), which ruled out acute coronary syndrome (Tr. at 556). He was discharged on February 18, 2014, with diagnoses of obstructive sleep apnea, bronchospasm, and drug-induced atrial fibrilation, resolved, and recommendations of weight loss and appropriate treatment of sleep apnea. (Tr. at 556.) He was told to resume medications, use the CPAP machine every night, and use the pool for exercise and work on weight loss. (Tr. at 557.)

         On March 14, 2014, Dr. Gilson completed a medical assessment report, listing diagnoses of spinal stenosis, epidural lipomatosis, and polyarthritis, with a guarded prognosis. (Tr. at 539.) Dr. Gilson listed symptoms of chronic pain, chronic fatigue, and paresthesia, which were severe enough to interfere with the attention and concentration necessary to perform simple work tasks. Plaintiff took Ibuprofen and Oxycodone, which produced no medication side effects. Dr. Gilson opined that plaintiff could continuously stand for 0.1 hours, walk minimally, and sit for 0.5 hours; in an eight-hour workday, plaintiff could stand 0.1 hours, walk 0.1 hours, and sit for three hours. (Tr. at 539.) Dr. Gilson further opined that plaintiff could not get through an eight-hour workday without lying down; that he could never lift and carry any amount of weight; that his ability to use his hands and feet was limited due to a weak grip, hand pain, and foot pain; and that he could never work above the shoulder, bend at the waist, twist/turn, squat, or climb. Finally, Dr. Gilson opined that plaintiff would miss three or more days per month due to his impairments. (Tr. at 540.)

         C. Administrative Proceedings

         1. Plaintiff's Application and Supporting Materials

         On February 23, 2012, plaintiff applied for supplemental security income and disability insurance benefits, alleging a disability onset date of September 15, 2011. (Tr. at 198, 207.) In his disability report, plaintiff alleged that he could not work due to back pain, right leg/hip numbness/pain, arthritis in the hands, gout, and sleep apnea. (Tr. at 231.) He reported standing 5'6" tall and weighing 317 pounds. (Tr. at 231.) Plaintiff indicated that he last worked August 23, 2011, when he was laid off. (Tr. at 231.) He reported working for DHL Express from 1995 to 2008, and for the City of Milwaukee sanitation department from April 1, 2011 to August 23, 2011. (Tr. at 232.)

         In a function report, plaintiff indicated that his condition limited his ability to lead a normal life. Back pain prevented him from doing most normal movements and chores. (Tr. at 241.) He reported that he could stand for just five minutes at a time and would need to go to school to learn a job that would allow him to sit all day or work from home. (Tr. at 241-42.) He further reported minimal daily activities and difficulty dressing, bathing, and using the toilet. (Tr. at 243.) He reported making simple meals because he could not stand for long. The pain made household chores difficult and prevented any outside work. (Tr. at 244.) Someone else usually shopped for him. (Tr. at 245.) He reported hobbies of reading and watching TV. He talked on the phone with friends daily and tried to go to church once per week. (Tr. at 246.) He estimated that he could lift "not much at all, " walk less than 40 feet, and stand no more than five minutes. (Tr. at 247.) In a physical activities addendum, plaintiff indicated that he could continuously sit for two hours, stand for five minutes, and walk for three to five minutes; during an eight hour day, he could sit for two hours or more, stand for five minutes, and walk for three to five minutes. (Tr. at 250.)

         The Social Security Administration denied plaintiff's applications initially on March 26, 2012 (Tr. at 94-95, 135), relying on the assessment of agency reviewing physician Syd Foster, M.D., who opined that plaintiff could perform sedentary work (lifting up to 10 pounds, standing about two hours per workday, and sitting about six hours per workday), with occasional balancing, stooping, and crouching, and fingering and handling limited to frequent but not constant (Tr. at 101-02, 110-11). Plaintiff requested reconsideration, but on August 1, 2012, the agency maintained the denial (Tr. at 114-15, 140), this time relying on the assessment of George Walcott, M.D., that plaintiff could perform sedentary work with no additional postural, manipulative, or other limitations (Tr. at 121-22, 130-31). Plaintiff then requested a hearing before an ALJ. (Tr. at 158.)

         2. Hearing

         On March 31, 2014, plaintiff appeared with counsel for his hearing before the ALJ. (Tr. at 48.) The ALJ also summoned a vocational expert ("VE") to the hearing.

         a. Plaintiff

         Plaintiff testified that he was 46 years old, with a 12th grade education. (Tr. at 51.) He stood 5'6" tall and weighed 355 pounds, up about 100 pounds over the last couple years. (Tr. at 52.) He testified that he last worked in August 2011 and alleged a disability onset date of September 15, 2011. (Tr. at 52.) He indicated that on the onset date he was laying down, went to get up, and felt horrible pain in his back and left side of his body, such that he had to roll out of bed. (Tr. at 52-53.)

         Plaintiff related past employment as a courier, delivering packages weighing up to 100 pounds, and as a seasonal sanitation worker, which also required heavy lifting. (Tr. at 53-54.) He stopped working as a courier in 2008 when he and 90% of his co-workers were laid off. (Tr. at 76.) For about five months in 2011 he worked for the city sanitation department (Tr. at 76-77); that job ended because it was seasonal (Tr. at 77-78). He collected unemployment in late 2011 and through 2012. (Tr. at 78.)

         Plaintiff testified to a variety of medical conditions limiting his ability to work. (Tr. at 54.) He related cellulitis on his scalp, which caused itching, bleeding, and headaches. (Tr. at 54-55.) He also related a problem with his left shoulder, his dominant side, limiting his ability to reach or lift overhead. (Tr. at 56.) He had also been diagnosed with an AVM in the lumbar region, which limited his activities. (Tr. at 57.) He always had back pain, which he rated at 7 on a 0-10 scale on a good day, 10 on a bad day. The pain radiated from his low back to his hips and legs. (Tr. at 58.) The back pain caused urinary incontinence. He also related urinating no less than 15 times throughout the night, from 12:00 to 6:00 in the morning. (Tr. at 59.) Plaintiff further related edema in the legs, for which he took water pills. (Tr. at 60.) His feet also swelled, even with the pills. (Tr, at 60-61.) He also had gout, which manifested in his right big toe, causing horrible pain. (Tr. at 61.) He testified that the gout caused daily pain, with flare-ups four to five times per month, lasting from one to three days, where he could not even put a sheet on his foot. (Tr. at 61-62.) He took medication, which relieved the pain a little bit. (Tr. at 62.)

         Plaintiff testified that he got little sleep at night, about three hours, waking frequently due to pain or the need to urinate. (Tr. at 62, 84.) He used a CPAP machine for sleep apnea, which did not help much. (Tr. at 63.) He often slept sitting up and never felt refreshed in the morning. (Tr. at 64-65.) He fell asleep two to three times per day if sitting. (Tr. at 65.) On a typical day, he laid down for about three hours due to pain, fatigue, and shortness of breath. (Tr. at 66.) He slept about three hours during the day. (Tr. at 84-85.)

         Plaintiff testified that he currently lived with a friend, previously with his brother, due to lack of income. (Tr. at 66-67.) His friend did the chores around the house. Plaintiff shopped every once in awhile, using a motorized cart. (Tr. at 67.) He was able to make a simple meal, like a sandwich, but he did not help much at all around the house. Plaintiff testified that he did not drive due to pain in his hands and trouble getting into a vehicle. (Tr. at 68.) He had used a cane for two years. (Tr. at 69.) Plaintiff testified to increased trouble breathing in cold weather. (Tr. at 69.)[17] He also had a spur on his left heel, as well as a plantar fascia tear. (Tr. at 70.)

         Plaintiff explained that he did not have surgery on his back due to a risk of paralysis and hemorrhaging related by Dr. Maiman. Plaintiff testified that Dr. Maiman told him "you'll never be ...

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