United States District Court, E.D. Wisconsin
DECISION AND ORDER AFFIRMING COMMISSIONER'S
William C. Griesbach, United States District Court Chief
an action for review of the final decision of the
Commissioner of Social Security denying Plaintiff Dale
Webb's application for disability insurance benefits
under Title II of the Social Security Act. Webb challenges
the decision by the Administrative Law Judge (ALJ) denying
him benefits because the ALJ failed to follow Social Security
Administration (SSA) rulings and regulations. In particular,
Webb contends that the ALJ erred by failing to give his
treating physician's opinion controlling weight and by
improperly giving more weight to the State agency physicians.
For the reasons stated in this opinion, the
Commissioner's decision will be affirmed.
filed an application for benefits on January 30, 2012 and
alleged he became disabled on November 5, 2010. R. 202. He
listed numerous physical impairments caused by a severe
crushing injury to his lower extremities he sustained in a
workplace accident when he was caught between the bucket and
frame of a skid steer. R. 264, 378, 883. At the time, Webb
was employed as a general laborer by P. M. Concrete, Inc. R.
47. As a result of the accident, Webb sustained a pelvic
fracture, peroneal and scrotal lacerations and bilateral
femoral nerve/arterial injury. R. 265. He underwent multiple
surgeries to repair the damage. Webb required reconstruction
of both femoral arteries and a temporary colostomy. R. 432,
839. In April 2008, the colostomy was reversed. R. 459, 468.
recovering from this surgery, Webb worked four hours per day
with some lifting; however, in August 2008, he developed a
hernia requiring surgical repair with mesh. R. 474, 683. The
mesh became infected shortly thereafter and created
persistent draining sinuses. R. 676, 807. Dr. Timothy Wengert
treated the infection with antibiotics, but explained to Webb
in October 2008 that the mesh would need to be removed. Webb
was then “minimally symptomatic” and opted to do
nothing. R. 685. Webb saw Dr. Panna Varia for new work
restrictions, and on October 29, Dr. Varia concluded Webb
could temporarily return to light duty work for four hours
per day and restricted his lifting to twenty pounds. R. 687.
By December 2008, Dr. Wengert released Webb from any physical
restrictions and follow-up, but reminded Webb that the mesh
could be removed whenever he decided to have the surgery. R.
tolerated the draining sinuses caused by the infected mesh
for nearly two years before finally getting the mesh removed
in April 2010. R. 753, 757. Approximately four months after
the surgery, he was released from physical restrictions but
by October 2010, the hernia reappeared and required surgery
to insert mesh. R. 835, 839. Webb did not have surgery to
repair the hernia until December 2011. R. 767. Dr. Wengert
opined Webb was “completely disabled pending
recovery” but released Webb from restrictions and gave
him a “return-to-work slip” for February 20,
2012, two months after the surgery. R. 867, 871.
his other medical conditions, Webb developed foot drop in his
left foot. R. 788. In June 2009, Dr. Varia noted lower
extremity weakness and decreased range of motion caused by
the workplace injury. R. 786. Webb received an ankle brace
that fit in his work boot to minimize his ankle pain while
working. R. 788-89. As a result of the foot drop, he moved
slower and looked down while walking to avoid tripping. R.
49. He was also challenged with balance and walking on uneven
surfaces. R. 842.
30, 2012, as part of his workers compensation claim, Webb
sought an evaluation of his physical capabilities from Dr.
Steven Lamberson. R. 883. Dr. Lamberson last saw Webb in 2008
even though Webb was last seen in the department by Dr. Varia
in 2010. Webb indicated he had not worked in the last
eighteen months because of constant pain in his left leg and
foot. He stated walking increased his pain and sitting
increased his stiffness. Id. His left foot drop
interfered with his mobility. R. 884. Dr. Lamberson
recommended a formal functional capacity evaluation (FCE).
August 30, 2012, Tanya Schaer, an occupational therapist,
conducted Webb's FCE. R. 779. She noted that, during the
evaluation, Webb performed tasks requiring “grip
strength, bending, crouching, kneeling, crawling, twisting,
overhead reach, balance, forward flexion, pushing, pulling,
and a variety of lifting.” R. 781. She concluded Webb
demonstrated functioning at a light work level and could
safely lift twenty pounds infrequently and ten pounds
frequently. R. 781-82. Ms. Schaer limited Webb to occasional
sitting and driving, standing, walking, bending, squatting,
and climbing. R. 782. She recommended no exposure to moving
machinery or unprotected heights; avoiding wet work; and
alternating between sitting, standing, and walking.
Id. Dr. Lamberson reviewed the FCE results and added
the limitation that Webb could neither work more than four
hours a day nor work a full five-day work week. R. 886.
Ultimately, Dr. Lamberson concluded that Webb was
“totally and permanently disabled.” Id.
record also contains the opinions of two state agency
physicians who reviewed the file, but did not personally
examine Webb. Dr. Pat Chan reviewed the file on April 23,
2012, and concluded that Webb was capable of light work. R.
93, 100-01. A second state agency physician, Dr. Syd Foster,
reviewed the file on October 9, 2012, and concluded that Webb
was limited to sedentary work. R. 113-14.
denied Webb's initial application on April 23, 2012 and
on reconsideration on October 9, 2012. R. 14-15, 93. After
his application was denied upon reconsideration, Webb
requested an administrative hearing. R. 104. On December 9,
2013, ALJ William Spalo held a hearing at which Webb, who was
represented by counsel, and a vocational expert testified. R.
determined Webb was not disabled. R. 21-34. He concluded Webb
met the insured status requirements and had not engaged in
substantial gainful activity since November 5, 2010. The ALJ
found Webb had four severe impediments: “hernia (status
post surgery), history of pelvic fractures (status post
surgery), left foot drop, and obesity.” Id. At
step three, the ALJ determined that Webb's impairments
did not meet or medically equal a listing. R. 24-25. The ALJ
then determined Webb's RFC:
After careful consideration of the entire record, I find
that, through the date last insured, the claimant had the
residual functional capacity to perform less than the full
range of sedentary work as defined in 20 C.F.R. §
404.1567(a). He was precluded from climbing ladders, ropes,
or scaffolds. He was limited to occasional stooping,
crouching, and climbing ramps or stairs. He was required to
avoid concentrated exposure to extreme cold. He was required
to avoid even moderate exposure to dangerous machinery and
unprotected heights. He was limited to simple, routine, and
R. 26. With this RFC, the ALJ found Webb was unable to
perform past relevant work but could perform other jobs in
the national economy, such as production worker, general
office clerk, and food checker. R. 32-33. The ALJ's
decision became the final decision of the Commissioner when
the Appeals Council denied Webb's request for ...