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Webb v. Colvin

United States District Court, E.D. Wisconsin

September 20, 2016

DALE WEBB, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          William C. Griesbach, United States District Court Chief Judge.

         This is 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.


         Webb 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.

         After 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. 701.

         Webb 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.

         As for 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.

         On July 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). Id.

         On 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.

         The 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.

         The SSA 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. 39.

         The ALJ 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 repetitive tasks.

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 ...

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