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Modjewski v. Berryhill

United States District Court, E.D. Wisconsin

March 14, 2017

THOMAS MODJEWSKI, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge United States District Court

         Plaintiff Thomas Modjewski challenges the decision of the Commissioner of Social Security denying him disability benefits. He claims that the administrative law judge (ALJ) who heard the case erred in assessing the weight he accorded to the opinion of his treating physician and in assessing the pace at which he would be able to work. Finding no error and substantial evidence to support the ALJ's decision, I affirm.

         I. Background

         Plaintiff was seriously injured in a roll-over motor vehicle accident in 1999. He sustained fractured ribs, a ruptured lung, bruised liver, broken nose, broken scapula and clavicle, and spinal injuries consisting of a C-6 fracture and a T-7 compression fracture. He was working as a welder at the time of the accident, but has not been employed since. Plaintiff claims that the injuries sustained in the accident resulted in physical and mental impairments that render him disabled.

         This is actually the third time this case has been heard by an ALJ and the second occasion for judicial review. A previous application was denied by a decision issued by ALJ Senander on August 22, 2005. R. 15. Plaintiff did not seek judicial review of that decision, but he filed a second application that was heard by ALJ Joseph Jacobson in October 2008, and denied by written decision dated December 10, 2008. Plaintiff did seek judicial review of that decision, which became final when the Appeals Council denied Plaintiff's request for review. In a decision issued by Judge Randa on October 12, 2011, the Commissioner's decision was reversed and remanded. R. 411-16. The Court held that the ALJ erred in failing to cite any medical evidence to support his finding that Plaintiff's mental impairment did not meet or equal Listing 12.02 and in failing to fully account for the limitations the ALJ found Plaintiff had in concentration, persistence or pace. R. 414-15. The Court also found that the ALJ erred in mischaracterizing a March 2006 functional capacity evaluation on which he relied. R. 415.

         On remand, a new hearing was held at which Plaintiff, two medical experts and a vocational expert testified. Plaintiff testified that he currently lives at the home of his mother and father with his wife, who works third shift for Times Printing. R. 330, 333-34. On a typical day, Plaintiff testified that he wakes up at about 5:30 a.m., sits around for awhile, and then picks his wife up from work. R. 333. When he returns home, they make breakfast, and he helps with the dishes. He then more or less sits around and watches television. If the grass needs to be cut, he cuts it using a sit-down mower. Because his parents are elderly, he helps around the house, cleaning and vacuuming. He reads the newspaper on the internet. He goes deer hunting but does not climb to or hunt from a tree stand. He walks less than an eighth of a mile into the woods and sits, stands or leans against a tree. R. 335-37. Although his doctors encourage him to exercise, Plaintiff testified that he can only walk about ten minutes before his back starts aching “real bad.” R. 337. The only way he can get relief is to lie down, but even that doesn't take the pain away. He has less trouble sitting than standing. His doctor has given him a prescription for Vicodin which he takes only when he absolutely needs it, which is not every day. R. 338-39. Plaintiff testified that he slept “maybe four or five hours a night, ” which is the same as when he was working. R. 345.

         The record also reflected Plaintiff suffered a heart attack and had stents inserted to relieve blockage in October 2011. He was diagnosed with ongoing coronary artery disease following the incident, but was being treated with medication. Plaintiff testified that, other than occasional shortness of breath, he had fully recovered and his blood pressure was “always perfect.” R. 350.

         With respect to mental health issues, Plaintiff testified that he had a neuropsychological evaluation in 2008, but had not received any treatment. He testified that he gets frequent headaches that “hurt so bad sometimes I can't concentrate.” R. 348. He denied any side effects from his medication. R. 349.

         Two medical experts also testified at the hearing. Dr. Malcolm A. Brahms, who is board certified in Orthopaedics, opined after listening to Plaintiff's testimony and based on his review of the entire medical record that Plaintiff was capable of performing light work, should avoid ladders, ropes, and scaffolds, and his range of motion should be limited between his waist and his shoulder, avoiding overhead work, with only occasional kneeling, stooping and crawling. Because of the carpal tunnel symptoms, Dr. Brahms also concluded the fine manipulation should only be done occasionally and not repetitively. R. 377-78.

         The second medical expert who testified was Dr. Timothy Lynch, a psychologist, who had likewise reviewed the entire file and listened to Plaintiff's testimony. Dr. Lynch testified that in his opinion, Plaintiff had no severe mental health impairments, and thus there were no limitations to add to his RFC. R. 380-81. In response to questioning by Plaintiff's counsel, Dr. Lynch carefully reviewed the results of the tests administered by Dr. Sarah R. Kortenkamp as part of her neuropsychological evaluation and noted that they were almost in their entirety within normal limits. R. 382-85.

         Based on the testimony at the hearing and the entire record, including the medical evidence which will be discussed in more detail below, the ALJ found that Plaintiff had the following severe impairments: disorders of the spine with residual headaches; status post rib fracture; status post head injury; coronary artery disease status post myocardial infarction; carpal tunnel syndrome; and obesity. The ALJ further found that none of Plaintiff's impairments met or medically equaled a listed impairment as described in 20 C.F.R. Part 404, Subpart P, Appendix 1, and that he has the RFC to perform light work that allows him to alternate between sitting and standing at will, requires no more than occasional performance of fine manipulation tasks with his non-dominant left hand, overhead reaching with his left upper extremity, stooping kneeling, crouching, crawling, balancing, stooping, or climbing of ramps and stairs, and no climbing of ladders, ropes, or scaffolding. As an additional limitation due to pain, the ALJ found that Plaintiff was unable to maintain the concentration necessary to perform detailed or complex tasks. Though unable to perform his past work as a welder, the ALJ found that Plaintiff was able to perform other jobs, such as cashier, office helper, or industrial inspector, and thus was not disabled. R. 288-98.

         II. Analysis

         In reviewing a decision of an ALJ on a claim for Social Security disability benefits, this court may not reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute its own judgment for that of the Commissioner of Social Security; rather, the court's task is limited to determining whether the ALJ's factual findings are supported by substantial evidence. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”) Despite the deference accorded to the ALJ, however, a reviewing court must not “simply rubber-stamp the Commissioner's decision without a critical review of the evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). The Commissioner's decision cannot stand if the ALJ fails to build a logical bridge from the evidence to his conclusion. Green v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000). While the ALJ need not provide a “complete written evaluation of every piece of testimony and evidence, ” Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995), his decision must reflect a fair assessment of evidence and be free of fatal gaps and contradictions. Johnson v. Apfel, 189 F.3d 561, 563 (7th Cir. 1989). Still, a reviewing court must “give the opinion a commonsensical reading rather than nitpicking at it.” Id. at 564.

         A. ...


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