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Sitter v. Berryhill

United States District Court, E.D. Wisconsin

May 17, 2017

MARK D. SITTER Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         In this action for judicial review, plaintiff Mark Sitter contends that the Social Security Administration (“SSA”) improperly denied his application for disability benefits. Specifically, he contends that the Administrative Law Judge (“ALJ”) who heard the case overlooked important medical evidence, failed to develop a full and fair record, did not build an accurate and logical bridge from the evidence to his conclusions, and relied on flawed vocational testimony regarding jobs plaintiff could still perform. I agree that the matter must be remanded given apparent flaws in the vocational evidence.

         I. FACTS AND BACKGROUND

         A. Medical Evidence

         Plaintiff based his disability claim on injuries to his right ankle and right shoulder suffered while working in a grocery store warehouse, as well as some residual cognitive issues that arose after one of his shoulder surgeries. I first review the medical evidence, then the administrative proceedings in the case.

         1. Ankle

         On October 16, 2003, plaintiff suffered a crush injury to his right ankle. The fracture was treated with an open reduction/internal fixation (“ORIF”), but he continued to experience some residual effects. Plaintiff saw Dr. Armen Kelikian on August 30, 2005, complaining of ankle pain and sensory deficit. (Tr. at 353.) Dr. Kelikian obtained a CT scan, which revealed synastosis from the original injury.[1] (Tr. at 353-54.) Dr. Kelikian recommended arthroscopic surgery, which was performed on January 10, 2007. Plaintiff's post-operative course was unremarkable. He returned to Dr. Kelikian on October 21, 2008, with x-rays showing some mild joint space narrowing; Dr. Kelikian advised that he may need the plate removed. On February 3, 2009, plaintiff underwent arthroscopic surgery, with hardware removal and debridement. His post-operative course was again unremarkable. On July 7, 2009, Dr. Kelikian reported that plaintiff had reached maximum medical improvement following the February surgery. His gait was unremarkable, and he had returned to work. Dr. Kelikian suspected that plaintiff might need future arthroscopic surgery, but he did not anticipate a major reconstructive procedure. (Tr. at 354.) Dr. Kelikian noted that plaintiff had no permanency or restrictions at that point. (Tr. at 352.)[2]

         On February 2, 2010, plaintiff returned to Dr. Kelikian, noting some increasing soreness in his right ankle more recently, since about Christmas. On exam, he had full range of motion, and x-rays showed no significant interval change. Dr. Kelikian recommended plaintiff take non- steroidal anti-inflammatory drugs (“NSAIDs”) and provided an ankle sleeve; if the ankle did not improve, he would provide an injection. (Tr. at 349.) On March 9, plaintiff still had some discomfort in the right ankle. X-rays showed minimal arthritic changes. He was to return in two months, perhaps for an injection, and continue on Flector patches.[3] (Tr. at 348.) On May 11, Dr. Kelikian found plaintiff to be doing well, with minimal discomfort. He recommended Voltaren gel.[4] If the pain did not improve, he would provide an injection. (Tr. at 347.) On May 11, 2011, Dr. Kelikian injected plaintiff's right ankle. He recommended no further surgery. (Tr. at 346.)

         The record also contains reports from a Dr. George Holmes, who evaluated plaintiff's ankle injury for the workers' compensation insurance carrier. (Tr. at 362-80.) In December 2011, Dr. Holmes noted that while plaintiff continued to have some mild pain and sensitivity, overall he was doing well, working full-time, discharged from the care of Dr. Kelikian. He had some limitations, only being able to walk three to four hours at a time and stand for three to four hours at a time; he took Tylenol on an as-needed basis. (Tr. at 362.) Dr. Holmes opined that plaintiff needed no further medical care for his right ankle (Tr. at 363) and saw no objective reason why plaintiff could not work 40, 50, or 60 hours per week (Tr. at 367).

         2. Shoulder

         On February 8, 2012, plaintiff injured his right shoulder at work while lifting boxes over shoulder height, feeling a sharp pop or pull. Therapy did not improve his condition so he saw Dr. Joshua Gershtenson, an orthopedic surgeon, on March 14, 2012. Plaintiff reported increased pain from lifting his arm forward, alleviated by disuse. An MRI showed a full thickness tear at the supraspinatus with retraction to the articular surface. (Tr. at 384.) Dr. Gershtenson assessed a work-related right rotator cuff tear and biceps tenosynovitis, recommending surgery. Until then, plaintiff was to remain on light duty with a 10 pound lifting restriction. Dr. Gershtenson saw no evidence of malingering during the course of the evaluation. (Tr. at 383.)

         On April 19, 2012, Dr. Gershtenson performed a right shoulder arthroscopy with subacromial decompression and rotator cuff repair. (Tr. at 654-57.) On May 2, plaintiff returned for follow-up, describing aching more than actual pain. On exam, he had mild swelling. He denied the need for pain medication. Dr. Gershtenson kept him off work until seen again on one months' time. (Tr. at 381.) On May 30, Dr. Gershtenson noted improved range of motion on exam, but still significantly limited, along with obvious strength deficits. (Tr. at 645.)

         Plaintiff subsequently participated in physical therapy but improved little, with continued difficulty sleeping, showering and dressing, reaching to shoulder height and above, and lifting objects secondary to pain. (Tr. at 476, 512, 521.) On July 18, 2012, Dr. Gershtenson noted active forward elevation to less than 90 degrees. He assessed a poor early outcome following the rotator cuff repair and arthrofibrosis.[5] Given his lack of progress, Dr. Gershtenson recommended a right shoulder manipulation under anesthesia (Tr. at 643), which he performed on July 26 (Tr. at 809), after which therapy resumed (Tr. at 522, 533, 546.) On August 8, Dr. Gershtenson noted significant improvement in range of motion; plaintiff was to continue in physical therapy and remain off work. (Tr. at 641.) On August 29, Dr. Gershtenson indicated plaintiff was coming along slowly but surely. He kept plaintiff off work given the long drive required. (Tr. at 710.) In September 2012, plaintiff advised his therapist of some improvement following the manipulation but not as much as expected; he continued to have trouble reaching overhead. (Tr. at 626, 667.)

         A September 19, 2012, occupational assessment showed bilateral lifting of 20 pounds, frequent bilateral lifting of 16 pounds, and bilateral shoulder lifting of 16 pounds. Plaintiff demonstrated the ability to perform 44.3% of the physical demands of his job in the warehouse. His abilities at that time fell within the light range under the Dictionary of Occupational Titles (“DOT”). (Tr. at 663.)

         On September 26, 2012, plaintiff returned to Dr. Gershtenson, reporting increasing range of motion and decreasing pain. He did describe a catching or clicking sensation in the shoulder. On exam, his range of motion was markedly improved compared to his pre-manipulation status. There was still crepitation with internal and external rotation of the shoulder, [6] but his strength deficits were improving. Dr. Gershtenson suggested range of motion and strengthening exercises; if not improved in four weeks time, they would obtain an MR arthrogram. In terms of work, Dr. Gershtenson did not believe it wise for plaintiff to be driving several hours a day to and from work. Therefore, he recommended plaintiff stay off work until the next visit. Dr. Gershtenson also refilled plaintiff's pain medication, which he continued to take several times per day. (Tr. at 700.)

         During an October 9, 2012, physical therapy evaluation, plaintiff reported 50% improvement since his April 19, 2012 surgery. He continued to have difficulty reaching to high shelves and pushing with his right arm. (Tr. at 722.)

         An October 18, 2012, right shoulder arthrogram revealed a full thickness tear of the supraspinatus tendon with retraction, partial thickness tearing along the bursal surface of the distal infraspinatus tendon, surgical changes from a biceps tenodesis, and mild ostreoarthritis changes of the glenohumeral joint. (Tr. at 804.) On October 24, plaintiff advised Dr. Gershtenson of slight improvement since the last visit. He continued to have pain with activities above shoulder height. Physical exam was not markedly changed except in terms of motion. He continued to have crepitation with internal and external rotation. Review of the MRI showed that the partial repair of the supraspinatus had failed. (Tr. at 706, 714.) Dr. Gershtenson recommended continued therapy; in the meantime, he would discuss the case with one of his partners and get another opinion in terms of whether a repeated attempt at rotator cuff repair was indicated. He did not think plaintiff could return to his past job. (Tr. at 706.)

         An October 24, 2012, occupational assessment showed bilateral lifting of 30 pounds, frequent bilateral lifting of 16 pounds, and bilateral shoulder lifting of 20 pounds. Plaintiff demonstrated the ability to perform 53.4% of the physical demands of his job in the warehouse, an increase from 44.3% at the September 12, 2012 evaluation. His abilities fell within the light range under the DOT, while his job in the warehouse was classified as heavy. (Tr. at 719.) A November 20, 2012, occupational assessment showed bilateral lifting of 40 pounds, frequent bilateral lifting of 30 pounds, and bilateral shoulder lifting of 25 pounds. At that point, plaintiff demonstrated the ability to perform 69.1% of the physical demands of his job in the warehouse. (Tr. at 717.)

         On November 21, 2012, plaintiff advised Dr. Gershtenson of increasing range of motion; however, he still described strength deficits. Physical exam showed his active range of motion to be near full, but there was still some crepitation with forward elevation. Strength testing showed mild diminished abductor strength, as well as internal rotation strength deficits. Dr. Gershtenson indicated that further attempts at repair of the supraspinatus were likely to be unsuccessful and recommended plaintiff obtain a second opinion outside his group. (Tr. at 704.)

         In December 2012, plaintiff advised his therapist of 55% improvement since the April 19, 2012 surgery. He continued to have difficulty reaching overhead, lifting and carrying, and pushing open a heavy door. (Tr. at 828.) In January 2013, he advised the therapist of 60% improvement. Right shoulder weakness continued as his main complaint. (Tr. at 839, 848, 857.)

         On January 2, 2013, plaintiff saw Dr. William Pennington for a second opinion. On exam, rotator cuff strength with forward flexion and abduction was limited due to pain and weakness. There was tenderness over the anterior superior shoulder region and positive impingement signs. The remaining limbs revealed full range of motion, adequate strength, and no sign of neurovascular compromise. Cervical and lumbar spine evaluation also revealed full range of motion, normal alignment, and no radicular provocation signs. The updated MRI revealed a large tear of the supraspinatus as well as a portion of the infraspinatus with retraction. (Tr. at 815.) Dr. Pennington presented options of continued conservative care to try to maximize the shoulder versus performing an attempted revision of the rotator cuff tear. He noted that the tear was large and the tissue quite “wispy, ” which likely contributed to the original repair not healing. (Tr. at 816.)

         On February 13, 2013, plaintiff advised his therapist of 65% improvement. He continued to have difficulty with overhead and out to the side reaching. (Tr. at 868.)

         On February 22, 2013, Dr. Pennington performed a right shoulder arthroscopy with rotator cuff repair. (Tr. at 881.) On March 1, plaintiff was seen by Joann Pitton, P.A.-C, for follow up, complaining of some discomfort, managed appropriately by analgesics. On exam, passive motion was appropriately stiff. He was instructed to avoid active motion of the shoulder. (Tr. at 812.)

         In July 2013, plaintiff returned to physical therapy. (Tr. at 1206.) On August 21, he saw Dr. Pennington and Brian Bartz, P.A.-C, complaining of some slightly increased pain during work conditioning. On exam, passive motion was smooth. He did have loss of internal and external rotation. Forward flexion and abduction strength were mildly reduced from the prior exam as well. X-rays showed evidence of some inferior humeral remodeling and narrowing of the glenohumeral space with no obvious bony changes surrounding the rotator cuff repair. He was to continue in work hardening. If he failed to notice any benefit with anti-inflammatories and continued therapy they would consider an MRI scan to evaluate for recurrent pathology. (Tr. at 1265.)

         An August 22, 2013, therapy note indicated that plaintiff continued to make steady gains with shoulder strength, but pain continued to challenge him with certain movements. (Tr. at 1221.) A September 3 occupational assessment showed bilateral lifting of 40 pounds, frequent bilateral lifting of 30 pounds, and bilateral shoulder lifting of 30 pounds. At that point, plaintiff demonstrated the ability to perform 74.3% of the physical demands of his job in the warehouse, with his abilities falling in the medium range under the DOT. (Tr. at 919.)

         On September 25, 2013, plaintiff saw PA Pitton in the absence of Dr. Pennington, reporting he was no better, still having pain and decreased range of motion. An MRI showed evidence of a large, full-thickness rotator cuff tear. (Tr. at 1267; 1292-93.) “He is quite miserable with where he is at.” (Tr. at 1267.) They discussed that his only option at that point would be surgery. (Tr. at 1267.) If he had surgery, it would be total shoulder arthroplasty with rotator cuff repair. (Tr. at 1268.)

         On October 4, 2013, plaintiff continued to complain of pain and weakness. He decided to have the surgery with Dr. Pennington.[7] (Tr. at 1270.) However, it appears that he did not immediately proceed, next seeing Dr. Pennington and PA Bartz on March 12, 2014, indicating that his symptoms had worsened over the past few months. He continued to struggle with pain, stiffness, loss of function, and loss of strength. On exam, passive range of motion of the right shoulder had mild crepitus and was limited in all planes. Rotator cuff strength with forward flexion as well as external rotation was significantly reduced, consistent with his rotator cuff pathology. (Tr. at 1273.) Three views of the right shoulder demonstrated significant narrowing of the glenohumeral space with an inferior osteophyte projecting from the humerus as well as the glenoid, consistent with sequelae of his chondral injuries. (Tr. at 1273-74.) Dr. Pennington again recommended surgery. (Tr. at 1274.)

         On August 7, 2014, plaintiff was seen for a pre-operative exam, with decreased range of motion and mildly diminished strength in the right shoulder. He did have good bilateral grip strength. (Tr. at 1306-09.)

         On August 26, 2014, Dr. Penningtom performed a right total shoulder arthroplasty. (Tr. at 906.) Doctors could not wake plaintiff after the procedure (Tr. at 1312), calling a “code 4" as he was near respiratory arrest (Tr. at 1314). He was transferred to the intensive care unit and during this time his mental status improved. (Tr. at 1312, 1314.) Doctors seemed unclear of the cause of plaintiff's unresponsiveness. (Tr. at 1313, 1315.)

         On September 5, 2014, plaintiff saw PA Pitton for follow up, complaining of some discomfort, managed appropriately by analgesics. On exam, passive motion was appropriately stiff. He was instructed to have only gentle active motion of the shoulder; passive motion was fine. He was given a referral for physical therapy and a refill of Percocet.[8] (Tr. at 901.) On October 15, plaintiff reported that his pain, stiffness, and overall discomfort seemed to be improving. On exam, passive range of motion was acceptable, active range of motion improving. He was to continue physical therapy. (Tr. at 903.) On November 24, plaintiff reported doing OK, complaining of some weakness. On exam, passive motion was smooth. He did have some weakness with forward flexion and abduction, which was not a surprise given he had a rotator cuff repair in conjunction with total arthroplasty. X-rays revealed intact arthropasty with no evidence of dislocation. He was to continue in physical therapy and light duty work restrictions. (Tr. at 905.)

         A December 23, 2014, occupational assessment showed bilateral lifting of 30 pounds, frequent bilateral lifting of 17 pounds, bilateral carrying of 25 pounds, and bilateral shoulder lifting of 15 pounds. At that time, plaintiff demonstrated the ability to perform 35.3% of the physical demands of his job in the warehouse. (Tr. at 1022.)

         On January 12, 2015, plaintiff saw Joann Pauli, P.A.-C in the absence of Dr. Pennington, doing well. On exam, passive range of motion of the right shoulder was acceptable. Active forward flexion and abduction were assessed, and motion in these planes was acceptable for this stage of healing. Strength was much improved. He was instructed to continue physical therapy with progression to the endurance phase of strengthening. His work restrictions were increased to no repetitive/one-pound overhead bilaterally, 15 pounds below shoulder level with the right. (Tr. at 1284, see also Tr. at 900.)

         On February 23, 2015, plaintiff started a work hardening/conditioning program. (Tr. at 1082-83.) During the initial evaluation, plaintiff indicated that after his August 26, 2014 surgery, he “coded” and was in the ICU for a day. He stated that his memory had been “foggy since then.” (Tr. at 1077.) He was to follow up with his primary care doctor about this on February 27, 2015.[9] (Tr. at 1077.) He participated in the conditioning program until March 23, 2015 (Tr. at 1084-1137), continuing to have difficulty with lifting and reaching above shoulder height (e.g., Tr. at 1087, 1100, 1111, 1113, 1137). At a March 23, 2015, re-evaluation, plaintiff demonstrated the physical capabilities and tolerances to function at the medium physical demand level, meeting 10 of 23 job demands. (Tr. at 1135.)

         On March 25, 2015, plaintiff re-commenced work hardening/conditioning (Tr. at 1139), continuing to report overhead reaching deficits (Tr. at 1140, 1165). At an April 13 re- evaluation, he again demonstrated the physical capabilities and tolerances to function at the medium level, but this time met just 8 of 23 job demands, a decrease from the March 23 evaluation. (Tr. at 1163.)

         On April 20, 2015, plaintiff saw Dr. Trimark to review the March 30 MRI results, which were normal. Plaintiff indicated that he still had issues with not recalling discussions from the previous day. He was doing work around the house but did not finish tasks. Dr. Trimark assessed memory loss, with no abnormalities on MRI or labs, and no evidence of depression. Dr. Trimark decided to refer plaintiff for neuropsych testing.[10] (Tr. at 1246.)

         On April 22, 2015, plaintiff saw PA Pauli in the absence of Dr. Pennington, reporting that he was not making much progress. He had maxed out his physical therapy and was still quite frustrated as he was very limited with strength. On exam, passive range of motion of the right shoulder was smooth; rotator cuff strength with forward flexion and abduction was limited due to weakness and pain. There was tenderness over the anterior superior shoulder region and positive impingement signs. PA Pauli was concerned about a recurrent rotator cuff tear and so ordered a CT arthrogram. (Tr. at 1285.) The May 4 CT scan showed a recurrent tear of the rotator cuff. (Tr. at 1286, 1296.)

         On May 20, 2015, plaintiff saw Dr. Pennington and PA Pauli, receiving three options regarding the recurrent rotator cuff tear: (1) live with it, although quite limited with his function; (2) undergo surgery with hopeful rotator cuff repair; and (3) undergo surgery for superior capsular reconstruction. He would consider these options. (Tr. at 1337.)

         B. Administrative Proceedings

         1. Application and Supporting Materials

         In May 2012, plaintiff applied for disability benefits, alleging a disability onset date of April 18, 2012. (Tr. at 219.) He reported working in the supermarket warehouse from April 1982 to April 18, 2012. (Tr. at 255.) The job involved filling product orders to be shipped to area stores and required lifting up to 80 pounds. (Tr. at 256.) In a function report, plaintiff indicated that his right leg got sore after several hours on his feet, and that he had limited use of his right arm. (Tr. at 275.) He wrote that on a typical day he got up, ate breakfast, went to physical therapy (three times per week), shopped (once or twice per wee), cooked dinner, then watched TV until bedtime. He reported that he could no longer engage in activities like riding a bike, skiing, jogging, or going on long hikes. He also reported trouble sleeping (because he could not get comfortable), dressing (pulling a shirt over his head), and washing (with his right arm). (Tr. at 276.) He did housework such as cleaning, laundry, and light household repairs. (Tr. at 277.) He went out two three times per day, driving a car, and shopped in stores once or twice per week. (Tr. at 278.) He indicated that his right leg got sore if he did a lot of squatting, standing, walking, or stair climbing. It was also hard to lift and reach for objects due to his right shoulder injury. He could walk for one mile before he needed to stop and rest. (Tr. at 280.) He noted no problems paying attention, following instructions, and handling stress. (Tr. at 280-81.)

         In a physical activities addendum, plaintiff indicated that he stood 5'9" tall and weighed 170 pounds. He slept four to five hours per night due to problems getting comfortable. He indicated that he could stand for three to four ...


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