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Scott v. Berryhill

United States District Court, W.D. Wisconsin

May 30, 2017

LANIER SCOTT, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          WILLIAM M. CONLEY District Judge.

         Pursuant to 42 U.S.C. § 405(g), plaintiff Lanier Scott seeks judicial review of a final decision of defendant Nancy Berryhill, the Acting Commissioner of Social Security, which denied his application for Social Security Disability Insurance Benefits and Supplemental Security Income. On December 19, 2016, the court heard oral argument on plaintiff's related contentions that the ALJ erred by failing to give proper weight to Scott's treating physician, Dr. Tecarro. For the reasons provided below, the court agrees and will remand this matter for further administrative proceedings consistent with this opinion.


         A. Overview of Claimant

         Scott was 42 years old at the time of his alleged onset date, June 1, 2011; 43 at the time he applied for benefits on March 29, 2012; and 44 at the time of the hearing before an ALJ on October 23, 2013. Scott has at least an eleventh-grade high school education, is able to communicate in English, and has past work experience as a cable repairer, cable installer, press operator, forklift operator, groundskeeper, and grinder (of parts used in automobile manufacturing). At his hearing, Scott testified that he last worked in 2011 as a press operator for a truck driver, but was fired because he could not perform his job duties, which included lifting 100 pounds. He claims that this was due to his disability -- cervical spine disorder, chronic thrombocytopenia[1] and leukopenia.[2]

         B. Medical Record

         Scott's medical records contain notes from Mark Moore, M.D., an occupational medicine doctor, during the spring and summer of 2011, which supported Scott's claim for Worker's Compensation. One of Dr. Moore's notes made in April 2011 identifies June 5, 2010, as the date of Scott's injury. At that time, Scott was prescribed Gabapentin to treat nerve pain, and reported that it was helping, but that he experienced tiredness and dizziness as side effects. Still, Scott was still working, able to operate a forklift during this period. He also elected not to pursue cervical nerve root injection or vascular surgery consult. (AR 242.) Dr. Moore then referred him for an Functional Capacity Evaluation (“FCE”), which was completed on May 5, 2011, and limited Scott to medium to light work. (AR 370-377.)

         Dr. Moore saw Scott again on May 25, 2011, reviewed the FCE, and noted that Scott continued with drowsiness issues, resulting in him being taken off of forklift driving at work. He also reported continued pain in his neck and arm. “Despite great pushing” by Dr. Moore, Scott continued to refuse epidural steroid injections and vascular surgery options. At that point, Moore declared an “end of healing, ” and no further appointments were scheduled. (AR 243.)

         Moore saw Scott again in July 2011, because Scott wanted a change in his work restrictions. At that time, he reported “trouble with neck pain while reading or even going to a movie and sitting for 3 hours. If he reads over 15 minutes, works on a computer over 15 to 25 minutes, he has increased pain.” Scott also questioned whether his lift restriction should be 10-pounds (rather than 20 to 30 pounds on a rare basis, 6 to 10 pounds on a frequent basis). Dr. Moore warned that if Scott added more restrictions, his employer may feel that the essential functions of the job are not being met. Moore also said that he would have to return to an occupational therapist to have his FCE changed, and he encouraged Scott to go back to Dr. Leonard for consideration of injections or surgery. (AR 245.)

         Central to Scott's challenge, the medical record also contains extensive notes by Scott's primary care physician, Christel Tecarro, M.D., which date from June 2011 through May 2013. A June 28, 2011, note describes Scott's injury, his decision to pursue conservative treatment with physical therapies and medications, “but in spite of doing that the pain has pretty much been persistent.” Tecarro also noted that X-rays did not show any dislocation, and that an MRI “did not show any changes of the bone marrow or spinal cord, no soft tissue mass, no central foraminal narrowing.”[3] A physical exam, however, did confirm that: Scott's “[n]eck is kind of stiff with some paravertebral muscle spasms;” he has “limited range of motion with neck extension, flexion, and lateral rotation”; and he “continued to present with signs and symptoms of cervical radiculopathy which was quite hard for them to pinpoint.” Scott refused epidural block treatment, but given that he had lost his job due to the pain, Tecarro increased his pain medication since he is no longer working and therefore does not need to be alert. Tecarro also offered a referral to a pain management clinic. (AR 254-55.)

         Dr. Tecarro's July and September 2011 notes similarly reveal Scott's “worsening pain [in] the neck radiating into left shoulder and even into the left arm, ” and that the “range of motion on the left arm is significantly diminished, ” though Tecarro noted no numbness and Scott still had not decided whether to go to a pain management clinic. Tecarro then ordered a new MRI and added a new pain medication. (AR 260-63.) Once again in December 2011, Scott complained to Tecarro of continued pain, though he also indicated that it was a “little bit controlled” with Vicodin at night and tramadol during the daytime. He further denied any weakness or numbness. (AR 267-69.)

         The second MRI was completed in February 2012, and it showed actual “disc protrusion more [t]owards the left on C5 and C6 and C6 [and] ¶ 7 with cord displacement noted.” (AR 272.) Scott was then referred to Froedtert for neurosurgical consult, though, as noted below, the consultation appears to never have happened because of insurance issues.

         In May 2012, Scott was again seen by Dr. Tecarro to follow-up on his chronic neck pain. The notes indicate that: the pain now radiates to his left hand; “associated symptoms include crepitus, difficulty initiating sleep, joint clicking, joint locking, joint stiffness, limited joint motion, muscle stiffness, nocturnal awakening, nocturnal pain, numbness, tenderness, tingling and weakness.” Tecarro also indicates that insurance denied the referral to the pain clinic at Froedtert, and indicated a plan to refer to pain management or neurosurgery. (AR 278.)

         Around that same time, Dr. Tecarro completed two disability questionnaires. In the first, he indicated that Scott: could sit, stand and work less than 1 hour in 8-hour work day; cannot do any walking or standing for more than 30 minutes; is restricted on reaching, handling and fingering; can't use feet in operating foot controls; is limited to lifting or carrying no more than 10 pounds occasionally; and adds other restrictions on movement and activities. (AR 290-93.) In the second questionnaire, Tecarro described similar, albeit less restrictive limitations: lifting less than 10 pounds; can sit less than 2 hours sitting during an 8-hour workday; needs to move around frequently; is restricted on activities; notes reaching, handling, fingering, feeling, ...

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