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Tobin v. Berryhill

United States District Court, W.D. Wisconsin

July 17, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          BARBARA B. CRABB District Judge.

         Plaintiff John Francis Tobin is seeking review of a final decision by defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying his claim for disability insurance benefits and supplemental security income under the Social Security Act. 42 U.S.C. § 405(g). Dkt. #8. Plaintiff seeks remand of that decision, arguing that the administrative law judge who decided the case erred in failing to develop the record with respect to plaintiff's atrial fibrillation and did not rely on a physician's opinion when assessing plaintiff's residual functional capacity with respect to that condition. Dkt. #9.

         For the reasons explained below, I am remanding this case so the administrative law judge can consider whether the present record is sufficient to allow him to draw a conclusion about the effect of plaintiff's atrial fibrillation on his ability to work and to explain his findings with respect to plaintiff's residual functional capacity.

         The following facts are drawn from the administrative record (AR).


         A. Relevant Medical History

         Plaintiff John Tobin was admitted to the hospital on July 9, 2013, after he had had shortness of breath and a high heart rate for five days. Dr. Rick Klein, plaintiff's primary physician, noted that plaintiff had acute renal failure, atrial fibrillation with rapid ventricular response, cardiogenic shock, respiratory shock, respiratory failure, severe tricuspid regurgitation and fatty liver disease. Plaintiff had to be resuscitated three times on July 9, and he remained on a ventilator until July 15, 2013. Plaintiff's conditions improved with medication, dialysis, oxygen treatment and other measures, but he continued to experience weakness and trouble walking and climbing stairs. Dr. Klein noted that many of plaintiff's conditions were secondary to severe alcohol abuse and that plaintiff had reported drinking 24 beers a day for 15 years. AR 325-28. Plaintiff was released from the hospital on July 24, 2013.

         On August 8, 2013, nurse practitioner Jenny Prinsen evaluated plaintiff for the heart failure clinic. She noted that he had alcoholic cardiomyopathy that was rated class II and “ACC stage C” on the New York Heart Association scale and that he had normal sinus rhythm. AR 514-15. On October 28, 2013, cardiologist Dr. Monique Freund noted inconsistent reports regarding plaintiff's continued use of alcohol and whether he was wearing a life vest. (This is not identified in the record, but it appears to be a wearable defibrillator.) AR 564. Freund reviewed plaintiff's recent transthoracic echocardiogram, which revealed that his left ventricle ejection fraction had “significantly increased” from 10 to 45 percent and that he had mild right ventricle enlargement and dysfunction. AR 565 and 575. On March 14, 2014, Dr. Klein wrote a letter stating that plaintiff was unable to care for his five-year old child before or after school because of his health. AR 620.

         On March 28, 2014, Prinsen reported that when she saw plaintiff in February 2014, he had weakness and dizziness and reported falling four or five times. AR 621. Plaintiff experienced an episode of paroxysmal atrial fibrillation on February 27, 2014. Dr. Klein and Dr. Freund reduced his digoxin dosage, which improved his symptoms somewhat. Id. Prinsen questioned whether plaintiff would have the energy and strength to return to work at that time. Id. On September 22, 2014, Prinsen noted that plaintiff's heartbeat was irregular, and an electrocardiogram confirmed atrial fibrillation. AR 640. An October 6, 2014 echocardiogran revealed that plaintiff's left ventricle ejection fraction was mildly reduced at 42%. Id. On October 20, 2014, plaintiff told Prinsen that his fatigue and dizziness seemed worse after the atrial fibrillation and that he would like to try to convert it again. Id. Prinsen planned a hospitalization on October 27, 2014 for sotalol initiation and a cardioversion for October 28 or 29. AR 641. She noted that scheduling the procedure required working around plaintiff's work schedule. Id.

         Although plaintiff did successfully convert into sinus bradycardia in October, Prinsen noted that he went back into atrial fibrillation in November 2014. AR 628-32. After examining plaintiff on November 20, 2014, Dr. Freddy Del-Carpio Munoz recommended atrial fibrillation catheter ablation and started plaintiff on Amiodarone. On December 22, 2014, plaintiff told Prinsen that he did not have chest discomfort or shortness of breath and was walking a mile and a half every day but that he felt dizzy after taking his morning medications and felt palpitations that he thought were atrial fibrillation. AR 628.

         Plaintiff underwent catheter ablation for atrial fibrillation on January 7, 2015 and then developed recurrent atypical atrial flutter and fibrillation. Dr. Del-Carpio Munoz noted that plaintiff developed symptoms similar to those he had had during his atrial fibrillation. Cardioversion was not performed because plaintiff self-converted. AR 624-27.

         B. Administrative Proceedings

         Plaintiff applied for benefits on August 7, 2013, alleging that he became disabled when he was hospitalized on July 9, 2013. AR 20 and 23. His claims were denied initially on November 20, 2013, and upon reconsideration on March 24, 2014, and he filed a written request for hearing on April 3, 2014. AR 20. His last insured date under the Social Security Act was December 31, 2014. AR 21.

         Administrative Law Judge Thomas Springer held an administrative hearing on April 22, 2015, at which plaintiff testified that his medications made him feel tired, out of breath, nauseated and dizzy for three or four hours after he took his pills in the morning. AR 65-66, 76-77. He testified that these symptoms prevented him from working more than four hours a day handing out samples at Walmart. Id ...

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