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Wantock v. Berryhill

United States District Court, W.D. Wisconsin

November 28, 2017

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


          WILLIAM M. CONLEY District Court Judge

         Under 42 U.S.C. § 405(g), plaintiff Daniel Wantock seeks judicial review from the denial of his application for disability insurance benefits by defendant Nancy A. Berryhill, the Acting Commissioner of Social Security. Specifically, plaintiff seeks remand on the basis that the Administrative Law Judge (“ALJ”) erred as a matter of law by failing to (1) account for all of his limitations in formulating his residual functional capacity (“RFC”) and (2) establish a foundation for the testimony of the vocational expert (“VE”). (Dkt. #10.) Because the court agrees that the ALJ did not account properly for all of plaintiff's work-related limitations in determining his RFC, this case will be remanded to the Commissioner for further proceedings.


         A. Claimant

         Born on September 11, 1966, Daniel Wantock was 45 years old on December 31, 2011, the date on which he was last insured. (AR 11, 18.) Wantock has at least a high school education, and he speaks English. (AR 18.) His past relevant work is as a dump truck driver and construction worker. (AR 17.) Beginning on October 1, 2010, however, Wantock claims he was rendered disabled by ulcerative colitis, a condition which causes him cramping, pain, loose stools and the need to go to the bathroom frequently.

         B. Medical Records

         On October 5, 2009, Wantock visited a physician with complaints of an “upset, gurgly stomach, ” gas and diarrhea that he had been experiencing for four weeks. (AR 189.) Roughly a year later, on October 7, 2010, Wantock reported to another physician, noting an increased number of bowel movements over the preceding several months, from one to two per day, up to five to ten, and a loss of fifteen pounds between February and June 2010. (AR 194.) That physician ordered a colonoscopy and referred Wantock to a specialist. (AR 195.)

         Gastroenterology notes dated November 3, 2010, indicate a formal diagnosis of ulcerative colitis based on the results of Wantock's colonoscopy, which was performed on October 28, 2010. (AR 197.) The November notes also indicate improvement in Wantock's symptoms, including frequency of bowel movements, stool firmness, energy levels and abdominal pain, all of which was attributed to his taking Prednisone as prescribed after the colonoscopy. (AR 198.)

         Even so, Wantock was experiencing diarrhea two to three times per day with abdominal pain, as reported to Heather J. Chial, M.D., during a visit on January 6, 2011. (AR 200.) Wantock followed-up with a phone call to Chial on January 10, 2011, reporting that his symptoms were getting worse, particularly diarrhea “about every hour” each night, despite taking Prednisone and Apriso daily and doing “well” for eight to twelve hours during the day. (AR 216.) The following month, another physician noted after a visit on February 7, 2011, that Wantock was experiencing no significant change and having three to ten bowel movements per day, typically between 1 a.m. and 10 a.m. (AR 201.) While notes from that same physician dated a week later indicated a recent diagnosis of “Clostridium difficile infection, ” Wantock also reported that his symptoms were getting better, as he lessened his dose of Prednisone and started taking a new medication for the infection, including six to seven bowel movements at night. (AR 202-03.) On his last day taking medicine for the infection, February 24, 2011, Wantock reported stable symptoms, including five to six bowel movements per day. (AR 220.)

         After seeing another physician, Kenneth Horth, M.D., on March 18, 2011, Wantock began taking Floragen for his ulcerative colitis. (AR 205.) During an April 25, 2011, follow-up appointment, Horth noted that Wantock was having two to four bowel movements per day and feeling better. (AR 206.) Wantock's improvement in symptoms continued, as noted on June 3, 2011 (AR 208), and June 15, 2011, when he expressed no interest in taking maintenance medication despite his physician's recommendation (AR 211-12).

         By July 28, 2011, however, Wantock had experienced another downturn in symptoms. A note on that date indicates that Wantock called with an update, including that he was having twelve to fifteen loose stools per day and had lost four pounds. (AR 228.) After a visit on August 4, 2011, Wantock began “infusion” treatment with Remicade, which produced some improvement. (AR 229-30.) In particular, Wantock reported having at least four to six bowel movements per day, at a November 2, 2011, follow-up visit (AR 232), and similar symptoms at a follow-up on January 4, 2012 (AR 233). Similarly, on February 16, 2012, Wantock reported having six to eight stools per day, with some being urgent (AR 263), and four to seven on March 23, 2012 (AR 266). He was also “doing fairly well” on September 24, 2012, according to a note made by Sherry Ekobena, PA-C. (AR 277.)

         Unfortunately, Ekobena noted more variable symptoms in her notes following Wantock's visit on December 17, 2012. (AR 283.) Specifically, she noted that Wantock had five to nine stools each day and experienced discomfort, and he had an increased number of bowel movements and tiredness three to four days per week. (Id.) Ekobena referred Wantock to medical nutrition therapy, where he was seen by Diane Kelbel, R.D., on January 7, 2013. (AR 284.) At that visit, Wantock reported having three to eight bowel movements per day, with the majority in the morning and the others sporadically during the afternoon. (Id.) Kelbel recommended that Wantock focus on having a more consistent nutritional intake. (AR 285.) Kelbel also made similar observations regarding Wantock's diet during a visit on April 2, 2013, following Wantock's report of four to six bowel movements per morning. (AR 298.)

         The next day, Ekobena filled out an “Irritable Bowel Syndrome Residual Functional Capacity Questionnaire.” (AR 288-91.) She indicated that Wantock had frequent stools and a stable prognosis, but also observed that he had repeatedly refused another colonoscopy to determine whether he had an “active disease.”[2] (AR 288.)

         Ekobena left blank in the questionnaire whether she had any opinions regarding work-related limitations Wantock may have, including any resulting ...

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