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Lenz v. Berryhill

United States District Court, E.D. Wisconsin

March 9, 2018

GAIL ANN LENZ Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.

          DECISION AND ORDER

          LYNN ADELMAN, DISTRICT JUDGE

         Plaintiff Gail Lenz applied for social security disability benefits, alleging that she could no longer work due to severe allergies, particularly to cat dander, which restricted her ability to breathe during an attack, and reflex sympathetic dystrophy (“RSD) in her left knee, which limited ambulation and required her to use a cane. The Administrative Law Judge (“ALJ”) assigned to the case concluded that plaintiff could, despite these severe impairments, still perform her past sedentary job as a billing clerk if offered the reasonable accommodations of moving her away from co-workers who owned cats and installing a HEPA filter in her work area.

         As the Supreme Court has explained, the possibility of a workplace accommodation should not be taken into account in determining whether a person is disabled for social security purposes. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803 (1999). The parties agree that the ALJ's decision is flawed and must be reversed, but they differ over the remedy. The Commissioner asks that the matter be remanded for further proceedings, as the record does not compel a disability finding. Plaintiff seeks remand for the sole purpose of calculating benefits; in the alternative, should the court find further proceedings warranted, she seeks specific directives to guide the ALJ on remand.

         I. FACTS AND BACKGROUND

         A. Plaintiff's Application and Supporting Materials

         Plaintiff applied for benefits in December 2012, alleging a disability onset date of April 7, 2011. (Tr. at 149.) She alleged that she could no longer work due to severe allergies, asthma, and a left knee injury. (Tr. at 172.) She reported past employment as a meter reader for the electric company in 2000 and a billing clerk for a healthcare provider from 2001 to 2011. (Tr. at 173.) She indicated that her knee problems limited her ability to walk, stand, squat, lift, and climb stairs, and that due to her hypersensitivity to cat dander she avoided being inside places for long periods of time. (Tr. at 194.) She reported using a cane when her knee hurt or felt like it was going to give out. (Tr. at 195.) She indicated that she cared for a dog (a toy poodle) and performed some household chores and gardening outside, but she avoided airplanes, movie theaters, or busy restaurants due to possible exposure to cat dander. (Tr. at 214, 264.) Her husband submitted a report similarly indicating that while plaintiff could manage her self-care and perform chores around the house she could not be in public places for extended periods of time due to cat dander sensitivity and could not do activities requiring long spells on her feet. She could no longer ski or bike due to her knee, but they did sometimes go camping. (Tr. at 263-68.)

         B. Medical/Vocational Evidence

         The medical records indicate that while plaintiff suffered from asthma and allergic rhinitis for many years, those conditions were stable until early 2011, when a new co-worker who owned cats arrived in the workplace, aggravating her symptoms, which continued even after she moved to a location in the office a little farther away. Her long-time treating allergist, Dr. Walter Brummund (Tr. at 808-16), excused her from work and made a referral to Dr. Jordan Fink, a sub-specialist in occupational asthma and allergies, who recommended that she be moved as far away from the co-worker as possible and that a HEPA air filter be placed in her area (Tr. at 283-91, 340, 393, 449, 482, 501). The employer was apparently unable to move her any farther away and did not provide the HEPA filter, and plaintiff did not return to work. (Tr. at 296-97, 328, 331, 335, 459, 462.) She experienced improvement after leaving the office in April 2011, but even then she continued to struggle with what she believed to be exposure to cat dander in places like the grocery store and church (Tr. at 328, 333, 462); she also reported experiencing an episode when her husband brought home boxes from her workplace (Tr. at 580). Dr. Fink did note that, so long as she avoided exposure, her condition was stable and well controlled on her medications. (Tr. at 329.)

         Dr. Fink prepared a number of letter-reports regarding plaintiff's condition and limitations. On September 11, 2012, he opined that “her permanent restrictions would be no exposure to cat dander, dust, chemicals, or extremes of heat, cold, or humidity.” (Tr. at 580.) On January 28, 2013, he indicated that plaintiff continued to have asthma even though she left her specific work environment. “Cat dander is ubiquitous, and she contacts it frequently.” (Tr. at 528.) He concluded: “Ms. Lenz is limited in her function due to her respiratory disease. She needs to avoid dander, and non-specific irritants such as perfumes, smoke, and injections.” (Tr. at 529.)

         On November 25, 2013, Dr. Fink wrote that plaintiff was exquisitely sensitive to cats and cat dander, and her cat dander sensitivity resulted in a severe respiratory reaction of asthma and/or vocal cord motion dysfunction. He further noted that cats are ubiquitous in our environment, and individuals who have contact with cats have dander on their clothes. Cat dander is one of the most potent allergens, and it remains in the air for a considerable time. He continued:

Ms. Lenz has shown that she cannot work in an environment where other individuals who have cats also work. I would strongly doubt that there is such an environment as a “clean (meaning no cat dander or other irritants) environment” to allow Ms. Lenz to work without distress. She becomes clinically disabled with respiratory reactions which are difficult to control. Such repetitive exposure has resulted in permanent disability and precludes Ms. Lenz from working as her respiratory disease persists even when she is out of the workplace.

(Tr. at 578.) He concluded:

As a result, Ms. Lenz could not work on a full time basis in any type of office setting. She would have respiratory distress as a result of cat dander exposure (undoubtedly some other worker would have cats) and have to leave work as has already occurred in her recent work.
. . .
In my opinion, Ms. Lenz's severe allergic disease has resulted in permanent disability.

(Tr. at 581.)

         On March 5, 2014, Dr. Fink wrote:

Ms. Lenz developed cat dander aggravated asthma at her workplace. This asthma has persisted and continued even after she has left the offending environment. That asthma is the result of pulmonary damage from that workplace environment and requires potent medication for control.
Thus, in my opinion, the exposure that Ms. Lenz had to cat dander at her job induced a sensitization that has caused her to have the restrictions set forth in my prior report.
Further, it is my opinion to a reasonable degree of medical probability that her work exposure was a material contributory causative factor in the development of permanent sensitization such that the restrictions contained in my letter of September 11, 2012, are required.

(Tr. at 598.)[1]

         Plaintiff also presented a vocational assessment report prepared in connection with a workers' compensation claim she filed with her employer, which concluded:

Dr. Fink (9/11/12) assigned permanent restrictions of no exposure to cat dander, dust, chemicals, or extremes of heat, cold, or humidity. It is noted that even with moving her work space away from the source of the cat dander, Ms. Lenz continued to have symptoms and ultimately had to leave her office position. As cat dander can be carried by any person who has a cat, or was exposed to a cat, it is nearly ubiquitous in the environment. There is no guarantee that Ms. Lenz could safely avoid cat dander, dust or chemicals in any work environment. As such, she would be relegated to performing at-home work. Gail would have difficulty even going in for an interview or to a workplace for training/meetings, which is customary for a work-at-home position. Given the restrictions of Dr. Fink, it is my professional opinion that Gail has sustained a total loss of earning capacity.

(Tr. at 592.)

         The records regarding plaintiff's RSD indicate that she fell in January 2000 while working as a meter reader, injuring her left knee, suffering chronic knee pain thereafter. (Tr. at 539, 652-55.) Notes from her treating physical medicine physician, Dr. Robert Zoeller, document treatment with medications, injections, a TENS unit, and therapy, with exams showing an antalgic gait favoring the left. (Tr. at 436-43.) In the fall of 2013, she reported pain in the right knee as well, with x-rays revealing degenerative changes, treated with further injections to both knees. (Tr. at 623-30.) Dr. Zoeller opined that plaintiff could perform sedentary work: standing/walking two hours and sitting six hours in an eight hour day; lifting up to 10 pounds; and occasionally bending and climbing, but never squatting or crawling. (Tr. at 317.)

         The records also discuss a May 2014 motor vehicle accident, after which plaintiff experienced neck, back, and diffuse abdominal pain. An abdominal CT scan revealed an umbilical hernia, which was surgically repaired. She also received medications and physical therapy for the neck and back pain. (Tr. at 601-12, 645.) In 2015, Dr. Zoeller recommended aquatic therapy for treatment of myofascial neck, chest wall, and abdominal pain, as well as chronic knee pain, to maximize range of motion, strengthening, and endurance to activity. (Tr. at 663.) Subsequent notes indicate that plaintiff transitioned to a home exercise program but continued to report pain symptoms that disrupted her daily activities and requiring further injections. She also saw a psychotherapist for PTSD symptoms. (Tr. at 706-08, 847.)

         C. Agency Review

         The agency arranged for a consultative physical examination with Dr. John Kelly, who noted no respiratory difficulty, a steady gait with no assistive devices, and the ability to get up and off the exam table without any difficulty. Plaintiff's left knee displayed limited range of motion secondary to pain, although the knee joint appeared stable and intact. Motor strength in the upper and lower extremities was 5/5. Dr. Kelly noted that plaintiff's asthma and allergies appeared to be under good control with medications and inhalers. He opined that she should be able to do minimal activities such as office or sit down work operating a computer. ...


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