United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
Wakee Thao is seeking review of a final decision by defendant
Nancy A. Berryhill, Acting Commissioner of Social Security,
denying his claim for supplemental security income under the
Social Security Act on the ground that he did not suffer from
a severe impairment that significantly limited his ability to
work for 12 consecutive months. 42 U.S.C. § 405(g).
Plaintiff seeks remand of that decision, arguing that the
administrative law judge who decided the case (1) did so
prematurely at step 2 of the five-step sequential evaluation
process; (2) did not properly consider the diagnoses made by
plaintiff's treating physician; and (3) failed to
consider plaintiff's prior Social Security claim file in
an effort to establish his longitudinal medical history, in
accordance with agency guidance. Dkt. #16.
reasons explained below, I conclude that the administrative
law judge did not support his step 2 finding on
plaintiff's impairments with substantial evidence.
Accordingly, I am reversing the commissioner's decision
and remanding this case for further proceedings.
following facts are drawn from the administrative record
has filed twice for supplemental security income benefits. An
administrative law judge denied plaintiff's February 7,
2011 application for benefits on October 16, 2012, finding
that plaintiff's diabetes and back and shoulder strain
were not severe impairments, AR 21 and 54, and this court
affirmed the commissioner's denial on November 24, 2014.
In the meantime, plaintiff filed a second application for
benefits on December 30, 2013, in which he alleged that he
was disabled as of that date because of diabetes,
hypertension, depression, a skin rash and pain in his lower
back, right shoulder, right ear and right ankle and leg. AR
21, 23, 216.
has not had any paid employment since arriving in the Unites
States from Thailand in 2004 or 2005. AR 41, 56, 286.
However, until 2015, he was sweeping, mopping and cleaning
windows about eight hours a month as a volunteer at the local
Hmong community center. AR 23, 40, 216. Plaintiff was 59
years old when he applied for benefits in 2013. AR 237.
Cheng Her has been plaintiff's treating physician for
seven or eight years, and plaintiff sees him once or twice a
month for his diabetes and back and shoulder pain. AR 42.
From 2012 to 2015, Dr. Her and other providers at Gundersen
Health System have noted consistently in their treatment
notes that plaintiff has diabetes, hypertension, chronic back
and right shoulder pain and bilateral leg weakness.
E.g., AR 272, 290, 295, 306, 406, 418. Plaintiff has
taken lisinopril for hypertension and metformin for diabetes,
but he has sometimes skipped these medications because of
their high cost. AR 282, 289. For back pain, plaintiff has
taken flexeril three times a day as needed, nabumentone as
needed up to twice daily and hydrocodone-acetaminophen
(Lortab) as needed up to every four hours. AR 294. In
November 2013 and January 2014, plaintiff reported taking
Lortab only intermittently or infrequently. AR 320, 324.
some of his office visits with Dr. Her, plaintiff reported
performing various forms of physical activity. On February
27, 2013, plaintiff stated that he stayed in the house during
the winter but was busier in the summer. walking, running and
gardening. AR 286. On November 21, 2013, plaintiff reported
that he walked 40 to 60 minutes each day and that he planned
to use a recumbent bicycle or rowing machine to prevent him
from getting stiff. AR 317. On March 3, 2014, plaintiff saw
Dr. Her for right arm pain he was experiencing after
“vigorous and regular” snow shoveling in the
previous week. AR 342. Upon examination, Dr. Her noted that
plaintiff had full muscle strength in his upper and lower
extremities and a normal gait. Id. However, in
August and September 2014, plaintiff reported significant
fatigue and weakness and said that he was too weak to go
outside. AR 406-07. Dr. Her wrote that “I do not
dismiss his pain but for these many years, what we have tried
thus far has not gotten any better. . . . he felt better when
he was active and more committed to something each day rather
than waiting, hoping for something to change.” AR 408.
After a long hiatus, plaintiff saw Dr. Her in October 2015
and reported feeling tired all of the time. Plaintiff was not
able to afford his medications at that time. AR 417. In
November 2015, Dr. Her wrote that he was not convinced that
plaintiff's medications would do much even if he could
afford them, unless he made a fundamental change in his
nutrition and outlook, which were limited by economics. AR
completed two work restriction questionnaires in support of
plaintiff's application for benefits. On July 11, 2014,
Her stated the opinion that as of October 12, 2012, plaintiff
could work only 30 minutes a day with the following
limitations: lifting and carrying less than 10 pounds;
sitting less than 30 minutes; standing and walking less than
15 minutes; shifting positions at will; continual unscheduled
breaks; no more than frequent fine manipulation and no more
than seldom gross manipulation with either hand; and seldom
to no limited reaching. AR 366-68. In a subsequent
questionnaire completed on October 21, 2015, Her repeated
similar restrictions but increased the sitting, standing and
walking limitation to less than two hours a day and
recommended up to occasional manipulation and reaching on the
left side and seldom manipulation and no reaching on the
right side. AR 412-14.
state agency physicians also offered opinions on
plaintiff's physical ability. During the initial review
of plaintiff's application for benefits, Dr. Syd Foster
reviewed plaintiff's medical records and concluded on
February 26, 2014 that plaintiff did not have a severe
impairment. AR 76, 80. Foster noted that plaintiff had had
stable or normal physical examinations since 2012 and
reported that the more active he was, the better he felt. On
August 5, 2014, at the reconsideration level of review, Dr.
Mina Khorshidi affirmed Dr. Foster's findings, noting
that plaintiff's medical records did not contain any
significant findings. AR 84, 89-90.
addition, two state agency psychologists assessed
plaintiff's mental abilities at the initial and
reconsideration levels of review. On February 26, 2014, Dr.
Roger Rattan found that plaintiff's reports of depression
did not amount to a severe impairment because upon
examination, he has been emotionally stable and exhibited an
appropriate mood. AR 81. On August 8, 2014, Dr. Deborah Pape
affirmed that finding, adding that plaintiff had sought
treatment for only his physical complaints and was not taking
medication for any mental impairment. AR 91.
April 12, 2016, Administrative Law Judge John Pleuss held an
administrative hearing at which plaintiff testified with the
assistance of a Hmong interpreter. AR 33-34. Plaintiff
testified that he has not been able to work because his back
hurts from all the shooting he had to do as a soldier in the
war in Thailand. AR 40. His doctor told him to use a cane if
he is unable to walk and he uses it to walk outside. AR
41-42. Plaintiff has pain in his lower back, upper shoulders
and left leg. He testified that he can stand for only 10
minutes, walk for five or six minutes before sitting down and
carry three to four pounds. AR 43. Plaintiff had a magnetic
resonance imaging study of his back in 2014 but he does not
have “any medical funds” to have any more. AR
43-44. (Plaintiff did not discuss the results of the 2014
scan and it does not appear to be part of the medical
record.) Although plaintiff took an English class four hours
a day, seven days a week for seven years, he cannot
understand or speak English. AR 45.
administrative law judge issued a written decision on June 2,
2016, finding that even though plaintiff had the medically
determinable impairments of degenerative disc disease,
diabetes and essential hypertension, he did not have a severe
impairment or combination of impairments that significantly
limited his ability to perform basic work for 12 consecutive
months. AR 23-24, 28. In reaching this decision, the
administrative law judge gave great weight to the opinions of
Dr. Rattan and Dr. Pape and noted that his decision was
supported by the opinions of Dr. Foster and Dr. Khoshidi. AR
25, 28. However, the administrative law judge stated that he
gave only minimal weight to Dr. Her's opinions because
(1) Dr. Her had only described plaintiff's symptoms and
had not provided any medical diagnosis for plaintiff; and (2)
the extreme limitations Dr. Her assessed for plaintiff were
not consistent with the medical findings documented in
Her's own treatment notes. AR 26. The administrative law
judge also noted the absence of any imaging studies in the
record or other objective findings to support ...