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Thao v. Berryhill

United States District Court, W.D. Wisconsin

March 20, 2018

WAKEE THAO, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          BARBARA B. CRABB District Judge.

         Plaintiff 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.

         For the 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.

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


         Plaintiff 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.

         Plaintiff 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.

         Dr. 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.

         During 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 422.

         Dr. Her 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.

         Two 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.

         In 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.

         On 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.

         The 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 ...

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