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Gamble v. Berryhill

United States District Court, E.D. Wisconsin

June 11, 2018

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



         Plaintiff Jason Gamble seeks judicial review of the denial of his application for social security disability benefits. Plaintiff alleged disability based primarily on a neck impairment, for which he underwent anterior cervical fusion surgery in November 2010. He claimed that, following the surgery, he continued to experience pain and numbness in his right arm and hand, significantly limiting their use. The Administrative Law Judge (“ALJ”) assigned to the case concluded that plaintiff retained the ability to perform a range of sedentary work, with occasional overhead reaching with the right arm. Plaintiff contends that the ALJ erred in failing to include additional manipulative limitations, erroneously evaluated his statements regarding his symptoms, and failed to give good reasons for discounting the opinion of his treating pain management specialist, Dermot More-O'Ferrall, M.D.[1] I agree that the ALJ failed to adequately consider the issue of manipulative limitations and thus remand for further proceedings.[2]


         A. Plaintiff's Application and Supporting Materials

         Plaintiff applied for supplemental security income benefits on December 7, 2011 (Tr. at 353), alleging that he could no longer work due to a number of physical and mental impairments, including cervical radiculopathy syndrome (Tr. at 383). He indicated that he stopped working in November 2008, when he was laid off, and became disabled as of November 15, 2010, when he underwent surgery. (Tr. at 383.) He reported past work as a window installer from 1998 to 2008. (Tr. at 384.)

         In a function report, plaintiff indicated that he had about 23% use of his right arm; he could not lift more than 5-10 pounds and had no feeling in it. He also had a plate in his neck, which limited his range of motion. (Tr. at 393.) In a physical activities addendum, plaintiff indicated that he could continuously sit for 10-15 minutes, stand for 30 minutes, and walk for ½ block; in a day, he could sit for 45-60 minutes, stand for one hour, and walk for 10 minutes. Dr. More-O'Ferrall had imposed a lifting limit of 10 pounds. (Tr. at 401.)

         B. Agency Review

         The agency denied the application initially on May 8, 2012 (Tr. at 198, 255), based on the review of Syd Foster, D.O., who concluded that plaintiff could perform light work with occasional use of the right arm for overhead reaching and the right hand for fingering and handling. (Tr. at 206-07.) Plaintiff sought reconsideration, but the agency maintained the denial on October 31, 2012 (Tr. at 227, 260), based on the review of Mina Khorshidi, M.D., who agreed with the previous assessment (Tr. at 221-22). Plaintiff then requested a hearing before an ALJ.

         Prior to the hearing, plaintiff submitted a work activity report, in which he indicated that in March 2013 he began working six hours per night every other Monday night as a bartender. He reported that Mondays were very slow; he basically served drinks and did not lift cases or ice bags. (Tr. at 454.) He indicated that he also worked the final two hours of a couple of Thursday shifts so another bartender could get to his bowling league on time, helped another bartender learn to close the bar a couple nights by working the final hour with her on those nights, and also worked for a few hours for a special event one Sunday. (Tr. at 457.)

         Plaintiff also submitted a March 12, 2013 report from Dr. More-O'Ferrall, who indicated that plaintiff could lift no more than 10 pounds, stand no more than two hours in an eight hour day, and sit no more than two hours in an eight hour day. (Tr. at 1090.) Dr. More-O'Ferrall further indicated that plaintiff could never look down, rarely turn his head, and rarely look up, and could rarely use his right upper extremity for grasping, fingering, or reaching. He estimated that plaintiff would be absent more than three days per month due to his impairments. (Tr. at 1091.) He further indicated that plaintiff had a number of mental limitations, including low tolerance for frustration, difficulty with impulse control, and difficulty maintaining concentration. He estimated that plaintiff could participate in work/work readiness activities for just one to two hours per day. (Tr. at 1092.)[3]

         C. First ALJ Hearing

         On February 5, 2014, plaintiff appeared for his hearing before the ALJ. The ALJ also summoned a vocational expert (“VE”). (Tr. at 58.)

         Plaintiff testified that he was then 40 years old, six feet tall, and 260 pounds. (Tr. at 66.) He lived with his father, a friend, and his 12 year-old daughter. (Tr. at 67.) He had not graduated from high school, nor did he have a GED. (Tr. at 67-68.) He indicated that he had worked since November 15, 2010, the alleged onset date, at Scuttlebutt's Sports Lounge, “watch[ing] the bar for two hours a day here and there. It's a friend's bar.” (Tr. at 68.) He did not work regular hours and was not even considered an employee. On average, he worked two days per week, sometimes three. (Tr. at 69.) He testified that the bar rarely had customers during the hours he worked - between 11 a.m. and 2:00 p.m. (Tr. at 84-85.) He was able to alternate sitting and standing while he worked, and he did not do any lifting or stocking. (Tr. at 85.) Plaintiff also did some work for his uncle on two occasions, helping install windows. (Tr. at 69-70.) Prior to the alleged onset date, he worked installing windows and doors. (Tr. at 70-71.)

         Plaintiff testified that on November 15, 2010, he underwent cervical fusion surgery following a neck injury 10-12 years earlier. (Tr. at 71-72.) He indicated that physical therapy helped for quite a while, but he eventually started losing feeling in his hands, dropping things, and losing use of both arms, necessitating the surgery. He testified that following the surgery he continued to have limited range of motion, pain in his neck, and occipital nerve damage, causing frequent headaches. His left arm did get better, but his right arm was considerably worse, weaker and number. He underwent physical therapy after the surgery, but it did not help. He also twice attempted to have a spinal cord stimulator implanted (on both occasions it had to be removed due to complications, and he did not want to try a third time) and received frequent facet injections and occipital nerve blocks. (Tr. at 72, 77.) He also took a variety of medications, including Oxycodone. (Tr. at 73-74.) The medications did not help the pain. (Tr. at 76.)

         Plaintiff further testified that he had recently undergone two surgeries on his left knee, one in October 2013 and the other shortly before the hearing (at which he appeared on crutches). (Tr. at 76, 80.) His medication dosage was increased after the second surgery. (Tr. at 76.) He denied that he had ever gone off his pain medication.[4] (Tr. at 77.) He indicated that he periodically used a cane prior to his knee surgery. (Tr. at 80.)

         Plaintiff testified that he performed limited household chores, e.g., vacuuming his room, making his bed once per week, occasionally cooking. He went grocery shopping once per month. (Tr. at 82.) He did not attend his daughter's school functions and did little with her at home.[5] (Tr. at 83.)

         Plaintiff testified that his ability to sit varied day to day; he could stand for 20-30 minutes and walk about 4-½ blocks. (Tr. at 86.) He spent a lot of time lying down. (Tr. at 86, 90.) He could lift 10-15 pounds off the ground, 25 from a table. (Tr. at 87.) Plaintiff denied that he helped his father around the house, saying it was the other way around. (Tr. at 87-88.)

         Plaintiff also reported having “freeze” headaches from the occipital nerve. (Tr. at 90.) He further reported memory problems based on a combination of pain and medications. (Tr. at 91.) His right arm symptoms included severe pain in the elbow and numbness from the elbow down. He also had a lack of strength and dropped things. (Tr. at 92.)

         The VE classified plaintiff's past work as a window installer and maintenance carpenter as medium under the Dictionary of Occupational Titles (“DOT”), but very heavy as performed. (Tr. at 96.) The ALJ then asked a hypothetical question, assuming a person capable of light work, with no exposure to hazards. (Tr. at 96.) Those restrictions would rule out the past work, but the person could do other jobs including mail clerk, parking lot attendant, and office helper. (Tr. at 97.)

         D. First ALJ Decision and Appeals Council Review

         On March 25, 2014, the ALJ issued an unfavorable decision. (Tr. at 228.) The ALJ determined that plaintiff suffered from a number of severe impairments (Tr. at 233), but that he nevertheless remained able to perform a range of light work (Tr. at 236). In so concluding, the ALJ partially credited the reports of the agency medical consultants but said nothing about Dr. More-O'Ferrall's opinions. (Tr. at 238-39.) Relying on the VE's testimony, the ALJ concluded that plaintiff could perform a number of jobs and therefore was not disabled. (Tr. at 240-41.) On June 26, 2015, the Appeals Council granted plaintiff's request for review, vacating the decision and remanding for a new hearing based on the ALJ's failure to discuss Dr. More-O'Ferrall's reports. (Tr. at 250-51.)

         E. ...

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