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Corder v. Berryhill

United States District Court, E.D. Wisconsin

June 27, 2018

LAWRENCE CORDER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         In this action for judicial review, plaintiff Lawrence Corder challenges the Commissioner's partially favorable decision on his application for social security disability benefits. Plaintiff alleged that he could no longer work due to back pain and a number of other impairments. He underwent back surgery on March 9, 2016, recovering well, and on June 2, 2016, his surgeon released him to return to work without restrictions. A month later, his primary care physician indicated that he could perform a reduced range of medium level work.

         The Administrative Law Judge (“ALJ”) assigned to the case found plaintiff disabled through June 25, 2016, but concluded that by June 26, 2016, plaintiff had improved to the point where he could handle medium level work and thus perform his past job as a machinist, as well as a number of other jobs in the economy. In reaching this conclusion, the ALJ discounted plaintiff's statements that he remained disabled after his doctors released him, as well as certain of the restrictions recommended by the primary care physician.

         Plaintiff challenges the ALJ's evaluation of his statements, the primary doctor's opinions, and the nature of his previous machinist job. Because the ALJ applied the correct legal standards and supported his work capacity determination with substantial evidence, and because any error regarding past work was harmless given the ALJ's alternate finding that plaintiff could do other jobs, I affirm the ALJ's decision.

         I. STANDARDS OF REVIEW

         A. Disability Standards

         A person qualifies as disabled if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. Barnhart v. Walton, 535 U.S. 212, 214 (2002) (citing 42 U.S.C. §§ 423(d)(1)(A), § 1382c(a)(3)(A)). In determining whether a claimant is disabled, the ALJ applies a sequential, five-step test. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Under this test, the ALJ asks:

(1) Is the claimant currently working, i.e., doing substantial gainful activity? If so, [he] is not disabled.
(2) If not, does the claimant have a severe medically determinable physical or mental impairment? If not, the claimant is not disabled.
(3) If so, does the claimant's impairment meet or equal one of the presumptively disabling impairments set forth in the agency's Listings? If so, the claimant is disabled.
(4) If not, does the claimant retain the residual functional capacity (“RFC”) to perform [his] past relevant work? If so, [he] is not disabled.
(5) If not, can the claimant, based on [his] RFC, age, education, and work experience make an adjustment to other work? If so, [he] is not disabled. If not, [he] is disabled.

Lang v. Berryhill, No. 16-C-602, 2017 U.S. Dist. LEXIS 65933, at *2-3 (E.D. Wis. Apr. 29, 2017). The claimant bears the burden of presenting evidence at steps one through four, but if he reaches step five the burden shifts to the Commissioner to show that the claimant can make the adjustment to other work. The Commissioner may carry this burden by either relying on the Medical-Vocational Guidelines, a chart that classifies a person as disabled or not disabled based on his age, education, work experience, and exertional ability, [1] or by summoning a vocational expert (“VE”) to offer an opinion on other jobs the claimant can do despite his limitations. McQuestion v. Astrue, 629 F.Supp.2d 887, 892 (E.D. Wis. 2009).

         In some cases, the ALJ may find the claimant disabled for a finite amount of time, known as a “closed period.” “Before limiting benefits to a closed period, an ALJ must conclude either that a claimant experienced ‘medical improvement' as evidenced by changes in the symptoms, signs, or test results associated with [his] impairments, or else that an exception to this rule applies.” Tumminaro v. Astrue, 671 F.3d 629, 633 (7th Cir. 2011) (citing 20 C.F.R. § 404.1594). In this situation, the ALJ applies an eight-step test, asking:

(1) Is the claimant engaging in substantial gainful activity? If so, disability ends.
(2) If not, does the claimant have an impairment which meets or equals the severity of an impairment set forth in the Listings? If so, disability continues.
(3) If not, has there been medical improvement? If there has been medical improvement as shown by a decrease in medical severity, proceed to step 4. If there has been no decrease in medical severity, proceed to step 5.
(4) If there has been medical improvement, is it related to the claimant's ability to do work, i.e., has there been an increase in RFC based on the impairment(s)
present at the time of the most recent favorable determination? If medical improvement is not related to the ability to do work, proceed to step 5. If medical improvement is related to the ability to do work, proceed to step 6.
(5) If the ALJ found at step 3 that there has been no medical improvement or at step 4 that the medical improvement is not related to the claimant's ability to work, does an exception apply? If not, disability continues.[2]
(6) If the medical improvement is related to the ability to work, are the claimant's current impairments severe? If not, disability ends.
(7) If the current impairments are severe, will the claimant's current RFC permit the performance of [his] past work? If so, disability ends.
(8) If the claimant cannot perform past work, is [he] able, given [his] current RFC, age, education, and experience, to perform other work? If so, disability ends. If not, disability continues.

Lang, 2017 U.S. Dist. LEXIS 65933, at *3-4 (citing 20 C.F.R. § 404.1594(f)).

         B. Judicial Review

         The reviewing court does not redetermine disability but rather decides whether the ALJ's decision applies the correct legal standards and is supported by substantial evidence. Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). Legal conclusions are reviewed de novo, factual findings deferentially. Casey v. Berryhill, 853 F.3d 322, 326 (7th Cir. 2017). Findings supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion must be upheld. Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir. 2018). The court may not re-weigh the evidence or substitute its judgment for that of the ALJ. Summers, 864 F.3d at 526. While the ALJ must provide an accurate and logical bridge between the evidence and his conclusions, he is not required to address in writing every piece of evidence and testimony contained in the record. Murphy v. Colvin, 759 F.3d 811, 815 (7thCir. 2014).

         II. FACTS AND BACKGROUND

         A. Summary of the Case

         Plaintiff applied for benefits in February 2013, alleging a disability onset date of January 1, 2012, which he later amended to December 16, 2014. He reported previous employment in a number of positions, including machinist and parts inspector; he also advised that for a time he cleaned rooms at the hotel where he and his girlfriend lived in exchange for free rent. He alleged that he could no longer work due to a variety of impairments, including back, shoulder, leg, and heart problems. In his initial decision in the case, issued in October 2015, the ALJ found that plaintiff's impairments limited him to sedentary work, but that he could still do his past job as an inspector. The Appeals Council reversed, primarily because the record did not establish that plaintiff held the sedentary inspector job long enough for it to qualify as past relevant work.[3] On remand, the ALJ found plaintiff disabled from December 16, 2014, through June 25, 2016, but not thereafter, and this appeal concerns the ALJ's finding of medical improvement as of June 26, 2016. I first set forth the pertinent medical evidence and the procedural history of the case, before turning to plaintiff's challenges to the ALJ's decision.

         B. Medical Evidence

         Plaintiff suffered a heart attack, with placement of stents, in 2010. (Tr. at 452, 461, 956, 969.) During subsequent follow ups, plaintiff's cardiologist, Dr. James Moran, found plaintiff's coronary artery disease to be clinically stable with no new complaints. (Tr. at 447-48, 472, 603, 613, 1191, 1195.) The medical evidence also records a history of leg fractures (Tr. at 452, 461, 969-70), but x-rays taken in June 2013 showed healing fractures with no acute problems (Tr. at 460). The record sets forth a more extensive course of treatment for plaintiff's back impairment, culminating in the March 2016 surgery. The record also documents a surgery for carpal tunnel syndrome in July 2015, as well as sporadic complaints of knee and shoulder pain.

         In April 2012, plaintiff went to the emergency room complaining of low back pain, radiating into his legs. (Tr. at 551.) Doctors provided Vicodin and ordered a lumbar MRI (Tr. at 552), which revealed mild to moderate degenerative changes, most prominent at the L4 level (Tr. at 549-50, 553). Later that year, plaintiff received a series of epidural steroid injections, along with physical therapy and pain medications. (Tr. at 450, 451, 546, 544-45, 542-43, 540-41.)

         In March 2013, plaintiff reported significant relief from the injections until recently. He also reported shoulder pain following a slip in January, when he grabbed a railing to catch himself. He denied any weakness in the arm. On exam, he displayed a non-antalgic gait, with full hip and knee range of motion, and negative straight leg raise for radiating pain. Examination of the left shoulder showed no visible abnormalities; range of motion was full and symmetric with the right, and he had full strength in the upper extremities. (Tr. at 457.) He was encouraged to remain active, pursue some weight loss, and discuss the possibility of anti-inflammatory medications with Dr. Moran. It was thought to be too soon for more injections. If his back symptoms persisted, however, he would follow up to determine whether surgical intervention was necessary. (Tr. at 458.) A June 2013 x-ray of left shoulder revealed acromioclavicular arthropathy. (Tr. at 459.)

         In July 2013, after he filed his application for benefits, plaintiff underwent an orthopedic consultative examination with Dr. Kurt Reintjes set up by the agency. Plaintiff reported a progressive history of lower back pain that had become more pronounced since January 2012. He also reported pain in both shoulders. (Tr. at 461.) On exam, he stood 5'9" and weighed 215 pounds. Upper extremity exam demonstrated full range of motion with bilateral grip strength of 5 out of 5 and intact dexterity. No. tenderness or crepitation was noted in either shoulder, and he had full strength in all major muscle groups. Both knees demonstrated full range of motion, but with significant crepitus in the right knee when flexed to greater than 110 degrees and moving into a fully extended position. Spinal exam demonstrated forward flexion to 70 degrees, rear extension to 35 degrees returning to a neutral position without any difficulty. Straight leg raises were negative bilaterally. (Tr. at 462.) Gait and station were normal. Dr. Reintjes concluded that plaintiff experienced mechanical lower back pain due to a degenerative process of the lower lumbar spine, exacerbated by heavy lifting, pushing, or pulling in a repetitive fashion. The pain appeared to be well controlled when he was more sedentary and performed appropriate exercises. He also reported shoulder pain, which could be bilateral rotator cuff syndrome, though these were not presenting as any significant findings during the exam. His right lower leg functioned well, only with the note of significant patellofemoral crepitus during flexion and extension of the right knee. (Tr. at 463.)

         In November 2013, plaintiff went to the emergency department for left hip pain, worse with ambulation and prolonged sitting. (Tr. at 494.) On exam, he displayed normal range of motion without pain and normal gait; x-rays were unremarkable. Doctors concluded that the pain seemed to be inflammatory in nature, prescribing a Prednisone burst. If not improved, he was to seek a physical therapy referral from his primary doctor. (Tr. at 497, 509.)

         On December 6, 2013, plaintiff saw his primary physician, Michelle Wagner, M.D., reporting back pain of several years' duration. He indicated that he used to have pain down both legs, but now just in the left hip and knee. Injections had decreased his pain for a while, but he now thought he might need surgery, although he did not want to look into that immediately. The medications he had received in the emergency room in November helped. (Tr. at 591.) On exam, he displayed mild tenderness to palpation of lumbar paraspinal muscles, no knee effusion, and positive straight leg raise on the left. Gait and station were normal. Dr. Wagner provided Tramadol for pain, along with a referral to pain management for another round of injections or other treatment short of surgery. (Tr. at 593.) On December 16, 2013, plaintiff saw Robert Culling, D.O., regarding a new series of injections. (Tr. at 493.)

         On January 9, 2014, plaintiff advised Dr. Wagner that the Prednisone and Tramadol had worked for awhile but his left leg pain was now worse. He also complained of pain on the medial side of the left knee. (Tr. at 594.) On exam, he displayed normal range of motion, no joint effusion, tender lumbar paraspinal muscles on the left, and normal gait and station. Dr. Wagner assessed low back pain with radiculopathy, ordering a repeat MRI, adding Tylenol #3, refilling Tramadol, and advising plaintiff to continue to see pain management for injections. She also obtained x-rays of the knee and would consider a cortisone injection if the knee pain persisted. (Tr. at 595.) The left knee x-rays revealed no evidence of fracture, dislocation, or other acute osseous abnormality; small joint effusion was present. (Tr. at 582.) The lumbar MRI revealed moderate degenerative changes in the lumbar spine, most prominent at ¶ 4, worse compared to the previous scan. (Tr. at 500-01.)

         On January 15, 2014, plaintiff told Dr. Wagner that since starting Tylenol #3 his knee pain had not been bothering him at all, so she decided to hold off on an injection. (Tr. at 596.)

         On exam, he displayed tenderness to palpation of the joint lines of the left knee, no effusion, and well-preserved range of motion. (Tr. at 597.) However, on January 31, 2014, plaintiff complained of increased right shoulder and left knee pain. The medications had been helping, but he ran out of both Tylenol #3 and Tramadol. (Tr. at 598.) On exam, he displayed tenderness to palpation of the medial joint line of the left knee, with no joint effusion or erythema. The right shoulder was tender at the AC joint, with clicking heard with rotation of the humerus; he displayed well-preserved range of motion, though some movements caused mild discomfort. He had full strength in the upper extremities, as well as normal gait and station. Dr. Wagner injected the knee, ordered x-rays of the shoulder, and refilled Tramadol and Tylenol #3. (Tr. at 600.) The right shoulder x-ray showed mild degenerative change of the acromioclavicular joint, with no evidence of fracture or dislocation. (Tr. at 583.)

         On March 3, 2014, plaintiff saw Dr. Wagner for follow up, reporting that his knee was much better since the injection. (Tr. at 600-01.) However, his back had been more painful, with the medications not working as well. (Tr. at 601.) On exam, he displayed mild lumbar paraspinal tenderness, with no active muscle spasm, normal gait and station, and normal strength in the bilateral lower extremities. Dr. Wagner provided a referral for low back injections, which he had been unable to obtain previously due to lack of insurance. In the meantime, she increased his pain medication to Tylenol #4 and refilled Tramadol. (Tr. at 602.) In April 2014, plaintiff received lumbar injections from Dr. Shailesh Joshi at the pain clinic. (Tr. at 531-34, 1120-23.)

         On May 21, 2014, plaintiff told Dr. Wagner that the injections had helped, but his pain was returning. (Tr. at 606.) On exam, he displayed mild tenderness to palpation of the lumbar paraspinal muscles, no active spasm, no pain at the SI joints, normal range of motion of the hips, negative straight leg raise bilaterally, and normal gait and station. His low back pain seemed more muscular in origin at that time, so Dr. Wagner provided a Prednisone burst to calm down the inflammation and started a muscle relaxer. (Tr. at 607.)

         On June 4, 2014, plaintiff reported that the steroids and medications had helped. (Tr. at 608.) On exam, he displayed mild tenderness to palpation of the lumbar paraspinal muscles, no active spasms, negative straight leg raise bilaterally, and normal gait and station. (Tr. at 609.) Dr. Wagner prescribed a course of physical therapy (Tr. at 610), which plaintiff canceled after just three sessions, indicating that it was not helping (Tr. at 898-99).

         On July 21, 2014, plaintiff saw Dr. Michael McNett for pain management. (Tr. at 811.) On exam, he displayed little if any hypertonicity or tenderness of the lumbar pasaspinal muscles; straight leg raise was negative on the right, positive on the left. (Tr. at 813.) Dr. McNett prescribed Gabapentin and Cymbalta. (Tr. at 815.)[4] Plaintiff followed up with Corina Welch, PA-C, on August 20, doing well on Gabapentin. He also reported using Hydrocodone, which he had received from his primary doctor. (Tr. at 816.) Medications were continued. (Tr. at 818.) On October 16, plaintiff indicated that for the most part his pain was controlled. (Tr at 819.) On exam, he rose independently and ambulated with a mildly antalgic gait and mildly stooped posture, with tenderness to palpation about the lumbar spine. Straight leg raise was negative. PA Welch continued Gabapentin, Cymbalta, and Hydrocodone, and encouraged him to resume a home exercise program for core strengthening. (Tr. at 820.) On December 15, plaintiff again indicated that his pain was controlled for the most part; some days he had next to no pain. (Tr. at 822.) On exam, he rose independently, ambulated with a non-antalgic gait, with negative straight leg raise. (Tr. at 823.) PA Welch continued medications and ordered a lumbar brace for him to wear when walking his dog. (Tr. at 824.) On February 12, 2015, plaintiff reported that he had been out of Gabapentin for about two weeks. He had not noted much change in his pain. He continued to complain of right lower extremity pain. He also reported bilateral shoulder pain, right greater than left. (Tr. at 825.) On exam, he rose independently to a standing position and ambulated with a non-antalgic gait; straight leg raise was negative and strength full. There was tenderness about the lumbar spine. Bilateral shoulders had limited range of motion, with mild decreased strength with resisted external rotation and mild crepitus with range of motion above 90 degrees, but no tenderness over the AC joints. (Tr. at 826.) PA Welch planned physical therapy for both shoulders, with cortisone injections to follow if he did not respond. She also continued Cymbalta, Gabapentin, and Hydrocodone. (Tr. at 827.)

         On March 7, 2015, plaintiff returned to Dr. Wagner, complaining of left hand/wrist pain, numbness, and tingling for the past week. (Tr. at 610.) On exam, he had normal range of motion of the wrists and hands, no tenderness to palpation of the left wrist, elbow, or fingers, and positive Tinnel's and Phalen's tests on the left. She assessed left carpal tunnel syndrome, providing a wrist splint; if the problems persisted, they would consider an EMG test or referral to a hand specialist. (Tr. at 612.)

         On April 9, 2015, plaintiff returned to pain management, advising PA Welch that the pain medication was not as effective as it had been. He was starting a part-time job at a golf course, and she advised him not to overdo it. On exam, he rose independently to a standing position, ambulating with a mildly antalgic gait and with a cane. Strength was good. He displayed mild tenderness on palpation of the lumbar spine. (Tr. at 829.) She increased his pain medication dose and ordered physical therapy and a TENS unit. (Tr. at 830.)

         From April 15 to May 18, 2015, plaintiff attended physical therapy for his back, with the notes indicating improvement in his functioning over this time. (Tr. at 625-63.) At the May 18, 2015 session, plaintiff told the therapist that everything felt perfect over the weekend. He had to clean four or five rooms, and his back felt just fine. He had to do some more cleaning that day as well. (Tr. at 662.)

         On May 13, 2015, plaintiff saw Dr. Wagner for follow up of left hand numbness, reporting no improvement with the brace. (Tr. at 619.) She provided a referral to orthopedics for possible injections or surgery. (Tr. at 620.) A May 20, 2015, EMG nerve conduction study of the left upper extremity showed neuropathy at the left wrist compatible with severe left-sided carpal tunnel syndrome. (Tr. at 524.)

         On June 4, 2015, plaintiff saw PA Welch, reporting increased fatigue over the last week, although the change in his pain medication had been beneficial. He reported increased pain in the right shoulder; he indicated that he had been scheduled to undergo rotator cuff surgery years ago but lost his insurance and had not sought further treatment for it since then. (Tr. at 832.) On exam, he rose independently to a standing position and ambulated with a non-antalgic gait. Right shoulder range of motion was well maintained with pain above 90 degrees, and 4/5 strength with resistance on the right. (Tr. at 833.) PA Welch continued medications and would seek authorization for a right shoulder injection. (Tr. at 834.)

         On June 9, 2015, plaintiff saw Dr. Thomas Niccolai for his left wrist pain and numbness. (Tr. at 621.) On exam, he had full wrist range of motion and good grip strength. Dr. Niccolai assessed carpal tunnel syndrome, recommending carpal tunnel release under local anesthesia.

         (Tr. at 622.) On July 13, 2015, Dr. Niccolai performed the release procedure. (Tr. at 703-04.) Plaintiff experienced a post-surgical infection (Tr. at 726, 735, 740, 748-49, 754-55), which required an incision and drainage procedure later that month, followed by a course of antibiotics (Tr. at 797.) By August 5, plaintiff reported that his pain had resolved and his hand felt good. (Tr. at 804.) On August 12, he reported no problems other than itching around the incision. On exam, he displayed fairly decent wrist range of motion. Hand strength was full and symmetric. (Tr. at 807.) At an August 19 follow-up, his wrist range of motion was full and symmetric, and hand strength full and symmetric bilaterally. He was overall “doing quite well.” (Tr. at 808.) By September 1, he reported that all of the numbness and tingling had resolved. He had no pain in the hand, hand strength was full and symmetric, and Tinel's and Phalen's tests negative. (Tr. at 943.) By September 8, he was off oral antibiotics. He denied pain, numbness, or tingling in hand. “His preoperative symptoms have resolved.” (Tr. at 946.) Strength in his hands was full and symmetric bilaterally, and he had returned to his normal two hours/day work without difficulty. “He has no distinct restrictions at this point regarding the hand.” (Tr. at 946.) On September 29, he was noted to be doing “exceptionally well.” (Tr. at 946.) He denied any of his preoperative symptoms and had returned to his normal work without difficulty. (Tr. at 946.) Hand strength was full and symmetric bilaterally, and all preoperative left hand symptoms had resolved despite the post-surgical complication. The provider noted: “He has no real restrictions at this point.” (Tr. at 947.)

         On September 28, 2015, plaintiff saw Amy Lovell, PA-C, for follow up of his chronic back pain, which he indicated had increased since his last visit. He did report walking a lot the past weekend when going out of town to Huntley, Illinois. He was having to stop and bend over when walking his dog to get pain relief. He was taking Norco three times per day. He did complete a course of physical therapy for his back but was not consistently doing the exercise routine at home. He had a TENS unit, which did provide him with good pain reduction. (Tr. at 949.) On exam, he rose independently and walked with a ...


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