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Ross v. Berryhill

United States District Court, W.D. Wisconsin

May 9, 2019

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


          Barbara B. Crabb, District Judge.

         Plaintiff Kenneth Ross is seeking review of a final decision by defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying his claim for disability insurance benefits under the Social Security Act and finding him capable of limited light level work. 42 U.S.C. § 405(g). Plaintiff seeks remand of that decision, contending that the administrative law judge who decided the case did not give adequate reasons for rejecting the opinions of plaintiff's treating physician and failed to consider his borderline age category when applying the agency's Medical Vocational Guidelines. For the reasons explained below, I am remanding this case for further consideration of plaintiff's borderline age category. On remand, the administrative law judge also should take care to consider all of the limitations assessed by plaintiff's treating physician, including any related to nonsevere impairments, and provide reasons for the weight she attributes to them.

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


         A. Background

         Plaintiff Kenneth Ross was born on November 26, 1959, making him 54 years old when he applied for benefits on May 20, 2014 and on his last insured date, September 30, 2014. AR 14-16. Plaintiff contends that he became disabled on October 20, 2011. However, he did not receive any medical care until April 3, 2014, when he was hospitalized for a left tibia and fibula fracture after he slipped on a rug in his home. AR 16-17, 19, 36.

         In October 2011, plaintiff was laid off from his seasonal employment with Fleming Marine Construction, for which he installed and repaired seawalls. AR 36-37. He has been unemployed since that time but does some work on the property where he lives in exchange for room and board. AR 39, 42-45.

         B. Relevant Medical Treatment

         On April 18, 2014, orthopedic surgeon Dr. Hugh Bogumill performed surgery on plaintiff for intramedullary rodding of the left tibia. AR 19 (citing AR 287 and 291). Dr. Bogumill continued to treat plaintiff for the next two and a half years.

         At a post-surgery followup visit on April 28, 2014, plaintiff reported that he was doing “okay” but had some discomfort around his ankle area. AR 264. He also complained that he has right shoulder pain from a past clavicle fracture while reaching or trying to lift overhead. Dr. Bogumill observed that plaintiff had crepitance (popping or cracking) with shoulder motion and 160 degrees of flexion and abduction. He suspected that plaintiff had rotator cuff impingement but noted that he would evaluate plaintiff further and have x-rays taken after plaintiff was off crutches. AR 265.

         On May 28, 2014, plaintiff reported that he was having shoulder pain with any reaching and some stiffness and swelling in his foot. However, he stated that he thought he could start walking on his left leg. AR 261. At this visit, Dr. Bogumill diagnosed Dupuyten's contracture (a hand deformity pulling the finger into a bent position) in plaintiff's right ring finger, but noted that the condition was not causing plaintiff any functional problems. Again, Dr. Bogumill stated that he would consider treatment for plaintiff's shoulder and hand after plaintiff was off crutches. AR 262.

         On June 27, 2014, plaintiff reported that he had discomfort in his calf and some swelling and was not wearing his brace or putting any weight on his leg. AR 301-02. Dr. Bogumill observed some but not excessive residual swelling in plaintiff's lower leg and foot and tenderness in his fibular shaft. X-rays also showed that plaintiff's fibula fracture showed no signs of healing over past 90 days. Dr. Bogumill stated that he advised plaintiff that fractures in this area are notorious for delayed unions and nonunions because of the watershed nature of the blood flow. He also explained that chronic tobacco use and diabetes delays healing. AR 302.

         At Dr. Bogumill's recommendation, plaintiff began physical therapy on September 22, 2014. AR 427-30. Although he had very limited tolerance for weight-bearing activities at that time, his walking ability had progressed by September 29, 2014, when he reported wearing a walking boot while mowing his lawn and using just one crutch on occasion. AR 431. On October 6, 2014 (soon after the expiration of his date last insured), plaintiff reported that his leg was getting better each time he went to therapy and that he had been walking a lot with two crutches when the weather was good. AR 435. By the middle to end of October 2014, plaintiff reported that although he had ankle and foot pain, he could walk around his home without crutches. AR 320, 461. On November 14, 2014, plaintiff stated that he was able to snowplow his driveway and had been using only one or no crutch for weeks. AR 467. In early December 2014, plaintiff reported being able to tolerate “much more” activity without pain and only using one crutch for long-distance walking or climbing stairs. He was 75 percent weight-bearing on the left side. AR 324, 472, 484, 486. Plaintiff was discharged from therapy on December 29, 2014. At that time he reported that his knee was the most limiting factor for his activity and that he had not been using crutches and could be “pretty active” all day and then be really sore the next day. AR 494. Although plaintiff was rated as having moderate difficulty with his usual activities, squatting and walking one mile, he had no difficulty sitting for one hour and only a little bit of difficulty walking between rooms, performing light activities, walking two blocks and standing for one hour. AR 494-95.

         During his appointments with Dr. Bogumill in January and February 2015, plaintiff complained of knee pain that hurt when he walked, knelt or squatted. In February 2015, plaintiff also reported some discomfort in his shoulder that became worse with reaching overhead. Dr. Bogumill noted that plaintiff's surgical repair was healing well and recommended that he should continue exercising and walking and be off pain medication. He ordered a magnetic resonance imaging study of plaintiff's left knee, which showed some degenerative changes but no definite tear. Dr. Bogumill concluded that plaintiff's tibia and fibula were healed and that his knee pain was tendinosis that could be treated with a cortisone injection and should improve with increased activity. He planned to observe plaintiff's shoulder and Dupuytren's contracture. AR 327-31.

         On October 22, 2015, a physician's assistant noted that plaintiff could walk two flights of stairs and four city blocks at a normal rate, and on examination, he had a normal gait and no musculoskeletal complaints. AR 332-33. Although Dr. Bogumill performed hand surgery on plaintiff in November 2015 to release his Dupuytren's contracture and continued to treat plaintiff's hand for a few months, there are no further treatment records concerning plaintiff's shoulder, knee or leg. AR 333-54, 519-83.

         C. Dr. Bogumill's Opinions

         1. August 7, 2014 physical capacities evaluation

         Dr. Bogumill diagnosed a left distal tibial proximal fibula fracture with calf, ankle and foot pain, stiffness, knee and ankle swelling and inability to bear weight without pain. AR 306. Plaintiff's left leg fracture required him to use a fracture boot on the left leg and crutches to move about. Dr. Bogumill assessed the following limitations:

• plaintiff's symptoms “often” would be severe enough to interfere with the attention and concentration needed to perform simple work-related tasks;
• sitting for eight hours, standing for one hour and not walking at all during an eight-hour day;
• change positions every hour;
• unscheduled breaks as often as every hour during an eight-hour workday to elevate his legs to decrease swelling;
• no lifting, carrying, squatting, kneeling, crawling, climbing, using a ladder, working on uneven surfaces, unprotected heights or being around moving machinery;
• occasional bending or reaching above shoulder level;
• a moderate restriction in driving automotive ...

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