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Gresham v. Colvin

United States District Court, D. Nebraska

March 27, 2017

JAMES T. GRESHAM, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


          John M. Gerrard United States District Judge

         This matter is before the Court on the denial, initially and upon reconsideration, of plaintiff James T. Gresham's disability insurance benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. and § 1381 et seq. The Court has considered the parties' filings and the administrative record, and reverses the Commissioner's decision to deny benefits. The Court will remand this case to the Commissioner for calculation and award of benefits.


         Gresham filed applications for disability insurance benefits and supplemental security income in February 2013. Gresham's claims were denied initially (T107-110) and on reconsideration (T118-121). Following a hearing, an administrative law judge (ALJ) determined that Gresham was not disabled under the Social Security Act, and therefore not entitled to disability benefits. T22. The ALJ determined that, although Gresham suffered from severe impairments, he had the residual functional capacity to perform other jobs that exist in significant numbers in the national economy. T14-T22. The Appeals Council of the Social Security Administration denied Gresham's request for review of the ALJ's decision. T1-3. Gresham's complaint seeks review of the ALJ's decision as the final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g). Filing 1.


         1. Medical History

         Gresham's medical history is generally summarized as follows. In 2005, after experiencing numbness from the neck down, Gresham underwent a magnetic resonance imaging (MRI), which detected the possibility of multiple sclerosis (MS). Gresham underwent a second MRI soon thereafter, and that report, too, was consistent with MS. T266.

         The numbness recurred in 2011. So, on or around February 1, Gresham visited Dr. Rana Zabad, a neurologist at the University of Nebraska Medical Center. T18; see T279-282. According to Dr. Zabad, Gresham's recurrence "started with the left arm, moved to the left leg, then to the contralateral side." T280. Records from the visit also indicate that Gresham was experiencing fatigue, was "very moody and sometimes verbally aggressive, " and had-since 2006-been experiencing "throbbing headache[s] associated to phonophobia and photophobia." T280. Dr. Zabad concluded with relative certainty that Gresham had relapsing and remitting MS, but decided against prescribing medication, noting that Gresham was "recovering nicely" from the relapse. T281.

         In 2013, Gresham went back to Dr. Zabad, reporting that his left side was totally numb, his bladder control was "not optimal, " and that he was experiencing problems maintaining balance. T266. In her reports, Dr. Zabad confirmed Gresham's relapsing and remitting MS, writing that he "has a high burden of disease on his cervical spinal cord and brain stem." T268. But she expressed concern regarding "disease-modifying therapy, " citing Gresham's prior "nonadherence and risky behavior." T268. "If he desires therapy, " she wrote, "I feel comfortable that he goes on Copaxone, which is known to be safe and does not require any monitoring." T268.

         Gresham had several follow-up visits with Dr. Zabad in 2013 and 2014. See, T269-272; T295-96; T358-360; T362-64. The records from those visits are largely consistent, and reflect Gresham's general complaints regarding numbness, blurred vision, and frequent urination. T18-19; T295; T358. But they also suggest, to some degree, the relative normality of Gresham's physical capabilities. In one report, for example, Dr. Zabad writes: "[Gresham] is exercising more: pull ups, cardiovascular 3x/week for 30-45 minutes." T358. And in others, she comments (or otherwise indicates) that Gresham is ambulatory, that his motor and coordination is normal, and that he is mentally sound. T18; T296-97; T359-360.

         On September 9, 2013, Dr. Zabad issued a letter to Gresham's attorney supporting his present application for Social Security benefits. In the letter, Dr. Zabad wrote that Gresham's symptoms-namely, his inability to walk for prolonged periods of time, bladder urgency, and significant fatigue-render him unable to work. T376-77. She elaborated:

Very early on [Gresham] had a relapse that affected the left side of his body including the arm and leg. Although on his neurological examination his motor deficit is not significant, it is well known however that in patients with multiple sclerosis strength worsens with repetitive activity and exertion. Therefore I don't believe that he can sustain a job that requires him to stand and/or walk for six hours out of an eight-hour day because of his muscular fatigability.
. . .
Due to the symptoms described above, James is likely to miss at least three days of work in a month due to his relapsing-remitting multiple sclerosis. Furthermore based on the symptoms which are constant and chronic and likely to worsen with time, I do not believe that he's able to work eight hours a day, five days a week on a regular and continuing basis.


         Dr. Zabad wrote another letter on Gresham's behalf on July 31, 2014. T376. There, Dr. Zabad reiterated her concerns regarding Gresham's ability to work, citing fatigue and bladder urgency, among other issues. T376. She also noted the results of a July 29, 2014 MRI, which revealed "progression of his left sided weakness, " but no new inflammation. T376. She continued, "[a]s his MRI is [] not showing inflammation, it means that [Gresham] is reaching the point where he is progressing because of the nerve cells dying. Unfortunately this is not something amenable to treatment with medication or physical therapy and is the signature of a chronic progressive and irreversible disease such as MS." T376

         The record also contains reviews from state agency medical consultants Jerry Reed, M.D., and Robert Roth, M.D. See, T65-72; T93-102. Based on Dr. Reed's observations, Gresham's conditions do, in some respects, limit his ability to work. But overall, he said, "[w]e have determined that your condition is not severe enough to keep you from working." T72. Dr. Roth reached the same result upon reconsideration, although cautioning that Gresham's MS and history of migraines "may progress over time." T96. "At this point however, medical evidence appears to show some stability in his disease with only moderate symptoms." T96.

         2. Hearing Testimony

         At the administrative hearing, Gresham testified to his medical condition and symptoms, which generally mirrored the symptoms discussed above. He explained, for example, the numbness on the left side of his body and his persistent feeling of dizziness and fatigue. T35-36. He also described certain limitations regarding the use of his left arm and leg, such as an inability to lift or carry objects or walk long distances. T39-42. And he described problems pertaining to bladder control and migraines, which he experiences, on average, four times a week. T49. As a result of these symptoms, Gresham testified, he has difficulty standing for over an hour; is required to take at least a 1 hour nap per day; is unable to sit in a standard "business chair"; is sensitive to heat; and is limited in energy and physical mobility. T34-53.

         The ALJ then questioned Gresham about his physical capabilities, particularly in light of his purported limitations. On this point, the ALJ noted that, according to the record, Gresham was capable of going to the grocery store, taking short walks, and performing yard work. T51-52. Gresham confirmed these reports, noting his ability to perform basic tasks for short periods of time. T52. The ALJ also asked about Gresham's exercise regimen which, at one time, included cardiovascular activities four times a week. T53. Gresham responded:

Yes, that's when the MS wasn't, it wasn't bothering me as much. It has, like I said, I have good days and I have bad days. But since my last attack I've had to slow down. There's certain things, I've been going through an MS support group and they've been showing me how to do certain things, but I have not been able to do a lot of things that I would like to do.

T53. The ALJ then reviewed Gresham's work history dating back to 1998, noting Gresham's prior work as a machinist, welder, ...

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