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Vang v. Berryhill

United States District Court, D. Nebraska

December 7, 2017

GREGORY D. VANG, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff brings this action under Title II of the Social Security Act (“Act”), which provides for judicial review of “final decisions” of the Commissioner of the Social Security Administration. 42 U.S.C. § 405(g) (Westlaw 2017).

         I. NATURE OF ACTION & PRIOR PROCEEDINGS

         A. Procedural Background

         Plaintiff filed an application for disability benefits on October 9, 2015. (Filing No. 12-5 at CM/ECF pp. 188-189.) The claim was denied initially (Filing No. 12-4 at CM/ECF pp. 113-116) and on reconsideration (Filing No. 12-4 at CM/ECF pp. 118-121). On October 19, 2016, following a hearing, an administrative law judge (“ALJ”) found that Plaintiff was not under a “disability” as defined in the Act. (Filing No. 12-2 at CM/ECF pp. 9-27.) On January 19, 2017, the Appeals Council of the Social Security Administration denied Plaintiff's request for review. (Filing No. 12-2 at CM/ECF pp. 1-4). Thus, the decision of the ALJ stands as the final decision of the Commissioner. Sims v. Apfel, 530 U.S. 103, 107 (2000) (“if . . . the Council denies the request for review, the ALJ's opinion becomes the final decision”).

         B. Factual Background

         The Defendant agrees with Plaintiff's statement of facts, which are set forth verbatim below:

In his application for disability benefits, plaintiff stated that he was born on May 4, 1965, [1] and that he became unable to work on July 8, 2014. (Filing No. 12-5, at CM/ECF p. 188). The plaintiff testified that he last worked in maintenance at a Wal-Mart distribution center. (Filing No. 12-2, at CM/ECF p. 36-37). He has performed no substantial and gainful work activity since the date of his alleged onset of disability, July 8, 2014. (Filing No. 12-2, at CM/ECF p. 12).
At his hearing the plaintiff stated that he completed high school for his level of education. (Filing No. 12-2, at CM/ECF p. 36).
Plaintiff's has past relevant work consisted of working in loss prevention and store maintenance. (Filing No. 12-2, at CM/ECF p. 36-37).
The plaintiff alleged disability due to degenerative disc disease of the thoracic and lumbar spine with residuals of surgery; carpal tunnel syndrome (“CTS”); and obesity. (Filing No. 12-2, at CM/ECF p. 14).
The plaintiff has a history of lumbar disc surgery prior to his alleged onset date of disability. (Filing No. 12-2, at CM/ECF p. 40). Then, in May of 2012, the plaintiff injured his thoracic spine while doing heavy lifting on the job. (Filing No. 12-5, at CM/ECF p. 195). An MRI performed in June of 2012 revealed right mid thoracic disc herniation impinging on the spinal cord. However, no abnormal signal within the spinal cord was observed. (Filing No. 13-1, at CM/ECF p. 440). Further, despite this, the plaintiff continued to work into the month of July. At that time, the plaintiff reported that he stopped working due to radiating pain, numbness, and weakness in his legs. (Filing No. 13-1, at CM/ECF p. 432). An MRI study of the lumbar spine was also performed at that time, which revealed degenerative changes at ¶ 4-5, with post-operative changes causing some narrowing of the left lateral recess and left neural foramen. (Filing No. 13-1, at CM/ECF p. 439). The plaintiff was examined in March of 2015. There, he was noted to have undergone a previous fusions [sic] and discectomy of the thoracic spine in March of 2013. During this examination, in March of 2015, an updated MRI of the thoracic spine was obtained. The study revealed no significant canal or foraminal changes through T4. At ¶ 4-5, canal stenosis was found to be mild and no significant canal or foraminal changes could be seen through the remainder of the thoracic spine. At the time of this examination, the plaintiff was noted to have a BMI of over 42, which is consistent and supportive of his diagnosis of obesity. Further upon exam, despite his obesity, he was noted to have a normal cardiovascular examination; he was fully alert and oriented; and his coordination was normal. (Filing No. 13-5, at CM/ECF p. 775-778).
The plaintiff was also referred to Lincoln Orthopedic Physical Therapy for a functional capacity evaluation by licensed occupational therapist Mr. Bruce Bednar, OTR/L, CHT, CWCE, in July of 2014. There, Mr. Bednar determined that the plaintiff was best suited for light work, and that his strength and endurance would continue to improve “at some point in the future.” The plaintiff was noted to have restrictions in squatting, bending, and kneeling to an occasional basis. He was also limited to crouching and stooping on an “infrequent basis;” and he was limited to occasional overhead reaching with frequent forward reaching. Mr. Bednar also opined that the plaintiff would be able to sit or stand for 1-2 hours at a time and may require short rest breaks to relieve pain. (Filing No. 13-4, at CM/ECF p. 558-559).
Upon examination by Mr. Bednar in July of 2014, the plaintiff demonstrated full grip strength bilaterally. He was noted to be able to walk for six minutes with a normal pace and gait pattern. He was able to kneel for three full minutes. He was able to complete 10 squats. He demonstrated a full range of motion with reaching both forward and overhead, and he passed all balancing tests with his left and right lower extremities. Moreover, he was noted to be able to push and pull with a sustained force of 30 pounds and a maximum force of 40 pounds, he was observed carrying a tote weighing 20 pounds on an occasional basis, and he did not demonstrate any neurological weakness in his bilateral lower extremities; however, he did report some diminished sensation extending along the right rib cage from his thoracic spine around the right side to his front mid section. (Filing No. 13-4, at CM/ECF p. 560-565).
It should be noted that Mr. Bednar was of the opinion that the plaintiff could not engage in frequent lifting or carrying. (Filing No. 13-4, at CM/ECF p. 566).
During an examination from December of 2015, the plaintiff was found to be obese, but respiratory and cardiovascular exams were normal. Further, a sensory exam was normal; his muscle bulk and tone were normal; he was found to have normal muscle strength in all areas tested; and his coordination was normal. (Filing No. 13-7, at CM/ECF p. 884-886). During a separate exam from December of 2015, the plaintiff was noted to have a normal gait and normal posture. Further, at that time, an exam of the lumbar spine revealed normal strength and tone, no laxity or crepitus, no spasms, and no known fractures or deformities. Moreover, straight leg raise testing was negative. (Filing No. 13-7, at CM/ECF p. 881-883).
The plaintiff has been clinically diagnosed with bilateral CTS, and these diagnoses have been confirmed thought [sic] EMG and NCV studies. Said studies revealed mild right median neuropathy at the wrist and moderately severe left median neuropathy at the wrist. However, no evidence of right or left ulnar neuropathy was noted, and as mentioned, the plaintiff was able to demonstrate full grip strength during testing in June of 2016. (Filing No. 13-7, at CM/ECF p. 916).
The plaintiff presented for a follow-up examination in April of 2016, where he continued to report significant back pain. At that time, he demonstrated positive straight leg raise testing on the left with evidence of L5 type radiculopathy, and he was noted to have range of motion deficits in his lumbar spine. However, an examination of his thoracic spine was “relatively unremarkable.” (Filing No. 13-7, at CM/ECF p. 939-940).
The State agency examiners' opinions were that the plaintiff would be able to lift 10 pounds frequently, and 20 pounds occasionally; that he could stand, walk and sit for 6 hours out of an 8 hour work day; that he could never climb ladders, ropes or scaffolds, but could occasionally climb ramps or stairs, stoop, crouch, kneel and crawl. (Filing No. 12-3, at CM/ECF p. 89-98 and 100-111).
The plaintiff testified that he cannot be on his feet for enough time to perform his past work because of back spasms in his lower back and upper back and with the cramping that he has in his hands. (Filing No. 12-2, at CM/ECF p. 40). He testified that the pain level he experiences based on a 0 to 10 scale with 10 being the worst is 5-6 even though he avoids activity such as lifting, pulling, pushing and bending which aggravates his pain, and that even with these precautions, it will rise to a level of 8 or 9. He further noted that recently he had climbed three flights of stairs which caused the pain level to go to 8 or 9 and that the pain level caused him to lie down for two hours before the pain level started to subside. It was his testimony that these rises in pain level to 8 or 9 were occurring about twice a week. (Filing No. 12-2, at CM/ECF p. 41-42).
The plaintiff also testified that he has an upper back pain of 3 or 4 on the 10 point scale in the rib cage area. He noted that the pain in that area can be triggered to a level of 8 or 9 by lifting or carrying something and his pain level is increased. When these rises in pain occur, they can require two to three hours to subside after lying down. He reported these problems occurring every three to six weeks. (Filing No. 12-2, at CM/ECF p. 46-48).
The plaintiff also described the problem caused by his carpal tunnel syndrome (“CTS”). He explained that it causes cramping and pain with use of his hands. As a recent example he described that just spending about 3 minutes the day before skinning a fish, he experienced severe cramping and a pain level of between 7 and 8. He also had a similar experience the day before the fish skinning when he was picking up a bunch of nuts and bolts that he had dropped to the ground. (Filing No. 12-2, at CM/ECF p. 49-51).
Similarly, the plaintiff testified as to the difficulty he has standing in one place like the kitchen counter or kitchen sink. After about 10 minutes he needs to go to his recliner because of pain in his back. (Filing No. 12-2, at CM/ECF p. 51). The back problem also limits his ability to sit in a straight back chair like a kitchen chair or an office chair. It was his testimony that such activity was limited by the pain to an hour to an hour and 15 or 20 minutes when it would become necessary to move around. He ...

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