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Mann v. Berryhill

United States District Court, D. Nebraska

December 6, 2018

RONALD E. MANN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard Chief United States District Judge.

         The plaintiff, Ronald E. Mann, filed his Complaint (filing 1) seeking judicial review of the Commissioner of Social Security's denial of his application for disability insurance benefits, and moved this Court for an order reversing the Commissioner's final decision. Filing 12. The Commissioner filed her motion to affirm the agency's final decision denying benefits. Filing 18. The Court finds that the ALJ's decision is not supported by substantial evidence on the record, that the Commissioner's final decision should be reversed, and that this matter should be remanded for further proceedings.

         I. STANDARD OF REVIEW

         The Court reviews "the ALJ's decision to deny disability insurance benefits de novo on the record to ensure that there was no legal error and that the findings of fact are supported by substantial evidence on the record as a whole." Combs v. Berryhill, 878 F.3d 642, 645-46 (8th Cir. 2017). "Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support a conclusion." Id. The Court considers "the record as a whole, reviewing both the evidence that supports the ALJ's decision and the evidence that detracts from it." Id.

         II. BACKGROUND

         Ronald Mann is a resident of Beatrice, Nebraska. On December 14, 2011, Mann lost control of his car and collided with a tree. The collision occurred when Mann, who suffers from asthma and chronic obstructive pulmonary disease (COPD), was having trouble breathing, reached for an inhaler and lost control of his Jeep. Filing 7-10 at 33. Mann suffered a complex fracture of his pelvis (right acetabular with fragmentation), a non-displaced fracture of his right femoral head, multiple rib fractures, a nasal fracture, a concussion with a loss of consciousness, and several lacerations. Filing 7-10 at 62-83. His pelvic fracture was surgically repaired on December 15. Filing 7-10 at 78-79. At the time of the collision Mann worked for Endicott Clay Products, a brick manufacturer located in Endicott, Nebraska. Filing 7-5 at 12-13. Mann's job responsibilities included operating a tunnel kiln and preparing the clay bricks for firing in the kiln by placing them on carts. The process of firing the bricks required Mann to haul five-gallon buckets of gravel weighing around 75 pounds each up a flight of stairs and then pour the gravel down a chute.

         Dr. Robert Arias evaluated Mann's concussion symptoms while he was recovering from his pelvic fracture. Filing 7-9 at 8-15. Dr. Arias concluded Mann suffered mild dysfunction consistent with what is seen after a traumatic brain injury. Filing 7-9 at 8. The dysfunction included deficits in working memory, susceptibility to interference during processing, rapid divided attention, complex visual memory retrieval, and visual reasoning skills. Id. Dr. Arias characterized Mann's deficits as mild and expected Mann would recover further. Id.

         There is a report that Mann received a significant amount of physical therapy in 2012 and was discharged in May. Filing 7-7 at 11. However, no 2012 physical therapy records were included as part of the medical records submitted in support of Mann's claim. Although not entirely clear in the evidence, it appears that Mann was not able to return to his job at Endicott. An evaluation by pulmonologist Dr. Sean Berry on May 1, 2012, reported that Mann had not returned to the brickyard because of respiratory issues. Filing 7-10 at 13. Mann indicated that after recovering from his hip fracture, he worked at Walmart as a third shift stocker so that he could build up stamina to get back into the workforce. Filing 7-2 at 41. However, Mann resigned when he concluded that he could not do the heavy lifting, kneeling, bending and reaching that the job required. Id. He next took a job with Setzer's Manufacturing in Beatrice. This job required Mann to operate several different sheet metal machines, which required lifting heavy metal sheets. Filing 7-2 at 42. Mann said that he had one-on-one supervision at Setzer to make sure he entered the proper codes so that everything was cut, sheared, or bent to the proper dimension. Filing 7-2 at 50.

         Mann worked at Setzer until, in his words, his hip "went completely out" and he had to have it replaced. Filing 7-2 at 42. On October 14, 2013, Mann returned to see Dr. David Samani, the surgeon that repaired his hip fracture. Dr. Samani's physician assistant reported Mann was complaining of right hip pain that had gotten progressively worse over the previous three to four weeks. Filing 7-8 at 74. Axial CT images were obtained showing advanced degenerative changes in Mann's right hip, which appeared to have progressed as compared to a previous study. Filing 7-7 at 97. In a follow-up appointment on November 14, Mann received a cortisone injection to see if that would provide relief. Filing 7-8 at 72. Mann returned on November 27 reporting that he received only four days of relief from the cortisone shot. Hip replacement was recommended. Filing 7-8 at 70. On December 17, Mann underwent right total hip arthroplasty due to traumatic osteoarthritis with avascular necrosis of the femoral head. Filing 7-7 at 70-71. In a follow-up evaluation on January 2, 2014, Mann reported that he was doing great, with only minimal pain symptoms. Filing 7-8 at 64. He was referred to physical therapy

         The physical therapist reported that Mann did well in physical therapy, going from non-weightbearing and using a walker to, on March 27, 2014, when he was discharged, a normalized gait pattern on level surfaces without a device. Filing 7-7 at 44. During this same period Dr. Samani placed limits on Mann, reporting that he should avoid squatting, kneeling, crawling, running, jumping and lifting loads over 50 pounds. Filing 7-8 at 59. Following his release from physical therapy, Mann's condition appeared to worsen. At his June 23 follow-up evaluation with Dr. Samani, Mann reported increased pain. Filing 7-8 at 57-58. He said that he tried to go back to work but was unable to tolerate his pain and could only stand for about four hours. His gait was now observed to be antalgic. Dr. Samani prescribed OxyContin (i.e., oxycodone) for Mann's pain symptoms and asked to see him again in two weeks. At the July 7 follow-up, Mann reported that his pain was improved, but he still had problems walking for a longer period. Mann's gait was again observed to be antalgic. Dr. Samani continued Mann's OxyContin prescription, and injected his hip with Depo-Medrol, an anti-inflammatory steroid. Filing 7-8 at 55-56.

         Mann's hip pain continued into 2015. Mann's primary care physician, Dr. David Gloor, reported that on February 25, 2015, Mann was evaluated for complaints of persistent neuropathic pain in his right buttock. Filing 7-8 at 41-42. Dr. Gloor reported that Mann had been on oxycodone for a long time but had stopped because he was tired of feeling drugged all the time. Instead, Mann was trying, unsuccessfully, to control his pain symptoms with Tylenol. Dr. Gloor prescribed Neurontin (gabapentin) for Mann's neuropathic pain, and Tramadol (a narcotic-like pain reliever) for Mann's "breakthrough pain." Filing 7-8 at 41. In an April 14 follow-up evaluation, Mann reported that he had good improvement with Neurontin, which Dr. Gloor continued. Filing 7-9 at 4. On June 16, Mann reported that overall, he felt about the same, and that his activities were limited due to his continuing hip pain. Mann's weight, however, had climbed from around 250 pounds to 272 pounds. Dr. Gloor was now concerned about Type-2 diabetes and recommend lifestyle changes for Mann to lose weight. Filing 7-9 at 3-4.

         Mann continued to regularly return to Dr. Gloor's clinic through 2015 and into the first half of 2016. Dr. Gloor's reports show that Mann's medications were continued on each visit, and that he had some success at weight loss, dropping 20 pounds. Filing 7-9 at 2-3. On July 15, 2016, Mann was examined by Dr. Gloor for complaints of left knee pain. Filing 7-9 at 2. Dr. Gloor reported that Mann's knee pain came about spontaneously without a specific new injury. Previously, Mann had surgery to repair a left knee fracture sometime around 2000. Dr. Gloor noted that Mann came into his office using a walker and was at best 25 percent toe-touch weightbearing. Mann was referred to orthopedic surgeon Dr. Douglas Koch for further evaluation. Dr. Gloor suspected that Mann would require joint replacement surgery. Filing 7-9 at 2.

         Mann's appointment with Dr. Koch was July 17. Filing 7-11 at 68-69. Dr. Koch reported that Mann's pain was isolated to the medial aspect of his left knee and increased with weightbearing activities such as standing or walking. Dr. Koch discussed options with Mann including injections versus surgery. The surgery Dr. Koch discussed was total knee arthroplasty and removal of the hardware from Mann's previous knee surgery. Mann opted to try a steroid injection before agreeing to surgery. On August 29, after the steroid injection proved ineffective, Mann opted for total left knee arthroplasty. Filing 7-11 at 66-67. October evaluations by Dr. Gloor and Dr. Koch indicate that Mann's knee replacement surgery went well, but that after a period of physical therapy, Mann continued to walk with the assistance of a cane. In his October 10 report, Dr. Koch noted that Mann was using a cane for assistance and included in his treatment plan that he was to "continue the cane as needed." Filing 7-11 at 59. In Dr. Gloor's December 19 office visit report, he noted that Mann was trying to exercise as much as possible, but that he still walked with a cane. Filing 7-9 at 19.

         On January 25, 2017, Dr. Gloor completed a treating source statement specific to Listing § 1.03 - Reconstructive Surgery or Surgical Arthrodesis of a Major Weight-Bearing Joint. Filing 7-9 at 17-18. The first two questions on the statement asked whether Mann had "reconstructive surgery of a major weight bearing joint(s)" and whether he had "surgical arthrodesis of a major weight-bearing joint." Dr. Gloor answered both questions "Rt hip 2013 Lt knee 2016." Question three inquired: "Concerning your patient's ability to 'ambulate effectively,' is your patient able to do the following on a sustained basis without companion assistance." Four separate subparts followed inquiring about the patient's ability to walk on rough or uneven surfaces, use public transportation, carry out routine tasks such as shopping, and climb stairs. Next to each subpart were boxes to be checked either yes or no. Dr. Gloor did not check any of the subpart boxes. Question 4 requested a response if any of the "sub questions under question 3" were checked "no." Dr. Gloor also did not respond to question 4.

         Instead, under question 4 were blank lines asking the evaluator to "Explain, if necessary." Dr. Gloor provided the following explanation: "Ron walks with aid of a cane. He often limps from his right hip. I cannot quantify specific functional use." There was no question 5. Question 6 inquired: "Does your patient need an assistive device to ambulate?" Dr. Gloor checked the "yes" box and explained that the assistive device Mann needed was a cane.

         Mann filed his application for disability insurance benefits on July 9, 2014, alleging that December 17, 2013 was the date he became unable to work because of his disabling condition. Filing 7-5 at 2. His application was initially denied on January 6, 2015, and upon reconsideration, was denied again on May 15, 2015. The ALJ held a hearing on Mann's application on February 24, 2017. Filing 7-2 at 34. The hearing was by teleconference with the ALJ in Fargo, North Dakota, Mann and his counsel in Lincoln, and a vocational expert appearing by telephone. Filing 7-2 at 16. Mann testified that he was 53 years old, 5'9" tall, and weighed 250 pounds. He was married and had one adult child who was out of the house. Mann said that he had a current driver's license but did not drive a lot due to the "narcotic pain medication" he was taking. He said that he left school during the middle part of the 12th grade and went into the Marine Corps.

         After testifying about his past work experience, Mann described his various injuries, and surgical procedures. In response to his counsel's question, Mann said that he "always walks with a cane" and had done so "ever since my original accident due to the nerve damage in the hip. Sometimes the hip goes out." Filing 7-2 at 47. Mann said that he had been on pain killers since the time of the traffic accident. He identified side effects he experienced from his pain medication such as drowsiness, sleepiness, and the inability to operate machinery or drive. Filing 7-2 at 47, 53.

         Mann said that he had trouble with short-term memory, remembering directions, and numbers. He indicated that he tended to get numbers mixed up and needed help managing money. Filing 7-2 at 47-48. Mann testified that he had to have his cell phone number written down because he could not recall it. He said he could not recall what day of the week it was without help, and that his wife had to make sure he took all his medications because he would forget. Filing 7-2 at 50. Mann's daily medication requirements included prescription and non-prescription medications to treat COPD, asthma, hypertension, depression, ...


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