United States District Court, D. Nebraska
RONALD E. MANN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge.
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.
STANDARD OF REVIEW
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.
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.
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
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.
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
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.
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.
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
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.
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.
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.
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.
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
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, ...