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Wailes v. Berryhill

United States District Court, E.D. Missouri, Northern Division

March 29, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.



         Plaintiff Richard Wailes brings this action under 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's final decision denying his claim for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. Because the Commissioner failed to provide sufficient reasons to wholly disregard the opinion of Wailes' treating physician, I will reverse the decision and remand for further proceedings.

         I. Procedural History

         On August 28, 2013, the Social Security Administration denied Wailes' April 2013 application for DIB, in which he claimed he became disabled on August 28, 2012, because of back, neck, hand, and shoulder injuries; depression; dyslexia; and arthritis. At Wailes' request, a hearing was held before an administrative law judge (ALJ) on September 15, 2014, at which Wailes and a vocational expert testified. On November 24, 2014, the ALJ denied Wailes' claim for benefits, finding the vocational expert's opinion to support a finding that Wailes could perform work as it exists in significant numbers in the national economy. On January 4, 2016, the Appeals Council denied Wailes' request for review of the ALJ's decision. The ALJ's decision is thus the final decision of the Commissioner. 42 U.S.C. § 405(g).

         In this action for judicial review, Wailes claims that the ALJ's decision is not supported by substantial evidence on the record as a whole, arguing that the ALJ improperly discounted his subjective complaints and failed to give sufficient reasons to accord no weight to the opinion of his treating physician, Dr. Gessling. Wailes further contends that the ALJ failed to include sufficient walking and standing limitations in the residual functional capacity (RFC) assessment. For the reasons that follow, the matter will be remanded for further proceedings.

         II. Evidence Before the ALJ

         A. Wailes' Testimony

         At the hearing on September 15, 2014, Wailes testified in response to questions posed by the ALJ and counsel.

         At the time of the hearing, Wailes was fifty-one years of age. He lives in a house with his wife. He is a high school graduate. (Tr. 48-49.)

         Wailes' Work History Report shows that Wailes worked from 1998 to 2000 as a school custodian. From January 2002 through August 2012, he worked as a door assembler for MidAm Building and Supplies. (Tr. 193.) Wailes testified that he can no longer work because of problems with his back, neck, shoulders, and hands. (Tr. 51.)

         Wailes testified that he cannot carry things as before and drops things. He cannot look down or side-to-side because of neck pain. He gets a headache if he looks up too long. Wailes testified that his low back pain feels like a knife is being driven into him. As to his shoulders, Wailes testified that he can hear popping when he moves them and has a burning sensation. He has carpal tunnel in his hands. He underwent surgery on the right hand, but continues to experience numbness in one finger. (Tr. 51-53.)

         Wailes testified that his pain worsens when he tries to do normal things, such as gripping a wrench or mow the lawn with a riding mower. His back becomes sore with mowing, so he takes a break for a bit, takes a pain pill, and lies down. Wailes testified that he currently takes gabapentin and Robaxin, which help a little. Wailes testified that he was recently prescribed new medication because his other medication was not working. His current medication relaxes him and puts him to sleep. (Tr. 53-55.)

         As to his exertional abilities, Wailes testified that he can walk for about thirty minutes before feeling pain. He uses a cane every day for walking, as advised by his doctor. He can stand for about fifteen to thirty minutes before he must move around because of throbbing and aching in his low back. He can sit for about fifteen to thirty minutes before needing to get up and move around. Wailes testified that he lies down for about two hours when the pain is bad. (Tr. 56-57.) He can lift a gallon of milk but feels pulling in his shoulders if he lifts twenty pounds. Wailes testified that he has four bad days a week where he cannot move at all. (Tr. 58-59.)

         As to his daily activities, Wailes testified that he lies down a lot because of his pain. (Tr. 55.) He watches television and sits outside on his deck. His neighbors sometimes come to visit, and friends and neighbors sometimes help him if he needs something done. (Tr. 61-62.) He tries to do laundry, but his wife usually does the household chores. He sometimes tries to make quick and simple meals. (Tr. 59-60.) Wailes drives every day to visit his mother. If he drives longer distances, he stops to stretch his back. Wailes can manage his personal care but sometimes has difficulty putting on pants or shoes because of his limited ability to bend over. (Tr. 60-61.)

         B. Vocational Expert Testimony

         Stella Doering, a vocational expert, testified at the hearing in response to questions posed by the ALJ and counsel.

         The ALJ asked Ms. Doering to assume an individual of Wailes' age, education, and work history who was limited to “light exertional work with occasional stooping, crouching, crawling, kneeling and climbing, but no ladders, ropes or scaffolding, occasional overhead reaching, frequent fingering, handling and grasping, the need to avoid concentrated exposure to extreme cold, vibration and hazards.” (Tr. 63.) Ms. Doering testified that such a person could not perform any of Wailes' past work but could perform light work as a marking clerk, weight recorder, and arcade attendant, with such jobs ranging in numbers from 900 in Missouri to 200, 000 nationally. Ms. Doering testified that if this person was limited to sedentary work, there would be no jobs available. Ms. Doering also testified that if this person missed two days of work each month or had to take extra breaks throughout the day, no work would be available. (Tr. 63-64.)

         C. Medical Evidence

         The record shows that Wailes experienced left shoulder pain in 2004 for which he underwent an MRI that showed severe left rotator cuff strain, osseous and cartilaginous hypertrophy about the left acromioclavicular (AC) joint, thinning and fraying of the left glenoid labrum with moderate to severe chondromalacia of the left humerus head, moderate subdeltoid and subacromial bursitis, moderate to severe tenosynovitis of the left long head of the biceps tendon, and moderate left deltoid muscular strain. (Tr. 275.) With respect to his relevant impairments, the record is thereafter silent until March 9, 2012, when x-rays were taken of the thoracic spine in response to Wailes' complaint of neck pain. The x-rays showed no abnormalities. (Tr. 395.)

         Wailes went to the emergency room at Moberly Regional Medical Center on July 22, 2012, with complaints of having left shoulder pain for two days. He reported waking up with pain and felt a pop when his wife pulled on his shoulder. Moderate tenderness was noted about the shoulder, but range of motion was intact. No tenderness was noted about the spine. X-rays of the left shoulder showed hypertrophic change of the AC joint and lateral acromial spurring, often seen with impingement and rotator cuff tear. Wailes was diagnosed with left shoulder ligamentous sprain and was discharged in stable condition. He was prescribed Naprosyn, Medrol Dosepack, and Norco upon discharge. (Tr. 386-91, 393.)

         Wailes visited Dr. Heather M. Gessling on August 20, 2012, with complaints of headaches, numbness in his arms and hands, and blurry vision. He also complained of having pain in his neck and shoulders for about a month. It was noted that Wailes took hydrocodone and Naproxen. Physical examination showed decreased supraspinous strength, pain with self-impingement and axial loading, and positive Spurling's test with some pain. Dr. Gessling prescribed Flexeril and Ultram for pain and ordered diagnostic tests. (Tr. 228-29.)

         X-rays of the cervical spine dated August 21showed mild cervical spondylosis with disc space narrowing and mild osteophyte formation at the C3-4 and C4-5 levels. It was noted that flattening of the cervical curvature may be associated with myospasm. (Tr. 232.) X-rays of the right shoulder showed minimal hypertrophic changes of the AC articulation. (Tr. 231.)

         Wailes returned to Dr. Gessling on August 24 and reported having problems with both shoulders and a loss of function of his right arm. He continued to complain of joint and muscle pain. Dr. Gessling referred Wailes to Dr. Timothy C. Galbraith for shoulder pain and ...

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