United States District Court, E.D. Louisiana
L. C. FELDMAN, JUDGE.
REPORT AND RECOMMENDATION
van Meerveld, United States Magistrate Judge.
plaintiff, Michael Gilmore, seeks judicial review, pursuant
to Section 405(g) of the Social Security Act (the
“Act”), of the final decision of the Commissioner
of the Social Security Administration (the
“Commissioner”) finding that the plaintiff's
disability has ended under Section 223(f) of the Act. The
matter has been fully briefed on cross-motions for summary
judgment. For the following reasons, IT IS RECOMMENDED that
the Motion for Summary Judgment filed by the plaintiff (Rec.
Doc. 11) be DENIED; and the Motion for Summary Judgment filed
by the Commissioner (Rec. Doc. 12) be GRANTED.
Gilmore was found disabled under the Act as of September 15,
2009. At that time, he had the following medically
determinable impairment: residuals of an open wound to the
upper limb. This impairment was found to result in the
residual functional capacity to perform light work, except
with gross and fine manipulative limitations, including
occasional handling; a limitation to 1, 2, 3 step procedures;
a requirement that he withdraw from the work station at
unscheduled times, and a limitation of diminished
concentration and pace. Mr. Gilmore was notified by a
Disability Determination and Transmittal dated December 10,
2013, that the state agency had determined that he was no
longer disabled as of November 27, 2013. This determination
was upheld upon reconsideration after a disability hearing by
a State agency Disability Hearing Officer.
Gilmore requested a hearing before an Administrative Law
Judge (“ALJ”). A hearing was held before the ALJ
on October 6, 2015. On January 15, 2016, the ALJ issued an
adverse decision. The Appeals Council denied review on
December 8, 2016.
February 6, 2017, Mr. Gilmore filed a Complaint in federal
court to review the Commissioner's decision. (Rec. Doc.
1). The Commissioner answered and filed the administrative
record. (Rec. Docs.). The parties filed cross-motions for
summary judgment. (Rec. Docs. 11, 12). Mr. Gilmore is
represented by counsel.
in the Record
Gilmore is right-handed. R. at 33. He worked as a sandblaster
painter until September 15, 2009, when his right forearm was
injured going through the glass of a window. R. at 33-34. On
September 19, 2009, Mr. Gilmore had a surgery the ALJ
described as right radial artery ligation and
complex closure of 8 cm laceration and 4cm laceration. R. at
34. At a post-operative follow up appointment about two weeks
later, Mr. Gilmore reported pain at a level of 8 out of 10,
but was noted to have handgrip of 5 out of 5. R. at 85. At
that appointment he was referred for evaluation of a possible
tendon injury. R. at 85. On October 14, 2009, Mr. Gilmore
presented to the Medical Center of Louisiana at New Orleans
with hand pain. R. at 85; R. at 313. He had some scar tissue
and swelling, though his forearm was not tight. R. at 85; R.
at 314. Mr. Gilmore was referred to occupational therapy
“so he can get his grip strength back.” R. at
time of the May 25, 2010, hearing, Mr. Gilmore testified that
he had only been prescribed ibuprofen for the pain, but that
it did not help. R. at 37. Mr. Gilmore explained that he felt
numbness, swelling, and pain in his right hand. R. at 35. The
discomfort would cause him to wake during the night. R. at
35. He said he could move his thumb, but could not really
move his other fingers. R. at 35. He stated that he could
grasp small objects like a penny, using his thumb. R. at 35.
He said he could hold an object of about three to five
pounds, but he could not hold anything heavy like a case of
water. R. at 35. He testified that he had trouble shaving and
tying his shoes. R. at 38. Mr. Gilmore explained that he had
no trouble walking, but could no longer climb a scaffold as
he had done in his previous work. R. at 39. He said that he
could not push a lawnmower unless he tried to do so with his
left hand. R. at 38. He said that he was taking a nap of
about three hours daily. R. at 39.
the May 25, 2010, hearing, the ALJ determined that Mr.
Gilmore had been under a disability as defined in the Act
since September 15, 2009. R. at 87. The ALJ found Mr. Gilmore
was symptomatic for right hand pain, swelling, and numbness
that results in reduced grip strength, handling, and gross
and fine manipulation. R. at 86. The ALJ found Mr. Gilmore
had the residual functional capacity to perform light work,
except he had gross and fine manipulative limitations,
including occasional handling; was limited to 1, 2, 3, step
procedures; must withdraw from the work station at
unscheduled times; and has diminished concentration and pace
limitations. R. at 84. The ALJ found there were no jobs that
existed in significant numbers in the national economy that
Mr. Gilmore could perform. R. at 86. The ALJ noted that Mr.
Gilmore had been referred to physical therapy. R. at 86. In
addition to finding Mr. Gilmore was under a disability, the
ALJ concluded that “[m]edical improvement is expected
with appropriate treatment.” R. at 87. The ALJ
recommended a “continuing disability review” to
be conducted 18 months following the decision. R. at 87.
first medical record following the disability determination
is for Mr. Gilmore's July 31, 2012, visit to Dr. Paul
Marquis with Ochsner. R. at 248. It was noted that Mr.
Gilmore was seen for back pain and rash. R. at 250. In a
review of systems, Mr. Gilmore reported persistent pain in
his right lower arm and wrist. R. at 249. However, it does
not appear any diagnosis or treatment for such pain was made.
November 15, 2012, Mr. Gilmore followed up with Dr. Marquis
for elevated cholesterol. R. at 250. There were no reports or
diagnoses related to Mr. Gilmore's right arm, wrist, or
18, 2013, Mr. Gilmore completed a form Continuing Disability
Review Report. He reported that he had no strength in his arm
and could not hold on to any objects. R. at 180. On a page
with check boxes, he reported that he had difficulty
dressing, lifting objects, using his arm, and using his hands
or fingers. R. at 189. He reported he did not have difficulty
concentrating, understanding or following directions, or
completing tasks. R. at 189.
September 19, 2013, he followed up with Dr. Marquis for
elevated cholesterol. R.at 266. His problem list included
only hyperlipidemia. R. at 265. He reported episodes of chest
pain at rest and also reported continued discomfort and
weakness in his right arm. R. at 266. It was noted that he
had an enlarging tender soft tissue mass in the right malar
area. R. at 266. Atrophy of muscles in right forearm and hand
were also noted. R. at 266. No diagnoses or treatment related
to his arm or hand were made. He was assessed with
dyslipidemia under good control. R. at 266. He was continued
on atorvastatin (a lipid lowering medication) and instructed
to follow up in six months. R. at 266.
Miljana Mandich of Internal Medicine Associates performed a
consultative examination of Mr. Gilmore on November 12, 2013.
R. at 256. Mr. Gilmore complained of trouble with his right
arm and reported that it was difficult for him to pick up
small objects. R. at 256. The only medication reported was
atorvastatin. R. at 256. Upon physical examination, Dr.
Mandich determined that Mr. Gilmore had full range of motion
of all joints, full range of motion of his right hand and all
of the fingers, could open and close his empty fist and
perform other fast repetitive movements without any
noticeable impairment. R. at 258. For example, Mr. Gilmore
could tap his fingers against his thumb. R. at 259. Dr.
Mandich noted that Mr. Gilmore had normal mobility of the
thumb and normal grip strength, grasping, and dexterity
bilaterally. R. at 258. Dr. Mandich noted that muscle tone,
bulk, and strength were preserved in all four extremities. R.
at 258. Dr. Mandich noted that Mr. Gilmore reported that
sometimes his whole right hand and all of the fingers go to
sleep. R. at 258. But Dr. Mandich noted that at the time of
examination, Mr. Gilmore had normal sensation in the right
hand and all fingers. R. at 259. Dr. Mandich concluded that
Mr. Gilmore's “physical exam [was] completely
unremarkable.” R. at 259. She further concluded that
she observed no evidence of significant functional impairment
of the right upper extremity, though she noted that it was
possible that when Mr. Gilmore experiences paresthesias in
the right hand and fingers that it would be difficult to pick
up and manipulate very small objects. R. at 259.
November 27, 2013, the state agency issued an Explanation of
Determination, which concluded that Mr. Gilmore had
experienced medical improvement and was no longer considered
disabled as of that date. R. at 90. The disability examiner
explained that a consultative examination had been obtained
and it showed no atrophy or muscle weakness, Mr. Gilmore had
normal grip, grasp, and dexterity bilaterally, and was able
to perform repetitive movement with his right arms, hand, and
fingers. R. at 90. Although occasional numbness was reported,
his sensory examination was normal throughout. R. at 90. Mr.
Gilmore timely requested reconsideration of the disability
cessation determination. R. at 96.
January 30, 2014, Mr. Gilmore returned to Dr. Marquis and
complained of numbness and hand pain. R. at 271. On a review
of symptoms, no numbness on palmar aspect of hand was
reported. R. at 272. Upon physical examination, mild atrophy
dorsum of hand was noted. R. at 272. It was also noted that
Mr. Gilmore had good range of motion “of fingers and
thumbs do some obvious weakness.” R. at 272.
Gabapentin was prescribed. R. at 272. He was assessed with
neuropathy, traumatic injury to the right radial nerve. R. at
272. He was ordered to return if symptoms worsen or fail to
improve. R. at 272.
31, 2014, Dr. Joseph Michalik performed a physical residual
functional capacity assessment as a medical consultant in
conjunction with the reconsideration of the cessation of
disability finding. R. at 273-81. After reviewing Mr.
Gilmore's case file, he concluded that Mr. Gilmore could
occasionally lift 20 pounds and frequently lift 10 pounds. R.
at 274. No manipulative limitations were established. R. at
August 19, 2014, Mr. Gilmore was seen by Dr. Mahmoud Sarmini.
R. at 286. Mr. Gilmore presented with chronic right hand
numbness. R. at 286. R. at 287. Mr. Gilmore reported that the
numbness was getting progressively worse over the last few
months. R. at 287. He described a constant numbness through
the whole hand that is usually activated by use of the hand.
R. at 287. He complained of weakness in his right hand grip
and said he occasionally dropped small objects. He reported
minimum pain of 7 on a scale of 10 and maximum pain of 8-9.
R. at 287. It was noted that he was taking gabapentin with
suboptimal relief. R. at 287. Upon physical examination, it
was noted that he had no apparent muscle atrophy in his hand.
R. at 287. Right upper extremity had hand grip of 4 out of 5
and finger abduction was 4 out of 5. R. at 287. His right
upper extremity was positive for Tinel's test, Carpal
Compression test, and Reverse Phalen's test. R. at 288.
His sensation to pinprick on the right upper extremity was
intact. R. at 288. Mr. Gilmore was assessed with numbness and
tingling in the right hand, likely due to radial neuropathy.
R. at 288. His prescription of gabapentin was increased and
an electrodiagnostic study was ordered. R. at 288.
September 26, 2014, Mr. Gilmore presented at the Ochsner
medical Center for an Electromyography/Nerve Conduction Study
(“EMG/NCS”). R. at 293. The summary of results
reported “[n]o radial sensory potential was identified,
” “[a]ll other nerves including the radial motor
were within normal limits, ” and “[n]o
abnormalities noted on EMG of distal limb muscles.” R.
at 294. Dr. Frank Oser concluded “radial sensory
neuropathy, likely due to remote forearm trauma.” R. at
Gilmore returned to Dr. Sarmini on October 3, 2014. R. at
296. Mr. Gilmore reported his numbness was slightly better,
but was still a constant sensation in his whole right hand.
R. at 297. He reported maximum pain of 7 out of 10 and
minimum pain of 5-6. R. at 297. He denied significant
weakness of his hands, but reported problems with
occasionally dropping things. R. at 297. On his right upper
extremity, his hand grip and finger abduction were again 4
out of 5. R. at 297. Dr. Sarmini discussed the results of the
EMG/NCS with Mr. Gilmore. R. at 298. Mr. Gilmore was assessed
with neuropathy of right radial nerve and numbness and
tingling in right hand, and his prescription for gabapentin
was continued at the increased level ordered in August 2014.
R. at 298.
page medical record from Ochsner indicates that Mr. Gilmore
had an encounter on December 3, 2014. R. at 300. His problem
list included hyperlipidemia, neuropathy, numbness and
tingling in right hand, and neuropathy of right radial nerve.
R. at 300. Medications at the start of the encounter were
reported as atorvastatin (Lipitor), gabapentin (Neurontin),
and venlafaxine (Effexor). R. at 300. There is no record of
examination for this encounter.
Gilmore was seen by Dr. Marquis on April 1, 2015, for a
routine physical examination. R. at 306. He reported
persistent hand and wrist pain. R. at 306.
Oxycodone-acetaminophen (Percocet) was prescribed. R. at 309.
single page in Mr. Gilmore's medical records indicates an
encounter at Ochsner on September 2, 2015, where
“[n]europathy of right radial nerve” and
“[n]umbness and tingling in right hand” were
noted on his problem list and his current medications were
listed as atorvastatin (Lipitor), ...