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Gilmore v. Berryhill

United States District Court, E.D. Louisiana

February 9, 2018

MICHAEL GILMORE
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

         SECTION: “F” (1)

          MARTIN L. C. FELDMAN, JUDGE.

          REPORT AND RECOMMENDATION

          Janis van Meerveld, United States Magistrate Judge.

         The 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.

         Procedural Background

         Mr. 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.

         Mr. Gilmore requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held before the ALJ on October 6, 2015.[1] On January 15, 2016, the ALJ issued an adverse decision. The Appeals Council denied review on December 8, 2016.

         On 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.

         Evidence in the Record

         Mr. 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[2] 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 314.

         At the 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.

         Following 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.

         The 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.

         On 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 hand.

         On May 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.

         On 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.

         Dr. 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.

         On 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.

         On 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.”[3] 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.

         On May 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 276.

         On 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.

         On 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 294.

         Mr. 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.

         A one 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.

         Mr. 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.

         A 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), ...


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