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Reuben Martinez v. Michael J. Astrue

November 16, 2012


The opinion of the court was delivered by: Magistrate Judge Finnegan


Plaintiff Reuben Martinez seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary judgment. After careful review of the record, the Court now grants Plaintiff's motion, denies the Commissioner's motion, and remands the case for further proceedings.


Plaintiff applied for DIB and SSI on April 22, 2009, alleging that he became disabled on October 25, 2008 due to "Open Heart surgery triple b[y]pass, diabetes, [and] carpal tunnel." (R. 150-56, 187). The SSA denied the applications initially on September 9, 2009, and again upon reconsideration on November 12, 2009. (R. 88-92, 94-97). Plaintiff filed a timely request for hearing and appeared before Administrative Law Judge Kimberly Nagle (the "ALJ") on January 5, 2011. (R. 40). The ALJ heard testimony from Plaintiff, who was represented by counsel, as well as from vocational expert Thomas F. Dunleavy (the "VE"). Shortly thereafter, on January 20, 2011, the ALJ found that Plaintiff is not disabled because he can perform a significant number of light jobs available in the national economy. (R. 12-22). The Appeals Council denied Plaintiff's request for review on October 6, 2011, (R. 1-3), and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.

In support of his request for remand, Plaintiff argues that the ALJ: (1) made a flawed credibility assessment; (2) failed to provide adequate support for the residual functional capacity ("RFC") determination; and (3) relied on improper VE testimony. As discussed below, the Court agrees that the ALJ's RFC analysis is flawed to the extent that she failed to address Plaintiff's obesity as required by SSR 02-1p. As a result, the case must be remanded for further consideration of this issue.


Plaintiff was born on July 20, 1962, and was 48 years old at the time of the ALJ's decision. (R. 42, 150). He has an eleventh grade education and past relevant work as a chef. (R. 43, 254).

A. Medical History

1. Coronary Artery Disease

In October 2008, Plaintiff had coronary artery bypass graft surgery at St. James Hospital due to coronary artery disease. (R. 292-96, 472). (R. 472). After his discharge, he enrolled in the St. James Cardiopulmonary Rehab Phase 2 Cardiac Rehabilitation program. (R. 496). In a letter dated June 25, 2009, the program's Nurse Practitioner and Manager noted that Plaintiff only attended 15 out of 36 sessions in 12 weeks due to an "an injury to his Left wrist and also because of transportation problems." (R. 433). Nevertheless, Plaintiff was still "able to make measurable progress." (Id.).

2. Diabetes, Carpal Tunnel and Related Conditions

a. 2008

Plaintiff started seeing Stephanie Smith, M.D., of the Cottage Grove Health Center on April 22, 2008 for treatment of diabetes, hypertension and dyslipidemia (high blood cholesterol). (318, 592). Dr. Smith recorded Plaintiff's blood and glucose readings, and instructed him to return in three months. (R. 318). On July 15, 2008, Plaintiff had an X-ray of his feet due to complaints of pain "for 1 year." (R. 327). The test showed "[s]mall calcaneal spurs" in both feet, but no evidence of an acute fracture or dislocation. (Id.). When Dr. Smith saw Plaintiff on July 30, 2008, she indicated that he had received "injections" for the foot pain. (R. 315). During that appointment, Plaintiff complained of "some numbness" in his hands, wrists, ankles and feet, but he exhibited normal strength in all upper and lower extremities. (Id.).

On August 30, 2008, Plaintiff underwent EMG testing at Oak Forest Hospital to evaluate his hand numbness. (R. 303-04). The test showed moderate bilateral carpal tunnel syndrome. (R. 304). When Plaintiff saw Dr. Smith for a routine check-up on November 10, 2008, he reported less numbness in his feet and denied experiencing any pain. (R. 314). He also denied having pain at the next examination on December 8, 2008, but Dr. Smith prescribed him Tylenol #3. (R. 311).

b. 2009

Plaintiff did not report anything unusual at his February 10, 2009 check-up with Dr. Smith, though she noted that his BMI was 37. (R. 310). At his next visit on April 29, 2009, he said that he sprained his left wrist. (R. 309). An X-ray taken at St. James Hospital was negative but he was wearing a brace. Dr. Smith observed minimal swelling, good range of motion, and strength of 5 out of 5, and she instructed Plaintiff to gradually "return to normal use of wrist/decrease splint use." (Id.).

Approximately one month later, on May 30, 2009, Plaintiff had an EMG of his legs, which showed "evidence of motor and sensory polyneuropathy." (R. 306). Shortly thereafter, on July 3, 2009, Plaintiff went to St. James Hospital complaining of left leg pain and swelling. (R. 542). An X-ray taken that day showed a "[s]mall radiopaque foreign body in the anterior soft tissues" of the left leg, but was otherwise normal. (R. 554). A venous Doppler study revealed no evidence of deep vein thrombosis. (R. 555).

Plaintiff saw Dr. Smith again on July 29, 2009, and complained of an injury to his right calf. He said that he felt a "pop" while climbing the stairs with groceries and he noticed swelling and bruising in his foot. (R. 583). Dr. Smith observed "some" swelling and "mild" tenderness, gave Plaintiff Vicodin for his "mild pain," and referred him to an orthopedist. She also referred him to a hand clinic for his carpal tunnel syndrome. (Id.). At a follow-up appointment with Dr. Smith on September 14, 2009, Plaintiff reported having right calf pain, especially when climbing stairs. He was occasionally wearing wrist splints, and had scheduled wrist surgery for September 25, 2009, but he had not yet been able to get an appointment with the orthopedist. (R. 582).

There is no evidence that Plaintiff had surgery on his wrists, and he did not mention his wrists to Dr. Smith when he saw her again on November 9, 2009. Instead, Plaintiff complained of a burning pain in his legs, and right knee pain on climbing stairs. (R. 601). The right knee exhibited no swelling at that time, "provocative tests" were negative, and Plaintiff had full strength of 5 out of 5. (Id.). Dr. Smith prescribed gabapentin for the diabetic neuropathy, and indicated that Plaintiff had scheduled an appointment with an orthopedist for February 2010. (Id.).

On December 3, 2009, Dr. Smith completed a Physical Residual Functional Capacity Questionnaire of Plaintiff for the Department of Disability Determination Services ("DDS"). (R. 592-96). She began by identifying Plaintiff's various diagnoses, including (1) coronary artery disease, status post coronary artery bypass surgery; (2) diabetes; (3) mixed dyslipidemia; (4) bilateral carpal tunnel syndrome; (5) chronic right leg pain; and (6) diabetic peripheral neuropathy. (R. 592). Dr. Smith then discussed Plaintiff's symptoms of numbness in his hands and feet, wrist pain, and right knee/calf pain. In response to a question about the clinical findings and objective signs of Plaintiff's conditions, Dr. Smith referred to the July 3, 2009 X-ray showing the presence of a radiopaque foreign body in his left leg. She also stated that an "orthopedic evaluation [wa]s pending," and that Plaintiff was "scheduled for carpal tunnel surgery." (Id.).

Dr. Smith opined that Plaintiff can walk less than one block, sit for 2 hours at a time before needing to get up, and stand for 10 minutes at a time before needing to sit down. (R. 593). He can tolerate only minimal walking and is "unable to work in a competitive environment . . . due to significant upper and lower extremity neuropathy." (R. 594). Dr. Smith stated that Plaintiff can never stoop, crouch, squat, climb ladders or climb stairs, and can only rarely twist. He also has no ability to use his hands "in [a] competitive work environment due to significant carpal tunnel syndrome necessitating surgery." (R. 595). Dr. Smith opined that on average, Plaintiff would miss more than four days of work per month due to his impairments. (Id.).

c. 2010

At Plaintiff's routine check-up with Dr. Smith on February 17, 2010, he reported that he had missed his orthopedist appointment, apparently because his calf injury had "healed on [its] own." (R. 599). He continued to complain of persistent knee pain, but Dr. Smith did not see any swelling, and Plaintiff once again exhibited full strength and negative "provocative tests." As for Plaintiff's carpal tunnel syndrome, it appears that he lost the referral for the hand clinic and needed Dr. Smith to send a new one. (Id.). There is no mention of wrist surgery. Dr. Smith did, however, diagnose Plaintiff with obesity, and indicated that weight loss was "strongly recommended." (Id.).

On August 27, 2010, Plaintiff went to the Oak Forest Hospital emergency room complaining of swelling in his lower legs. (R. 610-11). An ultrasonograph was normal, and a chest X-ray showed no evidence ...

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