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Thompkins v. Colvin

United States District Court, N.D. Illinois, Western Division

September 26, 2016

Brad Thompkins, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          Iain D. Johnston, United States Magistrate Judge.

         Plaintiff Bradley J. Thompkins brings this action pursuant to 42 U.S.C. § 405(g), challenging the denial of disability benefits. As explained below, Thompkins's motion for summary judgment is granted; the Administration's motion is denied; and this case is remanded.

         I. BACKGROUND

         By the end of 2013, Thompkins had undergone three spinal surgeries: an anterior discectomy and fusion at both the C5/6 and C6/7 levels, a decompressive laminectomy at the C5-7 levels, and a lumbar discectomy. During much of that time, until August 2012, Thompkins was treated by Dr. Bernard O'Malley. On May 16, 2012, Dr. O'Malley filled out a questionnaire concerning Thompkins's residual capacity, and concluded that-without going into unnecessary detail-Thompkins suffered from pain in his back and numbness in his hands that significantly limited his ability to sit or stand for even a moderate period of time or to grasp or do fine manipulations of objects with his hands. Dr. O'Malley also indicated that Thompkins would need to miss more than four days of work a month. However, on June 29, 2012, an administrative law judge (ALJ) with the Social Security Administration rejected that opinion stating, in part, “Dr. O'Malley alludes to left arm restriction. All the chart notes describe right upper extremity symptoms, when they are asserted. Therefore, the source is only loosely familiar with the patient's progress.” (R. 163.) The ALJ denied Thompkins's petition for benefits. Thompkins appealed that denial, but it was made final after the Appeals Council denied Thompkins's request for review and he did not file a complaint in federal court.

         A few weeks after the ALJ denied benefits, on July 20, 2012, Dr. O'Malley authored a second opinion, in which he said the following:

Mr. Thompkins has neck and low back pain. He had two surgeries in his neck on anterior and posterior approaches. He has constant grinding sensation and numbness in both hands in first three digits bilaterally.
He is totally disabled due to pain and numbness. He has poor ability to twist, bend, and raise his arms. The low back limits these activities. He has problems with fine motor ability. He has trouble grasping fine objects such as tape.
He has no options at this time having seen neurosurgery and pain management. He is and remains totally disabled.

(R. 708.) This opinion was based, as best as the record can show, on previous examinations and, critically for this opinion, a follow-up visit with Dr. O'Malley on July 20, 2012. Thereafter, Thompkins began to see Dr. Kevin J. Gander as his primary care physician. During that time, Thompkins had his third back surgery and fell twice, which he reported aggravated his condition. Over the next two years, Dr. Gander examined Thompkins many times and sent him for consultations, physical therapy, a functional capacity assessment, an EMG, and pain management. On September 17, 2014, Dr. Gander drafted a letter which stated, in its entirety, that “Bradley J. Thompkins has been followed for chronic back and neck pain and upper extremity paresthesias, and is currently unable to work. He will be rechecked in 3 months.” (R. 1730.)

         The ALJ adjudicating the instant petition held two hearings. At the first, on June 9, 2014, the ALJ accepted testimony from a medical expert named Dr. Laura Rosch and a vocational expert. The ALJ then permitted Thompkins's attorney to have Thompkins referred for another functional capacity assessment (FCA) and held a supplemental hearing on December 2, 2014. At that hearing, the ALJ accepted testimony from a different medical expert named Dr. Sai Nimmagadda and another vocational expert. In short, both Drs. Rosch and Nimmagadda, who testified largely in conformity with each other, opined that the medical record supported some limitations to Thompkins's ability to manipulate and grasp with his hands and some restrictions on his sitting, standing, and walking, but not to the degree opined by Drs. O'Malley or Gander. The ALJ assigned great weight to Dr. Nimmagadda's conclusions and “some weight” to Dr. Rosch's conclusions, but “little weight” to Dr. O'Malley's opinions and none at all to Dr. Gander's. In setting out his reasoning concerning Dr. O'Malley, the ALJ stated the following:

The undersigned agrees with the prior hearing decision giving little weight to the May 2012 opinion of Dr. O'Malley, the primary care physician. Dr. Nimmagadda specifically testified that, in his opinion, the degree of functional limitation assessed by Dr. O'Malley is not supported by the doctor's own findings or the other substantial evidence of record.

(R. 188.) In another section, the ALJ also stated the following:

The undersigned asked Dr. Nimmagadda if there was evidence to support Dr. O'Malley's assessment that the claimant would likely be absent from work more than four days per month as a result of the impairments or treatment. “I do not see that substantiated in the record, ” Dr. Nimmagadda stated. “It isn't noted in the record that he is required to stay in bed all day.”

(R. 187.)[1] Finally, in dealing with Dr. O'Malley's opinions and the effect of the previous adjudication, ...

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