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Russo v. Berryhill

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

December 19, 2017

FRANK RUSSO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER [2]

          SIDNEY I. SCHENKIER UNITED STATER MAGISTRATE JUDGE

         Plaintiff Frank Russo ("Claimant" or "Mr. Russo") has moved for summary judgment seeking reversal or remand of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") (doc. # 18: Pl.'s Mot. for Summ. J. and Mem. in Support of Sum. J.). The Commissioner has filed her own motion seeking affirmance of the decision denying benefits (doc. # 28: Def.'s Mot. for Sum. J.), and Claimant has filed a reply (doc. # 29). For the following reasons, Mr. Russo's motion for remand is granted and the Commissioner's motion is denied.

         I.

         Mr. Russo filed for DIB and SSI on August 20, 2013, claiming an onset date of January 1, 2013 (R. 235-36). In his application for benefits, Mr. Russo claimed he suffered from "nerve pain, degenerative disc disease, soft tissue damage, hard to sit, stand and walk" (R. 76). After his claims were denied initially on October 3, 2013, and on reconsideration on March 6, 2014, Mr. Russo participated in a hearing before an Administrative Law Judge ("ALJ") on July 17, 2014 (R. 94, 119). At the hearing, Mr. Russo alleged complaints that were not part of the medical record; the ALJ adjourned the hearing so that Mr. Russo could undergo two consultative examinations (R. 72-73). At a reconvened hearing on November 4, 2014, Mr. Russo testified, as did a vocational expert ("VE") (R. 37-49). On March 23, 2015, the ALJ denied benefits and the Appeals Council affirmed the denial on June 7, 2016, making it the final opinion of the Commissioner (R. 4-6, 21-31). See 20 C.F.R. § 404.981; Lanigan v. Benyhill, 865 F.3d 558, 563 (7th Cir. 2017).

         II.

         Mr. Russo alleges only a single error by the ALJ: her decision to reject a consultative examiner's opinion that Mr. Russo was significantly limited in his ability to reach (PL Mem. in Support of Summ. J. at 1). Because of the limited nature of Claimant's arguments, we will set forth only those facts relevant to this issue.

         At the July 17 hearing, Mr. Russo testified that he was unable to reach his arms over his head, but that he could reach out in front of him, although, if he reached too far, the pain increased and anything he was holding fell out of his hands (R. 59-60). He also testified that his hands tended to get numb, making it difficult for him to grasp small objects (R. 69). With respect to his activities of daily living, Mr. Russo testified that he was currently living in a tent and cooking his meals over a fire pit (R. 61-62). He was able to do laundry, dress and bathe himself, make his bed (when he lived in a home), drive, and sew, but these activities took him a long time because of his chronic pain (R. 61-65). Claimant also testified that he enjoyed drawing and liked to whittle, but that the numbness in his hands had made this activity difficult in recent months (R. 63).

         At the end of this hearing, the ALJ stated that he needed to send Mr. Russo for two consultative examinations to provide further information about Mr. Russo's limb strength and sensation (R. 72). Specifically, the ALJ indicated that he wanted to send Mr. Russo to a neuropsychologist for "1202 type of testing" and a more general internist to test his strength of limbs and "strength sensations" (R. 72-73). Thereafter, on August 2, 2014, Mr. Russo was examined by internist Kalyani Perumal, M.D. (R. 591).[3] Dr. Perumal completed an "internal medicine report" after the examination, which was comprised of a narrative summary of the examination, a chart describing Mr, Russo's range of motion for various joints, and a medical source statement form.

         In the introduction to the narrative summary, Dr. Perumal reported that Mr. Russo described his present issues as residual headaches since undergoing brain surgery five years earlier, chronic low back pain radiating into his feet, and chest pain upon deep breathing (R. 591). The summary goes on to note that Mr. Russo had limited shoulder movements bilaterally and that his power in his upper extremities was reduced to 4/5 because of pain (R. 593, 597). In a chart describing the range of motion for each of Mr. Russo's limbs, Dr. Perumal noted that Mr. Russo had normal adduction, internal rotation, and external rotation of the shoulders and reduced range of motion with respect to flexion, extension, and abduction of both his left and right shoulders (R. 594).[4] In the "medical source statement" that accompanied the report, under the section titled "Use of Hands, " Dr. Perumal checked boxes indicating that, with respect to his right hand, Mr. Russo could reach overhead, reach elsewhere, and push or pull occasionally (1/3 of the work day), and that he could handle, finger and feel frequently (1/3 to 2/3 of the work day) (R. 602). Handwritten notes below the checked boxes appear to say "limitation of movement of . . . both shoulders since MVA [motor vehicle accident]. Shoulder flexion/abduction 90 degrees" (M).[5]

         On September 24, 2014, Dr. Perumal completed a second medical source statement, although she had not examined Mr. Russo again. In this statement, under the heading "Use of Hands, " Dr. Perumal checked boxes opining that with respect to his right hand, Mr. Russo could never reach overhead and could occasionally reach elsewhere, handle, finger, feel, and push or pull (R. 609). With respect to Mr. Russo's left hand, Dr. Perumal opined that he could occasionally reach overhead, reach elsewhere, handle, finger, feel, and push or pull (Id.). A handwritten note below the chart says "limited Rt. shoulder movements" (Id.).

         At the second hearing, on November 4, 2014, Mr. Russo testified that he was generally in more pain than he had been in at the earlier hearing, and that he can "barely shave, get my arms up, . . (R. 42). The ALJ did not question him about his additional pain or discuss Dr. Perumal's findings. The ALJ gave the VE a hypothetical, asking her to consider someone who could lift and carry 10 pounds occasionally, carry less than 10 pounds frequently, stand and/or walk a total of two hours during an eight hour work day, sit at least six hours during an eight hour work day, never climb ladders, ropes, or scaffolding, and no more than occasionally climb ramps and stairs, balance, stoop, crouch, kneel, crawl, bend, or twist (R. 46). The hypothetical also described an individual who should avoid concentrated exposure to work hazards such as unprotected heights, dangerous moving machinery, and noise at the jackhammer level, and who could reach overhead with the right upper extremity no more than frequently (Id.). Given this hypothetical, the VE testified that such an individual could perform certain sedentary and unskilled jobs, including a circuit board tester, an information clerk, and an order clerk (R. 46-47).

         III.

         In her opinion, the ALJ went through the familiar five step process for determining disability. 20 CFR 404.1520(a) and 416.920(a). At Step One, the ALJ determined that Mr. Russo had not engaged in substantial gainful activity since his onset date (R. 23). At Step Two, the ALJ found that Mr. Russo had the severe impairments of obesity, small disc herniation, minimal degenerative disc disease, a history of craniotomy, and headaches (R. 24). At Step Three, the ALJ found that Mr. Russo's impairments did not meet or medically equal a Listing (R. 25). Before reaching Step Four, the ALJ assigned Mr, Russo a Residual Functional Capacity ("RFC") to perform sedentary work except that he can never climb ladders, ropes, and scaffolds, and he can no more than occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl, bend, or twist (R. 26). The ALJ further found that Mr. Russo must avoid concentrated exposure to work hazards such as unprotected heights and dangerous moving machinery, and noise at the jack hammer level (Id.) He can reach overhead no more than frequently with his right upper extremity, and due to headaches, is limited to work involving simple, routine, repetitive tasks (Id.). Finally, Mr. Russo must be allowed to use a cane as needed to walk to and from his work station (Id.). This RFC included the same reaching limitations as in the hypothetical the ALJ had given the VE at the November 4, 2014 hearing (R. 46).

         In supporting her RFC determination, the ALJ first found that Mr. Russo's testimony about his limitations in general was not entirely credible (R. 27). Specifically, the ALJ noted that, despite alleging an inability to work, Mr. Russo visited a hospital emergency room in February 2012 to obtain a release to work form (R. 27, 416). Next, the ALJ explained why she found Mr. Russo's complaints about his hands to be not entirely credible.[6] Citing to Dr. Perumal's report, the ALJ stated there is "no medical evidence or objective findings of hand limitations" (R. 27). She also wrote that Claimant admitted to being able to draw, sew, whittle, and perform a number of daily activities including cooking food over a fire pit, which required good use of the hands to perform tasks such as piling wood, maneuvering a match or lighter, and opening packages and using utensils (Id.). Mr. Russo could also ...


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