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Britt v. Berryhill

United States Court of Appeals, Seventh Circuit

May 4, 2018

Claude C. Britt, Plaintiff-Appellant,
Nancy A. Berryhill, Deputy Commissioner for Operations, Social Security Administration Defendant-Appellee.

          Argued April 24, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 10320 - M. David Weisman, Magistrate Judge.

          Before Bauer, Easterbrook, and Kanne, Circuit Judges.

          Per Curiam.

         Claude Britt, now 55, applied for Disability Insurance Benefits and Supplemental Security Income after a construction crane toppled over and smashed his big toe. An administrative law judge ("ALJ") granted Britt benefits for the period beginning in March 2013, but denied him benefits for the four-year period immediately preceding that time because he could perform sedentary work. On appeal Britt argues that the ALJ disregarded his testimony about his need to elevate his foot, as well as an orthopedic surgeon's report about the same, and gave too little weight to an agency doctor's opinion that he could work for only 3.5 hours in a day. Substantial evidence supports the ALJ's decision, so we affirm the judgment.

         I. Background

         While Claude Britt was working on a construction site in May 2008, a crane crushed his right foot's big toe. An emergency-room physician ordered an x-ray that revealed a fracture in the tip of Britt's toe, as well as a laceration-injuries that understandably caused pain and swelling. The doctor removed Britt's nail, gave him a tetanus shot, and instructed him to elevate his foot and follow up with an orthopedic surgeon.

         Four days later, the orthopedic surgeon, Dr. Anand Vora, saw Britt and opined that he could return to work in a week but in the meantime should elevate his foot to reduce swelling. The following week the doctor noted continuing pain and swelling, but he added that Britt could return to work "walking less than one hour a day in a seated job" and elevating his foot as needed. (A.R. 627.)

         Britt then began visiting another orthopedic surgeon, Dr. Paul DeFrino, who supervised the healing process. The swelling in Britt's toe gradually subsided, and by September 2008, Dr. DeFrino opined that Britt was ready for light-duty work.

         Dr. Brian Toolan, an orthopedic surgeon specializing in foot and ankle disorders at The University of Chicago Medical Center then evaluated Britt in November 2008 and concluded that Britt should be able to return to seated "light" work within three to four months. (A.R. 660, 656.) Dr. Toolan noted that Britt's complaints of a hypersensitive nerve were subjective in nature and that there were no discrete objective findings to corroborate them. A month later, Dr. Toolan again opined that Britt was capable of "light duty work." (A.R. 821.) In January 2009, Dr. Toolan declined to see Britt again to evaluate his suitability for an inpatient pain-management program; the doctor clarified that Britt had been offered a partial toe amputation but had chosen not to pursue that option to treat his pain.

         In February 2009, Britt consulted Dr. Steven Kodros, another orthopedic surgeon, who identified inconsistencies between Britt's condition at his appointment and the other evidence in the record. At Britt's appointment, Britt was hypersensitive and had a significant limp, and yet in four surveillance videos that were gathered as part of Britt's workers' compensation case, Britt walked normally and briskly.

         Throughout the following year, Britt's condition persisted. In March 2009, after undergoing a functional capacity evaluation, as recommended by Dr. Toolan, a physical therapist cleared Britt to work immediately at a "physical demand level" that was characterized as heavy. (A.R. 750-51.) That month Britt was fired, he says, "because of [his] condition(s)." (A.R. 499.) By June, a certified rehabilitation counselor concluded that Britt could work as a security guard, telemarketer, or light manufacturer. By late 2010, Dr. DeFrino characterized Britt's pain as persistent and opined that he could perform only sedentary work because of his swelling, pain, hypersen-sitivity, and stiffness.

         In late 2011, a state-agency physician, Dr. Bharati Jhaveri, reviewed Britt's records and concluded that he could perform medium work based on his ability to squat, ambulate for 50 feet unassisted, and move his ankles through their full ranges. Britt had normal motor strength in all extremities. Dr. Jhaveri characterized Britt as only "partially credible" based on inconsistencies between the clinical findings and Britt's denials that he could lift heavy items and walk at the same time or that he could stay on his feet for more than 20 minutes. (A.R. 178-82.)

         In mid-2013, Dr. Carolyn Hildreth, an internist, performed a consultative examination and opined that Britt could work for only 3.5 hours a day. She did not identify medical or clinical findings to support this assessment. Dr. Hildreth did note that Britt had an abnormal gait, required the use of a cane and walker, had "severe difficulty" when attempting to walk on his toes and heels, and that Britt reported that he was lying down for eight to ten hours a day. (A.R. 981-82, 986.) ...

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