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Jeffrey S. v. Saul

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

November 5, 2019

JEFFREY S., Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.



         Plaintiff, Jeffrey S., [3] applied for Disability Insurance Benefits and Social Security Income in July and November 2015, respectively, alleging he became disabled on October 30, 2014. (R. 183-88.) After a hearing, an administrative law judge ("ALJ") issued a written opinion denying his applications for benefits. (R. 15-25.) The Appeals Council denied Plaintiffs request for review of the ALJ's decision (R. 1), making the ALJ's decision the final decision of the Commissioner. Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir. 2019). Plaintiff has filed a motion to reverse or remand the Commissioner's decision denying his applications for benefits (D.E. 14), and the Commissioner has filed a cross-motion asking the Court to affirm the decision. (D.E. 24.) The matter is now fully briefed. For the following reasons, the Court grants Plaintiffs motion to remand and denies the Commissioner's motion to affirm.

         I. Administrative Record

         Plaintiff was diagnosed with colon cancer on September 21, 2011, and on September 30, 2011, he successfully underwent resection surgery to remove the part of his large bowel affected by the cancer. (R. 303.) From November 21, 2011 to April 23, 2012, Plaintiff received 12 cycles of chemotherapy treatment.[4] (Id.) While receiving chemotherapy, Plaintiff experienced minimal intermittent peripheral neuropathy.[5] (R. 528.) In June 2012, however, Plaintiff told his doctor that he got into a car accident when peripheral neuropathy caused his feet to jerk unexpectedly and press on the gas pedal, and Plaintiff has not driven since. (R. 244, 247.) In September 2012, Plaintiff was referred to a neuro-oncology clinic due to constant tingling in his feet. (R. 546-48.)

         Throughout 2013 and 2014, Plaintiffs internist prescribed gabapentin (for nerve pain) to relieve his symptoms, but he continued to report throbbing sensations, sharp and shooting pains, and persistent tingling in his feet radiating up his calf. (R. 1054-56.) On examination, light touch elicited tingling in his feet and calves, and he had loss of proprioception (sense of self-movement) in his big toes. (R. 1055.) In September 2013, Plaintiff reported that his peripheral neuropathy had improved with gabapentin, though it caused him some fatigue. (R. 300, 1062.) In January 2014, Plaintiff reported some improvement in the numbness from his peripheral neuropathy, particularly in his hands, but he continued to note tingling and sharp pains in his feet. (R. 303.) In April and May 2014, Plaintiff received acupuncture treatment, which lessened the tingling and pain in his legs and feet; however, he could not continue that treatment due to insurance denial. (R. 310-12.)

         From 2012 through October 2014, Plaintiff continued to work 12 hours a day, three times a week. (R. 318.) In a Social Security report, Plaintiff listed his job title as a "production analyst." (R. 222.) Plaintiff explained that his job was also sometimes called a mainframe or computer operator, but that regardless of the title, his job involved sitting in front of a computer and typing. (R. 37-39.) Plaintiff testified at his hearing that while sitting at work, his feet would swell, throbbing, sharp, electric shocks would run up his legs, and he began typing slower and making mistakes he would not normally make. (R. 53-54.) Nevertheless, he never missed a day of work, and he worked a lot of overtime. (Id.) Plaintiff did not inform his employer of his neuropathy problems, and he reported that he lost his job in October 2014 because he was "unable to complete" a new work procedure. (R. 221, 226.) In August 2015, Plaintiff wrote in a function report that he could do laundry and vacuum, but that symptoms from neuropathy in his feet affected all of his activities involving standing or walking for extended periods. (R. 245-46, 249.)

         On September 21, 2015, Plaintiff underwent a state agency consultative examination. He reported that his neuropathy caused throbbing, pulsing, stinging pain in his feet so that he could not stand very long, but his hands were "feeling better" and were "okay now." (R. 404-05.) Examination revealed decreased pinprick sensation in both feet. (R. 406.) On October 5, 2015, a non-examining state agency physician opined that Plaintiffs peripheral neuropathy was not a severe impairment (R. 77-78), and this opinion was affirmed on reconsideration (R. 85-86).

         Plaintiff reported persistent neuropathy symptoms at follow-up visits to his internist in December 2015 and June 2016, despite taking gabapentin. (R. 412-13, 903.) On June 22, 2016, Plaintiff visited a neuro-oncology clinic for the first time in several years. Plaintiff described feeling constant tingling and electric shock sensations in both feet and "rare, intermittent" upper extremity neuropathy symptoms. (R. 908.) On examination, Plaintiff perceived light touch as tingling in his feet, shins and hands, and he had diminished proprioception in his big toes. (R. 909.) The physician opined Plaintiff had "not really had a fair trial of multiple neuropathy meds," so he increased Plaintiffs dose of gabapentin and discussed alternative therapies such as topical creams and acupuncture. (R. 910.)

         In August 2016, a neuro-oncology examination showed no change in Plaintiffs symptoms, and the nurse practitioner further increased his gabapentin dose. (R. 916-17.) On October 4, 2016, Plaintiff reported persistent numbness, tingling, electric shock sensation and throbbing in his feet, and he stated that his feet swelled after sitting a long time. (R. 637.) On examination, Plaintiff again had tingling in his feet, shins and hands and diminished proprioception in his big toes. (R. 641.) His dose of gabapentin was again increased. (R. 642.) In November 2016, Plaintiffs symptoms flared, which he believed was due to being on his feet for long periods and being less consistent with gabapentin dosing. (R. 646-47.) He reported difficulty walking but his coordination and gait remained normal. (Id.) His sensory exam was unchanged from the prior month. (R. 648.)

         On December 14, 2016, Plaintiff reported at a neuro-oncology visit that his neuropathy symptoms had flared again, which he attributed to being on his feet for long periods during preparations for moving to Arizona. (R. 1084.) He also stated that typing, cold weather and lifting, wrapping and carrying objects had worsened the neuropathy in his hands to the point that he almost dropped a laundry basket due to cramping and diminished sensation in his hands. (Id.) The nurse practitioner wrote: "The difficulty with his hands has been ongoing since 2012 according to Mr. [S.] but this is the first time he has thought to mention it as the pain in his feet is the predominant [symptom]." (Id.) His sensory examination remained unchanged from November. (R. 1086.) The nurse did not expect Plaintiffs neuropathy to improve with time. (R. 1088.)

         In May 2017, Plaintiff returned from Arizona and visited the neuro-oncology clinic. (R. 1093.) Plaintiff reported that his symptoms were "relatively static" since his last visit; they were "most noticeable and bothersome in his feet and legs but also happen[ed] in his hands," and he had trouble sleeping due to his symptoms. (Id.) His sensory examination remained unchanged from December 2016. (R. 1094-95.) Plaintiffs treater advised him that weight loss and lifestyle changes were his best chances to prevent worsened neuropathy symptoms. (R. 1093, 1097.) Plaintiff was considered obese at 5'8" tall and 221 pounds (R. 1098); his weight had stayed essentially the same since 2015. (see R. 405, 411).

         II. Evidentiary Hearing

         On July 14, 2017, Plaintiff testified at his hearing before the ALJ that even with gabapentin, stabbing pain in his legs, feet and hands made it hard for him to sleep at night, and he was exhausted during the day. (R. 44-45, 55-56.) He had trouble holding things for a substantial amount of time due to a loss of sensitivity, tingling and cramping in his hands, which made things like cooking, cutting steak, buttoning, zipping, using a mouse and tying shoelaces difficult. (R. 45-47, 58.) In addition, Plaintiff testified that he had to extend his legs when sitting because the pressure on his heels and feet caused them to swell. (R. 50, 62-63.) He also stated that he could not sit still for a long time and had to keep moving from side to side. (R. 62-63.)

         The vocational expert ("VE") classified Plaintiffs past work as a systems analyst, which is a sedentary and skilled job. (R. 65.) The ALJ provided the VE with hypothetical individuals limited to sedentary, light or medium work with occasional bilateral operation of foot controls; occasional balancing, stooping, crouching, kneeling, crawling and climbing ramps and stairs; frequent performance of gross and fine manipulation; and no climbing ladders, ropes or scaffolds or exposure to extreme cold. (R. 67-69.) The VE testified these individuals could perform Plaintiffs past work both as described in the Dictionary of Occupational Titles ("DOT") and as Plaintiff actually performed it, as well as other jobs in the national economy. (Id.) However, if the individuals were limited to occasional gross and fine manipulation, they would not be able to perform Plaintiffs past work or any ...

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