Reeves v. Kijakazi

CourtDistrict Court, E.D. Wisconsin
DecidedNovember 12, 2021
Docket1:20-cv-01242
StatusUnknown

This text of Reeves v. Kijakazi (Reeves v. Kijakazi) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reeves v. Kijakazi, (E.D. Wis. 2021).

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN DERRICK REEVES Plaintiff, v. Case No. 20-C-1242 KILOLO KIJAKAZI,1 Acting Commissioner of the Social Security Administration Defendant. DECISION AND ORDER On March 1, 2018, plaintiff Derrick Reeves filed an application for social security disability benefits, alleging that he became disabled as of September 1, 2015 due to back, neck, elbow, and hand impairments. (Tr. at 195, 209.) The agency collected plaintiff’s medical records, which revealed that he underwent cervical spine fusion surgery in May 2012 (Tr. at 20,

645), lumbar spine fusion surgery in January 2016 (Tr. at 21, 348-54), and carpal/cubital tunnel surgeries in January and April 2018 (Tr. at 21, 55, 89-90, 621, 626, 632, 686-91). Plaintiff reported that his impairments affected his ability to lift, stand, walk, sit, and use his hands. (Tr. at 226.) The record further revealed that plaintiff was a high school graduate, with a work history of medium, semi-skilled jobs. (Tr. at 47, 70, 100-101, 308.) He stopped working after sustaining a back injury in 2015. (Tr. at 50, 394.) On June 29, 2018, the agency sent plaintiff for a consultative exam with Dr. A. Neil Johnson, who concluded: [Plaintiff] has had surgery to both elbows and both wrists this year. He has numbness at his elbows now. He still has a positive Tinel’s sign at both wrists. 1Pursuant to Fed. R. Civ. P. 25(d), Kilolo Kijakazi is substituted as the defendant. Pinch and grips are reduced. He is limited to two pounds. He certainly is going to have a lot of trouble using his arms and hands. He has a long way to go regarding this. If you combine his neck, back and both wrists and elbows he is very limited. (Tr. at 790.) The agency partially approved the application, finding plaintiff disabled as of January 23, 2018 (Tr. at 13, 91, 102, 121), the date of his first carpal/cubital tunnel surgery (Tr. at 626), based on the findings of Drs. William Fowler and Phyllis Sandell who opined, based on a review of plaintiff’s medical records and the results of the consultative examination, that plaintiff was limited to sedentary work, with occasional use of the hands as of that date (but not before) (Tr. at 90, 94-96, 112-16). See SSR 96-9p, 1996 SSR LEXIS 6, at *7-8, *22-23 (stating that most unskilled sedentary jobs require good use of the hands and fingers, that any significant manipulative limitation will result in a significant erosion of the unskilled sedentary occupational base, and that a finding of “disabled” usually applies when the full range of sedentary work is significantly eroded). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), challenging the onset date (Tr. at 36, 139), but the request backfired when the ALJ found plaintiff capable of frequent handling (Tr. at 20) and thus able to perform a number of unskilled, sedentary jobs (Tr. at 25). The ALJ did find plaintiff disabled as of February 19, 2020, using the Grid rules for persons limited to sedentary work and closely approaching advanced age. See 20 C.F.R. Pt. 404, Subpt. P, Appx. 2, § 201.14 (providing that a person aged 50-54 years old, limited to

sedentary work, unable to perform past work, and lacking transferable work skills will be found

2 disabled).2 In this action for judicial review, plaintiff no longer argues that he became disabled in September 2015. (Pl.’s Br. at 1.) Rather, he contends that the ALJ erred in overturning the agency’s finding of disability as of January 2018. (Pl.’s Br. at 1-2.) I agree that the ALJ failed to adequately explain why he discounted the unanimous medical opinion of the agency’s own

physicians that plaintiff was significantly limited in the ability to use his hands as of January 2018. I thus remand for further proceedings. I. FACTS AND BACKGROUND Plaintiff bases this appeal solely on the ALJ’s consideration of his manipulative limitations. I accordingly focus my review of the record on the related impairments. A. Medical Evidence On September 13, 2017, plaintiff saw Dr. Amy Coulthard-Atwater, his primary physician, with a complaint of right elbow pain. He described the pain as sharp and shooting with numbness and tingling. (Tr. at 730.) He denied weakness. He told Dr. Atwater that he was

not employed at the time but did do some work in his “garage.” (Tr. at 731.) On exam, he displayed full range of motion with flexion, extension, and pronation/supination of the right elbow, but with tenderness to palpation over the medial epicondyles. Sensation was intact. (Tr. at 732.) Dr. Atwater assessed right tennis elbow, providing an elbow splint and a referral to orthopedics for a possible injection. (Tr. at 732-33.) On September 14, 2017, plaintiff saw Dr. Harold Schock regarding his complaint of right

2Plaintiff did not turn 50 until May 12, 2020 (see Tr. at 85), but the ALJ noted that he was within three months of that milestone on the date of decision. The ALJ declined to apply the age categories mechanically and found plaintiff disabled as of February 19, 2020. (Tr. at 24.) 3 elbow pain, with numbness and tingling. (Tr. at 644.) Evaluation of the right elbow revealed tenderness to palpation over the medial epicondyle, less tenderness to palpation over the lateral epicondyle, and positive “piano key test.”3 (Tr. at 646.) Dr. Schock assessed right elbow medial epicondylitis, recommended a tennis elbow band, and provided a corticosteroid injection (Tr. at 646-47.) X-rays of the right elbow revealed no evidence of degenerative change or

loose body. (Tr. at 737.) On December 14, 2017, plaintiff returned for re-evaluation, reporting one month of relief from the injection before the pain returned. (Tr. at 652.) On exam, Dr. Schock noted positive Tinel’s sign about the elbow on the affected side,4 as well as decreased sensation in the fourth and fifth digits, but no muscle atrophy. He assessed possible cubital tunnel syndrome, suggesting an EMG to confirm the diagnosis. (Tr. at 653.) The EMG revealed ulnar nerve compression and median nerve compression. (Tr. at 660.) At a pre-operative exam on January 18, 2018, a physician’s assistant noted pain directly over the ulnar nerve, positive Tinel’s, and decreased sensation over the fourth and fifth digits.

(Tr. at 660.) On January 23, 2018, Dr. Schock performed right carpal tunnel and right cubital tunnel release surgery. (Tr. at 667, 686-88.)

3The Piano-Key Sign Test is a test carried out for the clinical assessment of wrist instability. It is used as an indicator for distal radio-ulnar joint instability and tears of the triangular fibrocartilage complex of the wrist. https://www.physio-pedia.com/Piano_Key_Sign (last visited November 10, 2021). 4Tinel’s test is used to test for compression neuropathy, commonly in diagnosing carpal tunnel syndrome. It is performed by lightly tapping over the nerve to elicit a sensation of tingling or “pins and needles” in the distribution of the nerve. The Tinel sign is the tingling or prickling sensation elicited by the percussion of an injured nerve trunk at or distal to the site of the lesion. https://www.physio-pedia.com/Tinel%E2%80%99s_Test (last visited November 10, 2021). 4 At a follow-up appointment on February 1, 2018, plaintiff reported constant pain in the medial aspect of the elbow. (Tr. at 667.) On exam, he displayed no pain with elbow motion and pronation/supination of the forearm. He denied numbness or tingling to the hand, fingers, or forearm. He reported mild tenderness to the medial elbow incision, which was accompanied by mild effusion. He was to continue with pain medications, limit lifting to two pounds over the

next month, ice the elbow, and return for follow-up in four weeks. (Tr.

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Reeves v. Kijakazi, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reeves-v-kijakazi-wied-2021.