McCurtis v. Colvin

Filing 22

ORDER signed by Judge Pamela Pepper on 2/21/2017 REVERSING the Commissioner's denial of Social Security Disability benefits and REMANDING to the Appeals Council for further proceedings pursuant to sentence four of 42 U.S.C. sec. 405(g). (cc: all counsel)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ERIC C. McCURTIS,
Plaintiff,
v.

Case No. 16-cv-8-pp

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________________
DECISION AND ORDER REVERSING THE COMMISSIONER’S DENIAL OF
SOCIAL SECURITY DISABILITY BENEFITS AND REMANDING FOR
FURTHER PROCEEDINGS PURSUANT TO SENTENCE FOUR OF 42 U.S.C. §
405(g)
______________________________________________________________________________
Eric McCurtis has appealed the denial of his application for Social
Security Disability benefits. Dkt. No. 1. The administrative law judge (ALJ)
found that the plaintiff’s degenerative disc disease of the neck was a severe
impairment—one that caused “more than a minimal effect on the [plaintiff’s]
ability to perform basic work activities” under 20 C.F.R. § 404.1520(c). Dkt. No.
13-1 at 22. The ALJ denied the plaintiff’s application for benefits, however,
reasoning that the plaintiff had the residual functional capacity to perform a
significant number of jobs that exist in the national economy. Id. at 23-27.
The statutory definition of disability in the Social Security Act has two
parts. “First, it requires a certain kind of inability, namely, an inability to
At the time the plaintiff filed his appeal, Carolyn Colvin was the acting
commissioner of the Social Security Administration. Nancy A. Berryhill
succeeded Carolyn Colvin as the acting commissioner on January 23, 2017.
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engage in any substantial gainful activity. Second it requires an impairment,
namely, a physical or mental impairment, which provides reason for the
inability.” Barnhart v. Walton, 535 U.S. 212, 217 (2002). On appeal, the
district court’s role is to determine whether the ALJ applied the correct legal
standards, and whether the ALJ’s decision is supported by substantial
evidence. Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Barnett v. Barnhart, 381
F.3d 664, 668 (7th Cir. 2004).
The plaintiff was forty-eight years old in 2014, when he appeared and
testified, unrepresented, at the hearing before the ALJ. Dkt. No. 13-1 at 23. At
the time, he was living in a two-story home with his mother. Id. In December
2009, the plaintiff had been in a car accident, resulting in “injuries causing
neck and left arm pain and numbness in the lower back.” Id. at 24. He
underwent surgery in April of 2011—a C3-C5 decompressive laminectomy with
lateral mass screw placement and laminectomy. Id. The plaintiff testified at the
2014 hearing that he “continue[d] to have intermittent difficulties with his left
leg going numb with activity, numbness in his left hand, and hypersensitivity
in his right hand.” Id. The ALJ concluded, however, that the “objective medical
findings are not consistent with a finding of total disability. Rather, [the
plaintiff] benefitted from treatment, and was able to manage a range of daily
activity and functioning.” Id. at 27. According to the ALJ, the plaintiff
“remained capable of performing a range of sedentary work with appropriate

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additional accommodations for symptoms of his physical impairments, . . . .”
Id.
At the hearing, the ALJ posed hypotheticals to a vocational expert in an
effort to ascertain the plaintiff’s ability to perform jobs available in the national
economy. Dkt. No. 13-1 at 85-91. The plaintiff argues on appeal that the ALJ
erred by failing to incorporate the following limitations into the hypotheticals:
occasional gripping, grasping, fingering, and fine manipulation with his hands,
in addition to an option to sit/stand at will with the use of an assistive device
for walking activities. The Commissioner counters that the ALJ is required to
include in the hypotheticals only such limitations as are supported in the
record and that the ALJ finds credible. The limitations the plaintiff claims the
ALJ failed to include, however, are supported by a Functional Capacity
Evaluation performed on January 29, 2014. Dkt. No. 13-2 at 172. The ALJ
afforded “substantial weight” to the FCE, without qualification, Dkt. No. 13-1 at
26, yet he failed to include the above-mentioned limitations in his hypotheticals
to the vocational expert. At a minimum, remand is necessary for the ALJ to
clarify this apparent discrepancy.
The court also finds that the ALJ erred when he rejected the opinion of
the plaintiff’s treating neurosurgeon, Dr. Zikel. According to Dr. Zikel, the
plaintiff is unable to work more than four hours per day and requires frequent
breaks. Dkt. No. 13-2 at 160-61. A treating physician’s opinion is entitled to
controlling weight if it is well-supported by medical findings and is not
inconsistent with other substantial record evidence. Yurt v. Colvin, 758 F.3d
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850, 860 (7th Cir. 2014). The ALJ did not afford the treating physician’s
opinion that weight, however, because he found that Dr. Zikel’s opinion was
“not consistent with the claimant’s treatment history, including routine and
conservative care, largely benign clinical findings with the exception of neck
stiffness, or the claimant’s self-reported ability to carry out all of his activities
of daily living with only mild restriction.” Dkt. No. 13-1 at 23.
In reaching this conclusion, the ALJ equated the plaintiff’s ability to
undertake basic activities of daily living, such as doing laundry, washing
dishes, and performing other household chores, with the ability to work on a
full-time basis. This analysis ignores the “critical differences between activities
of daily living and activities in a full-time job . . . .” Bjornson v. Astrue, 671
F.3d 640, 647 (7th Cir. 2012). A person “has more flexibility in scheduling the
former than the latter, can get help from other persons . . . , and is not held to
a minimum standard of performance, as [he] would be by an employer.” Id. The
plaintiff, for example, testified that he can do most household chores, but it
“just takes [him] longer.” Dkt. No. 13-1 at 70.
For this reason, the ALJ’s credibility assessment was not supported by
substantial evidence. See SSR 96-7p (listing factors to consider when assessing
the credibility of an individual’s statements, including the individual’s daily
activities). In describing his daily routine, the plaintiff explained that he gets up
in the morning, does some stretches for physical therapy, then showers and
cools down. Dkt. No. 13-1 at 69-70. The need for a “cool down” period is
consistent with Dr. Zikel’s opinion that the plaintiff requires frequent breaks.
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Dkt. No. 13-2 at 160-61. Ultimately, the ALJ relied on the plaintiff’s ability to
perform basic activities of daily living, but ignored the difficulties the plaintiff
encountered while doing them. The ALJ also emphasized the fact that the
plaintiff continued looking for work past his onset date, but the plaintiff made
clear that he was looking for work within the restrictions imposed by Dr. Zikel,
i.e., part-time work. See SSR 96-8p (person who cannot work full-time is
disabled).
Finally, the plaintiff argues that the ALJ did not develop a full and fair
record because he was not represented by counsel. See Smith v. Apfel, 231
F.3d 433, 437 (7th Cir. 2000). The plaintiff did not elaborate much on this
argument, but because this court is remanding the case to the ALJ for further
proceedings, it is worth noting that an ALJ deciding on the application of a pro
se claimant may need to focus more on development of the record.
The court ORDERS that the Commissioner=s denial of benefits is
REVERSED, and the court REMANDS this case for further proceedings
pursuant to 42 U.S.C. '405(g) (sentence four). The court directs the clerk of
court to enter judgment accordingly.
Dated in Milwaukee, Wisconsin this 21st day of February, 2017.

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