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Johnson v. Berryhill

United States District Court, W.D. Kentucky, Bowling Green Division

January 29, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security


          Lanny King, Magistrate Judge United States District Court

         This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability benefits. Plaintiff's fact and law summary is at R. 15, and Defendant's fact and law summary in opposition is at R. 20. The parties have consented to the jurisdiction of the undersigned magistrate judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. [R. 11.] The matter is ripe for determination.

         Because the Administrative Law Judge (“ALJ”) failed to identify substantial reasons for giving little weight to Dr. Lopez-Suescum's post-hearing diagnosis and findings and for discounting Plaintiff's alleged limitations due to pain, the Court will REMAND this matter for a new decision and any further proceedings deemed necessary and appropriate by the Commissioner.

         Plaintiff's right groin impairment

          Plaintiff was born in 1985 with a very large hernia in his right groin area pointing to the lower quadrant. [Administrative Record (“AR”), p. 1260.] The impairment was repaired with mesh. [Id.] Plaintiff experienced recurrence of the hernia in 2009 and again in 2015, each time followed by mesh repair surgery. [Id.] Plaintiff testified that he “never got better” (and did not return to work) after his third surgery. [AR, p. 107.] He experiences constant “right groin pain pointing in the direction of the inguinal canal toward the right side of his scrotum.” [AR, pp. 1261, 1262.] On a scale from one to ten, Plaintiff's pain is “about an eight every day.” [AR, p. 107]

         Plaintiff apparently is pursuing a products liability action against the manufacturer of the mesh used in one of the surgeries. [AR, p. 107.] “It was polypropylene and they're working on that. They've [had] a recall on that mesh.” [Id.] About two weeks after the third surgery, realizing that his pain was not getting any better, Plaintiff attempted suicide by overdose. [AR, pp. 110, 118.] Plaintiff takes pain medication and uses cannabis to manage his chronic pain. [AR, pp. 121, 128.]

         At the February 2017 administrative hearing, the ALJ noted that the precise origin of Plaintiff's pain was not established and suggested that it may be due to nerve entrapment (as opposed to clear evidence of hernia recurrence). [AR, pp. 113-14.] According to the ALJ, “since they couldn't find, you know, [clear evidence of] a recurrent hernia, there was some talk about some other issues that might be in there like nerve entrapment.” [Id.] Plaintiff indicated that a pelvic CT-scan is one of the best methods of determining whether there has been a recurrence and, if so, its degree and nature. [AR, p. 115.] Plaintiff has had a pelvic CT-scan, but doctors “never contacted me back or anything.” [Id.] Plaintiff eventually requested referral to a specialist but was told that “now it was up to me.” [AR, p. 116.] According to Plaintiff, doctors do not “want to mess with me because I guess [after three reparation surgeries] they looked at me like I was a liability.” [AR, p. 114.] The ALJ acknowledged that “surgeons do tend to be kind of hesitant to go back in there because they do figure, you know, at some point we're just going to be doing more harm than good.” [Id.]

         Plaintiff explained that, at most, he is able to sit for 35 minutes to 1 hour because sitting rquires that he lean forward “right at the bend” of the groin, where he has tender scar tissue. [AR, p. 116.] “[I]t feels like I have to release it a lot to lean over and it hurts.” [AR, pp. 116-17.]

         Although the ALJ left the record open to obtain a post-hearing consultative evaluation of Plaintiff's limitations due to his right groin impairment [AR, pp. 133-35], the ALJ proceeded to question the vocational expert (VE) based on assumed, provisional limitations. Specifically, the ALJ asked the VE to assume an individual having the following limitations: limited to sedentary work requiring, among other things, 6 hours of sitting per 8-hour workday; may occasionally stoop, crouch, or climb ramps or stairs; may not crawl, kneel, or climb ladders, ropes, or scaffolds; may frequently handle, finger, or grasp, and may not reach overhead; and can tolerate occasional exposure to extreme cold, vibration, dangerous machinery or unprotected heights. [AR, p. 130.] The VE testified that such an individual can perform a significant number of jobs in the national economy, including 440, 000 sedentary, unskilled jobs of assembler, inspector, and surveillance system monitor. [AR, p. 131.]

         In March 2017, after the hearing, Dr. Lopez-Suescum examined Plaintiff, observed an ill-defined bulge in Plaintiff's right groin area, which he opined “might require more surgery.” [AR, p. 1262.] Examination revealed that Plaintiff's groin area was scarred, indurated [i.e., having become firm or hard especially by increase of fibrous elements, Merriam-Webster], tender, weakened, and atrophied:

[T]he patient has a sort of … ill-defined bulge in the right inguinal regional almost involving the most power part of the right lower quadrant. The area is rather indurated. There are multiple scars due to previous surgeries. There is no inflammation, however, this scar in the area seems to be sort of fibrotic and tender on palpation. … The patient is constantly complaining of pain in the [groin] area in during the course of the range of motion examination regardless. … The motor strength of the right lower extremity iliopsoas muscle is 0/5 on account of the pain of the right groin and he has developed atrophy of the muscles of the thigh anterior aspect.

[AR, pp. 1261-62.] Dr. Lopez-Suescum diagnosed “[c]omplex pain syndrome of the right groin area with radiation of pain to the external genital especially the right testicle.” [AR, p. 1262.]

         Among other things, Dr. Lopez-Suescum limited Plaintiff's lifting/carrying to “1 or 2 pounds for about 10 to 15 yards” due to “right groin hernia, recurrent, painful” and limited Plaintiff to 1 hour (each) of sitting, standing, and walking per 8-hour workday (with “lay[ing] down at least 5 hours” during the remaining 5 hours) due to “right groin hernia, recurrent, painful.” [AR, pp. 1262, 1265-66.]

         The ...

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