Mitze v. Colvin

Filing 17

ORDER AFFIRMING the decision of the Commissioner of Social Security, signed by Chief Judge William C Griesbach on 05/21/2014. SEE ORDER FOR FULL DETAIL. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRENDA MITZE,
Plaintiff,
v.

Case No. 13-C-444

CAROLYN COLVIN,
Defendant.

DECISION AND ORDER

Plaintiff Brenda Mitze brings this action challenging the decision of the Commissioner of
Social Security denying her disability benefits. For the reasons given below, the decision of the
Commissioner will be affirmed.

I. Background
Plaintiff’s medical problems originally stemmed from a cyst in the pineal gland in her brain.
These problems included vertigo, dizziness, blurred vision and chronic headaches. The cyst was
discovered with a CT scan after she fell down the stairs in October 2009. She began physical
therapy on December 1, 2009 to improve her balance issues, but was unable to tolerate the therapy
due to headaches and pain. She applied for disability benefits the next day.
Soon after, Plaintiff consulted with a neurosurgeon in Madison, who in May 2010 performed
surgery to remove the cyst. The surgery was considered successful in resolving Plaintiff’s dizziness
and blurred vision. However, she soon began experiencing postoperative pain and numbness in the

back of her head, which caused her to begin consulting with a number of pain specialists. At
various times she was prescribed Vicodin, Topamax, lidocaine, oxycodone, fentanyl, gabapentin
and morphine to treat her pain and recurring headaches. She also tried acupuncture. She completed
several sessions of physical therapy for her neck pain and stiffness but had only minimal
improvement.
In 2011 Plaintiff went on a lengthy trip to Australia, partly to visit a friend and partly to seek
treatment. She also began seeing a new chiropractor and, after consulting another physician,
underwent an MRI of her cervical spine. The MRI uncovered degenerations and a possible nerve
impingement. At her November 2011 hearing, she testified that it felt like "like someone took a
baseball bat has been whacking me up side the head. [sic] It goes down into my neck and down
through the spine across my shoulders." (Tr. 44.) She said she did not read or watch television often
because of troubles with her eyes. Her medication helps somewhat but has side effects, including
fatigue. She is able to drive a car, but keeps herself close to home and uses side streets when
possible.
The ALJ denied benefits. As discussed in further depth below, the ALJ essentially
concluded that the Plaintiff’s solo lengthy trip to Australia and her daily running and marathon
preparation undercut her testimony that her pain was disabling. In addition, the ALJ rejected the
opinions of Plaintiff’s chiropractors and found the decision of her physician not controlling.

II. Analysis
The Commissioner's final decision will be reversed only if it is not supported by substantial
evidence or is based on a legal error. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
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Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). “Substantial evidence
must be more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d
836, 841 (7th Cir. 2007). “An ALJ's findings are supported by substantial evidence if the ALJ
identifies supporting evidence in the record and builds a logical bridge from that evidence to the
conclusion.” Giles ex rel. Giles v. Astrue, 483 F.3d 483, 486 (7th Cir. 2007). A reviewing court
may not “displace the ALJ's judgment by reconsidering facts or evidence or making credibility
determinations.” Skinner, 478 F.3d at 841. But if the decision “lacks evidentiary support or is so
poorly articulated as to prevent meaningful review,” a remand is required. Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002).
A. Failure to Properly Consider Medical Sources
1. Opinion of Alexandra Kellogg, D.C.
Plaintiff first argues that the ALJ failed to adequately account for Dr. Kellogg’s opinion.
Plaintiff saw Dr. Kellogg, a chiropractor, in the fall of 2011, apparently in connection with her
treatment at an associated pain institute. Dr. Kellogg filled out a questionnaire indicating that
Plaintiff would need an unscheduled 5-10 minute break every hour and would likely miss work 3-4
times per months. (Tr. 542.) The ALJ did not remark on the questionnaire. Instead, the ALJ noted
Dr. Kellogg’s observation that there was a psychological component to Plaintiff’s condition, which
was consistent with one of her physician’s opinions that anxiety worsened her symptoms. (Tr. 23.)
Apart from that comment, Plaintiff argues that the ALJ did not explain what weight, if any, he was
giving the chiropractor’s opinion.

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For purposes of social security disability determinations, a chiropractor is not an “acceptable
medical source,” cannot offer “medical opinions,” and is not considered a “treating physician.”
Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014). “An ALJ may consider a chiropractor's
opinions, of course, but the weight they will be given will depend on a number of factors, including
the degree to which they are supported by objective evidence.” Id. Thus, an ALJ “may” consider
such opinions, and in doing so the ALJ must explain the weight given to the opinion. It is clear
from the ALJ’s opinion here that the weight given to the more extreme limitations Dr. Kellogg
noted in the questionnaire was zero. The ALJ explained why she did not credit Dr. Kellogg’s
opinions by referencing Dr. Kellogg’s comments in the record. The ALJ noted the chiropractor’s
remarks that Plaintiff had only been in treatment for a matter of weeks, which was not long enough
to experience any benefit. In addition, Dr. Kellogg had noted that “all of the medical records . . .
show good progress without complication after surgery, so there is some discrepancy between the
records and what she is telling me.” (Tr. 537.) Dr. Kellogg’s treatment notes also indicate that
Plaintiff failed—unusually—to contact either the chiropractic or pain clinic office following an
MRI, and that Plaintiff had not been in treatment long enough to make a difference. “It is difficult
to grade her ability to work on this limited amount of history and treatment time.” (Tr. 539.)
The ALJ spent two paragraphs addressing Dr. Kellogg’s opinion.1 By Dr. Kellogg’s own
admission, her opinion is worth very little on its face because, as she remarked, it was “difficult”
to grade Plaintiff’s ability to work. In addition, Dr. Kellogg noted the psychological component,

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Plaintiff evidently believes the ALJ simply ignored any discussion of Kellogg’s opinion.
That is not true. The ALJ addressed Dr. Kellogg’s opinion in two separate paragraphs at p. 23 of
the transcript. Plaintiff ignores the first of these paragraphs.
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which she could not address. The ALJ cited this evidence, and it is clear that the ALJ gave the
questionnaire no weight. That is all that is required.
Plaintiff’s argument that the Commissioner somehow violated the Chenery doctrine in
defending the ALJ’s decision ignores the specific reasons provided by the ALJ for rejecting the
more severe limitations set out in the questionnaire. Her argument also reflects a misreading of the
very case the doctrine is named for, SEC v. Chenery Corp., 332 U.S. 194 (1947). Chenery holds
that an administrative agency may not ask a reviewing court to uphold its action on a ground
different from that on which the agency acted. 318 U.S. at 87–88, 92–93. In other words, the
Commissioner may not argue on judicial review that a decision denying benefits on the ground that
the claimant is not disabled should be affirmed because the claimant is no longer insured. Chenery
does not hold, however, that the Commissioner may not cite additional evidence in the record that
supports the findings the ALJ actually made to support his decision. The primary duty of the court
on judicial review of a decision by the Commissioner is to determine whether there is “substantial
evidence” in the record to support the findings on which the decision is based. See 42 U.S.C.
§ 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). There is no requirement that the ALJ cite every
item of evidence that supports each finding in his or her written decision.
2. Opinion of Warren Witkowski, D.C.
Plaintiff had also received chiropractic treatment from Dr. Witkowski. Dr. Witkowski filled
out a questionnaire and indicated that Plaintiff would need 15-minute breaks every half-hour. (Tr.
574.) He also opined that Plaintiff would need to miss four or more days per month. The ALJ
rejected these opinions on the ground that the limitations were “extreme” and not consistent either
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with the rest of the record or even with Dr. Witkowski’s own treatment notes. (Tr. 23.) The ALJ
also noted that Dr. Witkowski’s notes often remarked on Plaintiff’s “dramatic presentation,” which
the ALJ apparently viewed as evidence of symptom exaggeration. (Tr. 23, 551, 552.)
Plaintiff argues that the ALJ should have given more consideration to Dr. Witkowski’s
opinions, given that Witkowski (unlike Kellogg) had treated the Plaintiff for a number of years.
Notably, however, the Plaintiff does not explain what evidence in the record actually supported the
draconian restrictions Witkowski (or Kellogg) imposed. In essence Dr. Witkowski’s questionnaire
would mean the Plaintiff could work only two-thirds of every hour (30 minutes out of every 45),
and there is nothing else in the record that would support such a restriction. Plaintiff was training
for marathons, which take hours to complete—presumably without any breaks. The ALJ provided
ample reasoning for discounting the chiropractor’s opinion.
3. Opinion of Paul Hoell, M.D.
Plaintiff also argues the ALJ erred in failing to give controlling weight to Dr. Hoell, one of
Plaintiff’s many physicians.
The undersigned also give little weight to statement by Dr. Hoell at Exhibit 17F [Tr.
501], as it appears he relied quite heavily on the subjective report of symptoms and
limitations provided by the claimant, and seemed to uncritically accept as true most,
if not all, of what the claimant reported. Yet, as explained elsewhere in this decision,
the objective evidence provides good reasons for questioning the reliability of the
claimant's subjective complaints. Dr. Hoell does not mention that the claimant failed
to follow through with potentially ameliorative treatment as reported in the treatment
notes (Exhibit 13F at 2).
(Tr. 23.)
In general, more weight is given to the opinion of treating physicians because of their greater
familiarity with the claimant's conditions and circumstances. Clifford v. Apfel, 227 F.3d 863, 870

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(7th Cir. 2000). Of course on the other side we must acknowledge that treating physicians often
have a relationship with a patient and therefore might be less than fully objective.
Normally the argument is that the ALJ failed to give controlling weight to the opinion of a
plaintiff’s treating physician, but here the argument is unusual because the Plaintiff does not actually
cite an opinion that Dr. Hoell offered. The record consists of treatment notes with Dr. Hoell, some
of which are actually unsupportive of disability. (E.g., Tr. 370 (noting “modest” pain in neck,
training for the 5K race, and Plaintiff’s “jovial” mood.) Dr. Hoell did write a very brief “to whom
it may concern” letter, noting that Plaintiff experienced “persistent, chronic, severe neck pain”
following surgery. (Tr. 501.) But if that is the “opinion” at issue here, that is not really in dispute.
The dispute is how limiting those symptoms are.
In discounting the opinion, the ALJ noted that Dr. Hoell’s opinion (such as it was) was
heavily based on the claimant’s own subjective reports of pain and other symptoms. As discussed
below, the ALJ was within his discretion to discount Plaintiff’s subjective complaints, given the
various factors the ALJ cited. In a situation like this, the ALJ’s credibility determination
“collapses” into the decision regarding the treating physician:
where a treating physician's opinion is based on the claimant's subjective complaints,
the ALJ may discount it. The question of which physician's report to credit thus
collapses into the credibility issue; because the ALJ found that Bates was not
credible in her reports of pain, she also gave Dr. Cordero's opinion, which relied
heavily on these reports, little weight. Because we find that the ALJ's credibility
determination with respect to pain was not patently wrong, her assessment of Dr.
Cordero's opinion is also not in error.
Bates v. Colvin, 736 F.3d 1093, 1100 (7th Cir. 2013).
Accordingly, the question of whether the ALJ erred in discounting Dr. Hoell’s opinion turns
on whether the ALJ made a proper determination of the Plaintiff’s credibility.
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B. Credibility Determination
Plaintiff argues that the ALJ’s credibility determination was flawed. An ALJ's credibility
determination is entitled to deference, and will be overturned only if it is “patently wrong.” Pepper
v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013). Courts are not allowed to reweigh the facts or
reconsider the evidence. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.2008). But when a credibility
finding rests on “objective factors or fundamental implausibilities,” rather than on a claimant's
demeanor or other subjective factors, courts have greater leeway to evaluate the ALJ's
determination. Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. 2013).
Here, the ALJ stated:
In general, the claimant's treating physician noted very few objective signs
in relation to the claimant's complaints. For example, despite claims of dizziness
and instability, her gait and station were normal. While the claimant has reported
severe pain and an MRI in November 2011 showed bilateral cervical facet
arthropathy with suspected impingement of the right C3 nerve root, her activities do
not support that the claimant is more functionally limited than found herein. The
claimant was able to travel to Australia alone for an extended trip.
The claimant did not mention any problems to her physicians regarding
sitting during the very long flight. The claimant reported running an hour a day,
training for a marathon and participating in a 5K race. Her treating physician noted
that the claimant appeared "put out" by having to wait for a CT scan and the
physician took this as a sign that the claimant's pain could not be too severe. These
facts strongly suggest that the claimant's pain is not so severe or frequent so as to
prevent sedentary work.
The claimant's chiropractor noted discrepancies between the claimant's
medical records and what she reported to him. The chiropractor noted that the
claimant did not persist in treatment long enough to be expected to receive any
benefit. There are other examples of the claimant failing to follow through with
potentially ameliorative treatment, which damages her credibility. In May 2011, the
claimant declined an occipital nerve injection, declined to travel to Madison for
tertiary care, and opted not to see Dr. Sehgal for pain management.
(Tr. 22-23) (citations omitted.)

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Plaintiff first argues that the ALJ misinterpreted Plaintiff’s disability claim by relying on preoperation records to discount her credibility. For example, in April 2010 (one month prior to brain
surgery) Plaintiff’s physician noted that Plaintiff was “put out” at having to wait for a CT scan
because she wanted to spend the time at a family event. (Tr. 252.) The doctor took that as “a sign
that her pain cannot be too severe.” (Id.) The ALJ cited this as evidence undercutting Plaintiff’s
credibility.
Although that particular record pre-dates her surgery (Plaintiff’s symptoms changed
following surgery), it is still pertinent evidence about the plaintiff’s credibility. Many or most of
her symptoms are subjective—pain, dizziness, vertigo, etc.—and there was significant doubt among
her medical providers whether the pineal cyst was even the source of the problem. (Tr. 252.) Thus,
there was little in the way of objective evidence of her symptoms, and as such the ALJ was entitled
to note that her own treating physician thought she might be exaggerating them. In addition, the
same physician noted that “a large part of her symptomatology is worsened by the overlay of
generalized anxiety . . .” (Id.) Although these factors speak to her pre-surgery condition, they
nevertheless are suggestive of a patient whose own doctor concluded that her symptoms might not
have been as grave as she was reporting. The ALJ was certainly entitled to take note of that fact,
because that fact may shed light on the symptoms she reported after her surgery as well. Falsus in
uno, falsus in omnibus.
The ALJ also seemed particularly moved by the fact that the Plaintiff had traveled alone to
Australia for an extended period of time and had been running on a regular basis. The Plaintiff
argues that this unfairly focuses on a few issues and ignores her own testimony about her

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limitations, specifically her testimony that she cannot play with her four children, drives a car only
close to home and relies on her children for cooking and cleaning.
Plaintiff testified, for example, that she cannot visit her daughter in college three hours away
because “it hurts to drive that far.” (Tr. 49.) But, as the ALJ noted, she was able to withstand a very
lengthy trip to Australia (roughly 24-hours each way) on an airplane. We do not know the details
of that trip—e.g., whether she needed to stand up and down during the flight, for example—but
there is no indication that it caused her undue hardship. As the ALJ noted, she discussed the trip
with her counselor but never mentioned anything about the flights there and back being intolerable.
Simply put, it is highly unusual for someone to be unable to drive in a car for three hours (with the
ability to make stops, if necessary) but be able to withstand two transpacific flights lasting roughly
a day each. This does not even account for the other rigors of international travel, such as parking,
baggage, security and ticketing lines, changing planes, changing terminals, international customs,
trams, taxis, shuttles, and the like. And if Plaintiff was traveling from her home in New London,
Wisconsin—far from any truly international airport—that would add additional complications to
the trip.
In addition, the fact is that Plaintiff was in Australia nearly two months. People who have
limited physical abilities do not generally book lengthy, open-ended trips with little discernible
support structure. Plaintiff apparently had a friend in Australia, but apart from that there is no
indication she had any idea what to expect when she got there. If her limitations were truly so
severe, one would expect evidence of a traveling companion or some other support system to help
her in her day-to-day life in a foreign country. At the very least it was not unreasonable for the ALJ

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to find the trip to Australia a significant factor in getting to the heart of the Plaintiff’s
symtomatology.
Similarly, the ALJ cited the Plaintiff’s running, including her involvement in a 5K race.
Plaintiff stated that running helped with her stress and said the pain wasn’t any worse or better while
running. (Tr. 316.) She argues now that the ALJ did not develop the record to determine whether
she actually ran the 5K race or just walked it. The record indicates a “5K run” (Tr. 370). In
addition, in April 2011 the record indicates she had been “training for a marathon that she is
planning on running.” (Tr. 392.) During the same period of time Plaintiff was seeing Dr.
Witkowski, who stated that she was running one hour per day and had a “dramatic presentation,”
which the ALJ also noted. (Tr. 552.) The record thus contains ample evidence that the Plaintiff had
been running for extended lengths.
As with the Australia trip, the ALJ was entitled to find Plaintiff less than fully credible
because she was testifying that she could not even play with her kids, drive three hours or do some
household chores—limitations strongly suggestive of complete disability—but then during the same
time period she was running daily and traveling abroad. ALJs are entitled to some degree of
deference when making credibility determinations, and here there was ample reason to question the
severity of Plaintiff’s symptoms given the conflict with her own reported activities. Added to these
discrepancies is the fact that Plaintiff’s chiropractor found a similar disconnect between her
symptoms and the objective findings (Tr. 537), and also found it unusual that Plaintiff failed to
follow through with treatment. (Tr. 539.) Another doctor discerned “a sign that her pain cannot be
too severe.” (Tr. 252.)

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The Plaintiff tries to undermine these conclusions by citing the limited daily activities she
testified to. But such an argument is circular. If the ALJ has concluded (for other reasons) that the
Plaintiff’s credibility is impaired, her own testimony cannot somehow be used to undermine that
conclusion. The point of the ALJ’s conclusion about credibility is that Plaintiff’s testimony was not
fully believable, and thus the substance of her testimony plays no role in evaluating the weight to
be given to that testimony.
In sum, there were several legitimate indications in the record that Plaintiff’s activities were
at odds with her testimony.2 The ALJ built the requisite “logical bridge” demonstrating that her
credibility was compromised due to the discrepancy between her activities and her reported
symptoms. Whether Plaintiff was actually exaggerating her symptoms or not, the ALJ was not
“patently wrong” to conclude that Plaintiff’s credibility was suspect. Pepper v. Colvin, 712 F.3d
at 367. Accordingly, there is no error with respect to either the credibility determination or the
ALJ’s treatment of Dr. Hoell.
C. Step Two
Finally, Plaintiff argues the ALJ erred by failing to find her mental impairments to be
“severe” at Step Two of the sequential analysis. "An impairment or combination of impairments
is considered 'severe' if it significantly limits an individual's physical or mental abilities to do basic
work activities." SSR 96-3p. The ALJ concluded that "The claimant's medically determinable
mental impairment of adjustment disorder does not cause more than minimal limitation in the
claimant's ability to perform basic mental work activities and is therefore nonsevere." (Tr. 21.)
2

In addition, during her testimony Plaintiff indicated she had brain surgery “so I wouldn’t
die.” (Tr. 44.) But there was no indication in the record that her benign pineal cyst was lifethreatening.
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Plaintiff argues that there is evidence in the record that she was experiencing feelings of
hopelessness, suicidal thoughts, and had been seeing a counselor since August 2010. Although that
is true, there is no evidence that she was ever diagnosed with a specific mental illness or that she
sought treatment (or medication) from a psychologist or psychiatrist. Merely visiting a counselor
is not evidence of mental illness. In addition, in her own testimony she was asked about mental
illness and depression and minimized those aspects of her life. The ALJ asked how her limitations
affected her emotionally, and her response was simply to recite those limitations: “I can’t do
anything anymore. I can’t play with my kids outside in the winter. . . . I can’t go drive to college
to see my daughter three hours away . . .” (Tr. 48-49.) Then, when asked whether she medicated
for depression, she simply said “no,” without elaboration. When asked by her attorney, she
explained that her counselor (who is not a physician or psychologist) “thinks” she should take some
medication, but she declined to do so given the number of other medications she was on. (Tr. 52.)
In sum, at best the record shows the Plaintiff, like millions of people, struggled at times with
anxiety and other issues. But there is no evidence that those issues rose to the level of “severe,” and
the ALJ did not err in so concluding.

III. Conclusion
For the reasons given above, the decision of the Commissioner is AFFIRMED.
Dated this 21st day of May, 2014.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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