Borland v. Colvin

Filing 22

DECISION AND ORDER affirming the decision of the Commissioner. The Clerk is directed to enter judgment forthwith. Signed by Chief Judge William C Griesbach on 9/22/1988. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SUSAN BORLAND,
Plaintiff,
v.

Case No. 13-C-738

CAROLYN W. COLVIN,
Defendant.

DECISION AND ORDER

This is an action for review of the final decision of the Commissioner of Social Security
denying Plaintiff Susan Borland’s application for Disability Insurance Benefits and Supplemental
Security Income under the Social Security Act. Almost four years ago, the court reversed an
unfavorable decision by the Commissioner of Social Security and remanded the case for further
proceedings based on the court’s conclusion that Administrative Law Judge (ALJ) Mary L. Everstine
had relied on a misstatement of the 2009 opinion of one of Borland’s treating physicians. (Tr.
509–531.) On remand, the case was assigned to ALJ Ira S. Epstein. ALJ Epstein conducted a
limited rehearing and again denied Borland’s application which had been modified to cover a closed
period from 2003 to 2010. ALJ Epstein’s decision became the final decision of the Commissioner
when the Appeals Council denied review. For the reasons given below, the decision of the
Commissioner will be affirmed.
BACKGROUND
Borland’s employment and medical histories are set forth at length in the Court’s previous
decision and will not be repeated in detail here. (Tr. 510–15.) In sum, Borland injured her right

knee at work in 2001 and, despite a number of surgical procedures by several different orthopedic
surgeons and other conservative courses of treatment, she had experienced pain in her knee up until
she underwent a knee replacement in late 2009. Due to an infection after her second surgery and
her relatively young age, various doctors had previously advised against a knee replacement, though
more than one thought the procedure would eventually be needed.
In Borland’s previous action for judicial review, she claimed that the ALJ failed to properly
assess her physical and mental residual functional capacity (RFC), erred in her credibility analysis,
and failed to incorporate all of her limitations in the hypothetical question she posed at Step Five of
the Agency’s sequential analysis. I thought that the ALJ had mischaracterized the opinion of Dr.
Roy Buck, one of Borland’s treating physicians who performed the fifth surgery in early 2009, and
thus reversed and remanded the case for further proceedings. I concluded a remand was necessary
because even though there was other evidence in the record that supported the ALJ’s conclusion,
the ALJ had intimated that Dr. Buck’s opinion was entitled to greater weight than those provided
by the other physicians because of when he rendered it. (Tr. 521–22 (“[S]he also suggested that his
opinion was entitled to greater weight because it was offered ‘AFTER her most recent surgery and
AFTER she had reported in June 2009 that she had done well until a couple of weeks prior when
she had some increased pain.’” (quoting Tr. 14.)). For me to rely on the other doctor’s reports to
support the ALJ’s decision, I concluded, would violate what the Seventh Circuit has come to refer
to as the Chenery doctrine. See, e.g., McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (noting
that “ it improper for an agency’s lawyer to defend its decision on a ground that the agency had not
relied on in its decision” (citing SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943)). The
Commissioner’s decision was therefore reversed and the case remanded for further proceedings.
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At the rehearing, Borland’s attorney informed ALJ Epstein that Borland now sought benefits
only for a closed period from June 13, 2003, through May 23, 2010, because she no longer claimed
she was disabled. On December 15, 2009, Dr. Ilan Shapiro, performed the long-awaited knee
replacement surgery. (Tr. 669–70.) Borland provided additional medical records related to this
surgery to ALJ Epstein during the hearing. (Tr. 468.) After the surgery, Borland participated in
physical therapy from December 2009 to February 2010. (Tr. 616–31.) The records from physical
therapy show steady improvement with an increased range of motion, decreased pain and stiffness,
and improved ability to tolerate exercise and activity. (Tr. 628–31.) She started working full-time
in May 2010, while her previous case was pending, and was now working for a foundry doing
maintenance inventory. (Tr. 467–70.)
Borland then briefly described her medical history and previous work, both as a head cook
for Smuckers for 11 years and a stint as a cook at a restaurant for a few months in 2006. (Tr.
470–72.) Regarding her symptoms during the closed period of alleged disability, Borland testified
that standing for any length of time was painful and that her pain was better on some days than
others:
Each day was different. You know, it all revolved around weather. It all
revolved around, you know, just circumstances. Sometimes I could stand for an
hour but then I’d need to sit down and rest. It, it was never the same thing, you
know. It was just, it hurt on and off constantly and when I needed to sit, I needed
to sit and when I needed to stand, I needed to stand. I needed to stretch it out and
move it because it would hurt sitting too long too.
(Tr. 472.) She further testified that she could probably sit for a half an hour and then she would
“have to prop it up.” (Tr. 473.) She propped her knee up by laying on a couch with a pillow under
the back of her knee. (Tr. 475.) Borland also indicated that the pain was always present and limited

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her to light housework like simpler meals, but she was able to care for several older foster children.
(Tr. 474–76, 477.) Borland’s attorney did not ask any questions because ALJ Epstein reminded the
attorney that the remand was limited and indicated that the period had “been gone over and decided
already.” (Id.)
In his decision after remand, ALJ Epstein thought that in reversing the Commissioner’s
previous decision, the court “may have misunderstood Administrative Law Judge Everstine’s finding
and rationale.” (Tr. 453.) In ALJ Epstein’s view, the finding that Borland could do sedentary work
so long as she could “occasionally stretch her right leg” was not based on Dr. Buck’s opinion, but
rather a “conclusion based upon a careful review of all of the evidence” and a recognition that the
opinion “came well after claimant’s alleged onset date.” (Tr. 454.) In any event, ALJ Epstein found
based on the entire record that throughout the closed period Borland had retained the RFC “to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a) provided that she had the opportunity
to occasionally stretch the right leg/knee.” (Tr. 456.)
Based upon the medical record of evidence and the testimony adduced at the hearing, ALJ
Epstein then proceeded to apply the familiar five-step sequential evaluation process mandated by the
Social Security regulations. See 20 C.F.R. § 404.1520. He found that Borland did not engage in
substantial gainful activity during the closed period. At step two, ALJ Epstein found that Borland
had the following medically determinable severe impairments: “Degenerative joint disease of the right
knee with multiple surgeries, including most recently knee replacement surgery, aggravated by
obesity.” (Tr. 456.) He then concluded that none of her impairments, alone or in combination, met
or equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. ALJ Epstein
found that Borland had the RFC “to perform sedentary work as defined in 20 CFR 404.1567(a)
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provided that she the opportunity to occasionally stretch the right leg/knee.” (Id.) At step four, he
found that Borland was unable to perform her past work, and thus proceeded to step five where he
found that Borland was not disabled because she retained the RFC to perform a significant number
of jobs that exist in the national economy.
In this appeal, Borland argues that the ALJ erred in assessing the weight to accord her
treating physicians, in determining her RFC, and in formulating his hypothetical question to the
vocational expert. She contends that ALJ Epstein cherry-picked from the record, ignored important
evidence, and substituted his opinion for those of the medical sources. As a result, Borland
maintains that ALJ Epstein improperly discounted the opinion of Dr. Buck, whose 2009 opinion
indicated that Borland was incapable of even sedentary work due to her right knee.
ANALYSIS
On judicial review, a court will uphold the Commissioner’s decision if the ALJ applied the
correct legal standards and supported the decision with substantial evidence. 42 U.S.C. § 405(g).
“Substantial evidence is ‘such relevant evidence as a reasonable mind could accept as adequate to
support a conclusion.’” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)). Although a decision denying benefits need not discuss every
piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the
conclusions drawn. Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). The ALJ must provide
a “logical bridge” between the evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th
Cir. 2000).
The ALJ is also expected to follow the SSA’s rulings and regulations in making a
determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v.
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Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the court does not
substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636,
638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ. Shauger
v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93–95
(1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).
A. Opinions of Treating Physicians
In determining Borland’s RFC on remand, ALJ Epstein gave Dr. Buck’s opinion concerning
her limitations “only limited weight.” (Tr. 454.) Borland contends that in doing so, the ALJ failed
to comply with the treating physician rule set forth in SSR 96-2p. She argues that the ALJ failed to
explain how Dr. Buck’s opinion was inconsistent with the other medical opinions and why his was
entitled to less weight even if it was inconsistent. She also contends that the ALJ failed to state what
weight he did give Dr. Buck’s opinion. Overall, she argues that the ALJ failed to build a logical
bridge to his conclusion that Dr. Buck’s opinion was entitled to only limited weight.
An ALJ must give controlling weight to treating source opinions that are “well supported by
medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with other
substantial evidence in the case record.” 20 C.F.R. § 404.1527(c)(2); see also Punzio v. Astrue, 630
F.3d 704, 710 (7th Cir. 2011). “Not inconsistent” carries a specific definition according to the SSA:
This is a term used to indicate that a well-supported treating source medical opinion
need not be supported directly by all of the other evidence (i.e., it does not have to
be consistent with all the other evidence) as long as there is no other substantial
evidence in the case record that contradicts or conflicts with the opinion.

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SSR 96-2p, 1996 WL 374188, *3 (July 2, 1996). More weight is given to the opinions of treating
physicians because they have greater familiarity with the claimant’s conditions and circumstances.
Clifford, 227 F.3d at 870. If the ALJ discounts the opinion of a claimant’s treating physician, the
ALJ must offer “good reasons” for doing so. Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010).
The reason for giving greater weight to the opinions of treating physicians is that they “are
likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.”

20 C.F.R. §

404.1527(c)(2). At the same time, “a claimant is not entitled to disability benefits simply because
his physician states that he is ‘disabled’ or unable to work.” Dixon v. Massanari, 270 F.3d 1171,
1177 (7th Cir. 2001). The Seventh Circuit has cautioned that treating physicians may bring their
own biases to the evaluation. See id. (“The patient’s regular physician may want to do a favor for
a friend and client, and so the treating physician may too quickly find disability.”). Thus, the ALJ
need not blindly accept a treating physician’s opinion—he may discount it if it is internally
inconsistent or contradicted by other substantial medical evidence in the record. Schmidt v. Astrue,
496 F.3d 833, 842 (7th Cir. 2007).
Borland had several treating physicians over the course of the long history of her right knee
impairment, including Dr. R. Jones, who first treated her for her knee injury in 2001; Dr. Leo Kaplan
and Dr. Richard Illigen from the University of Wisconsin Department of Orthopedics and
Rehabilitation who treated her in 2003; Dr. Craig Bately, an osteopathic physician who treated her

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for pain in 2008; and finally Dr. Shapiro, who performed the knee replacement surgery. Dr. Buck’s
treatment of her was actually quite limited. He is the orthopedic surgeon who performed the last of
five arthroscopic surgeries she had on her right knee between 2001 and 2009. The record contains
little more from Dr. Buck than his operative report of the surgery he performed on Borland at the
Mercy Medical Center in Oshkosh on February 26, 2009. (Tr. 395-97.) The only other pertinent
record is a “Medical Source Statement (Physical)” apparently presented to Dr. Buck by Borland’s
lawyer. (Tr. 401.) This form appears to have been completed and signed by Dr. Buck on August
6, 2009, and is the primary medical source of the limitations on which Borland relies for her claim
that she was unable to perform the limited range of sedentary work throughout the period from 2003
to 2010. The ALJ did not err in according it “only limited weight.”
In his decision, the ALJ noted that Dr. Buck’s opinion was “rather inconsistent with the
majority of opinions, especially as it relates to lifting.” (Id.) In support of this conclusion, ALJ
Epstein cited the report from Dr. David Jones, an orthopedist who opined in October 2003, four
months after Borland’s alleged onset date, that she could sit for eight hours; stand for three hours
and sit for three hours with the ability to alternate positions; lift twenty-four pounds frequently and
thirty-four pounds occasionally; but should avoid bending, squatting, stopping, crawling, crouching,
or kneeling. (Tr. 333, 451–52.) ALJ Epstein also cited the report of Dr. Ward Jankus (mistakenly
referred to as Jenkins), a consulting physician who a took a history and conducted a physical
examination of Borland in November 2007. Dr. Jankus noted only Borland should avoid excessive
pressure on her knee, including kneeling and crawling, and would need to “intermittently alternate
her position up and down off her feet.” He imposed no lifting restriction. (Tr. 355–357.) Finally,
the ALJ referenced the December 2007 report Dr. Syd Foster of the Wisconsin Disability
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Determination Services. Dr. Foster concluded from his review of Borland’s medical file that she
could occasionally lift ten pounds and frequently lift less than ten pounds, stand or walk at least two
hours in an eight-hour day and sit about six hours. The only other limitation Dr. Foster noted was
that she should never crawl. (Tr. 358–365.)
Earlier in his decision, the ALJ had referenced the report of Dr. Bentson, who had seen
Borland for an orthopedic examination in January 2008. Borland reported that she had problems
with prolonged sitting, walking, standing, bending and twisting. Dr. Bentson noted that physical
examination for the left knee was negative. For the right knee, there was full range of motion, no
swelling or instability, but some tenderness and positive McMurray sign. Dr. Bentson opined,
however, that arthroplasty was not warranted. (Tr. 452.) It was the following year that Borland saw
Dr. Buck, and this was in response to her complaint that she had experienced a sudden episode of
pain and locking of her right knee on February 8, 2009. (Tr. 395.) Dr. Buck performed surgery
later that month in which he removed a loose body and trimmed and smoothed some of the arthritic
joint surfaces. (Tr. 396.) As the ALJ noted, no treatment notes by Dr. Buck follow. (Tr. 453.) In
fact, there are no other reports by Dr. Buck except the physician statement he signed some six
months later. Four months later, Borland had the knee replacement and shortly thereafter returned
to work.
Based on this record, Dr. Buck’s opinion concerning Borland functional capacity was not
deserving of controlling, or even significant weight. Dr. Buck performed arthroscopic surgery on
her right knee. Nothing in his report suggests that he performed any test or examination, or viewed
any report, to determine how much weight she could lift or how long she could stand, walk or sit
six months after he performed the surgery. Indeed, nothing in his reports indicates he even asked
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Borland what she could do. Moreover, as the ALJ also noted, Dr. Buck’s opinion came significantly
after the alleged onset date and so would have no relevance to her condition before 2009. (Tr. 454.)
Given the other medical opinions and the absence of medically acceptable clinical and laboratory
diagnostic techniques supporting it, the ALJ did not err in his assessment of Dr. Buck’s opinion even
for the brief period of time it covered.
B. RFC and Hypothetical
Borland also argues that the ALJ erred in determining her RFC and in formulating the
hypothetical question he posed to the vocational expert. She contends that the ALJ failed to identify
her functional limitations or restrictions and assess her work-related abilities on a
function-by-function basis. In other words, Borland contends that the ALJ was required to make
specific findings as to the weight she could lift occasionally and frequently, the length of time she
could sit, stand or walk, and any other functional limitations, and only then determine her RFC. She
contends that the ALJ is required to do so by SSR 96-8p. Borland also contends that the ALJ erred
in failing to include in the hypothetical question he posed the vocational expert the specific functional
limitations that the evidence supported.
Borland’s first contention that the ALJ was required to make specific findings as to each
functional limitation has been rejected by the Seventh Circuit. See Zatz v. Astrue, 346 Fed. Appx.
107,111 (7th Cir. 2009) (“Although the ALJ could have been more explicit in his findings, his duty
under SSR 96–8p is not as onerous as Zatz suggests.”); see also Knox v. Astrue, 327 Fed. Appx.
652, 657 (7th Cir. 2009) (noting that “[a]lthough the ‘RFC assessment is a function-by-function
assessment,’ SSR 96–8p, the expression of a claimant’s RFC need not be articulated
function-by-function; a narrative discussion of a claimant’s symptoms and medical source opinions
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is sufficient” ). It is true that SSR 96-8p requires the ALJ to “first identify the individual’s functional
limitations or restrictions and assess his or her work-related abilities on a function-by-function basis”
before expressing the claimant’s RFC in terms of the exertional levels of work. But the ruling does
not state that the ALJ must expressly and separately set out such findings in his decision. While the
ALJ did not make express findings as to Borland’s ability to lift, sit, stand and walk, he did limit her
to sedentary work with the additional limitation that she would have the ability to occasionally
stretch her right leg/knee. “Sedentary work” by definition limits the individual to primarily sit-down
work involving lifting of no more than ten pounds. 20 C.F.R. § 404.1567(a).
While it may have been better for the ALJ to make explicit his findings on a
function-by-function basis before expressing Borland’s RFC in terms of the exertional level of work
she was capable of performing, I conclude from my review of the record that the ALJ implicitly
found that Borland was not limited except as expressed in the RFC. See Bayliss v. Barnhart, 427
F.3d 1211, 1217 (9th Cir. 2005) (“Preparing a function-by-function analysis for medical conditions
or impairments that the ALJ found neither credible nor supported by the record is unnecessary.”);
see also Depover v. Barnhart, 349 F.3d 563, 567–68 (8th Cir. 2003) (holding that ALJ’s failure to
first express claimant’s work-related abilities on a function-by-function basis did not require remand
where required findings were implicit). Under the circumstances of this case, there is no need to
remand to make the findings more explicit.
Borland is also mistaken in her contention that the ALJ erred in failing to incorporate all of
the limitations into the hypothetical question he posed to the vocational expert. He asked the expert
to assume a person of Borland’s age, education and experience who was limited to sedentary work
but also “[e]xpressly should avoid stooping, crouching, crawling, kneeling; avoid walking on uneven
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terrain; and should be able at the workstation to stretch the right leg out occasionally but can do that
while sitting at the workstation or just standing in place.” (Tr. 493.) These are the only functional
limitations the ALJ found, and the evidence easily supports his findings, as I explained in my earlier
decision. (Tr. 524–30.)
Borland had a bad right knee. The records shows this was her only significant impairment.
Once the bad knee was replaced, she was able to return to work. The RFC and hypothetical posed
by the ALJ fully takes her impairment into account. Substantial evidence supports the decision of
the Commissioner that she was not disabled between 2003 and 2010. Accordingly, the decision of
the Commissioner is affirmed.

CONCLUSION
For the reasons set forth above, the Commissioner’s decision is affirmed. The Clerk is
directed to enter judgment forthwith.
SO ORDERED this 22 day of September, 2014.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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