Alexander v. Colvin

Filing 23

ORDER signed by Chief Judge William C Griesbach on 3/24/15. The Commissioner's decision is AFFIRMED. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CHERYL A. ALEXANDER,
Plaintiff,
v.

Case No. 14-CV-449

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

DECISION AND ORDER

This is an action for review of the final decision of the Commissioner of Social Security
denying Plaintiff’s application for disability insurance benefits (DIB) under Title II of the Social
Security Act. 42 U.S.C. § 401 et seq. The Commissioner determined Plaintiff was not under a
disability during the period she was insured for DIB—February 23, 2010 to June 30, 2011. For the
reasons below, that decision will be affirmed.

I. BACKGROUND
Plaintiff Cheryl A. Alexander lives with her husband and two of their five children in Antigo,
Wisconsin. She filed her application for social security disability insurance benefits on September
8, 2011, at age 54. Until around 2010, Alexander had worked as a certified nursing assistant. Prior
to that, she worked as a housekeeper. She testified that she lost her last CNA job, which required
running to patients’ beds when they sounded their medical alarms, due to her diabetes and
hypertension. She also testified that she tried securing another CNA position to retain her license,

but was unsuccessful. Her alleged onset date, as amended, is February 23, 2010, and there is no
dispute that her “date last insured” for DIB, meaning the date by which she had to establish she was
disabled, is June 30, 2011. Plaintiff applied for disability due to diabetes, obesity, short-term memory
loss and peripheral neuropathy (nerve damage).
Plaintiff’s treatment records show a history of type 2 diabetes mellitus and a long history of
noncompliance with treatment. In a neuropathy evaluation on February 23, 2010, she complained
of numbness and pain in her feet. A physical examination was unremarkable, and the examining
doctor suspected “run of the mill neuropathy as a result of her diabetes.” (R. 230.) Plaintiff told the
doctor she was retired at the time. The doctor recommended increasing her dose of diabetes
medication since her symptoms were resolved most of the day on the relatively minimal dose she was
taking at the time. (R. 230.) On May 7, 2010, Plaintiff told her treating physician, Dr. Bart
Kneeland, she had stopped taking her medication recently. She told Dr. Kneeland that she had since
resumed taking it and that it was working in the morning but was wearing off in the afternoon,
resulting in numbness and tingling in her toes. (R.247.) Dr. Kneeland explained the importance of
taking her medications as scheduled. In a follow-up on August 18, Plaintiff presented with
“startling” weight gain. She weighed 180 pounds January 6, 2010 and 231 pounds August 18, 2010.
Dr. Kneeland switched her medications. (R.245.) Plaintiff saw Dr. Kneeland again in September
1, 2010, and Kneeland noted she had a long history of noncompliance, but was doing well recently:
She still does not check her blood sugars, but she is otherwise happy with how things
are going. . . . She is feeling good, not having much for neuropathy, is happy with
how things are going, sleeping well at night, and has already lost 8 pounds. She feels
as though things have improved greatly and she is happy with how things are going.
She has no other cardiovascular, pulmonary, gastrointestinal, or genitourinary
complaints at this time.

2

(R.243.) Dr. Kneeland’s objective findings were unremarkable.
Plaintiff reported to Dr. Kneeland she continued to feel better in a follow-up September 30,
2010. She noted when she walks, she actually feels better. (R.242.) She reported November 11
she was feeling good and her neuropathy improved greatly on her new medications. (R.239.)
Kneeland’s objective findings were mostly unremarkable but the results of Plaintiff’s hemoglobin
A1C test, a measure of average blood sugar in the previous several months, were high.
In a February 2011 follow-up, Dr. Kneeland noted Plaintiff’s hemoglobin A1C results were
the highest in years. She reported not feeling well, not checking her blood sugars and “not really”
taking her medications. (R.237.) The doctor noted she was vague about taking her medications.
She stated she had a little bit of shortness of breath with exertion such as going up steps. This was
her last check-up before June 30, 2011, when her insurance status ceased. In July 2011, despite
continued high blood sugar levels, she reported feeling good. (R.235.) In late July she reported nail
changes in her left foot, including her big toenail getting thicker and thicker. (R.233.) Dr. Kneeland
diagnosed onychomycosis, a fungal infection, and sent for a fungal culture. He also noted she was
“having some numbness in her toes with some paresthesias [tingling or burning sensation]
occasionally most consistent with a diabetic neuropathy.” (R.233.) In none of the treatment records,
however, is there any indication that Plaintiff was having difficulty walking.
The Social Security Administration (SSA) initially denied Plaintiff’s application on January
10, 2012. State agency consultant Dr. Syd Foster assessed Plaintiff’s physical residual functional
capacity (RFC) and concluded, based on a review of Plaintiff’s medical records, she could perform
light work during the operative time period from February 2010 through June 2011. Foster noted
that the symptoms noted in the medical records were of “mild neuropathy” but that Plaintiff did much
3

better when she was compliant with her medications and kept up with her blood sugars. (R.312.)
The SSA also concluded Plaintiff had no medically determinable mental impairments. (R.318.)
Plaintiff continued treatment for diabetic foot care in 2012 but the SSA denied Plaintiff’s
application on reconsideration on July 30, 2012. Although late 2012 and early 2013 records show
Plaintiff reporting feeling better, it is evident that her longstanding issues were escalating. Dr.
Kneeland provided medical source statements dated January 2013 and July 2013 in which he opined
that she was completely unable to work. (R.451, 638, 641.) In the January assessment Dr. Kneeland
noted diagnoses of diabetic neuropathy and poor memory and a prognosis of “fair – will worsen.”
(R.451.) By the middle of 2013, two of Plaintiff’s toes were amputated. (R.537, 561, 620, 627,
645.) In the July 2013 medical source statement Dr. Kneeland noted diagnoses of diabetic
neuropathy and osteomyelitis, a bone infection, and prognosticated “long term problem with
wavering symptoms” including “severe burning pain.” (R.638.)
The SSA held a video hearing regarding Plaintiff’s disability claim on September 13, 2013.
Administrative Law Judge (ALJ) Debra Meachum issued a written decision on October 31, 2013.
ALJ Meachum found severe impairments of obesity, diabetes mellitus, and peripheral neuropathy and
found that, through the June 30, 2011 date last insured, Plaintiff had the RFC to perform light work.
The ALJ gave “little weight” to Dr. Kneeland’s opinions, noting they related to her condition in
2013, long after her last insured date, and were “not entirely consistent with other substantial
evidence of record prior to the claimant’s date last insured.” (R. 33.) Instead, the ALJ gave “great
weight” to the state agency consultants, including Dr. Foster, who opined as to her condition during
the relevant time period based on his review of Plaintiff’s file. Nonetheless, the ALJ included RFC
limitations that Plaintiff could not climb ropes, ladders or scaffolds, but could occasionally climb
4

ramps and stairs. The ALJ also allowed in the RFC that Plaintiff could be off task up to 10% of the
workday, exclusive of normal breaks. (R. 32.) Based on the testimony of a vocational expert,
described in more detail below, the ALJ found Plaintiff was capable of performing her past relevant
work as a housekeeping cleaner. Accordingly, the ALJ concluded that, up to and including the date
last insured, Plaintiff was not disabled.
The Appeals Council denied review February 6, 2014 and, pursuant to an extension granted
by the SSA, Plaintiff timely filed this action for judicial review under 42 U.S.C. § 405(g) on April
18, 2014. (See R. 2.)

II. STANDARD OF REVIEW
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 Agency’s own rulings and regulations in making a
determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v.
Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the court does not
5

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). Because the ALJ is in the best position to judge the claimant’s credibility,
credibility determinations must stand unless “patently wrong.” Castile v. Astrue, 617 F.3d 923, 929
(7th Cir. 2010).

III. ANALYSIS
A. Treating Physician’s Opinions
Plaintiff argues the ALJ erred by failing to accord proper weight to her treating physician’s
opinions that she was totally disabled. Under the regulations, a treating physician’s opinion must be
given controlling weight if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence [of] record.” 20
C.F.R. § 404.1527(c)(2). Here, the ALJ gave Dr. Kneeland’s opinions “little weight” because they
were not consistent with substantial evidence during the relevant time period, including Plaintiff’s
subjective reports and her doctor’s objective findings. The ALJ also reasoned that Dr. Kneeland’s
opinions were rendered long after Plaintiff’s date last insured and related to her condition at that
time. (R.34.) This was not error.
First, it was entirely reasonable to discount Kneeland’s 2013 opinions when the relevant time
period was 2010 to mid-2011. See Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir. 2011) (affirming
Commissioner’s rejection of medical source statement provided two years after date last insured).
The medical source statements completed by Dr. Kneeland are silent as to what Plaintiff’s condition
was prior to June 30, 2011. For this reason alone, the ALJ was justified in according them little
6

weight.
Moreover, as the ALJ noted, Dr. Kneeland’s actual treatment records for the relevant time
period do not appear to be consistent with his opinion of total disability. Plaintiff argues the predate-last-insured treatment records are not “cut and dry”; she emphasizes the rapid weight gain,
apparently due at least in part to diabetes medication, and the high glucose levels in February 2011.
The ALJ, on the other hand, as did Dr. Foster, reviewed the relevant records and concluded
Plaintiff’s condition was under control when she took her medication. This court cannot re-weigh
evidence and therefore the SSA’s conclusions must stand.
Plaintiff also argues the ALJ improperly dismissed Kneeland’s opinions by reference to a
“single notation that Plaintiff stated she was ‘feeling good.’” (ECF No. 16 at 5.) That is simply not
accurate. The ALJ did not cherry-pick Plaintiff’s subjective report from one snapshot in time; rather,
the ALJ noted many subjective statements and the objective evidence and concluded it could not be
squared with Kneeland’s later opinion. Thus, Plaintiff’s “cherry-picking” argument is unavailing.
What is totally absent from Dr. Kneeland’s treatment records that pre-date Plaintiff’s date last
insured is any complaint by her that she is having difficulty walking or remaining on her feet. A week
after her date last insured, Plaintiff reports she “has been feeling good” and is described as “a
healthy-appearing female in no acute distress” and is assessed with “mild peripheral neuropathy.”
(R. 235.) Again, there is no report of any difficulty or limitations in walking or standing.
Plaintiff also argues the ALJ’s discounting Dr. Kneeland’s opinion resulted in an RFC that
was not supported by substantial evidence. Plaintiff again re-hashes the evidence she thinks supports
her position and asks this court to accept Dr. Kneeland’s opinion of total disability and reject the
ALJ’s and Dr. Foster’s conclusion that she could perform light work. For the reasons stated, I
7

cannot do that.
B. Step Three
Plaintiff also argues the ALJ failed to consider an applicable listing at step three of the
sequential evaluation process, but the argument is without merit. At step three, the SSA considers
the severity of the claimant’s impairments, including whether the claimant has an impairment that
meets or equals one of the listings in appendix 1 of subpart P of 20 C.F.R. part 404. 20 C.F.R.
§ 404.1520(a)(5)(iii). Listing 9.00 lists endocrine disorders, including diabetes mellitus. It provides
information about diabetes:
Both type 1 and type 2 DM are chronic disorders that can have serious disabling
complications that meet the duration requirement. . . . With type 2 DM—previously
known as “adult-onset diabetes mellitus” or “non-insulin-dependent diabetes
mellitus” (NIDDM)—the body’s cells resist the effects of insulin, impairing glucose
absorption and metabolism. Treatment of type 2 DM generally requires lifestyle
changes, such as increased exercise and dietary modification, and sometimes insulin
in addition to other medications. While both type 1 and type 2 DM are usually
controlled, some persons do not achieve good control for a variety of reasons
including, but not limited to, hypoglycemia unawareness, other disorders that can
affect blood glucose levels, inability to manage DM due to a mental disorder, or
inadequate treatment.
20 C.F.R. part 404, subpart P, appendix 1, 9.00B.5.
Plaintiff argues the ALJ inexplicably failed to even consider listing 9.00.

But the

Commissioner correctly responds that that listing is not an independent one that can be met without
consulting the cross-referenced listings provided therein. Listing 9.00B.5.a.(ii) describes chronic
hyperglycemia, the listing Plaintiff claims the ALJ failed to consider, as follows:
Chronic hyperglycemia, which is longstanding abnormally high levels of blood
glucose, leads to long-term diabetic complications by disrupting nerve and blood
vessel functioning. This disruption can have many different effects in other body
systems. For example, we evaluate diabetic peripheral neurovascular disease that
leads to gangrene and subsequent amputation of an extremity under 1.00; diabetic
8

retinopathy under 2.00; coronary artery disease and peripheral vascular disease under
4.00; diabetic gastroparesis that results in abnormal gastrointestinal motility under
5.00; diabetic nephropathy under 6.00; poorly healing bacterial and fungal skin
infections under 8.00; diabetic peripheral and sensory neuropathies under 11.00; and
cognitive impairments, depression, and anxiety under 12.00.
Listing 11.14 in turn lists peripheral neuropathies as “disorganization of motor function as described
in 11.04B, in spite of prescribed treatment” and 11.04B lists “[s]ignificant and persistent
disorganization of motor function in two extremities, resulting in sustained disturbance of gross and
dexterous movements, or gait and station.”
The ALJ explicitly noted she considered listing 11.14. (R.31.) That is exactly what listing
9.00B.5.a.(ii) states she must do. The ALJ reviewed the medical records and reasonably concluded:
“Overall, when compliant in taking her medications and checking her blood sugars, treatment notes
indicate that her diabetes was generally under good control during the relevant period.” (R.33.)
Noting Plaintiff’s high glucose levels in late 2010 and 2011, Plaintiff argues there is “persistent
evidence” she suffered from “uncontrolled” diabetes mellitus. (ECF No. 16 at 9.) She notes this led
to diabetic neuropathy in her foot and therefore the ALJ should have considered whether she met
the chronic hyperglycemia listing noted above. That Plaintiff had type 2 diabetes that resulted in
neuropathy does not necessarily mean she is disabled under listing 9.00; rather, as the ALJ noted,
the question was whether the resulting neuropathy met the more specific criteria listed. Notably,
Plaintiff does not even argue the ALJ erred in concluding that she did not meet the specific criteria.
In sum, the ALJ did not, as Plaintiff argues, fail to consider whether Plaintiff’s diabetes met
applicable listings—rather, the ALJ did just that. And she did not commit reversible error by failing
to explicitly cite listing 9.00.

9

C. Credibility
Plaintiff also argues the ALJ’s credibility determination was not supported by substantial
evidence. She points to parts of the record that support her statements and argues it is thus
reasonable to call the ALJ’s credibility determination into question. (ECF No. 16 at 10–11.) Not
so. The question is not whether this court agrees, but whether a credibility determination is “patently
wrong.” Skarbek v. Barnhart, 390 F.3d 500, 504–05 (7th Cir. 2004).
The ALJ found Plaintiff “not entirely credible” in light of her activities of daily living as well
as “the objective medical findings, physical exam findings, and overall treatment documentation.”
(R.33.) The analysis is far from compelling. The activities of daily living the ALJ notes are “driving,
shopping, limited cooking and household chores, reading, watching television, handling her own
money, and going to church.” (Id.) The Seventh Circuit has warned against citing these kinds of
modest activities to undermine a claimant’s disability claim. E.g., Scrogham v. Colvin, 765 F.3d
685, 700 (7th Cir. 2014); Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004). In addition,
a credibility determination should not be based on a lack of “physical exam findings”—it is because
objective medical evidence alone is often insufficient to judge subjective statements about symptoms
and pain that the SSA’s regulations require the ALJ to consider factors “in addition to the objective
medical evidence” when assessing credibility. See Social Security Ruling (SSR) 96-7p, 1996 WL
374186, *7 (July 2, 1996).
Nonetheless, I find no reversible error here. It is not as if the ALJ rejected Plaintiff’s
statements that at times she experienced burning and freezing sensations in her feet. Given the
limited RFC here—light work with only occasional climbing of ramps and steps and the allowance
of being off task 10% of the workday—it is Plaintiff’s statements of the more extreme limitations
10

that were rejected. Plaintiff claimed that due to her symptoms she could not sleep, could not breath,
could not walk a block and could not stand more than 5–10 minutes. (R. 63–65, 186.) The relevant
treatment records, which as noted above is one of the bases upon which the ALJ rejected these
claims, are simply not consistent with the extent of limitations Plaintiff described to the SSA. As the
ALJ noted, the 2010 and 2011 treatment notes show Plaintiff consistently telling Dr. Kneeland she
was feeling good, including that she was sleeping well and even feeling better when walking.
Plaintiff’s condition obviously got worse, but given the evidence Plaintiff presented that pertained
to the time she was insured, I cannot find the ALJ’s rejecting her statements of extreme limitations
was patently wrong.
Plaintiff also argues the ALJ erred by basing the adverse credibility finding on Plaintiff’s longstanding history of non-compliance with treatment. Plaintiff argues the ALJ should have asked her
whether she had “good reasons” for failing to follow prescribed treatment. See 20 C.F.R.
§ 404.1530(c). However, Plaintiff’s noncompliance with treatment was not a basis for the ALJ’s
credibility finding; those bases are noted and discussed above. Instead, the ALJ discussed noncompliance with treatment in relation to the severity of Plaintiff’s diabetes during the relevant
window. (E.g., R.33) (“Overall, when compliant in taking her medications and checking her blood
sugars, treatment notes indicated that her diabetes was generally under good control during the
relevant period.”) (citations omitted). Accordingly, I cannot reverse on this ground either.
D. Step Four Finding and Completeness of the Record
Plaintiff also argues the ALJ’s step-four finding that Plaintiff could do her past relevant work
as a housekeeping cleaner was unsubstantiated by the record and the incomplete record, including
the transcript of the video hearing in which certain parts of the vocational expert’s testimony were
11

“inaudible,” must be remanded for further development. I disagree.
The ALJ’s step-four finding was based on the following exchange with the vocational expert,
John Reiser:
Q And, Mr. Reiser, I’d like you to assume an individual of the claimant’s age and
with her education and work history who would be limited to light work; no climbing
ropes, ladders or scaffolds; only occasionally climbing ramps and stairs; may be off
task up to 10% of the workday exclusive of normal breaks.
Could that person perform any of the claimant’s past relevant work?
A Your Honor, the housekeeping job at both the motel and at the hospital would
be doable with the [INAUDIBLE].
Q And if this individual was further limited to only occasional bending and
occasional twisting? Does that change your answer?
A As a matter of fact, no. The housekeeping cleaner per the Selected
Characteristics of Occupations which is a companion edition to the DOT, rates the
bending and stooping job as occasional and I [sic] doesn’t rate twisting, but again I
would leave it with the occasional. There would be [INAUDIBLE].
Q Okay. And what if the person could never squat, does that change your answer?
A Yes, I don’t think that that job would be doable. I think squatting on occasional
[sic] would have to happen.
....
Q And what if this person because of pain and other symptoms would be off task
more than 10% of the workday, would that change your answer?
A Yeah, that’s work preclusive, Your Honor. That’s going to be a degree of
[INAUDIBLE] for the task at hand and that would get the person fired. They’d be
subject to discipline and if they didn’t pick up the pace, they would have – probably
lose their job. No jobs.
Q I have no further questions.
(R.74–76.)

12

Plaintiff argues the first “inaudible” reproduced above shows some unknown “caveat” on
Reiser’s affirmative answer and therefore the record in this form does not support the ALJ’s finding
that Plaintiff could perform her past relevant work as a housekeeping cleaner. Plaintiff also argues
the expert’s answer that an employee off task more than 10% of the workday is unemployable
renders the ALJ’s RFC finding, which allows Plaintiff to be off task up to 10% of the workday,
internally inconsistent.
Based on the foregoing, this court is not authorized to remand this case under sentence six
of 42 U.S.C. § 405(g). See gen. Acevedo v. Barnhart, 474 F. Supp. 2d 1001 (E.D. Wis. 2007)
(discussing differences between “sentence four” and “sentence six” remands). Unlike a sentence four
remand, which constitutes a decision on the merits of the case, in a sentence six remand the court
retains jurisdiction of the case to allow the SSA to consider new evidence and/or reconstruct the
record. Id. at 1003 (collecting authority). Such a remand may be ordered in only two situations:
where the Commissioner requests remand before answering the complaint, or where new, material
evidence is adduced that was for good cause not presented before the agency. Id. (quoting Shalala
v. Schaefer, 509 U.S. 292, 297 n.2 (1993)). Neither situation exists here.
Moreover, I decline to remand under sentence four, as a decision on the merits, because of
the transcript. Of course, the court would prefer not to have to guess what was said at the hearing.
But it is highly unlikely that whatever was said in the gaps would be outcome determinative.
Essentially, the only outcome-determinative possibility would be that the expert’s answer to the
initial question did include a substantive caveat. That would mean the expert never actually provided
an unqualified opinion that the hypothetical claimant in the ALJ’s questions could perform Plaintiff’s
past relevant work. Rather than proceed to step five of the sequential evaluation process, however,
13

the ALJ concluded her questioning after this exchange.
It is much more reasonable to conclude that the expert’s answer to the ALJ’s initial
hypothetical was an unqualified affirmative one. The transcript shows a course of questioning that
is common in social security hearings: the ALJ supposed a hypothetical claimant with certain
limitations (that were entirely consistent with her later RFC finding); the expert testified that the
housekeeping cleaner position would be “doable with the [INAUDIBLE]”; the ALJ then added
further limitations until the expert answered that the hypothetical person could not any perform past
relevant work. Specifically, the ALJ added the limitation of no squatting and then the limitation that
the person would be off task more than 10% of the workday. The expert testified that each
limitation would require him to change his answer. In context, then, it is natural to read the expert’s
answer to the original hypothetical as an unqualified affirmative one. Accordingly, I decline to
remand on this basis.
E. Duty to Develop the Record
Finally, Plaintiff argues that the ALJ should have contacted Dr. Kneeland and asked for his
opinion as to Plaintiff’s condition at the time of her alleged onset date. (ECF No. 16 at 15.)
However, the argument presumes Plaintiff became disabled after her date last insured, a presumption
the ALJ was, of course, not obligated to make. In her reply brief, Plaintiff purports to clarify her
argument that the ALJ breached her duty to develop the record: “Plaintiff’s opening brief[] argued
only that if there was some ambiguity with respect to the timing of Dr. Kneeland’s opinions, then it
was the duty of the ALJ to further develop the record by re-contacting Dr. Kneeland to clarify his
opinion.” (ECF No. 21 at 7.) That the ALJ rejected Plaintiff’s argument about the import of Dr.
Kneeland’s opinion does not render the opinion ambiguous. Plaintiff must present evidence showing
14

her disability during the time for which she was insured. She introduced the treating source opinions
that the ALJ, as noted above, validly rejected. The ALJ did not breach her duty to develop the
record by failing to ask Kneeland to supplement or clarify those opinions.

IV. CONCLUSION
For all of these reasons, the Commissioner’s decision is affirmed. The Clerk is ordered to
enter judgment accordingly.
Dated this 24th day of March, 2015.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

15