Wesenick v. Colvin

Filing 19

DECISION AND ORDER Affirming the Decision of the Commissioner signed by Chief Judge William C Griesbach on 9/18/2017. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DAWN WESENICK,
Plaintiff,
v.

Case No. 16-C-990

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

DECISION AND ORDER AFFIRMING COMMISSIONER’S DECISION

This is an action for review of the final decision of the Commissioner of Social Security
denying Plaintiff Dawn Wesenick’s application for disability and disability insurance benefits under
Title II of the Social Security Act. 42 U.S.C. §§ 401 et seq. For the reasons stated herein, the
Commissioner’s decision will be affirmed.
BACKGROUND
Wesenick, currently age 48, resides with her husband and thirteen-year-old daughter in
Wausau, Wisconsin. R. 94. Prior to 2006, Wesenick worked at a scissor company as a general
laborer for fifteen years. R. 102. Wesenick initially applied for disability and disability insurance
benefits on November 6, 2006, alleging disability beginning April 14, 2006. R. 143. She claimed
she was disabled due to multiple sclerosis, osteomyelitis of the lumbar spine resolved, arthritis of the
lumbar spine, obesity, and depressive and anxiety disorders. R. 146. Her application was denied
initially and upon reconsideration. After these denials, Wesenick filed a request for an administrative
hearing. Administrative Law Judge (ALJ) Wendy Weber held a hearing at which Wesenick, who

was represented by counsel, an impartial medical expert, and a vocational expert (VE) testified. R.
143. On January 21, 2010, ALJ Weber concluded Wesenick had the ability to perform light work
after her closed period of disability from April 14, 2006 to April 15, 2007. R. 146–51.
Wesenick submitted a second application for disability and disability insurance benefits on
November 6, 2012. R. 214. The Social Security Administration (SSA) denied Wesenick’s second
application on March 15, 2013. After her application and request for reconsideration were denied,
she requested an administrative hearing. ALJ Ben Willner held a hearing on October 24, 2014. Both
Wesenick, who was represented by counsel, and a VE testified at the hearing. R. 79–113.
In a decision dated January 20, 2015, ALJ Willner determined Wesenick was not disabled.
R. 19–30. The ALJ concluded Wesenick met the insured status requirements and had not engaged
in substantial gainful activity since October 17, 2011, her amended alleged onset date. R. 22. The
ALJ found Wesenick had three severe impairments: degenerative disc disease, multiple sclerosis, and
migraine headaches. At step three, the ALJ determined Wesenick’s impairments did not meet or
medically equal any listed impairments under 20 C.F.R. § 404, Subpart P, Appendix 1. R. 24. The
ALJ concluded Wesenick had the following residual functional capacity (RFC):
claimant had the residual functional capacity to perform light work as defined in 20
C.F.R. § 404.1567(b) except: she could occasionally climb ramps and stairs; never
climb ladders, ropes or scaffolds; frequently balance, stoop kneel, crouch, and crawl;
and should avoid all exposure to hazards.
Id. With these limitations, the ALJ found that Wesenick was unable to perform any past relevant
work. R. 28. Nevertheless, the ALJ concluded Wesenick was not disabled within the meaning of
the Social Security Act because there were jobs that existed in significant numbers in the national
economy that she could perform. R. 28–29. The ALJ’s decision became the final decision of the

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Commissioner when the Appeals Council denied Wesenick’s request for review on May 27, 2016.
R. 1. Thereafter, Wesenick commenced this action for judicial review.
LEGAL STANDARD
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
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. 2010) (citing SEC v. Chenery Corp., 318 U.S. 80, 93–95
(1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).
ANALYSIS
Wesenick’s sole argument in this case is that the ALJ erred by failing to include limitations
attributed to her migraines in the RFC. An RFC is an administrative assessment describing the extent
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to which an individual’s impairments may cause physical or mental limitations or restrictions that
could affect her ability to work. SSR 96–8p, 1996 WL 374184, at *2. The RFC represents “the
maximum a person can do—despite his limitations—on a ‘regular and continuing basis,’ which
means roughly eight hours a day for five days a week.” Pepper v. Colvin, 712 F.3d 351, 362 (7th
Cir. 2013) (quoting SSR 69–8p). In forming the RFC, an ALJ must review all of the relevant
evidence in the record, including any information about the claimant’s symptoms and any opinions
from medical sources about what she can still do despite her impairments. SSR 96–8p at *2.
Wesenick asserts that although the ALJ found her migraines to be a severe impairment, he
erred by failing to include limitations regarding her migraines in the RFC. She contends that the ALJ
failed to provide a narrative or articulate a sufficient rationale for rejecting any associated limitations.
Pl.’s Br. at 6, ECF No. 11. Wesenick also argues the ALJ did not include any limitations created
by her migraines, such as missing days from work, working with computer screens, or working with
fluorescent lighting that may be caused by her migraines. Id. at 10. Because of the ALJ’s failure to
include migraine-related limitations in her RFC, Plaintiff argues the Commissioner’s decision should
be reversed and the case remanded.
The problem with Wesenick’s argument is that she never mentioned any limitations caused
by her migraines. In fact, she never mentioned migraines in her testimony at the hearing until her
attorney asked about it after the ALJ had completed his questions. R. 99. Her primary complaint
was back pain and problems with her left arm, hand and her MS. R. 85–98. When her attorney
asked about her migraines, Wesenick recounted that sometime last month, which would have been
September 2014, “I spent twice going in and getting injections and fluid, because I had such a bad
migraine that I was dehydrated and that my head hurt with the migraine for three days.” R. 99. She
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testified in response to counsel’s further question about the frequency of her migraines over the first
ten months of the year that she had migraines “two or three days every month that I’m - - you know,
have to lie flat, try not to do anything with the leg.” Id. She offered no testimony about how her
migraines allegedly impacted her prior to her date last insured of June 30, 2012.
The Adult Function Report Wesenick completed on January 23, 2013, was likewise almost
silent as to any impact her migraines had on her ability to function. The only mention of migraines
was in response to the question “Do the illnesses, injuries, or conditions affect your sleep?”
Wesenick answered: “When my back is bad it keeps me up. I also get migraines when the M.S. is
bad also.” R. 259. To the question “How do your illnesses, injuries, or conditions limit your ability
to work?”, she responded: My MS sometimes limits me in doing many things. Do [sic] to my
balance My back is very painful. I can’t lift + bend + stretch like before. I can only stand for so long
+ my back starts to hurt.” R. 258. The ALJ found Wesenick’s complaints concerning her back pain
less than fully credible, a finding Wesenick does not challenge.
The regulations require that the ALJ “consider all allegations of physical and mental
limitations or restrictions and make every reasonable effort to ensure that the file contains sufficient
evidence to assess RFC.” SSR 96–8p at *5 (emphasis added). Stated differently, if a plaintiff does
not allege that her impairment causes a limitation or restriction, the ALJ cannot find that there is a
limitation or restriction:
When there is no allegation of a physical or mental limitation or restriction of a
specific functional capacity, and no information in the case record that there is such
a limitation or restriction, the adjudicator must consider the individual to have no
limitation or restriction with respect to that functional capacity.
SSR 96–8p at *1. In short, the regulations do not require an ALJ to conjure limitations for a
claimant merely because she has a severe impairment.

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Wesenick primarily relies on the medical evidence in the record to demonstrate that her
migraines were severe and required accommodations in the RFC. But the records do not contain
any reference to a limitation created by her migraines. The medical record reveals that Wesenick had
complained of recurrent migraine headaches since 2002. R. 603. In 2005, she said she had
headaches about once a month, and she described them as throbbing or pounding associated with
an aura of blurred vision, nausea, photophobia, and phonophobia. R. 607. At that time, she took
amitriptyline and topiramate to relieve them. Id. In 2006, Wesenick complained of getting one
headache every four to five months. R. 605. Her physician determined her headaches where a side
effect of taking Imitrex. When she added Topamax to her medication regimen, the frequency of her
headaches had improved. Id. In October 2009, Wesenick noted at an appointment regarding her
complaints of back pain that her headaches have recently been under control. R. 490.
On March 12, 2010, Wesenick called the Weston Center complaining about daily headaches.
R. 489. She reported that the headaches wrap around her head. Her physician advised that she
either go to the Walk-In Clinic or emergency department for injection treatment. Id. The following
day, Wesenick presented to the Aspirus Walk-In Clinic to receive an injection of Compazine and
Benadryl to break the headache’s cycle. Id. Later that week, Wesenick presented for a follow-up
appointment with her physician to determine whether her headaches were migraines. R. 487. She
claimed she generally got two headaches a month. Id. Her physician prescribed four tablets of
Fioricet and discussed the risks of drug rebound with higher doses of Fioricet. R. 487–88. He
advised that she only take this medication when her headaches are their most severe. R. 487.
On May 11, 2010, Wesenick called the Wausau Center claiming her headaches had increased.
R. 485. She indicated her headaches last for two to three days and that Fioricet did not provide any
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relief. Although she reported slight nausea, she did not have vomiting or blurred or double vision.
Id. The same day, Wesenick presented for injection treatment at the Infusion Center. Id. She rated
her headache as a 2 or 3 out of 10. R. 486. After she received IV treatment, she was instructed to
call her doctor with any further questions or concerns. Id. One week later, Wesenick followed-up
with her physician on a number of issues, such as her depression, MS, coagulopathy, dyslipidemia,
headaches, gastroesophageal reflux disease (GERD), alopecia, and varicose veins. R. 382–83. As
to her headaches, she reported they occur on the left side and cause her face to feel swollen. R. 383.
She claimed she gets headaches every other month and takes nortriptyline every day to relieve them.
Id. Her physician instructed Wesenick to participate in the Diamond Pain Center Diet to reduce her
headaches and also increased her dosage of nortriptyline. R. 385. In September 2010, Wesenick
complained that she continued to struggle with headaches and lower back pain due to muscle
tension. R. 763.
On March 23, 2011, Wesenick claimed she gets one migraine each month and takes Fioricet
to relieve them. R. 478. Her physician instructed her that taking Fioricet more than two or three
times a month could result in drug rebound headaches. Id. On August 2, 2011, Wesenick presented
for an annual physical with a number of issues, including MS, chronic low back pain, deep vein
thrombosis, chronic pain, GERD, nasal obstruction, and migraine headaches. R. 367. She indicated
she talked with a neurologist about her headaches and that he is “very sure” that they are migraines.
Id. Wesenick stated her headaches occur on a monthly basis, which seem to occur during ovulation.
R. 367, 369. She noted they were “getting a little bit worse.” R. 367–68. Wesenick reported she
occasionally took Fiorinal to treat them, and her physician suggested taking prophylactic medication
instead. R. 368.
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On June 22, 2012, Wesenick called the Weston Center complaining about increased
headaches. R. 466. Dr. Biswas advised Wesenick she could try OTC therapy for the weekend or
report to a walk-in clinic if she felt they were severe enough. R. 466. On June 27, 2012, Wesenick
reported to her doctor for back spasms. Her physician noted she had a history of migraines and
instructed her to continue taking at most four butalbital tablets each month for her “breakthrough
headaches.” R. 464–65.
The following year, on June 11, 2013, Wesenick presented to the emergency department with
her mom to be treated for anxiety. R. 1049. Two days later, Wesenick presented to the emergency
department complaining about a constant headache lasting two to three days. R. 1039. The
physician noted she was very vague about the cause of her migraines. She only stated, “they just
hit.” Id. Wesenick reported she did not take Fioricet for this migraine because it had not helped her
in the past. R. 1040. The physician ordered a CT scan of her head and an MRI of her brain, though
she refused the MRI. R. 1044. The CT scan was negative for bleeding or midline shift. R. 1046.
The physician observed that when Wesenick was treated for anxiety two days prior, she did not
mention a headache during that visit. R. 1044. The doctor noted her headache appeared to be
tension-related and prescribed Fioricet as needed. He instructed that she follow-up with her primary
care physician for reevaluation. R. 1045.
On July 26, 2014, Wesenick presented to Aspirus with a chief complaint of headaches. R.
1011. She noted she had the headache for the last few days in the left occipital region of her head,
which was very unusual for her. She reported an increased tingling sensation in her left lower
extremity, which she attributed to her MS. Id. A CT scan of her head did not reveal evidence of a
mass or abnormal fluid collection. R. 1017. Wesenick was given one gram of IV Solu-Medrol and
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placed on Decadron. R. 1011. Her doctor recommended she follow-up with her neurologist, and
she was discharged in an otherwise stable medical condition. R. 1015.
To summarize, the medical records indicate that at various times over the several years
preceding and following her date last insured, Wesenick complained of one to two migraines a month
that could last up to three days and that she takes Fioricet or other medications to relieve them.
They contain no reference to Wesenick complaining of a limitation caused by her migraines or one
that was acknowledged by her treating physicians. It should also be noted that she appears to have
had an application for DIB pending throughout most of this time.
The ALJ relied upon Wesenick’s medical history, reports of daily activities, medical source
statements, symptoms, and lay evidence to assess her RFC. He thoroughly summarized the medical
record with respect to all of Wesenick’s impairments. As to her migraines specifically, he mentioned
that she reported to her neurologist that she had one to two migraine headaches monthly, for which
she takes Fioricet, but also uses Vicodin sometimes for chronic pain. R. 26. The ALJ concluded
Wesenick’s testimony and allegations were inconsistent with the medical evidence of record and
found her to be only partially credible. R. 25. He also determined the statements made by
Wesenick’s husband, that she could cook, clean, shop, drive, and lift up to twenty pounds, sit in a
lawn chair for an hour, and walk up to half a mile, were generally consistent with the demands of
light work. Id.
Finally, the ALJ afforded the state agency physicians “significant weight” and adopted the
limitations assigned by the physicians. R. 27. He noted that in adopting their opinions, he gave
Wesenick the “benefit of the doubt” because her amended onset date shows she required less
limitations than the physicians opined. R. 27–28. Therefore, he found Wesenick was capable of
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performing light work except that she could occasionally climb ramps and stairs; never climb ladders,
ropes or scaffolds; frequently balance, stoop, kneel, crouch, and crawl; and should avoid all exposure
to hazards. R. 24. Substantial evidence supports the ALJ’s RFC finding, and he adequately
explained how he arrived at that conclusion. Without any allegations from Wesenick or any medical
source that her migraines created any limitations or restrictions upon her functional capacity, the ALJ
did not err in failing to create limitations of his own.
CONCLUSION
For the above reasons, the decision of the Commissioner is affirmed. The Clerk will enter
judgment accordingly.
Dated this 18th day of September, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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