Hermes v. Carolyn Colvin

Filing 19

DECISION AND ORDER signed by Chief Judge William C Griesbach on 12/29/2017 Affirming the decision of the Commissioner. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LILLIAN HERMES,
Plaintiff,
v.

Case No. 16-C-1281

NANCY A BERRYHILL,
Defendant.

DECISION AND ORDER

Plaintiff Lillian Hermes filed this action challenging the decision of the Acting Commissioner
of Social Security denying her applications for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act. She contends that the decision is not
supported by substantial evidence. In particular, she asserts that the Administrative Law Judge
(ALJ) failed to fully develop the record because she did not properly consider Hermes’ impairments
in combination with each other and she substituted her own opinions for those of medical
professionals who examined Hermes. For the reasons set forth below, the decision of the
Commissioner will be affirmed.
BACKGROUND
Hermes filed applications for disability, disability insurance benefits, and supplemental
security income on March 20, 2013, alleging that she has been disabled since July 1, 2010, as a result
of bipolar disorder, insomnia, fibromyalgia, anxiety, depression, and a learning disability. R. 149,
164. At the time of her applications, Hermes was age 32 and lived at a homeless shelter in
Manitowoc, Wisconsin. R. 149. During the four years preceding 2010, she worked primarily as a

seasonal housekeeper in Door County, Wisconsin, for approximately five months at a time during
the spring, summer, and early fall. R. 84–86, 1251. She also supplemented the seasonal cleaning
work with seasonal kitchen work, including as a cook and washing dishes. R. 85, 1251. Although
she walked out on some of these jobs—as she has with other jobs, over the years—she was also
hired back each season because the employers appreciated the quality of her work. R. 57–58, 90.
She stopped working the seasonal jobs in Door County only because it was too expensive for her
to commute or live up there. R. 88.
Since filing her applications in 2010, Hermes has worked irregularly for short periods of time.
For a few weeks in the late spring and early summer of 2010, she worked as a house cleaner in Door
County, but she stopped working that job because she was experiencing pain from the bending the
work required and, in any event, she could no longer travel to it due to car troubles. R. 57. For a
short time in 2012 Hermes worked at The Linen Press in Sturgeon Bay, where she ran cleaned cloth
napkins through a press machine, but she walked out on that job “because of blowing up with [her]
supervisor and . . . manager” after feeling disrespected by them. R. 57–58. In April 2015, she also
worked for several hours in the City of Kewaunee water plant as part of a training placement through
the Division of Vocational Rehabilitation (DVR) within the Wisconsin Department of Workforce
Development. R. 57–58, 1254–63.
Hermes’ benefits applications were denied both initially in September 2013 and on
reconsideration in February 2014. R. 163, 178, 200, 218. She requested a hearing before an
Administrative Law Judge (ALJ), and ALJ Roxanne J. Kelsey held a hearing on November 5, 2015.
R. 52, 235–36. At the hearing, Hermes, her boyfriend Eric Fonseca, and Vocational Expert Timothy
Tansey all testified. R. 53.
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In a comprehensive twenty-seven page decision dated April 21, 2016, the ALJ determined
that Hermes is not disabled. R. 44–45. The ALJ’s decision followed the five-step sequential process
for determining disability prescribed by the Social Security Administration (SSA). R. 20–21. At
step one, the ALJ concluded that Hermes met the insured status requirements through March 31,
2014, and that she has not engaged in substantial gainful activity since July 1, 2010, the onset date
of her alleged disability. R. 21. At step two, the ALJ concluded that Hermes has five severe
impairments: fibromyalgia, depression, anxiety, substance addiction, and a personality disorder.
R. 22.
At step three, the ALJ concluded that Hermes did not have an impairment or combination
of impairments that met or medically equaled the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. R. 22. Specifically, the ALJ considered listings 12.04 (affective disorders),
12.06 (anxiety-related disorders), 12.08 (personality disorders), and 12.09 (substance addiction
disorders) and determined that Hermes did not have a sufficient combination of marked impairments
and repeated episodes of decompensation to satisfy the “paragraph B” criteria for any of those
listings. R. 22-23. Nor did the evidence support the existence of any listing’s “paragraph C” criteria.
R. 23–24. The ALJ next assessed Hermes’ residual functional capacity and found that she can
perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). R. 24. Regarding this
capacity, the ALJ found that Hermes could engage in “unlimited climbing of ladders, ropes, or
scaffolds and frequent climbing of ramps and stairs” and that she “may frequently stoop, kneel,
crouch, and crawl.” R. 24. Although moderate limitations in her pace would preclude her from
performing work at a production or assembly-line pace, the ALJ found she could handle work that
allows a more flexible pace. R. 24. Finally, the ALJ found that Hermes “would be absent or tardy
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or need to leave early about once every other month because of symptoms” and that she “may have
occasional, brief, and superficial contact with supervisors, coworkers, and the general public because
of moderate difficulties in social functioning.” R. 24.
In support of this residual functional capacity conclusion, the ALJ engaged in a detailed,
nineteen-page discussion of the record. R. 24–43. After summarizing hearing testimony by Hermes
and her boyfriend, the ALJ methodically outlined Hermes’ available medical records, some of which
date to 2008, and explained that this “review of the longitudinal record establishes a history of
mental health treatment and polysubstance dependence.” R. 27. Rather than reproduce this
comprehensive review of Hermes’ medical records—which the ALJ helpfully supported with
frequent and precise citations to particular pages within the record exhibits—the ALJ’s summary of
the record encapsulates her findings:
The record clearly documents a history of mental health treatment with symptoms of
depression and anxiety as well as elements of a personality disorder. However, these
records also show that the claimant tends to experience exacerbated symptoms when
she is abusing substances, including abuse of prescription medication. Her
involvement in volatile personal relationships only serves to compound the problem.
Notwithstanding, the record documents this history going back to at least 2008, yet,
the claimant has been fairly consistent with regard to performing seasonal
housekeeping work despite her substance abuse and relationship issues. The claimant
has admitted that she has walked off several jobs due to conflict but also testified that
her employers have rehired her when the season begins because she was a good
worker who was very detail oriented and willing to work hard. . . .
Mental status examinations have typically shown a logical thought process
and intact memory but show agitation when the claimant is experiencing problems
related to obtaining medication or does not feel that treating sources are in agreement
with her diagnoses and resulting limitations.
R. 39–40. Hermes takes issue with the ALJ’s treatment of particular documents and opinions within
her medical records, and those sources will be discussed in greater detail as in the analysis below.

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Based on the residual functional capacity determination, the ALJ found that Hermes is
capable of performing her past relevant work as a housekeeper. R. 43. This conclusion relied on
the vocational expert’s characterization of Hermes’ past housekeeper work as unskilled, light in
exertional demand, and performed at the medium level. R. 43. In the alternative, the ALJ also found
that Hermes is capable of performing other jobs that exist in the national economy, citing the
positions of handpacker, cafeteria attendant, and mail clerk, all identified by the vocational expert
at the hearing. R. 43–44.
After finding that Hermes could perform past relevant work or, in the alternative, that she
could perform other work that exists in significant numbers in the national economy, the ALJ found
that Hermes had not been under a disability since her alleged onset date on July 1, 2010. R. 44–45.
Hermes requested that the Appeals Council review the ALJ’s decision, but the Appeals Council
declined to do so. R. 1, 14. Hermes thereafter sought review in this court.
LEGAL STANDARD
The statute authorizing judicial review of decisions of the Commissioner of Social Security
states that the findings of the Commissioner “as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011).
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, 404 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, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the
evidence and her conclusion. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
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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.
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)).
ANALYSIS
Hermes asserts that the ALJ erred by concluding that, despite her severe impairments of
fibromyalgia, depression, anxiety, substance addiction, and a learning disability, she possesses the
residual functional capacity to perform past relevant work and therefore is not disabled. Arguing
that the ALJ’s decision is not supported by substantial evidence, Hermes contends that the ALJ did
not adequately develop the record because she failed to consider Hermes’ impairments in
combination with each other and she substituted her own opinions for those of examining medical
experts.
I. Hermes’ Combination of Impairments
Although a heading in Hermes’s opening brief asserts that the ALJ failed to consider Hermes’
impairments in combination with one another, Hermes makes only cursory reference to this
contention throughout the remainder of her argument. Under 42 U.S.C. § 423(d)(2)(B),
In determining whether an individual’s physical or mental impairment or impairments
are of a sufficient medical severity that such impairment or impairments could be the
basis of eligibility [for disability insurance benefits], the Commissioner of Social
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Security shall consider the combined effect of all of the individual’s impairments
without regard to whether any such impairment, if considered separately, would be
of such severity. If the Commissioner of Social Security does find a medically severe
combination of impairments, the combined impact of the impairments shall be
considered throughout the disability determination process.
(Emphasis added.) There is no dispute that “[w]hen an applicant has several medical problems, the
ALJ must consider her condition as a whole.” Sienkiewicz v. Barnhart, 409 F.3d 798, 802 (7th Cir.
2005) (per curiam) (citing Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004)).
To the extent she develops this combination argument, Hermes asserts that her “combination
of impairments would limit her functioning in a workplace because it is the episodic nature of her
disorder that would maker her continuing productive functioning extremely difficult for her.” ECF
No. 10 at 9. As evidence of her “unstable behavior,” she cites to the DVR progress notes for her
April 21, 2015 shift at the City of Kewaunee Water Plant. Id. Those notes recount a discussion
between Hermes and her case manager in which Hermes described at length problems throughout
her employment history, including her tendency to walk out on jobs after becoming angry with
coworkers and an incident in which she lost a job after a coworker “snitched” on her for “doing
weed on break in the bathroom.” R. 1260. Yet the ALJ’s opinion does account for the episodic
nature of Hermes’ disorder, noting that her residual functional capacity “has been limited to work
allowing a flexible pace with social limitations, and an ability to be absent, tardy, or a need to leave
work early once very other month due to symptoms.” R. 40. The ALJ’s opinion likewise accounts
for Hermes’ fibromyalgia by noting that her residual functional capacity is also “limited to a reduced
range of light work . . . consistent with her past work as a housekeeper/cleaner.” R. 41.
Moreover, the DVR records in their entirety undermine Hermes’ arguments because they
show that her combination of impairments does not preclude her from functioning productively in
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an employment setting. During her time at the Kewaunee water plant in the spring of 2015, she
consistently arrived on time and dressed appropriately for her position. R. 1258–62. On April 9,
2015, she responded well to constructive criticism from her case manager, who reminded her to pay
close attention to detail after observing her leaving visible dust and debris on desks and the floor
while cleaning. R. 1262. After receiving that feedback, Hermes showed initiative on April 14, 2015,
by beginning to work before her case manager arrived and cleaning extra areas not normally a part
of her end-of-shift cleaning routine. R. 1261–62. On April 24, 2015, Hermes mentioned to her case
manager that she felt a great deal of pain after working on April 21, but she also declined any help
moving boxes as part of an assignment taking inventory of water meters. R. 1258–60. Her case
manager’s notes show that she independently performed basic data entry tasks on a regular basis
after receiving only minimal instruction. R. 1258–60. Indeed, although the DVR records contain
the April 21 comments in which Hermes recounted her past work struggles for her case manager,
there is no indication that the underlying conversation itself reflected a “blow up” or situation where
Hermes was likely to “walk out” on the water plant or her case manager. Consequently, these DVR
records taken as a whole indicate that there is substantial evidence to support the ALJ’s
determination that Hermes’ combination of impairments does not prevent her from functioning in
an employment setting, subject to the identified limitations.
II. Medical Expert Opinion
Hermes also argues that the ALJ’s opinion is not supported by substantial evidence because
she substituted her own opinions for the opinions of qualified medical professionals. An ALJ’s
“decision must be based on testimony and medical evidence in the record, and the [ALJ] ‘cannot
make his own independent medical determination about the claimant.’” Scivally v. Sullivan, 966
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F.2d 1070, 1076 (7th Cir. 1992) (quoting Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir. 1985)).
For example, the Seventh Circuit has noted that, in the absence of expert medical evidence, it was
“improper for the ALJ to make his own determination regarding the prognosis of recovery should
[the claimant] stop smoking” based on common knowledge about the adverse health effects of
chronic smoking. Rousey, 771 F.2d at 1071. Here, Hermes argues that the ALJ improperly
discounted two opinions in the record: that of Dr. Kurt Weber, an independent psychologist who
conducted a consultative examination, and that of the DVR, which conducted an assessment of
Hermes before she began her vocational rehabilitation program. A review of the ALJ’s decision,
however, demonstrates that she considered both of these opinions and explained what weight she
gave them and why. The fact that the ALJ did not adopt these opinions does not mean that she did
not consider them. In light of all the evidence, the ALJ’s decision to assign them less weight was
not unreasonable. It certainly does not mean she merely imposed her own medical judgment.
Dr. Weber evaluated Hermes on August 30, 2013. R. 1120. He opined that she experiences
moderate limitations in her ability to understand, remember, and carry out simple instructions, as well
as moderate to marked limitations in her ability to respond appropriately to supervisors and coworkers, withstand routine work stresses, adapt to changes in the work environment, and maintain
concentration, attention, and work pace. R. 1124. Dr. Weber’s report notes that these “opinions
are offered on the sole basis of the examinations and psychological assessments administered at this
time.” R. 1124. The notes throughout Dr. Weber’s report illustrate the extent to which he relies
on Hermes’ subjective reports. For example, his brief note regarding her work history recounts
Hermes’ statement that she left her last position “as a result of ‘not being able to make it work.’”
R. 1120. Elsewhere Dr. Weber notes regarding Hermes’ work performance that she “reports having
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been fired from work positions as a result of her ‘attitude.’” R. 1122. Other observations
throughout the report comment on Hermes’ demeanor and lack of cooperation on the day of the
evaluation, as well as her responses to two intelligence and achievement tests administered as part
of the same evaluation.
Although the ALJ’s opinion expressly “accords less weight” to the opinion of Dr. Weber than
to other opinions in the record, the ALJ also accepts Dr. Weber’s opinion that Hermes experiences
moderate limitations in her ability to withstand work stresses and maintain concentration,
persistence, and pace. R. 41–42. However, the ALJ’s opinion departs from Dr. Weber because the
ALJ “does not find any more than moderate limitations in social functioning.” R. 42. The ALJ
assigned little weight to Dr. Weber’s opinion because it was “based primarily upon [Hermes’]
performance as well as her subjective reports during [the] examination.” R. 42. The ALJ also
compares Dr. Weber’s opinion with the DVR records from Hermes time at the Kewaunee water
plant, which show that she has “recently demonstrated an ability to perform work activity and accept
direction and criticism without evidence of conflict.” R. 42. Consequently, the ALJ’s decision rejects
a portion of Dr. Weber’s social functioning opinion that is “inconsistent with the other substantial
evidence” in the record. 20 C.F.R. § 404.1527(c)(2). Rejection of a medical provider’s opinion
based on contrary record evidence does not amount to the ALJ improperly exercising independent
medical judgment.
The ALJ likewise did not improperly substitute her own opinion for that of the DVR by
assigning no weight to an October 2014 functional assessment, which evaluates Hermes as having
a “serious limitation” in three functional categories. R. 1277–78. First, the functional assessment
rates Hermes as having a serious limitation with regard to communication skills, citing her report that
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she received special education services for behavioral reasons during school. R. 1277. Second, it
rates her as having a serious limitation with regard to interpersonal skills because “[h]er acting out
behaviors have the potential to cause difficulty with acceptance by supervision [sic] and coworkers
and customers in any work environment.” R. 1278. Finally, it rates her as having a serious limitation
with regard to work tolerance given her “physical . . . and emotional disabilities” and her “limited
work experience,” which mean that she “will need a work environment that meets her needs.” Id.
This last functional category assessment also notes that “[s]tress exacerbates her symptoms” and that
“[s]he has indicated [that] when stressed she has difficulty with concentration and memory.” Id.
The ALJ assigned no weight to these cursory assessments, however, not only because they
“seem to be based upon [Hermes’] subjective reports of limitations” but also because DVR “has
different rules than the [SSA] with regard to functional limitations and their effect on an individual’s
ability to perform work activity.” R. 42. For example, the other functional categories in the short
assessment—mobility, self-care, self-direction, work skills—rate Hermes as having “no serious
limitation.” R. 1277–78. Nothing in the record explains how to translate the DVR assessment’s
facially binary choice between “serious” and “not serious” impairments into the more subtle fivepoint scale of none, mild, moderate, marked, or extreme that the SSA uses to evaluate impairment
severity. Indeed, had the ALJ uncritically relied on this functional assessment’s characterization of
Hermes’ impairments, she would have risked issuing a decision that was not supported by substantial
evidence.
Furthermore, rather than impose her own opinion regarding Hermes’ medical evidence, the
ALJ’s decision relies on the opinions of state agency physicians. Specifically, the ALJ’s opinion
accords great weight to the opinions of Ronald Shaw, M.D., and Esther Lefevre, Ph.D., who
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assessed Hermes’ physical and mental residual functional capacities, respectively, at the
reconsideration level, as well as to the opinion of Junko McWilliams, Ph.D., who assessed Hermes’
mental residual functional capacity at the initial level. R. 41. The ALJ also accords less weight to
the opinion of Lewis Cylus, M.D., who assessed Hermes physical residual functional capacity at the
medium exertional level. R. 41. Notably, the state agency physicians’ decisions on reconsideration
expressly distinguish Dr. Weber’s “overestimate of the severity of [Hermes’] restrictions/limitations
. . . based only on a snapshot of [her] functioning” that “relies heavily on the subjective report of
symptoms and limitations provided by” Hermes. R. 198, 216. Elsewhere the decisions note that
Hermes “reported symptoms well in excess of those reported to her primary providers at this exam”
with Dr. Weber. R. 194, 212. Thus, far from disregarding opinion evidence in the record, the ALJ’s
decision actually embraces medical opinion evidence that directly undermines the report from Dr.
Weber on which Hermes would prefer to rely.
The Seventh Circuit’s decision in Carradine v. Barnhart does not, as Hermes argues, require
reversal in this case on the grounds that the ALJ improperly disregard Hermes’ subjective symptoms
of pain. 360 F.3d 751 (7th Cir. 2004). In Carradine, an ALJ denied benefits after determining that
a claimant’s severe physical impairments “were not a plausible cause of disabling pain,” but the
Seventh Circuit reversed on the grounds that the ALJ “failed to take seriously the possibility that the
pain was indeed as severe as Carradine said but that its origin was psychological rather than
physical.” Id. at 755. The Seventh Circuit explained that “once the claimant produces medical
evidence of an underlying impairment, the Commissioner may not discredit the claimant’s testimony
as to subjective symptoms merely because they are unsupported by objective evidence.” Id. at 753
(quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). Unlike in Carradine, however, the
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ALJ here arrived at her decision not because she found Hermes’ complaints patently incredible given
the diagnosis, but because she assigned little weight to the opinion furnished by a provider who relied
heavily on Hermes’ self-reported symptoms.

An ALJ may properly give less weight to a

psychologist’s opinion where it is based only on the claimant’s self-reported symptoms, particularly
where the psychologist gives an opinion after meeting the claimant only once and offers little
analysis. See Ziegler v. Astrue, 336 F. App’x 563, 569–70 (7th Cir. 2009) (citing Ketelboeter v.
Astrue, 550 F.3d 620, 625 (7th Cir. 2008)). Accordingly, Carradine does not control.
Finally, aside from her arguments on the merits of the ALJ’s decision, Hermes also cites the
Seventh Circuit’s decision in Bjornson v. Astrue to criticize the ALJ’s alleged use of“boilerplate” in
her opinion. 671 F.3d 640 (7th Cir. 2012). In Bjornson, the Seventh Circuit expressed frustration
with the use of “boilerplate language [that] fails to inform [the court] in a meaningful, reviewable,
way of the specific evidence that the ALJ considered in determining that [the] claimant’s complaints
were not credible.” Id. at 645 (quoting Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004)).
Hermes suggests that the following statement by the ALJ is conclusory boilerplate, and she implies
that it undermines the reliability of the ALJ’s decision:
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements and those of her boyfriend
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the evidence for the reasons explained in the decision.
R. 27. If the ALJ’s opinion turned on that sentence alone, reversal might be appropriate. But what
Hermes fails to acknowledge is that this sentence introduces a discussion of Hermes’ medical record
that covers thirteen pages—essentially half—of the ALJ’s opinion. R. 28–40. After that, the ALJ
spends an additional two pages methodically discussing the weight assigned to several medical
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opinions that appear in the record. R. 41–43. This thorough discussion of the evidence provided
the court with more than meaningful reasoning to consider when conducting its review, and the use
of a summary sentence to introduce that detailed discussion in no way undermines the conclusions
that the analysis ultimately supports.
CONCLUSION
For the reasons given above, the decision of the Commissioner is AFFIRMED. The Clerk
is directed to enter judgment in favor of the Commissioner.
Dated this 29th day of December, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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