Powell v. Colvin

Filing 28

ORDER AFFIRMING the Decision of the Commissioner, signed by Chief Judge William C Griesbach on 06/26/2017. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DEREK JOHN POWELL,
Plaintiff,
v.

Case No. 16-C-1545

NANCY BERRYHILL,
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 Derek Powell’s application for disability insurance benefits and supplemental
security income under Titles II and XVI of the Social Security Act. Powell, who appears pro se,
asserts that the ALJ erred in finding him not disabled. He claims the ALJ overlooked the severity
of his conditions and failed to use a “simple formula of work-injury-SSI.” Pl.’s Br., ECF No. 16.
For the reasons given below, the decision of the Commissioner will be affirmed.
BACKGROUND
On June 2, 2015, Derek Powell, age 34 at the time, completed an application for a period
of disability, disability insurance benefits, and supplemental security income alleging disability
beginning July 31, 2014. R. 250, 257. Powell identified the physical conditions that limited his
ability to work as back problems, sciatica problems, and knee problems. R. 343. Powell did not
identify any mental impairments affecting his ability to work in his initial application. At the time
of his application, Powell stood five-feet ten inches, and weighed 300 pounds. Id. He indicated

that he stopped working on July 31, 2014 because he was fired from his job because “someone was
upset with me at a place where I delivered and because of that they let me go.” Id.
Powell worked a number of different jobs prior to his alleged onset date, as well as some
jobs after the alleged onset date. He graduated from high school in 1999 and received his
commercial driver’s license in 2013. R. 344. Some of Powell’s jobs during the relevant period
include chainsaw operator, farmworker, dairy farmworker, produce packer, and tractor-trailer-truck
driver. R. 87. Powell also testified that he worked full time for his uncle until July 2015 and
continued to work part-time until November 2015. R. 55. The ALJ elected to give Powell the
benefit of the doubt and considered the work after the alleged onset date as an unsuccessful work
attempt. R. 27.
On July 11, 2016, Powell appeared before ALJ Thomas W. Springer. Powell testified that
he suffered from numerous disabling conditions. He testified that he experiences pain in his right
knee, right butt, right hip, and in his middle back. R. 75. He explained that doctors diagnosed him
with three fractures in his mid-back, a worn-out sciatic joint, mild degenerative disc disease, and
arthritis. Id. He also testified that he suffered from disabling mental issues, such as anxiety, posttraumatic stress disorder (“PTSD”), and depression from not being able to move. R. 80. Powell
testified it is hard for him to bend and that he can only lift five pounds. R. 77–78. When he climbs
stairs, Powell asserted he feels a crunching in his back and he feels popping up and down his legs.
R. 78. Powell also claimed he has problems doing the dishes because he cannot stand by the
counter, is able to mow the grass but has had to go to the emergency room after, and cannot stand
in one spot for more than ten minutes but is able to walk two miles in good shoes. R. 76, 79.
Powell testified that doctors have instructed him he is not supposed to return to work and that he
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is restricted to lifting 10 pounds with no bending. R. 81. He further asserted he received those
physical restrictions “every time” he visited a doctor, which he estimated to be 20 times within the
previous year. R. 81.
The only other witness to testify at the hearing was a vocational expert (VE). R. 85–95.
After having the VE summarize Powell’s work history, the ALJ asked the VE whether a
hypothetical person who can lift and carry 20 pounds occasionally and 10 pounds frequently; can
stand and walk about four hours collectively, and sit about six hours, respectively, in an eight hour
workday; is precluded from climbing ladders and scaffolding; can occasionally climb ramps and
stairs; stoop, crouch, kneel, and craw; should avoid more than occasional exposure to extreme heat
and humidity, as well as vibration; and would be off task at the assigned workstation up to ten
percent of the workday in addition to regular breaks, due to pain would be able to perform any of
Powell’s past work. R. 87–88. The VE answered a person would not be able to because the
exertional requirements of the past work exceed 20 pounds lifting. R. 88. The VE identified
several light and sedentary jobs the hypothetical person could perform, such as assembler, hand
packer, inspector. R. 89–91.
In a 12 page decision issued July 21, 2016, the ALJ determined that Powell was not disabled.
R. 24–35. The ALJ found at step two that Powell had the following severe impairments;
degenerative joint disease of the knees, degenerative joint disease of the lumbar and thoracic spine,
and obesity. Id. The ALJ also considered Powell’s assertion that he suffered from anxiety and
PTSD. Id. Although the ALJ observed that Powell appeared anxious at the hearing and strenuously
tried to introduce additional medical records predating the alleged onset date, he noted the only
treatment records that could possibly indicate a mental impairment were: a self-reported diagnosis
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of anxiety in 2011, a counselor’s assessment in connection with an AODA referral in December
2012, and a treatment note in June 2015 where Powell again alleged he suffered from anxiety.
R. 607, 611–12, 624. The ALJ concluded that “there is no diagnosis in the record from an
acceptable medical source to indicate that the claimant has been diagnosed and treated for anxiety”
and determined that Powell does not have any medically diagnosed mental impairments. R. 27.
At step three, the ALJ determined that Powell’s impairments did not meet or medically equal
any impairments under 20 C.F.R. § 404, Supt. P, App. 1. R. 27–28. The ALJ then concluded that
Powell had the residual functional capacity (“RFC”) to perform a range of light work except he can
lift and carry 20 pounds occasionally and 10 pounds frequently, he can stand and walk about 4 hours
collectively and sit about 6 hours respectively over an 8-hour work day. R. 28. He further
concluded that Powell is precluded from climbing ladders and scaffolding, he can occasionally
stoop, crouch, kneel, crawl, and climb ramps and stairs, and he should avoid more than occasional
exposure to extreme heat and humidity as well as vibration and would be off task at the assigned
work station up to 10% of the work day in addition to regular breaks due to pain. Id.
The ALJ largely based his RFC limitations on the conclusions of Dr. George Walcott, a state
agency medical consultant. R. 30–31, 116–126. Dr. Walcott reviewed Powell’s medical records
through January 26, 2016 and concluded Powell is able to lift up to 25 pounds occasionally and 10
pounds frequently and can sit for up to 6 hours and can stand/walk for up to 4 hours in an 8 hour
workday due to obesity and knee pain. R. 122. He further limited Powell to only occasional
climbing ramps/stairs/ladders/ropes/scaffolds, balancing, bending at the waist, kneeling, bending
at the knees, or crawling. R. 123. Dr. Walcott found only Powell only partially credible because
despite Powell’s asserted limitations, he also “plays basketball at times, he does house/yard work,
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cares for a child, shops 2–3x wk, and prepares simple meals daily.” R. 122. The ALJ also
considered the opinions of a second state agency medical consultant, Dr. Pat Chan. R. 31.
Although he found that Dr. Chan’s opinions were generally consistent with Powell’s activities of
daily living and the objective evidence of record, the ALJ only gave Dr. Chan’s opinions some
weight. Id. The ALJ determined that the record as a whole showed that Powell has more significant
limitations than Dr. Chan’s assessment. Id.
The ALJ considered Powell’s subjective complaints. He noted that in Powell’s Function
Report dated June 19, 2015, Powell claimed he cannot bend his knees and that it is hard for him to
go up and down stairs or get out of the car without trouble. R. 349. Powell further asserted that his
impairments limit his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs,
concentrate, understand, follow instructions, and get along with others because he is constantly in
pain unless he is sleeping. R. 354. Powell claimed that Dr. Bart Kneeland limited him to a 10
pound lifting restriction in 2008. R. 357. The ALJ also considered a letter from the Wisconsin
Works (W-2) program in which Krissy Neyrinck, the team leader, stated that Powell previously
worked within W-2 in 2013 and was re-enrolling in the program as of March 30, 2016. R. 425. Ms.
Neyrinck wrote that “Derek is reporting no income and significant barriers to employment.” Id.
The ALJ gave the statement no weight because it provided no specific functional limitations and
because it was based entirely on Powell’s subjective statements. R. 29.
The ALJ concluded that the objective medical evidence in Powell’s record “does not support
his significant subjective complaints and does not support more restrictive limitations than those
set forth in the above residual functional capacity.” R. 30. In July 2015, a lumbar spine MRI
showed no acute findings, no spinal stenosis at any level, and only mild facet hypertrophy at L4-5
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and mild facet hypertrophy at L5-S1. R. 659. A knee x-ray taken on the same day showed mild
degenerative joint disease but no fracture, dislocation, focal destructive bony lesion, or any evidence
of a joint effusion. R. 662. Dr. Kneeland, the doctor who allegedly placed the lifting restriction on
Powell in 2008, noted in January 2016 that the MRI he took six months prior looked benign and that
Powell’s pain is only off and on. R. 734. Dr. Kneeland also observed that Powell could bend over,
keep his legs straight, and nearly touch the floor. Id. Furthermore, a June 6, 2016 lumbar spine xray revealed no acute osseous abnormality or significant spondyloisthesis and his degenerative disc
disease, although progressing slightly when compared with prior radiographs, remained mild. R.
793.
The ALJ further noted that Powell’s treating physicians’ and providers’ findings do not
support Powell’s alleged significant physical symptoms. Instead, the ALJ concluded that treatment
records “indicate a pattern of attempting to obtain opioid medications that is consistent with drugseeking behaviors.” R. 30. For example, Powell treated with physician assistant Heidi Hammer
on June 17, 2015 for left knee pain and lower back pain. R. 624–26. Powell sought narcotic
mediation. Id. However, Powell exhibited a normal range of motion in all muscle groups, showed
no swelling or deformity, and possessed normal strength, reflexes, and gait. R. 625. Powell
returned on June 23, 2015 seeking pain medication and received a Vicodin prescription. R. 628.
The next month, on July 23, 2015, Powell sought treatment for lower back pain and admitted that
he ran out of his Vicodin early. R. 629–630. On August 7, 2015, Powell sought narcotic pain
medications form the emergency room despite the fact that his back pain only occurred “rarely.”
R. 645. The ALJ noted several other instances where Powell sought out narcotics despite arguably

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having more prescribed dosages before a refill, not showing the level of pain as described, or
refusing to comply with treatment instructions. R. 30–31.
The ALJ also noted “a number of incidents throughout the record of the claimant failing to
comply with his treating providers’ recommended course of treatment for his impairments.” R. 32.
In August 2015, Powell was discharged from physical therapy because he was non-compliant with
his care plan and failed to appear at appointments on four occasions. R. 631–33. Powell failed to
appear at chiropractic appointments in 2011 and in 2015. R. 667. He failed to lose weight or stop
smoking despite repeated advice from treating providers to do so. In light of these factors, the ALJ
found that “[t]hese incidents of failing to take full steps to treat himself appropriately reduce the
weight given to the claimant’s claims as to the nature and extent of his alleged symptoms and
furthermore strongly suggest that the claimant’s symptoms would not be so severe if he followed
the recommended course of treatment.” R. 32.
Following his extensive discussion of Powell’s treatment records, the ALJ concluded at step
four that Powell was unable to perform his past relevant work. R. 33. Finally at step five, the ALJ
concluded, considering Powell’s RFC, age, education, and work experience, there are jobs that exist
in significant numbers in the national economy that Powell can perform. R. 34–35.
Based on these findings, the ALJ concluded that Powell was not disabled within the meaning
of the Social Security Act during the period from April 30, 2015 through the date of his decision.
R. 35. Powell requested review by the Appeals Council. R. 19. The ALJ’s decision became the
final decision of the Commissioner when the Appeals Council denied Powell’s request for review
on September 30, 2016. R. 1–4. Powell then commenced this action for judicial review.

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ANALYSIS
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). 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 his 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.
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. Severity of Powell’s Condition
Powell argues that the ALJ overlooked the severity of his condition. He characterizes his
condition as essentially arising from two different “challenges”:

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1.

Hollow Back (spinal stenosis). Absolutely no bending or lifting of any kind
and standing on cement for any period of ill. Aggravations by doing the
smallest twists or movements[,] sitting can paralyze me for days weeks or
even months.

2.

DPD (dependent personality disorder). A result of my injury causing mental
pain made difficult by people. The suffering sometimes hospitalizing me.
I’ve put [sic] under some control by walking. It agitates me even when
seeing doctors or physicians.

Pl.’s Br. In support, Powell has submitted a large quantity of documents which include the
Wikipedia pages on dependent personality disorder and spinal stenosis, various unrelated financial
records, and medical documents that are duplicates from the administrative transcript in this case.
Powell apparently selectively submitted those portions of his treatment notes which he believes
demonstrates the severity of his condition. For example, Powell attaches one of the pages from Dr.
Mohammed-Iqbal Dodwad’s April 6, 2016 examination in which Dr. Dodwad gave him off of work
for two days and instructed no lifting. R. 761. He also includes progress notes from a licensed
professional counselor in 2012 in which Powell reported he has some “anxiety going on” and in
which the counselor noted as part of the mental status examination that Powell was “unable to
work.” R. 536–547.
The ALJ is required to evaluate every medical opinion received into the record, regardless
of its source. 20 C.F.R. § 404.1527(c). The factors that the ALJ should consider in evaluating
medical opinions include whether the source has examined the claimant, the length of treatment and
frequency of examination, nature and extent of the treatment relationship, the type of support
offered for the opinion, consistency of the opinion with the record as a whole, and area of
specialization. Id.

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Here, the evidence shows that the ALJ considered Powell’s medical record at length,
including the treatment notes which Powell asserts demonstrate the severity of his conditions. In
doing so, the ALJ determined that the objective medical evidence showed no more than mild disc
and joint degeneration. R. 33. The ALJ did not discuss dependent personality disorder, most likely
because the only mental impairments alleged by Powell at the hearing were anxiety and PTSD.
R. 27. The ALJ concluded that Powell’s treating medical records showed neither a diagnosis nor
treatment for the alleged mental impairments and Powell has not provided any evidence that he
received either for dependent personality disorder. R. 27.
Despite concluding that the objective medical evidence showed no more than mild disc
disease and joint degeneration, the ALJ still fully considered the severity of Powell’s impairments.
The ALJ gave the opinions of stage agency medical consultant Dr. Chan only some weight in
recognition of the fact that the record as a whole showed that Powell has more significant
limitations than what Dr. Chan assessed. R. 31. The ALJ ultimately concluded after a meticulous
analysis of the record that Powell’s “medical treatment records demonstrate that he is interested in
obtaining narcotic pain medications, he is interested in obtaining disability insurance benefits, but
he is not interested in actual treatment to address his alleged impairments.” R. 33. Although Powell
may disagree with the ALJ’s conclusions, I find that the ALJ carefully evaluated the severity of
Powell’s conditions and issued a reasoned opinion supported by substantial evidence.
B. Disability Evaluation Process
Powell also asserts that the ALJ failed to use a “simple formula of work-injury-SSI.” It is
unclear what formula Powell wished the ALJ would have used, but the ALJ’s decision followed the

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SSA’s five-step sequential evaluation process for determining whether an individual is disabled.
20 C.F.R. §§ 404.1520(a), 416.920(a).
At step one, the ALJ concluded that Powell has not engaged in substantial gainful activity
since July 31, 2014, the alleged onset date. R. 26–27. At step two, the ALJ determined that Powell
has the following severe impairments: degenerative joint disease of the knees, degenerative disc
disease of the lumbar and thoracic spine, and obesity. R. 27. The ALJ considered Powell’s claimed
mental impairments and concluded that the “treating medical records show neither a diagnosis nor
treatment for any mental impairment concurrent with the alleged onset date.” Id. At step three, the
ALJ concluded that Powell does not have an impairment or combination of impairments that meets
or medically equals the severity of any impairments under 20 C.F.R. § 404, Supt. P, App. 1. R.
27–28. The ALJ then properly determined Powell’s residual functional capacity prior to step four
and considered all of Powell’s impairments. R. 28–33. At step four, the ALJ concluded that Powell
lacks the residual functional capacity to perform any past relevant work. R. 33. Finally at step five,
the ALJ considered Powell’s age, education, work experience, and residual functional capacity to
conclude that jobs exist in significant numbers that Powell could perform. R. 34–35.
In sum, there is nothing in the record suggesting that the ALJ failed to use “a simple formula
of work-injury-SSDI.” The record demonstrates that the ALJ applied the five-step sequential
evaluation process for determining whether an individual is disabled, fully evaluated the evidence
of record, and determined that Powell has not been under a disability from the alleged onset date
through the date of his decision. Accordingly, I conclude that the ALJ properly followed the SSA’s
rulings and regulations in making a determination.

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CONCLUSION
For the reasons given above, the decision of the Commissioner is AFFIRMED.
Dated this 26th

day of June, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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