Schiltz v. Colvin

Filing 18

DECISION AND ORDER signed by Chief Judge William C Griesbach on 3/19/18. The decision of the Commissioner is affirmed. The Clerk is directed to enter judgment. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHELLE JOYCE SCHILTZ,
Plaintiff,
v.

Case No. 16-C-1566

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

DECISION AND ORDER

This is an action for judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying Plaintiff’s application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security
Act. 42 U.S.C. § 405(g). Plaintiff claims that the Administrative Law Judge’s (“ALJ”) erred in
failing to explain the basis for his finding that she retained limited use of her right arm and could lift
up to five pounds. Upon review of the record, I find that the ALJ did in fact explain how he arrived
at Plaintiff’s residual functional capacity and substantial evidence supports his finding concerning
Plaintiff’s use of her right arm. The decision of the Commissioner is therefore affirmed.
BACKGROUND
On October 23, 2014, Plaintiff Michelle Schiltz, then age 44, filed an application for DIB and
SSI with an alleged onset date of January 25, 2013, due to back problems, deterioration, pinched
nerves, and fibromyalgia. R. 68, 86. The onset date was later changed to October 24, 2013, to
avoid any overlap with the denial of a previous application. R. 19. In any event, the SSA denied the

applications initially on April 23, 2015, and upon reconsideration on August 25, 2015. R. 151–58,
161–70. After her application and request for reconsideration were denied, Plaintiff requested an
administrative hearing. ALJ Timothy Malloy held a hearing on June 7, 2016. R. 39. Plaintiff, who
was represented by counsel, and David Oswald, a vocational expert, both testified. R. 40.
At the hearing, Plaintiff testified that she last worked on 2013. Her last several jobs had been
as a cook in a restaurant. She had also worked as a cashier in retail stores and in factories through
temporary employment agencies. R. 44–46. At the time of the hearing, Plaintiff testified she had
been living in an apartment with her teen-age daughter and her oldest daughter’s four children for
whom she had been appointed guardian, though she had recently moved to a hotel by herself due to
overcrowding. She was enrolled in Wisconsin Works (W-2), a temporary assistance program for
low income parents, from which she received $608 per month, which was supplemented by sporadic
child support payments from her ex-husband. Although the W-2 program was intended to last for
only two years, Plaintiff had been on it for seven-and-a-half years due to repeated extensions. She
testified that at first, she had been looking for a job, but discontinued her search because of her
health. R.47–49. She also acknowledged that her criminal record made it hard to get jobs, and that
her employment history even before her alleged onset date was sparse. R. 52–53, 56.
As to her physical condition, Plaintiff testified that she had problems with her right shoulder,
her lower back and her neck sometimes. R. 56. She had undergone three separate surgeries, a
cervical discectomy depression and fusion at C6-7 in March of 2014, and two rotator cuff repairs
on the shoulder of her right (non-dominant) arm, also in 2014. R. 49–50. With respect to her
cervical problem, Plaintiff testified that she had “good days and bad days with the pain.” R. 51. She
did not believe her surgeries had significantly improved her pain in her shoulder and neck. Plaintiff

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also complained of pain in other regions of her body which she attributed to lumbar disc problems
and fibromyalgia. R. 58–59. Finally, Plaintiff testified her family physician prescribed unspecified
medication for her depression, but she had not seen a psychiatrist or psychologist. R. 55–56.
In a June 21, 2016 decision, the ALJ determined that Plaintiff was not disabled. R. 16–33.
Following the five-step sequential process prescribed by the Social Security Administration (SSA),
the ALJ concluded at step one that Plaintiff has not engaged in substantial gainful activity since
October 23, 2014. R. 21. At step two, the ALJ determined that Plaintiff had the following severe
impairments: degenerative disc disease, degenerative joint disease, COPD, obesity, anxiety, and
depression. At step three, the ALJ found that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled on of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. The ALJ then determined that Plaintiff had the residual functional capacity
(“RFC”):
to perform light work as defined in 20 C.F.R. § 416.967(b) except she can never
climb ladders, ropes and scaffolds; she must avoid moderate exposure to the use of
moving machinery and unprotected heights; she cannot reach overhead with the right
upper extremity; she is limited to lifting and carrying five pounds with her right upper
extremity; she must avoid moderate exposure to irritants such as fumes, odors, dusts,
and gases; she is limited to unskilled work performing simple, routine and repetitive
tasks; she will be off-task ten percent of the workday in addition to regular breaks;
she is limited to occasional decision making and changes in her work setting; and she
can only perform work that allows for a flexible pace.
R. 25.
Based on the testimony offered by the vocational expert at the hearing, the ALJ determined
at step four that considering her age, education, and work experience, Plaintiff would not be able to
return to her past work. R. 62–63. The ALJ concluded at step five, however, again based on the
testimony of the vocational expert, that there were jobs that existed in significant numbers in the
national economy that Plaintiff could perform, such as counter attendant, marker/labeler, and shipper
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weigher. R. 32–33. Based on these findings, the ALJ determined Plaintiff was not disabled. The
ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied
Plaintiff’s request for review on October 5, 2016. R. 1.
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)).

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ANALYSIS
Plaintiff’s sole argument is that the ALJ erred in including the five pound lifting and carrying
restriction for her right upper extremity within his RFC and his hypothetical question to the
vocational expert. An RFC is the assessment of the extent 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.
Plaintiff claims that the ALJ accorded great weight to the opinions of Drs. Mina Khorshidi
and Pat Chan, the state agency consultants who reviewed her file, but then ignored their conclusion
that she could use her right arm only to assist while lifting. R. 80, 118. Instead of fully adopting all
of the state agency consultants’ opinions, the ALJ concluded that Plaintiff also retained the ability
to lift and carry up to five pounds with her right arm with no overhead reaching. R. 25. Plaintiff
contends that “the ALJ failed to explain why he changed the finding, upon what basis he made the
change and why he failed to follow the findings of Dr. Chan, a doctor in [sic] whose opinion he gave
great weight.” ECF No. 12 at 1. She claims that “[t]he ALJ’s failure to provide any rationale is an
erroneous exercise of discretion.” Id. at 1–2.
Plaintiff’s argument betrays a misreading, or complete failure to read, the ALJ’s decision,
especially his discussion of the limitations to her right arm. The ALJ did not “change the finding”
of Dr. Chan. The record contains several medical source opinions concerning Plaintiff’s right arm,
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and the ALJ discussed those opinions and the remaining medical and other evidence that bore on the
relevant issues in his decision. R. 27–31. More specifically, the ALJ expressly noted that he did not
accept that state agency consultants’ opinion that Plaintiff’s use of her right arm was limited to
assisting while lifting and explained why:
the limitation about overhead reaching and with the right upper extremity is generally
supported by the evidence showing that the claimant reported ongoing pain after her
surgeries on the right shoulder (Exh. 13F, 16F). However, the undersigned finds Dr.
Olvey’s opinion about the claimant’s right shoulder restrictions to be more
persuasive.
R. 31.
Dr. Scott Olvey is the surgeon who performed Plaintiff’s shoulder surgeries. R. 30. In SSA
parlance, he is a treating source. R. 30. The SSA’s regulations state that “[g]enerally, we will give
more weight to medical opinions from your treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
The ALJ noted that in May 2015, Dr. Olvey opined that Plaintiff “could perform no lifting greater
than five pounds with right arm and no overhead lifting.” R. 30 (citing R. 1017). The ALJ gave
“great weight” to Dr. Olvey’s May 2015 comments. R. 30. And it was this opinion that the ALJ
found more persuasive than those of the state agency consultants who reviewed Plaintiff’s file first
in April and than again in August of 2015. R. 81, 119.
There is no inconsistency in an ALJ’s giving “great weight” to one or more of a medical
source’s opinions and less weight to others, as long as he explains why. The ALJ did so here. The
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fact that Dr. Olvey was Plaintiff’s treating physician for her shoulder problems was certainly one
reason to give greater weight to his opinion than those of the reviewing physicians. But that is not
the only reason the ALJ gave for finding the Plaintiff had greater function in her right arm than the
state agency physicians believed. The ALJ noted that Dr. Olvey commented a number of times that
Plaintiff was reporting significantly more pain than would be expected at this juncture post-surgery.
R. 27 (citing R. 1007–08). He noted that he believed she had poor coping mechanisms and that her
depression may be affecting her perception of her shoulder pain. Id. Dr. Olvey also noted that
physical examination revealed Plaintiff had some adequate use of her right shoulder, with full forward
flexion passively and nearly full abduction. R. 30.
The ALJ also noted that Dr. Olvey did not see Plaintiff after June 2015. Over the next year
leading up to the hearing in June 2016, Plaintiff continued to see Dr. Tammy Durant, her primary
care physician on a regular basis and yet offered no complaints of pain concerning her right shoulder.
For example, on January 5, 2016, Dr. Durant saw Plaintiff for anxiety, but a physical examination
conducted in conjunction with the visit disclosed no shoulder complaints. R. 1050–53. Likewise,
nine days later she was seen for a sinus problem. Again the physical examination is silent as to any
shoulder problem. R. 1053–54. On January 29, 2016, Plaintiff was seen for anxiety, migraines and
a sinus problem. Again, no mention of shoulder pain. R. 1055–57. The same appears in the report
of a March 1, 2016 visit for migraines and as a follow-up to an emergency room visit for chest pain,
R. 1057–60, and an April 15, 2016 visit for anxiety, cardiomyopathy and COPD/smoking. R.
1060–62. The absence of ongoing complaints about shoulder pain to her primary care physician also
supports the ALJ’s conclusion that “the claimant’s alleged symptoms are not entirely consistent with
and supported by the evidence of record.” R. 28.
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This is not to say that the ALJ accepted all of Dr. Olvey’s opinions. Dr. Olvey, as well as
Dr. Durant, had filled out questionnaires indicating limitations that the ALJ found unsupported by
the medical and other evidence, or so conclusory in nature as not to merit any weight at all. R. 30.
For example, Dr. Olvey checked a box indicating that Plaintiff was temporarily totally disabled due
to her shoulder condition on the same form he completed on May 12, 2015, in which he stated she
could lift up to five pounds with her right arm. R. 1018. The ALJ rejected the opinion that Plaintiff
was totally disabled, even temporarily, because it was conclusory and inconsistent with his own
treatment records. Additionally, because it was an opinion on an issue specifically reserved to the
Commissioner, Dr. Olvey’s opinion that Plaintiff was disabled is not even considered a medical
opinion under SSA regulations. 20 C.F.R. § 404.1527(d), 416.927(d).
But to repeat, there is no legal or logical impediment to an ALJ according greater weight to
some opinions of a medical source than he gives to other opinions. That is what the ALJ did here
and, contrary to Plaintiff’s assertion, he fully explained his reasons for doing so. Finally, though
Plaintiff does not really argue the point, the ALJ’s RFC determination is supported by substantial
evidence in the record. The decision of the Commissioner is therefore affirmed. The Clerk is
directed to enter judgment accordingly.
SO ORDERED at Green Bay, Wisconsin this 19th day of March, 2018.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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