Mitchell v. Berryhill
DECISION AND ORDER signed by Magistrate Judge David E Jones. IT IS HEREBY ORDERED that the Commissioner's decision is AFFIRMED. IT IS FURTHER ORDERED that this action is DISMISSED. IT IS ORDERED that the Clerk of Court enter judgment accordingly. (cc: all counsel)(blr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 17-CV-518
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
DECISION AND ORDER
Christine Mitchell alleges disability based primarily on low-back pain. After
the Social Security Administration (SSA) denied her application at the
administrative level, Ms. Mitchell sought judicial review in federal court, and the
parties subsequently agreed to remand the matter to the Commissioner of the SSA
for further proceedings. On remand, Ms. Mitchell received another hearing before
an administrative law judge (ALJ). The ALJ again determined that Ms. Mitchell
was capable of performing her past relevant work notwithstanding her
impairments. Ms. Mitchell now seeks judicial review of that decision.
Ms. Mitchell argues that the ALJ committed errors in assessing her
subjective complaints, the side effects from her various medications, and the
opinions of the physician assistant who treated her. She seeks an award of benefits
or, alternatively, a remand for further proceedings. The Commissioner contends
that the ALJ did not commit an error of law in reaching his decision and that the
decision is otherwise supported by substantial evidence. For the reasons that follow,
the Court agrees with the Commissioner and therefore will affirm her decision
denying Ms. Mitchell disability benefits.
Christine Lee Mitchell was born on July 10, 1952. Transcript 460, ECF Nos.
9-2–9-17. She and her husband own a home in Greendale, Wisconsin, and they have
two adult-aged children and several grandchildren. Tr. 461, 485–87. Ms. Mitchell
suffers from chronic low-back pain stemming from degenerative disc and joint
disease in her lumbar spine. Tr. 469–70. The pain also radiates down both of her
legs. Tr. 475. Ms. Mitchell has treated her pain with a number of medications,
radiofrequency ablations, a TENS unit, physical therapy, and facet injections. Tr.
471–79. However, she has never undergone back surgery.
For more than twenty years, Ms. Mitchell worked as a bookkeeper, customer
service clerk, and office manager at a company that sold commercial office products.
Tr. 464–65. Her job duties included answering phones, helping customers with
orders, entering data in computer programs, taking care of complaints from other
employees, training employees, and handling performance appraisals. Tr. 466–68.
After leaving that position, she worked as an office manager and customer service
clerk for two other companies. Tr. 468–70. Ms. Mitchell last worked in 2008. Tr.
492. She believes she was fired from that job due to limitations resulting from her
impairments: she made too many errors, had to get up and walk around quite often,
and worked at a slower pace than her colleagues.
Ms. Mitchell applied for disability insurance benefits in Fall 2010, alleging
that she became disabled on August 28, 2010. Tr. 168–74. After the SSA denied her
application initially, Tr. 70, and upon reconsideration, Tr. 71, Ms. Mitchell
requested a hearing before an ALJ, Tr. 109–10. The administrative hearing was
held on July 13, 2012, before ALJ Patrick H. Morrison. Tr. 30–69. On August 10,
2012, ALJ Morrison issued a decision finding that Ms. Mitchell was not disabled.
Tr. 72–86. The Appeals Council denied Ms. Mitchell’s request for review on October
16, 2013, Tr. 515–21, making the ALJ’s decision the final decision of the
Commissioner of Social Security, see Loveless v. Colvin, 810 F.3d 502, 506 (7th Cir.
2016). Ms. Mitchell then sought judicial review of the Commissioner’s decision
under 42 U.S.C. § 405(g). On October 7, 2014, United States District Judge J.P.
Stadtmueller issued an order granting the parties’ joint motion for remand to the
Commissioner pursuant to sentence four of § 405(g). Tr. 525.
Thereafter, the Appeals Council vacated the previous decision and remanded
the matter to ALJ Morrison, noting that his decision did not adequately evaluate
Ms. Mitchell’s credibility in accordance with Social Security Ruling (SSR) 96-7p. Tr.
526–28. The Appeals Council instructed the ALJ to fully consider all of the evidence
relating to Ms. Mitchell’s back impairment and further evaluate Ms. Mitchell’s
subjective complaints, paying particular attention to her medication side effects and
course of treatment.
The ALJ conducted a second administrative hearing on August 27, 2015. See
Tr. 455–514. Ms. Mitchell was represented by counsel at the hearing. See Tr. 24–27,
455. The ALJ heard testimony from Ms. Mitchell and Spencer Mosley, L.P.C., an
impartial vocational expert. See Tr. 460–513; see also 646–47. Ms. Mitchell testified
that her impairments caused difficulty sleeping, walking, standing, and sitting. Tr.
487–89. She further testified that she experienced significant side effects from her
medications, including drowsiness, a short attention span, forgetfulness, and
difficulty concentrating. Tr. 471–75, 492–99. As a result of her pain, Ms. Mitchell
spent about five to six hours each day reclining in a chair and elevating her legs. Tr.
The ALJ followed the five-step sequential evaluation process and on
September 25, 2015, he issued another decision unfavorable to Ms. Mitchell. Tr.
535–50. The ALJ determined that (1) Ms. Mitchell did not engage in substantial
gainful activity during the period from her alleged onset date through her date last
insured; (2) Ms. Mitchell suffered from one “severe” impairment: degenerative disc
and joint disease of the lumbosacral spine; (3) Ms. Mitchell did not suffer from an
impairment or combination of impairments that met or medically equaled the
severity of a presumptively disabling impairment; Ms. Mitchell had the residual
functional capacity (RFC) to perform sedentary work with certain physical
restrictions; and (4) Ms. Mitchell was capable of performing her past relevant work
as a customer service clerk, officer manager, and bookkeeper. See Tr. 538–45. Based
on those findings, the ALJ concluded that Ms. Mitchell was not disabled. Ms.
Mitchell filed exceptions to the ALJ’s decision, Tr. 619–23, but the Appeals Council
declined to assume jurisdiction of her appeal, Tr. 399–402.
Ms. Mitchell filed this action on April 11, 2017, seeking judicial review of the
Commissioner’s latest decision under § 405(g). See Complaint, ECF No. 1. The
matter was reassigned to this Court after the parties consented to magistrate judge
jurisdiction. See Consent to Proceed Before a Magistrate Judge, ECF Nos. 3, 4. It is
now fully briefed and ready for disposition. See Plaintiff’s Brief in Support of
Reversal of Social Security’s Denial of Christine Mitchell’s Claim for Disability
Insurance Benefits, ECF No. 11; Defendant’s Memorandum in Support of the
Commissioner’s Decision; ECF No. 15; Plaintiff’s Reply Brief in Support of Reversal
of Social Security’s Denial of Christine Mitchell’s Claim for Disability Insurance
Benefits, ECF No. 16.
Standard of Review
“Judicial review of Administration decisions under the Social Security Act is
governed by 42 U.S.C. § 405(g).” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011)
(citing Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010)). Pursuant to sentence
four of § 405(g), federal courts have the power to affirm, reverse, or modify the
Commissioner’s decision, with or without remanding the matter for a rehearing.
Section 205(g) of the Act limits the scope of judicial review of the
Commissioner’s final decision. See § 405(g). As such, the Commissioner’s findings of
fact shall be conclusive if they are supported by “substantial evidence.” See § 405(g).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th
Cir. 2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (other citations
omitted). The ALJ’s decision must be affirmed if it is supported by substantial
evidence, “even if an alternative position is also supported by substantial evidence.”
Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004) (citing Arkansas v. Oklahoma,
503 U.S. 91, 113 (1992)).
In reviewing the record, courts “may not re-weigh the evidence or substitute
[their] judgment for that of the ALJ.” Skarbek v. Barnhart, 390 F.3d 500, 503 (7th
Cir. 2004) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)).
Rather, reviewing courts must determine whether the ALJ built an “accurate and
logical bridge between the evidence and the result to afford the claimant
meaningful judicial review of the administrative findings.” Beardsley v. Colvin, 758
F.3d 834, 837 (7th Cir. 2014) (citing Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir.
2003); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001)). The ALJ’s decision
must be reversed “[i]f the evidence does not support the conclusion.” Beardsley, 758
F.3d at 837 (citing Blakes, 331 F.3d at 569). Likewise, reviewing courts must
remand “[a] decision that lacks adequate discussion of the issues.” Moore, 743 F.3d
at 1121 (citations omitted).
Reversal also is warranted “if the ALJ committed an error of law or if the
ALJ based the decision on serious factual mistakes or omissions,” regardless of
whether the decision is otherwise supported by substantial evidence. Beardsley, 758
F.3d at 837 (citations omitted). An ALJ commits an error of law if his decision “fails
to comply with the Commissioner’s regulations and rulings.” Brown v. Barnhart,
298 F. Supp. 2d 773, 779 (E.D. Wis. 2004) (citing Prince v. Sullivan, 933 F.2d 598,
602 (7th Cir. 1991)). Reversal is not required, however, if the error is harmless. See,
e.g., Farrell v. Astrue, 692 F.3d 767, 773 (7th Cir. 2012); see also Keys v. Barnhart,
347 F.3d 990, 994–95 (7th Cir. 2003) (citations omitted).
Ms. Mitchell maintains that she is disabled and that the Commissioner’s
decision to the contrary is not supported by substantial evidence and is contrary to
law and regulation. See Compl. ¶¶ 6–7. She asks the Court to reverse the ALJ’s
decision and award benefits. See Compl. p. 2. Alternatively, she seeks remand of the
matter to the Commissioner for further proceedings. See id.
A. Legal framework
Under the Social Security Act, a person is “disabled” only if she is unable “to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or has
lasted or can be expected to last for a continuous period of not less than 12 months.”
See 42 U.S.C. §§ 416(i)(1) and 423(d)(1)(A). The disability must be sufficiently
severe that the claimant cannot return to her prior job and is not capable of
engaging in any other substantial gainful work that exists in the national economy.
42 U.S.C. § 423(d)(2)(A).
In determining whether a person is disabled, the SSA must follow a five-step
sequential evaluation process, asking, in order: (1) whether the claimant has
engaged in substantial gainful activity since her alleged onset of disability;
(2) whether the claimant suffers from a medically determinable impairment or
combination of impairments that is severe; (3) whether the claimant’s impairment
or combination of impairments is of a severity to meet or medically equal the
criteria of any impairment listed in the Act’s regulations as presumptively
disabling; (4) whether the claimant’s RFC leaves her unable to perform the
requirements of her past relevant work; and (5) whether the claimant is unable to
perform any other work. See 20 C.F.R. § 404.1520(a)(4).
An affirmative answer at either step three or step five leads to a finding that
the claimant is disabled. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th
Cir. 2005). “The claimant bears the burden of proof at steps one through four.” Id.
Once the claimant shows an inability to perform past work, the burden then shifts
to the Commissioner to show the claimant’s ability to engage in other work existing
in significant numbers in the national economy. Id.
B. Legal analysis
Ms. Mitchell argues that the ALJ erroneously failed to credit her subjective
complaints concerning the limiting effects of her impairments, include
nonexertional limitations in the RFC assessment, and give sufficient weight to the
opinions of her treating physician assistant. The Court will address each argument
1. Whether the ALJ erred in evaluating Ms. Mitchell’s
Ms. Mitchell first argues that the ALJ failed to give sufficient weight to her
subjective complaints of disabling symptoms. ALJs use a two-step process for
evaluating an individual’s symptoms. SSR No. 16-3p, 2016 SSR LEXIS 4, at *5–10
(March 16, 2016).1 First, the ALJ must “determine whether the individual has a
medically determinable impairment (MDI) that could reasonably be expected to
produce the individual’s alleged symptoms.” Id. at *5. Second, the ALJ must
“evaluate the intensity and persistence of an individual’s symptoms such as pain
and determine the extent to which an individual’s symptoms limit his or her ability
to perform work-related activities.” Id. at *9.
An ALJ’s evaluation of an individual’s subjective allegations “is entitled to
deference” and will not be upset unless “it is ‘patently wrong,’” Bates v. Colvin, 736
F.3d 1093, 1098 (7th Cir. 2013) (quoting Pepper v. Colvin, 712 F.3d 351, 367 (7th
Cir. 2013)), or “divorced from the facts contained in the record,” Berger v. Astrue,
516 F.3d 539, 546 (7th Cir. 2008). “Further, the ALJ must explain [his] decision in
such a way that allows [a reviewing court] to determine whether [he] reached [his]
decision in a rational manner, logically based on [his] specific findings and the
evidence in the record.” McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011) (citing
Skarbek, 390 F.3d at 505; Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 787–
88 (7th Cir. 2003)).
SSR 16-3p superseded SSR 96-7p on March 16, 2016. Although the ALJ’s decision
here pre-dates the effective date of SSR 16-3p, the Commissioner does not appear to
contest its retroactive application in this case. See Def.’s Br. 7.
The ALJ here determined that Ms. Mitchell’s subjective symptoms were “not
entirely credible.” Tr. 542. In reaching this finding, the ALJ summarized Ms.
Mitchell’s allegations and discussed the objective medical evidence. See Tr. 542–43.
The ALJ also considered the side effects from Ms. Mitchell’s medications and all of
the opinion evidence contained in the record. See Tr. 542–44. Based on his review of
the record, the ALJ concluded that Ms. Mitchell’s allegations of disabling pain were
Ms. Mitchell maintains that the ALJ did not build an accurate and logical
bridge between the evidence and his adverse subjective-symptom finding. According
to Ms. Mitchell, the ALJ “cherry-picked” the objective medical evidence that
supported his finding, erroneously discredited Ms. Mitchell’s alleged limitations
because they were not “medically necessary,” misconstrued Ms. Mitchell’s
statements about why she was not a candidate for surgery, and erroneously rejected
Ms. Mitchell’s claimed side effects from medications. See Pl.’s Br. 8–14; Pl.’s Reply
1–3. For the following reasons, the Court finds Ms. Mitchell’s arguments to be
a. Objective medical evidence
The ALJ did not present only a one-sided view of the objective medical
evidence. The ALJ noted Ms. Mitchell’s 2008 MRI, which showed disc bulging at
multiple levels and an annular tear at L2-L3 but no more than “borderline” spinal
stenosis and no herniation. Tr. 542 (citing Tr. 648–49). The bulk of the ALJ’s
discussion, however, focused on evidence from the relevant time period—that is,
between Ms. Mitchell’s alleged onset date and her date last insured. See Tr. 542–
434. This evidence generally showed that Ms. Mitchell had chronic low-back pain
but relatively normal findings upon examination and no neurological deficits.
Nearly all of the evidence that Ms. Mitchell claims the ALJ ignored pre-dates
her alleged onset date. See Pl.’s Br. 9–10 (citing Tr. 279–81, 286–87, 289–90, 292–
93, 306). More importantly, the evidence Ms. Mitchell cites does not seriously
undermine the ALJ’s finding. Ms. Mitchell complained about slightly worsening
back pain, and her physical exams showed lumbar tenderness and positive lumbar
extension facet loading. But her Oswestry scores suggested only “moderate
functional impairment”; she indicated that her side effects from medications were
“tolerable”; and her medications were increased only one time—from taking
Percocet three times per day to four—following an exacerbation of her symptoms.
The allegedly ignored evidence does not show that Ms. Mitchell’s back impairment
was significantly deteriorating.
Ms. Mitchell’s other arguments concerning the objective medical evidence are
similarly unavailing. She claims that the ALJ impermissibly “played doctor” when
interpreting her 2008 MRI and ignored a CT scan from the same time period that
revealed annular tears and degenerative disc disease. The Court disagrees. The ALJ
did not interpret any raw medical data in his summary of the MRI, the MRI also
revealed the annular tear, and the ALJ correctly noted that the record did not
contain any electrodiagnostic studies demonstrating neurological deficits (and as
such, there was no indication of nerve root involvement).
Furthermore, the state agency medical consultants who reviewed all of the
above evidence determined that Ms. Mitchell was still capable of performing at least
sedentary work. Ms. Mitchell’s argument that the ALJ did not rely on those
opinions when assessing her subjective symptoms, see Pl.’s Reply 2–3, is simply
without merit. See Tr. 544 (citing Tr. 310–17, 345–52, 356–57). Accordingly, the
ALJ did not, as Ms. Mitchell suggests, utterly fail to acknowledge contrary objective
b. Ms. Mitchell’s activity level
The ALJ reasonably determined that Ms. Mitchell’s inactivity level was
volitional and contrary to the medical advice she received. Ms. Mitchell testified at
the administrative hearing that she spent most of her day resting in a recliner chair
with her legs elevated. But her treating providers and pain management specialists
consistently encouraged her to modify her lifestyle and become more active. See Tr.
543 (citing Tr. 279–307, 321–43, 363–81, 654–96, 697–730). Based on those
recommendations, the ALJ reasonably inferred that Ms. Mitchell’s symptoms were
not as severe as alleged. In other words, Ms. Mitchell’s treaters would not have
recommended those lifestyle changes if they believed her impairment rendered her
unable to engage in such activity.
c. Candidacy for back surgery
To the extent the ALJ erred in questioning of Ms. Mitchell’s explanation for
why she was not a candidate for back surgery, such error was harmless. Ms.
Mitchell indicated at the hearing that her surgeons advised against back surgery
because she had too many bad discs and surgery would only make matters worse.
See Tr. 499–502. The ALJ, however, concluded that “the orthopedic surgeon who
examined [Ms. Mitchell] in 2010 found insufficient evidence of neurological
involvement to recommend surgery.” Tr. 543 (citing Tr. 275–78).
Ms. Mitchell correctly points out that the ALJ’s conclusion is not supported
by the treatment notes he cited. Moreover, other treatment notes do indeed suggest
that a “Dr. Frank” advised against surgery, see Pl.’s Br. (citing Tr. 752, 757, 763,
767), though his notes apparently are not contained in the record.
Nevertheless, the ALJ’s error is not grounds for reversal in this case. The
ALJ’s questioning of Ms. Mitchell’s explanation was merely one reason he offered
for not fully crediting her subjective complaints. As discussed elsewhere in this
opinion, the ALJ provided other, independently valid reasons for discrediting Ms.
Mitchell’s allegations of disabling limitations.
d. Side effects from medications
The ALJ reasonably concluded that Ms. Mitchell’s “massively debilitating
side effects” could not be as severe as she alleged. See Tr. 543–44. Ms. Mitchell
indicated at the hearing that her medications caused debilitating side effects,
including drowsiness, a short attention span, and forgetfulness. See Tr. 471–75. The
ALJ determined that these allegations appeared exaggerated given that on multiple
occasions Ms. Mitchell took more medication than was prescribed, Ms. Mitchell’s
providers consistently recommended a more active lifestyle, and Ms. Mitchell’s
providers never reverted to medications that had less side effects. Tr. 543–44.
Ms. Mitchell maintains that the ALJ impermissibly played doctor when he
guessed about her treatment providers’ actions, the ALJ painted an unclear picture
of what he meant by “massively debilitating side effects,” and the ALJ misconstrued
the record in asserting that she violated her pain agreement on multiple occasions.
Again, the Court disagrees. The ALJ did not need any medical expertise to infer
that Ms. Mitchell’s treatment providers likely would have changed her medication
regime if it was causing such severe side effects. Instead, they consistently
recommended that she be more active. See Tr. 543 (citing Tr. 363–81). Likewise, the
ALJ did not err in characterizing Ms. Mitchell’s side effects as “massively
debilitating” given her testimony that she napped for one to two hours each day due
to feeling fatigued or drowsy from her medications. See Tr. 488. And the ALJ
correctly noted that Ms. Mitchell’s pain management specialists described her as
having a history of taking more medication than was prescribed. See Tr. 543 (citing
Overall, the ALJ provided sufficient reasons for discounting Ms. Mitchell’s
subjective complaints of disabling symptoms. The ALJ’s evaluation of those claimed
symptoms therefore was not patently wrong or divorced from the facts contained in
2. Whether the ALJ erred in evaluating Ms. Mitchell’s RFC
Ms. Mitchell also argues that the ALJ erred in formulating her RFC by not
including any nonexertional limitations stemming from her medications. See Pl.’s
Br. 14–16; Pl.’s Reply 4–5. The ALJ did not, however, need to include such
limitations in the RFC assessment because he reasonably found Ms. Mitchell’s
complaints about side effects to be exaggerated. See Yurt v. Colvin, 758 F.3d 850,
857 (7th Cir. 2014) (holding that the ALJ’s RFC assessment must incorporate only
those limitations that are supported by the medical record). Moreover, Ms. Mitchell
told her pain management specialists that her side effects were “tolerable” and
controlled with over-the-counter medication, by watching her diet, or by simply
“doing nothing.” See Tr. 279–82, 283–85, 295–97, 327–30, 334–37. The ALJ
therefore did not err in in failing to include any such limitations in the RFC
3. Whether the ALJ erred in evaluating the opinions of Ms.
Mitchell’s physician assistant
Finally, Ms. Mitchell argues that the ALJ failed to give sufficient weight to
the opinions offered by her treating physician assistant, Megan Hackel, PA-C. See
Pl.’s Br. 16–20; Pl.’s Reply 5–6. An ALJ must give “controlling weight” to a treating
source’s opinion on the nature and severity of the claimant’s impairments if it is
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(c)(2); see also Punzio v. Astrue, 630 F.3d 704, 710 (7th
Cir. 2011); SSR 96-2p, 1996 SSR LEXIS 9, at *1–9 (July 2, 1996). According to the
Act’s regulations, a physician assistant is not considered a treating source. See 20
C.F.R. § 404.1513; 20 C.F.R. 404.1527; see also SSR No. 06-3p, 2006 SSR LEXIS 5,
at *3–5 (Jan. 1, 2006) (citing § 404.1527(d)). Thus, an opinion from a physician
assistant can never be entitled to controlling weight. See SSR No. 06-3p, 2006 SSR
LEXIS 5, at *3–4; SSR 96-2p, 1996 SSR LEXIS 9, at *3–4.
The opinion of a physician assistant, however, remains “important and
should be evaluated on key issues such as impairment severity and functional
effects.” SSR No. 06-3p, 2006 SSR LEXIS 5, at *8. In evaluating opinion evidence
from a physician assistant, the ALJ can apply the same factors used to evaluate
opinions from an acceptable medical source. Id. at *10–11.2 “Not every factor for
weighing opinion evidence will apply in every case.” SSR No. 06-3p, 2006 SSR
LEXIS 5, at *12. Rather, the ALJ “generally should explain the weight given to
opinions from these ‘other sources,’ or otherwise ensure that the discussion of the
evidence in the . . . decision allows a . . . subsequent reviewer to follow [his]
reasoning, when such opinions may have an effect on the outcome of the case.” Id. at
Ms. Hackel began treating Ms. Mitchell in April 2008 and saw her every two
or three months since then. Tr. 650. On November 30, 2012, Ms. Hackel completed a
Lumbosacral Spine Impairment Medical Assessment Form that was solicited by Ms.
Mitchell’s lawyer. Tr. 650–53. Ms. Hackel noted the following diagnoses: low-back
pain, lumbar radiculopathy, lumbar degenerative disc disease, and lumbar disc
herniation. According to Ms. Hackel, Ms. Mitchell’s chronic low-back pain was
These factors include: the examining relationship between the individual and the
source; the treatment relationship between the individual and the source (including
the length, nature, and extent of the treatment relationship and the frequency of
examination); whether the opinion is supported by relevant evidence; the opinion’s
consistency with the record as a whole; whether the source is a specialist; and any
other relevant factors. See 20 C.F.R. § 404.1527(c).
“moderate to severe.” Tr. 650.
Ms. Hackel offered the following opinions concerning Ms. Mitchell’s
limitations: (1) Ms. Mitchell’s impairment and medications caused problems with
attention, concentration, pace, or persistence such that she would be “off task” more
than thirty percent of the workday and would work at less than fifty percent of the
pace of an average worker; (2) Ms. Mitchell could sit for only twenty to thirty
minutes at a time and about two hours in an eight-hour workday; (3) Ms. Mitchell
could stand or walk for twenty to thirty minutes at a time and less two hours in a
workday; (4) Ms. Mitchell would need to take approximately nine unscheduled
breaks during each workday; and (5) Ms. Mitchell would be absent from work more
than four days per month due to treatment or “bad days” with symptoms. Tr. 651–
The ALJ assigned “little weight” to the opinions contained in Ms. Hackel’s
assessment, reasoning that they appeared to be based solely on Ms. Mitchell’s
subjective complaints of pain, they were not supported by or consistent with the
objective medical evidence, and they were solicited specifically for Ms. Mitchell’s
disability claim. Tr. 544. Ms. Mitchell claims that these are not “good reasons” for
rejecting Ms. Hackel’s opinions, but that standard does not apply to opinions offered
by a physician assistant. For non-treating sources, like a physician assistant, the
ALJ is required only to explain the weight given to such opinions or otherwise
ensure that a subsequent reviewer can trace his reasoning. See SSR No. 06-3p, 2006
SSR LEXIS 5, at *15–16.
While the Court may not agree with each reason the ALJ provided for giving
little weight to Ms. Hackel’s opinions, it finds that the ALJ sufficiently discharged
his minimal obligation under SSR 06-3p. The ALJ noted a lack of objective medical
evidence substantiating Ms. Mitchell’s complaints and negative findings upon
medical examinations. See Tr. 544. He did not ignore objective signs that suggested
disabling symptoms. Consequently, the ALJ reasonably determined that Ms. Hackel
overly relied on Ms. Mitchell’s subjective complaints, as the medical evidence—
including Ms. Hackel’s own treatment records, see, e.g., Tr. 279–300, 331–37—did
not support such work-preclusive limitations. And, as discussed above, the ALJ
sufficiently explained why those subjective complaints were not entirely credible.
Accordingly, the ALJ did not err in weighing Ms. Hackel’s opinions.
For all the foregoing reasons, the Court finds that the ALJ did not commit
reversible error in finding that Ms. Mitchell was not disabled as of August 2010.
The Court therefore will affirm the ALJ’s decision denying Ms. Mitchell’s claim for
NOW, THEREFORE, IT IS HEREBY ORDERED that the Commissioner’s
decision is AFFIRMED.
IT IS FURTHER ORDERED that this action is DISMISSED.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment
Dated at Milwaukee, Wisconsin, this 12th day of March, 2018.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge
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