Barnes Riser v. Berryhill
Filing
19
DECISION and ORDER signed by Judge Lynn Adelman on 4/3/18. IT IS ORDERED that the ALJ's decision is reversed, and the matter is remanded for further proceedings consistent with this decision. The Clerk is directed to enter judgment accordingly. (cc: all counsel)(kwb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANITA BARNES RISER
Plaintiff,
v.
Case No. 17-C-0707
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security Administration
Defendant.
DECISION AND ORDER
Plaintiff Anita Barnes Riser applied for social security disability benefits, alleging that she
could no longer work due to back pain, obesity, and depression, but the Administrative Law
Judge (“ALJ”) assigned to the case concluded that she could, despite these impairments,
perform a range of sedentary work. Plaintiff now seeks judicial review of that decision.
I. BACKGROUND
A.
Medical Evidence
On February 15, 2011, plaintiff underwent a lumbar MRI, which revealed mild
degenerative changes in the lumbar spine and a paracentral lesion at the L5-S1 level (either
a nerve sheath tumor/neurofibroma or disc protrusion). (Tr. at 304-05.) On June 15, 2011, she
saw a rheumatologist, Dr. John Fahey, with continued severe pain despite physical therapy and
cortisone shots. (Tr. at 282-83.) On exam, her lower back was tender, and she could not bend
over very well. Dr. Fahey assessed osteoarthritis of the knee, aggravated by obesity, and an
abnormal MRI requiring further evaluation. He injected her knee and encouraged her to see
a neurosurgeon about the MRI. (Tr. at 284.) On July 1 and 8, 2011, Dr. Fahey provided
additional knee injections. (Tr. at 288-89, 292-93.)
On July 21, 2011, plaintiff established primary care with Dr. Adnan Nazir and Katie
Larson, NP, regarding obesity, neurofibroma, and chronic back pain. On review of symptoms,
she complained of joint swelling, pain, and muscle aches. She denied sadness, difficulty
sleeping, or mood changes. (Tr. at 378.) On musculoskeletal exam, NP Larson noted
adequately aligned spine, intact range of motion, normal muscular development, and normal
gait. Psychologically, plaintiff was oriented, able to demonstrate good judgment and reason,
and without hallucinations, abnormal affect, or abnormal behaviors. She was referred to Dr.
Cully White, a neurosurgeon, and pain management. (Tr. at 379.) On August 14, 2011, NP
Larson noted similar exam findings. (Tr. at 377.) On September 19, Larson noted evidence
of mild para-spinal spasm, but normal gait, reflexes, and muscle tone. (Tr. at 375.)
On September 21, 2011, plaintiff saw Dr. White in consultation. On exam, she walked
with a slow, stiff gait, and demonstrated evidence of reduced lumbar range of motion and
positive straight leg raise. After discussing treatment options, they elected to proceed with L5S1 epidural steroid injections. (Tr. at 318.)
An additional MRI taken on October 28, 2011, showed a large disc herniation at L5-S1
(Tr. at 684), and on October 31, 2011, Dr. Jack Deckard performed an L5-S1 laminectomy,
right L5-S1 formaminotomy L5-S1, and diskectomy on the right at L5-S1. (Tr. at 684, 690-91.)
Between November 3 and12, 2011, plaintiff completed an in-patient rehabilitation program.
(Tr. at 683-86.) She followed up with NP Larson on November 28, 2011, December 14, 2011,
and January 9, 2012, walking with a limp and a cane, and was referred to pain management
and physical therapy. (Tr. at 372, 370, 368.)
Plaintiff subsequently obtained treatment at the Center for Pain Management, receiving
2
medications and injections. (Tr. at 653, 675, 705-06, 436, 547, 587-88, 600-01.) She generally
reported significant pain relief following an injection, although the pain would eventually return.
(Tr. at 532, 543, 552, 558, 563, 566, 572, 603, 606.) At times, she reported that her
medications worked well, keeping her pain tolerable and allowing her to be functional (Tr. at
572, 575, 582, 595, 606, 623, 635, 647); on other occasions, however, her pain was not
adequately controlled (Tr. at 592, 612, 616, 629). Water aerobics helped relieve some of her
pain. (Tr. at 575.) Her exams generally revealed pain on palpation of the lumbar region,
limited active range of motion, and positive bilateral straight leg raise. (Tr. at 654, 658, 660,
663, 665, 667, 669, 671, 539.) Plaintiff also continued to see NP Larson and Dr. Nazir, with
their exams generally reflecting intact range of motion, normal muscular development, and
normal gait, but with mild para-spinal tenderness and positive straight leg raise. (Tr. at 365,
362, 359, 357, 354, 352, 349, 347, 344, 341, 339, 336, 439, 442, 446, 450, 470.) Plaintiff
reported periodic falls when her right leg gave out (Tr. at 666, 350, 347, 670, 535, 546, 609,
615), and NP Larson noted that plaintiff sat on the left hip to avoid pressure on the right hip (Tr.
at 352, 349, 347, 344, 341, 339). At times, plaintiff also reported lower extremity swelling. (Tr.
at 500-02, 602, 460.)
A repeat MRI completed on August 23, 2012, revealed recurrence and increased size
of the L5-S1 disc extrusion. (Tr. at 680.) However, further surgery was deferred until she could
lose some weight. (Tr. at 676, 530, 538.) She followed up with Wisconsin Bariatrics, where
she had previously undergone lap band surgery, but her weight loss progress stalled based on
poor eating habits and limited exercise. (Tr. at 384-92.)
On October 1, 2012, NP Larson completed a residual functional capacity questionnaire,
listing diagnoses of herniated lumbar disc, hypertension, and morbid obesity, and symptoms
3
of pain, fatigue, dizziness, numbness in the right leg, and limitations in ambulation, bending,
and squatting. Larson opined that plaintiff’s symptoms would frequently interfere with the
attention and concentration needed to perform simple work-related tasks, and that her
medications caused side effects of fatigue/drowsiness. Larson indicated that plaintiff could
continuously walk one block, sit for 30 minutes, and stand/walk 30 minutes; in an eight-hour
day, she could sit for four hours and stand/walk for four hours. She needed a job that allowed
shifting positions at will from sitting, standing, or walking. (Tr. at 329.) She could occasionally
lift 10 pounds, never more. She would likely be absent from work more than four times per
month due to her impairments and was not physically capable of working a full-time schedule
on a sustained basis. (Tr. at 330.)
On January 26, 2014, Dr. Nazir completed a medical assessment form, listing diagnoses
of asthma, chronic back pain, morbid obesity, and hypertension. He indicated that plaintiff’s
symptoms would not cause her to be off task at least 15% of the day. (Tr. at 496.) He opined
that plaintiff could not walk a block at a reasonable pace on rough or uneven surfaces, use
standard public transportation, or climb stairs at a reasonable pace. She needed a cane, or
a walker at times, to ambulate.
She could walk ½ block without rest or severe pain,
continuously sit for 20 minutes before she had to stand or lie down, and stand for 10 minutes
before she had to walk, sit, or lie down. (Tr. at 497.) In an eight-hour day, she could sit for less
than two hours and stand/walk less than two hours. She needed six unscheduled breaks in
an average workday and needed to elevate her legs at least two hours during a typical eighthour daytime period. She could rarely lift less than 10 pounds, never more, and never twist or
stoop. She could use her left hand to grasp and finger constantly, but her right hand less than
occasionally. She could use her right arm to reach less than occasionally, her left arm
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occasionally. (Tr. at 498.) She would be absent more than four days per month due to her
impairments. (Tr. at 499.)
On July 20, 2015, plaintiff saw Dr. Rizwanullah Arain for a neurology consult related to
right arm pain and numbness. (Tr. at 491.) Dr. Arain ordered an EMG study (Tr. at 493), which
revealed mild right carpal tunnel syndrome (Tr. at 494). He ordered physical therapy and a
right wrist splint. (Tr. at 491.) A September 9, 2015, note indicates that plaintiff never went to
physical therapy. (Tr. at 488-89.)
From October to December 2015, plaintiff received treatment for anxiety and depression
at Acacia Wellness Center. (Tr. at 707-99.) During a psychiatric evaluation on October 8,
2015, Isaac Nagel, M.D., noted well-groomed appearance, cooperative attitude, depressed
mood, stable affect, normal speech, goal-directed thought form, no suicidal/homicidal ideation,
no evidence of delusions or hallucinations, intact cognition, and fair judgment/insight. (Tr. at
779-80.) He diagnosed episodic mood disorder and anxiety, with a GAF of 50,1 continuing her
on Wellbutrin and Cymbalta. (Tr. at 780.) During a subsequent office visit on October 22,
2015, plaintiff reported some improvement. She was working on raising money for her church.2
On mental status exam, Dr. Nagel noted well-groomed appearance, normal gait, cooperative
1
GAF (“Global Assessment of Functioning”) rates the severity of a person’s symptoms
and her overall level of functioning. Set up on a 0-100 scale, scores of 91-100 are indicative
of a person with no symptoms, while a score of 1-10 reflects a person who presents a
persistent danger of hurting herself or others. Scores of 51-60 reflect “moderate” symptoms
and 41-50 “severe” symptoms. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 32-34 (4th ed. 2000). The fifth edition of the DSM abandoned the
GAF scale because of “its conceptual lack of clarity . . . and questionable psychometrics in
routine practice.” Williams v. Colvin, 757 F.3d 610, 613 (7th 2014).
2
She had previously reported attending a weekly women’s group at her church. (Tr. at
790.)
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attitude, OK mood, stable affect, normal speech, goal-directed thought form, no
suicidal/homicidal ideation, no evidence of delusions or hallucinations, intact cognition, and fair
judgment/insight. He continued Cymbalta and Wellbutrin. (Tr. at 758.) On November 5, 2015,
plaintiff told Dr. Nagel, “I am OK.” (Tr. at 740.) On mental status exam, she again displayed
well-groomed appearance, normal gait, cooperative attitude, OK mood, stable affect, normal
speech, goal-directed thought form, no suicidal/homicidal ideation, no evidence of delusions
or hallucinations, intact cognition, and fair judgment/insight.
Dr. Nagel continued her
medications. (Tr. at 741.) Plaintiff participated in several group (Tr. at 769-70, 763-64, 747-48)
and individual therapy sessions, discussing issues with her children and feelings of guilt for not
working (Tr. at 728, 720). She reported panic attacks and crying spells every day (Tr. at 729),
although the medications helped reduce the anxiety (Tr. at 732). She further reported staying
in her room all day in a house robe. (Tr. at 715.) Mental status exams revealed normal
behavior, normal speech, normal insight and judgment, organized thought processes, and no
evidence of delusions or hallucinations. (Tr. at 721, 716.) She was discharged from treatment
in February 2016 due to missed appointments and lack of contact. (Tr. at 712, 797.)3
3
Plaintiff received treatment for various other ailments during urgent care and emergency
room visits, at which her primary impairments were referenced. For instance, on June 25,
2013, she went to the emergency room for vomiting and sharp abdominal pain. (Tr. at 419-21.)
On exam, doctors noted no extremity tenderness and full range of motion in all extremities. (Tr.
at 422.) On February 15, 2014, she went to the ER after she was hit on the head with a glass
bottle, causing a laceration above the left eye. (Tr. at 401-02.) Doctors noted that she was
able to walk without assistance but with some difficulty. (Tr. at 404.) They further noted no
extremity tenderness, full range of motion of all extremities, and normal mood/affect. (Tr. at
405.) On January 12, 2015, plaintiff went to urgent care for left knee pain following a fall. She
ambulated very well, refusing x-rays. (Tr. at 507.) On April 4, 2015, she went to urgent care
for a urinary tract infection. (Tr. at 514, 518.) On exam, doctors noted normal gait and posture,
as well as normal mood and affect. (Tr. at 515.) On September 21, 2015, she went to urgent
care for sinus congestion. (Tr. at 523.) On exam, doctors noted normal gait and posture,
mood and affect, judgment and insight. (Tr. at 525.) On November 1, 2015, she went to the
6
B.
Procedural History
1.
Plaintiff’s Application and Supporting Materials
On August 31, 2012, plaintiff applied for benefits, alleging a disability onset date of May
30, 2011. (Tr. at 189-95, 222, 226.) She alleged that she could no longer work due to nerve
damage in the right leg and arm, surgery complications, morbid obesity, and high blood
pressure. (Tr. at 226.) In a function report, plaintiff indicated that since her October 2011
surgery she had severe nerve damage to her right arm and leg, which caused falls. She could
not sit or stand for long periods of time. (Tr. at 235.) She spent most of her time lying down,
used a cane or walker when she got up to use the bathroom, and needed help with personal
care. (Tr. at 236.) She sometimes prepared meals but did no housework. (Tr. at 237.) She
could drive, shop, and handle money. (Tr. at 238.) She reported hobbies of reading and
watching TV. She could not exercise to lose weight. She communicated with others by phone
and computer. (Tr. at 239.) She indicated that she could not walk a block, lift over five pounds,
bend, twist, or climb stairs. (Tr. at 240.) She used a cane when going out, a walker in her
home. (Tr. at 241.) She took medications for pain, nerve damage, depression, and anxiety,
which made her drowsy. (Tr. at 242.)
In a physical activities addendum, plaintiff reported that she stood 5'6-½” tall and
weighed 285 pounds. She reported that she could continuously sit for 30 minutes, stand for
10 minutes, and walk for 10 minutes. In a day, she could sit for one hour, stand for 10 minutes,
ER following a motor vehicle accident in which she rear ended a stopped car, complaining of
pain to the throat and right knee. (Tr. at 393.) ER personnel noted she was on her cell phone
for a majority of triage and refused to hang up. (Tr. at 395.) On exam, doctors noted mild to
moderate joint pain with movement of the right knee but no evidence of soft tissue swelling or
acute instability. Her mood and affect were normal. X-rays showed no fractures. (Tr. at 396,
399-400.)
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and walk for 30 minutes. Her provider, Katie Larson, had limited to her to lifting five pounds.
(Tr. at 243.)
2.
Agency Decisions
The agency denied the application initially on May 23, 2013 (Tr. at 75-76, 131), based
on the review of Pat Chan, M.D., who concluded that plaintiff could perform sedentary work
with postural limitations (Tr. at 83-84), and Deborah Pape, Ph.D., who found that plaintiff’s
affective disorder caused no more than mild mental limitations (Tr. at 81-82). Plaintiff sought
reconsideration (Tr. at 140), but the agency denied that request on November 6, 2013 (Tr. at
127-28, 141), based on the review of Yacob Gawo, M.D. (Tr. at 107-09), and Larry Kravitz,
Psy.D. (Tr. at 105-06), who largely agreed with the initial assessments. Plaintiff then requested
a hearing before an ALJ. (Tr. at 147-48.)
3.
Hearing
On February 2, 2016, plaintiff appeared with counsel before the ALJ. The ALJ also
summoned a vocational expert (“VE”). (Tr. at 35.)
Plaintiff testified that she was 47 years old with a high school degree and a cosmetology
license. (Tr. at 40-41.) She last worked in 2011 doing hair; she stopped doing that work
because of back pain. (Tr at 41-42.) Before that, she worked as a bank teller and manager
at a fast food restaurant. (Tr. at 42-43.) She supported herself through W2 benefits; she had
two minor children, ages 17 and 10, and acted as guardian for her five year old nephew; she
also had an adult daughter, age 27. (Tr. at 44-45, 47.)
Plaintiff testified that her 27 year old daughter did the shopping and the older two
children did the housework. She did not do any of that. (Tr. at 48.) Her adult daughter came
8
to her home every day to make sure the younger kids got on the bus and got home, prepared
dinner, washed dishes, and made sure the clothes were clean. (Tr. at 55-56.) Plaintiff spent
most of her time laying down, reading, and watching TV. (Tr. at 56.)4
Plaintiff testified that she could no longer work an office job because she had to prop up
her legs and could not sit or stand for long; she spent most of the day in bed. (Tr. at 49.) She
also suffered from right carpal tunnel syndrome for which she had a splint. (Tr. at 50.) She
indicated that she could lift just eight pounds, no more. (Tr. at 51.) She testified that she was
on her feet most of the time and had to lift at least 80 pounds when working as a bank teller
and restaurant manager. (Tr. at 53-54.) She also did hair on her feet. (Tr. at 54.)
Plaintiff saw pain management, where she received medication and a series of
injections. The injections gave her some relief. (Tr. at 57.) She had been using pain patches
since 2014 and a cane since 2011. She had also been prescribed a walker in 2014 due to
falls. (Tr. at 58-59.) When sitting, she elevated her legs because of swelling. (Tr. at 60.) She
was not a candidate for further surgery unless she lost weight. She currently stood 5'4-½” tall
and weighed 290 pounds. Her weight had fluctuated between 250 and 324 pounds over the
past few years. (Tr. at 62.) She estimated that she could sit for about 20 minutes before she
had to change positions. (Tr. at 63.) She testified that her entire right side was numb. She
had pain across her lower back and down her left leg. The pain was excruciating. (Tr. at 63.)
She had taken a number of different pain medications and used a pain patch. She took
Percocet, which helped, but made her drowsy. (Tr. at 64.) She concluded that she could not
work due to back pain and the need to elevate her legs. (Tr. at 65.)
4
Plaintiff testified that she stopped driving over a year ago. The ALJ noted that she had
been in an accident in November 2015, but plaintiff indicated she was a passenger. (Tr. at 46.)
9
The VE classified plaintiff’s past work as a hairdresser as skilled, light generally, light to
medium as plaintiff performed it; bank teller as semi-skilled, medium generally, medium to
heavy as performed; fast food manager as skilled, light generally, medium to heavy as
performed; and fast food worker as unskilled, light generally, medium to heavy as performed.
(Tr. at 70-71.) The ALJ then asked a hypothetical question, assuming a person limited to
sedentary work, unable to climb ladders, ropes, or scaffolds, and limited to frequent stooping,
kneeling, and crawling. (Tr. at 71-72.) The VE testified that such a person could not perform
plaintiff’s past work but could do other unskilled jobs, such as order clerk, information clerk, and
office helper. (Tr. at 72-73.) The need to change positions between sitting and standing every
30 minutes would not affect these jobs, but the need to elevate the legs to waist level would
not be compatible with sedentary work. (Tr. at 73-74.)
4.
ALJ’s Decision
On April 20, 2016, the ALJ issued an unfavorable decision. (Tr. at 17.) The ALJ
determined that plaintiff had not engaged in substantial gainful activity since May 30, 2011, the
original alleged onset date,5 and that she suffered from the severe impairments of degenerative
disc disease and obesity. (Tr. at 22.)
The ALJ found plaintiff’s affective disorder non-severe, in that it caused no more than
minimal limitation in her ability to perform basic mental work activities. (Tr. at 22.) In making
this determination, the ALJ considered the four broad functional areas set out in the
regulations. (Tr. at 23.)
First, the ALJ found no limitation in activities of daily living. While plaintiff alleged
5
In a post-hearing submission, plaintiff amended the alleged onset date to August 1,
2012. (Tr. at 273.)
10
significant restrictions, they related to physical as opposed to mental symptoms. Plaintiff
reported no disabling mental problems in the disability report accompanying her application,
and in her later function report indicated that she prepared meals as her physical symptoms
allowed, shopped with a motorized cart, handled finances, read, watched TV, and used a
computer. Although she denied driving a car, records reflect that she was involved in an
accident in November 2015. In January 2014, she reported doing water aerobics, and in
October 2015 she reported raising money for her church. (Tr. at 23.)
Second, the ALJ found no limitation in social functioning. Plaintiff lived with her children
and five-year-old nephew for whom she was guardian. She reported that she stayed in touch
with others regularly by telephone and computer. She had also been involved in fund-raising
for her church and regularly attended a women’s group meeting sponsored by her church. (Tr.
at 23.)
Third, the ALJ found mild limitation in concentration, persistence, and pace. Plaintiff
reported difficulties with concentration and completing tasks due to depressive symptoms
stemming from ongoing physical limitations. She underwent counseling in 2015 for general
depressive symptoms. She reported that physical limitations, as well as problems with her
daughter, made her feel like a failure. She stated that she stayed in her robe and in her room
all day long. However, mental status evaluations routinely noted her to present as wellgroomed, pleasant, and with appropriate eye contact. Her insight and judgment were within
normal limits, her thought processes were organized and relevant, and her affect congruent.
She failed to appear at various appointments and was discharged. She also maintained varied
activities and social interaction. The ALJ concluded that she had difficulties in this area, but
they were not more than mild. (Tr. at 23.)
11
Finally, plaintiff had experienced no episodes of decompensation of extended duration.
Because plaintiff’s mental impairment caused no more than mild limitations in the first three
areas, and no episodes of decompensation in the fourth, the ALJ found the mental impairment
non-severe. (Tr. at 23.)
The ALJ next determined that neither of plaintiff’s severe impairments met or equaled
the severity of one of the conclusively disabling impairments in the Listings.
The ALJ
considered plaintiff’s disc disease under Listing 1.04, finding no evidence of nerve root or spinal
cord compromise with either nerve root compression or spinal arachnoiditis or lumbar spinal
stenosis resulting in pseudoclaudication. The record showed that plaintiff was 67 inches tall
and 269 pounds, producing a Body Mass Index (“BMI”) of 42.1, characterized as obese. The
ALJ noted that there is no specific Listing for obesity, but that this impairment could have an
adverse impact on co-existing impairments and may limit a claimant’s ability to sustain activity
on a regular and continuing basis; the ALJ indicated that he took this into account in evaluating
plaintiff’s disability claim. (Tr. at 24.)
The ALJ then found that plaintiff retained the residual functional capacity (“RFC”) to
perform sedentary work, except no climbing of ladders, ropes, or scaffolds; frequent stooping,
crouching, kneeling, and crawling; and the ability to change positions between sitting and
standing every 30 minutes. (Tr. at 24.) In making this finding, the ALJ considered plaintiff’s
alleged symptoms and the medical opinion evidence. (Tr. at 25.)
Plaintiff alleged in the disability report accompanying her application that her ability to
work was limited by nerve damage in her right arm and leg, surgery complications, obesity, and
high blood pressure. She reported that she stopped working in May 2011 because of these
conditions. In her February 2013 function report, plaintiff alleged ongoing symptoms of
12
numbness in her right upper and lower extremities resulting in unstable gait and limitations on
her ability to walk, sit, or stand for an extended period. She reported that she was limited to
sitting 30 minutes and standing/walking 10 minutes at a time. She further alleged that she had
been assessed a five pound lifting restriction in 2011. She indicated that these limitations
interfered with her ability to tend to her personal care and prevented her from doing any
housework or exercising in order to lose weight. She stated that she used a walker at home
and a cane when she went outside. At the hearing, plaintiff testified that she lived with her two
children and five-year-old nephew. She stated that she spent most of the day in bed and did
no cleaning or shopping due to her physical problems. Her adult daughter came over to make
sure the kids got to and from school, prepare dinner, and make sure her clothes were clean.
Plaintiff testified that she experienced pain and numbness extending down her entire right side
and across her back to her left leg and knee. She described her back pain as excruciating and
reported medication side effects that made her drowsy. She reported experiencing a number
of falls. Regarding her weight, she indicated that she had gastric banding surgery, but that she
required another procedure as her weight had fluctuated between 250 and 325 pounds. (Tr.
at 25.)
The ALJ concluded that while plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” her “statements regarding the
intensity, persistence and limiting effects of these symptoms are not entirely consistent with the
medical evidence and other evidence in the record for the reasons explained in this decision.”
(Tr. at 26.) He continued: “[Her] statements regarding the intensity and persistence of pain and
other symptoms and their functionally limiting effects on her physical capabilities are not
adequately supported by the totality of the medical evidence.” (Tr. at 26.) Plaintiff reported a
13
history of back pain that progressively worsened despite conservative treatment. An MRI
showed mild degenerative changes and a broad-based disc protrusion.
She was also
assessed as obese with a history of lap band surgery. In October 2011, she underwent an L5S1 laminectomy with discectomy but continued to report lumbar pain symptoms with radiation
to the right lower extremity. A lumbar MRI in August 2012 showed a recurrence and increased
size of the L5-S1 disc extrusion. She was referred to a pain management clinic and treated
conservatively with therapy modalities including steroid injections and medication management.
Her surgeon and pain management doctors directed her to lose weight and dietary changes
were discussed in detail. She participated in water aerobics for a time and reported losing
some weight and feeling generally better. However, she did not adhere to dietary changes and
continued to exhibit poor eating habits with minimal exercise. (Tr. at 26.)
The ALJ further noted that, contrary to her report of inability to walk without an assistive
device, the record consistently reflected examinations demonstrating normal unassisted gait.
As support, he cited three treatment notes from Dr. Nazir reporting normal gait with intact spinal
range of motion and normal musculature development.
Plaintiff also presented to the
emergency department in June 2013 with complaints of vomiting, and an examination at that
time found full range of motion without compromised gait. (Tr. at 26.)
Dr. Nazir completed a medical assessment form, opining that plaintiff required an
assistive device to ambulate, could sit for only 20 minutes and stand for 10 minutes at a time,
would require six unscheduled breaks a day, would never be able to lift 10 pounds or
twist/bend, and would be absent from work more than four days per month as a result of her
impairments. The ALJ concluded that these “dramatic limitations are unsupported by – and
contrary to – the evidence when considered in its entirety as well as Dr. Nazir’s own findings
14
on examination.” (Tr. at 26.)
Plaintiff reported improvement with eating healthier and doing water aerobics. She also
stated that she had achieved significant relief of her back pain following an injection, with
increased range of motion. Subsequent records reflect treatment for being hit on the head with
a beer bottle in 2014 and a car accident in 2015. No back complaints were reported nor were
any findings noted. (Tr. at 27.)
Mild spasm was noted on examination in July 2014 with normal gait, tone, strength, and
reflexes. Plaintiff reported a two-week history of lower leg edema in August 2014. Examination
at that time noted normal gait and posture. In January 2015, plaintiff presented with a report
of left knee pain for the past week and an examination again reflected normal gait and posture.
She complained of intermittent sinus congestion in September 2015 with normal gait and
posture noted on examination. (Tr. at 27.)
The state agency medical consultants, Drs. Chan and Gawo, reviewed the evidence
independently and separately concluded that plaintiff’s physical impairments limited her to
sedentary work with postural restrictions. The ALJ found their opinions generally consistent
with the evidence and gave them some weight. He did incorporate into the RFC an allowance
for changing positions every 30 minutes to accommodate plaintiff’s report of the need to
alternate positions as well as Dr. Nazir’s opinion in this regard. (Tr. at 27.)
NP Larson offered an opinion substantially supporting sedentary work but concluding
that plaintiff would be off work more than four times per month. That ALJ indicated that Larson
is not an acceptable medical source and demonstrated no expertise in any vocational area to
support the off-work component of her opinion. The ALJ have her opinion no weight. He
nonetheless found it interesting that she opined plaintiff could lift and carry 10 pounds
15
occasionally, contrary to plaintiff’s report that she was given a five pound lifting restriction by
Larson. (Tr. at 27.)
The ALJ further found that the evidence did not support a finding of a severe mental
impairment. In reaching this conclusion, the ALJ considered the opinions of the state agency
psychological consultants, Drs. Pape and Kravitz, each of whom reviewed the evidence and
concluded that plaintiff had no mental restrictions on activities of daily living and no more than
mild difficulties in the other functional areas. The ALJ found these opinions consistent with the
evidence and afforded them substantial weight. (Tr. at 27.)
In sum, the ALJ found that the record did not support a finding of total disability. Rather,
plaintiff remained capable of performing regular work tasks within the restrictions assessed in
the RFC. The ALJ accommodated plaintiff’s severe physical impairments by limiting her to
sedentary work with postural restrictions. The record contained references to use of a cane;
however, normal gait was frequently noted in the evidence. Nonetheless, use of a cane, if
necessary, is compatible with sedentary work. (Tr. at 27.) The ALJ addressed plaintiff’s
reports of need to change positions to relieve symptoms with an appropriate allowance in the
RFC assessment. The evidence did not support further limitations. (Tr. at 28.)
Plaintiff previously worked as a hairdresser, fast food worker, and fast food manager.
The VE testified that plaintiff could not perform any of these jobs within the restrictions
assessed in the RFC. (Tr. at 28.) However, the VE further testified that plaintiff could, within
the RFC, perform other jobs such as order clerk, information clerk, and office helper. The ALJ
accordingly found plaintiff not disabled. (Tr. at 29.)
On March 28, 2017, the Appeals Council denied plaintiff’s request for review (Tr. at 1),
making the ALJ’s decision the final word from the Commissioner on plaintiff’s application. See
16
Lanigan v. Berryhill, 865 F.3d 558, 563 (7th Cir. 2017). This action followed.
II. STANDARD OF REVIEW
The court reviews an ALJ’s decision to determine whether it applies the correct legal
standards and is supported by substantial evidence. Summers v. Berryhill, 864 F.3d 523, 526
(7th Cir. 2017). Substantial evidence is such relevant evidence as a reasonable person might
accept as adequate to support a conclusion. Id. The court will not, under this deferential
standard, re-weigh the evidence or substitute its judgment for that of the ALJ. Id. Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to
benefits, the responsibility for that decision rests with the ALJ. E.g., Schoenfeld v. Apfel, 237
F.3d 788, 793 (7th Cir. 2001).
Nevertheless, while judicial review is deferential, “it is not abject.” Parker v. Astrue, 597
F.3d 920, 921 (7th Cir. 2010). A decision that lacks an adequate discussion of the important
issues or fails to mention highly pertinent evidence will be remanded. See, e.g., id.; Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009).
III. DISCUSSION
Plaintiff argues that the ALJ’s finding that she could perform a range of sedentary work
is not supported by substantial evidence. (Pl.’s Br. at 13.) She specifically contends that the
ALJ erred in (1) evaluating the credibility of her statements, (2) rejecting Dr. Nazir’s opinion, (3)
finding her mental impairment not severe, and (4) failing to mention the problems with her right
arm and hand. (Pl.’s Br. at 14-15, 18.) I agree with the second and fourth contentions, and
thus remand for further proceedings.
17
A.
Symptom Evaluation
In evaluating the credibility of a claimant’s statements regarding her symptoms, the ALJ
must first determine whether the claimant suffers from a medically determinable impairment
that could reasonably be expected to produce the alleged symptoms. SSR 16-3p, 2016 SSR
LEXIS 4, at *5; SSR 96-7p, 1996 SSR LEXIS 4, at *5. Second, if the claimant has such an
impairment, the ALJ must evaluate the intensity and persistence of the symptoms to determine
the extent to which they limit the claimant’s ability to work. SSR 16-3p, 2016 SSR LEXIS 4, at
*9; SSR 96-7p, 1996 SSR LEXIS 4, at *5-6. If the statements are not substantiated by
objective medical evidence, the ALJ must evaluate the intensity, persistence, and limiting
effects of the alleged symptoms based on the entire record and considering a variety of factors,
including the claimant’s daily activities; the location, duration, frequency, and intensity of pain
or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage,
effectiveness, and side effects of any medication the claimant takes; treatment, other than
medication, used for relief of pain or other symptoms; and measures other than treatment used
to relieve pain or other symptoms.6 SSR 16-3p, 2016 SSR LEXIS 4, at *18-19; SSR 96-7p,
1996 SSR LEXIS 4, at *8. The court reviews an ALJ’s credibility finding deferentially, reversing
only if it “patently wrong.” Summers, 864 F.3d at 528.
6
SSR 16-3p went into effect in March 2016 (shortly before the ALJ issued his decision
in this case), replacing SSR 96-7p. The new Ruling eliminates use of the term “credibility” and
clarifies that “subjective symptom evaluation is not an examination of an individual’s character.”
2016 SSR LEXIS 4, at *1. The Seventh Circuit has noted that this “change in wording is meant
to clarify that administrative law judges aren’t in the business of impeaching claimants’
character; obviously administrative law judges will continue to assess the credibility of pain
assertions by applicants, especially as such assertions often cannot be either credited or
rejected on the basis of medical evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016).
The new Ruling requires use of the same two-step test and consideration of the same factors.
18
The ALJ followed the required two-step process in this case, finding that while plaintiff’s
impairments could reasonably be expected to cause the alleged symptoms, her statements
regarding the intensity, persistence, and limiting effects of those symptoms were not “not
entirely consistent” with the evidence of record. (Tr. at 26.) In support, he primarily relied on
examination findings of normal, unassisted gait and full range of motion; plaintiff’s reported
improvement with treatment; and her failure to comply with dietary and exercise
recommendations.
Plaintiff makes no claim of legal error; rather, she contends that the ALJ cited only
limited parts of the record, discussing three occasions in which her treating doctor noted normal
gait, three emergency room visits when back problems were not mentioned, and one occasion
when she reported relief from an injection. Plaintiff stresses other records suggesting more
serious problems. (Pl.’s Br. at 15.)
While the ALJ cannot simply “cherry-pick facts that support a finding of non-disability
while ignoring evidence that points to a disability finding,” Denton v. Astrue, 596 F.3d 419, 425
(7th Cir. 2010), he is not required to “discuss every piece of evidence in the record and is
prohibited only from ignoring an entire line of evidence that supports a finding of disability.”
Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010). The ALJ referenced much of the
evidence plaintiff now cites, including the August 2012 MRI showing a recurrent disc extrusion
(Tr. at 26), and plaintiff fails to identify specific lines of evidence that were overlooked.
Plaintiff suggests that the ALJ should not have relied on the records of ER visits for other
medical problems, but she cites no authority requiring the ALJ to ignore this evidence. See
Alvarado v. Colvin, 836 F.3d 744, 750 (7th Cir. 2016) (stating that “it is entirely permissible to
examine all of the evidence” in determining whether the claimant’s testimony about the effects
19
of his impairments is credible or exaggerated). Plaintiff also faults the ALJ for citing only a
handful of examples of normal gait, but the record amply supports the ALJ’s statement that “the
record consistently reflects examinations demonstrating normal gait.” (Tr. at 26; see, e.g., Tr.
at 539, 356, 349, 344, 339, 336, 439, 442, 446, 450, 454, 458, 466, 470.)7 The record also
supports the ALJ’s conclusion that plaintiff experienced some improvement with weight loss,
exercise, and injections. (Tr. at 27, 672-73, 532, 552, 563, 572, 575, 603.) To be sure, there
is evidence that plaintiff’s pain and other limitations persisted, but it “is the responsibility of the
ALJ, not of a reviewing court, to resolve conflicting evidence and to make credibility
determinations.” Brewer v. Chater, 103 F.3d 1384, 1392 (7th Cir. 1997); see also Roovers v.
Colvin, No. 14-C-370, 2015 U.S. Dist. LEXIS 8538, at *16-17 (E.D. Wis. Jan. 26, 2015)
(“[I]nstead of requiring conclusive evidence that a claimant is not telling the truth, the ALJ need
only provide reasons based on the record as a whole why the claimant’s testimony was not fully
credited.”).
Plaintiff argues that the ALJ should not have considered her failure to lose weight. (Pl.’s
Br. at 16.) She relies on SSR 02-1p, which notes that obesity “is generally the result of a
combination of factors (e.g., genetic, environmental, and behavioral),” 2002 SSR LEXIS 1, at
*3; that “in most people the effect of treatment is limited,” id. at *23; and that the agency “will
rarely use ‘failure to follow prescribed treatment’ for obesity to deny or cease benefits,” id. at
25. However, the ALJ did not find plaintiff disabled because of obesity or a combination of
obesity and another impairment, then deny benefits because she failed to follow a treatment
7
See Stevens v. Colvin, 169 F. Supp. 3d 887, 894-95 (E.D. Wis. 2016) (noting that it is
not a violation of the Chenery doctrine to respond to a claimant’s argument that the ALJ
“cherry-picked” favorable evidence and ignored unfavorable evidence by citing additional
evidence in the record that supports the finding made by the ALJ).
20
plan for weight loss. Rather, he discussed the weight loss and exercise recommendations
made by plaintiff’s providers, as the Rulings require (i.e., “treatment, other than medication”),
in the course of evaluating the credibility of her statements. Losing weight is not simply a
matter of will, as plaintiff notes, and I agree that ALJs should consider this factor with care.
However, plaintiff cites no authority precluding an ALJ from discussing it as part of his credibility
analysis. See Nelson v. Barnhart, No. 06-C-249-C, 2006 U.S. Dist. LEXIS 78129, at *25 (W.D.
Wis. Oct. 24, 2006) (“The ALJ relied on plaintiff’s failure to lose weight as one circumstance
in the totality that he considered when assessing the credibility of her subjective complaints.”),
adopted, 2006 U.S. Dist. LEXIS 85155 (W.D. Wis. Nov. 22, 2006). And the ALJ did not place
undue emphasis on this factor in the present case. See Simila v. Astrue, 573 F.3d 503, 517
(7th Cir. 2009) (“Though the ALJ’s credibility determination was not flawless, it was far from
‘patently wrong.’); Halsell v. Astrue, 357 Fed. Appx. 717, 722 (7th Cir. 2009) (“Not all of the
ALJ’s reasons must be valid as long as enough of them are[.]”).8
Finally, plaintiff contends that, while the ALJ criticized her for failing to lose weight, he
failed to assess the impact of obesity on her ability to sustain full time employment. (Pl.’s Br.
at 16.) The ALJ found plaintiff’s obesity to be a severe impairment, and he acknowledged that
obesity may have an impact on a person’s ability to sustain activity on a regular and continuing
basis. (Tr. at 24.) He then found that she retained the RFC for a reduced range of sedentary
work. (Tr. at 24.) While he did not specifically explain how obesity factored into the RFC,
8
The same is true of the ALJ’s statement that plaintiff “had been treated conservatively.”
(Tr. at 26.) As plaintiff notes, she received a variety of treatments, including medication,
therapy, and injections, and her doctors recommended a second surgery after she lost weight.
(Pl.’s Br. at 16.) However, the ALJ did not place undue weight on this questionable
observation.
21
plaintiff does not say what additional limitations he should have added based on her weight.
Any error was harmless. See Hernandez v. Astrue, 277 Fed. Appx. 617, 624 (7th Cir. 2008)
(“Here the ALJ did not explicitly discuss the exacerbating effects of Hernandez’s obesity on her
other limitations when arriving at her RFC, but the error was harmless. Hernandez did not
articulate how her obesity exacerbated her underlying conditions and further limited her
functioning – as it was her burden to do.”) (internal citation omitted).
B.
Treating Source Report
Under the regulations in effect at the time of the ALJ’s decision, the opinion of a
claimant’s treating physician regarding the nature and severity of a medical condition is entitled
to “controlling weight” if it is well supported by medical findings and not inconsistent with other
substantial evidence in the record. Israel v. Colvin, 840 F.3d 432, 437 (7th Cir. 2016); 20 C.F.R.
§ 404.1527 (“Evaluating opinion evidence for claims filed before March 27, 2017.”). If the
opinion does not meet the test for controlling weight, the ALJ must decide what other weight
it does deserve, considering a checklist of factors including the length, nature, and extent of
the treatment relationship; frequency of examination; the physician’s specialty; the types of
tests performed; and the consistency and support for the physician’s opinion. Campbell v.
Astrue, 627 F.3d 299, 308 (7th Cir. 2010).
The ALJ must provide “good reasons” for
discounting the opinion of a treating physician. 20 C.F.R. § 404.1527(c)(2); see also Israel,
840 F.3d at 437. The Seventh Circuit has nevertheless stated, “If the ALJ discounts the
physician’s opinion after considering [the checklist] factors, we must allow that decision to stand
so long as the ALJ minimally articulate[d] his reasons – a very deferential standard that we
have, in fact, deemed lax.” Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008) (internal quote
marks omitted).
22
In the present case, the ALJ considered the medical assessment form completed by
plaintiff’s primary physician, Dr. Nazir, which, as discussed above, endorsed significant
restrictions on plaintiff’s ability to work. The ALJ stated: “These dramatic limitations are
unsupported by – and contrary to – the evidence when considered in its entirety as well as Dr.
Nazir’s own findings on examination.” (Tr. at 26.) While the ALJ did not elaborate, he was
presumably referring to the same examination findings he cited in discussing credibility, e.g.,
normal gait and intact spinal range of motion. See Curvin v. Colvin, 778 F.3d 645, 650 (7th Cir.
2015) (“We do not discount it simply because it appears elsewhere in the decision. To require
the ALJ to repeat such a discussion throughout his decision would be redundant.”).
Given the “lax” standard of review set forth above, this might suffice on the initial
question of controlling weight. As plaintiff notes, however, the ALJ said nothing about the
checklist factors in deciding what other weight, if any, the report deserved. (Pl.’s Br. at 17.)
The Commissioner indicates that Dr. Nazir did not explain the basis for his opinion or
cite specific, supporting evidence. (Def.’s Br. at 4.) However, the ALJ did not reject the report
on these grounds, and my review is limited to the reasons he provided. See, e.g., Campbell,
627 F.3d at 306 (“Our review is limited to the reasons articulated by the ALJ in her decision.”).
The Commissioner notes that Dr. Gawo, the agency medical consultant at the reconsideration
level, considered the report from NP Larson, which reflected many of the same limitations
endorsed by Dr. Nazir, finding it “without substantial support from other evidence of record,
which renders it less persuasive.” (Tr. at 110.) While the ALJ gave “some weight” to the
agency medical consultant reports (Tr. at 27), he did not rely on Dr. Gawo’s assessment in
discounting the opinions of Dr. Nazir or NP Larson. He rejected NP Larson’s report because
she “is not an acceptable medical source and has no demonstrated expertise in any vocational
23
area to support the off-work component of her opinion.” (Tr. at 27.) This, too, was problematic.
See, e.g., Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004) (explaining that while
opinions from other medical sources may not receive controlling weight, they are entitled to
consideration); Dogan v. Astrue, 751 F. Supp. 2d 1029, 1038 (N.D. Ind. 2010) (reversing where
ALJ rejected report of nurse practitioner just because she was not an acceptable medical
source).9 The matter must be remanded for reconsideration of the treating provider reports.
C.
Mental Impairment
Mental impairments are evaluated using a “special technique.”
20 C.F.R. §
404.1520a(a). Under the regulations in effect at the time of the ALJ’s decision, the ALJ rates
the degree of functional limitation in four broad functional areas: activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of decompensation. Pepper v.
Colvin, 712 F.3d 351, 365 (7th Cir. 2013). The first three functional areas are rated on a
five-point scale: none, mild, moderate, marked, and extreme, and the final area on a four-point
scale: none, one or two, three, four or more. Id. If there are no episodes of decompensation
and the rating in each of the first three categories is none or mild, the impairment may generally
be deemed non-severe. Richards v. Astrue, 370 Fed. Appx. 727, 730 (7th Cir. 2010).
As indicated above, the ALJ deemed plaintiff’s affective disorder non-severe, finding no
limitation in activities of daily living and social functioning; mild limitation in concentration,
persistence, and pace; and no episodes of decompensation. (Tr. at 23.) Plaintiff does not
claim any legal error in the ALJ’s application of the special technique. Rather, she contends
9
It is unclear what sort of expertise the ALJ envisioned a source would need in order to
opine on the issue of absences due to the claimant’s impairments. This would appear to be
a medical rather than a vocational question. Cf. Fuller v. Astrue, 766 F. Supp. 2d 1149, 1161
(D. Kan. 2011).
24
that his finding is contrary to the record, citing treatment notes documenting symptoms of
sadness, panic attacks, and low self-esteem. (Pl.’s Br. at 17.) Plaintiff argues that, while her
mental impairment is not Listing level, it is more than a slight impairment and impacts her ability
to stay on task, respond to changes, and deal with stress. (Pl.’s Br. at 18.) The ALJ
considered the symptoms recorded in the mental health treatment notes, but contrasted them
with the normal mental status evaluations, plaintiff’s discharge from treatment due to missed
appointments, and her varied activities and social interaction. (Tr. at 23.) He also gave
substantial weight to the opinions of the agency psychological consultants, Drs. Pape and
Kravitz, who found no more than mild difficulties in the functional areas, including
concentration, persistence, and pace. (Tr. at 27.) Plaintiff cites no medical opinion endorsing
greater limitations in this area, and her argument boils down to a contention that the ALJ should
have reached a different conclusion.
But an ALJ’s job is to weigh conflicting evidence, and the loser in such a process
is bound to believe that the finder of fact should have been more favorable to his
cause. The substantial-evidence standard, however, asks whether the
administrative decision is rationally supported, not whether it is correct (in the
sense that federal judges would have reached the same conclusions on the
same record).
Sanders v. Colvin, 600 Fed. Appx. 469, 470 (7th Cir. 2015).
D.
Arm and Hand Problems
An RFC determination must account for all impairments, even those that might not be
severe in isolation. Murphy v. Colvin, 759 F.3d 811, 820 (7th Cir. 2014). In the present case,
Dr. Arain diagnosed carpal tunnel syndrome, prescribing physical therapy and a right wrist
splint (Tr. at 491-94), and Dr. Nazir opined that plaintiff could use her right arm and hand less
than occasionally (Tr. at 498). The ALJ said nothing about plaintiff’s arm and hand problems.
25
See Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir. 1984) (“[W]hen the ALJ fails to mention
rejected evidence, the reviewing court cannot tell if significant probative evidence was not
credited or simply ignored.”) (internal quote marks omitted).10
Nor did he include any
manipulative limitations in his hypothetical questions to the VE. See Varga v. Colvin, 794 F.3d
809, 813 (7th Cir. 2015) (“In this circuit, both the hypothetical posed to the VE and the ALJ’s
RFC assessment must incorporate all of the claimant’s limitations supported by the medical
record.”) (internal quote marks omitted). This oversight cannot be dismissed as harmless, as
the VE identified unskilled, sedentary jobs (Tr. at 72), which generally require good use of both
hands and the fingers. SSR 96-9p, 1996 SSR LEXIS 6, at *22. The matter must be remanded
for consideration of possible manipulative limitations.
IV. CONCLUSION
THEREFORE, IT IS ORDERED that the ALJ’s decision is reversed, and the matter is
remanded for further proceedings consistent with this decision. The Clerk is directed to enter
judgment accordingly.
Dated at Milwaukee, Wisconsin this 3rd day of April, 2018.
/s Lynn Adelman
LYNN ADELMAN
District Judge
10
As indicated above, the ALJ considered Dr. Nazir’s report, but he did not discuss the
recommended limitations on use of the hand and arm. (Tr. at 26.) The ALJ partially credited
Dr. Nazir’s report regarding the need for a sit-stand option (Tr. at 27), so I cannot assume that
he rejected the manipulative limitations.
26
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