Bouvat v. Commissioner of Social Security
Filing
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DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that the Commissioner's decision is AFFIRMED. IT IS FURTHER ORDERED that this action is DISMISSED. (cc: all counsel)(asc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VENUS STARR BOUVAT,
Plaintiff,
v.
Case No. 23-CV-32
MARTIN J. O’MALLEY,
Commissioner of Social Security,
Defendant.
DECISION AND ORDER
Venus Starr Bouvat seeks judicial review of the final decision of the Commissioner of
the Social Security Administration denying her application for supplemental security income
under the Social Security Act, 42 U.S.C. § 405(g). For the reasons explained below, the
Commissioner’s decision is affirmed, and the case is dismissed.
BACKGROUND
On July 29, 2020, Bouvat filed an application for supplemental security income,
alleging disability beginning on January 2, 2014, due to bipolar disorder; PTSD; anxiety
disorder; diabetes; asthma; back problems; shoulder problems; peripheral neuropathy;
osteoarthritis of the elbow, wrists, and hands; and osteoarthritis of the shoulder. (Tr. 355.)
Bouvat’s application was denied initially and upon reconsideration. (Tr. 25.) Bouvat filed a
request for a hearing, and a hearing was held on June 9, 2022. (Tr. 45–69.) Bouvat, who was
represented by counsel, testified, as did Robert Verkins, a vocational expert (“VE”). (Id.) At
the hearing, Bouvat moved to amend her alleged onset date to January 29, 2020. (Tr. 49.)
In a written decision issued July 21, 2022, the ALJ found that Bouvat had the severe
impairments of left hip labrum tear; trochanteric bursitis; lumbar degenerative disc disease
and facet arthropathy; carpal tunnel syndrome; diabetes mellitus; left shoulder rotator cuff
tear and tendinosis; osteoarthritis of the knees, hands, left shoulder, and left hip; inflammatory
arthritis; peripheral neuropathy; asthma/chronic obstructive pulmonary disease; migraine
headaches; and obesity. (Tr. 28.) The ALJ found that Bouvat did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments in
20 C.F.R. pt. 404, subpt. P, app. 1 (the “Listings”). (Tr. 29–31.) The ALJ found that Bouvat
had the residual functional capacity (“RFC”) to perform light work, with the following
limitations: no overhead reaching with the left upper extremity and only frequent hand use;
only occasional operation of foot controls with the left lower extremity; no climbing ropes,
ladders, and scaffolds; only occasional climbing of ramps and stairs, stooping, crouching,
kneeling, and crawling; no concentrated exposure to fumes, dust, and environmental irritants;
and no work at unprotected heights or with dangerous machinery. (Tr. 31.)
While Bouvat has no past relevant work, the ALJ found that considering her age,
education, work experience, and RFC, other jobs existed in significant numbers in the
national economy that she could perform. (Tr. 36–37.) Thus, the ALJ found Bouvat was not
disabled since July 29, 2020, the date the application was filed. (Tr. 37.) The ALJ’s decision
became the Commissioner’s final decision when the Appeals Council denied Bouvat’s request
for review. (Tr. 7–12.)
DISCUSSION
1.
Applicable Legal Standards
The Commissioner’s final decision will be upheld if the ALJ applied the correct legal
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standards and supported his decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v.
Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is not conclusive evidence; it
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (internal quotation and citation
omitted). Although a decision denying benefits need not discuss every piece of evidence,
remand is appropriate when an ALJ fails to provide adequate support for the conclusions
drawn. Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the
evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ is also expected to follow the SSA’s rulings and regulations in making a
determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v.
Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the court does
not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing
evidence, resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel,
152 F.3d 636, 638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered
by the ALJ. Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp.,
318 U.S. 80, 93–95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).
2.
Application to This Case
Bouvat argues the ALJ erred in two ways: (1) by improperly assessing her RFC when
limiting her to light work with manipulative and postural restrictions and (2) by failing to
develop the record by not obtaining an updated medical opinion after her 2022 left hip
surgery. (Pl.’s Br., Docket # 13; Pl.’s Reply Br., Docket # 19.) I will address each argument
in turn.
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2.1
RFC Assessment
The ALJ limited Bouvat, in relevant part, to light work, but with no overhead reaching
with the left upper extremity and only frequent hand use. (Tr. 31.)
Bouvat generally questions the limitation to light work, invoking the SSA’s Medical–
Vocational Guidelines, also known as the “grid,” in support. (Pl.’s Br. at 7.) The grid “is a
chart which classifies a claimant as disabled or not disabled, based on the claimant’s physical
capacity, age, education, and work experience.” Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.
1987). As of her alleged onset date of January 29, 2020, Bouvat was 48 years old and thus a
“younger individual age 18-49” under the regulations. 20 C.F.R. § 416.963(c). The ALJ
noted, however, that Bouvat “subsequently changed age category to closely approaching
advanced age.” (Tr. 36.) The ALJ also noted that Bouvat has marginal education and no past
relevant work. (Id.) Under the grid, an individual who is closely approaching advanced age,
has limited or less education, has no previous work experience, and is capable of sedentary
work, is deemed disabled. 20 C.F.R. Part 404, Subpart P, App’x 2, § 201.09. The same
individual, however, capable of light work, is deemed not disabled under the grid. Id. § 202.10.
In other words, had the ALJ found Bouvat limited to sedentary work rather than light work,
she would be considered disabled per the grid.
Light work “requires that a person have the ability to lift up to twenty pounds and the
ability to do a good deal of walking or standing.” Allen v. Sullivan, 977 F.2d 385, 389 (7th Cir.
1992). “Since frequent lifting or carrying requires being on one’s feet up to two-thirds of a
workday, the full range of light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8 hour workday.” Id. (quoting Social Security Ruling 83–10,
Titles II and XVI: Determining Capability to Do Other Work—The Medical–Vocational Rules of
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Appendix 2). In her Adult Function Report dated September 29, 2020, Bouvat stated that she
spends “almost all day” in bed, can stand for approximately 20 minutes, and cannot walk.
(Tr. 370.) She testified at the hearing that she has been “pretty much going downhill” since
2020. (Tr. 58.) She stated that she cannot walk from her front door to the end of the block,
cannot stand, and spends most of the day either in bed or sitting on a chair. (Id.)
The ALJ found that the record evidence was inconsistent with the severity of the
symptoms Bouvat alleges, looking specifically at her relatively normal imaging and physical
examinations and the opinions of the state agency physicians that she remained capable of
performing light work. (Tr. 34–35.) Bouvat’s challenge to the ALJ’s finding is not entirely
clear. She argues that the ALJ failed to address how her hip affects her ability to sit or whether
her combined hip and back issues would require further standing limitations. (Pl.’s Br. at 7.)
It seems Bouvat’s argument is that her hip and back issues would limit her standing such that
she is incapable of the requirements of light work, taking her into the sedentary work category,
and thus making her disabled under the grid. If that is the case, Bouvat points to no evidence
warranting more restrictive limitations in sitting and/or standing that the ALJ failed to
consider. See Jozefyk v. Berryhill, 923 F.3d 492, 498 (7th Cir. 2019) (finding that even if an
ALJ’s RFC assessment was flawed, the error is harmless if plaintiff fails to articulate what
greater restrictions, supported by the evidence, the ALJ failed to assign). Thus, it is unclear
how the ALJ erred in this regard.
Bouvat further argues that the ALJ erred by assessing more restrictive postural and
manipulative limitations than those opined by the state agency physicians, arguing that the
ALJ “offered no non-arbitrary basis for her additional limitations.” (Pl.’s Br. at 7.) Both state
agency physicians at the initial and reconsideration levels opined Bouvat was capable of light
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work but restricted her to limited left overhead reaching due to her unrepaired left rotator cuff
tear. (Tr. 87–90, 105–09.) The ALJ, however, found the state agency physicians’ opinions
only somewhat persuasive. (Tr. 35.) Specifically, while she agreed that the evidence supported
limiting Bouvat to light work with a restriction regarding overhead reaching with the left arm,
the ALJ found that, considering Bouvat’s history of left shoulder surgical repair, carpal tunnel
syndrome, and neuropathy, Bouvat should be further limited to frequent hand use and no
overhead reaching with the left upper extremity. (Id.) Bouvat argues that these findings are
arbitrary. I disagree. The ALJ fully explained why she accorded the weight that she did to the
two state agency physicians’ opinions and why she was assessing more restrictive limitations.
Even assuming, however, that the ALJ’s limitations were indeed “arbitrary,” once again,
Bouvat fails to explain how the ALJ’s more restrictive RFC fails to account for her limitations.
Thus, the ALJ did not err in this regard.
2.2
Failure to Develop the Record
Bouvat further argues that the ALJ failed to develop the record by not obtaining a new
medical opinion after her June 7, 2022 left hip surgery. The two state agency physicians issued
their opinions in April and December 2021. Subsequent to these opinions, Bouvat underwent
a left hip arthroscopy to repair a degenerative tear of the acetabular labrum of the left hip on
June 7, 2022, two days prior to the June 9, 2022 hearing before the ALJ. (Tr. 2324–41.) At
the beginning of the hearing, Bouvat’s counsel represented that the record was complete. (Tr.
49.) However, after the ALJ learned of Bouvat’s recent surgery during the course of the
hearing, she stated that she would hold the record open for 30 days so that Bouvat could
submit any treatment records or information related to her left hip. (Tr. 56.) After the hearing,
Bouvat provided records from June 7, 2022, related to her surgery. (Tr. 2244–2341.)
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Considering all of the evidence, including these most recent records regarding Bouvat’s
hip surgery, the ALJ stated that in “additional consideration of her left hip surgical repair, the
claimant is further limited to occasional operation of foot controls with the left lower
extremity.” (Tr. 35.)
“While a claimant bears the burden of proving disability, the ALJ in a Social Security
hearing has a duty to develop a full and fair record.” Nelms v. Astrue, 553 F.3d 1093, 1098 (7th
Cir. 2009). The duty is “enhanced” when a claimant is unrepresented, id., however, it does
not go away when the claimant is represented, Gray v. Astrue, No. 10 C 1670, 2011 WL
332540, at *5 (N.D. Ill. Jan. 28, 2011) (“This presumption does not, however, eliminate an
ALJ’s independent duty to reasonably develop the record.”). Although having counsel does
not absolve the ALJ of their duty to develop the record, “a claimant represented by counsel
is presumed to have made his best case before the ALJ.” Skinner v. Astrue, 478 F.3d 836, 842
(7th Cir. 2007); see also Nicholson v. Astrue, 341 F. App’x 248, 253 (7th Cir. 2009) (“Although
we acknowledge that the ALJ bears some responsibility for the development of the record, at
the same time the ALJ is entitled to assume that a claimant represented by counsel ‘is making
his strongest case for benefits.’ An omission from the record is significant only if it is
prejudicial to the claimant.”) (internal citations omitted).
The ALJ in this case clearly fulfilled her duty. Despite being represented by counsel,
and presumably counsel being aware that her client underwent surgery just two days prior to
the hearing, counsel told the ALJ at the beginning of the hearing that she did not object to the
exhibits currently in the file and that “the record [wa]s complete.” (Tr. 49.) It was not until
the ALJ began questioning Bouvat about her current medications that she learned Bouvat
was taking pain medication due to a hip surgery two days prior. (Tr. 55–56.) The ALJ stated:
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“Counsel, I know you said the record is complete, but I’m not sure I see any treatment or
information about this left hip. I’d like to hold the record open for 30 days for you to submit
any treatment related to this condition,” to which counsel responded, “Okay. That’s fine,
Your Honor. Thank you.” (Tr. 56.) What counsel submitted was treatment records from the
day of surgery only—June 7, 2022. (Tr. 2243–2343.) Counsel did not include any follow-up
records occurring in that 30-day period after the June 9, 2022 hearing, assuming any exist.
Bouvat further faults the ALJ for failing to obtain a new medical opinion, arguing that
her left hip surgery was “indubitably a significant medical issue to be reviewed by a
physician.” (Pl.’s Reply Br. at 1, Docket # 19.) But an ALJ need only seek an additional
medical opinion “if there is potential decisive evidence that postdates the state agency
consultant’s opinion.” Kemplen v. Saul, 844 F. App’x 883, 888 (7th Cir. 2021). Bouvat testified
that two weeks prior to the left hip surgery she was told that she was “on a walker
permanently” because of “all the damage that’s been done” to her hips, back, and shoulders.
(Tr. 56.) When asked whether her doctors intended to reevaluate her need to use a walker
after she recovers from the hip surgery, Bouvat testified that she needed to use it “from now
on.” (Tr. 57.) Thus, it does not appear that the surgery impacted her condition in any
significant way. Upon discharge, Bouvat was instructed to start physical therapy “as soon as
possible” and to follow up in office in “1 week, sooner should issues arise.” (Tr. 2335.) At the
very least, if Bouvat followed-up in one week as instructed at discharge, those records would
have been available and Bouvat could have included them in her post-hearing submission.
But given the dearth of records subsequent to the surgery, I see no “potential decisive
evidence” that required an additional expert opinion. Thus, the ALJ did not err on this
ground.
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CONCLUSION
Bouvat argues that the ALJ’s decision finding her not disabled is contrary to the
substantial evidence in the record. For the reasons explained above, I find that the ALJ’s
decision in this case is well supported by the substantial evidence in the record. The
Commissioner’s decision is affirmed. The case is dismissed.
ORDER
NOW, THEREFORE, IT IS ORDERED that the Commissioner’s decision is
AFFIRMED.
IT IS FURTHER ORDERED that this action is DISMISSED. The Clerk of Court
is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 27th day of March, 2024.
BY
B
Y THE COURT
T
___________________________
___________
_____
____
_ __________
NANCY JOSEPH
PH
United States Magistrate Judge
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