Crocker, Donna v. Colvin, Carolyn

Filing 22

ORDER affirming Commissioner decision regarding Social Security benefits RE: 7 Social Security Transcript. ; denying 10 Motion for Summary Judgment. Signed by District Judge Barbara B. Crabb on 2/13/14. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DONNA CROCKER,
OPINION AND ORDER
Plaintiff,
13-cv-269-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This is an appeal of an administrative decision denying plaintiff Donna Crocker’s
claim under the Social Security Act, 42 U.S.C. § 405(g), for disability benefits and
supplemental security income.

Plaintiff alleged that she suffered from a number of

impairments, including lower back pain, but the administrative law judge concluded that she
was not disabled because she retained the ability to perform her previous job as a machine
operator, as well as other sedentary jobs such as order clerk, office helper and sorter.
All of plaintiff’s arguments on appeal relate to the administrative law judge’s handling
of the opinions of plaintiff’s treating physician.

In particular, plaintiff says that the

administrative law judge rejected many of these opinions improperly and then “played
doctor” by modifying another opinion. Because I disagree with each of these arguments, I
am affirming the decision.

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OPINION
The administrative judge considered four opinions given by plaintiff’s treating
physician, Margaret Grenisen.

A treating physician’s opinion is entitled to controlling

weight if it is “well supported by medical findings and not inconsistent with other substantial
evidence in the record.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) (citing 20
C.F.R. § 404.1527(d)(2)). Even when the treating physician’s opinion is not entitled to
controlling weight, the administrative law judge must give a “sound explanation” for rejecting
the opinion. Punzio v. Astrue, 630 F.3d 704, 709-10 (7th Cir. 2011). Plaintiff argues that
the administrative law judge did not give a sound explanation for rejecting some of
Grenisen’s opinions and modifying others.
With respect to Grenisen’s April 20, 2010 assessment, the administrative law judge
wrote the following:
Dr. Grenisen opined that the claimant should be excused from work activities
for a two-month period as further work-up was conducted on her chronic pain
complaints. I do not accord any weight to this temporary restriction. I also
note that such a determination that the claimant is unable to work at all is one
reserved to the Administration to make pursuant to 20 CFR 404.1527 and
416.927.
AR 50.
Plaintiff devotes multiple pages of her opening brief to criticizing the administrative
law judge’s reliance on the proposition that determinations about a claimant’s ability to work
are reserved to the commissioner. However, she also states that the administrative law judge
“may be justified in rejecting temporary restrictions.” Plt.’s Br., dkt. #11, at 25. To the
extent that plaintiff is not conceding the point that the administrative law judge was entitled

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to reject the opinion because it was a temporary restriction, she has forfeited it by failing to
develop her argument. Fednav International Ltd. v. Continental Insurance Co., 624 F.3d
834, 841 (7th Cir.2010) (“[A] party who fails to adequately present an issue to the district
court has waived the issue for purposes of appeal.”). See also Anderson v. Barnhart, 175 F.
App'x 749, 755 (7th Cir. 2006) (rejecting temporary restriction as evidence of disability).
With respect to Grenisen’s June 27, 2011 assessment, the administrative law judge
gave it little weight because it
was completed for child support purposes, not social security purposes.
Moreover, although Dr. Grenisen stated that the claimant would only be able
to work about 4 hours a day, this seems to be pure speculation. There is no
evidence that the claimant has participated in any formal physical capacity
evaluation and Dr. Grenisen acknowledges that the claimant consistently has
failed to follow through with treatment modalities.
AR 50-51. The only opinion in June 27, 2011 assessment that plaintiff discusses is the one
mentioned by the administrative law judge, which is that plaintiff could not work more than
about four hours a day. One of the reasons the administrative law judge gave for rejecting
that limitation is that it “seems to be pure speculation.” Plaintiff acknowledges that the
administrative law judge does not have to give any weight to a medical opinion that is not
supported by the record. SSR 96-2p (“A case cannot be decided in reliance on a medical
opinion without some reasonable support for the opinion.”). Even now, however, plaintiff
does not point to any evidence in the record that supports a four-hour workday limitation.
Accordingly, plaintiff has forfeited this point as well.
With respect to Grenisen’s assessments on February 6 and 7, 2012, the administrative
law judge wrote the following:

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While I accord great weight to the first assessment completed on February 6,
2012 and find that it is consistent with the residual functional capacity I have
formulated, I give the assessment completed the following day much less
weight.
On February 6, 201[2], Dr. Grenisen completed a questionnaire indicating
that the claimant could lift up to 10 lbs. frequently and up to 20 or 30 lbs.
occasionally. She stated that the claimant would require four 5 to 10 minute
breaks each workday. Dr. Grenisen cautioned that the claimant would have
trouble focusing as well as interacting in large groups of people due to her
psychological impairments (Exhibit 19F). Although I find that the claimant is
limited to sedentary exertion instead of light exertion because of her standing
limitations, I accord controlling weight to Dr. Grenisen's assessment that the
claimant would require 4 short, unscheduled breaks during the workday. I find
that this can be accomplished during the claimant's regular work breaks which
would generally exceed 5 or 10 minutes on each occasion as well as with her
ability to be off-task about 10% of each workday. I note that while the
claimant's representative suggested in a hypothetical to the vocational expert
that the claimant would need to be away from her workstation during these
breaks, this is not indicated in Dr. Grenisen's assessment.
On February 7, 2012, Dr. Grenisen completed another assessment which I
give much less weight to. Dr. Grenisen qualified much of her assessment with
statements indicating that this assessment was based upon the claimant's
subjective reports rather than upon objective medical findings. For instance,
she stated that she was mentioning some limitations "by her report," that is,
relying upon the claimant's statements. Moreover, I also considered the
impreciseness of this report from Dr. Grenisen. For example, she noted that
the claimant's hepatitis C treatment might cause work limitations and she
suspected that she might have trouble operating machinery due to her reports
of inattentiveness (Exhibit 21F). While I note that this report is essentially a
narrative reciting the claimant's own reports of her capabilities, I find that it
is essentially consistent with the claimant's residual functional capacity.
Plaintiff takes issue with the administrative law judge’s decision to give great weight
to Grenisen’s February 6 opinion, but then “translate” Grenisen’s finding that plaintiff needs
four unscheduled breaks into a limitation that plaintiff would be off task about 10 percent
of the time. I agree with plaintiff that it is puzzling why the administrative law judge

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modified the limitation without explaining his reasons for doing so. However, regardless of
the reason, the question raised by plaintiff’s argument is whether the modification unfairly
prejudiced her somehow. After all, a finding that plaintiff would be off task 10 percent of
the time would subtract approximately 50 minutes of productivity from an eight-hour work
day while four ten-minute breaks would subtract 40 minutes of productivity. Thus, with
respect to productivity, the administrative law judge’s modification made the limitation more
restrictive than what Grenisen found.
Plaintiff’s only response to this is to point to the testimony of the vocational expert.
When the administrative law judge asked the expert about jobs for someone who would be
off task 10 percent of the time, the expert testified that jobs would be available. AR 29.
However, when plaintiff’s counsel asked the expert about jobs for someone who had to take
four unscheduled breaks during the work day, the expert testified that no jobs would be
available. AR 31.
The vocational expert did not explain the reason for the different opinions, but the
parties seem to agree that the difference comes down to whether plaintiff would need to
leave her work station during her unscheduled breaks. If she does, then the administrative
law judge’s limitation is insufficient, at least under the view of the vocational expert. Again,
it is not clear why an employer would be less accommodating of an employee who was away
from her workstation than an employee who was off-task for a similar amount of time.
Either way, the employee is not working. However, neither the administrative law judge nor
the parties have challenged the vocational expert’s view on this point.

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In his decision, the administrative law judge stated that “while the claimant’s
representative suggested in a hypothetical to the vocational expert that the claimant would
need to be away from her workstation during these breaks, this is not indicated in Dr.
Grenisen’s assessment.” AR 51. Plaintiff does not directly dispute the administrative law
judge’s observation, but she argues that at least one reasonable interpretation of Grenisen’s
opinion supports a contrary view. In particular, plaintiff cites Grenisen’s February 7, 2012
assessment, which included the following discussion:
[Plaintiff] reports some increased discomfort with prolonged static positions,
She believes that she could sit comfortably for approximately 30 minutes, but
then would require a change of positions and could probably stand 30-45
minutes in a period of time. She thinks if she was allowed to have frequent
breaks that she probably could sit at least 6 hours during a day and standing
with breaks perhaps 4 hours. . . . It is assumed that she will need more breaks
throughout a normal 8-hour work day and that her discomfort would likely be
relieved with a short break of 5-10 minutes 4 or 5 times a day.
AR 651.
The administrative law judge gave “much less weight” to the February 7 assessment
in part because it relied on plaintiff’s subjective complaints. Bates v. Colvin, 736 F.3d 1093,
1100 (7th Cir. 2013) (“[W]here a treating physician's opinion is based on the claimant's
subjective complaints, the ALJ may discount it.”). However, the administrative law judge
does not acknowledge in his decision that Grenisen’s opinions in her February 7 assessment
essentially are the same opinions in February 6 assessment to which he gave “great weight.”
The primary difference is that Grenisen explained her opinion in her February 7 assessment
rather than just checking boxes and stating conclusions as she did in her February 6
assessment.

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Regardless whether the administrative law judge should have treated the February 6
and February 7 assessments the same, I agree with the administrative law judge and the
commissioner that plaintiff has not pointed to any basis for concluding that plaintiff needs
to leave her workstation during her unscheduled breaks. In the document plaintiff cites,
Grenisen’s only reason for imposing the restriction regarding breaks was that plaintiff needed
to “change . . . positions” on a regular basis. Grenisen did not say that plaintiff needs to
walk around and plaintiff cites no other evidence that would support such a restriction.
Accordingly, I conclude that the administrative law judge did not make a reversible error
when he modified the limitation at issue as he did.
The parties debate the administrative law judge’s handling of Grenisen’s February 7
assessment as well, but the only prejudice plaintiff identifies is the administrative law judge’s
failure to incorporate Grenisen’s opinion that plaintiff needs four unscheduled breaks.
Because that is simply a reiteration of plaintiff’s argument regarding the February 6
assessment, it is unnecessary to discuss that issue again.

ORDER
IT IS ORDERED that plaintiff Donna Crocker’s motion for summary judgment is
DENIED and the decision of defendant Carolyn W. Colvin, Acting Commissioner of Social
Security, is AFFIRMED. The clerk of court is directed to enter judgment in favor of

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defendant and close this case.
Entered this 13th day of February, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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